State v. Meiser

674

Submitted on remand from the Oregon Supreme Court May 10, 2022, affirmed

January 11, petition for review allowed May 4, 2023 (371 Or 60)

See later issue Oregon Reports

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERIK JOHN MEISER,

Defendant-Appellant.

Clackamas County Circuit Court

CR1201547; A166534

524 P3d 130

This case, which involves the requirements for establishing a guilty except

for insanity (GEI) defense under ORS 161.295 (2011), amended by Or Laws 2017,

ch 634, § 3, is on remand from the Oregon Supreme Court. See State v. Meiser, 369

Or 347, 506 P3d 402 (2022). The issues presented on remand are (1) the nature

of the causal link required between a defendant’s qualifying “mental disease or

defect” and the defendant’s “lack of substantial capacity either to appreciate the

criminality of the conduct or to conform the conduct to the law,” ORS 161.295(1)

(2011), and (2) whether the record in this case compels a finding that defendant

proved that necessary causal link. Held: (1) To be found guilty except for insanity

under ORS 161.295, a defendant must prove that, at the time of the criminal

conduct in question, the defendant’s qualifying mental disease or defect was suf-

ficient on its own to bring about the requisite lack of substantial capacity. (2) The

evidence in the record did not compel a finding that, at the time defendant killed

the victim, his schizophrenia was sufficient, by itself, to bring about his asserted

lack of substantial capacity either to appreciate the criminality of that conduct or

to conform his conduct to the law; therefore, the trial court did not err in rejecting

defendant’s GEI defense.

Affirmed.

On remand from the Oregon Supreme Court, State v.

Meiser, 369 Or 347, 506 P3d 402 (2022).

Katherine E. Weber, Judge.

Daniel J. Casey argued the cause and filed the briefs for

appellant.

Leigh A. Salmon, Assistant Attorney General, argued

the cause and filed the brief for respondent. Also on the

reply briefs were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Cite as 323 Or App 674 (2023) 675

Before Shorr, Presiding Judge, and Mooney, Judge, and

Pagán, Judge.

MOONEY, J.

Affirmed.

676 State v. Meiser

MOONEY, J.

This case, in which the trial court rejected defen-

dant’s defense of guilty except for insanity (GEI) and found

him guilty of murder, is before us on remand from the

Supreme Court. State v. Meiser, 308 Or App 570, 481 P3d 375

(2021) (Meiser I), rev’d in part and rem’d, 369 Or 347, 506 P3d

402 (2022) (Meiser II). In Meiser I, we concluded that ORS

161.2951 required defendant to prove that his antisocial per-

sonality disorder played no part in bringing about the req-

uisite lack of substantial capacity, and, because the record

would allow a reasonable trier of fact to reject defendant’s

GEI defense on that basis, we affirmed. 308 Or App at 582,

585-86. As explained more fully below, the Supreme Court

concluded that the legislature did not intend that meaning

of the statute and reversed in part and remanded. Meiser II,

369 Or at 360-62. On remand, we once again affirm.

A detailed description of the facts leading up to

this case is set out in Meiser I, 308 Or App at 572-76, and,

to a lesser extent, in Meiser II, 369 Or at 350-52, and it is

unnecessary for us to repeat that here. As relevant to the

issues before us on remand, defendant, who has been diag-

nosed with schizophrenia and antisocial personality disor-

der, was convicted of murder, as a lesser-included offense of

aggravated murder, for the death of FH during a home inva-

sion robbery.2 The trial court, acting as factfinder, rejected

1

The GEI defense is set out in ORS 161.295, which, as applicable in this case,

provided:

“(1) A person is guilty except for insanity if, as a result of mental dis-

ease or defect at the time of engaging in criminal conduct, the person lacks

substantial capacity either to appreciate the criminality of the conduct or to

conform the conduct to the requirements of law.

“(2) As used in chapter 743, Oregon Laws 1971, the terms ‘mental dis-

ease or defect’ do not include an abnormality manifested only by repeated

criminal or otherwise antisocial conduct, nor do they include any abnormal-

ity constituting solely a personality disorder.”

ORS 161.295 (2011), amended by Or Laws 2017, ch 634, § 3. The 2011 version of

ORS 161.295 applies in this case and all references to the statute in this opinion

are to that version, despite its outdated terminology. Accord Meiser II, 369 Or at

349 n 1 (explaining why it is appropriate to reference the 2011 statute).

