State v. Monaco

684 December 11, 2024 No. 888

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

RYAN THOMAS MONACO,

Defendant-Appellant.

Multnomah County Circuit Court

17CR48942; A177164

Michael A. Greenlick, Judge.

Submitted June 17, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Neil F. Byl, Deputy Public Defender, Office of

Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Erica L. Herb, Assistant Attorney

General, filed the brief for respondent.

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

Judge.*

AOYAGI, P. J.

Affirmed.

______________

* Egan, J., vice Jacquot, J.

Cite as 336 Or App 684 (2024) 685

686 State v. Monaco

AOYAGI, P. J.

Defendant was convicted of murder and other

crimes, based on his starting an apartment fire that killed

two people. On appeal, he raises two assignments of error.

First, he argues that the trial court erred in denying his

motion to suppress incriminating statements that he made

during a four-hour police interrogation. Second, he argues

that the trial court erred in denying his demurrer to felo-

ny-murder charges, because Oregon’s felony-murder statute,

ORS 163.115(1)(b), violates federal due process. We conclude

that the state met its burden to prove that defendant’s state-

ments were voluntary and that the court therefore did not

err in denying the motion to suppress. We further hold that

Oregon’s felony-murder statute does not violate due process.

Accordingly, we affirm.

FACTS

The facts are relevant only to the suppression rul-

ing, so we state the facts in accordance with the standard of

review for that ruling, deferring to the trial court’s explicit

and implicit factual findings. State v. Belle, 281 Or App 208,

210, 383 P3d 327 (2016).

Defendant and A began dating in 2013. From

approximately 2013 to 2017, they lived together, on and off,

in an apartment. They had a volatile relationship that often

became physical. In February 2017, defendant assaulted A,

and she obtained a restraining order. Despite the restrain-

ing order, A frequently invited defendant to the apartment.

J and T also lived in the apartment.

On July 22, 2017, A and defendant went to a bar

together and got into an argument. A tried to leave the bar

without defendant, but defendant blocked her path with his

car and demanded that she get in. A complied because she

was afraid of what would happen if she did not. Defendant

drove to A’s apartment. Once inside the apartment, defen-

dant went to the bathroom, and A took the opportunity to

leave.

A returned to the apartment later that night to see

if defendant was still there. As she drove into the parking

Cite as 336 Or App 684 (2024) 687

lot, defendant rear-ended her car with his car. A drove away,

but defendant followed her and struck her car multiple times

as they drove on the freeway at speeds of 75 to 80 miles per

hour. Finally, A slammed on her brakes, and defendant kept

driving. A called 9-1-1 at 2:42 a.m. to report the incident,

then she drove to her sister’s house. Meanwhile, defendant

texted and called A repeatedly, begging her to return to

the apartment. He told her at least once that he was going

to drench her couch in gasoline and light it on fire, and he

repeatedly tried to videocall her so she could watch him

pour the gasoline.

A short while later, defendant called A and told her

that he was “really sorry,” that he “really fucked up,” and

that he was “going to take [his] own life over it.” A couple

minutes after that, A received a text message from A’s other

sister that A’s apartment was on fire. A neighbor’s surveil-

lance system captured video images of defendant running

out of A’s apartment seconds before the fire erupted at

3:30 a.m. The fire spread quickly. Both J and T died in the

fire. A dog and three snakes also died. Around 3:30 a.m.,

defendant sent A multiple text messages saying that he was

so sorry but that A “did this” and had thereby ruined not

only defendant’s life but also their dogs’ lives, their room-

mates’ lives, and A’s own life.

The arson investigator determined that the fire

started in the living room after someone poured accelerant

on the couch.

Three days after the fire, the police arrested defen-

dant following a brief pursuit. The arresting officer removed

defendant from his vehicle and handcuffed him. Defendant

was acting confused, was sweating, and looked like he was

about to pass out. Defendant was taken by ambulance to the

hospital, where he was given a CT scan and blood and urine

tests. Defendant was released from the hospital around

1:00 a.m. He was taken to the Justice Center in Portland,

where he slept for the night.

Around noon the following day, Detectives Michaels

and Luiz took defendant to an interrogation room. Michaels

advised defendant of his Miranda rights, which defendant

688 State v. Monaco

said that he understood. Michaels asked about defendant’s

relationship with A, including the event that led her to get

a restraining order against him. Defendant agreed that he

had a volatile relationship with A but denied ever hitting

her. He said that, despite the restraining order, A invited

him to the apartment nearly every day.

Michaels asked defendant about the night of the

fire. Defendant said that he and A had been at a bar with his

coworkers but left the bar after having an argument. They

went back to the apartment. While defendant was in the

bathroom, A left the apartment and drove away. Defendant

said that he then left the apartment, went to his children’s

mother’s house around 2:00 a.m. but found she was not home,

and so went to his cousin Larry’s house. Michaels asked why

defendant texted A to “come home” if he was no longer at

the apartment. Michaels also told defendant that surveil-

lance video showed his car parked in front of the apartment

at that time. Defendant expressed surprise about the text

messages and surveillance video, stating, “That’s insane[.]”

At various times throughout the interrogation, defendant

asked to call his family, and each time the detectives told

him that he could call his family once the interrogation was

over.

