State v. Monaco

No. 13 March 12, 2026 1

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

RYAN THOMAS MONACO,

Petitioner on Review.

(CC 17CR48942) (CA A177164) (SC S071665)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 5, 2025.

Neil F. Byl, Deputy Public Defender, Oregon Public

Defense Commission, Salem, argued the cause and filed the

brief for petitioner on review. Also on the brief was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section.

Erica L. Herb, Assistant Attorney General, Salem,

argued the cause and filed the brief for respondent on review.

Also on the brief were Dan Rayfield, Attorney General, and

Benjamin Gutman, Solicitor General.

BUSHONG, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

DeHoog, J., concurred and filed an opinion.

______________

* Appeal from Multnomah County Circuit Court, Michael A. Greenlick,

Judge. 336 Or App 684, 561 P3d 650 (2024).

2 State v. Monaco

Cite as 375 Or 1 (2026) 3

BUSHONG, J.

This criminal case requires us to decide two issues

relating to defendant’s convictions on two counts of felony

murder. The first issue is whether the trial court erred in

declining to suppress statements that defendant made

during a police interrogation after he was arrested for set-

ting fire to his estranged girlfriend’s apartment, killing her

two roommates. The second issue is whether Oregon’s felo-

ny-murder statute, ORS 163.115(1)(b), as applied to defen-

dant violates the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. The Court of

Appeals concluded that defendant’s statements were volun-

tary and thus admissible, and that the felony-murder stat-

ute did not violate defendant’s right to due process. State v.

Monaco, 336 Or App 684, 561 P3d 650 (2024). We allowed

review and now affirm on both issues.

As we will explain, our case law regarding the first

issue establishes that the ultimate question for the court is,

in the totality of the circumstances, whether defendant con-

fessed voluntarily, or his free will was overborne by improper

threats or inducements by the police. State v. Jackson, 364

Or 1, 430 P3d 1067 (2018). We agree with the Court of

Appeals that the trial court did not err in concluding that

the state met its burden of establishing that defendant’s free

will was not overborne; rather, he confessed voluntarily. On

the second issue, we conclude that the felony-murder stat-

ute, ORS 163.115(1)(b), as interpreted in State v. Blair, 348

Or 72, 228 P3d 564 (2010), did not violate defendant’s consti-

tutional right to due process.

I. FACTS AND PROCEEDINGS BELOW

The facts that are relevant to our review are those

related to the trial court’s denial of defendant’s motion to

suppress. We review a trial court’s ruling on a motion to

suppress for errors of law. State v. Ehly, 317 Or 66, 75, 854

P2d 421 (1993). Whether a confession was voluntary is a

question of law. Jackson, 364 Or at 21. In reviewing that

question for legal error, we are bound by the trial court’s fac-

tual findings if there is constitutionally adequate evidence to

support them, and we “presume that the facts were decided

4 State v. Monaco

in a manner consistent with the court’s ultimate conclusion”

if the trial court did not make express findings. Ehly, 317 Or

at 75. We summarize the facts from the trial court record in

accordance with that standard.

A. Historical Facts

Defendant began dating TM in 2013, and they

lived together in an apartment at various times from 2013

to 2017. Their relationship was volatile. In April 2017, TM

sought and obtained a restraining order, alleging that defen-

dant had assaulted her. Nevertheless, TM continued to see

defendant and she frequently invited him to the apartment

despite the restraining order. TM lived in the apartment

with two roommates, J and T.

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

together and they got into an argument. Defendant even-

tually drove TM home, and he entered her apartment to

use the bathroom. Fearing that their encounter was going

to “get ugly,” TM left while defendant was in the bathroom

and returned later that night to see whether defendant was

still at the apartment. As she drove into the parking lot,

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

but defendant followed and struck her car multiple times

as they drove on the freeway. TM eventually slammed on

her brakes, and defendant kept driving. TM called 9-1-1 to

report the incident and drove to her sister’s house.

Defendant returned to TM’s apartment and repeat-

edly called and texted TM, begging her to return to the

apartment. During one of those calls, he told TM that he

was going to drench her couch in gasoline and light it on fire.

He told TM that he would videocall her so that she could

watch him pour the gasoline. A short while later, defendant

called TM and told her that he was “really sorry,” that he

had “really fucked up,” and that he was going to take his

own life. A couple of minutes later, TM received a text mes-

sage from her other sister stating that TM’s apartment was

on fire. Surveillance footage from a neighboring property

captured video images of defendant leaving TM’s apartment

as the fire erupted.

Cite as 375 Or 1 (2026) 5

The fire spread quickly. TM’s roommates, J and T,

had been asleep in an upstairs bedroom at the time; they

died in the fire, along with a dog and three snakes. An arson

investigator determined that the fire had started in the liv-

ing room after someone had poured accelerant on the couch.

