author: DeVORE, J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Kaili Jo ROBERTS, aka Kaili J. Roberts, Defendant-Appellant.
    A163221
    Court of Appeals of Oregon.
    Argued and submitted August 2, 2018. January 16, 2019
    Eric Johansen, 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.
    Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and Landau, Senior Judge.
   DeVORE, J.

The statute on first-degree criminal mistreatment, ORS 163.205(1)(b), sanctions a defendant who unlawfully takes or appropriates money or property from an elderly or dependent person if the defendant had a "legal duty to provide care" for the elderly or dependent person. After judgment of conviction on a number of offenses, defendant appeals the judgment regarding the three counts of first-degree criminal mistreatment. She assigns error to the trial court's denial of her motion for a judgment of acquittal, arguing that, for purposes of ORS 163.205(1)(b), she did not have a "legal duty to provide care" for her father when he authorized her to act pursuant to a power of attorney, regardless whether she unlawfully took or appropriated his money or property using that authority. Defendant contends that the "legal duty to provide care" under ORS 163.205 (1)(b) is limited to providing physical care. We disagree and, accordingly, affirm.

When denial of a defendant's motion for a judgment of acquittal "centers on the meaning of the statute defining the offense," we review the interpretation of the statute for legal error. State v. Hunt , 270 Or. App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks and citation omitted). In determining the sufficiency of the evidence, we review the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995).

We provide a brief summary of the events giving rise to the issue on appeal, because the appeal reduces to a question of statutory interpretation. Defendant's father, the victim in this case, was taken to OHSU as a result of various health complications requiring surgeries. After the surgeries, he spent the next seven months in a nursing home and rehabilitation facility. Altogether, he was bedridden and unable to care for himself for about 10 months.

While the victim was physically incapacitated in hospital care, he signed a power of attorney over to defendant authorizing her to manage his financial affairs. He gave power of attorney to his daughter because he "trusted her" and because she is "family." He had a conversation with defendant, telling her that he was concerned about his finances and to "pay my bills and stuff, and make sure everything-basically make sure everything gets paid." He did not ask her to open any new bank accounts or obtain any credit cards in his name, and she never asked him permission to do so. He did not ask her to make any cash withdrawals for him either. Defendant, however, used the authority granted by the power of attorney to withdraw thousands of dollars from his bank account without his consent, to open multiple fraudulent credit-card accounts, and to trade in his car for another car with defendant's name on the title. The victim's credit score dropped from 780 to 520 while defendant was caring for his financial affairs.

Among other things, defendant was charged with three counts of criminal mistreatment in the first degree, ORS 163.205. To convict defendant of first-degree criminal mistreatment under ORS 163.205(1)(b)(D), the state had to prove that she (1) had a "legal duty to provide care" for an elderly person or dependent person or had assumed the care or supervision of the elderly or dependent person, and (2) intentionally or knowingly hid, took, or appropriated the elderly or dependent person's money or property for a use not in the due and lawful execution of defendant's responsibility. ORS 163.205(1)(b)(D) ; State v. Browning , 282 Or. App. 1, 3, 386 P.3d 192 (2016), rev. den. , 361 Or. 311, 393 P.3d 1170 (2017).

At the close of the state's case, defendant moved for a judgment of acquittal on the counts of first-degree criminal mistreatment, arguing that the state failed to prove that defendant had a "legal duty to provide care" to the victim within the meaning of ORS 163.205(1)(b), because the victim was in the physical care of medical professionals and defendant was not providing care for his physical needs.

Defendant contended, "To put it another way, [the victim] may have been a dependent person, but he was absolutely not dependent upon [defendant]" for his physical well-being. In defendant's view, the phrase "legal duty to provide care," as it is used in the first-degree criminal mistreatment statute, "does not mean a legal duty to provide financial care." The state countered that the phrase "legal duty to provide care" in ORS 163.205(1)(b) is not limited to persons providing "physical care" and includes the duty to provide financial care under a power of attorney. The trial court denied defendant's motion, concluding that "legal duty to provide care" includes a duty to serve as a faithful fiduciary when managing an elderly or dependent person's financial affairs pursuant to a power of attorney. The jury found defendant guilty on the criminal mistreatment counts, as well as other offenses.

On appeal, defendant renews her arguments made to the trial court. Defendant contends that a power of attorney does not establish a "legal duty to provide care," as required by ORS 163.205(1)(b). Defendant concedes that she had a "legal duty" to act in accordance with the terms of the power of attorney, but she argues that the "legal duty" created by a power of attorney did not create a "legal duty to provide care" within the meaning of ORS 163.205(1)(b). In her view, the legislature intended to limit the reach of the statute to situations involving physical care. Defendant contends that text, context, and legislative history of ORS 163.205 support her position.

The state interprets the phrase more broadly. Also relying on the text, context, and legislative history of the statute, the state argues that violating a fiduciary duty created by a power of attorney violates a "legal duty to provide care." In the state's view, the legislature did not intend, after a series of amendments, to limit the "legal duty to provide care" to its original meaning once focused on physical caretaking.

The issue raised by the parties is narrow. It is a question of statutory interpretation about what the legislature intended in ORS 163.205(1)(b) when it used the terms "legal duty to provide care." Specifically, the question is whether a person acting for a dependent or elderly person as an attorney-in-fact under the authority of power of attorney has a "legal duty to provide care" or whether, as defendant posits, the legislature intended to limit the "legal duty to provide care" to persons providing physical care. In construing a statute, we consider its text, context, and legislative history to discern legislative intent. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

The text of ORS 163.205 provides, in part:

"(1) A person commits the crime of criminal mistreatment in the first degree if:
"(a) The person, in violation of a legal duty to provide care for another person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of another person, intentionally or knowingly withholds necessary and adequate food, physical care or medical attention from that other person; or
"(b) The person, in violation of a legal duty to provide care for a dependent person or elderly person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person, intentionally or knowingly:
"* * * * *
"(D) Hides the dependent person's or elderly person's money or property or takes the money or property for, or appropriates the money or property to, any use or purpose not in the due and lawful execution of the person's responsibility[.]"

(Emphasis added.) The phrase "legal duty to provide care" in ORS 163.205(1)(b) is not defined by statute. However, ORS 163.205(2)(d) defines the term "legal duty." That statute states that the term " '[l]egal duty' includes but is not limited to a duty created by familial relationship, court order, contractual agreement or statutory or case law." ORS 163.205(2)(d) ; State v. Nolen , 244 Or. App. 635, 639, 260 P.3d 810 (2011) (observing that ORS 163.205(2)(d) provides a nonexclusive list of several sources of a "legal duty" to provide care).

Defendant argues that the power of attorney in this case did not create a "legal duty" because "it did not establish a legally binding contract" between father and defendant. See Nolen , 244 Or. App. at 639-40, 260 P.3d 810 ("contractual agreement" under ORS 163.205(2)(d) must be an agreement that constitutes a "legally binding contract"). She argues that it is not a contract because she did not sign it.

Without deciding whether the power of attorney in this case constitutes a unilateral or bilateral contract within the meaning of ORS 163.205(2)(d), we recognize that a power of attorney is nonetheless a "legal duty" derived from "statutory or case law." A power of attorney is an "instrument granting someone authority to act as agent or attorney-in-fact for the grantor." Black's Law Dictionary 1360 (10th ed. 2014). The fiduciary duty created by a power of attorney is governed by ORS chapter 127. The text of ORS 127.045 states, "Unless otherwise provided in the power of attorney document, an agent must use the property of the principal for the benefit of the principal." It is sufficient here that the fiduciary relationship that exists between the grantor and agent with a power of attorney is a duty "derived from statutory or case law" and is therefore a "legal duty" under ORS 163.205(2)(d). Even so, that conclusion still leaves unresolved the specific issue whether that "legal duty" is a "legal duty to provide care " within the meaning of the statute.

The legislature has not defined the term "care." As a result, we may consider the dictionary as a reference to the term's ordinary meaning. See State v. Briney , 345 Or. 505, 511, 200 P.3d 550 (2008) (stating principle). To provide "care" means to "provide for or attend to needs or perform necessary personal services (as for a patient or a child)." Webster's Third New Int'l Dictionary 338 (unabridged ed. 2002); State v. Baker-Krofft , 348 Or. 655, 661, 239 P.3d 226 (2010) (interpreting the meaning of "care" in ORS 163.200 and ORS 163.205 ). Thus, based on the plain text of the statute, the phrase "legal duty to provide care" means that a person has a "legal duty" created by familial relationship, court order, contractual agreement or statutory, or case law to "provide for or attend to needs or perform necessary personal services." Such "needs" or "necessary personal services" can reasonably include more than just physical needs or services. Thus, the text of the phrase permits-and likely supports-the state's view that the phrase "legal duty to provide care" is not restricted to persons providing physical care.