Michaels continued describing evidence that defen-

dant was present at the apartment at the time of the fire.

Defendant insisted that he did not remember and did not

know why the evidence showed that he was there. Michaels

repeatedly said that J’s and T’s families deserved to know

what happened, as did A, that they needed closure, and

that defendant being honest about what he did would help

them and defendant. At various points, Michaels said to

defendant:

“I guess I am trying to emphasize to you that it would prob-

ably be actually good for you to kind of talk to me about

what happened past this.”

“But, you know, we are at the stage where it is basically

about helping you through this. And helping the families

through this.”

“And sometimes, you know, if you really want to talk about

how it helps you, if you look at it like this down the road.

Cite as 336 Or App 684 (2024) 689

And how people are going to view this. And how are they

going to view [defendant].”

“But if you will, for this moment, step out of yourself a little

bit and think about those other people. And it might help

you even. And it will certainly help [the families].”

“[J’s and T’s] families deserve to know what happened. * * *

And you are the person that can tell them. And I have been

doing this long enough to know that even if—even if it is

not something that you want to say. Even if it is something

that feels terrible to you. It is still better to say it. And to let

them hear it. Than not to. It’s better for them. And it’s bet-

ter for you. Even though, alright, it—it’s a terrible thing. I

mean, I get that it is horrible what happened. But somehow

hearing about what happened and why, helps. I don’t know

why. I’m not a psychologist. I just know that it’s true. It

helps. And I like to help the families.”

The other detective, Luiz, also encouraged defen-

dant to be honest. When Luiz asked about his text messages

to A around the time of the fire, defendant said that, if he

really did start the fire, then he needed to figure it out with a

doctor because there was “something missing in [his] head.”

Luiz told defendant that it was his chance to be honest and

that a jury, the judge, the prosecutor, and the families would

know if he was honest:

“And you know what they are going to see, is they are

going to see [you]. And they are going to see [you] being

honest. Or not being honest. And here is your opportunity

to be honest. So they say, this guy made a really bad mis-

take. But he stood up for it. And he was honest about it.

“A jury is going to know that. The judge is going to know

that. The prosecutor is going to know that. The family is

going to know that.

“But it’s all about honesty at this point. Nobody is going

to believe that you didn’t remember that event. Nobody. I

don’t believe it. [Michaels] doesn’t believe it.”

Defendant asked to speak with Michaels alone.

Defendant then admitted to getting a gas can from his car

and pouring a small amount of gasoline on the couch. He

admitted to leaving the gas can on the couch, going to the

front door, and lighting a cigarette. Defendant said that the

690 State v. Monaco

cigarette lighter must have ignited the gasoline fumes. He

said that he never intended to start a fire and only wanted

to set it up “like a scene” for A to see the couch covered in

gasoline when she got home. Michaels told defendant that it

was impossible for the couch to ignite by lighting a cigarette

from that distance. Defendant maintained that he did not

intentionally light the couch on fire.

After about four hours, the interrogation ended.

Defendant was charged with numerous crimes

relating to the fire. Before trial, he moved to suppress his

statements to the police as not voluntary under Article I,

section 12, of the Oregon Constitution and ORS 136.425.

The court held a hearing, at which witnesses testified and

the interrogation video was shown.

The trial court concluded that the state had met its

burden to prove that defendant’s statements were voluntary.

The court noted that defendant was taken to the hospital

as a precaution but discharged when nothing was found to

be wrong with him, then given an opportunity to sleep, and

that he was not interviewed until “many, many hours” later.

During the interview, as described by Michaels and shown

on the video, defendant did not exhibit any signs of intoxi-

cation or of psychological suffering beyond what one would

expect in a murder interrogation. Defendant was struggling

and upset about his life circumstances and relationships,

but Michaels remained calm. She “was very calm, patient,”

“super empathic,” and “sort of utilizing reflective listening,”

and never “really turned up the heat at all” or “did anything

other than talk to him in a calm way.” Even adjurations

were made in a “sort of calm, non-pressing way.” The detec-

tives also accommodated defendant when he asked for water

or a break.

The trial court explained that “mere adjurations” do

not normally render a confession involuntary, nor do state-

ments regarding the “natural consequences of not owning

up and accepting responsibility.” Given the lack of threats

or inducements, as well as the totality of the circumstances,

the court concluded that the state had met its burden of

proving that the statements were voluntary.

Cite as 336 Or App 684 (2024) 691

The case proceeded to trial. Defendant was found

guilty and convicted of two counts of first-degree man-

slaughter, ORS 163.118 (Counts 1 and 2); two counts of

second-degree murder based on felony murder, ORS 163.115

(Counts 8 and 9); four counts of first-degree aggravated ani-

mal abuse, ORS 167.322 (Counts 12, 13, 14, and 15); and

one count of fourth-degree assault constituting domestic vio-

lence, ORS 163.160(2) (Count 16). Additional guilty verdicts

for first-degree arson (Counts 3, 4, and 5), second-degree

murder (Counts 6 and 7), and first-degree manslaugh-

ter (Counts 10 and 11) merged into the stated convictions.

Defendant appeals.

