State v. McCathern

• Decision Date: 28 February 2007
• Docket Number: 0403-31327.,A127638.
• Citation: 211 Or. App. 171,154 P.3d 130
• Parties: STATE of Oregon, Respondent, v. Nora Magdelene McCATHERN, Appellant.
• Court: Oregon Court of Appeals

154 P.3d 130

211 Or. App. 171

STATE of Oregon, Respondent, v. Nora Magdelene McCATHERN, Appellant.

0403-31327.

A127638.

Court of Appeals of Oregon.

Argued and Submitted September 15, 2006.

Decided February 28, 2007.

Laura Graser argued the cause and filed the brief for appellant.

Kaye E. McDonald, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN^* and ORTEGA, Judges.

LANDAU, P.J.

ORS 471.410(2) provides that "[n]o one other than the person's parent or guardian shall sell, give or otherwise make available any alcoholic liquor to a person under the age of 21 years." The principal issue in this case is whether that statute requires proof of a culpable mental state. The trial court concluded that the statute sets forth a strict liability offense and requires no proof of a culpable mental state. We agree and affirm.

The facts pertaining to the issue on appeal are few and undisputed. Defendant lived next door to a foster home in which six girls, whose ages ranged from 13 to 17, lived. In February 2004, defendant went to the foster home and listened to music; she offered to bring the girls alcohol and cigarettes. The girls requested that she bring them a bottle of Black Velvet. The next night, defendant came over with a bottle of Black Velvet and gave it to two of the girls. The next day, five of the girls living in the foster home drank what remained of the alcohol that defendant had provided the night before.

Defendant was charged by indictment with, among other things, five counts of furnishing alcohol to a person under 21 years of age. The indictment alleged that defendant "did unlawfully give and make available alcoholic liquor" to five of the foster girls, and also alleged that all of the girls were under the age of 21. The indictment did not allege that defendant committed the crime knowingly or with some other culpable mental state.

Defendant demurred to the indictment, arguing that the indictment failed to state an offense because it did not allege that she had acted with a culpable mental state. Defendant argued that, under Oregon law, a culpable mental state is required for any offense in the absence of clear legislative intent to dispense with that requirement. In defendant's view, nothing about ORS 471.410(2) evinces a clear legislative intent to make furnishing alcohol to someone under age 21 a strict liability offense. The trial court disagreed, overruling the demurrer on the ground that the legislature had intended the statute to create a strict liability offense.

Later, during trial, defendant raised the same issue by means of a motion for a judgment of acquittal and a request to instruct the jury that the state was required to prove a culpable mental state with respect to furnishing alcohol to a person under 21. The trial court denied both requests, and defendant was convicted of, among other things, five counts of furnishing alcohol to a person under the age of 21.

On appeal, defendant assigns error to the overruling of her demurrer, the denial of her motion for judgment of acquittal, and the denial of her requested jury instruction, all on the ground that the trial court erred in construing ORS 471.410(2) as a strict liability offense. She renews her argument that the text of ORS 471.410(2) does not show a clear legislative intent to dispense with a mental state requirement.

The state responds that the trial court correctly interpreted the statute. According to the state, the statutory predecessors to ORS 471.410(2) have consistently been interpreted by Oregon courts as imposing strict liability, and none of the amendments that have led up to the present law has suggested a legislative intent to deviate from that interpretation. We agree with the state.

Defendant assigns error to three different trial court rulings, each of which ordinarily would implicate a different standard of review on appeal. See State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989) (in reviewing denial of motion for judgment of acquittal, court examines evidence in light most favorable to the state to determine whether rational trier of fact could have found the elements of the offense beyond a reasonable doubt); State v. Couch, 196 Or.App. 665, 672, 103 P.3d 671 (2004), aff'd, 341 Or. 610, 147 P.3d 322 (2006) (trial court's ruling on demurrer to charging instrument reviewed for errors of law); State v. Honzel, 177 Or.App. 35, 42, 33 P.3d 346 (2001) (in reviewing denial of requested jury instruction, court reviews facts in light most favorable to submission of case to jury and will uphold ruling only if there is no evidence in record to support instruction). In this case, however, each assignment of error is premised on a contention that the trial court incorrectly construed the statute that defines the offense of which she was convicted. The proper interpretation of a statute is a question we review as a matter of law. State v. Stamper, 197 Or. App. 413, 416, 106 P.3d 172, rev. den., 339 Or. 230, 119 P.3d 790 (2005) (when the dispositive issue underlying trial court's ruling involves meaning of applicable statutes, we review ruling as a matter of law). With that standard in mind, we turn to the parties' arguments.

