STATE OF OREGON, Plaintiff-Respondent, v. JOSIE CHRISTY ANN PROPHET, Defendant-Appellant.
Harney County Circuit Court 18CR84172; A171101
Court of Appeals of Oregon
Argued and submitted October 20, 2020, affirmed March 16, 2022
318 Or App 330 | 507 P3d 735
W. D. Cramer, Jr., Judge.
Affirmed.
Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.
KAMINS, J.
Affirmed.
Defendant was convicted of resisting arrest,
I. FACTUAL BACKGROUND
The relevant facts are undisputed. At 4:00 p.m. on April 11, 2018, Oregon State Police Trooper Held was dispatched to locate a silver Toyota Camry that was reportedly being driven by someone under the influence of intoxicants. Held located the vehicle parked on the shoulder of the road between Burns and John Day, observing that the engine was still running, and defendant was asleep in the driver‘s seat. Held knocked on the window to awaken defendant and asked her a few questions, which defendant answered politely. However, Held observed that defendant‘s movements were slow and that she had watery, bloodshot eyes, and droopy eyelids—all indicators of alcohol impairment.
Held asked defendant to perform field sobriety tests, at which point defendant‘s demeanor changed “drastically.” Defendant appeared noticeably more upset and began to alternate between cursing loudly and sitting on the ground crying. Due to defendant‘s irritability, Held began to suspect that she was under the influence of methamphetamine rather than alcohol and informed her that she was under arrest for driving under the influence of intoxicants. Held approached defendant and attempted to put her hands behind her back, but she became rigid and attempted to pull her arm closer to her body and away from Held. Held warned defendant that he would consider anything further to be resisting, but defendant continued to scream “[n]o”
After a search incident to arrest yielded drug paraphernalia that tested positive for methamphetamine residue, the state charged defendant with both possession of methamphetamine,
On appeal, defendant assigns error to the trial court‘s refusal to give her proposed instruction. She argues that
II. STANDARD OF REVIEW
We review a trial court‘s jury instructions for legal error. State v. Harper, 296 Or App 125, 126, 436 P3d 44 (2019). “A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim or defense and that instructional error permits the jury to reach a legally erroneous result.” Id.
Under
“the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes, but is not limited to, behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer.”
Defendant argues that the intent requirement in
In response, the state argues that defendant‘s interpretation is inconsistent with the text of
A. Overview of Culpability Provisions
Determining which culpable mental state attaches to which elements of a crime is a “chronically vexing problem.” State v. Schodrow, 187 Or App 224, 228, 66 P3d 547 (2003). The problem largely stems from the interaction of two different sets of statutes governing the analysis. First, as always, we construe the statute defining the crime to “pursue the intention of the legislature if possible.”
Those general culpability statutes for the most part reflect the legislature‘s policy choice to “use the Model Penal Code (MPC) approach to culpability.” State v. Owen, 369 Or 288, 309-10, 505 P3d 953 (2022). A key objective of the Model Penal Code (MPC) is to “limit the condemnation of conduct as criminal when it is without fault.”
Oregon‘s culpability statutes are the legislature‘s attempt to effectuate the general goal of requiring a culpable mental state for each of a crime‘s material elements. Under
Turning to the second question first, the legislature supplied statutory default rules to aid in determining which mental state to apply.
If the statute defining a criminal offense does not contain an explicit mental state, we must assess which mental state to apply by evaluating the type of element at issue.
B. Determining Which Are the “Material Elements that Necessarily Require a Mental State”
Oregon appellate courts have been inconsistent when determining what are the material elements of the offense that necessarily require a culpable mental state. The difficulty stems from the language of
Like the question of which mental state to apply, the question of which elements require culpable mental states has, at times, been treated differently when a statute contains an explicit mental state and when it does not. For statutes that do not contain a mental state, the Supreme Court has clarified the analysis by setting out several “core principles.” State v. Haltom, 366 Or 791, 797-99, 472 P3d 246 (2020) (quoting Simonov, 358 Or at 537-40). First, the statute defining the offense, read with the assistance of the general culpability provisions, is the source of the appropriate mental state. Id. Second, a culpable mental state is required for each material element of the crime except for those relating to the statute of limitations, jurisdiction, venue, and the like. Id. To determine which mental state to apply, courts look to the “default” rules contained in
As discussed above, the default rule governing statutes without a mental state requires an evaluation of the type of element at issue—conduct, circumstance, or result. Id. at 798-99. To determine the appropriate mental
Left unresolved by Simonov and Haltom was whether that analysis of which are the “material elements that necessarily require a mental state” is the same for statutes that contain an explicit mental state. The Supreme Court has recently answered that question in the affirmative. Owen, 369 Or at 316-17. But this court‘s case law has, at times, taken various analytic approaches to determining which elements are material when a statute contains an explicit mental state.
