State v. Carlisle
| Citation | 370 Or 137 |
| Decision Date | 04 August 2022 |
| Docket Number | SC S067880 |
| Parties | STATE OF OREGON, Respondent on Review, v. ZACHARY DEAN CARLISLE, Petitioner on Review. |
| Court | Oregon Supreme Court |
Argued and submitted May 6, 2021.
On review from the Court of Appeals (CC C18CR07005) (CA A169564).[*]
Stacy M. Du Clos, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G Lannet, Chief Defender.
Michael A. Casper, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson Garrett, Justices, and Nakamoto, Senior Judge, Justice pro tempore.[**]
The decision of the Court of Appeals and the judgment of the circuit court are affrmed Flynn, J, authored the lead opinion, in which Balmer and Nelson, JJ, joined Garrett, J concurred and fled an opinion, in which Balmer, J., joined.
Defendant challenges his conviction for the misdemeanor offense of third-degree sexual abuse, which required the state to prove that he "subject[ed] another person to sexual contact" and that "[t]he victim d[id] not consent to the sexual contact." ORS 163.415(1)(a)(A). The question before us is which culpable mental state applies to the "victim does not consent" element of the offense. The trial court instructed the jury that the state needed to prove that defendant "knowingly" subjected the victim to sexual contact and that defendant was "criminally negligent" with respect to the fact that the victim did not consent to the sexual contact. According to defendant, the trial court erred in refusing to instruct the jury that both elements required proof of a "knowing" mental state. We conclude, however, that the legislature did not intend that a conviction under ORS 163.415 would require proof that the defendant knew that the victim did not consent to the sexual contact. Accordingly, we conclude that the trial court did not err.
The charges against defendant arise out of an incident outside of a downtown Portland bar. The victim, AM, arrived at the bar with her boyfriend and a few other friends, and they encountered defendant standing just outside of the door. AM's group initially mistook defendant for a bouncer and joked around with him for a few minutes after he informed them of their mistake. Some time later, as AM's group began leaving the bar, AM stepped away from the crowd and was looking at her phone when she felt someone pull down her bra and grab her right breast. AM turned quickly to look at the person and felt something scrape across her nipple. She recognized the person who touched her as defendant, the same man whom she and her friends had earlier mistaken for a bouncer. According to AM, defendant looked at her and "said something to the effect of 'those eyes.'" AM walked away from him without responding and told her boyfriend about the incident. Defendant was eventually charged with third-degree sexual abuse based on the incident.[1] When the case went to trial, defendant argued to the jury that AM was mistaken in her identification of defendant as the man who made sexual contact with her breast. But he also argued that the court should instruct the jury that third-degree sexual abuse required the state to prove beyond a reasonable doubt that defendant "knew that [AM] did not consent." In the alternative, defendant requested an instruction that the element required a culpable mental state of at least "criminal negligence."
As set out above, the trial court disagreed with defendant that the "does not consent" element requires a culpable mental state of "knowingly," and it, instead, granted defendant's alternative request to instruct the jury that the state was required to prove beyond a reasonable doubt that defendant "was criminally negligent with respect to whether [AM] did not consent" to the sexual contact. The trial court instructed the jury that, in the context of the sexual abuse charge in this case, "criminally negligent" meant that defendant failed "to be aware of a substantial and unjustifiable risk that [AM] did not consent" and that the risk was "of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in a situation." See ORS 161.085(10) (). After the jury returned a verdict of guilty, defendant appealed and assigned error to the court's instruction regarding the culpable mental state.
The Court of Appeals affirmed the conviction in a brief per curiam opinion. State v. Carlisle, 304 Or.App. 872, 466 P.3d 1069 (2020). The court relied on its decision in State v. Haltom, 298 Or.App. 533, 447 P.3d 66 (2019)-a case addressing the required mental state for a "does not consent" element in a different sexual abuse statute. Carlisle, 304 Or.App. 872. But this court has since reversed the Court of Appeals decision in Haltom, 366 Or. 791, 472 P.3d 246 (2020). And defendant argues that our conclusion in Haltom requires us to reverse the Court of Appeals in this case as well. We disagree. The statute at issue here and the statute at issue in Haltom describe distinct offenses that were enacted by different legislatures and reflect different legislative intent. The pertinent text, context, and legislative history of ORS 163.415 persuade us that the trial court correctly refused to instruct the jury that defendant was guilty of third-degree sexual abuse only if he knew that AM did not consent to the "sexual contact."
The question of which culpable mental state the legislature intended for the "does not consent" element of ORS 163.415(1)(a)(A) presents a question of statutory construction that we resolve by employing our well-established analytical framework, as set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), and modified in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). Under that framework, we examine the text and context of the particular provision at issue and consider legislative history of the provision "where that legislative history appears useful to the court's analysis," all in an effort to determine the intent of the legislature that enacted the provision. Gaines, 346 Or at 171-72; see also ORS 174.020(1)(a) ().
As pertinent to defendant's conviction, ORS 163.415(1) provides that "[a] person commits the crime of sexual abuse in the third degree" when:
(Emphasis added.) The dispute in this case arises because the statute does not specify a culpable mental state for any element of the offense.[2] That challenge is one that drafters of the 1971 Oregon Criminal Code anticipated and partially addressed with a collection of generally applicable culpability provisions. See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report §§ 7-11, 11 (July 1970) ( effort to "do away with the problem that now often arises when a statute defining a crime fails to prescribe a required culpable state of mind"). Those general provisions supply "uniform" answers to many of the culpable mental state issues that arise for offenses within the Criminal Code.[3] See State v. Owen, 369 Or. 288, 295, 505 P.3d 953 (2022) (). The general provisions narrow-but do not fully answer-the dispute in this case.
As pertinent to this case, one general culpability provision specifies that "a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state," ORS 161.095(2),[4] and another specifies that the "culpable mental state" for an offense must be either "intentionally, knowingly, recklessly or with criminal negligence." ORS 161.085(6); see also ORS 161.115(2) ().
Those general provisions answer important questions that narrow the dispute regarding the culpable mental state for the "does not consent" element in ORS 163.415: They tell us that the legislature intended to require some culpable mental state for the "does not consent" element, even though the statute does not specify one, and they tell us the range of mental states that could apply to that element. The general provisions also supply important context for which mental state might apply to any particular element, because they supply definitions for each of the four culpable mental states. ORS 161.085(7)-(10). Those definitions tell us that the legislature contemplated that each culpable mental state would be used for certain categories of material elements: "conduct," "circumstance," and "result." See Owen, 369 Or at 296 (...
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