MOTION TO SUPPRESS

We begin with defendant’s motion to suppress. ORS

136.425(1) provides that “[a] confession or admission of a

defendant, whether in the course of judicial proceedings or

otherwise, cannot be given in evidence against the defen-

dant when it was made under the influence of fear produced

by threats.” Article I, section 12, of the Oregon Constitution

provides that “[n]o person shall * * * be compelled in any

criminal prosecution to testify against himself.” Together,

Article I, section 12, and ORS 136.425(1) “embod[y] the

common-law rule that confessions made by a defendant

in custody that were induced by the influence of hope or

fear, * * * are inadmissible against the defendant.” State v.

Simmons, 302 Or App 133, 137, 460 P3d 521 (2020) (internal

quotation marks omitted).

Defendant contends that the state failed to prove

that his admissions were voluntary. He argues that the

detectives improperly induced him to confess by conveying

“the idea of a practical legal benefit should he confess, and

the threat that if he did not, he would be facing aggravated-

murder charges with no future opportunity to mitigate his

predicament.” The state disagrees. It counters that the

detectives did not provide any improper inducements and

that, in the totality of the circumstances, the admissions

were proved to be voluntary. The state emphasizes that

“mere adjurations” to tell the truth are generally permis-

sible, so long as they are not accompanied by a threat or a

promise, including adjurations to tell the truth to relieve

692 State v. Monaco

the defendant’s own conscience or to ease a victim’s family’s

suffering. State v. Jackson, 364 Or 1, 24-25, 430 P3d 1067

(2018).

We review the denial of a motion to suppress for

legal error. Simmons, 302 Or App at 137. In doing so, we are

bound by the trial court’s explicit and implicit factual find-

ings if evidence in the record supports them. Id. Whether

a confession is voluntary is a question of law. Jackson, 364

Or at 21. Confessions are presumed to be involuntary, and

the state bears the burden of proving voluntariness. Id.

Ultimately, the question is “whether the state met its burden

to prove that defendant’s free will was not overborne and his

capacity for self-determination was not critically impaired,

and that he made his statements without inducement from

fear or promises.” Id. at 22. In answering that question,

“we must look to the totality of the circumstances,” but it is

“helpful to begin with the issue of whether the officers who

interrogated defendant induced him to make admissions by

the influence of hope or fear.” Id.

Defendant points to several statements by the

detectives that he contends were improper inducements:

(1) “it would probably be actually good for you to kind of talk

to me about what happened”; (2) “we are at the stage where

it is basically about helping you through this”; (3) “it would

be a good idea for you to help yourself and ease some of this”;

(4) it “helps you, if you look at it like this down the road

[a]nd how people are going to view this”; (5) it “might help

you even”; (6) “it’s better for you”; (7) it is an “opportunity

to be honest” and a jury, the judge, the prosecutor, and the

families will know that “he was honest about it.”

We are unpersuaded that those statements were

improper so as to induce a confession from fear or promises.

See id. at 24 (“[A]n impermissible inducement is one that

conveys to a defendant the idea of a threat or promise.”).

The first six statements were mere adjurations to

tell the truth to relieve defendant’s own conscience, to give

A some closure, and to ease the suffering of T’s and J’s fami-

lies. See id. (describing prior case law upholding confessions

“where defendants had been told, as a general matter, that

Cite as 336 Or App 684 (2024) 693

it would better if they told the truth, or that they would

feel better if they told the truth,” without attendant threats

or promises). Like the statements found permissible in

Jackson, they embodied the themes of “relieving defendant’s

conscience and easing the suffering of the victims’ families.”

Id. at 25; see also State v. Pryor, 309 Or App 12, 20, 481 P3d

340, rev den, 368 Or 511 (2021) (telling the defendant that

confessing would help him conveyed the detective’s experi-

ence that “people who confessed were the ones who were able

to get help,” rather than promising help in exchange for a

confession).

The seventh statement—that defendant had an

“opportunity to be honest” and that, in the future, a jury, the

judge, the prosecutor, and the families would know that he

was honest—is different, in that it refers to the legal process

ahead, and requires closer consideration. Ultimately, how-

ever, that statement is not improper either, because it refers

to the natural consequences of defendant’s decision whether

to confess—i.e., how people will perceive him if he admits

what he has done versus lying about it—rather than prom-

ising anything. See Jackson, 364 Or at 27 (distinguishing

between detectives describing the “natural consequence[s]”

of refusing to cooperate, which is permissible, and their tell-

ing a suspect that they will actively make things “as bad as

possible for him” if he does not confess, which is improper

(internal quotation marks omitted)); State v. Linn, 179 Or

499, 513, 173 P2d 305 (1946) (concluding that the defendant’s

confession was improperly induced, where the detectives

told him that if he “did it ‘the hard way’ they would fight

him to the last inch” and subtly promised leniency, instead

of official hostility, if he admitted to the crime).

The detectives did not imply that defendant could

avoid prosecution by confessing, nor did their statements

carry a promise of leniency in exchange for a confession.

