State v. Meiser

347

Argued and submitted September 23, 2021; decision of Court of Appeals

reversed in part, and case remanded to Court of Appeals for further

proceedings March 22, 2022

STATE OF OREGON,

Respondent on Review,

v.

ERIK JOHN MEISER,

Petitioner on Review.

(CC CR1201547) (CA A166534) (SC S068327)

506 P3d 402

Defendant, who had been diagnosed with schizophrenia and antisocial per-

sonality disorder, asserted a defense of guilty except for insanity (GEI) to murder

and other charges. The trial court, sitting as factfinder, rejected defendant’s GEI

defense as to the murder charge, and the Court of Appeals affirmed, reasoning

that the evidence permitted a finding that defendant’s asserted incapacity was

at least partly a result of his antisocial personality disorder, and not the result

of his schizophrenia alone. Held: ORS 161.295 provides that a co-occurring dis-

order that is solely a personality disorder is excluded from the “mental disease

or defect” that forms the basis for a GEI defense, but the statute does not require

a defendant asserting the GEI defense to prove that a co-occurring personality

disorder played no causal role in bringing about the requisite lack of substantial

capacity.

The decision of the Court of Appeals is reversed in part, and the case is

remanded to the Court of Appeals for further proceedings.

On review from the Court of Appeals.*

Daniel J. Casey, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioner on review. Also on the briefs was Ernest

G. Lannet, Chief Defender.

Leigh A. Salmon, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Thomas Stenson, Disability Rights Oregon, Portland,

filed the briefs on behalf of amicus curiae Disability Rights

Oregon.

______________

* Appeal from Clackamas County Circuit Court, Katherine E. Weber, Judge.

308 Or App 570, 481 P3d 375 (2021).

348 State v. Meiser

Before Walters, Chief Justice, and Balmer, Flynn,

Duncan, Nelson, and Garrett, Justices.**

FLYNN, J.

The decision of the Court of Appeals is reversed in part,

and the case is remanded to the Court of Appeals for further

proceedings.

______________

** Nakamoto, J., retired December 31, 2021, and did not participate in the

decision of this case. DeHoog, J., did not participate in the consideration or deci-

sion of this case.

Cite as 369 Or 347 (2022) 349

FLYNN, J.

Defendant, who has been diagnosed with schizo-

phrenia and a co-occurring antisocial personality disorder,

contends that the trial court and the Court of Appeals erred

in its understanding of the evidence required to establish

that he was guilty except for insanity (GEI) with respect

to charges of murder. GEI is an affirmative defense that

requires proof that, “as a result of mental disease or defect,”

the defendant “lacks substantial capacity either to appreci-

ate the criminality of the conduct or to conform the conduct

to the requirements of law.” ORS 161.295(1) (2011), amended

by Or Laws 2017, ch 634, § 3.1 But “the terms ‘mental dis-

ease or defect’ do not include * * * any abnormality constitut-

ing solely a personality disorder.” ORS 161.295(2). The par-

ties agree that schizophrenia is a “mental disease or defect”

within the meaning of ORS 161.295, and they agree that

defendant’s co-occurring antisocial personality disorder is

a “personality disorder” within the meaning of the statute.

But they disagree about whether ORS 161.295 requires proof

that defendant experienced the requisite incapacity solely

“as a result of” his schizophrenia, and not in any part as a

result of his co-occurring antisocial personality disorder. As

explained below, we conclude that the legislature intended

to specify that a co-occurring disorder that is solely a per-

sonality disorder is excluded from the “mental disease or

defect” that forms the basis for a GEI defense, but the leg-

islature did not intend to require proof that a co-occurring

personality disorder played no causal role in bringing

about the requisite lack of substantial capacity. That con-

clusion resolves the issue on which we allowed review, but

it leaves unresolved additional legal and factual questions

1

The 2011 version of the statute applies in defendant’s case, and we cite

that statute without reference to a year in the remainder of this opinion. The

legislature amended ORS 161.295 in 2017 by replacing the term “mental disease

or defect” with the term “qualifying mental disorder.” Or Laws 2017, ch 634, § 3.

