"7 18 19 FOR MULTNOMAH. count! (Git THE STA’ OF OREGON, No. € 18CR75140 Plaintiff, | DA 2392083 STATE'S MOTION IN OPPOSITION TO Defendant. | THE DEFENSE MOTION TO DISMISS BARRY JOE STULL ‘The State of Oregon, by and through Senior Deputy District Attomey Thomas P. Cleary, hereby respectfully requests that this Court deny Defendant’s Motion to Dismiss as there is no substantive or procedural law supporting the defendant’s motion, CASE POSTURE ‘The defendant is charged with Count 1 Interfering with Public Transportation, Count 2 ‘Assault in the Fourth Degree and Count 3 Disorderly Conduct in the Second Degree. This case along with defendant's other cases (15CR53749 and 19CR21313) are set for call March 13, 2020. ARGUMEN The defendant devotes considerable time in his filing to a discussion of his claimed isability, central pain syndrome and his belief that he will prevail at trial. The defendant seems to assert that his condition effectively provides immunity from arrest and prosecution for criminal acts he commits, The defendant cites no authority, statutory or otherwise, upon which the Court may rely in granting the extraordinary relief that he seeks — dismissal of the criminal action, 1f the trial court finds that there are grounds for reasonable accommodations to be made during the course of the tral in this case those accommodations should be provided at the time of tial as they would be, and routinely are, for any party to a criminal action, Multnomah County District Attomey’s Office, Portland, OR 97204 - (503) 988-316210 u 2 B 4 15 16 " 18 19 20 2 22. 2B 25 28 CONCLUSION For the reasons set forth above, Defendant’s Motion to Dismiss should be denied. DATED this 27" day of January, 2020 Senior Deputy District Attorney ‘Multnomah County District Attomey’s Oflice, Portland, OR 97204 - (503) 988-3162CERTIFICATE OF SERVICE Thereby certify that I served the within State’s Motion In Opposition To Defense Motion To Dismiss onthe 28" day of January , 2020, by distributing a certified true copy thereof; certified by me as such as detailed below: Hershall Brown Attomey at Law hershall@lexcuralaw.comi Barry Stull cannabisboo@yahoo.com Multnomah County Circuit Court By E filing Thomas B. Cleary, OSB 9204f1 Senior Depiuty District Attorney10 ul 2 4 16 "7 5 26 7 28 is ‘The Within Instrument has been. prepared by, and is cetifled by me iobea tae complegepy of ep Lb INTHE CIRCUIT COURT OF THE STATE aa. Oe toamah Co. oo FOR MULTNOMAH couyrt? a> * yo THE STATE OF OREGON, No. C 15-CR-53749 Plaintiff, | DA 2331361 STATE’S MOTION IN OPPOSITION TO Defendant, ) DEFENSE MOTION TO DISMISS BARRY JOE STULL Also known as. BARRY JOE STULLY The State of Oregon, by and through Senior Deputy District Attomey Thomas P. Cleary, hereby respectfully requests that this Court deny Defendant’s Motion to Dismiss as there is no substantive or procedural Jaw supporting the defendant's motion CASE POSTURE “The defendant was convicted by jury trial of Count 1 Attempted Assault of @ Public Safety Officer, Count 2 Resisting Arrest, Count 3 Criminal Mischief in the Second Degree on September 23,2016, Count 4 of the Information of District Atomey charging Criminal Tréspass in the second Degree was dismissed on the motion of the State on September 6, 2016, The defendant appealed his convictions and the reversed and remanded the case to the trial court. ‘The finding of the Court of Appeals was filed March 6, 2019. ‘This case as well as defendant's other eases (18CR75140 and 19CR21313) are set for eall march 13, 2020. ARGUM! ‘The defendant devotes considerable time in his filing to a discussion of his claimed disability, central pain syndrome and his belief that he will prevail at trial. The defendant seems to assert that his condition effectively provides immunity from arrest and prosecution for eriminal acts ‘Multnomah County Distriet Attomey’s Office, Portland, OR 97204 ~ (503) 988-316210} u 2 B 4 1s 16 7 8 20 au 2 | 23 he commits, The defendant cites no authority, statutory or otherwise, upon which the Court may rely in granting the extraordinary relief that he seeks ~ dismissal of the criminal action, If the trial court finds that there are grounds for reasonable accommodations to be made during the course of the trial in this case those accommodetions should be provided at the time of trial as they would be, and routinely are, for any party to a criminal action. CONCLUSION For the reasons set forth above, Defendant’s Motion to Dismiss should be denied. DATED this 27" day of January, 2020 Thomas P. Cleary, OSB 920411 Senior Deputy District Attomey ‘Multnomah County District Attorney's Office, Portland, OR 97204 - (503) 988-3162CERTIFICATE OF SERVICE. Thereby certify that I served the within State’s Motion In Opposition To Defense Motion To Dismiss on the 28" day of January , 2020, by distributing a certified true copy thereof, certified by me as such as defailed below: Hershall Brown Attorney at Law hershall@lexcuralaw.com Bary Stull cannabisboo@vahoo.com ‘Multnomah County Cireuit Court By E filing ‘Thomas P. Cleary, OSB 924 ‘Senior Deputy District Attomey10 Ww R 3B “4 1s 18 19 20 21 22 ‘The Within Instrument has been. prepared by, and is certified by me ‘THE STATE OF OREGON, No. C 19-CR-21313 Plaintiff, | DA 2400031 v. STATE’S RESPONSE TO BARRY JOE STULL Defendant, | DEFENDANT’S REQUEST. FOR A SITE Vi ‘The State of Oregon, by and through Senior Deputy District Attomey Thomas P. Cleary, hereby files this response to the defendant's request for a site visit. ARGUMENT ‘The state has provided the defendant, via discovery, photographs of the subject property taken at the time ofthe crime. It is unclear’ what relevant material will be gained by allowing the defendant access to the secured property. Additionally, the subject property does not belong to anyone over whom the State has any control. ‘The property owners, Portland Community Reinvestment Initiatives, throughout conversations regarding this case have made it clear that due to the defendant's violent and unpredictable behavior they do not wish to permit him back on their property. The property owners are represented by counsel, Mr, Aaron Matusick attomey at law. ‘Mr, Matusick was not served by the defendant with a copy of this motion. CONCLUSION For the reasons stated above the defendant's motion for y.s(te visit should be denied, DATED this 28 day of January, 2020 if ji i) ae Le Vbwed lia, ‘Thomas P. Cleary, OSB 920411 Senior Deputy District Attomey Multnomah County District Attomey's Office, Portland, OR 97204 (503) 988-3162CERTIFICATE OF SERVICE Thereby certify that I served the within State’s Response To Defendant's Request For A Site Visit on the 28" day of January, 2020, by distributing a cestified true copy thereof, certified by me as such as detailed below: Hershall Brown Attomey at Law hershall@lexcuralaw.com Barry Stull cannabisboo@yahoo.com Multnomah County Cireuit Court ByE filing ‘Thomas P” Cleary, OSB 92041 Senior Deputy District AtomeyB 4 1s 16 18 19 2 21 2 2B ‘The Within Instrument has been prepared by, and is cntited byme i “ ete IN THE CIRCUIT COURT OF THE svat AO) RECON eo) FOR MULTNOMAH COUNTY pislgthtomy Matos Co oft come THE STATE OF OREGON, | No. C 19CR21313 Plaintiff, | DA 2400031 v. STATE'S MOTION IN LIMINE BARRY STULL Defendant | The State of Oregon, by and through Senior Deputy District Attorney Thomas P. Cleary, respectfully requests the Court preclude the defendant's from offering evidence regarding a choice of evils defense in this case. FACTS On April 1, 2019 at approximately 12:35 a.m, Portland Police Officer Andriy Cherevan responded to a radio call of a “guy breaking down a door with a sledgehammer.” Moments prior to Officer Cherevan’s arrival other officers arrived at the location (4066 NE Grand Avenue Portland, Oregon) and reported. hearing banging at the location and seeing: a person moving around. The building has multiple dwellings that were unoccupied at the time. Upon arrival Officer Cherevan witnessed the defendant walking out of a vacant apartment with a sledgehammer in his hand, Officers on scene encouraged the defendant to put down the sledgehammer and come out to talk with them. The defendant refused and replied to the officers “No you come here and talk to me!" The defendant then went back into one of the apartments, with the sledgehammer in hand, and began tearing down the window blinds inside of the apartment, Moments later the defendant came out of the apartment and ultimately complied with the police directions to put down the ‘Mulmomah County District Attorney's Office, Portland, OR 97204 - (503) 988-316224 25 26 7 sledgehammer and was taken into custody. Once in custody the defendant began yelling “police got me in handcuffs because | broke into apartments with the sledgehammer.” ‘Atthe location officers observed three front doors had significant damage to them that appeared to be caused by a heavy, durable object consistent with the sledgehammer that the defendant had in his possession. Additionally, two sets of blinds that were inside of the apartment that the defendant entered were damaged as well. While transporting the defendant to jail the defendant made a number of statements including “! broke down the affordable housing building because homeless people don't have anywhere to live’, "I'm the only one who will help them.” The defendant also made a number of death threats toward the officers such as “Next time | get contacted or arrested by you pigs, one of you is gonna end up DEAD somewhere! | promise you that.” Inan email correspondence to myself as well as his legal advisor Mr. Hershall Brown, Attorney at Law, the defendant writes, among other things, “The 2019 case will be defended using the choice of evils defense, and raises the issue of taxpayer funded nonprofit affordable housing landlord keeping affordable housing vacant during the declared housing state of emergency and instead subjecting neighbors to squalor, ‘squatters and graffiti