Compare State v. Chavez-Meza, 301 Or App 373, 389, 456

P3d 322 (2019), rev den, 366 Or 493 (2020) (“Although the

statements imply that it ultimately would be better for

defendant to present his side of the matter to refute the vic-

tim’s account, we do not view the detectives’ statements as

an implied promise of immunity or leniency from the district

694 State v. Monaco

attorney or court.”), and State v. Didlot, 322 Or App 662,

678, 521 P3d 159 (2022), rev den, 370 Or 822 (2023) (holding

that detectives telling the defendant that confessing would

“help” him was a generic enough statement that it was not an

improper inducement), with State v. Rodriguez-Aquino, 311

Or App 519, 535, 489 P3d 1060 (2021) (holding that detec-

tives implying that a confession would “help” defendant was

an improper inducement where they “suggested that DHS

involvement might be an alternative path to prosecution”).

Thus, although the seventh statement requires closer scru-

tiny than the others, it too was not an improper inducement.

We next consider the totality of the circumstances.

Jackson, 364 Or at 21. In assessing the totality of the circum-

stances as relevant to voluntariness, we look to a defendant’s

personal characteristics, the detectives’ method of interroga-

tion, the location and length of the interrogation, and whether

defendant was given breaks. Id. at 27-28; Pryor, 309 Or App

at 21. It is also significant as part of the totality of the circum-

stances whether the defendant was given Miranda warnings

before making the incriminating statements. Jackson, 364

Or at 26 (“the fact that defendant was given Miranda warn-

ings is an important factor in an analysis of whether—under

the totality of the circumstances—defendant’s will was over-

borne,” whereas that fact is less significant when the inter-

rogators make impermissible inducements).

Defendant argues that the state failed to prove

that his admissions were voluntary under the totality of the

circumstances. Specifically, he argues that the detectives

implied that the interrogation was his last chance to mit-

igate the charges, told him that he could not call his fam-

ily until the interrogation was over, interrogated him for

over four hours, and used the Reid technique on him. See

Jackson, 364 Or at 29 (the “Reid technique” is a common

interrogation technique that “involves isolating a suspect in

a small room to increase anxiety; confronting the suspect

with accusations of guilt and emphasizing the strength of

the evidence against the suspect; offering sympathy and

justifications or rationalizations to allow the suspect to min-

imize the crime; and encouraging the suspect to see confes-

sion as a means of terminating the interview”). He further

Cite as 336 Or App 684 (2024) 695

argues that he has a “borderline to low average” IQ, that he

had been released from the hospital the night before, and

that he expressed that he was feeling sick and unable to

breathe during the interview.

The trial court found that defendant was “strug-

gling” and “upset” about his personal circumstances at times

during the interrogation, but that nothing was found to be

wrong with him at the hospital, that he had the opportunity to

sleep before the interview, that he showed no signs of intoxica-

tion, and that he was not psychologically suffering more than

one would expect of any person being interrogated for murder.

The court further found that Michaels was very calm, patient,

and empathic throughout the interview, engaged in reflective

listening, and never “really turned up the heat at all” and that

defendant’s request to speak to Michaels alone demonstrated

that he was comfortable with her. The detectives also accom-

modated defendant’s requests for water or a break.

Given those findings and the record as a whole, we

conclude that the state met its burden to show that defen-

dant’s will was not overborne and that his admissions were

voluntary. Defendant was given Miranda warnings at the

beginning of the interrogation. The detectives’ questions

were certainly direct and aimed at getting defendant to

admit to starting the fire, but there was no badgering or

aggressiveness, and Michaels, who handled most of the

questioning, was particularly calm and empathic in her

approach. See Pryor, 309 Or App at 23 (describing the inter-

rogating detectives’ questions as “direct,” “open-ended,” and

“low-key” and not remotely “badgering”). The interrogation

was long, nearly four hours, which is a “duration that often

cuts against a determination of voluntariness,” but, as in

Pryor, the detectives accommodated defendant’s requests for

breaks and water. See id. at 23-24 (“Defendant’s requests

for breaks—of which he took four, each lasting from nine to

14 minutes—were immediately honored.”). Lastly, although

defendant expressed feeling sick and like he could not

breathe at times, the evidence supports the trial court’s find-

ing that he was not “suffering psychologically more” than

anyone subject to a murder investigation would. “[T]he fact

that an interrogation is physically and mentally demanding

696 State v. Monaco

does not necessarily make the admissions that are adduced

involuntary and inadmissible.” Jackson, 364 Or at 31.

In sum, the state met its burden to establish that

defendant’s admissions were voluntary, and the trial court

did not err in denying suppression.

FELONY MURDER

Defendant next assigns error to the denial of his

demurrer to the amended indictment on federal due process

grounds.

In Counts 8 and 9, defendant was charged with

second-degree murder on a felony-murder theory, ORS

163.115(1)(b). In words tracking the statutory language, he

was alleged to have committed and attempted to commit the

crime of first-degree arson “and in the course of and in the

furtherance of and in immediate flight from said crime” to

have “cause[d] the death of * * * another human being, who

was not a participant in the crime[.]” See ORS 163.115(1)(b)

(defining second-degree murder to include “criminal homi-

cide * * * [w]hen it is committed by a person, acting either

alone or with one or more persons, who commits or attempts

to commit any of the [specified] crimes and in the course of

and in furtherance of the crime the person is committing or

attempting to commit, or during the immediate flight there-

from, the person, or another participant if there be any,

causes the death of a person other than one of the partici-

pants”); ORS 163.115(1)(b)(A) (identifying first-degree arson

as one of the specified crimes).1 Count 8 pertained to T’s

death, and Count 9 pertained to J’s death. Defendant was

not alleged in those counts to have had any culpable mental

state with respect to the causation of death.