In construing statutes, our goal is to determine the meaning most likely intended by the enacting legislature by examining the text of the enactment in context and, if necessary, consulting legislative history and other aids to construction. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Our textual analysis includes an examination of the wording of the statute, State v. Werdell, 340 Or. 590, 596-97, 136 P.3d 17 (2006), the wording of related statutes, State v. Webb, 324 Or. 380, 390, 927 P.2d 79 (1996), prior judicial construction of the relevant terms, State v. Stubbs, 193 Or. App. 595, 600, 91 P.3d 774, rev. den., 337 Or. 669, 104 P.3d 601 (2004), the preexisting common law, and the statutory framework within which the statute was enacted, Fresk v. Kraemer, 337 Or. 513, 520-21, 99 P.3d 282 (2004).

ORS 161.095 provides that, "[e]xcept as provided in ORS 161.105, 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 161.105, in turn, provides that "[n]ot-withstanding ORS 161.095, a culpable mental state is not required if," among other things, "[a]n offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof." (Emphasis added.) At issue in this case is whether the exception stated in ORS 161.105 applies to ORS 471.410, which defines the offense of which defendant was convicted. That requires us to determine, first, whether the statute defining that offense is part of the Oregon Criminal Code and, second, whether it "clearly indicates" an intention to dispense with the requirement of proving a culpable mental state.

The answer to the first determination is straightforward. ORS 161.005 lists the statutes that comprise the Oregon Criminal Code, and ORS 471.410(2) is not on that list. We turn, then to whether ORS 471.410(2) "clearly indicates" the legislature's intent to "dispense with any culpable mental state requirement for the offense."

Determining whether a statute "clearly indicates" the legislature's intent to dispense with a culpable mental state is itself a matter of statutory construction, requiring an examination of the relevant statutory wording in context, State v. Andrews, 174 Or.App. 354, 365, 27 P.3d 137 (2001), and legislative history and other aids to construction, if necessary, State v. Miller, 309 Or. 362, 788 P.2d 974 (1990). The Supreme Court's opinion in Miller is especially instructive in that regard. In Miller, the court addressed the question whether the statute defining the offense of driving under the influence of intoxicants, ORS 813.010, requires proof of a culpable mental state. The court concluded that it does not. The court observed that the bare wording of the statute did not mention the issue, but it nevertheless determined that the legislature's intentions were sufficiently clear for two reasons. First, the court noted that the legislature had expressly prescribed a culpable mental state elsewhere in related traffic offense statutes enacted at the same time, giving rise to the inference that the omission in the particular provision at issue was intentional. 309 Or. at 370-71, 788 P.2d 974. Second, the court noted that, when the legislature enacted the provision at issue, it did so against a backdrop of judicial opinions construing earlier versions of the provision to require no proof of a culpable mental state; the court concluded that, if the legislature had intended to depart from that prior construction, it would have said so. Id. Justice Gillette concurred separately, in fact, to emphasize the importance of the second of the two points. Id. at 371, 788 P.2d 974.

The statute at issue in this case, ORS 471.410(2), provides that "No one other than the person's parent or guardian shall sell, give or otherwise make available any alcoholic liquor to a person under the age of 21 years. A person violates this subsection who sells, gives or otherwise makes available alcoholic liquor to a person with the knowledge that the person to whom the liquor is made available will violate this subsection."

The first sentence of ORS 471.410(2), which creates the offense that defendant was convicted of violating, says nothing about a culpable mental state. The second sentence, however, does; it specifically requires proof of "knowledge" that the person to whom alcohol is given will, in turn,...