The preamble to the 2017 amendments indicates that the legislation intended to

replace the term “mental disease or defect,” which “may carry a negative conno-

tation,” with an updated term, “while preserving the validity of all previous court

decisions interpreting” the prior wording and “without making a substantive

change to Oregon law.” Id., preamble. Although we are mindful of the negative

connotations of the term “mental disease or defect,” it is the applicable statutory

term in this case, and, because it would be confusing to do otherwise, we use it

throughout this opinion.

350 State v. Meiser

regarding defendant’s proof of causation and incapacity. We

remand the case to the Court of Appeals to address those

questions.

I. BACKGROUND

Defendant, who has been diagnosed with schizo-

phrenia and antisocial personality disorder, killed FH

during a home-invasion robbery. At the time, defendant was

suffering from multiple delusions, including the belief that

his children were in danger because “poorer people were

being harvested.” Defendant believed that the only way to

protect his children was to own property, and he set out to

steal $40,000 for a down payment on a “condo.” Defendant

first broke into a martial arts studio, looking for a person

whom he believed might be a source of money. No one was

in the building, but defendant found and stole a samurai

sword.

After stealing the sword, defendant decided to rob

FH and his wife. Defendant later told a detective that he

targeted FH and his wife because voices—“these people

who follow me constantly”—told him that “the only way” he

would “ever get any money is through this course of action.”

Defendant waited until he saw FH and his wife leave their

house and then entered it to wait for them to return. His

plan was to have “a discussion about the ailments of soci-

ety” and then have them transfer $40,000 to defendant. He

did not plan to harm anyone, but he took a machete from

the victims’ workbench to intimidate them. When the vic-

tims returned home and found defendant, both victims pan-

icked and ran outside. Defendant pursued FH and struck

him multiple times in the head with the machete. Defendant

then changed clothes nearby, discarded his bloody jeans,

and entered the garage of another residence to steal a bicy-

cle to help him escape.

The state charged defendant with multiple counts

of aggravated murder, robbery, and burglary related to the

invasion of FH’s home, as well as with second-degree bur-

glary counts related to the samurai sword and the bicycle.

Defendant was repeatedly found to lack the capacity to stand

trial. He spent nearly four years confined at the Oregon

Cite as 369 Or 347 (2022) 351

State Hospital before ultimately being found competent to

stand trial. Defendant did not dispute that he had commit-

ted the criminal acts for which he had been charged, but he

asserted the affirmative defense of GEI to all of the charges.

See ORS 161.295 (setting out the GEI defense); ORS 161.305

(2011), amended by Or Laws 2017, ch 634, § 5 (specifying that

“[m]ental disease or defect constituting insanity under ORS

161.295 is an affirmative defense”). As defined by the legis-

lature, that defense required defendant to prove that, “as a

result of mental disease or defect at the time of engaging in

criminal conduct,” he “lack[ed] substantial capacity either to

appreciate the criminality of the conduct or to conform the

conduct to the requirements of law.” ORS 161.295(1). But the

legislature also specified that “the terms ‘mental disease

or defect’ do not include * * * any abnormality constituting

solely a personality disorder.” ORS 161.295(2).

Defendant waived his right to trial by jury and tried

his case to the court. He offered the testimony of a psycholo-

gist and three psychiatrists, all of whom opined that defen-

dant was suffering from schizophrenia but recognized that

he had a co-occurring diagnosis of antisocial personality

disorder. One of the psychiatrists explained that, as a symp-

tom of defendant’s schizophrenia, defendant experienced

“command auditory hallucinations”—voices that defen-

dant believed to be telepathic communications from unseen

entities—although defendant did not experience “the kind of

overwhelming command auditory hallucinations some other

psychotic individuals have.”

Two of the experts addressed the other elements of

the GEI defense. Both testified that, at the time of the crimes,

defendant lacked substantial capacity to conform his con-

duct to the requirements of the law. And both testified that,

if not for the psychosis, defendant would not have committed

the crimes. One of the experts specifically rejected the sug-

gestion that defendant’s “conduct [was] a result of antisocial

personality disorder rather than schizophrenia.” The other

opined that both of defendant’s conditions were “active” at

the time of the murder but that defendant’s psychosis asso-

ciated with his schizophrenia “was more the predominant

driver of his behaviors.”