Seen as a whole, the text of the statute supports that broader view. The first part of subsection (1) in the statute expresses the traditional, narrower view. That is, ORS 163.205(1)(a) provides that a person commits first-degree criminal mistreatment, when, in violation of a legal duty to provide care, the person withholds food, physical care, or medical attention. The second part of subsection (1) expresses a broader view. That is, ORS 163.205(1)(b)(D) provides that a person commits first-degree criminal mistreatment, when, in violation of a legal duty to provide care, the person hides or takes money or property of a dependent or elderly person. That language strongly suggests that taking money or property is a "violation of a legal duty."

Nevertheless, defendant argues that the statutory context and legislative history of ORS 163.205 indicate a legislative intent to limit the "legal duty to provide care" to situations involving only physical care . Defendant contends that, when ORS 163.205 was originally enacted in 1973, it applied only to situations involving physical caretaking duties. Defendant maintains that, despite the various amendments to the statute over the years to broaden the reach of the statute, the legislature intended to retain the original meaning of the phrase "legal duty to provide care." The state disagrees, relying on amendments to the statute in 1993, which, in the state's view, broadened the statute to include other "legal duties" besides physical caretaking duties. The state contends that the legislature's changes reflect a broader legislative desire to create criminal liability for people who assume a position of care and trust over elderly or dependent persons and then use that position to financially exploit them. We conclude that the state has the better argument.

As originally enacted in 1973, ORS 163.205 prohibited only what is now found in ORS 163.205(1)(a). The original version of the first-degree criminal mistreatment statute read:

(1) A person commits the crime of criminal mistreatment in the first degree if, in violation of a legal duty to provide care for another person, he intentionally withholds necessary and adequate food, physical care or medical attention from that person."

Or. Laws 1973, ch. 627, § 3; State v. Berry , 293 Or. App. 717, 721-30, 429 P.3d 1011 (2018) (recounting legislative history of ORS 163.205 ). In 1973, the statute was intended to address "nursing home abuse and to protect the residents of those facilities." Baker-Krofft , 348 Or. at 664, 239 P.3d 226 (citing Minutes, Special Committee on Aging, Apr. 9, 1973, 1).

The parties agree that, as originally enacted in 1973, the statute applied only to situations involving physical caretaking duties and was violated when a caretaker with a "legal duty to provide care for another person" withheld food, physical care, or medical attention from the person in his or her care. However, the parties dispute the effect of subsequent amendments to the statute.

In 1981, the legislature made the first set of amendments to the statute. The revised version of the statute read:

"(1) A person commits the crime of criminal mistreatment in the first degree if:
"(a) The person violates a legal duty to provide care for another person by intentionally or knowingly withholding necessary and adequate food, physical care, or medical attention from that other person; or
"(b) The person, having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person, intentionally or knowingly causes physical injury or injuries to the dependent person.
"(2) As used in this section, 'dependent person' means a person who because of either age or a physical or mental disability is dependent upon another to provide for the person's physical needs."

Or. Laws 1981, ch. 486, § 1. As relevant here, the amended statute did two things. First, it added the "knowing" culpable mental state. Second, it added a section protecting "dependent persons," which the legislature defined as people who are dependent upon another for physical needs. ORS 163.205(2) (1981). The 1981 legislature, like the 1973 legislature, was concerned with protecting those who rely on another person for their physical care.

Berry , 293 Or. App. at 723, 429 P.3d 1011 ("[W]e understand the 1981 legislature to have intended to protect those people who must depend on another person to meet the types of needs first addressed in 1973: 'necessary and adequate food, physical care or medical attention.' ORS 163.205(1)(a).").

The legislature next amended the statute in 1993 as part of a package of amendments proposed as House Bill (HB) 2318. A summary outlining the bill stated that, among other things, it sought to add a definition of "legal duty," expand the application of the statute to "elderly persons," and expand the statute to cover "financial exploitation." Counsel Summary, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Apr. 21, 1993. A different summary from the Senate Judiciary Committee explained that "[a]lthough Oregon has a criminal mistreatment statute, it is not adequate to deal with all types of abuse, neglect, and financial exploitation suffered by the elderly and dependent persons." Staff Measure Summary, Senate Committee on Judiciary, HB 2318, 1993.

The legislature was particularly concerned with financial exploitation. Representative Kate Brown described financial exploitation as "old people being stripped of their life savings and cast aside." Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Feb. 22, 1993, Tape 30, Side A (statement of Rep. Kate Brown). Cindy Nelson, a witness from Clackamas County Social Services who testified in support of the bill, described a scenario where a "gentleman had ingratiated himself with an elderly woman and was taking approximately $2,000 to $4,000 every month out of her savings."

We observed the legislature's concern for financial abuse in State v. Bevil , 280 Or. App. 92, 376 P.3d 294 (2016), a case that considered whether it was a violation of ORS 163.205(1)(b)(D) if a person under a legal duty to provide care accepted a voluntary gift by the elderly person. Because that summary is helpful here, we quote it at length:

" ORS 163.205(1)(b)(D) was enacted as part of a broader amendment to the criminal mistreatment statute to address the problem of elder abuse-particularly the 'abandonment and financial exploitation of elderly and dependent persons.' House Committee on Judiciary, Subcommittee on Crime and Corrections, Staff Measure Summary, HB 2318, Feb. 22, 1993. Throughout the public testimony and the workgroup meetings, those in favor of the bill specifically identified the problem of financial 'exploitation.' * * * Moreover, in each of the examples provided to the House and Senate committees, or discussed by their members, financial 'exploitation' took the form of embezzlement or other acts that were taken without the knowledge or voluntary consent of the elderly person-such as when the elderly person's competency was compromised by Alzheimer's disease or other age-related factors. E.g. , Testimony, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Feb. 22, 1993, Ex. B (statement of Pam Edens, Oregon Alzheimer's Public Policy Committee) ('Many persons make sales, target for contributions, or have possessions signed over when the person is not cognitively able to make such decisions.' * * * Testimony, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Mar. 31, 1993, Ex. G (statement of Bertrand Copp) (describing the 'confidence game' whereby elderly persons are deceived by false promises that someone will care for them and are then left with nothing)."

Bevil , 280 Or. App. at 102-03, 376 P.3d 294 (emphasis added). In another case, we also recognized the legislature's intent to combat financial abuse of elderly or dependent persons. In Browning , we considered what it meant to "take" money or property for purposes of ORS 163.205(1)(b)(D). We observed:

"The history [of ORS 163.205(1)(b)(D) ] shows that the legislature was concerned about the financial exploitation of elderly persons, which could take many forms .
The legislators intended to craft a statute that would cover 'the misappropriation of dollars under various guises .' Tape Recording, House Committee on Judiciary, HB 2318, Apr. 12, 1993, Tape 22, Side A (statement of Rep. Bob Tiernan). They drafted (and redrafted) the statute with the goal of making it broad enough to capture exploitative acts, but not so broad that it would also capture voluntary distributions of property by elderly persons or other persons acting in a manner consistent with a caretaking or supervisory role. See, e.g. , id . (stating that the overall approach was to make the statute broad enough to cover conduct constituting financial abuse); see also State v. Bevil , 280 Or. App. 92, 102-04, 376 P.3d 294 (2016) (describing that aspect of the legislative history)."

Browning , 282 Or. App. at 7-8, 386 P.3d 192 (emphases added).

In addition to protecting dependent people from financial abuse and other prohibited acts, the 1993 amendments defined "legal duty" broadly and expanded the application of the statute to "elderly persons." Prior to the 1993 amendments, the phrase "legal duty" was undefined, and a person "violated a legal duty to provide care for another" only when that person withheld "food, physical care or medical attention from that other person." ORS 163.205(1)(a) (1991). After 1993, however, the term "legal duty" was given the definition currently codified: a nonexclusive list of legal duties created by "familial relationship, court order, contractual agreement or statutory or case law." ORS 163.205(2)(d). Holly Robinson, Committee Counsel, explained that the purpose of this change was to "get consistency between all the types of providers, as the field has changed, you've got people with legal duties and legal duties being created in a variety of ways." Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Mar. 31, 1993, Tape 64, Side B (statement of Committee Counsel Holly Robinson). Robinson recommended that the committee adopt the nonexclusive list of legal duties, currently codified, "given that the statute is growing." Id .