2

Defendant was charged with multiple counts of aggravated murder, robbery,

and burglary related to the invasion of FH’s home; he was also charged with two

counts of second-degree burglary for breaking into a martial arts studio and stealing

a samurai sword before going to FH’s home and for entering the garage of another

Cite as 323 Or App 674 (2023) 677

defendant’s defense of GEI to that charge, and defendant

assigned error to that ruling on appeal.3 Meiser I, 308 Or App

at 576.

As to that assignment of error, we held that ORS

161.295 required defendant to prove that his asserted lack

of substantial capacity either to appreciate the criminality

of his conduct in killing FH or to conform his conduct to the

requirements of the law was the result of his schizophrenia—

a qualifying “mental disease or defect” under ORS

161.295(1)—and that his co-occurring antisocial personality

disorder—a “personality disorder” specifically excluded as

a “mental disease or defect” under ORS 161.295(2)—played

no role in causing the requisite lack of capacity.4 Meiser I,

308 Or App at 585-86. And, because the evidence in the

record permitted a finding that defendant’s incapacity, in

whatever form, was not solely the result of his schizophre-

nia, we concluded that defendant had not established that

he was entitled to prevail as a matter of law on the causation

element of his defense, and, therefore, the trial court did

not err in rejecting the defense.5 Id. As a result, we did not

residence to steal a bicycle to help him escape afterward. Defendant asserted the

affirmative defense of GEI to all of the charges. As noted, the trial court found

defendant guilty of the lesser-included offense of murder for the death of FH (the

court merged the multiple aggravated murder counts into one count of murder); the

court also found him guilty of second-degree burglary related to the bicycle. As to

the other charges, the court found defendant GEI. Meiser II, 369 Or at 350-52.

3

Defendant did not challenge the court’s rejection of his GEI defense with

respect to the burglary charge. Meiser I, 308 Or App at 576 n 3. He raised other

assignments of error, but none of those assignments are still at issue. Specifically,

in his second assignment, defendant contended that the trial court erred in

failing to provide findings of fact and conclusions of law explaining its murder

verdict despite the GEI defense. We held that that assignment of error was not

preserved, Meiser I, 308 Or App at 591-92, and defendant did not reprise that

argument before the Supreme Court, Meiser II, 369 Or at 352 n 2. We rejected

defendant’s third assignment of error, challenging his sentence on the merged

convictions for murder, Meiser I, 308 Or App at 592-98, and his fourth, contend-

ing that the trial court erred in denying his motion in arrest of judgment as to

the crime of first-degree robbery, id. at 598-601. The Supreme Court declined

defendant’s petition for review of those holdings; they are therefore undisturbed.

4

It is undisputed both that defendant’s schizophrenia is a “mental disease or

defect” for purposes of ORS 161.295 and that his co-occurring antisocial person-

ality disorder is a “personality disorder” within the meaning of the statute. See

Meiser II, 369 Or at 349 (so noting).

5

Because GEI is an affirmative defense, defendant bears the burden of prov-

ing the defense by a preponderance of the evidence. ORS 161.305 (2011), amended

by Or Laws 2017, ch 634, § 5; ORS 161.055(2).

678 State v. Meiser

resolve the parties’ arguments with respect to whether the

evidence compelled a finding that defendant lacked substan-

tial capacity either to appreciate the criminality of his con-

duct or to conform his conduct to the requirements of law.

Id. at 587-88.

On review, the Supreme Court concluded that

we had erred in our interpretation of the statute, and it

reversed in part and remanded.6 Analyzing the text and

legislative history of the GEI defense, the court held that

the legislature did not intend to “require that a person who

can demonstrate the requisite lack of substantial capacity

‘as a result of mental disease or defect’ also prove that a

co-occurring personality disorder in no part contributed

to the incapacity.” Meiser II, 369 Or at 360-61. That is as

far as the court went, however, remanding for our further

consideration the issues regarding the “lack of substantial

capacity” element that we had left unresolved in Meiser I.

Id. at 361-62. The court also remanded for us to consider

whether—given the court’s rejection of the “sole cause” test

for determining incapacity—the record “compelled a finding

that defendant proved that he had experienced any qualify-

ing incapacity ‘as a result of mental disease or defect,’ ” not-

ing that the answer to that question “may turn on whether

the phrase ‘as a result of’ in ORS 161.295(1) means that the

qualifying ‘mental disease or defect’ must be sufficient, on

its own, to bring about the requisite incapacity, or whether

the legislature intended to require some lesser degree of

causal contribution from the qualifying ‘mental disease or

defect.’ ” Id.