352 State v. Meiser

The state offered no contrary expert testimony,

but it argued that the expert testimony failed to establish

the elements of defendant’s GEI defense. With respect to

causation, the state disputed both the sufficiency of defen-

dant’s evidence and the applicable legal test. The state did

not dispute that schizophrenia is a “mental disease or defect,”

but it argued that defendant was required to prove that the

requisite incapacity “resulted from [that] mental disease [or

defect] and nothing else” and that, unless the court found

that incapacity resulted “from solely a mental disease [or

defect], the Court may not find the defendant guilty except

insane.” The state insisted that defendant could not prove

the causation element of his GEI claim. It first argued that

defendant’s “choices” were not solely the result of his schizo-

phrenia, but “were at least, if not substantially, influenced

by his anti-social personality disorder.” Second, the state

argued that the court could find that “neither” condition led

to defendant’s conduct.

At the conclusion of the trial, the court found that

defendant was guilty except for insanity with respect to

the charges of burglary and robbery of FH’s home and with

respect to the earlier burglary of the martial arts studio.

But the court found that defendant had not proven the GEI

defense with respect to the murder of FH and the subse-

quent burglary of the garage. As to that conduct, the court

found defendant guilty of murder, as the lesser-included

offense of aggravated murder, and of second-degree bur-

glary. The court rendered its verdicts without explaining

whether it had agreed with the state’s proposal that “as a

result of mental disease or defect” required defendant to

prove that any incapacity was solely the result of his schizo-

phrenia and without identifying the element or elements of

the GEI defense that defendant failed to prove with respect

to the murder and final burglary charges.2

2

On appeal, defendant assigned error to the trial court’s denial of his

verbal request, made after the court announced its verdicts, that the court

make “findings of fact and conclusions of law.” The Court of Appeals rejected

that assignment of error, reasoning that “defendant’s generalized request

did not trigger the trial court’s obligation to address the elements of the GEI

defense.” State v. Meiser, 308 Or App 570, 591, 481 P3d 375 (2021) (internal

quotation marks omitted). Defendant does not reprise the issue before this

court.

Cite as 369 Or 347 (2022) 353

Defendant appealed his convictions to the Court of

Appeals and assigned error to, among other rulings, the trial

court’s rejection of the GEI defense to the murder charge.3

With respect to the GEI defense, defendant insisted that the

state had proposed an incorrect legal test when it argued that

defendant was required to prove that his incapacity resulted

“solely” from defendant’s schizophrenia. Although the trial

court had not specified whether it accepted the state’s test,

defendant urged the Court of Appeals to conclude that the

trial court had accepted the state’s understanding that “as

a result of” in ORS 161.295(1) means “solely” as a result of.

Under the correct causation test, defendant contended, no

reasonable factfinder could fail to find that defendant had

proven the elements of his GEI defense.

The Court of Appeals affirmed. State v. Meiser, 308

Or App 570, 481 P3d 375 (2021). Because the trial court had

not identified the element or elements that, in its assess-

ment, defendant had failed to prove, the Court of Appeals

reasoned that defendant could establish error only if he

established that he was entitled to prevail as a matter of

law on each element of the defense. Id. at 578. The court

observed that there was no dispute on appeal that defendant

had established the first element of the GEI defense: that

his schizophrenia qualified as a “mental disease or defect”

under the statute. Id. But the court concluded that defen-

dant had not established that he was entitled to prevail as

a matter of law on the causation element. Id. at 586. The

court understood one of its own prior decisions to preclude

defendant’s understanding of the causation element. Id. at

581-82 (citing State v. Peverieri, 192 Or App 229, 232-33,

84 P3d 1125, rev den, 337 Or 248 (2004)).4 In this case, the

court observed that defendant had not developed an argu-

ment for overruling Peverieri and, thus, accepted the state’s

proposition “that the requisite incapacity must result from

3

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

the second-degree burglary charge.

4

In Peverieri, the court held that the GEI defense was not available to a

defendant who suffered from chronic liver failure because—even assuming the

liver condition produced a qualifying “mental disease or defect”—the defen-

dant’s state at the time of the criminal activity “was a result of the mental

disease or defect and voluntary intoxication.” 192 Or App at 233 (emphasis in

original).

