## Facts

- Animal control and police investigated reports that Terrianne Hess was neglecting cats at her duplex.
- Officers entered with Hess’s consent and found overwhelming urine odor, extensive feces contamination, and unsanitary conditions; the residence was deemed unfit for human habitation.
- Authorities found 38 living cats with severe flea infestation and poor health; Hess later relinquished the cats.
- A veterinarian reported the cats were underweight, anemic, and severely flea infested.
- Police also found seven dead cats; the veterinarian attributed death to starvation and anemia caused by flea infestation.
- Hess was charged with seven counts of first-degree animal neglect (dead cats) and 38 counts of second-degree animal neglect (living cats), based on failure to provide legally required minimum care.
- Hess sought to introduce psychologist testimony that she had obsessive-compulsive personality disorder (OCPD) that compelled her to acquire more cats than she could care for, asserting her conduct was “involuntary.”
- The trial court excluded the expert testimony, refused Hess’s requested jury instruction on the voluntary-act requirement, and entered separate convictions on all 45 counts.
- After appeal was filed, the trial court entered an amended judgment imposing a $5,000 punitive fine and removing a contested probation search-and-seizure condition.

## Issues

1. Whether exclusion of expert testimony about Hess’s OCPD was error because it allegedly bore on the statutory “voluntary act” requirement for criminal liability.
2. Whether the trial court erred by refusing Hess’s requested jury instruction concerning the voluntary-act requirement.
3. Whether the 45 animal-neglect convictions should have merged into fewer convictions.
4. Whether challenges to the original fine and probation condition remained justiciable after entry of the amended judgment.

## Decision

- The Oregon Court of Appeals affirmed.
- The court held the OCPD testimony was properly excluded as irrelevant to whether Hess lacked physical capacity to perform the acts necessary to provide minimum care.
- The court held the trial court properly refused the requested voluntary-act instruction because it misstated the applicable law.
- The court rejected merger, concluding separate animals supported separate convictions.
- The court dismissed the fine and probation-condition assignments as moot in light of the amended judgment.

## Legal Principles

- Criminal liability based on an omission requires proof that the defendant failed to perform an act the defendant was physically capable of performing.
- Evidence that a mental condition affected decision-making or created compulsions is not relevant to “involuntariness” when it does not bear on the defendant’s physical capacity to perform the required acts.
- A trial court need not give a requested jury instruction that is inaccurate or misleading as a statement of law.
- Separate neglect causing harm (or risk of harm) to separate animals may support separate convictions rather than merger.
- An amended judgment that removes or replaces challenged sentencing components can render related appellate claims moot.

## Conclusion

The court affirmed Hess’s 45 animal-neglect convictions, ruling that proffered OCPD evidence did not address the legally relevant question of physical capacity to provide care, the proposed voluntariness instruction was incorrect, separate animals supported separate convictions, and the remaining sentencing complaints were moot after amendment of the judgment.


State v. Hess, 273 Or. App. 26, 359 P.3d 288 (2015)