The police arrested defendant following a brief pursuit three

days after the fire. After the arrest, defendant was taken to

the hospital for medical treatment. He was released from

the hospital around 1:00 a.m. and taken to jail, where he

spent the night.

B. The Interrogation

Around noon the following day, Detectives Michaels

and Luiz took defendant to an interrogation room at the

jail. Michaels advised defendant of his Miranda rights, and

defendant stated that he understood his rights and agreed

to speak with her. The interrogation lasted about four hours.

Michaels began by asking defendant biographical

questions before inquiring about his relationship with TM

and the reason that she had obtained a restraining order

that excluded him from the apartment that they had pre-

viously shared. Defendant acknowledged that he had a vol-

atile relationship with TM but denied that he had ever hit

her. Defendant stated that, despite the restraining order,

TM had invited him to the apartment nearly every day.

Michaels then asked defendant about the events of

the day and night leading up to the fire. Defendant said that

he and TM had gone to a bar, they had an argument, and he

had driven her home around 1:30 a.m. Defendant claimed

that he left the apartment at about 2:00 a.m. and spent

the rest of the night hanging out with his cousin Larry.

Defendant stated that he had learned about the fire when a

neighbor called him between 4 and 5 a.m. He suggested that

TM or one of her roommates could have started the fire.

Michaels then suggested that they take a break and

offered to get defendant water or anything else he needed.

When she returned to the interview room, Micheals told

defendant that she had looked at TM’s phone and could tell

from his calls and text messages that he had remained in

the apartment until about 3:20 a.m., and that a neighbor’s

6 State v. Monaco

security camera had shown him leaving the apartment

when the fire started. Michaels then asked defendant to

tell her what “really happened,” stating that she knew that

defendant had threatened to soak TM’s couch in gasoline.

Defendant responded by stating that he did not remember

starting the fire.

Michaels then told defendant that it would “ease”

his pain if he took responsibility and that this was his oppor-

tunity to help TM and the victims’ families. She indicated

that people often feel better when “they own up to stuff.”

Defendant responded that TM had started the fire. Michaels

said that TM “wasn’t there” and that they had “pinged” her

phone and knew that she was not at the apartment when

the fire started. Michaels asked defendant what “made him

do this,” and defendant responded that nothing would make

him do this. He then asked for some water.

Michaels left the interrogation room, returning with

a glass of water for defendant. Michaels then outlined some

of the evidence showing that defendant had started the fire

and told him that the victims’ families deserved to know

what had happened. Defendant began to cry and stated that

he was trying to remember what had happened.

At that point, Michaels suggested that they take a

break and told defendant that she had to fill out some paper-

work. She stated that this would give defendant a chance to

“think a little bit” about what he wanted to say, considering

the evidence showing that he had started the fire. Luiz then

interjected and said that the evidence would show what had

happened, and that “everybody” was going to see whether

defendant was being honest or dishonest. Luiz told defen-

dant that this was “his opportunity to be honest”; that a

judge, jury, prosecutor, and the victims’ families would know

if he was being honest; and that no one would believe him if

he said he did not remember starting the fire.

Michaels then told defendant that the detectives

were going to “fill out paperwork” and that it was going to

“take a little while.” She told defendant that, if he wanted

to talk to them while they filled out the paperwork, he could

let them know. She told defendant to think more about his

Cite as 375 Or 1 (2026) 7

“story” and told him that, regardless, he was going to jail

“on charges related to this.” Defendant asked, “What’s going

to happen today?” Michaels responded that, after she filled

out the paperwork, he would be booked into jail. She told

defendant that this was his “opportunity” to tell them what

had happened, and that she wanted him to “sit for a while.”

The detectives and defendant then left the interrogation

room.

About fifteen minutes later, defendant and the

detectives returned to the interrogation room. Michaels had

papers in her hands and told defendant that she was filling

out a custody report with his biographical information and

information about the charges. She did not tell him what

those charges were. Luiz then asked defendant if he had

thought about this while he was in his cell and stated:

“Here it is. Right? We are filling out the paperwork, bro.

This is it. This is it. The last time that we are going to

talk. The last time you have an opportunity to tell us what

happened. * * * Once we are done here, you are going to jail.

And we are not going to be able to talk any more. You have

this opportunity. This one right here.”

Luiz tapped his finger on the table as he made those

comments.

Defendant then asked if he could call his kids’ mom.

Michaels responded that they could “arrange that in a lit-

tle bit.” Defendant then stated that there was “something

wrong with him,” that he did not want to waste their time,

and that he was sorry, but he did not do it.