354 State v. Meiser

a qualifying mental disease or defect itself, not from a com-

bination of qualifying and nonqualifying impairments.”

Meiser, 308 Or App at 577, 581-82.

Under that test, the court concluded, the evidence

permitted the trial court to find that defendant had not

proven causation. Id. at 585-86. The court reasoned that

“the evidence permitted the factfinder to conclude, at the

least, that defendant’s schizophrenia and antisocial per-

sonality disorder were both active impairments” and that

“[h]is compromised capacity could be found[ ] not to be the

result of a mental disease or defect.” Id. (emphasis in origi-

nal). The Court of Appeals then discussed the parties’ com-

peting arguments regarding whether the evidence required

the trial court to find that defendant had been experienc-

ing either form of substantial incapacity at the time of the

criminal activity, but the court ultimately observed that it

was “unnecessary to resolve” those arguments in light of its

conclusion that the trial court was permitted to find “that

defendant’s asserted incapacity, in whatever form, is not the

result of a mental disease or defect.” Id. at 586-88.

II. DISCUSSION

To prove the statutory defense of GEI, three ele-

ments must exist “at the time of engaging in criminal con-

duct”: “mental disease or defect”; lack of “substantial capac-

ity 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. ORS 161.295(1). As explained

above, the ultimate dispute between the parties on appeal is

whether the evidence at trial established all three elements

as a matter of law. We allowed review to address one piece of

that dispute, which was dispositive in the Court of Appeals:

whether defendant was required to prove that his asserted

lack of capacity was solely the result of his schizophrenia and

in no part the result of his antisocial personality disorder.5

5

The state contends that we should not reach the question on which we

allowed review and should instead affirm based on defendant’s failure to chal-

lenge what the state perceives to be an “alternative holding” in the opinion of the

Court of Appeals. But we do not read that opinion as announcing the “alternative

holding” that the state identifies, and we reach the issue on which we allowed

review.

Cite as 369 Or 347 (2022) 355

We conclude that the legislature did not intend to require

proof that a personality disorder played no role in bring-

ing about the requisite lack of capacity, and, ultimately, we

remand to the Court of Appeals for further consideration.

A. Causation Analysis Under ORS 161.295

Because the elements of the GEI defense are estab-

lished by statute, the question is what causal connection the

legislature intended to require. See State v. Gaines, 346 Or

160, 171, 206 P3d 1042 (2009) (emphasizing that, in deter-

mining the meaning of a statute, the court’s “paramount

goal” is to discern the intent of the legislature). All require-

ments for the GEI defense are contained in ORS 161.295,

which, as applicable to defendant’s case, provided:

“(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,[6] 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.”

As with all questions of statutory construction, we turn to

the analytical framework that we described in Gaines to

determine whether the legislature intended to require proof

that a defendant lacked capacity solely “as a result of mental

disease or defect” and in no part as a result of a “personal-

ity disorder.” See ORS 161.295. Under that well-established

framework, we consider the text and context of the statute,

and we consider legislative history “where that legislative

history appears useful to the court’s analysis.” Gaines, 346

Or at 171-72. In this case, the legislative history is partic-

ularly helpful to our understanding of what the legislature

intended.

6

The reference in ORS 161.295(2) to “chapter 743, Oregon Laws 1971” is a

reference to the comprehensive Oregon Criminal Code adopted in 1971, of which

the GEI defense was a part. See Or Laws 1971, ch 743, § 36.

356 State v. Meiser

The text that governs defendant’s case is the prod-

uct of two different legislative enactments. The relevant

causation test—“as a result of mental disease or defect at

the time of engaging in criminal conduct”—dates to when

the statute was originally enacted as part of the comprehen-

sive Oregon Criminal Code of 1971. Or Laws 1971, ch 743,

§ 36. As originally enacted, however, the statute specified

just one exclusion from the terms “mental disease or defect,”

for “an abnormality manifested only by repeated criminal

or otherwise antisocial conduct.” Id. The exclusion of “any

abnormality constituting solely a personality disorder” from

what qualifies as “mental disease or defect” was added to

ORS 161.295(2) in 1983, through the adoption of House Bill

(HB) 2075. Or Laws 1983, ch 800, § 1. Thus, our inquiry

into legislative intent takes into account both the 1971 and

the 1983 legislatures. See State v. Swanson, 351 Or 286,

290, 266 P3d 45 (2011) (explaining that the proper inquiry

for statutory construction focuses on “the intent of the leg-

islature that enacted the statute,” although “we also con-

sider any later amendments or statutory changes that were

intended by the legislature to modify or otherwise alter the

meaning of the original terms of the statute”).