In an effort to further extend the statute's protections, the legislature sought to protect not only physically dependent persons but also "elderly" persons. Prior to 1993, ORS 163.205 protected only physically dependent persons. ORS 163.205(2) (1991). The 1993 amendments extended protection to "elderly" persons, which the legislature defined as "a person 65 years of age or older" without reference to whether the elderly person was physically dependent on another person. ORS 163.205(2)(c). In other words, an elderly person need not be physically dependent on another person for physical care in order to be protected by the statute. The subcommittee heard testimony that the existing criminal mistreatment law failed to protect vulnerable people with various disorders, such as Alzheimer's, who were "dependent on others to provide care, make decisions and give protection." Testimony, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Feb. 22, 1993, Ex. B (statement of Pam Edens, Oregon Alzheimer's Public Policy Committee) (emphasis added). Robinson also explained to the House subcommittee that

"There's a class of people who are fully dependent, who need someone to feed, bathe, and clothe them, dress them, etcetera-that's what the current law applies to. On the other hand, you have a huge category of individuals who are semi-independent who may have a nurse come in twice a day and do certain activities or a foster provider who comes in and cares for them for a particular part of the day. In those situations, the current law regarding dependent persons would not cover them but the broadened category and the broadened offenses would."

Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Apr. 12, 1993, Tape 22, Side A (statement of Committee Counsel Holly Robinson). In a prior work session in the subcommittee, Robinson gave an example of a situation where an elderly person is not dependent on caretakers in the traditional sense but should nevertheless be protected:

"You've got situations of individuals who are pretty self-sufficient. I think of my grandmother who was living in an apartment where she went down for her meals and somebody came in to clean, but she pretty much was independent. In that situation, she is not a dependent person, but if somebody who was around her complex did something to her that fit within the parameters-in that situation, she is an 80 year-old woman, she clearly would not fit the dependent provision in here, but certainly due to her age is not able to respond as somebody who is 50 would."

Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Mar. 31, 1993, Tape 64, Side B (statement of Committee Counsel Holly Robinson). She went on to conclude that "what this [bill] does is really level the playing field in terms of types of providers, types of dependent persons, and types of offenses." Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Apr. 12, 1995, Tape 22, Side A (statement of Committee Counsel Holly Robinson).

At an intriguing moment, the legislature was made aware of the issue presented in this case. HB 2318 originally was a free-standing elder abuse bill that was ultimately redrafted to fit within the existing criminal mistreatment statutes. As introduced, HB 2318 used the terms "legal guardian" and those persons who had a "duty of care." Ms. Robinson recognized that there was a "significant amount of overlap between the current [criminal mistreatment] law and what [was] proposed," stating:

"There is within criminal mistreatment, first of all, language that deals with a violation of a legal duty to provide care. Criminal mistreatment 'I' also addresses the issue of those persons who have assumed permanent or temporary custody, care, or responsibility. That is contrasted with the [proposed] crime of elder abuse that talks about legal guardians, persons who are lawfully charged with, or persons who are assuming a duty of care. Query whether or not these individuals are the same as a duty of care, or that have that same duty of care or legal duty. There is also a question that's not clear to me without some further thought whether or not by definition, legal guardians who don't have caretaking responsibilities, where they fit in. But there is significant overlap there. "

Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Feb. 22, 1993, Tape 30, Side A (statement of Committee Counsel Holly Robinson) (emphasis added). With that query posed expressly, the legislature enlarged the scope of the statute by defining "legal duty" broadly, expanded the application of the statute to "elderly persons," and criminalized "financial exploitation." Nothing in the legislative record, or the resulting text of the statute, suggests that the legislature intended the narrow interpretation that defendant urges. See, e.g. , State v. Dickerson , 356 Or. 822, 831-32, 345 P.3d 447 (2015) (although a narrow problem precipitated legislation, broader wording was adopted to address that problem); Hamilton v. Paynter , 342 Or. 48, 55, 149 P.3d 131 (2006) ("[T]he statutory text shows that, even if the legislature had a particular problem in mind, it chose to use a broader solution."); Doe v. Medford School Dist. 549C , 232 Or. App. 38, 59, 221 P.3d 787 (2009) ("The fact that a particular problem precipitated a bill does not necessarily mean that the legislature intended the enactment to be given only such meaning as will address that particular problem; often, legislatures respond to particular issues by enacting very broadly worded statutes.").

We are persuaded that the 1993 legislature intended to criminalize the financial exploitation of an elderly or dependent person by a person under a legal duty to provide care, which could include but is not limited to, a duty to serve as a faithful fiduciary when managing an elderly or dependent person's financial affairs pursuant to a power of attorney.

Abusing the authority granted by a general power of attorney to unlawfully take an elderly or dependent person's money or property comes within the reach of the statute's purpose to criminalize financial exploitation of elderly or dependent people by those who are under a "legal duty to provide care." The 1993 legislature was particularly concerned with "financial exploitation of elderly [or dependent] persons, which could take many forms." The legislature intended to craft a statute that would cover "the misappropriation of dollars under various guises." Those expressions indicate to us that the legislature contemplated the scenario presented by this case. Tape Recording, House Committee on Judiciary, HB 2318, Apr. 12, 1993, Tape 22, Side A (statement of Rep. Bob Tiernan); Browning , 282 Or. App. at 7-8, 386 P.3d 192 ; see Testimony, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Mar. 31, 1993, Ex. G (statement of Bertrand Copp) (describing the "confidence game" whereby elderly persons are deceived by false promises that someone will care for them and are then left with nothing).

Seen cumulatively, the legislative history of ORS 163.205(1)(b), as well as the text of the statute, do not support defendant's outdated assertion that the legislature used the phrase "legal duty to provide care" referring only to physical caretaking. Rather, the 1993 amendments gave a broader understanding of the phrase "legal duty to provide care." That "legal duty" includes other forms of "care" such as the responsibilities assumed under the general power of attorney at issue here. See Dept. of Human Services v. S. M. , 355 Or. 241, 250, 323 P.3d 947 (2014) (quoting State v. Ofodrinwa, 353 Or. 507, 529-30, 300 P.3d 154 (2013) ("Later amendments that materially change the text or context of an earlier statute can change the meaning of the earlier statute when the changed meaning is either 'expressly declared or necessarily implied.' ") ).

In this case, the evidence permitted the trial court to find that defendant had a "legal duty to provide care" to the dependent victim under ORS 163.205(1)(b) because she had a fiduciary duty under a general power of attorney to manage the victim's finances. As a trusted family member, she had the victim's confidence no less than any daily care provider, and she had full authority to take any action on his behalf without his knowledge or consent. Sufficient evidence permitted the trial court to find that she violated her legal duty of care by taking or misappropriating his money or property. For those reasons, we conclude that the trial court did not err in denying defendant's motion for judgment of acquittal.

Affirmed.

      The "Durable Power of Attorney" authorized defendant to "exercise all powers in [the victim's] best interests and for [his] welfare." The document gave defendant the "full power and authority to manage and conduct all of [the victim's] affairs, and to exercise [the victim's] legal rights and powers." It gave defendant authority over all the victim's financial affairs, and it included authority to make health care decisions, including terminating life-sustaining treatment.

      A jury also found defendant guilty of forgery in the first degree, ORS 165.013, and theft in the first degree, ORS 164.055. The jury also acquitted defendant of one count of criminal mistreatment in the first degree and one count of theft in the second degree. Those other counts are not at issue on appeal.

      The parties do not dispute that defendant's father is a "dependent" person or that defendant misappropriated her father's money and property. ORS 163.205(1)(b)(D).

      In State v. Baker-Krofft , 348 Or. 655, 661 n. 4, 239 P.3d 226 (2010), the Supreme Court interpreted the meaning of the term "care" as used in ORS 163.200 and ORS 163.205. The court observed:
      "Care is both a noun and a verb. See Webster's at 338 (defining both forms of the word). Care, used as a noun, means 'CHARGE, SUPERVISION, MANAGEMENT: responsibility for or attention to safety and well-being < under a doctor's ~>.' Id. Care, used as verb, means 'to give care' or to 'provide for or attend to needs or perform necessary personal services (as for a patient or a child).' Id. The former definition focuses on the relationship between the caregiver and the recipient, while the latter focuses on the nature of the care that is given or, in these statutes, withheld. Because the latter definition comes closer to the way in which the legislature used the word, we quote that definition in text."