We begin with the latter issue because it is dispos-

itive. In supplemental briefing, defendant contends that the

text and context of the statute demonstrate that the legis-

lature intended to require a lesser degree of causal contri-

bution from his schizophrenia (the qualifying “mental dis-

ease or defect”) than the “sufficient[ ] on its own” standard

6

The Supreme Court allowed review, limited to the following issue:

“Is the defense of guilty except for insanity as defined in ORS 161.295(1)

unavailable when the defendant’s lack of substantial capacity to appreciate

the criminality of his conduct or to conform that conduct to the requirements

of the law is the result of a combination of a ‘qualifying mental disorder’ and

a ‘personality disorder’?”

Cite as 323 Or App 674 (2023) 679

posited as a possibility by the Supreme Court.7 Further, in

defendant’s view, we need not decide precisely what lesser

degree the legislature had in mind because the record shows

that defendant’s schizophrenia was, at the least, “the pre-

dominant driver”8 of his behaviors. According to defendant,

because there was no “expert evidence or testimony at trial

attributing defendant’s required lack of substantial capacity

to anything other than schizophrenia—or at a minimum, to

schizophrenia as ‘the predominant driver of his behaviors’ ”

(quoting trial testimony of Dr. Choi), the record compels the

conclusion that defendant experienced the requisite inca-

pacity “as a result of mental disease or defect.”

The state, on the other hand, urges an “indepen-

dent sufficiency” standard of causation.9 According to the

state, that standard is suggested by the legislature’s use of

the term “as a result of” instead of “cause,” and it is also

necessary to give effect to the policy-based limitation the

legislature intended in excluding personality disorders from

the term “mental disease or defect.” We agree with the state.

Again, the GEI defense provides:

“(1) A person is guilty except for insanity if, as a result

of mental disease or defect at the time of engaging in crimi-

nal conduct, the person lacks substantial capacity either to

appreciate the criminality of the conduct or to conform the

conduct to the requirements of law.

“(2) As used in chapter 743, Oregon Laws 1971, the

terms ‘mental disease or defect’ do not include an abnor-

mality manifested only by repeated criminal or otherwise

antisocial conduct, nor do they include any abnormality

constituting solely a personality disorder.”

7

Because the parties’ statutory construction arguments below and in Meiser I

focused on the “sole cause” question—and not the degree of causal contribution

required from the qualifying mental disease or defect—we requested, and the

parties submitted, supplemental briefing on that issue.

8

The “predominant driver” measure appears to come from the testimony of

Dr. Choi, one of defendant’s expert witnesses, rather than any legal source.

9

The state also argues that we need not decide the causal standard question

posed by the Supreme Court because, in the state’s view, the record permitted a

finding that defendant’s schizophrenia played no causal role in his alleged inca-

pacity, and we have already held as much in Meiser I. Like the Supreme Court,

we do not understand Meiser I “as announcing [that] alternative holding.” See

Meiser II, 369 Or at 354 n 5 (internal quotation marks omitted).

680 State v. Meiser

ORS 161.295 (emphasis added). The statute thus requires

that “three elements must exist ‘at the time of engaging in

criminal conduct’: ‘mental disease or defect’; lack of ‘sub-

stantial capacity either to appreciate the criminality of the

conduct or to conform the conduct to the requirements of

law’; and a causal link between the two.” Meiser II, 369 Or at

354 (quoting ORS 161.295(1)). The issue before us presents

a question as to the third element, specifically, the degree of

causation required to establish the necessary “causal link”

between defendant’s schizophrenia—his mental disease or

defect—and his asserted lack of substantial capacity.

As a starting point, we know from Meiser II that

defendant’s schizophrenia need not be the “sole” cause—

that “as a result of mental disease or defect” as used in ORS

161.295(1) does not mean “solely ‘as a result of mental disease

or defect.’ ” 369 Or at 359 (emphasis in original); see also id. at

355 (“[T]he legislature did not intend to require proof that

a personality disorder played no role in bringing about the

requisite lack of capacity[.]”); id. at 359 (in amending ORS

161.295(2) to exclude personality disorders, the legislature

intended “that a person who has ‘a personality disorder plus

a psychosis * * * may still qualify’ ” for the defense (quoting

Tape Recording, House Committee on Judiciary, HB 2075,

May 13, 1983, Tape 324, Side A (statement of Jeffrey Rogers)

(ellipses in Meiser II)). Given that holding in Meiser II—and

the court’s framing of the question before us on remand—we

understand the court to suggest that, although the legisla-

ture did not intend that a defendant be required to prove the

absence of a personality disorder as a potential contributing

cause of his lack of substantial capacity, it may nonetheless

have intended proof that the qualifying mental disease or

defect was sufficient by itself to bring about the incapacity.

