State v. Howard

696

Argued and submitted April 29, 2022; convictions on Counts 1 and 2 reversed

and remanded for entry of judgment of conviction for one count of second-degree

abuse of corpse, remanded for resentencing, otherwise affirmed May 3, petition

for review denied September 14, 2023 (371 Or 333)

STATE OF OREGON,

Plaintiff-Respondent,

v.

CLAYTON LAMONT HOWARD,

aka Clayton Howard,

Defendant-Appellant.

Multnomah County Circuit Court

19CR26119; A173135

529 P3d 247

Defendant was convicted of two counts of second-degree abuse of corpse, ORS

166.085, after his girlfriend died from an accidental drug overdose and defendant

concealed her body with clothes, storage totes, and part of a mattress. Defendant

continued to use the bedroom where the body was located, including having sex

with another woman on the bed. On appeal, defendant argues that the trial

court erred in four regards: (1) denying his mid-trial motion to dismiss based on

ORS 166.085 being unconstitutionally vague as applied; (2) refusing to give the

witness-false-in-part jury instruction; (3) instructing the jury that it could return

nonunanimous guilty verdicts; and (4) not merging the guilty verdicts on the two

counts of second-degree abuse of corpse. Held: The court did not err in denying

defendant’s motion to dismiss. Properly construed, ORS 166.085 provided a rea-

sonable degree of certainty and fair notice as to what conduct was prohibited,

and it was not unconstitutionally vague as applied to defendant’s conduct. To the

extent that a misconstruction of ORS 166.085 at trial might have led to defen-

dant being convicted for conduct that was not actually prohibited, that issue had

to be addressed through a motion for judgment of acquittal or jury instructions;

it did not make the statute unconstitutionally vague. As for the alleged instruc-

tional errors, the court did not err in refusing to give the witness-false-in-part

instruction, and the erroneous nonunanimity instruction was harmless because

both verdicts were unanimous. Finally, as to merger, the state conceded that

the guilty verdicts should have merged, and the Court of Appeals accepted that

concession as well taken.

Convictions on Counts 1 and 2 reversed and remanded for entry of judgment

of conviction for one count of second-degree abuse of corpse; remanded for resen-

tencing; otherwise affirmed.

Thomas M. Ryan, Judge.

Laura A. Frikert, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Cite as 325 Or App 696 (2023) 697

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Susan G. Howe, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.*

AOYAGI, P. J.

Convictions on Counts 1 and 2 reversed and remanded

for entry of judgment of conviction for one count of second-

degree abuse of corpse; remanded for resentencing; other-

wise affirmed.

______________

* Jacquot, J., vice James, J. pro tempore.

698 State v. Howard

AOYAGI, P. J.

Defendant’s girlfriend, N, died of an accidental drug

overdose in the bedroom that she shared with defendant. Upon

finding N dead, defendant concealed her body with clothes,

storage totes, and part of the mattress. Defendant contin-

ued to use the bedroom, including having sex with another

woman on the bed. N’s family members eventually confronted

defendant at the apartment, which led to the discovery of N’s

body. For concealing the body (Count 1) and for having sex

on the bed (Count 2), defendant was convicted of two counts

of second-degree abuse of corpse, ORS 166.085. On appeal,

he challenges four rulings by the trial court: (1) denial of his

mid-trial motion to dismiss Counts 1 and 2 based on ORS

166.085 being unconstitutionally vague as applied to him;

(2) refusal to give the witness-false-in-part jury instruction;

(3) instructing the jury that it could return nonunanimous

guilty verdicts; and (4) not merging the verdicts on Counts

1 and 2. As explained below, we reverse and remand for the

trial court to merge the guilty verdicts on Counts 1 and 2 and

resentence defendant, and we otherwise affirm.

I. FACTS1

In March 2019, N died of an accidental drug over-

dose in the bedroom of her apartment. At the time of her

death, N was dating defendant, and he was living in the

apartment. Another woman, S, was also staying there tem-

porarily. Defendant became sexually involved with S before

N’s death. One morning, defendant discovered that N had

died. Her body was on the bedroom floor between the bed

1

The law is surprisingly unclear regarding the proper vehicle to raise an

as-applied constitutional challenge. See State v. Worthington, 251 Or App 110,

116-17 & n 3, 282 P3d 24 (2012) (explaining that an as-applied constitutional

challenge cannot be raised by a demurrer or a motion in arrest of judgment if

the defendant is relying on facts extrinsic to the indictment, and suggesting that

a motion for judgment of acquittal or proposed jury instructions might be the

proper vehicle). In part for that reason, the law is also unclear as to which set of

“facts” should be used. Given the nature of an as-applied challenge, it seems that

some mechanism should exist by which the defendant can argue that a statute

is unconstitutionally vague as applied to the actual conduct found by the jury.

We need not explore those issues in this case, however, because defendant moved

to dismiss at the close of the state’s case, the trial court viewed the evidence in

the light most favorable to the state in ruling on the motion, and the parties on

appeal agree with that approach. We therefore state the facts in the light most

favorable to the state.

Cite as 325 Or App 696 (2023) 699

and the wall. There is no contention that defendant played

any role in N’s death or that he moved her body. Defendant

concealed N’s body, however, to delay the discovery of her

death. He piled a large quantity of clothing on top of and

around the body and placed four empty storage totes upside

down on top of the clothing. He then rotated the bed’s queen-

sized mattress 90 degrees relative to the box spring, so that

one end was lying atop the storage totes and somewhat

raised.

When N’s family was unable to reach her for two

days, a group of relatives and friends came to the apartment

to confront defendant as to N’s whereabouts. That led to the

police searching the apartment and finding N’s body. The

police had to move the mattress, the storage totes, and the

clothing to find N’s body.