      ORS 163.205 was also amended in 2005 and in 2017. Those subsequent amendments do not affect our analysis.

      Robinson also explained that the phrase "having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person" means "anyone who doesn't have a legal duty who is doing those things." Tape Recording, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2318, Mar. 31, 1993, Tape 64, Side B (statement of Committee Counsel Holly Robinson).


source: Caselaw Access Project

author: JAMES, J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Daniel Ryan GILLISPIE, Defendant-Appellant.
    A163833 (Control) A163834
    Court of Appeals of Oregon.
    Argued and submitted September 7, 2018. January 16, 2019
    Mary M. Reese, 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.
    Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   JAMES, J.

Defendant appeals a judgment of conviction for manslaughter in the first degree, ORS 163.118, and possession of a destructive device, ORS 166.382. After the trial court denied defendant's motion to suppress, he entered a conditional guilty plea to both charges while reserving his right to appeal the denial of his motion. ORS 135.335(3). On appeal, he assigns error to the trial court's denial of his motion to suppress, arguing that the detectives unlawfully interrogated him in violation of both Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution after he unequivocally invoked his right to counsel. In response, the state contends that the trial court did not err in denying defendant's motion, because defendant initiated further conversation with the detectives and waived his previously invoked right to counsel. We conclude that defendant's incriminating statements that followed his invocation of the right to counsel were not the product of unlawful interrogation by the detectives and that defendant initiated further conversation with the detectives in a manner that evinced a willingness and a desire for a generalized discussion about the charges, preceding his valid waiver. Accordingly, we affirm.

We review the denial of a motion to suppress for legal error and are bound by the trial court's findings of fact if evidence in the record supports them. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We state the following facts in accordance with that standard.

In the course of a homicide investigation, Clackamas County Sheriff's Office Detectives Smith and Miller came to believe that defendant was involved in a fatal stabbing and sought to interview him while he was in the Clark County Jail in Washington. Smith and Miller read defendant his rights and, after some discussion with the two detectives, defendant asked if they could continue talking with the video recorder off. The detectives explained that the interrogation must be taped in order to preserve an accurate account of what was said. In response, defendant stated, "Well, then I want a lawyer" and "I got nothing else to say." The detectives asked defendant if he already had a lawyer and defendant stated he had not yet retained one. Miller then informed defendant that he was being charged with murder, that he would be extradited back to Oregon, and that Miller would submit the paperwork that day. The detectives, responding to defendant's earlier request to continue the conversation without the video recorder, explained that, although they had accommodated requests to speak off video in the past, they could not talk to defendant without recording the conversation because "you've already talked about you want an attorney. So I'm not going to ask you questions about the interview or about anything that's going to incriminate you." The detectives then stated they were ending the interrogation and turning off the recorder, saying that "we'll head out" and "we'll tell them we're done with the interview, okay?"

The detectives did not actually leave or turn off the recorder because defendant started asking them questions. Defendant asked them how soon he would be extradited back to Oregon and they estimated that it could take a couple of days to a week. Defendant then asked them if the case was "going federal" and they responded that they did not know but probably not. Defendant then asked what kind of time he would face if he was found guilty and Miller stated that the process was based on defendant being charged with aggravated murder. Defendant responded that he did not understand what aggravated murder meant. Smith interrupted Miller and explained to defendant that they needed to "kind of stop the interview" because the detectives were not allowed to chit chat with defendant after he had asked for an attorney. Defendant interrupted Smith to ask if defendant's girlfriend knew he was being charged and the detectives responded that she will know. Defendant made it clear that he did not want her caught up in the case, and Miller said it depends on how involved she is; Smith stated, "We have to stop there" and Miller said, "Yeah."

At that point, defendant asked, "Well can I unask for a lawyer[.] I just want [girlfriend] to be out there staying with my kid[.] I'll talk with you guys if you agree to leave her out of this." Smith started to explain again to defendant that he had already asked for an attorney and defendant interrupted him to say, "I'll talk to you guys if ... if you agree to leave her out of this." (Ellipsis in original.) Smith immediately responded:

"[DETECTIVE SMITH]: We ... no. I mean-
"[DEFENDANT]: I know you guys can't-
"[DETECTIVE SMITH]: We can't ... We cannot make ... I'm not ... I don't ... I'm going to be upfront with you. I'm not going to play games with you at all. I didn't play games with you before and I'm not going to now. You have asked for an attorney. If you want us to sit in here and talk to you more about this case or anything else, we need to be very clear that you no longer want an attorney and you want to talk to us."

(Ellipses in original.) Defendant then looked directly into the camera and said, "Right. I do not want an attorney any longer. I am willing to talk to you guys." The detectives reminded defendant that if, at any point, he wants an attorney the detectives will stop the questioning, stating that they "need to be clear that if you want an attorney at any point, from this [point] on you can tell us that. And we will stop questioning you." At that point, the detectives asked, "So what ... what is your question?" (Ellipses in original.) After discussing defendant's girlfriend, the victim, and the events that led to the victim's stabbing, defendant confessed to stabbing the victim.

Defendant entered a conditional guilty plea to one count of manslaughter in the first degree, ORS 163.118, and one count of possession of a destructive device, ORS 166.382. The trial court denied defendant's pretrial motion to suppress statements he made to the detectives after invoking his right to counsel. Defendant's conditional guilty pleas reserved his right to appeal the trial court's denial of his motion to suppress. See ORS 135.335(3).

On appeal, defendant argues that he was interrogated in violation of his right against compelled incrimination under Article I, section 12, and the Fifth Amendment. Specifically, he argues that the detectives violated those rights when they continued interrogating him after he invoked his right to counsel. In response, the state does not dispute that defendant was in custody, that he was being interrogated when he made the incriminating statements, or that defendant unequivocally invoked his right to counsel when he told the detectives that he wanted a lawyer. However, the state contends that the detectives did not unlawfully continue to interrogate defendant after his invocation, but rather that defendant made the incriminating statements after he initiated further discussion with the detectives and voluntarily waived his previously invoked right.

Article I, section 12, states in part, "[n]o person shall *** be compelled in any criminal prosecution to testify against himself." Protection against compelled incrimination "adhere[s] when a suspect is subject to custodial interrogation." State v. Scott , 343 Or. 195, 201, 166 P.3d 528 (2007). "Consequently, under Article I, section 12, the police must give a defendant who is subject to custodial interrogation Miranda -like warnings prior to interrogation." State v. Schmidtke , 290 Or. App. 880, 884, 417 P.3d 563 (2018).

Moreover, "once a suspect has invoked the rights to remain silent and to counsel under Article I, section 12, police must immediately cease interrogation unless the suspect initiates further conversation with the police." State v. Boyd , 360 Or. 302, 318, 380 P.3d 941 (2016). Simply, when a suspect asks for a lawyer, the police must stop interrogating that suspect. So, if the police continue to question a suspect, who has unequivocally invoked his rights, in a manner that is "likely to elicit some type of incriminating response," the police have unlawfully continued to interrogate that suspect. Schmidtke , 290 Or. App. at 885, 417 P.3d 563 (relying on Scott , 343 Or. at 203, 166 P.3d 528 ("we consider both the substance of the questions posed to defendant and the manner in which those questions were asked") ). Put another way, statements constituting unlawful continued interrogation are those "appeared designed to confront defendant and prompt a substantive response." State v. Schrepfer , 288 Or. App. 429, 439, 406 P.3d 1098 (2017).

However, there are some questions the police may ask following a suspect's invocation that do not amount to continued interrogation and that are permitted under the circumstances. "The notion that all forms of direct questioning constitute 'interrogation' for constitutional purposes is unrealistic[,]" because certain kinds of questions can be "innocuous and do not implicate the constitutional concerns that form the underpinnings of Article I, section 12, and Fifth Amendment rights." Boyd , 360 Or. at 317, 380 P.3d 941. "Under Article I, section 12, an interrogation does not include questions 'normally attendant to arrest and custody.' " Schmidtke , 290 Or. App. at 885, 417 P.3d 563 (quoting State v. Cunningham , 179 Or. App. 498, 501-03, 40 P.3d 535, rev. den. , 334 Or. 327, 52 P.3d 435 (2002) ).