The conflicting body of case law, summarized below, appears to stem from the requirement of
C. Background of Determining Material Elements for Statutes that Contain an Explicit Mental State
Nearly 50 years ago, the Supreme Court determined that the framework described in Simonov applied
Subsequent decisions quickly began expanding the types of elements that do not require proof of a culpable mental state despite the language of
Recognizing that we were beginning to deviate from the distinction set out in Blanton, in State v. Engen, we set about reexamining prior decisions in an effort to clarify the analysis. 164 Or App 591, 597-603, 993 P2d 161 (1999), rev den, 330 Or 331 (2000). We observed that, although the approach has varied at times, “the most consistent theme
The following year, we again attempted to clarify the analysis when evaluating an ordinance prohibiting a person from carrying a firearm in Portland city limits. Andrews, 174 Or App 354. “Disavow[ing]” the distinction of “attending circumstances,” we acknowledged that “[f]or nearly 30 years, we and the Supreme Court have struggled *** in attempting to develop a principled approach as to which elements of criminal offenses require culpable mental states and which do not,” leading to a “patchwork of appellate decisions [that] has not been entirely consistent.” Id. at 361-62, 365 (internal quotation marks omitted). Despite the inconsistency in the case law, we were able to derive one “clear principle” that “a circumstance [that] transforms otherwise innocent conduct into criminally culpable conduct” is a material element necessarily requiring a culpable mental state. Id. at 362. We also observed that, at least for crimes outside the Criminal Code and subject to the provisions of
That “principle,” as well as Engen‘s focus on legislative history, was short-lived, as “neither ha[d] ever been applied in a subsequent case.” Rutley, 202 Or App at 645. Three years later in Schodrow, we again changed the analysis when evaluating whether, to commit the crime of unlawful possession of a firearm, the defendant must know that the object possessed is a firearm. 187 Or App at 228. Rather than follow Engen and examine the legislative intent behind the statute defining the offense, or follow Blanton
Over the next several years, we regularly applied the Schodrow methodology to cases with the express mental state of “knowingly” rather than interact with the phrase “material element that necessarily requires a culpable mental state.”4 In State v. Dixon, we concluded that the crime of permitting a minor to enter a place with drug activity required that the defendant was aware that the person was a minor because age was “a necessary circumstance of the offense” and therefore the mental state of knowingly required an awareness of it. 191 Or App 503, 508, 83 P3d 385 (2004). In State v. Lane, we concluded that a defendant cannot be convicted of escape from a correctional facility,
In State v. Jones, we again determined that “material element that necessarily requires a mental state” was
In Rainoldi, we reexamined the “thicket” of case law in light of the then-recent revisions to our statutory construction methodology that permitted consideration of legislative history regardless of whether the text of a statute is ambiguous. 236 Or App at 141 (citing State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)). We reconsidered the same issue as Van Norsdall and came to the opposite conclusion, that a defendant must know they are a felon to commit the crime of being a felon in possession of a firearm. Rainoldi, 236 Or App at 149. Looking for the first time to the legislative history of
That tortured case law suggests that one fundamental question remained when reviewing cases that are encompassed by
D. Construction of ORS 161.115(1)
As discussed above,
To the extent that our conflicting and inconsistent case law interpreting the first-degree theft statute suggests that some nonprocedural elements are not “material,” and therefore carry no mental state at all, we disavow that analysis. See e.g., State v. Stowell, 304 Or App 1, 9, 466 P3d 1009 (2020) (citing Jones, 223 Or App at 620) (reasoning that
As described in Simonov and Haltom, if a statute does not provide an explicit mental state, courts must sift through legislative intent relating to both the type of element at issue and the legislature‘s desired mental state. As explained below,
Like the rest of Oregon‘s culpable mental state statutes,
“What happens sometimes in states is the crime will be in a state of disarray. ‘It‘s against the law to knowingly A and B and C’ without repeating the word ‘knowingly’ before B and C. It becomes ambiguous then, well what‘s the intent with respect to the B and C elements? [
ORS 161.115(1) ] says that it‘s the same as it would be for A.”
Id. In other words, the purpose of
“When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.”
