STATE OF OREGON, Respondent on Review, v. ROBERT L. BRANCH, aka Robert Lee Branch, Jr., aka Rueben Netzer, Petitioner on Review.
CC 14CR00250; CA A158214; SC S064318
IN THE SUPREME COURT OF THE STATE OF OREGON
January 19, 2018
362 Or 351 (2018)
FLYNN, J.
No. 3. Argued and submitted May 8, 2017.
On review from the Court of Appeals.*
Argued and submitted May 8, 2017.
Brett Allin, Deputy Public Defender, Salem, argued the cause and filed the briefs for the petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.
Jacob R. Brown, Assistant Attorney General, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Flynn, and Duncan, Justices, and Landau, Senior Justice pro tempore.**
FLYNN, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Case Summary: Defendant moved for a judgment of acquittal on the charge of initiating a false report,
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
This case presents a narrow question regarding the meaning of
Defendant was driving while intoxicated and rear-ended another driver. He left the scene of the collision without providing the information that
Upon learning from dispatch about defendant‘s claim that the other driver brandished a gun, Lance believed that the conduct defendant described constituted a crime. He questioned the other driver about defendant‘s claim and extensively searched the other driver and his car, but he found no gun.
Lance then joined Duke at defendant‘s house to complete his accident investigation. Lance pressed defendant about whether he wanted to stick to his statement about the gun in order to give defendant a chance to keep “from getting into additional trouble,” if possible. Without specifically saying whether he had found a gun, Lance warned defendant: “If you tell me that he had a gun and cannot describe for me the kind of gun that I found in the vehicle, then I‘m going to arrest you for what‘s called initiating a false report, which is giving me information that‘s not true about a weapon being pointed.” Defendant continued to insist that he had seen a gun and even elaborated about the type of gun and about the other driver‘s actions regarding the gun, including adding a claim that the other driver had threatened, “I will kill you.” The deputies had already concluded, however, that the gun story was false and arrested defendant without further investigation.
Among other offenses, the state charged defendant with one count of knowingly initiating a false report,
The Court of Appeals affirmed defendant‘s conviction based on his repetition and embellishment of the false accusation when questioned by Lance. State v. Branch, 279 Or App 492, 381 P3d 1082 (2016). In doing so, the court emphasized its holding in prior cases that “evidence that a person has lied in response to police questioning in the course of an investigation is not enough to convict the person of initiating a false report.” Id. at 496 (citing State v. McCrorey, 216 Or App 301, 306, 172 P3d 271 (2007)). Under that standard, the court concluded that defendant‘s initial false statement to Duke was insufficient to support the conviction but that the circumstances surrounding his repetition of the false accusation to Lance permitted the jury to find that defendant knowingly initiated a false report, in violation
II. DISCUSSION
Defendant sought review in this court, but both parties challenge the decision of the Court of Appeals in part. Defendant argues that neither his initial false statement nor his repetition of the statement was made under circumstances that permit a finding that he violated
“A person commits the crime of initiating a false report if the person knowingly initiates a false alarm or report that is transmitted to a fire department, law enforcement agency or other organization that deals with emergencies involving danger to life or property.”
Although the statute describes a number of elements, there is no dispute that defendant acted “knowingly,” that his allegation that the other driver brandished a gun was false, or that his false allegation was “transmitted” to a “law enforcement agency.” Rather, defendant‘s challenge to his conviction puts at issue only the meaning of the phrase “initiates a false alarm or report.”
Defendant argues that the phrase “initiates a false alarm or report” does not include false statements that are made “in response to police questioning during an investigation of a report that someone else had initiated.” Under that construction of the statute, defendant contends, the Court of Appeals correctly concluded that defendant did not violate
The state acknowledges that the statute may exclude some lies that are made in response to police questioning, but contends that a person can be found to have initiated a false alarm or report during an encounter that the person did not initiate “when the person falsely reports a new criminal matter.” Under that test, the state contends, both defendant‘s false statement to Duke and his false statement to Lance support his conviction for “initiating a false report” because defendant‘s accusation that the other driver brandished a gun was a report about a new criminal matter.