Next, we reject defendant’s suggestion that “as a

result of” means that the defense is available if the quali-

fying mental disease or defect is simply “one” cause of the

defendant’s incapacity. If we read ORS 161.295(1) to require

only that defendant prove that his mental disease was one

cause of his incapacity—no matter how remote or insignifi-

cant a cause it might have been—that reading would effec-

tively nullify the exclusions set out in ORS 161.295(2).

Cite as 323 Or App 674 (2023) 681

The word “cause” when used in a criminal statute

generally means “cause-in-fact.” State v. Turnidge (S059155),

359 Or 364, 481, 374 P3d 853 (2016), cert den, ___ US ___,

137 S Ct 665 (2017). And while the word “cause” does not

appear in ORS 161.295, it is worth noting that the Supreme

Court in Turnidge discussed the concept of causation in the

context of criminal statutes that “attach[ ] liability or respon-

sibility for conduct that causes a result,” and not in the con-

text of criminal statutes that permit defendants to avoid

responsibility for conduct that causes a result. Id. (emphasis

added). Interpreting ORS 161.295 to make the GEI defense

available to defendants when they can establish that a men-

tal disease or defect played some role—or any role—in their

capacity to appreciate the criminality of their conduct or to

conform their conduct to the law does not hold up under the

statutory construction framework established by State v.

Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).10

Here, as the state points out, the legislature used

the phrase “as a result of” in ORS 161.205(1), rather than the

word “cause,” which has an established meaning in Oregon

criminal law. See Turnidge (S059155), 359 Or at 470 (“To say

that a person ‘caused’ harm to another expresses, at least for

most purposes in the law, the idea that, ‘but for’ a person’s

act or conduct, the harm would not have happened[.]”); id. at

480-81 (legislature intended phrase “caus[es] the death of

another” in criminal homicide statute to mean only cause-

in-fact and not to also encompass the concepts of proximate

or legal causation). “Ordinarily, when the legislature uses

different terms, we assume that the legislature intends

those terms to have different meanings. That assumption is

particularly warranted when * * * the terms appear together

in the same statutory scheme and give rise to different legal

consequences.”11 See Norwood v. Premo, 287 Or App 443,

10

In construing a statute, we examine the text of the statute in context,

considering any useful legislative history, and, if necessary, applying maxims of

statutory construction. Id. “[T]he text and context of a statute are the best indi-

cations of the legislature’s intent.” State v. Stout, 362 Or 758, 769, 415 P3d 567

(2018) (internal quotation marks omitted).

11

However, even assuming that the legislature intended “as the result of” in

ORS 161.295(1) to carry the same meaning as the word “causes,” notwithstand-

ing its use of different terms, see generally Burrage v. United States, 571 US 204,

213-14, 134 S Ct 881, 187 L Ed 2d 715 (2014) (noting state court cases that assign

682 State v. Meiser

451, 403 P3d 502, rev den, 362 Or 300 (2017) (internal cita-

tion omitted).

The phrase “as a result of” is not defined for pur-

poses of ORS 161.295(1). We therefore look to its “plain,

natural, and ordinary meaning.” PGE v. Bureau of Labor

and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). As the

Supreme Court noted in Meiser II, the noun “result,” as rele-

vant here, means “ ‘something that results as a consequence,

effect, issue, or conclusion.’ ” 369 Or at 360 (quoting Webster’s

Third New Int’l Dictionary 1937 (unabridged ed 2002)).12

That definition references the verb form of the same word,

which means “to proceed, spring, or arise as a consequence,

effect, or conclusion.” Id. The preposition “of” here is “used

as a function word to indicate the cause, motive, or reason

by which a person or thing is actuated or impelled.” Id. at

1565.

Incorporating those definitions to this context, “as a

result of” in ordinary usage suggests that the mental disease

or defect must be the reason for defendant’s lack of substan-

tial capacity or, stated in the reverse, that defendant’s lack

of substantial capacity must come about as a consequence,

effect, issue, or conclusion of the mental disease or defect.