Both parties point us to legislative history indicat-

ing that the 1983 Legislative Assembly enacted the person-

ality disorder exclusion in ORS 161.295(2) to narrow the

availability of the insanity defense. Significantly, however,

the legislative history suggests that the legislature did not

intend to narrow availability of the defense so thoroughly

that a defendant’s proof would fail if a personality disor-

der contributed in any part to the qualifying incapacity.

This court has previously recited that legislative history

in detail. Tharp v. PSRB, 338 Or 413, 426-30, 110 P3d 103

(2005) (quoting Beiswenger v. PSRB, 192 Or App 38, 48-51,

84 P3d 180, rev dismissed, 337 Or 669 (2004)).7 Here, we rely

on that prior recitation where pertinent.

7

In Tharp, this court set out at length and relied upon a “detailed review

of the legislative history leading to the legislature’s decision to exclude per-

sonality disorders from the definition of mental disease or defect in ORS

161.295” from a recent Court of Appeals “opinion by [then-]Judge Landau.” 338

Or at 426 (discussing Beiswenger, 192 Or App at 48-51). We provide citations

to the legislative history that is quoted in Tharp without further reference to

Beiswenger.

Cite as 369 Or 347 (2022) 357

As that recitation of the legislative history explains,

the bill as originally introduced did not address “personal-

ity disorders.” Tharp, 338 Or at 426. That changed after

an early hearing, at which the Executive Director of the

Psychiatric Security Review Board suggested that the leg-

islature should explicitly addresse whether the definition of

“mental disease or defect” included or excluded “personal-

ity disorders” and the chair of the board testified that “the

board supported the exclusion of ‘personality disorders’ from

the definition of ‘mental disease or defect.’ ”8 Tharp, 338 Or

at 426-27.

At a subsequent hearing, Representative Peter

Courtney asked for an amendment “that would accom-

plish the exclusion of ‘personality disorders’ from the stat-

utory definition of ‘mental disease or defect,’ ” and “Jeffrey

Rogers, the chair of the legislative interim task force that

had drafted the bill, * * * responded with the wording that

is, in substance, the current law.” Tharp, 338 Or at 427-28.

Specifically, Rogers proposed that the legislature add the

phrase “nor does [the term ‘mental disease or defect’] include

disorders characterized only as personality disorders.” Tape

Recording, House Committee on Judiciary, HB 2075, May 13,

1983, Tape 324, Side A (statement of Jeffrey Rogers). He

emphasized that the exclusion should include the word

“only”—which became “solely” in the enacted provision—to

indicate that a person who has “a personality disorder plus

a psychosis * * * may still qualify.” Id. At the suggestion of

legislative counsel, Rogers’s proposal to exclude “disorders

characterized only as personality disorders,” see id., became

an exclusion of “any abnormality constituting solely a per-

sonality disorder,” Exhibit V, House Committee on Judiciary,

May 31, 1983, HB 2075 (accompanying statement of Legal

Counsel Linda Zuckerman). But legislative counsel told the

committee that the change was not substantive—that the

8

The scope of “mental disease or defect” also is at issue in cases in which a

petitioner who has proven a GEI defense later seeks discharge from commitment

or from the Psychiatric Security Review Board’s jurisdiction on the ground that

the person is “ ‘no longer affected by mental disease or defect.’ ” See, e.g., Tharp,

338 Or at 416-18, 416 n 1 (discussing the versions of ORS 161.341(4) and ORS

161.351 then in effect and explaining that the petitioner challenged the board’s

conclusion that he was not entitled to discharge because, on account of his sub-

stance dependency, he continued to be affected by a “mental disease or defect”).