During a police interview, defendant admitted that

he found N dead and concealed her body. He also admitted

to having sex with S on the bed after N’s death.

Defendant was charged with two counts of second-

degree abuse of corpse, ORS 166.085 (Counts 1 and 2). He

was also charged with identity theft (Count 3) and attempted

second-degree theft (Count 4), based on factual allegations

that are not relevant to this appeal.

The charges were tried to a jury. Defendant appeared

pro se. At the close of the state’s evidence, three things hap-

pened, based on motions made by defendant. First, the state

was required to elect on Counts 1 and 2. It elected that

Count 1 was based on defendant violating ORS 166.085(1)(a)

by covering N’s body with clothing, storage totes, and a mat-

tress, and it elected that Count 2 was based on defendant

violating ORS 166.085(1)(a) by having sex with S on the mat-

tress. See ORS 166.085(1)(a) (“A person commits the crime

of abuse of corpse in the second degree if, except as other-

wise authorized by law, the person intentionally * * * [a]buses

a corpse[.]”). As to both counts, the state’s theory was that

defendant abused N’s corpse by treating it “in a manner not

recognized by generally accepted standards of the commu-

nity.” See ORS 166.085(3) (“ ‘[A]buse of corpse’ includes treat-

ment of a corpse by any person in a manner not recognized

by generally accepted standards of the community * * *.”).

700 State v. Howard

Second, defendant moved to dismiss Counts 1 and 2

on the ground that ORS 166.085 was unconstitutionally

vague as applied to him. The trial court expressed some con-

cern about the statute, describing it as a “close question” and

a “good motion.” However, it ultimately denied the motion,

concluding that the statute gave “adequate notice” and was

not unconstitutionally vague as applied to defendant. Third,

defendant moved for judgment of acquittal on all counts,

arguing that the state’s evidence was legally insufficient

for the jury to find him guilty. The trial court denied that

motion as to Counts 1, 2, and 3 and granted it as to Count 4.

The trial proceeded. At the close of all evidence,

the court instructed the jury in a manner consistent with

the state’s theory of the case. That included instructing the

jury, as to Counts 1 and 2: “Abuse of corpse includes treat-

ment of a corpse by any person in a manner not recognized

by generally accepted standards of the community.”2 The

court declined to give some instructions requested by defen-

dant, including the witness-false-in-part instruction and a

jury-unanimity instruction.

The jury found defendant guilty on Counts 1 and 2.

It found him not guilty on Count 3. Defendant requested

that the court merge the guilty verdicts on Counts 1 and 2

into a single conviction, which the court denied. Accordingly,

defendant was convicted of two counts of second-degree

abuse of corpse. Defendant appeals.

II. UNCONSTITUTIONAL VAGUENESS

In his first assignment of error, defendant argues

that the trial court erred by denying his motion to dismiss

Counts 1 and 2 on the ground that ORS 166.085 is unconsti-

tutionally vague as applied to him.

A. The Legal Standard for Unconstitutional Vagueness

Article I, section 21, of the Oregon Constitution

requires that criminal statutes “not be so vague as to per-

mit a judge or jury to exercise uncontrolled discretion in

2

Much of the discussion of jury instructions appears to have occurred off the

record. However, based on what is in the record, defendant did not object to the

“community standards” instruction.

Cite as 325 Or App 696 (2023) 701

punishing defendants, because this offends the principle

against ex post facto laws.” State v. Graves, 299 Or 189, 195,

700 P2d 244 (1985). Overly vague criminal laws also impli-

cate Article I, section 20, in that giving “unbridled discretion

to judges and jurors to decide what is prohibited in a given

case” necessarily “results in the unequal application of crim-

inal laws.” Id. “Some degree of ad hoc legislation by juries

in finding defendants not guilty may be unavoidable and

socially desirable to ease the edges of the criminal law, but

the free-wheeling power to legislate so as to find a defendant

guilty should not be institutionalized in a criminal statute.”

State v. Hodges, 254 Or 21, 28, 457 P2d 491 (1969). Although

a statute need not define an offense so precisely that a

person will automatically be able to determine in advance

that specific conduct is prohibited, “a reasonable degree

of certainty is required by Article I, sections 20 and 21.”

Graves, 299 Or at 195.

Under the Fourteenth Amendment to the United

States Constitution, a criminal statute that is written so

as to allow for arbitrary and discriminatory enforcement

and that impermissibly delegates “basic policy matters to

policemen, judges, and juries for resolution on an ad hoc

and subjective basis” violates due process. Grayned v. City of

Rockford, 408 US 104, 108-09, 92 S Ct 2294, 33 L Ed 2d 222

(1972). A criminal statute must provide “fair warning,” such

that a “person of ordinary intelligence [has] a reasonable

opportunity to know what is prohibited, so that he may act

accordingly.” Id. at 108.

Whether a statute is unconstitutionally vague is a

question of law. See State v. Illig-Renn, 341 Or 228, 238-39,

142 P3d 62 (2006). “It is well settled, under both the state

and federal constitutions, that, unless the exercise of First

Amendment liberties is impaired, vagueness challenges are

reviewed solely to determine whether application of the con-

tested statute to the defendant’s conduct violates the ‘void

for vagueness’ doctrine.” State v. Butterfield, 128 Or App 1,

7, 874 P2d 1339, rev den, 319 Or 625 (1994). That is, except

for First Amendment challenges, a defendant may not chal-

lenge a statute as unconstitutionally vague on its face, but

instead must challenge it as unconstitutionally vague as

702 State v. Howard

applied.3 Id.; see also State v. Albee, 118 Or App 212, 216,

847 P2d 858, rev den, 316 Or 528 (1993) (“Where the statute

at issue purports to regulate or proscribe First Amendment

rights, courts have allowed defendants to challenge the stat-

ute as vague and overbroad as it applies to others. However,

where, as here, First Amendment rights are not affected,

the defendant must show the statute is unconstitutional as

applied to him.” (Internal quotation marks and citations

omitted.)).

