S057796, Opinion — State v. Blair

72
Argued and submitted February 22, at Jesuit High School, Portland, Oregon,
decision of Court of Appeals and judgment of circuit court affirmed
March 25, 2010
STATE OF OREGON,
Respondent on Review,
v.
MICHAEL JAMES BLAIR,
Petitioner on Review.
(CC 042431; CA A130455; SC S057796)
228 P3d 564

En Banc
On review from the Court of Appeals.*
Andrew 	S. 	Chilton, 	Chilton & Galli, 	LLC, Portland,
argued the cause and filed the briefs for petitioner on review.
Susan G. 	Howe, 	Senior Assistant Attorney General,
Salem, argued the cause for respondent on review. With her
on the brief were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
DE MUNIZ, C. J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* Appeal from Lincoln County Circuit Court, Charles P. Littlehales, Judge.
230 Or App 36, 214 P3d 47 (2009).

74 	State v. Blair
DE MUNIZ, C. J.
Defendant petitions for review from 	a 	Court of
Appeals opinion affirming his conviction for, among other
crimes, felony murder. The Court of Appeals concluded that
the felony murder statute, ORS 163.115(1)(b), does not
require that the state allege and prove that a defendant acted
with a culpable mental state in causing the victim's death;
rather, the defendant's commission or attempted commission
of the underlying felony establishes, as a matter of law, the
requisite mens rea with respect to the victim's death. State v.
Blair, 230 Or App 36, 56, 214 P3d 47 (2009). We allowed
defendant's petition for review. As explained below, we agree
with the Court of Appeals and the trial court, and therefore,
affirm.
The facts are undisputed. Defendant broke into the
victim's home, stole several marijuana plants and household
items, and attempted to rape and sexually abuse the victim.
The next day, the victim's son found her body on the floor
next to her bed, with a bed sheet tied around one of her legs
and also loosely tied to a bedpost. The cause of the victim's
death was chronic obstructive pulmonary disease (COPD)
due to emphysema. The victim suffered from acute COPD,
which was exacerbated critically by defendant's burglary,
attempted rape, and attempted sexual abuse.
Before trial, defendant demurred to the felony mur-
der count in the indictment. Defendant argued that the
demurrer should be sustained, because the felony murder
count did not allege that defendant had caused the death of
the victim with a culpable mental state and therefore did not
allege facts "constitut[ing] an offense." See ORS 135.630(4)
(defendant may demur to accusatory instruction when "the
facts stated do not constitute an offense").
Defendant argued that, because felony murder is a
form of criminal homicide, the state was required to allege in
the indictment one of the mental states described in ORS
163.005(1): that is, it was required to allege that defendant
had killed the victim "intentionally, knowingly, recklessly or
with criminal negligence[.]" The trial court overruled the
' Defendant's other convictions are not at issue on review.

Cite as 348 Or 72 	75
demurrer. During the trial, defendant submitted proposed
jury instructions that would have required the state to prove
beyond a reasonable doubt that defendant had caused the
victim's death "knowingly, recklessly, or with criminal negli-
gence" as one of the elements of felony murder. The trial
court refused to give those requested instructions. Ajury sub-
sequently convicted defendant offelony murder, among other
crimes. On the felony murder conviction, the trial court
imposed a life sentence with the possibility of parole after
25 years.
Defendant appealed, 	and 	the 	Court of Appeals
affirmed. Blair, 230 	Or App 36. The Court of Appeals
acknowledged some ambiguity in the relevant statutes, but
held that their text, context, and legislative history sup-
ported the interpretation that felony murder, as defined in
Oregon, does not require a separate mental state. The Court
of Appeals pointed out that the concept of felony murder was
first codified in 1864 and that long-standing case law from
this court discussing felony murder never had required that a
specific mental state attend the cause of death of the victim;
instead, the mens rea element was satisfied by the commis-
sion of certain underlying felonies. The Court of Appeals also
noted that the statutes relied on by defendant were part of
the 1971 revision of the criminal code and that nothing in the
legislative history suggested that the legislature intended to
alter the longstanding felony murder rule. Accordingly, the
Court of Appeals concluded that the trial court had not erred.
Id. at 56.
We allowed defendant's petition for review to deter-
mine whether the definition of criminal homicide in ORS
163.005(1) applies to felony murder, as codified in ORS
163.115(1)(b), in such a way that felony murder in Oregon
requires the state to allege and prove that a defendant acted
with a mental state in causing the victim's death distinct
from any mental state required to prove the underlying fel-
ony. In doing so, our task is to "ascertain and declare what is,
in terms or in substance, contained therein, not to insert
what has been omitted, or to omit what has been inserted;
and where there are several provisions or particulars such
construction is, if possible, to be adopted as will give effect to
all." ORS 174.010. We interpret the statutory text in context,