Defendant unsuccessfully demurred to the felony-

murder counts on federal due process grounds. He reprises

the same arguments on appeal. Defendant contends that

ORS 163.115(1)(b) improperly “requires a factfinder to pre-

sume a culpable mental state with regards to the causation

1

The other crimes to which the felony-murder statute applies are first-

degree criminal mischief, first-degree burglary, first-degree escape, first- and

second-degree kidnapping, first-degree robbery, any first-degree sexual offense,

compelling prostitution, and first-degree assault. ORS 163.115(1)(b)(B) - (J).

Cite as 336 Or App 684 (2024) 697

of death,” which “is inconsistent with the presumption of

innocence, relieves the state of its burden to prove every ele-

ment of the offense, and invades the province of the jury.”

Alternatively, defendant argues that, if felony murder is a

strict-liability offense that does not require proof of a cul-

pable mental state as to the causation of death, then the

statute violates due process by “dispensing with a mental

state element for a violent felony criminal offense.” The

state responds that ORS 163.115(1)(b) does not violate due

process, regardless of whether it is or is not a strict liabil-

ity offense—a point on which the state takes no position—

because many other states have rejected similar constitu-

tional challenges to their own felony-murder statutes.

As we will explain, we ultimately conclude that ORS

163.115(1)(b) does not violate due process. We understand

State v. Blair, 348 Or 72, 228 P3d 564 (2010), to construe ORS

163.115(1)(b) as a strict liability statute, even though Blair

does not use those exact words, and we disagree with defen-

dant that it violates due process to impose strict liability for

deaths caused in the commission of a dangerous felony. We

reject defendant’s due process argument on that basis.

The felony-murder rule originates in the common

law, has existed in the Oregon statutes since 1864, and is

currently codified as ORS 163.115(1)(b). See State v. Reams,

292 Or 1, 5, 636 P2d 913 (1981) (statutory history); Jens

David Ohlin, 2 Wharton’s Criminal Law § 21:9 (16th ed 2024)

(common-law history). This case appears to present the first

due-process challenge to Oregon’s felony-murder statute, but

other types of constitutional challenges have been raised—

and have failed—over the years. See, e.g., State v. Reynolds,

289 Or 533, 537, 614 P2d 1158 (1980) (rejecting an equal

protection challenge based on the different punishments for

aggravated murder and felony murder); State v. Sparklin, 61

Or App 608, 611, 658 P2d 571, aff’d on other grounds, 296 Or

85, 672 P2d 1182 (1983) (rejecting a disproportionality chal-

lenge based on the lesser mens rea requirement for felony

murder relative to intentional murder).

Nationally, notwithstanding its critics and inter-

mittent constitutional challenges, felony murder remains a

crime in nearly every state. Felony-murder, 40 Am Jur 2d

698 State v. Monaco

Homicide § 60 (2024). Indeed, nearly 50 years ago, a plural-

ity of the United States Supreme Court expressed the view

that the authority of the states “to enact felony-murder stat-

utes is beyond constitutional challenge.” Lockett v. Ohio, 438

US 586, 602, 98 S Ct 2954, 57 L Ed 2d 973 (1978); see also,

e.g., State v. Ortega, 112 NM 554, 559, 817 P2d 1196 (1991)

(“Few legal doctrines have been as maligned and yet have

shown as great a resiliency as the felony-murder rule.”).

The question before us, however, is not the legisla-

ture’s authority in the abstract to enact a hypothetical felony-

murder statute that does not violate due process. Rather, we

must assess whether Oregon’s actual felony-murder statute,

ORS 163.115(1)(b), violates due process. That question turns

out to be somewhat complicated, particularly given how the

statute was construed in Blair.

Because it is pivotal to our analysis, we begin with

Blair. The defendant in Blair broke into a house to steal

marijuana plants and, in the course of committing the bur-

glary, attempted to rape and sexually abuse the woman who

lived there, then left her tied her to a bedpost. 348 Or at

74. After the defendant left, the woman died from chronic

obstructive pulmonary disease that was “exacerbated crit-

ically by the burglary, attempted rape, and attempted sex-

ual abuse.” Id. The state charged the defendant with first-

degree burglary and felony murder. Id. at 75. The defendant

filed a pretrial demurrer to the felony-murder charge, argu-

ing that the indictment was legally flawed in that it failed to

allege a culpable mental state as to causation of death. Id. at

74. In the defendant’s view, because felony murder is a form

of “criminal homicide,” the state was required to allege and

prove that he had “caused the death of the victim with a cul-

pable mental state” of at least criminal negligence. Id. The

trial court overruled the demurrer. Id. at 74-75. The case

proceeded to trial, and, at trial, the defendant requested a

jury instruction that would have required the jury to find

that he acted with at least criminal negligence in causing

the victim’s death, in order to find him guilty of felony mur-

der. Id. at 75. The court declined to give that instruction. Id.