This court, in Cunningham , adopted the "attendant to arrest" exception, relying upon South Dakota v. Neville , 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) and Pennsylvania v. Muniz , 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) . See Cunningham , 179 Or. App. at 501-05, 40 P.3d 535 (officer asked suspect whether he had anything sharp that would hurt the officer during a patdown search). As we determined in Cunningham , "Because [the officer's] question served a noncriminal, noninvestigatory purpose, it fell squarely within the class of questions that are normally attendant to arrest and custody, at least so long as it was not 'designed to elicit an incriminatory response.' " 179 Or. App. at 505, 40 P.3d 535 (quoting Muniz , 496 U.S. at 602 n 14, 110 S.Ct. 2638 ). However, we also reiterated that "the exception for questions normally attendant to arrest and custody may include questions that are reasonably likely to elicit an incriminating response, [but Muniz ] was careful to explain that the exception did not give officers carte blanche ." Id. at 503-04, 40 P.3d 535 (relying on Muniz , 496 U.S. at 602 n 14, 110 S.Ct. 2638 ("Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions.") ).

For example, the officer requirement to "inform the person to be arrested of the officer's authority and reason for the arrest" during the arrest or "as soon as practicable," under ORS 133.235(3), falls under the attendant to arrest exception. As this court explained, an "officer's statement merely informing defendant of the criminal activity for which the officer was investigating and detaining defendant was not designed to elicit an incriminatory response or a statement that, by its very nature, evidenced an investigatory purpose." Schmidtke , 290 Or. App. at 886, 417 P.3d 563. Similarly, as the Scott court reasoned, "In some circumstances, a constitutional violation may not result from a police officer's attempt to determine whether a suspect who unequivocally has requested counsel prefers a particular attorney. Police officers may pose such questions in a manner that is not reasonably likely to elicit an incriminating response." 343 Or. at 204, 166 P.3d 528 ("However, that hypothetical scenario is not presented [in Scott because] questions regarding defendant's preference for a particular attorney were interspersed with, and successive to, [the] questions regarding defendant's exposure to the television broadcast identifying him as a murder suspect.").

The federal courts have also weighed in on this exception. As the Ninth Circuit recently explained, when a detective asked the defendant, after the defendant invoked his right to counsel, if he already had an attorney, it did not amount to unlawful continued interrogation:

"Immediately after [the defendant] requested an attorney, [a detective] asked the defendant questions about whether he already had a lawyer. Although these are express [interrogation] questions, it is reasonable to conclude that the questions were 'attendant to arrest' and that a reasonable officer would not have known that this line of questioning was 'likely to elicit an incriminating response.' "

Martinez v. Cate , 903 F.3d 982, 993-94 (9th Cir. 2018) (quoting Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ). But, as the Martinez court grappled with, some detective questioning is neither clearly attendant to arrest nor clearly unlawful continued interrogation:

"The functional equivalent of interrogation is defined as 'any words or actions on the part of the police *** that the police should know are reasonably likely to elicit an incriminating response from the suspect.' This definition 'focuses primarily upon the perceptions of the suspect, rather than the intent of the police,' but is an objective standard such that the police 'cannot be held accountable for the unforeseeable results of their words or actions.' "

903 F.3d at 994 (quoting Innis , 446 U.S. at 301, 100 S.Ct. 1682 ) (internal citations omitted).

This type of situation blurs the line between the requirement set out in Miranda v. Arizona , 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) -"If the individual states that he wants an attorney, the interrogation must cease until an attorney is present"-and the attendant to arrest exception that allows the police to ask an accused questions related to booking and custody, even though he has invoked his rights against compelled incrimination, Innis , 446 U.S. at 301, 100 S.Ct. 1682. As the Supreme Court explained in Innis , "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis , 446 U.S. at 301, 100 S.Ct. 1682 (footnotes omitted).

Thus, the attendant to arrest exception, which exempts some questions an officer might ask the accused even after the accused has invoked his right to counsel, rests upon a determination regarding the officer's question and questioning. In application, this means that "the court must still consider how a suspect would perceive the statements" and, additionally, "how a suspect reacts to a statement can provide evidence of how the suspect perceived the statement." Martinez , 903 F.3d at 995. Yet, ultimately, a court that is considering whether to admit a defendant's post-invocation statements under this exception must consider whether the officer's question was designed to elicit an incriminating response such that the post-invocation discussion served a criminal, investigatory purpose. See Cunningham , 179 Or. App. at 505, 40 P.3d 535 ; See also Muniz , 496 U.S. at 601-02, 110 S.Ct. 2638 ; Innis , 446 U.S. at 301, 100 S.Ct. 1682.

Although the attendant to arrest exception carves out a specific allowance for the police to continue to converse with a suspect who has invoked his rights, all interrogation, as that term is understood in Innis , outside of the narrow attendant to arrest exception is unlawful. Only a suspect has the power to waive Miranda protections in the custodial interrogation environment once that suspect has invoked those rights. "To demonstrate that a suspect has waived a prior invocation of the right to counsel, the state must show not only that the suspect initiated [further conversation] with the police in a way that 'evinced a willingness and a desire for a generalized discussion about the investigation' but also that the suspect's waiver was knowing and voluntary under the totality of the circumstances." State v. Fink , 285 Or. App. 302, 312, 395 P.3d 934 (2017) (quoting State v. Meade , 327 Or. 335, 341, 963 P.2d 656 (1998) ("[W]e hold that defendant, without prompting from the police, initiated further conversation that evinced a willingness and a desire for a generalized discussion about the investigation. Defendant's physical gestures cut off further questions by the officers. Having asserted control over the conversation, he then chose to reopen the topic of the investigation.") ). For example, in State v. Holcomb , the court determined that the defendant initiated further conversation because his "voluntary statements to the officers about the consequences that he possibly faced for his actions, his question about the [victim's family], and his statement that [the victim] attacked him all evidence[d] defendant's willingness and desire for a generalized discussion of the substance of the investigation." 213 Or. App. 168, 178, 159 P.3d 1271, rev. den. , 343 Or. 224, 168 P.3d 1155 (2007).

If the court finds that a defendant initiated further discussion with the police that evinced a willingness and a desire for a generalized discussion about the investigation, the court must also determine whether the defendant's waiver was voluntary, knowing, and intelligent and, thus, valid. That test, under both the state and federal constitutions, "is whether, under the totality of the circumstances, it is apparent that the 'defendant's will was not overborne and his capacity for self-determination was not critically impaired.' " State v. Acremant , 338 Or. 302, 324, 108 P.3d 1139 (2005) (quoting State v. Vu , 307 Or. 419, 425, 770 P.2d 577 (1989) ).

In keeping with the law set out above, we turn to the case before us. Here, the trial court found, and the record supports those findings, that "defendant was advised of his Miranda rights before questioning" and that "he understood and agreed to talk with detectives." Likewise, as we stated previously, the state does not dispute that defendant was in custody, that he was being interrogated by the detectives when he made the incriminating statements, and that he had unequivocally invoked his right to counsel-telling the detectives that he wanted a lawyer-after he was read his Miranda warnings. The state's concession is well taken. Thus, the issue in this case is not whether defendant was under interrogation, because the parties agree he was, but rather whether defendant's incriminating statements that followed his invocation were the product of unlawful continued interrogation by the detectives in violation of Article I, section 12.

In light of that particular issue, once defendant unequivocally invoked his right to counsel, Miller acknowledged his invocation and said, "Okay" and "That's very respectful." Defendant nodded and Miller said, "Do you have a lawyer yet at all?" Defendant responded, "Not one I've retained. I don't keep a retainer." Although Miller asked defendant whether he already had a lawyer after defendant unequivocally invoked his right to counsel, Miller's question, in substance and manner, did not appear to be designed to elicit an incriminating response from defendant and was not a statement that, by its very nature, evidenced an investigatory purpose. Rather, under these circumstances, Miller's question was most like a question normally attendant to arrest and booking-appearing to clarify if defendant had a specific lawyer that the detectives should contact on his behalf-and "[did] not implicate the constitutional concerns that form the underpinnings of Article I, section 12, and Fifth Amendment rights." Boyd , 360 Or. at 317, 380 P.3d 941. Miller's question about the attorney is in keeping with Scott , which recognized and approved of "a police officer's attempt to determine whether a suspect who unequivocally has requested counsel prefers a particular attorney. Police officers may pose such questions in a manner that is not reasonably likely to elicit an incriminating response." Scott , 343 Or. at 204, 166 P.3d 528 ; see also Martinez , 903 F.3d at 993-94.