76 	State v. Blair
PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11,
859 P3d 1143 (1993), and then, to the extent we find it help-
ful, we consider the legislative history proffered by the par-
ties. ORS 17 4.020(3); see also State u. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009) (after considering text and con-
text, court considers any pertinent legislative history, giving
it appropriate weight). In this case, the context that we con-
sider along with the text includes the law as it existed before
the adoption of the 1971 criminal code. See State v. Toevs, 327
Or 525, 532, 964 P2d 1007 (1998) (context of a statute
includes this court's prior interpretations of the same statute
or earlier versions of that statute).
ORS 163.005 provides, in part:
"(1) 	A person commits criminal homicide if, without
justification or excuse, the person intentionally, knowingly,
recklessly or with criminal negligence causes the death of
another human being.
"(2) 	'Criminal homicide' is 	murder, 	manslaughter,
criminally negligent homicide or aggravated vehicular
homicide."
The felony murder statute, ORS 163.115, provides, in part:
"(1) 	Except as provided in ORS 163.118 and 163.125,
criminal homicide constitutes murder:
''* * * * *
"(b) 	When it is committed by a person, acting either
alone or with one or more persons, who commits or
attempts to commit any of the following crimes and in the
course of and in furtherance of the crime the person is com-
mitting or attempting to commit, or during the immediate
flight therefrom, the person, or another participant ifthere
be any, causes the death of a person other than one of the
participants:
"* * * * *
"(C) 	Burglary in the first degree as defined in ORS
164.225[.]"
As defendant reads the above statutes, because fel-
ony murder is a type of criminal homicide-and, under ORS
163.005(1), a person commits criminal homicide only if the

Cite as 348 Or 72 (2010) 	77
person intentionally, knowingly, recklessly, or with criminal
negligence 	causes 	the 	death of another-felony murder
requires that, in causing the death, the defendant acted with
a mens rea of at least criminal negligence. The state responds
that ORS 163.005(1) does not provide the exclusive definition
of criminal homicide because ORS 163.005(2) provides a fur-
ther definition of criminal homicide and, under defendant's
reading, subsection (2) would be rendered superfluous. More-
over, the state argues, under ORS 163.005(2), "criminal hom-
icide" includes "murder." Accordingly, all the subspecies of
murder listed in ORS 163.115(1) constitute "criminal homi-
cide," regardless of whether the specific subspecies requires
that a defendant act with a culpable mental state in causing
the victim's death. The state asserts that nothing in ORS
163.005(1) prevents the mens rea required to prove the
underlying felony from being imputed to the person who
causes 	the 	death 	of 	a 	victim 	for 	purposes 	of 	ORS
163.115(1)(b). With those competing arguments in mind, we
turn to an examination of the pertinent statutes.
The legislature adopted ORS 163.005 and ORS
163.115 in 1971 as part of an overall revision of the criminal
code. Criminal Law Revision Commission Proposed Oregon
Criminal Code, Final Draft and Report§§ 87-88, 84-85 (July
1970). "Criminal homicide" was a new offense created during
the 1971 revision and thus had no preexisting history in
Oregon law. See Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report§ 87(C), 84(July1970) (Commentary) (setting out
definition). On the other hand, the felony murder rule was
first codified in Oregon in 1864 as part of both the first- and
second-degree murder statutes. Or Laws 1864, ch 43, §§ 502-
03. 2 The relevant portions of the first- and second-degree
" Sections 502 and 503 provided:
"If any person shall, purposely, and of deliberate and premeditated malice,
or in the commission or attempt to commit any rape, arson, robbery or burglary,
kill another, such person shall be deemed guilty of murder in the first degree.
"If any person shall purposely and maliciously, but without deliberation
and premeditation, or in the commission or attempt to commit any felony, other
than rape, arson, robbery or burglary, kill another, such person shall be
deemed guilty of murder in the second degree."
General Laws of Oregon, Crim Code, ch XLIII, §§ 502-03, p 527(Deady1845-1864)
(emphasis added).