Thus, the question before us is whether ORS

166.085(1)(a) is unconstitutionally vague as applied to defen-

dant’s conduct. “We consider state constitutional claims

before considering federal constitutional claims.” State

v. Sanders, 343 Or 35, 39, 163 P3d 607 (2007). Under the

Oregon Constitution, defendant must “demonstrate that he

was unable to determine from a reading of [the challenged

statute] that his conduct was prohibited.” Butterfield, 128

Or App at 8 (emphasis in original). Under the federal consti-

tution, defendant must show that he did not have fair notice

that his conduct was prohibited, i.e., that a person of ordi-

nary intelligence would not have had a reasonable opportu-

nity to know that the conduct was prohibited, so as to allow

the person to act accordingly. Grayned, 408 US at 108.

The Oregon and federal standards are similar but

not identical, and the Supreme Court has suggested that

federal principles are sometimes improperly imported into

the Oregon constitutional analysis. State v. Speedis, 350 Or

424, 435, 256 P3d 1061 (2011). In practice, however, neither

party has suggested that one constitutional standard is more

3

“A facial challenge asserts that lawmakers violated the constitution when

they enacted the statute; an as-applied challenge asserts that executive officials

* * * violated the constitution when they enforced the statute.” State v. Carr, 215

Or App 306, 310 n 5, 170 P3d 563 (2007), rev den, 344 Or 109 (2008) (internal quo-

tation marks and brackets omitted). “For a statute to be facially unconstitutional,

it must be unconstitutional in all circumstances, i.e., there can be no reasonably

likely circumstances in which application of the statute would pass constitutional

muster.” State v. Sutherland, 329 Or 359, 365, 987 P2d 501 (1999). Of course, a

defendant making an as-applied challenge may make arguments that would also

apply to other people. The challenged statute must be unconstitutionally vague

as applied to the defendant, but there is no requirement that it is unconstitution-

ally vague only as applied to the defendant. Indeed, given the extremely limited

availability of facial challenges, such an approach would make the vaguest stat-

utes the most impervious to challenge.

Cite as 325 Or App 696 (2023) 703

rigorous than the other, or that one would lead to a different

result from the other, and we are not aware of any vague-

ness case in which a statute has been deemed to pass muster

under the Oregon Constitution but not the federal constitu-

tion. The Oregon and federal standards tend to lead to the

same result, even though framed somewhat differently.

B. Proper Statutory Construction of ORS 166.085(1)(a)

We now turn to the proper construction of ORS

166.085(1)(a)—the statute under which defendant was con-

victed—as relevant to evaluating the statute for vagueness.

There are two abuse-of-corpse statutes in Oregon.

Regarding first-degree abuse of corpse, ORS 166.087

provides:

“(1) A person commits the crime of abuse of corpse in

the first degree if the person:

“(a) Engages in sexual activity with a corpse or involv-

ing a corpse; or

“(b) Dismembers, mutilates, cuts or strikes a corpse.

“(2) Abuse of corpse in the first degree is a Class B

felony.”

Regarding second-degree abuse of corpse, ORS 166.085

provides:

“(1) A person commits the crime of abuse of corpse in

the second degree if, except as otherwise authorized by law,

the person intentionally:

“(a) Abuses a corpse; or

“(b) Disinters, removes or carries away a corpse.

“(2) Abuse of corpse in the second degree is a Class C

felony.

“(3) As used in this section and ORS 166.087, ‘abuse

of corpse’ includes treatment of a corpse by any person in

a manner not recognized by generally accepted standards

of the community or treatment by a professional person in

a manner not generally accepted as suitable practice by

other members of the profession, as may be defined by rules

applicable to the profession.”

(Emphasis added.)

704 State v. Howard

The prosecution theory in this case was that defen-

dant “abuse[d] a corpse” in violation of ORS 166.085(1)(a) by

treating N’s corpse “in a manner not recognized by generally

accepted standards of the community,” ORS 166.085(3). Both

in the trial court and in their opening, answering, and reply

briefs on appeal, the parties have treated ORS 166.085(3) as

defining “abuse” for purposes of ORS 166.085(1)(a), and all

of their arguments have been founded on that premise.

However, a close review of ORS chapter 166 reveals

that the parties and the trial court missed (or misunder-

stood) a significant aspect of the statutory scheme, which

led us to request supplemental briefing after this appeal was

argued. See Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997)

(recognizing our responsibility to correctly construe stat-

utes, including considering interpretations not offered by the

parties). Specifically, the verb “abuse” in ORS 166.085(1)(a)

is actually defined in a separate but related statute, ORS

166.075, that creates the crime of abuse of venerated objects.

ORS 166.075(2) provides:

“As used in this section and ORS 166.085, ‘abuse’ means

to deface, damage, defile or otherwise physically mistreat

in a manner likely to outrage public sensibilities.”

That statutory definition of “abuse” was never mentioned in

the trial court, but it is potentially relevant to whether the

statute is unconstitutionally vague.

What purpose does ORS 166.085(3) serve then, if

“abuse” is already statutorily defined? To answer that ques-

tion, we turn to the legislative history.