After asking defendant a question about the attorney, Miller said, "Okay. So the next step is we are going to charge you with murder." Miller informed defendant of his charges, that he would be extradited back to Oregon, that because defendant had asked for an attorney the detectives would be ending the interview and would not be able to accommodate defendant's request to talk off video, and that Miller would draw up the paperwork for extradition that day. Miller's conduct during the interview at this point adheres not only to what we have held as permissible, see Schmidtke , 290 Or. App. at 886, 417 P.3d 563, but what is mandated by ORS 133.235(3). In fact, in clarifying that the detectives would be terminating the interview because defendant had requested counsel, the detectives reinforced, rather than undermined, defendant's knowledge that he had the power to control the interrogation through the invocation of his constitutional rights.

Defendant also asked the detectives how soon he would be extradited, whether his case would go federal, how much time he would serve if he was found guilty, and then he asked the detectives to describe what aggravated murder was. However, rather than continuing to engage with defendant, Smith interrupted and said, "We can't really discuss much more with you after you've asked for an attorney. We just need to kind of stop the interview." He continued by explaining to defendant that the detectives were not allowed to sit and chit chat with him after he had asked for an attorney. Here, again, Smith and Miller informed defendant that they were acknowledging, and respecting, his invocation of counsel.

Up until that point, defendant and the detectives had engaged in a series of questions and answers that are reasonably characterized as attendant to arrest. Although those discussions followed defendant's unequivocal invocation, the detectives' statements do not rise to the level of unlawful continued interrogation, because the nature of the detectives' responses was not primarily focused on interrogation or investigation. Moreover, it is clear on this record that the detectives repeatedly reminded defendant that he had asked for a lawyer and that any further conversations must stop.

Finally, we consider the end of the conversation involving defendant's question concerning his girlfriend's knowledge of his situation. This presents a closer question. When the detectives responded that "she will know" and that her involvement would depend on "how involved she is," those statements, viewed from the "perceptions of [defendant]" could be seen as trying to elicit an incriminating response. See Martinez , 903 F.3d at 994. However, Martinez cautions that although "[t]his definition 'focuses primarily upon the perceptions of the suspect, rather than the intent of the police,' [it] is an objective standard." Id . Here, even if defendant could have seen the detectives' response as an effort to elicit further information from him, that perception was immediately corrected by the detectives themselves when they said, "We have to stop there."

After Smith said they needed to stop, defendant stated he wanted to "unask for a lawyer" and that he would talk to the detectives if they agreed to leave his girlfriend out of the investigation. Smith told defendant "no" and "we can't," explained to him that the detectives could not make any deals, and said, "You have asked for an attorney. If you want us to sit in here and talk to you more about this case or anything else, we need to be very clear that you no longer want an attorney and you want to talk to us." As the trial court concluded, and we agree, no questions related to the murder were asked of defendant after he asked for counsel; "[i]n fact, the detectives were on their way out the door when defendant brought up the issue of extradition [and] defendant then asked further questions which eventually [led] to his change of mind about wanting a lawyer."

Over the span of four minutes, the detectives reminded defendant multiple times that he had asked for an attorney or that the detectives needed to stop talking with him. At no point did it appear, nor did the trial court find, that the detectives made any promises or coerced defendant in any way. Quite the opposite, after Smith's fourth attempt to explain that the detectives were not allowed to continue to talk to defendant because he had asked for an attorney, defendant looked directly into the video recorder camera and said, "Right. I do not want an attorney any longer. I am willing to talk to you guys." Smith replied, "that's fine" but "I also need to be clear that if you want an attorney at any point from this on." Defendant interrupted with, "I got to say it," but Smith continued, "you can tell us that [and] we will stop questioning you." Smith repeated, "If you don't want an attorney, we'll move forward?" As the trial court concluded, and we agree, "defendant made a voluntary decision to reinitiate the interview with detectives and this decision was made without any promises from detectives."

On this record, defendant's interaction with the detectives and his initiation of further discussion regarding the case were not the product of unlawful continued interrogation, promises, or inducement. Instead, this was the kind of further initiation that manifested a clear intent by defendant to walk back his prior invocation in order to further discuss the details of his case. Defendant's unprompted, uninstructed decision to look directly into the video recorder camera and make his intention to waive his right to counsel clear, taken together with his questions that further initiated the discussion of his case with the detectives despite the detectives' multiple reminders he had invoked his constitutional right, satisfy the requirements of waiver. Furthermore, the detectives here reminded defendant multiple times over the span of four minutes that he had asked for an attorney and that invoking that right means the conversation must stop.

In this case, Smith and Miller adhered to the constitutional requirements concerning how to handle a suspect's invocation of the right to counsel in a custodial interrogation setting through a series of actions: (1) their refusal to turn off the recording device in light of an invocation; (2) their acknowledgement of defendant's invocation immediately upon being made; (3) their attempt to promptly terminate the encounter; (4) their explanation to defendant that his invocation required them to terminate the encounter; (5) their clear and explicit explanation to defendant that he would need to be "very clear" that he no longer desired an attorney if he wanted to continue the interview; and (6) their reminder to defendant that even if he "unasked" for an attorney, he continued to have the power to later invoke his right to counsel once more. Under those circumstances, defendant's incriminating statements following his invocation of the right to counsel were not the product of unlawful continued interrogation by the detectives. As such, there was no violation of Article I, section 12, and the trial court did not err in denying defendant's motion to suppress.

Affirmed.

      Although defendant argued before the trial court that his waiver of counsel was not knowing, intelligent, or voluntary under the circumstances, defendant does not renew that argument on appeal. Consequently, the issue that concerns this appeal is whether defendant was unlawfully interrogated in violation of his right to counsel.

      Defendant raises both state and federal constitutional claims. "Article I, section 12, of the Oregon Constitution is phrased nearly identically to the Fifth Amendment" and, as such, "this court has found case law applying the Fifth Amendment guarantee to be useful in construing the similarly worded guarantee of Article I, section 12." State v. Boyd , 360 Or. 302, 313, 380 P.3d 941 (2016). Importantly, "[t]he heart of both state and federal constitutional guarantees, after all, is protecting against compelled incrimination ." Id. at 317, 380 P.3d 941 (emphasis in original).

      Although there are areas where interpretation of Article I, section 12, diverges from the Supreme Court's interpretation of the Fifth Amendment, in this particular area the Article I, section 12, jurisprudence is aligned with the federal constitution. In Boyd , the Oregon Supreme Court adopted the test from Rhode Island v. Innis , 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), to determine what constitutes "interrogation" by police. Boyd , 360 Or. at 316-17, 380 P.3d 941.

      Following the Innis Court's "attendant to arrest" exception, Neville further clarified that, when the police ask a suspect to take a blood alcohol test, that inquiry does not constitute interrogation within the meaning of Miranda . Neville , 459 U.S. at 564 n 15, 103 S.Ct. 916 ("The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent's choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection.").

      The Court revisited the attendant to arrest exception again a few years later when it determined that an officer's questions regarding a suspect's name, address, height, weight, eye color, date of birth, and current age were "admissible because the questions fall within a routine booking question exception which exempts from Miranda 's coverage questions to secure the biographical data necessary to complete booking or pretrial services." Muniz , 496 U.S. at 601, 110 S.Ct. 2638 (internal quotation marks omitted).

      We reiterate that the sole issue on appeal is whether defendant was subjected to unlawful continued interrogation by the detectives after he unequivocally invoked his right to counsel, not whether defendant's ultimate confession was rendered involuntary through promises of leniency.


author: LAGESEN, P. J.

text:
    In the MATTER OF H. H. J., a Person Alleged to Have Mental Illness.
    State of Oregon, Respondent, v. H. H. J., Appellant.
    A165489
    Court of Appeals of Oregon.
    Submitted October 23, 2018. February 21, 2019
    Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Appellant appeals a judgment continuing her commitment for mental illness for an additional period of up to 180 days. She argues that the trial court plainly erred by failing to provide the advice of rights and information specified in ORS 426.100(1). The state disputes that the court erred at all, or that the error could qualify as plain. We affirm.

At appellant's recommitment hearing, the trial court informed appellant at the outset of the hearing that, if the court found by clear and convincing evidence that appellant was a person with mental illness, it could continue appellant's commitment for up to 180 days, and that, if the state failed to prove that, then "you'd be free to leave."

Citing State v. M. M. , 288 Or. App. 111, 115, 405 P.3d 192 (2017), appellant argues that the trial court plainly erred when it failed to inform her as required by ORS 426.100(1)(c) of all of the possible results of the proceeding, including the possibilities of voluntary treatment and conditional release.

The state responds that it is not plain that ORS 426.100(1) even applies in this circumstance, but that, even if it does, the trial court did not err at all because neither conditional release nor voluntary treatment is a possible outcome of the recommitment proceedings, under the applicable statutes.