On appeal, we held that the trial court did not err,

and the Supreme Court agreed. Id. The Supreme Court

Cite as 336 Or App 684 (2024) 699

framed the issue on review as “whether the definition of

criminal homicide in ORS 163.005(1) applies to felony mur-

der, as codified in ORS 163.115(1)(b), in such a way that fel-

ony murder in Oregon requires the state to allege and prove

that a defendant acted with a mental state in causing the

victim’s death distinct from any mental state required to

prove the underlying felony.” Id. at 75. The court answered

that question in the negative, id. at 80, reasoning as follows.

The court agreed with the defendant that felony

murder is a form of “criminal homicide,” id., “a new offense

created during the 1971 revision” of the Oregon Criminal

Code that “had no preexisting history in Oregon law,” id. at

77. It also agreed with the defendant that, because felony

murder is a form of criminal homicide, it is subject to ORS

163.005(1), which states that “ ‘[a] person commits criminal

homicide if, without justification or excuse, the person inten-

tionally, knowingly, recklessly or with criminal negligence

causes the death of another human being.’ ” Id. at 76, 80. The

court disagreed with the defendant, however, that it followed

that the state had to allege and prove that he had a culpable

mental state as to causing the victim’s death. Id. at 80.

The court explained that “the felony murder rule

was first codified in Oregon in 1864” and “remained sub-

stantially unchanged until the criminal code revisions in

1971.” Id. at 77-78. Historically, the court had “consistently

incorporated an ‘implied malice’ rule into felony murder,”

such that “felony murder contain[ed] no distinct or indepen-

dent mens rea requirement in relation to the cause of death

of the victim.” Id. at 78 (citing case law from 1879, 1939,

and 1966); see, e.g., State of Oregon v. Brown, 7 Or 186, 198,

204 (1879) (“The indictment having alleged the killing in

the perpetration of a robbery, it is only required that the

robbery and the killing, in the manner alleged, during the

robbery, be proven to make out the case. In such a case, and

under such proof, the intent to kill and the deliberate and

premeditated malice are incontrovertibly implied.”).

Nothing in the text, context, or legislative history of

ORS 163.115(1)(b) indicated to the Blair court that the 1971

legislature intended to change that longstanding rule. Blair,

348 Or at 79-80. To the contrary, the court found that “other

700 State v. Monaco

aspects of the statutory scheme demonstrate that the legis-

lature intended to retain the felony murder rule in its tradi-

tional form,” id. at 79, and that “much [of] the legislative his-

tory suggests that the legislature intended to adhere to” the

longstanding rule regarding implied malice, id. at 80. That

led the court to conclude that, with respect to felony murder,

the legislature intended the requisite mental state for the

underlying felony to continue “to be imputed as a matter of

law to the cause of the death of the victim,” id. at 80, rather

than intending to require a new “distinct or independent

mens rea with respect to the cause of the victim’s death,” id.

at 78. Accordingly, the court held in Blair that the “requi-

site culpable mens rea” under ORS 163.115(1)(b) “is estab-

lished, as a matter of law, by the defendant’s commission or

attempted commission of the predicate felony.” Id. at 80.

The question before us now is the due process ram-

ifications of that holding. That is, does ORS 163.115(1)(b)

as construed in Blair violate due process by creating a con-

clusive presumption as to a required element of the crime?

Defendant argues that it does, relying on Sandstrom v.

Montana, 442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979).

In Sandstrom, the petitioner was charged with “delib-

erate homicide” under Montana law, a crime that required

him to have “purposely or knowingly” caused the victim’s

death. Id. at 512. The petitioner admitted at trial to causing

the victim’s death but argued that he did not do so “purposely

or knowingly” and therefore should be found guilty of a lesser

offense. Id. At the state’s request, the court instructed the

jury that “[t]he law presumes that a person intends the ordi-

nary consequences of his voluntary acts.” Id. at 513. The peti-

tioner was found guilty of deliberate homicide. Id.

The United States Supreme Court reversed the

conviction, holding that the jury instruction violated fed-

eral due process because it “had the effect of relieving the

State of the burden of proof * * * on the critical question of

petitioner’s state of mind.” Id. at 521. The Court explained

that, if the instruction was understood to create a “conclu-

sive presumption” on the intent element—as the petitioner

argued—then it violated due process because it “conflict[ed]

with the overriding presumption of innocence with which

Cite as 336 Or App 684 (2024) 701

the law endows the accused and which extends to every ele-

ment of the crime,” as well as “invad[ing] the factfinding

function which in a criminal case the law assigns solely to

the jury.” Id. at 523 (internal quotation marks and brackets

omitted). Conversely, if the instruction was understood not

to create a conclusive presumption but instead only to shift

the burden of persuasion to the petitioner to prove that he

lacked the requisite mental state—as the state argued—

then it violated due process by impermissibly shifting the

burden of proof on an element of the offense. Id. at 524.