78 	State v. Blair
felony murder statutes remained substantially unchanged
until the criminal code revisions in 1971, and this court has
consistently incorporated an "implied malice" rule into felony
murder, that is, felony murder contains no distinct or inde-
pendent mens rea requirement in relation to the cause of
death of the victim. See State of Oregon v. Brown, 7 Or 186,
198, 204 (1879) (first-degree murder statute did not require
defendant to act purposely in killing victim if defendant
killed victim in commission or attempted commission offelo-
nies enumerated in statute; intent to kill "incontrovertibly
implied" from defendant's participation in felony); State v.
Branch, 244 Or 97, 100, 415 P2d 766 (1966) ("[A] malignant
purpose is established by proof of the defendant's other felony
***.");State v. Dorland, 161Or403, 404, 89 P2d 595 (1939)
("[l]t is not necessary for the indictment to allege or the state
to prove that [the killing] was done purposely or with delib-
erate and premeditated malice. It is sufficient if it be alleged
and proved that the killing was done while the defendant was
engaged in the commission or attempt to commit any of [the
enumerated felonies][.]").
Thus, when the legislature adopted ORS 163.005
and ORS 163.115 in 1971, the felony murder rule, as con-
strued and applied by this court, long had operated to impose
responsibility for homicides that occur during the commis-
sion or attempted commission of a felony, without the sepa-
rate and additional requirement that the defendant acted
with a mens rea in causing the death of another person. In
addition, since 1971, this court has continued to treat felony
murder as requiring no distinct or independent mens rea
with respect to the cause of the victim's death. See State v.
Link, 346 Or 187, 205, 208 P3d 936 (2009) ("[A] defendant
may be convicted of felony murder even though the defen-
dant did not participate in the murder, cause the death, or
intend that the death occur. * * * [l]f a participant in a felony
also participates in and causes a murder, and does so inten-
tionally, then the participant commits intentional murder, as
well as felony murder."); State v. Zweigart, 344 Or 619, 626,
188 P3d 242 (2008), cert den, __ US _ 	, 130 S Ct 56
(2009) ("[C]riminal homicide constitutes murder when* * * a
person participates in one of certain enumerated felonies
and, in the course of that felony, that person, or any other

Cite as 348 Or 72 (2010) 	79
person, causes the death of another person, whether inten-
tionally or not[.]"); State v. Quinn, 290 Or 383, 405 n 8, 623
P2d 630 (1981), overruled on other grounds by State v. Hall,
339 Or 7, 115 P3d 908 (2005) (under ORS 163.115(1)(b), "the
jury need only find the intent necessary for burglary, intent
to kill is not an element offelony murder").
Nothing in ORS 163.115 or any related statutes
indicates that the legislature intended to change that long-
standing rule. To the contrary, other aspects of the statutory
scheme demonstrate that the legislature intended to retain
the felony murder rule in its traditional form. For example,
ORS 163.115(1)(b) provides that criminal homicide consti-
tutes murder by a person when it is committed by that person
"or another participant if there be any." (Emphasis added.)
Under that provision, a defendant may be criminally liable
for felony murder even if an accomplice causes the death of
the victim. Another subsection in the same statute, ORS
163.115(3), provides for a limited affirmative defense to fel-
ony murder if a defendant
"(a) 	Was not the only participant in the underlying
crime;
"(b) 	Did not commit the homicidal act or in any way
solicit, request, command, importune, cause or aid in the
commission thereof;
"(c) 	Was 	not armed with a 	dangerous or deadly
weapon;
"(d) 	Had no reasonable ground to believe that any
other participant was armed with a dangerous or deadly
weapon; and
"(e) 	Had no reasonable ground to believe that any
other participant intended to engage in conduct likely to
result in death."
Under defendant's interpretation of the felony murder stat-
ute, ORS 163.115(3) would be rendered unnecessary, in con-
travention of the statutory construction directive set out in
ORS 174.010.
Moreover, ORS 163.115(1)(a) provides that criminal
homicide constitutes murder when it is "committed intention-
ally." (Emphasis added.) Under a parallel reading of ORS

163.115(1)(a) and (b), the fact that the legislature included a
mental state in paragraph (l)(a) but not (l)(b) supports the
interpretation that the legislature intended that the mental
state required for the underlying felony in paragraph ( l)(b) to
be imputed as a matter oflaw to the cause of the death of the
victim.
Finally, as the Court of Appeals noted, nothing in the
1971 	legislative 	history 	suggests 	that 	the 	legislature
intended to change the longstanding rule regarding implied
malice; in fact, much the legislative history suggests that the
legislature intended to adhere to it. See Blair, 230 Or App at
51-55 (summarizing that history). Indeed, defendant does
not assert that anything in the legislative history of the two
statutes supports its position; rather, defendant asserts that
his reading of the statutes is the only plausible interpretation
and therefore that any resort to legislative history is unnec-
essary. As explained above, we disagree that defendant's
interpretation is the only plausible one. In all events, we may
always consider pertinent legislative history. Gaines, 346 Or
at 172.
Taken together, the context, including this court's
case law and the legislative history, compel the conclusion
that the legislature intended to continue the implied malice
rule. 	Accordingly, 	we 	conclude 	that, 	(1) 	under 	ORS
163.005(1), "criminal homicide" requires that a defendant act
with a culpable mens rea with respect to causing the victim's
death; 	(2) 	under 	ORS 	163.005(2), 	"criminal 	homicide"
includes "murder," and (3) under ORS 163.115(1)(b), requi-
site culpable mens rea is established, as a matter of law, by
the defendant's commission or attempted commission of the
predicate felony. Thus, the trial court properly overruled
defendant's demurrer and properly refused to give defen-
dant's requested jury instruction. The Court of Appeals cor-
rectly affirmed the trial court's rulings.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.