The legislature enacted both ORS 166.075 and

ORS 166.085 in 1971. Or Laws 1971, ch 743, §§ 224, 225.

ORS 166.075 provided that “[a] person commits the crime of

abuse of venerated objects if he intentionally abuses a public

monument or structure, a place of worship or burial, or the

national or state flag.” ORS 166.075(1) (1971), amended by Or

Laws 1995, ch 261, § 2. ORS 166.085(1) provided that a per-

son commits the crime of abuse of corpse if a person inten-

tionally (1) “[a]buses” a corpse; or (2) [d]isinters, removes,

or carries away a corpse. ORS 166.085(1) (1971), amended

by Or Laws 1985, ch 207, § 2; Or Laws 1993, ch 294, § 1.

Cite as 325 Or App 696 (2023) 705

The legislature adopted a single definition of “abuse” for

both statutes, which was placed in ORS 166.075(2) (1971):

“As used in this section and ORS 166.085, ‘abuse’ means to

deface, damage, defile or otherwise physically mistreat in a

manner likely to outrage public sensibilities.”

Fourteen years later, in 1985, the legislature passed

a bill to improve regulation of the death care industry. See

Testimony, Ways and Means Committee, SB 876-A, May 8,

1985 (statement of Sen John Brenneman) (Senate Bill (SB)

876 “deals with revisions in the regulations of cemeteries,

crematoriums and the disposition of human remains”). The

impetus for the bill was an incident in Lincoln City in which

a funeral director mishandled the remains of numerous peo-

ple, and ultimately pleaded guilty to dozens of misdemeanor

charges (including abuse of corpse), but served minimal jail

time. Id. (SB 876 “was introduced as a result of the tragedy

that occurred in Lincoln City on and after October 1984,

when former Lincoln City funeral director Dale Omsberg

was found to have 16 unembalmed and rotting bodies

stored in the garage at his Lincoln City mortuary”); see also

Exhibit D, Senate Committee on Human Resources, SB 876,

Apr 10, 1985 (explaining that with the increased penalty for

abuse of corpse and “new systems of checks and balances, a

person would have to think twice about attempting to com-

mit this crime in the future”).

As part of the 1985 bill, abuse of corpse was changed

from a Class A misdemeanor to a Class C felony. Or Laws

1985, ch 207, § 2. The legislature also added what is now

ORS 166.085(3). See ORS 166.085(3) (1985) (“As used in this

section, ‘abuse of corpse’ includes treatment of a corpse by

any person in a manner not recognized by generally accepted

standards of the community or treatment by a professional

person in a manner not generally accepted as suitable prac-

tice by other members of the profession, as may be defined

by rules applicable to the profession.”). At the same time,

it amended ORS 146.090. As amended, ORS 146.090(1)(h)

requires the state medical examiner to investigate any death

“[i]n which a human body apparently has been disposed of

in an offensive manner,” and ORS 146.900(2) defines “offen-

sive manner” to mean “a manner offensive to the generally

accepted standards of the community.”

706 State v. Howard

The Lincoln County district attorney was involved

in developing the new language in ORS 146.090 and ORS

166.085, and he indicated to a senator that if that language

had been part of ORS 166.085 earlier, he “could have pros-

ecuted to get a longer conviction” in the Omsberg case.

Tape Recording, Joint Ways and Means Subcommittee on

Human Resources, SB 876, May 14, 1985, Tape 306, Side A

(statement of Sen Hannon). It appears that the amend-

ments were intended to clarify the statutes to make pros-

ecution easier and to increase the penalties for violations,

rather than actually changing what was criminalized.4 See

Testimony, Ways and Means Committee, SB 876-A, May 8,

1985 (statement of Sen John Brenneman) (explaining that

“[t]he terms ‘offensive manner’ and ‘abuse of corpse’ have

been more clearly defined in the statutes which would have

been of assistance to the Lincoln County District Attorney

in his action against Mr. Omsberg” and that the goal was

to give the medical examiner the “necessary authority” to

investigate a situation like that in Lincoln City and that

district attorneys could prosecute in such circumstances).

Finally, in 1993, the legislature enacted ORS

166.087, creating the crime of first-degree abuse of corpse.

See Or Laws 1993, ch 294, § 2. The crime described in ORS

166.085 became second-degree abuse of corpse. Id. The leg-

islature amended ORS 166.085(3) to make it applicable to

both degrees of the crime: “As used in this section and ORS

166.087, ‘abuse of corpse’ includes * * *.” ORS 166.085(3)

(1993). The statutes have remained unchanged since the

1993 amendments.

Based on text, context, and legislative history, we

construe “abuses a corpse” in ORS 166.085(1)(a) to mean “to

deface, damage, defile or otherwise physically mistreat [a

4

Senator Hannon explained that, as to the new language now codified at

ORS 166.085(3), “if that language had been part of the statute, Mr. Omsberg

would’ve gotten more than 25 days in county jail, or whatever it was, courtesy

of the taxpayers, for all the damage and trauma and everything else that he

created.” Tape Recording, Joint Ways and Means Subcommittee on Human

Resources, SB 876, May 14, 1985, Tape 306, Side A (statement of Sen Hannon).

Although not discussed directly in the legislative history itself, the public

pleadings in the Omsberg case show that Omsberg demurred to the indictment

charging him with abuse of corpse, including arguing that his conduct was not

covered by ORS 166.085, which demurrer was unsuccessful.

Cite as 325 Or App 696 (2023) 707

corpse] in a manner likely to outrage public sensibilities.”

ORS 166.075(2) (definition of “abuse”). And we construe ORS

166.085(3) as a clarification applicable to all means of com-

mitting first- and second-degree abuse of corpse, including

but not limited to that in ORS 166.085(1)(a).