358 State v. Meiser

exclusion was still “to the effect that the mental disease or

defect also does not include disorders characterized only as

personality disorders.” Tape Recording, House Committee

on Judiciary, May 31, 1983, HB 2075, Tape 386, Side A

(statement of Legal Counsel Linda Zuckerman).

Subsequently, “[t]he bill moved to the floor of the

House, where the floor manager, Representative Courtney,

explained that it contained a ‘personality exclusion’ that

accomplished a narrowing of the definition of ‘mental dis-

ease or defect.’ ” Tharp, 338 Or at 428. To further explain

the exclusion, Representative Courtney quoted from a let-

ter that the board’s executive director had submitted to the

House Judiciary Committee:

“ ‘Right now if a person has what is considered a personality

disorder, * * * they’re able to claim that they have a mental

disease or defect. We now no longer, with this piece of legis-

lation, will allow an individual to say that I have a mental

disease or defect because I have a personality disorder.’ ”

Id. (quoting Audio Recording, House Floor Debate, HB 2075,

June 16, 1983, Reel 19, Track I (statement of Rep Peter

Courtney)). The bill passed the House. Id. at 429.

When the bill moved to the Senate, Representative

Courtney introduced it to the Senate Judiciary Committee

by “explain[ing] that it ‘would remove personality disorders

as a category that could be relied on for use of the insan-

ity plea.’ ” Id. (quoting Tape Recording, Senate Committee

on Judiciary, HB 2075, June 29, 1983, Tape 234, Side A

(statement of Rep Peter Courtney)). Ultimately, both houses

passed the bill, and it was signed into law. Id.

The text of the 1983 amendment captures the leg-

islative intent to narrow the definition of a “mental disease

or defect” to exclude personality disorders—as the chair of

the Psychiatric Security Review Board requested, and as

legislators reiterated as the bill moved through the legisla-

ture. By specifying in ORS 161.295(2) that “the terms ‘men-

tal disease or defect’ do not include * * * any abnormality

constituting solely a personality disorder,” the legislature

expressed its intention to remove the category of “disorders

characterized only as personality disorders” from the larger

Cite as 369 Or 347 (2022) 359

group of “mental disease or defect” that can “be relied on

for use of the insanity plea” under ORS 161.295(1).9 See

Tape Recording, House Committee on Judiciary, HB 2075,

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

(proposing wording); Tape Recording, Senate Committee on

Judiciary, HB 2075, June 29, 1983, Tape 234, Side A (state-

ment of Rep Peter Courtney) (explaining effect of the bill); see

also Webster’s Third New Int’l Dictionary 1143 (unabridged

ed 2002) (defining “include” to mean “to place, list, or rate as

a part or component of a whole or of a larger group, class, or

aggregate”). Accordingly, the effect of the 1983 amendment

addressing personality disorders is to place a limitation on

the “mental disease or defect” element of the defense set out

in ORS 161.295(1).

Significantly, however, the 1983 text did not add a

similar limitation to the causation element set out in ORS

161.295(1). That is to say, it did not affirmatively require

defendants with a personality disorder and a co-occurring

condition that is a qualifying “mental disease or defect” to

prove that their incapacity existed solely “as a result of men-

tal disease or defect” and in no part as a result of a personal-

ity disorder. And reading in that more extensive limitation

would be in tension with the 1983 legislature’s intent that

a person who has “a personality disorder plus a psychosis

* * * may still qualify” for the defense. See Tape Recording,

House Committee on Judiciary, HB 2075, May 13, 1983,

Tape 324, Side A (statement of Jeffrey Rogers).

By addressing personality disorders only through an

exclusion in ORS 161.295(2), the legislature left unchanged

the meaning of “as a result of mental disease or defect” in

the affirmative defense set out in 1971. And nothing about

the text or legislative history of that 1971 enactment per-

suades us that the legislature intended “as a result of men-

tal disease or defect” to mean solely “as result of mental dis-

ease or defect.” In ordinary usage, the term “result” is not

9

Given the text and legislative history, we reject an argument advanced by

amicus Disability Rights Oregon that “abnormality” refers to a defendant’s men-

tal state as a whole—meaning that personality disorders are included within

the broad category “mental disease or defect,” for purposes of proving the GEI

defense, as long as the defendant has some other mental disorder or condition. We

reject that interpretation as contrary to what the legislature intended.