(Emphasis added.) By its own terms, MPC § 2.02(4) expressly conditions the operation of its rule on the absence of a contrary expression of legislative intent. Although the same language was not included as part of
Further, to exclude legislative intent from the analysis in service of robotically applying the statute‘s explicit mental state to anything in the statute other than venue, statute of limitations, and the like conflicts with our fundamental charge as a court—to construe statutes to effectuate the intent of the legislature. See, e.g., Spaght v. State ex rel Dept. of Transportation, 29 Or App 681, 684-85, 564 P2d 1092 (1977) (observing that “a statute should be construed to carry out the intent of the legislature and to accomplish the purpose for which it was enacted“);
We note that our conclusion also comports with another key direction from the legislature about how to construe statutes. Under
Other states which adopted MPC § 2.02(4) likewise prioritize the legislature‘s intent regarding the specific crime at issue over the general interpretive guideline. For example, despite, like Oregon, having implemented the MPC‘s directive to apply a stated mental state to each material element of the crime, the New Jersey Appellate Division determined that the legislature did not intend for the culpable mental state apply to the fact that a firearm was a “community gun” as defined by the statute describing the offense, based on the legislative history and the fact that the legislature did not include a mental state in that part of the
The Vermont Supreme Court likewise concluded that, to be convicted of enabling the consumption of alcohol by a minor, the person must not only knowingly enable, but also know that the person being enabled is a minor. State v. Richland, 200 Vt 401, 413, 132 A3d 702, 710 (2015). The court acknowledged that “the presumption that mens rea attaches to all elements of a statute may be rebutted by a showing of clear legislative intent to the contrary,” but found no such indication in either the text or legislative history of the statute. Id. at 409 (emphasis in original). As discussed above, even though those states adopted the MPC‘s language including “unless a contrary purpose plainly appears,” the legislative history of
The text, context, and legislative history of
In sum, the analysis of determining which mental state attaches to an element of a crime proceeds as follows for statutes within the Criminal Code.8 For statutes that contain an explicit mental state, that mental state applies to each nonprocedural element of the crime unless the text, context, and legislative history indicate that the legislature intended otherwise.
E. Construction of Mental State in ORS 162.315
Having determined that legislative intent, including consideration of legislative history, of the statute defining the offense plays a role in analyzing whether a mental state attaches to an element of a crime even when that statute provides an explicit mental state, we must evaluate the resisting arrest statute to determine whether the legislature meant to require proof that defendant intended to create a substantial risk of physical injury to a person. For the reasons explained below, we conclude that the trial court did not err in refusing to give defendant‘s proposed instruction because, while
Again,
“the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical
injury to any person and includes, but is not limited to, behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer.”
The statutory text provides little guidance to suggest how the mental state in the phrase “intentionally resists a person” was meant to be interpreted in relation to the means and the end components of the definition of “resists.” We have previously described similarly worded statutes as ambiguous because, “[a]s a matter of grammar[,] *** it is not at all clear how far down the sentence the [culpability term] is intended to travel.” See Schodrow, 187 Or App at 230 (explaining that the language of a statute prohibiting “knowingly *** [c]arr[ying] any firearm concealed upon the person” was ambiguous about whether the knowledge requirement applies to the fact that the item is a firearm).
Instead, the legislative history of
Although the legislature later amended the statute to its current form, research counsel for the Criminal Law Revision Commission explained that the goal of the amendment was only to improve clarity by making the structure of
The commentary reinforces our conclusion that the legislature meant for “intentionally” to apply to the person‘s conduct, not to the result of that conduct. That commentary provides:
“Two culpability elements are found in subsection (1): The actor‘s conduct must be intentional, and must be accompanied by knowledge that the person resisted is a peace officer. Subsection (2) defines ‘resists’ in terms of physical force or violence. Resistance is prohibited if it ‘creates a substantial risk of physical injury to any person,’ i.e., the actor, the peace officer or other persons in the immediate area.”
Commentary § 206 at 204 (emphasis in original). The commentary purports to describe the requisite mental states for the crime of resisting arrest, explaining the elements that the person must act intentionally and create a substantial risk of physical injury as distinct from one another. Thus,
In sum, although the element of creating a substantial risk of injury is a “material element that necessarily requires a mental state,” evidence of legislative intent affirmatively rebuts the presumption that “intentionally” should be that mental state. Because defendant‘s requested jury instruction was an incorrect statement of the law the trial court did not err in denying it.
IV. CONCLUSION
In sum, we conclude that all elements other than venue, statute of limitations, and the like, “necessarily require[] a culpable mental state” under
Affirmed.