# State v. Monaco

> Court of Appeals of Oregon · December 11, 2024 · 336 Or. App. 684

URL: https://www.frixlaw.com/law-library/cases/10762301

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** December 11, 2024
- **Citations:** 336 Or. App. 684
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Aoyagi
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10762301. Public record. Not legal advice.