360 State v. Meiser

limited to the concept of sole causation. See Webster’s at 1937

(defining noun “result,” most pertinently, as “something that

results as a consequence, effect, issue, or conclusion”).

The legislative history of ORS 161.295 also suggests

that the 1971 legislature did not intend the “as a result of”

standard to be limited to a solely “as a result of” standard.

Like those who drafted and adopted the 1983 amendment,

those who drafted and adopted the 1971 statute were con-

cerned that the defense might be used by a category of offend-

ers whom the drafters did not view as possessing “a men-

tal disease or defect.” In 1971, the category of concern was

“psychopaths” (or “sociopaths”), and the statute addressed

that concern by specifying that “the terms ‘mental disease

or defect’ do not include an abnormality manifested only

by repeated criminal or otherwise antisocial conduct.” Or

Laws 1971, ch 734, § 36 (emphasis added); see Commentary

to Criminal Law Revision Commission Proposed Oregon

Criminal Code, Final Draft and Report § 36, 35 (July 1970)

(discussing concerns regarding “psychopaths”). The drafters

of the provision told the 1971 legislature that the purpose

of the exclusion was to prevent “recidivists” from “qualify-

[ing] for the defense merely by being labeled psychopaths.”

Commentary § 36 at 35. By structuring the statute to

exclude those who were “merely” labeled as “psychopaths,”

see id. (or those demonstrating “an abnormality manifested

only by repeated criminal or otherwise antisocial conduct,”

see Or Laws 1971, ch 734, § 36(2) (emphasis added)), the leg-

islature left open the possibility that the defense could be

available to offenders who suffered from a “mental disease

or defect” in addition to whatever label attached to their

repeated criminal or antisocial conduct. And we understand

the legislature to have intentionally struck that balance.

We understand the 1983 legislature to have intended

to retain that balanced approach when it amended subsec-

tion (2) to also exclude “personality disorders” from the defi-

nition of “mental disease or defect.” That exclusion—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). But it does not make the defense so

narrow as to require that a person who can demonstrate the

Cite as 369 Or 347 (2022) 361

requisite lack of substantial capacity “as a result of mental

disease or defect” also prove that a co-occurring personal-

ity disorder in no part contributed to the incapacity. Thus,

we agree with defendant that the Court of Appeals erred in

concluding that defendant could prevail on his GEI defense

only if he proved that his co-occurring personality disorder

played no part in causing the requisite lack of substantial

capacity.

B. Proper Disposition

That conclusion answers the question that this

court allowed review to address, but it does not fully resolve

whether defendant was entitled to prevail on his GEI defense.

As explained above, because the Court of Appeals concluded

that defendant was not entitled to prevail on the causation

element of the defense, it did not resolve whether the evidence

compelled a finding in defendant’s favor on the third element

of the defense: whether, under ORS 161.295(1), he lacked

“substantial capacity either to appreciate the criminality of

the conduct or to conform the conduct to the requirements

of law.” Meiser, 308 Or App at 588. In addition, the Court

of Appeals did not consider—except under the “sole cause”

test that we have rejected—whether the evidence compelled

a finding that defendant proved that he had experienced

any qualifying incapacity “as a result of mental disease or

defect.” As the state emphasizes, any answer to the latter

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.”10

As a matter of judicial efficiency, this court some-

times resolves issues beyond those as to which we allowed

review, rather than remanding to the Court of Appeals to

resolve remaining issues, but we decline to do so in this case.

10

In its amicus curiae brief, Disability Rights Oregon argues that the statute

requires but-for causation: But for the “mental disease or defect,” the incapacity

would not have occurred. See W. Page Keeton, Prosser and Keeton on the Law of

Torts § 41, 266 (5th ed 1984) (defining the but-for rule of causation in the tort

context). Defendant expresses no opinion on that argument.

362 State v. Meiser

Both the remaining evidentiary issues and the remaining

statutory construction issue would benefit from consider-

ation in the first instance by the Court of Appeals.

The decision of the Court of Appeals is reversed in

part, and the case is remanded to the Court of Appeals for

further proceedings.