Examining the plain meaning of those words, in turn, could

logically lead to the conclusion that the mental disease or

defect must be sufficient, on its own, to bring about the lack

of capacity. See id. at 1891 (“reason” means “a sufficient

ground of explanation or of logical defense; esp : a general

principle, law, or warranted presumption that supports a

conclusion, explains a fact, or validates a course of conduct”);

id. at 482 (defining “consequence” to mean “something that

but-for causation to similar phrases in criminal statutes such as “results in,”

“because of,” and “as a result of”), we still would conclude that it did not intend

a strict cause-in-fact view of causation to apply to the GEI defense in question.

That is so because, as discussed below, see 323 Or App at 684-85, the legislature

in ORS 161.295(2) expressly imposed policy-based limitations on the availability

of the defense. See Turnidge (S059155), 359 Or at 471 (explaining that legal or

proximate cause, in contrast to actual cause, or cause in fact, “expresses a pol-

icy judgment as to whether conduct that factually caused harm should result in

liability or responsibility” (emphasis in original)). In other words, in enacting

subsection (2), the legislature significantly narrowed the meaning of “as a result

of” and thus the causation analysis to be applied under subsection (1).

12

The court was making the point there that, “[i]n ordinary usage, the term

‘result’ is not limited to the concept of sole causation.” Meiser II, 369 Or at 359-60.

Cite as 323 Or App 674 (2023) 683

is produced by a cause or follows from a form of necessary

connection or from a set of conditions : a natural or nec-

essary result”); id. at 724 (“effect” means “power to bring

about a result : operative force : influence”); id. at 1201 (the

noun “issue,” as relevant, means “final outcome : result,

consequence”); id. at 471 (“conclusion” in logic means “the

necessary consequence of two or more related propositions

taken as premises”).

Of course, we do not read words in a vacuum. We

examine them in context. See State v. Cloutier, 351 Or 68,

96, 261 P3d 1234 (2011) (“Dictionaries, after all, do not tell

us what words mean, only what words can mean, depend-

ing on their context and the particular manner in which

they are used.” (Emphasis in original.)); State v. Corcilius,

294 Or App 20, 23, 430 P3d 169 (2018) (“Thus, when the

dispute centers on the meaning of a particular word or

words, a dictionary definition—although providing some

evidence of meaning—should not be relied on to resolve a

dispute about plain meaning without critically examining

how the definition fits into the context of the statute itself.”

(Internal quotation marks and brackets omitted.)). In this

case, that exercise reinforces our understanding that the

legislature intended the phrase “as a result of” to mean

that the GEI defense would be available only if the quali-

fying mental disease or defect, standing alone, was suffi-

cient, at the time of the criminal conduct, to bring about the

incapacity.

The pertinent causation test—“as a result of men-

tal disease or defect at the time of engaging in criminal

conduct”—has been in existence from the time the original

insanity defense statute was enacted as part of the Oregon

Criminal Code of 1971. Meiser II, 369 Or at 356 (citing Or

Laws 1971, ch 743, § 36). As the Supreme Court observed in

Tharp v. PSRB, 338 Or 413, 421, 110 P3d 103 (2005),

“[t]he 1971 law expressed, in a coherent sequence of specific

provisions, the policy that a person is ‘not responsible’ for

criminal conduct if the person engages in criminal conduct

but, because of a mental disease or defect, lacks the capac-

ity to appreciate the criminality of the conduct or to con-

form the conduct to the requirements of law.”

684 State v. Meiser

Id. (emphasis added). The commentary to the proposed

Oregon Criminal Code explains that subsection (1) of

the proposed statute was based on section 4.01(1) of the

Model Penal Code, in part, “a modernized rendition” of the

M’Naughten rule. Commentary to Criminal Law Revision

Commission Proposed Oregon Criminal Code, Final Draft

and Report § 36, 34 (July 1970). That rule provides, in its

“classic form,” that “ ‘[i]t must be clearly proved that at the

time of committing the act, the party accused was laboring

under such a defect of reason, from disease of the mind, as

not to know the nature and quality of the act he was doing,

or as not to know that what he was doing was wrong.’ 8 Eng

Rep 718 (1843).” Id.