For the reasons that follow, we conclude that the trial court did not plainly err.

Assuming without deciding that it is plain that ORS 426.100(1) applies to recommitment proceedings, the question remains whether the possible results of those proceedings include voluntary treatment or conditional release. Three statutes provide the framework for the continuation of a person's existing period of commitment. State v. T. Z. , 287 Or. App. 8, 12, 401 P.3d 1265 (2017). ORS 426.301(1) provides:

"At the end of the 180-day period of commitment, any person whose status has not been changed to voluntary shall be released unless the Oregon Health Authority certifies to the court in the county where the treating facility is located that the person is still a person with mental illness and is in need of further treatment. * * * If the certification is made, the person will not be released, but the director of the treating facility shall immediately issue a copy of the certification to the person and to the community mental health program director of the county of residence."

If the certification is made, ORS 426.301(2) and (3) require that it be served on the person and that the certification advise the person of certain rights and information. Next, ORS 426.303 provides that, when a person has protested a further period of commitment,

"the Oregon Health Authority or facility designated in accordance with ORS 426.301 shall immediately notify the court and the court shall have the person brought before it and shall again advise the person that the authority or facility has requested that commitment be continued for an additional period of time and that if the person does not protest this commitment the commitment will be continued for an indefinite period of time up to 180 days. The person shall also be informed of the rights set forth in ORS 426.301."

Finally, ORS 426.307 specifies the procedure for a court hearing when a person has requested a hearing under ORS 426.301. ORS 426.307(6) provides:

"The court shall then conduct a hearing and after hearing the evidence and reviewing the recommendations of the treating and examining physicians or other qualified professionals, the court shall determine whether the person is still a person with mental illness and is in need of further treatment. If in the opinion of the court the individual is still a person with mental illness by clear and convincing evidence and is in need of further treatment, the court may order commitment to the authority for an additional indefinite period of time up to 180 days."

Taken together, and based on their plain text, the statutes appear to contemplate that, at the end of a period of commitment, if the person's status has not been changed to voluntary, the person must be released if the Oregon Health Authority or treating facility has not certified that the person is still a person with mental illness and in need of further treatment. T. Z. , 287 Or. App. at 12, 401 P.3d 1265. Once the Oregon Health Authority or treating facility makes that certification, however, when the person protests a further period of commitment and the court holds a hearing on the matter, the statutes provide for two outcomes: If the court finds that the person is still a person with mental illness and in need of further treatment, it "may order commitment to the authority for an additional indefinite period of time up to 180 days," or, if the court does not make those findings, then the person must be released, as required by ORS 426.301. Appellant has not identified any source of law authorizing another outcome in a recommitment proceeding, and we are aware of none. Thus, it is not plain that voluntary treatment and conditional release are possible outcomes of recommitment proceedings. The trial court did not plainly err by not including those outcomes when it advised appellant.

Affirmed.

      ORS 426.100(1) provides, in part:
      "At the time the person alleged to have a mental illness is brought before the court, the court shall advise the person of the following:
      "* * * * *
      "(c) The possible results of the proceedings[.]"
      We have held in the context of initial commitments that that requirement includes informing the person not just of the possibilities of release or commitment for up to 180 days, but also the possibilities of voluntary treatment or conditional release, as provided in ORS 426.130(1) and (2), the statute that applies to initial commitments. M. M. , 288 Or. App. at 113, 115, 405 P.3d 192.

      The state argues that it is not plain that ORS 426.100(1) applies to recommitment proceedings at all. Rather, it argues, recommitment proceedings are governed by separate statutes, which include separate provisions concerning the advice-of-rights to be provided by the court in such proceedings. There are reasons to think that ORS 426.100(1) may not apply to recommitment proceedings. See, e.g., ORS 426.301(3) (requiring that recommitment citation advise person of specified information and rights); ORS 426.303 (requiring court to again advise person of specified information and inform person of rights in ORS 426.301 ); State v. Montgomery , 147 Or. App. 69, 70, 934 P.2d 640 (1997) (analogizing advice of rights requirements of ORS 426.303 in recommitment proceedings to advice of rights requirements of ORS 426.100(1) in initial commitment proceedings); but see State v. Ritzman , 192 Or. App. 296, 298-301, 84 P.3d 1129 (2004) (failure to comply with ORS 426.100(1) was plain error in recommitment proceeding, but error was harmless in part because recommitment notice contained advice of rights that "not only duplicated the advice that ORS 426.100(1) requires but exceeded it"). But we need not resolve that issue in this case.

      ORS 426.301(3) requires that the certification advise the committed person of the following:
      "(a) That the authority or facility has requested that commitment be continued for an additional period of time.
      "(b) That the person may consult with legal counsel and that legal counsel will be provided for the person without cost if the person is unable to afford legal counsel.
      "(c) That the person may protest this further period of commitment within 14 days, and if the person does not protest the further commitment, commitment will be continued for an indefinite period of time up to 180 days.
      "(d) That if the person does protest a further period of commitment, the person is entitled to a hearing before the court on whether commitment should be continued.
      "(e) That the person may protest either orally or in writing by signing the form accompanying the certification.
      "(f) That the person is entitled to have a physician or other qualified professional as recommended by the authority, other than a member of the staff at the facility where the person is confined, examine the person and report to the court the results of the examination.
      "(g) That the person may subpoena witnesses and offer evidence on behalf of the person at the hearing.
      "(h) That if the person is without funds to retain legal counsel or an examining physician or qualified professional as recommended by the authority, the court will appoint legal counsel, a physician or other qualified professional."


text:
    STATE of Oregon, Plaintiff-Respondent, v. Barbara Ann RHODES, Defendant-Appellant.
    A164089
    Court of Appeals of Oregon.
    Submitted November 5, 2018. February 21, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.
   JAMES, J.

Defendant appeals a judgment of conviction for disorderly conduct in the second degree. ORS 166.025. She assigns error to the trial court's denial of her pretrial motion to declare borderline personality disorder a mental disease or defect for purposes of ORS 161.300 (2016), amended by Oregon Laws 2017, chapter 634, section 4. In particular, defendant argues she was prevented from presenting evidence of, and instructing the jury on, the issue of borderline personality disorder as a mental disease or defect as part of a partial responsibility defense under ORS 161.300 (2016). In response, the state argues that, although the trial court denied defendant's pretrial motion, she was allowed to present evidence about her borderline personality disorder and develop the defense during the trial. The state adds that defendant argued to the jury that the evidence of her borderline personality disorder established reasonable doubt as to whether the state had met its burden to prove that defendant formed the requisite mental states for the charged crimes after the trial court instructed the jury on intent and the state's burden. We conclude that the trial court did not commit reversible error in denying defendant's motion and, in light of State v. Booth , 284 Or. 615, 588 P.2d 614 (1978), and the facts here, any error resulting from the trial court's failure to instruct the jury on the partial responsibility defense is harmless. Accordingly, we affirm.

Defendant was having suicidal ideation and went to the emergency room. She wrote a note to the receptionist stating that she was suicidal and sat down in the waiting room. After waiting for 15 minutes, defendant felt that the hospital staff did not believe that she was suicidal, so she walked out of the emergency room and into a busy three-lane road. She stood in the middle of traffic and yelled.

A hospital security guard intervened, trying to escort defendant out of the road and onto the sidewalk. Defendant returned to the middle of the road and the hospital security guard called for assistance. Two police officers arrived and eventually arrested defendant and transported her to jail. For that conduct, the state charged defendant with second-degree disorderly conduct, among other things.

Before trial, defendant filed a motion seeking an order from the trial court declaring borderline personality disorder a mental disease or defect for purposes of ORS 161.300 (2016). In particular, she notified the trial court that she was raising a partial responsibility defense and that she intended to offer evidence of mental disease or defect as it related to the mental state for the charged crimes. Defendant also requested that the jury be instructed as to the following:

"You may consider evidence that the Defendant suffered from a mental disease or defect in making your decision whether the Defendant had the mental state that is required for the commission of the charged offense.
"The term 'mental state' refers to intent, knowledge, and recklessness."

(Footnote omitted.)

In response to defendant's motion, the state acknowledged that defendant could raise a partial responsibility defense during the trial to show that she did not act with the requisite mental states but argued that defendant's requested jury instruction was not appropriate because it would inappropriately suggest to the jury that the trial court had determined that defendant's borderline personality disorder excused her criminal conduct. Instead, the state proposed:

"If [defendant] want[s] to produce evidence about her diagnosis and her time with the doctor and all of that to show, you know, generally speaking, around the time, even though it wasn't on the day in question, this is what was going on with her, that's fine. But that all the jury needs to know is that at the end of the day, they're instructed that you have to find the mental states that they-the defendant's been charged with and the State has to prove it beyond a reasonable doubt and you can consider all the evidence that you've heard in this case to make that decision[.]"