Defendant‘s argument that the statute excludes any false accusations made in response to police questioning primarily focuses on the legislative history of
A. Text and Context
As a starting point, we emphasize that the object of the verb “initiates” is not “the encounter.” Rather, for a violation of
1. “Initiates”
Defendant emphasizes the word “initiates” in arguing that the text of
Defendant proposes that the meaning suggested by the definitions quoted above “confirms” that
being questioned. In that sense, defendant‘s false allegation “mark[ed] the beginning of” any information being provided to law enforcement about a gun crime and “set going” the law enforcement response to that crime. Thus, defining the term “initiates” does not resolve whether the legislature intended to preclude the statute from applying to a person who falsely informs law enforcement officers of a new, ongoing crime whenever the false allegation is made in response to a police inquiry.
2. “Report”
The statutory text and context suggest that the legislature intended to draw a different line between a false statement that “initiates a false alarm or report” and a false statement that does not—a line that depends on the nature of the false statement rather than whether a law enforcement question supplied the opportunity or motivation for the false statement. Like the word “initiates,” the word “report” is also a word of common usage that the legislature has not defined. Dictionary definitions of the noun “report” vary from the very casual (“common talk” and “rumor“) to somewhat formal (“something that gives information : a usu[ally] detailed account or statement ***“) to formal (“a usu[ally] formal account of the results of an investigation given by a person or group authorized or delegated to make the investigation“). Webster‘s at 1925. All of the definitions, however, describe a communication of information.
Other parts of
addition, the statute as a whole suggests that the legislature intended to criminalize “reports” about the types of situations to which the law enforcement or other emergency organization is reasonably likely to respond with its resources. That intention is reflected in the statute‘s specification that the sentence for any person convicted of “initiating a
Of course, many types of false statements that are made during the course of an existing police investigation can trigger the expenditure of resources.4 For example, when Lance questioned defendant about leaving the scene of the collision, if defendant had falsely claimed that he had an alibi for the time of the collision, the deputies might have expended resources to investigate the false claim of alibi. That, however, does not make the alibi necessarily a “report,” as that term is used in
We infer from the broader statutory context that a false “report,” as that term is used in
limits—“other organization.” That conclusion flows both from the grammatical rule of the “last antecedent” and from the fact that leaving the noun “other organization” unlimited could expand the scope of liability under the statute far beyond what we conclude the legislature intended. See State v. Clemente-Perez, 357 Or 745, 754, 359 P3d 232 (2015) (“The doctrine of the last antecedent provides that ‘[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent,‘” and that “‘[t]he last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence.‘” (Quoting State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996))).
a more specific conveying of information than simply making a false statement. That context includes two statutes that prohibit the making of any false “statement” under oath:
If
of complying with the interpretive principle that, if possible, we give a statute with multiple parts a construction that ‘will give effect to all’ of those parts.” State v. Cloutier, 351 Or 68, 98, 261 P3d 1234 (2011) (quoting
Thus, our examination of text and context suggests that the legislature intended a “report,” within the meaning of
This case illustrates the type of communication that meets the intended definition of a “report.” The deputies responded and began an investigation after the other driver called 9-1-1 to communicate that defendant had fled the scene of the collision, and then Lance investigated whether the other driver was in possession of a weapon after defendant falsely alleged that the driver had pointed a gun at him, because Duke considered the allegation to represent a safety concern and Lance believed that the alleged conduct constituted a crime. Both were “reports.” However, defendant‘s statement admitting that he had consumed alcohol was not a “report,” because it did not communicate a circumstance of a type to which law enforcement is likely to respond independent of its relevance to the existing investigation into whether defendant committed the crime of driving while intoxicated.