The legislature did not define the terms “mental

disease or defect,” except to state what is not included. See

ORS 161.295(2); Beiswenger v. PSRB, 192 Or App 38, 41,

84 P3d 180, rev dismissed, 337 Or 669 (2004). Originally,

only “an abnormality manifested only by repeated criminal

or otherwise antisocial conduct” was excluded from mental

disease or defect. Or Laws 1971, ch 743, § 36. But, in 1983,

the legislature amended the statute to also exclude “any

abnormality constituting solely a personality disorder.” Or

Laws 1983, ch 800, § 1. See Meiser II, 369 Or at 356 (rely-

ing on legislative history of both 1971 and 1983 enactments

to determine meaning of “mental disease or defect” in ORS

161.295(1); noting that the court may consider later amend-

ments that were intended by the legislature to modify or

otherwise alter the meaning of the original terms of the

statute).

The legislative history of the 1983 amendments has

been recounted at length in previous cases, and we do not

repeat that here. See Meiser II, 369 Or at 357-61; Tharp,

338 Or at 426-30; Beiswenger, 192 Or App at 48-51. For our

purposes, it is enough to acknowledge that the oft-repeated

history is replete with references to the legislature’s intent

to narrow the availability of the GEI defense. See, e.g.,

Meiser II, 369 Or at 360 (“That exclusion [for personality

disorders]—like the original exclusion—specifies certain

mental conditions that are not included within the broader

terms ‘mental disease or defect,’ and in doing so, narrows

access to the defense set out in subsection (1).”); Beiswenger,

Cite as 323 Or App 674 (2023) 685

192 Or App at 52 (“Legislators repeatedly expressed concern

that criminal defendants not be permitted to avoid crim-

inal responsibility and incarceration merely by asserting

that they suffered from some ‘mental disease or defect,’ as

broadly defined.”); id. (“[B]y narrowly defining ‘mental dis-

ease or defect,’ the legislature intended to make the insan-

ity defense less broadly available to criminal defendants.”

(Citing, e.g., House Floor Debate, HB 2075, June 16, 1983,

Reel 19, Track I (statement of Rep Peter Courtney).)). As

then-Representative Courtney explained at the first hear-

ing on the bill in the Senate, the amendment “ ‘would remove

personality disorders as a category that could be relied on

for use of the insanity plea.’ ” Beiswenger, 192 Or App at 50

(quoting Tape Recording, Senate Committee on Judiciary,

HB 2075, June 29, 1983, Tape 234, Side A (statement of Rep

Peter Courtney (emphasis added))).

Although it does not speak directly to the question

before us, we glean from that history that the legislature

intended that a qualifying, “mental disease or defect” be the

basis—without regard to any excluded condition that the

defendant might also have—by which a person may avoid

criminal responsibility. The mental disease or defect must,

therefore, be sufficient—on its own—to bring about the req-

uisite incapacity. To interpret the statute otherwise would

make it possible for a defendant who has both a mental dis-

ease and a personality disorder, where the mental disease is

not itself sufficient to cause the requisite incapacity, to avoid

criminal liability on the basis of the personality disorder,

in direct conflict with ORS 161.295(2) and the legislature’s

express intention.

Based on the text, context, and legislative history of

the GEI defense, we conclude that the legislature intended

the required causal link between a defendant’s “mental

disease or defect” and the defendant’s “lack of substantial

capacity” reflected in ORS 161.295 to be one of “independent

sufficiency.”

We next must determine whether—applying that

standard—the record reflects that defendant established

the causation element of his defense as a matter of law. That

is, viewing the evidence in the light most favorable to the

686 State v. Meiser

state, does the record compel a finding that, when he killed

FH, defendant’s schizophrenia was sufficient, by itself, to

bring about the requisite lack of substantial capacity either

to appreciate the criminality of that conduct or to conform

his conduct to the law? See Meiser I, 308 Or App at 572 (set-

ting out that standard of review); id. at 578 (“defendant is

required to show that the evidence was so compelling that

no rational factfinder could have determined that defendant

failed to establish the affirmative defense of GEI” (emphasis

in original)); Peters v. Belleque, 241 Or App 701, 712, 250

P3d 456, rev den, 350 Or 571 (2011) (to prevail as a mat-

ter of law on an affirmative defense, the evidence, viewed

in the light most favorable to the state, “must permit only

one reasonable conclusion—that [the defendant] established

each element of the defense”). We conclude that it does

not.