After hearing arguments from both of the parties on the motion, the trial court denied the motion and declined to declare borderline personality disorder a mental disease or defect. As to the corresponding requested jury instruction, the trial court explained

"that given what I've previously ruled as to what a Borderline Personality Disorder is for this case and what it is legally, I'm not going to give that instruction. Where the evidence plays out in the trial itself, obviously we don't know yet where we will be, but given everything that the court has heard, it does appear that what the argument from the defense is going to be is that [defendant] just didn't have the capacity to form the intent in this case."

The case proceeded to trial. During defendant's opening statement, defense counsel explained that "what's important to understand about that day is that [defendant] was having a mental health crisis." Defense counsel continued, "And at the end of this case, we're going to ask that you find [defendant] not guilty consistent with the evidence of the charged conduct" and concluded, "we're going to ask you to look at the situation from [defendant's] perspective as this person experiencing this mental health crisis, confronted with the circumstances that I just talked about."

At trial, defendant's expert psychologist, Dr. Kenney, testified about her borderline personality disorder diagnosis, including testimony that defendant's behavior during the incident was consistent with the symptoms of her diagnosis. Kenney explained that a person with borderline personality disorder may seek attention from others by engaging in self-harming behaviors and respond with "anger and rage." He testified that defendant's behavior during the incident reflected the "hallmarks" of borderline personality disorder.

After the parties rested, the trial court instructed the jury on disorderly conduct in the second degree, ORS 166.025 :

"Disorderly conduct in the second degree. Oregon law provides that a person commits the crime of disorderly conduct in the second degree if the person while intentionally creating a risk of causing [public] inconvenience, annoyance or alarm, obstructs vehicular or pedestrian traffic on a public way.
"In this case to establish the crime of disorderly conduct in the second degree, the State must prove beyond a reasonable doubt the following four elements. Not three. One, the act occurred in Washington County, Oregon; two, the act occurred on or about February 24th, 2016; three, [defendant] recklessly created a risk of causing public inconvenience, [annoyance] or alarm by; four, intentionally obstructing vehicular or pedestrian traffic on a public way."

The trial court instructed that "[a] person acts intentionally or with intent when that person acts with a conscious objective to cause a particular result or engage in particular conduct." It also instructed that

"[a] person acts recklessly if that person is aware of and consciously disregards a substantial and [unjustifiable] risk that a particular result will occur or a particular circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."

Moreover, the trial court instructed, "Reasonable doubt means an honest uncertainty as to the guilt of the defendant. Reasonable doubt exists when after careful and impartial consideration of all the evidence in the case, you are not convinced that the defendant is guilty."

Following the trial court's instructions to the jury, the parties made their closing arguments. Defense counsel argued to the jury:

"In the crimes, they have elements. The State must prove each element. If there's four elements and the State only proves three, that person's not guilty of a crime.
"* * * * *
"We're talking about mental states, because every crime as you've now seen in your jury instructions has physical actions and mental states. And if a person has both of those, they do the conduct and they have the mental state, then you have a crime.
"* * * * *
"And another way she fills her time is managing her mental illness, Borderline Personality Disorder, which you heard a lot of testimony about, so I'm not going to spend a whole lot of time on it, but I want to focus on a handful of important things that were said about Borderline Personality Disorder. And, again, the evidence is uncontested, [defendant] has this, that it seriously impairs her functioning.
"* * * * *
"And let me be very clear that this is no fault of [defendant's] own. We had a lot of talk about where [borderline personality disorder ] comes from, how it manifests. You heard all that. It is clear that people don't have a choice in this. [Defendant] doesn't have Borderline Personality Disorder because she decided one day to be an ornery person or because she thought the world was giving her a bad shake and she wanted some excuse. If she could choose not to have it, she probably wouldn't have it. Probably certainly so. But she has this mental illness and it causes her a distortion of what she perceives, particularly involving other people's actions.
"[The state] accurately characterized why you get to hear this evidence about the mental illness. Because it is relevant to, one, deciding whether [defendant] had that criminal intent or criminal knowledge or criminal recklessness, the mental state required for these crimes.
"* * * * *
"Understanding, the idea of understanding is critical to this case. Understanding and comprehending who [defendant] is as a person, what her mental illness means, how it affects her and her interactions with other people and how it bears on this case."

The jury deliberated and found defendant guilty of disorderly conduct in the second degree.

In the case before us, defendant was found guilty of disorderly conduct, a crime requiring intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk of the same. ORS 166.025. Defendant, having been diagnosed with borderline personality disorder, wanted to raise a partial responsibility defense under ORS 161.300 (2016). ORS 161.300 (2016) stated:

"Evidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime."

Whether a defendant suffered from "a mental disease or defect" determined whether ORS 161.300 (2016) was available to her as a defense. ORS 161.295(2) (2016), amended by Oregon Laws 2017, chapter 634, section 3, stated:

"[T]he terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder."

However, in State v. Booth , 284 Or. 615, 619, 588 P.2d 614 (1978), the defendant also wanted the jury instructed as to the defense, but as the Oregon Supreme Court explained, " ORS 161.300 is an evidentiary statute and does not speak to the issue of jury instructions." The Booth court concluded:

"[T]he trial court instructed the jury that the State had the burden of proving all the material allegations of the complaint, including intent, beyond a reasonable doubt. Because the partial responsibility theory is merely one method of rebutting the State's allegation of intent, the theory is adequately covered by general instructions on the State's burden of proof. Consequently, the failure to instruct on partial responsibility could not have been prejudicial. As a general rule, trial courts need not give instructions that highlight particular evidence or testimony."

Id. at 619-20, 588 P.2d 614 (footnote omitted). The court clarified that, "[i]n holding that it is not reversible error to refuse a partial responsibility instruction, however, we do not mean to imply that such instructions are improper." Id. at 620, 588 P.2d 614. Rather, where a trial court properly instructs the jury on the state's burden to prove all elements of the charged crime, including mental states, beyond a reasonable doubt, "any error in failing to give an instruction on the issue of partial responsibility [is] not prejudicial." Id. at 619, 588 P.2d 614 (internal quotation marks omitted).

Here, as in Booth , although the trial court denied defendant's motion and requested jury instruction raising a partial responsibility defense under ORS 161.300 (2016), any error in failing to give the jury instruction was harmless because the trial court properly instructed the jury as to the state's burden to prove beyond a reasonable doubt all elements of ORS 166.025, disorderly conduct in the second degree, including intent. Moreover, defendant was permitted to generally develop a partial responsibility defense at trial, introduce evidence and expert testimony related to her borderline personality disorder, and argue before the jury the issues of intent and borderline personality disorder in her opening and closing remarks. Accordingly, the trial court's denial cannot be considered prejudicial.

Affirmed.

      Defendant was indicted for assaulting a public safety officer, ORS 163.208 (Count 1); resisting arrest, ORS 162.315 (Count 2); and disorderly conduct in the second degree, ORS 166.025 (Count 3). The jury acquitted defendant on Counts 1 and 2. Accordingly, facts pertaining to defendant's interaction with the two police officers, which are not pertinent to the issues before us, have been omitted.

      As we have pointed out, "the statute does not define what constitutes a 'personality disorder.' " Beiswenger v. PSRB , 192 Or. App. 38, 45, 84 P.3d 180 (2004). Borderline personality disorder is not explicitly included and "the statutory references to 'mental disease or defect' and 'personality disorder' are ambiguous."Id. at 46, 84 P.3d 180. Whether borderline personality disorder qualifies as a mental disease or defect for purposes of ORS 161.300 has yet to be determined by the legislature. Recently, we noted:
      "Personality disorders-like narcissistic, antisocial, or borderline personality disorder-are coded in the DSM-IV-TR under Axis II and are expressly distinguished from Axis I clinical disorders like *** anxiety disorder. We have observed that personality disorders 'are more resistant to treatment than Axis I disorders because Axis II disorders generally involve a more enduring and pervasive set of maladaptive behaviors, perceptions, and beliefs.' "
      State v. Zielinski , 287 Or. App. 770, 782, 404 P.3d 972 (2017) (quoting State ex rel Dept. of Human Services v. R. N. L. , 218 Or. App. 188, 192 n. 3, 180 P.3d 704 (2008) ).