3. “Initiates a False Alarm or Report”
That understanding of the term “report” provides a more clear suggestion of what “initiate[] a false alarm or report” means in the context of law enforcement questioning that the person did not initiate. Text and context suggest that a person “initiates a false alarm or report” if the person‘s communication “begin[s]” or “mark[s] the beginning of” informing the organization about the circumstances that are the subject of the report. In the context of questioning initiated by law enforcement, that suggested meaning includes, at a minimum, falsely reporting new circumstances to which the law enforcement agency is reasonably likely to respond as a separate, ongoing crime or emergency. Conversely, the text and context suggest that a person does not violate
B. Legislative History
Despite the contrary meaning suggested by the statutory text and context, defendant argues that the legislative history demonstrates an intent “to exclude false reports that are responsive to police interrogation” from the prohibition of
The legislature adopted
A subcommittee of the commission considered preliminary draft language for the section that became
This court has looked to commentaries produced by both the commission and its subcommittees as legislative history for the revised criminal code. E.g., Gaines, 346 Or at 178; see State v. Woodley, 306 Or 458, 462, 760 P2d 884 (1988) (unless a contrary indication exists, court assumes that the legislature accepted the commission‘s explanations for its drafting choices). That legislative history strongly supports our conclusion that the legislature intended to criminalize “reports” to an emergency organization about situations of a type to which the organization responds with resources. As explained in the commentary to the Final Draft and Report, the new provision that became
“Criminal statutes dealing with false fire alarms are found in nearly all American jurisdictions. The rationale supporting criminal liability is based upon the waste of government resources involved and the creation of circumstances where personnel and equipment are made unavailable to deal with legitimate emergencies. Section 212 is intended to reach fire and police departments, and all other organizations, public or private, that respond to emergency alarms involving danger to life or property.”
Commentary to Final Draft and Report § 212, 208-09. The commentary to an earlier draft elaborated on that intent: “The proposed section will provide law enforcement agencies with increased protection from unjustified harassment and interference with official duties.” Commentary to Tentative Draft No. 1, Art 22 § 8, 51.
The legislative history also supports our conclusion that the legislature did not intend to criminalize all false statements made in response to a police inquiry. The commentary to both the Preliminary Draft and later Tentative Draft approved by the subcommittee contrast the intended scope of
However, nothing in the commentary that the commission provided to the legislature suggests that
crime from “Rendering a False Report” to “Initiating a False Report” and replacing the phrase “causes * * * to be transmitted” with “knowingly initiates.” Criminal Law Revision Commission Proposed Oregon Criminal Code, Tentative Draft No. 1, Art 22, § 8 (Feb 1970).6
Defendant argues that the change to “initiates” reflects a decision by the subcommittee that, “categorically, the statute should not punish” false reports that are “responsive to police questioning.” As we will explain, defendant overstates the significance of the subcommittee discussions and of the addition of the term “initiates.”7 For the most part, the comments that defendant cites are entirely consistent with the rule that the text and context of
Defendant relies on the following history. Thomas O‘Dell, a representative of the Attorney General, proposed adding the word “initiates” to address a concern, expressed by Representative Harl Haas, that the earlier language permitted any oral statement “requested and solicited by the police officer [to] be the subject of prosecution” and that, “[i]f every time you talk to a police officer you are in essence testifying under oath, subject to the penalties of being prosecuted for your statement if it‘s an error, that‘s a pretty big policy statement.” Tape Recording, Criminal Law Revision Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81,
Side 2 (statement of Haas); Minutes, Criminal Law Revision Commission, Sept 16, 1969, 18. Defendant highlights O‘Dell‘s suggestion that his proposed substitution of “initiates” would make the statute applicable when a person “starts the ball rolling.” Tape Recording, Criminal Law Revision Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81, Side 2. Defendant also cites an additional comment by Haas that “we‘re talking about * * * initiating the wheels of law enforcement to go in action on an assertion you‘ve made, as opposed to just a verbal statement to a police officer.”8 Id.
Although defendant assumes that those comments reflect a belief that the proposed language would exclude a false report made in response to police questioning, Chairman Wallace Carson used the same “ball rolling” phrase to explain his opinion that a person who intentionally lies during a police investigation should be responsible: “[W]hen they start the ball rolling, they‘re going to be responsible.” Tape Recording, Criminal Law Revision Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81, Side 2.