Two aspects of the text in context make particu-

larly clear that, when ORS 166.085(3) states what “ ‘abuse

of corpse’ includes[,]” it is referring to the crime of abuse of

corpse generally. See ORS 166.085(3) (“As used in this sec-

tion and ORS 166.087, ‘abuse of corpse’ includes treatment

of a corpse by any person in a manner not recognized by gen-

erally accepted standards of the community or treatment by

a professional person in a manner not generally accepted

as suitable practice by other members of the profession,

as may be defined by rules applicable to the profession.”).

First, there are quotation marks around “abuse of corpse,”

which is a noun phrase, and the only place that the noun

phrase “abuse of corpse” appears in ORS 166.085 or ORS

166.087 is in the name of the crime. ORS 166.085(1)(a) does

not use the noun phrase “abuse of corpse” but, rather, uses

a verb and object—“abuses a corpse”—and ORS 166.075(2)

already defines “abuse” as a verb. Second, and perhaps most

tellingly, ORS 166.085(3) applies to both first-degree (ORS

166.087) and second-degree (ORS 166.085) abuse of corpse,

which only makes sense if it is understood to clarify the

nature of the crime generally.

We disagree with defendant’s argument in his sup-

plemental brief that ORS 166.085(3) and ORS 166.075(2)

should be understood as alternative definitions of “abuse,”

either of which will support a conviction for second-degree

abuse of corpse. In defendant’s view, ORS 166.085(3) crim-

inalizes any intentional treatment of a corpse in a man-

ner not recognized by generally accepted standards of the

community, or not generally accepted as suitable practice

by other members of the profession in the case of profes-

sionals, essentially creating alternative means of commit-

ting second-degree abuse of corpse independent of those

described in ORS 166.085(1)(a) and (b). Given the some-

what unusual way in which ORS 166.085 is written, that

misconstruction is understandable. Indeed, the Uniform

Criminal Jury Instructions currently reflect a similar

708 State v. Howard

misconstruction.5 However, in our view, the text, context,

and legislative history do not support construing ORS

166.085(3) in that manner. Rather, for the reasons explained,

we understand ORS 166.085(3) as a clarification of each of

the existing means of committing first-degree and second-

degree abuse of corpse stated in ORS 166.085(1) and ORS

166.087(1).6

It might be useful to consider an example of a situa-

tion in which ORS 166.085(3) would have a clarifying effect.

Recall that ORS 166.085(3) was added to clarify the crime

of abuse of corpse in a way that would have been helpful to

the Lincoln County district attorney in 1984 when prose-

cuting a funeral director for mishandling human remains.

With that in mind, consider ORS 166.087(1)(b), under which

a person who “cuts” a corpse commits first-degree abuse of

corpse. ORS 166.085(3) clarifies that ORS 166.087(1) applies

to death care professionals who cut a corpse “in a manner

not generally accepted as suitable practice by other mem-

bers of the profession, as may be defined by rules applicable

to the profession.” That is a helpful clarification.

The remaining language of ORS 166.085(3), regard-

ing “treatment of a corpse by any person in a manner not

recognized by generally accepted standards of the commu-

nity,” is more enigmatic. It appears that the legislature may

have intended that language at least in part as a backstop

applicable to death care professionals when no professional

5

Currently, the uniform criminal jury instruction for first-degree abuse of

corpse is based solely on ORS 166.087, even though ORS 166.085(3) plainly states

that it applies to ORS 166.087. See UCrJI 2320 (2022). The uniform criminal jury

instruction for second-degree abuse of corpse is based on ORS 166.085 and ORS

166.075(2)—i.e., it correctly uses the definition of “abuse” in ORS 166.075(2) to

describe the means of committing the crime identified in ORS 166.085(1)(a)—but

it incorrectly treats ORS 166.085(3) as adding two alternative means of commit-

ting the crime, in addition to those stated in ORS 166.085(1)(a) and (b). See UCrJI

2320 (2022).

6

Our construction of the statute largely aligns with the state’s proposed con-

struction in its supplemental brief, with one exception. The state suggests that

the use of the word “treatment” in ORS 166.085(3) ties to the word “mistreat” in

the definition of “abuse” in ORS 166.075(2). It is possible that the 1985 legisla-

ture used intentionally similar language. However, ORS 166.085(3) has always

applied to both subsections of ORS 166.085(1), and since 1993 it has also applied

to both subsections of ORS 166.087(1). We understand ORS 166.085(3) to clarify

the application of all subsections of both ORS 166.085 and ORS 166.087, rather

than being uniquely tied to ORS 166.085(1)(a).

Cite as 325 Or App 696 (2023) 709

standards existed, although it obviously also applies to

nonprofessionals. Tape Recording, Joint Ways and Means

Subcommittee on Human Resources, SB 876, May 14, 1985,

Tape 306, Side A (discussion involving Sen Hannon). The

language appears to have been copied over from the con-

temporaneous amendment to ORS 146.900, which clarified

that the state medical examiner is required to investigate

a death where the body appears to have been “disposed of

in an offensive manner,” ORS 146.900(1)(h), i.e., “a manner

offensive to the generally accepted standards of the commu-

nity,” ORS 146.900(2).

We can only conclude that the “community stan-

dards” clause was intended to have a similar clarifying

effect as the “professional” clause, but applicable to every-

one. Consider again ORS 166.087(1)(b), under which a per-

son who “cuts” a corpse commits first-degree abuse of corpse.

ORS 166.085(3) clarifies that cutting a corpse violates ORS

166.087(1) if done “in a manner not recognized by generally

accepted standards of the community.” That might exclude,

for example, cutting the hair or nails of a corpse as part of a

death rite.