As has been recounted previously, at trial, defendant

offered the testimony of four mental health professionals—

“a psychologist and three psychiatrists, all of whom opined

that defendant was suffering from schizophrenia but rec-

ognized that he had a co-occurring diagnosis of antiso-

cial personality disorder.”13 Meiser II, 369 Or at 351. The

experts explained that schizophrenia is typically evidenced

by hallucinations, delusions, and a disordered thought pro-

cess, whereas antisocial personality disorder is character-

ized by a disregard for the rights of others “manifested in

various ways, by repeated acts of aggression, by repeated

acts of criminality, where you’re breaking the law, by con-

sistent irresponsibility, not being able to hold a job and so

forth.”

In arguing that no reasonable factfinder could find

other than that he proved the causation element of his GEI

defense to the murder of FH—viz., that he experienced a

qualifying incapacity “as a result of” his schizophrenia—

defendant relies on the testimony of psychiatrist Dr. Choi

and psychologist Dr. Beaver. Both experts testified that

defendant was experiencing command-auditory hallucina-

tions, a hallmark of schizophrenia, on the day of the murder.

In opining that defendant lacked the capacity to conform his

13

The state did not offer any expert testimony.

Cite as 323 Or App 674 (2023) 687

conduct to the requirements of the law, Dr. Beaver testified

that, at the time of the murder, defendant was “floridly psy-

chotic.” He explained:

“Part of that psychotic process was not only his overall

impaired ability to reason, perceive the world accurately,

but was a combination of, one, this driving force that was

the motivator for him, that he had to—to engage in certain

behaviors in order to save his children and his wife.

“And, two, that he was[,] related to that, being com-

manded to do certain things and that to resist would also

further endanger his children and wife and that he felt

there was no other choice, since his first priority was to

protect them.”

When asked whether defendant would have committed the

crimes if not for his active psychosis, Beaver responded, “I

don’t believe so.” He further testified that, in his opinion,

defendant’s conduct was not a result of antisocial personal-

ity disorder rather than schizophrenia.

Dr. Choi similarly testified to his opinion that

defendant lacked substantial capacity to conform his con-

duct to the requirements of the law. In Choi’s opinion,

before, during, and after the murder, defendant was “highly

psychotic,” and, without the psychosis, defendant would not

have committed the crimes. In his view, defendant’s com-

mand auditory hallucinations “were influencing his behav-

iors” and “giving him a push.” Choi said that defendant was

“highly agitated and * * * much of that agitation had to do

with this psychotic, paranoid process he was under.”

The record also reflects that defendant was suf-

fering from hallucinations and delusions at the time of his

crimes—including that he had been “deleted” from society;

that he was being “systematically persecuted by * * * a large

portion of American society,” as well as the police, who would

only protect people of a certain class; that he needed a condo

to get a “toehold into society” as a property owner so that

police would protect him and his family; that his daughter

would be turned into a cannibal by the voices he heard; and

that his son was being poisoned and would also be harmed

by the entities represented by the voices.

688 State v. Meiser

That evidence would certainly permit a finding that,

at the time he engaged in the murder of FH, defendant’s

asserted lack of substantial capacity either to appreciate the

criminality of his acts or to conform his conduct to the law

was “the result of” his schizophrenia under the independent

sufficiency measure described above—that is, without the

need to take into account his co-occurring personality dis-

order. However, that is not the only finding that could rea-

sonably be derived from this record. Based on the evidence

described below, a reasonable factfinder could instead deter-

mine that, in the absence of his active antisocial personality

disorder, defendant would not be able to establish the req-

uisite incapacity at the time of the murder. In other words,

that his schizophrenia, standing alone, was not sufficient to

cause defendant’s asserted lack of capacity to appreciate the

criminality of murdering FH or to refrain from doing so.

Choi testified that “most people with schizophre-

nia are not violent,” and that the command auditory hal-

lucinations defendant experienced “weren’t definitive and

overwhelmingly powerful,” but “were present to a moder-

ate degree.” Both Choi and Beaver testified that defendant

was able to resist or ignore the hallucinations at times, and

there was evidence that defendant could put parameters

around them—for example, he stated that he would have

left if there were children in the home. Defendant’s objective

when he entered the couple’s home was to force an affluent

person to wire transfer him $40,000 for a down payment

on a condo so that he could get that “toehold into society”

and protect his family. He repeatedly stated that he did not

intend to hurt anyone during the robbery.