Notably, the principle from Sandstrom applies even

to legislatively created presumptions. For example, in

Carella v. California, 491 US 263, 264, 109 S Ct 2419, 105

L Ed 2d 218 (1989), the trial court instructed the jury in

a criminal case in accordance with certain “statutory pre-

sumptions” under state law—specifically that a person is

“presumed” to have the intent to commit theft by fraud in

certain circumstances (per the California penal code) and

is “presumed” to have committed embezzlement in certain

circumstances (per the California vehicle code). The United

State Supreme Court held that those jury instructions vio-

lated federal due process under Sandstrom and related case

law, because they “directly foreclosed independent jury con-

sideration of whether the facts proved established certain

elements of the [charged] offenses” and “also relieved the

State of its burden of * * * proving by evidence every essen-

tial element of” the crimes. Id. at 266.

Relying on Sandstrom, defendant argues that ORS

163.115(1)(b) violates federal due process because, as construed

in Blair, it carries a conclusive presumption that the defen-

dant had a culpable mental state as to causing the victim’s

death. In other words, as defendant sees it, the Blair court

had no choice but to construe ORS 163.115(1)(b) as requiring

a culpable mental state for causation of death, given the 1971

legislature’s decision to make felony murder a form of “crimi-

nal homicide,” but then recognized a conclusive presumption

for that element to avoid the state having to actually prove it,

which violates federal due process under Sandstrom.

On its face, Blair is susceptible to defendant’s reading.

Blair acknowledges that felony murder is a form of “criminal

702 State v. Monaco

homicide” and therefore requires a culpable mental state

as to the causation of death. 348 Or at 80 (concluding that

“(1) under ORS 163.005(1), ‘criminal homicide’ requires that a

defendant act with a culpable mens rea with respect to caus-

ing the victim’s death” and “(2) under ORS 163.005(2), ‘crim-

inal homicide’ includes ‘murder’ ”). Blair then holds that the

state is not required to “allege” or “prove” a culpable mental

state as to causation of death, because the “requisite culpable

mens rea” is “imputed as a matter of law” and “established, as

a matter of law, by the defendant’s commission or attempted

commission of the predicate felony.” Id. at 80; see also id. at

74 (“[T]he felony murder statute, ORS 163.115(1)(b), does not

require that the state allege and prove that a defendant acted

with a culpable mental state in causing the victim’s death;

rather, the defendant’s commission or attempted commission

of the underlying felony establishes, as a matter of law, the

requisite mens rea with respect to the victim’s death.”).

We recognize that the reasoning and language of

Blair send up red flags under Sandstrom. At the same time,

we try to avoid reading Supreme Court decisions to stand

for absurd propositions, and it would be absurd to read Blair

as holding that there is an element of felony murder—a cul-

pable mental state with respect to causation of death—that

the state need not allege or prove. If something need not

even be alleged, then it cannot be understood as an element

of the offense. Consequently, the more plausible reading of

Blair is that it construes ORS 163.115(1)(b) to create a strict

liability offense. That is, under ORS 163.115(1)(b), a person

who commits or attempts to commit any of a list of danger-

ous felonies is strictly liable if another person (other than a

co-participant) dies in connection with that felony.

We recognize that Blair does not use the term

“strict liability.” We also recognize that Blair starts from the

premise that felony murder, as a species of criminal homi-

cide, requires a culpable mental state as to the causation

of death. See Blair, 348 Or at 80. At the same time, Blair

unequivocally holds that there is no “distinct or independent

mens rea with respect to the cause of the victim’s death,” id.

at 78, 80, which essentially amounts to felony murder not

requiring a culpable mental state as to causation of death.

Cite as 336 Or App 684 (2024) 703

The court’s holding that the state need not even allege a cul-

pable mental state as to causation of death is especially tell-

ing. If the state had to allege a culpable mental state as to

causation of death, then it would also have to prove it, and

allowing the state to prove it with a presumption instead of

evidence would violate due process under Sandstrom. But

when it need not even be alleged, let alone proved, it cannot

be understood as an element of the offense.

The only logical conclusion is that felony murder

under ORS 163.115(1)(b) as construed in Blair is a strict lia-

bility offense.2 It therefore does not violate due process by

imposing an impermissible presumption within the mean-

ing of Sandstrom. Cf. State v. Patterson, 311 Kan 59, 64-68,

455 P3d 792 (2020) (collecting cases; explaining that some

courts have held that their felony-murder statutes do not

violate due process because intent to kill is not an element

of the crime, while others have held that the presumption of

malice is a rule of law and not a true presumption; and hold-

ing that Kansas’s felony-murder statute “does not operate

as an unconstitutional, conclusive presumption that invades

the jury’s province” because “intent to kill is not an element

of felony murder” under Kansas law).