C. ORS 166.085(1)(a) as Applied to Defendant’s Conduct

We now turn to the ultimate question of whether

ORS 166.085 is unconstitutionally vague as applied to

defendant’s conduct. We are immediately faced with a

conundrum for which we have found no precedent in the

case law on constitutional vagueness challenges to crimi-

nal statutes: Defendant was convicted of violating ORS

166.085(1)(a) in a trial in which everyone—the parties, the

trial court, and the jury—misunderstood what the state

needed to prove for defendant to be found guilty. As a result,

defendant was convicted of second-degree abuse of corpse,

ORS 166.085(1)(a), based on his having treated N’s corpse

“in a manner not recognized by generally accepted stan-

dards of the community[,]” ORS 166.085(3), without the jury

ever being asked to find whether defendant “deface[d], dam-

age[d], defile[d] or otherwise physically mistreat[ed]” N’s

corpse “in a manner likely to outrage public sensibilities,”

ORS 166.075(2).

710 State v. Howard

In the state’s view, it does not matter what statutory

construction was used to convict defendant, because we can

and should consider only the correct statutory construction

to determine whether ORS 166.085 is unconstitutionally

vague. The persuasiveness of that argument is undermined,

however, by the fact that the state relies on case law involv-

ing facial challenges. See, e.g., State v. Ausmus, 336 Or 493,

498, 85 P3d 864 (2003); State v. Meyer, 120 Or App 319, 324,

852 P2d 879 (1993). For purposes of a facial challenge, the

application of the statute to a particular defendant is irrel-

evant, so the only possible construction that could matter is

the correct construction.

Defendant takes the opposite position from the

state. He argues that whether ORS 166.085(1) is unconsti-

tutionally vague as applied to him can and should be deter-

mined based on how it was actually applied to him, even if it

was misapplied. As with the state, however, defendant’s case

law does not really support his position, in that defendant

relies on cases involving facial challenges and limiting con-

structions. When an appellate court imposes a limiting con-

struction to save a statute that would otherwise be facially

unconstitutional, it makes sense that a conviction that was

based on the statute as written would be overturned and

a new trial required. See, e.g., Ashton v. Kentucky, 384 US

195, 198, 86 S Ct 1407, 16 L Ed 2d 469 (1966) (“[W]here an

accused is tried and convicted under a broad construction of

an Act which would make it unconstitutional, the conviction

cannot be sustained on appeal by a limiting construction

which eliminates the unconstitutional features of the Act, as

the trial took place under the unconstitutional construction

of the Act.”); Shuttlesworth v. City of Birmingham, 382 US

87, 91-92, 86 S Ct 211, 15 L Ed 2d 176 (1965) (narrowly con-

struing an ordinance so that it would not violate the First

Amendment, and reversing a conviction because it appeared

that the trial court “may have found the petitioner guilty

only by applying the literal—and—unconstitutional terms

of the ordinance”).

Here, however, we are not imposing a limiting con-

struction to save an otherwise facially unconstitutional stat-

ute. This is an as-applied challenge. Moreover, the definition

of “abuse” in ORS 166.075(2) has been part of the statutory

Cite as 325 Or App 696 (2023) 711

scheme for as long as abuse of corpse has been a crime, and

the relationship of ORS 166.085(3) to the rest of ORS 166.085

is a normal question of statutory construction. For whatever

reason, the state misconstrued the statute during the trial

court proceedings, and neither defendant nor the trial court

realized that it was a misconstruction. That is fundamen-

tally different from a trial court correctly applying a statute

as written and then an appellate court imposing a limiting

construction to save the statute from unconstitutionality.

We have been unable to find a single case from any

jurisdiction in a similar posture, nor have the parties cited

one. That leaves us little choice but to apply logic and fair-

ness as best we can to a most unusual situation. Ultimately,

we conclude that the appropriate course is for us to assess

whether, properly construed, ORS 166.085 is unconstitution-

ally vague as applied to defendant’s conduct. That approach

is consistent with the “notice” principle that underlies

vagueness determinations. When defendant engaged in

the conduct at issue, the actual statutory language is what

did or did not put him on notice as to whether his conduct

would constitute the crime of second-degree abuse of corpse.

How some individual prosecutor might read the statute at

some future date is irrelevant to whether, before defendant

acted, he would have been able to tell with a reasonable

degree of certainty from reading the statute whether the

conduct was prohibited, Butterfield, 128 Or App at 8 (Oregon

Constitution), and had a reasonable opportunity to know

what was prohibited so as to conform his conduct to the law,

Grayned, 408 US at 108 (federal constitution).

We therefore proceed to evaluate whether, prop-

erly construed, ORS 166.085 is unconstitutionally vague as

applied to defendant’s conduct.

1. Count 1

Count 1 was based on defendant having concealed

N’s body with clothes, empty storage totes, and part of a

mattress. It is debatable whether, correctly construed, ORS

166.085(1)(a) actually prohibits such conduct, i.e., whether

concealing a corpse with such items is a form of physical

mistreatment that meets the statutory definition of “abuse”

712 State v. Howard

in ORS 166.075(2). However, the fact that ORS 166.085

(1)(a) might not actually prohibit defendant’s conduct, under

a correct construction of the statute, is a separate question

from whether ORS 166.085(1)(a) is unconstitutionally vague

as to what it prohibits.