The moments surrounding the murder are signif-

icant, given that defendant must establish the requisite

causal connection “at the time of engaging in [the] criminal

conduct.” ORS 161.295(1). Defendant repeatedly said that,

when the couple ran from the house screaming, he “pan-

icked.” And, as we described in Meiser I, when FH looked up

at him after falling into the bushes,

“defendant ‘knew that * * * [he] couldn’t get [FH] to respond

to [him] and decided that this was going to be the per-

son who [he] victimized in return for [his] victimization.’

Cite as 323 Or App 674 (2023) 689

Defendant explained that he ‘just lashed out’ and thought,

‘I have been put through too much’ and ‘I have had enough,’

as he struck FH four times with the machete.”

308 Or App at 575 (ellipses and brackets in original). A

reasonable trier of fact could conclude that, at that point,

defendant was no longer motivated by his delusions about

the need to protect his family from harm, but by anger and

revenge against an affluent member of an older generation

for his economic position—in other words, that it was his

antisocial personality disorder that was affecting his capac-

ity to refrain from killing FH.

Indeed, with respect to defendant “lashing out,”

Dr. Choi testified that “the psychosis perhaps drove him to

that point. But another interpretation could be he just—he

was angry and he lashed out? * * * [Y]eah, I think both can

be true.” Choi acknowledged that defendant had reported

that “he was very angry” and “that anger was part of his

motivation for the acts that he did.” Choi opined, “[T]here’s

a good argument to be made that the anger [defendant] was

feeling might partially have been just a normal response to

a situation, but very reasonably could have been driven by

delusions.” When asked directly whether defendant’s behav-

ior, “before, during and after the homicide of [FH],” was

“driven by antisocial personality disorder or by schizophre-

nia, by delusions and hallucinations,” Choi stated that “both

were active.” He acknowledged that defendant “did express

anger,” that he “expressed things that would be consistent

with antisocial motivations,” but, in Choi’s opinion, the psy-

chosis “was more the predominant driver of [defendant’s]

behaviors.” He concluded his testimony stating, “[W]hat I

can confidently say is that [defendant] had a whole heck of a

lot of delusions that played a major role in the acts he com-

mitted, both in the attempt to rob [FH] and ultimately in

the homicide that occurred.”

However, even accepting Choi’s opinion that defen-

dant’s schizophrenia “played a major role in” and “was more

the predominant driver of” defendant’s criminal conduct in

killing FH—and that, if not for that psychosis, defendant

would not have committed the act—a reasonable trier of fact

would not be required to find that defendant’s schizophrenia

690 State v. Meiser

was sufficient—independent of his antisocial personality

disorder—to bring about his lack of substantial capacity

at the time of the act. Rather, a reasonable person could

determine, based on Choi’s testimony, together with all the

other evidence, that defendant did not establish, by a pre-

ponderance of the evidence, that his schizophrenia, by itself,

brought about his asserted lack of substantial capacity to

appreciate the criminality of killing FH or to conform his

conduct to the law by not doing so. In other words, a fact-

finder could find that defendant’s lack of capacity at the time

of the homicide was brought about by his active antisocial

personality disorder—whose characteristics include “anger,

violence, repeated criminality, impulsivity, and a reckless

disregard for the safety of others,” Meiser I, 308 Or App at

584, or, at the least that, in the absence of the personal-

ity disorder, defendant’s schizophrenia, by itself, would not

have led to his incapacity.

To be found guilty except for insanity under ORS

161.295, a defendant must prove that his mental disease

or defect was sufficient by itself to bring about his lack

of capacity to appreciate the criminality of his conduct or

to conform his conduct to the law at the time he engaged

in that conduct. The fact that a defendant also has a per-

sonality disorder does not foreclose application of the GEI

defense so long as the qualifying mental disease or defect

is sufficient by itself to bring about defendant’s substantial

lack of capacity. Applying that standard, on this record, the

trial court, as factfinder, was not compelled to conclude that

defendant’s lack of capacity was brought about by his schizo-

phrenia. The evidence supported a finding that defendant’s

schizophrenia was not sufficient by itself to have resulted

in the requisite incapacity. The trial court did not err, as a

matter of law, in rejecting the defense.14 We therefore affirm.

Affirmed.

14

Given that conclusion, we need not address the remaining questions before

us on remand—specifically, whether the record required a finding that defendant

lacked substantial capacity either to appreciate the criminality of his act or to

conform his conduct to the requirements of law.