in addition to keeping families homeless.” CASE POSTURE The defendant is charged by indictment with Burglary in the Second Degree and Criminal Mischief in the second Degree. ‘Multomah County District Atoms Office, Portland, OR 97204 - ($03) 988-316210 u or B 2 23 24 25 ARGUMENT ORS 161,200 defines the “choice of evils" defense, stating: (1) Unless inconsistent with other provisions of chapter 743, Oregon Laws 1971, defining justifiable use of physical force or with some other provision of law; conduct which would otherwise constitute an offense is justifiable and not criminal when: (a) that conduct is necessary as ‘an emergency measure to avoid an imminent public or private injury; and (b) The threatened injury is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense, To establish a choice of evils defense, a defendant must show that (1) the conduct was necessary to avoid a threatened injury (2) the threatened injury was imminent, and (3) it was reasonable for the defendant to believe that the threatened injury was greater that the potential injury of his illegal actions. State v. Seamons, 170 Or. App 582, 586, 13 P3d 573 (2000). If the defendant presents sufficient evidence to establish the defense, the burden shifts to the prosecution to disprove it beyond a reasonable doubt. State v. Olsen, 79 Or. App 302, 719 P2d 55 (1986) The ‘choice of evils” defense is not available in situations in which the defendant has lawful options available to him and it is not necessary to violate the law. See Teague v, Motor Vehicles Division, 124 Or. App. 25, 28, 860 P2d 905 (1992) (if there is evidence that a perpetrator had other options available to him that would not have been unlawful, there was no factual basis for application of “choice of evils". because the perpetrator was not in a position that required him to choose an evil). Multnomah County Disttict Attorney's Office, Portland, OR 97204 - (503) 988-3162” 18 19 20 au OEC 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The defendant in the case at bar indicates that his actions of entering and destroying the victim's property were motivated by his feelings surrounding resources for those who are homeless in the community. The Oregon Court of Appeals addresses this issue in State v. Troen, 100 Or. App 422 (1990). In Tron the defendant, an animal rights activist, broke into a research facility at a state university and tock laboratory animals. The defendant was charged with Theft in the First Degree, Burglary in the Second Degree and conspiracy to commit Burglary in the Second Degree. The trial court granted the state's pre-trial motion to limit the evidence of animal abuse that the defendant proposed to introduce in support of his “choice of evils" defense, The court of appeals affirmed the trial court’s ruling finding that “Defendant's proffered evidence was not relevant to the issue of whether he acted “with intent’ to conspire or commit the crime of Burglary or “knowingly” in committing the crimes of Burglary and Theft.” Troen at 447. The court goes on to say “The issue was whether defendant acted with a particular state of mind. The proffered evidence would not tend to show that the defendant did not know what he did or intended to do it” Troen at 447. As in Troen the case at bar deals with the mental states of “intentionally” and “knowingly.” The defendant clearly states that he is frustrated with the issues surrounding homelessness and cites that frustration for the actions he engaged in resulting in his arrest and criminal indictment. Similar to the defendant in Troen this defendant's proposed | explanation goes directly to why hé engaged in the criminal conduct in this case and is ‘Maltnomeh County District Attomey's Office, Portland, OR 97204 - (503) 988-3 16210 u 2 B 1s 16 18 » 20 21 23 25 26 2 therefore not relevant to the pertinent question of whether he acted with “intent” or “knowledge.” CONCLUSION ‘The defendant should be precluded from advancing a choice of evils defense as the defendant is not able to make the requisite showing for the defense to apply. Additionally, defendant should be precluded from testifying about his opinions relative to the issue of homelessness. The reason that the defendant engaged in the unlawful entry and destruction of property in this case is irrelevant and does not address the material elements of the defendant's mental states of “intent” and “knowledge.” DATED this 28" day of January, 2020 , Cleary, OSB 926411 ‘Senior Deputy District Attomey Multnomah County District Attorney's Office, Portland, OR 97204 - ($03) 988-3162CERTIFICATE OF SERVICE I hereby certify that I served the within State's Motion In Limine on the 28” day of January, 2020, by distributing a certified true copy thereof, certified by me as such as detailed. below: Hershall Brown “Attorney at Law hershall@lexcuralaw.com Bamry Stull canpabisboo@yahoo.com Multnomah County Cireuit Court By E filing Thomas P. Cleary, OSB Senior Deputy District Attorney