As statutorily defined in ORS 166.075(2), a person

“abuses” a corpse and thus violates ORS 166.085(1)(a) by

defacing, damaging, defiling, or otherwise physically mis-

treating a corpse in a manner likely to outrage public sen-

sibilities. To “deface, damage, defile or otherwise physically

mistreat” is a clear standard that readily withstands consti-

tutional scrutiny for vagueness. As for “in a manner likely

to outrage public sensibilities,”7 such a limiting phrase is

unlikely to create a constitutional problem when attached

to a clear phrase like “deface, damage, defile or otherwise

physically mistreat.” It is also comparable to other ascertain-

able standards that have survived constitutional vagueness

challenges. See State v. Chakerian, 325 Or 370, 383-84, 938

P2d 756 (1997) (rejecting vagueness challenge to a statute

that used the phrase “creates a grave risk of causing public

harm,” because the term “grave” created an ascertainable

standard, such that the statute did not delegate uncon-

trolled discretion to the jury); State v. Corpuz, 49 Or App

811, 818-19, 621 P2d 604 (1980) (rejecting vagueness chal-

lenge to statute that used the phrase “under circumstances

manifesting extreme indifference to the value of human

life,” because the statute was “not of the dragnet or catch-

all variety” and used a phrase within “ordinary powers of

comprehension,” such that it provided “a sufficient standard

for the determination of guilt by the jury”); see also, e.g.,

State v. Glover, 17 Ohio App 3d 256, 259, 479 NE 2d 901, 904

(1984) (concluding that Ohio statute that made it a crime for

a person to treat a human corpse “in a way that he knows

would outrage reasonable family sensibilities” or “in a way

7

The legislative history indicates that “likely to outrage public sensibil-

ities” means conduct “that shocks the sensibilities of surviving kin and the

public at large.” Commentary to Criminal Law Revision Commission Proposed

Oregon Criminal Code, Final Draft and Report § 225, 219 (July 1970); see State

v. Carpenter, 365 Or 488, 497 n 4, 446 P3d 1273 (2019) (“When evaluating stat-

utes developed by the Criminal Law Revision Commission, we look to both the

commentary and the discussions that preceded the adoption of the final draft as

legislative history for the resulting laws.”).

Cite as 325 Or App 696 (2023) 713

that would outrage reasonable community sensibilities” was

not unconstitutionally vague, and noting that “outrage” is a

commonly understood term).

Properly construed, ORS 166.085 and ORS 166.075(2)

together provide a “reasonable degree of certainty,” Graves,

299 Or at 195, and “fair notice,” Grayned, 408 US at 108,

as to what conduct is prohibited by ORS 166.085(1)(a), at

least as applied to defendant in this case. To the extent that

the conduct for which defendant was convicted on Count 1

might not actually violate ORS 166.085(1)(a), that is an issue

that needed to be resolved through a motion for judgment

of acquittal or proposed jury instructions. In other words,

if defendant was “wrongly” convicted on Count 1, it is not

because ORS 166.085(1)(a) itself is unconstitutionally vague

as applied to his conduct, but because the jury was misin-

structed based on a misconstruction of ORS 166.085(1)(a).

Ultimately, although the trial court’s reasoning for

denying defendant’s motion to dismiss Count 1 was incor-

rect, in that its constitutional vagueness analysis was based

on a misconstruction of the statute, the court did not err in

denying the motion, because ORS 166.075(1)(a) is not uncon-

stitutionally vague as to whether it prohibits the conduct at

issue in Count 1.

2. Count 2

We reach a similar conclusion on Count 2. Count 2

was based on defendant having sex with S on the bed while

part of the mattress overhung the area where N’s body lay.

It is possible that ORS 166.085(1)(a), correctly construed,

did not actually prohibit defendant’s conduct. The state did

not present any evidence that defendant’s conduct had any

physical effect on N’s corpse, let alone an effect that would

qualify as physical mistreatment. For example, there was

no evidence that defendant or S lay on the part of the mat-

tress that overhung the storage totes, or that the mattress

moved in any significant way during the unspecified sexual

activity. It is also undisputed that N’s body was cushioned

by many layers of clothing and the totes.

However, as with Count 1, the question before us

is not whether defendant’s conduct actually violated ORS

714 State v. Howard

166.085(1)(a), but whether ORS 166.085(1)(a) is unconstitu-

tionally vague as to whether it prohibited that conduct. It is

not.

When properly construed, ORS 166.085(1)(a) pro-

vides a reasonable degree of certainty and fair notice as

to whether defendant’s conduct is prohibited. It very well

may not be, but that is an issue that needed to be resolved

through a motion for judgment of acquittal or proposed jury

instructions. As with Count 1, if defendant was “wrongly”

convicted on Count 2, it is not because ORS 166.085(1)(a)

itself is unconstitutionally vague as applied to his conduct,

but because the jury was misinstructed based on a statu-

tory misconstruction. That is not an error that can be fixed

through a constitutional vagueness challenge, as it would

essentially require us to declare a nonexistent statute—ORS

166.085(1)(a) without ORS 166.075(2)—unconstitutionally

vague as applied.

As with Count 1, although the trial court’s reasoning

was incorrect, in that its constitutional vagueness analysis

was based on a misconstruction of the statute, the court did

not err in denying the motion as to Count 2, because ORS

166.085(1)(a) is not unconstitutionally vague as to whether

it prohibits the conduct at issue in Count 2.