That brings us to defendant’s alternative argument:

that, if ORS 163.115(1)(b) imposes strict liability for causing

another person’s death in the course of committing a danger-

ous felony—as we have explained that it does—then it vio-

lates due process by “dispensing with a mental state element

for a violent felony criminal offense.” In defendant’s view, it

violates federal due process to convict someone of a “violent

2

At least one of the drafters of the 1971 Oregon Criminal Code, Professor

George M. Platt, expressly described the new felony-murder statute as creat-

ing “strict liability” for death caused in the commission of a qualifying felony,

while explaining why he supported adding the affirmative defense now codified

as ORS 163.115(3). See Tape Recording, Criminal Law Revision Commission,

Subcommittee No. 2, Nov 14, 1969, Tape 87, Side 1 (statement of Professor George

M. Platt, University of Oregon School of Law) (“[W]e have approached the outer

limits of the mens rea requirements with respect to murder in the felony-murder

doctrine. In effect what we have is strict liability when one who sets out to com-

mit a lesser felony with no mens rea—with no mental element of intending to kill

anyone—winds up as a murderer. Now that in most cases will still continue to be

the case because of the way we’ve got it drafted but there will be a door through

which the very unusual defendant will be able to exit from the charge of murder.”

(Emphasis added.)); see State v. Blair, 230 Or App 36, 55, 214 P3d 47 (2009), aff’d,

348 Or 72, 228 P3d 564 (2010) (quoting that legislative history).

704 State v. Monaco

felony criminal offense” like second-degree murder, which

carries heavy criminal penalties, without requiring a culpa-

ble mental state. Defendant argues that strict liability should

be limited to regulatory or public welfare offenses with minor

penalties, citing Rehaif v. United States, 588 US 225, 232,

139 S Ct 2191, 204 L Ed 2d 594 (2019) (“We have sometimes

declined to read a scienter requirement into criminal stat-

utes. But we have typically declined to apply the presumption

in favor of scienter in cases involving statutory provisions

that form part of a ‘regulatory’ or ‘public welfare’ program

and carry only minor penalties.” (Internal citation omitted.)).

The state responds that there is nothing unconstitu-

tional about felony murder being a strict liability crime. The

state points to case law from other jurisdictions upholding

strict-liability felony-murder statutes against due process

challenges. See, e.g., People v. Benson, 125 Misc 2d 843, 846,

480 NYS2d 811 (1984) (“All the courts which have addressed

this issue have ruled that the lack of the element of intent

does not violate due process of law.”); Brown v. State, 448

NE 2d 10, 15 (Ind 1983) (rejecting a due process challenge

to felony murder where the “[a]ppellant cite[d] no authority

for the proposition that because, under the felony murder

theory, there is no need to prove a specific intent to kill,

the statute is unconstitutional”); see also People v. Root, 524

F2d 195, 197 (9th Cir 1975), cert den, 423 US 1076 (1976)

(“Nothing in the United States Constitution deprives leg-

islatures of the power to impose upon those who kill their

victims in the course of inherently dangerous felonies the

same sanctions they choose for those who kill their victims

after meditation sufficient to satisfy the jurisdiction’s defi-

nition of first-degree murder.”). The state also notes that

there exists an affirmative defense to felony murder, which

the state views as lessening due process concerns.3 See ORS

3

We do not ourselves rely on the affirmative defense in ORS 163.115(3) in

concluding that the felony-murder statute does not violate federal due process.

Because a culpable mental state as to causation of death is not an element of the

offense (as we understand Blair), the affirmative defense does not create a risk

of burden-shifting on an element of the offense. See Sandstrom, 442 US at 524

(holding that it violates due process to shift the burden of proof on an element of

a criminal offense to the defendant). However, it does not necessarily follow that

the existence of the affirmative defense should favor the state in a due-process

analysis of felony murder as a strict liability offense. The state has not cited any

Cite as 336 Or App 684 (2024) 705

163.115(3) (providing for an affirmative defense to felony

murder where five specific facts are proved).

We disagree with defendant that, because felony

murder is a serious crime with serious consequences, it nec-

essarily violates federal due process to hold a person strictly

liable for a death that occurs during the commission of a

dangerous felony. The felony murder rule originated in the

common law nearly four centuries ago, Jens David Ohlin,

2 Wharton’s Criminal Law § 21:9 (16th ed 2024), and is codi-

fied in the statutes of nearly every state. A half-century ago,

a plurality of the United States Supreme Court described

the states’ authority to enact felony-murder statutes as

“beyond constitutional challenge,” Lockett, 438 US at 602,

and the Court has not called that statement into question in

the intervening decades. As one court has put it, the “contin-

ued vitality” of felony-murder statutes is “a strong indicator

of states’ power to impose strict criminal liability.” State v.

Maldonado, 137 NJ 536, 549, 645 A2d 1165 (1994).

Moreover, our own Oregon Supreme Court has

noted, “The Supreme Court of the United States, in apply-

ing the federal constitution, has generally refused to inter-

fere with the historical state power to create strict liabil-

ity crimes.” State v. Buttrey, 293 Or 575, 587, 651 P2d 1075

(1982). And we ourselves have held that imposing strict

liability for statutory rape, a felony that carries a five-year

prison term, does not violate due process. State v. Jalo, 72

Or App 479, 482, 696 P2d 14, rev den, 299 Or 443 (1985)

(“We agree with defendant that sexual intercourse with a

person under 16 is normally a strict liability crime, but we

hold that there is no constitutional infirmity in that fact.”

(Footnote omitted.)). We are unpersuaded that, by mere vir-

tue of being a strict liability offense, felony murder under

ORS 163.115(3) violates federal due process.

Affirmed.

authority on that point, and defendant is silent on it altogether. We need not

reach that issue, so we express no opinion on it.