Moreover, defendant assumes a false dichotomy. If, in response to police questioning about one crime, a person reports a new crime, that report “starts the ball rolling” or sets going “the wheels of law enforcement” on a response to that new crime as fully as if the same report were made through an unprompted call to the police station. Indeed that point is illustrated by the facts of this case—when defendant reported to Duke that a man who was not previously suspected of any crime had engaged in conduct that Duke
Although other isolated comments during the subcommittee hearing seemingly come closer to supporting defendant‘s construction of the statute, in context the statements
are less clear than defendant believes. For example, defendant highlights a comment that he attributes to Project Director Donald Paillette, who described his understanding of the line that the statute should draw as: “It‘s ‘who called the fuzz?‘” Tape Recording, Criminal Law Revision Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81, Side 2. But Paillette‘s colorful phrasing must be understood in the context of the contrast he was drawing with false statements made during a “follow-up investigation“—a type of statement that he believed the statute should not prohibit. In other words, the comment could be understood as, figuratively, “who called the fuzz [on a new criminal investigation]?”
Moreover, Paillette‘s comment was immediately followed by the comment of another subcommittee member who expressed the extreme opposite perspective: “I think it‘s the same thing, a waste of governmental resources[;] * * * you‘re sending the police on a wild goose chase by giving them false information.” Id. Several other members then expressed concern that, if the statute prohibited all false statements to the police, it would criminalize a common situation in which people who are approached by the police during an investigation falsely deny knowledge of the particular crime or suspect in order to avoid becoming involved. Id. As one member emphasized, although that “might not be the best thing for a person to do socially,” it does not seem to “rise[] to the level of a crime.” Id. Representative Haas then offered his opinion that “[t]his is more directed at the guy who calls up” and reports an ongoing crime. Id. After those comments, the subcommittee voted to substitute the term “initiates” in place of “rendering” and “causes * * * to be transmitted.” Minutes, Criminal Law Revision Commission, Subcommittee No. 2, Sept 16, 1969, 19; Tape Recording, Criminal Law Revision Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81, Side 2.
Ultimately, the legislative history for
Although several subcommittee members expressed concern about situations in which a person responds to a police question with a false statement that is relevant only to the existing investigation, no member raised the example of a person who falsely reports a new crime in a way that is also responsive to a police question. Thus, no member of the subcommittee offered an opinion about whether the statute should apply when a person sets the law enforcement “ball rolling” in the direction of a separate criminal investigation in that way.
Significantly, in the most meaningful indication of intent to emerge from the subcommittee—the version of the commentary that was ultimately forwarded to the full commission, and then to the legislature—the only limitation on the scope of “initiates a false alarm or report” is the suggestion that the laws of Wisconsin and Canada were “unduly broad” in prohibiting “any false oral statement,” or even “doing anything” to divert suspicion, during the course of an investigation. Commentary to Tentative Draft No. 1, Art 22, § 8, 50; Commentary to Preliminary Draft No. 1, Art 22, § 11, 51. Thus, the legislative history provides no basis for us to depart from the meaning suggested by the “more persuasive evidence of the intent of the legislature” that is supplied by the text and context of the statute. See Gaines, 346 Or at 171; see also Cloutier, 351 Or at 102 (“The fact of the matter, however, is that the legislative history * * * provides a little something for everyone and does not clearly resolve the matter one way or the other.“).
We conclude that, at a minimum, in the context of questioning initiated by law enforcement, a person “initiates a false alarm or report” within the meaning of
C. Defendant‘s Motion for Judgment of Acquittal
Under that test, the facts of this case permit a finding that defendant violated
We thus agree with the Court of Appeals’ that defendant‘s conviction should be affirmed. For the reasons discussed, however, we disagree with the Court of Appeals that only defendant‘s subsequent elaboration on his false report supports his conviction under
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
conduct or to a circumstance described by a statute defining an offense, * * * that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.”