III. WITNESS-FALSE-IN-PART INSTRUCTION

In his second assignment of error, defendant con-

tends that the trial court erred by denying his request for

the “witness false in part” instruction. ORS 10.095(3) pro-

vides that a jury is “to be instructed by the court on all

proper occasions * * * [t]hat a witness false in one part of the

testimony of the witness may be distrusted in others.” It is a

“proper occasion” to give the instruction when, viewing the

evidence in the light most favorable to the party request-

ing the instruction, the evidence is sufficient “for the jury to

decide that at least one witness consciously testified falsely”

concerning “a material issue.” State v. Payne, 366 Or 588,

607, 468 P3d 445 (2020). It is legal error for a trial court

to refuse to give “a timely requested and legally correct

witness-false-in-part statutory instruction.” Id. Such error

will not lead to reversal, however, if the error was harmless,

Cite as 325 Or App 696 (2023) 715

i.e., if it had little likelihood of affecting the verdict. Id. at

609.

Defendant argues that there was sufficient evi-

dence for the jury to find that two witnesses consciously tes-

tified falsely as to whether any family members assaulted

defendant in N’s apartment on the day that the police found

N’s body. One witness testified that she was not aware that

any assaults occurred while she was in the apartment. The

other witness testified she did not recall assaulting defen-

dant. Defendant views whether an assault occurred as a

“material” issue because his position at trial was that the

mattress got rotated over the body during N’s family mem-

bers’ assault on him, rather than his moving it intentionally

to conceal the body.

We conclude that any error in failing to give the

witness-false-in-part instruction was harmless. “As the

Supreme Court’s holding in Payne reflects, the principal

purpose of the witness-false-in-part instruction is to assist

the jury in assessing the credibility of a witness’s testimony

once it has found that the witness has perjured herself in

some other aspect of her testimony.” State v. Labossiere, 307

Or App 560, 569, 477 P3d 1 (2020) (emphasis in original).

“The instruction is not intended to assist the jury in deter-

mining whether a witness has testified falsely in the first

instance.” Id. Here, as in Labossiere, the portion of the wit-

nesses’ testimony that defendant claims that a jury could

have found to be consciously false is the same testimony that

he claims entitled him to the instruction. See id. at 568-69.

As such, even if defendant was entitled to the

instruction, there is little likelihood that not giving it was

prejudicial to him, given defendant’s theory as to how the

witnesses perjured themselves. See id. at 569-70 (“Even

if the jury in this case had determined that S’s testimony

about defendant’s use of a bat was false, defendant does not

identify any other jury findings that the witness-false-in-

part instruction could have informed.” (Emphasis in origi-

nal.)). Moreover, it is apparent from the verdict that the jury

rejected defendant’s trial testimony as to how the mattress

came to be rotated. That is an additional reason that any

error was harmless. See State v. Chemxananou, 319 Or App

716 State v. Howard

636, 639, 510 P3d 954, rev den, 370 Or 303 (2022) (“[T]he

jury necessarily concluded that the witness testimony was

not false in part. Because the witness-false-in-part instruc-

tion has no effect if the factfinder does not first conclude that

a witness testified falsely, the failure to give the instruction

was harmless.” (Emphasis in original.)).

Accordingly, we reject the second assignment of

error.

IV. JURY-UNANIMITY INSTRUCTION

In his third assignment of error, defendant contends

that the trial court erred by denying his request for a jury

instruction that a guilty verdict must be unanimous. The

state concedes the error but maintains that it was harmless;

we agree. Under the Sixth Amendment, a criminal defen-

dant may be convicted of a felony or other serious offense

only by unanimous verdict, so the denial of the instruction

was erroneous. See Ramos v. Louisiana, 590 US ___, 140

S Ct 1390, 1397, 206 L Ed 2d 583 (2020). However, defen-

dant was convicted by unanimous verdicts, as established

by a jury poll, so the instructional error was harmless. See

State v. Kincheloe, 367 Or 335, 338-39, 478 P3d 507 (2020),

cert den, ___ US ___, 141 S Ct 2837 (2021). The third assign-

ment of error therefore fails.

V. MERGER

In his fourth assignment of error, defendant chal-

lenges the trial court’s denial of his request to merge the

guilty verdicts on Counts 1 and 2.

Under ORS 161.067(3), repeated violations of the

same statutory provision against the same victim in a single

criminal episode are separately punishable only if they were

separated “by a sufficient pause in the defendant’s criminal

conduct to afford the defendant an opportunity to renounce

the criminal intent.” As the party asserting that defendant’s

conduct underlying Counts 1 and 2 was separately punish-

able under ORS 161.067(3), it was the state’s burden to prove

either that the conduct occurred in two separate criminal

episodes, State v. Martin, 322 Or App 266, 268, 519 P3d 132,

rev den, 370 Or 694 (2022) (“The state bears the burden of

Cite as 325 Or App 696 (2023) 717

proving by a preponderance of evidence that each offense

was a separate criminal episode.” (Internal quotation marks

omitted.)), or that the two acts were separated by a sufficient

pause to avoid merger, State v. Barton, 304 Or App 481, 499,

468 P3d 510 (2020) (“The state, as the party asserting that

defendant’s conduct is separately punishable for purposes

of ORS 161.067(3), bears the burden of adducing legally suf-

ficient evidence of the requisite sufficient pause.” (Internal

quotation marks and ellipses omitted.)).

“We review the trial court’s ruling on whether to

merge the guilty verdicts for legal error and are bound by

the trial court’s factual findings if there is constitutionally

sufficient evidence in the record to support them.” State v.

Moore, 319 Or App 136, 144, 510 P3d 907, rev den, 370 Or

303 (2022). Here, the state concedes that, on this record,

the state failed to meet its burden and that the trial court

should have merged the guilty verdicts on Counts 1 and 2.

We accept that concession and, accordingly, reverse and

remand for merger and resentencing.

Convictions on Counts 1 and 2 reversed and

remanded for entry of judgment of conviction for one count of

second-degree abuse of corpse; remanded for resentencing;

otherwise affirmed.