At that point in the interrogation, Michaels told

defendant that they knew what had happened, and that he

was facing charges of arson and “agg murder.” She asked

defendant if he knew what “agg murder” was. Defendant

responded that he did not, and Michaels said that “agg mur-

der happens when you intentionally do things like this.” She

told defendant that they had not told him about all the evi-

dence that they had, but that they had told him the parts

that he needed to know so that he could understand that

“we know it’s you.” Michaels then stated that there was

8 State v. Monaco

evidence that accelerant was used not only on the couch, but

also “going up the stairs,” and that showed “intentionality.”

Michaels then asked defendant, “Did you intention-

ally do something so that [the roommates] couldn’t get out?”

She told defendant, “[T]hat’s what we are looking at right

now.” Michaels stated that defendant “seemed surprised” by

her statement that accelerant had been found on the stairs,

and she asked him why. Defendant responded that he “just

thought it was poured all over the couch.” Michaels asked

why he thought that. Defendant responded that he had

learned from his sister that the couch was where the fire

had started. Michaels then said, “I think you know because

that’s where you started it. And you would know that it

wasn’t up the stairs.”

Michaels then stated that she was “trying to fig-

ure out” whether defendant had started the fire intending

to kill the roommates, or whether he had started the fire “to

give [TM] a message.” She stated that there were “different

aspects” to each of those scenarios, and that they carried

“different amounts of * * *.” She did not finish the sentence;

defendant interrupted and said, “I know.” Michaels then said

that they knew that defendant was in the apartment and

that they were asking questions to learn his “motivation.”

Defendant then responded that he did not want to

hurt anyone. Michaels asked, “then what did happen, Ryan?”

Defendant paused, and then asked again if he could call his

kids’ mom. Michaels said that he could call her as soon as

they were “done here,” and stated that “I need you to talk to

me first, please.” Defendant paused and said, “Let me try to

figure it out.” Michaels responded, “Okay.” Defendant then

stated, “I didn’t mean for any of this to happen.” Michaels

responded, “I believe that.” Defendant asked whether he

was going to “go away for life for this.” Michaels responded

that “different amounts of time” go with “different things”

and that she would not know the answer until she heard the

“full story.”

At that point, defendant asked if he could talk to

Michaels alone. Luiz left the room. Defendant then told

Michaels that he had poured gasoline on TM’s couch, but

Cite as 375 Or 1 (2026) 9

that he did not pour any on the stairs or intend to start the

fire. He said that he did not remember lighting the gasoline

and stated that the fumes must have accidentally ignited

when he tried to light a cigarette. Michaels told defendant

that that was not possible. As the interrogation concluded,

defendant continued to claim that he did not intentionally

light the couch on fire.

C. Trial Court Proceedings

Defendant was indicted and charged with numerous

crimes relating to the fire, including two counts of second-

degree murder based on felony murder. He filed a demurrer

to the felony-murder counts, contending that the felony-mur-

der statute, ORS 163.115(1)(b), violated his federal right to

due process. Specifically, defendant contended that the stat-

ute required a factfinder to conclusively presume a culpable

mental state as to the causation of death, and that such a

presumption violated the Due Process Clause. Alternatively,

defendant contended that Oregon’s felony-murder statute

created a strict liability offense that violated due process by

dispensing with a culpable mental state regarding causation

of death. The trial court denied the demurrer.

Defendant also filed a pretrial motion to suppress

the statements that he had made to Michaels and Luiz

during the interrogation, contending that his statements

were not voluntary. Michaels testified at the hearing on the

motion to suppress, and a video of the interrogation was

shown to the court. The trial court denied the motion to sup-

press, concluding that defendant’s statements were volun-

tary. The trial court made factual findings regarding defen-

dant’s condition at the time of the interrogation, the nature

of the interrogation, and Michaels’s demeanor at the time.

Specifically, the trial court found that defendant

was “struggling” and “upset” at times during the interview,

but that he showed no signs of intoxication; the hospital had

found nothing physically wrong with him; defendant had

the opportunity to sleep the night before the interrogation;

and he did not appear to be suffering psychologically more

than expected when being interrogated about a fire where

two people had died. The court also found that Michaels was

10 State v. Monaco

calm, patient, and empathetic throughout the interrogation,

and that she had never “really turned up the heat at all.” In

addition, the court noted that the detectives had accommo-

dated defendant’s requests for breaks or water, and that the

fact that defendant had asked to speak to Michaels alone

demonstrated to the trial court that he was comfortable

speaking with her.

The case proceeded to trial, and defendant was con-

victed of numerous counts, including the two felony-mur-

der counts. Defendant appealed, and the Court of Appeals

affirmed the convictions, concluding that the trial court did

not err in denying defendant’s motion to suppress and in

denying the demurrer to the felony-murder counts. Monaco,

336 Or App at 686. We allowed review on both issues.

II. DISCUSSION

As noted above, we review the denial of defendant’s

motion to suppress for legal error, and we also review the

denial of his demurrer to the two felony-murder counts for

legal error. See State v. Fanus, 336 Or 63, 67-74, 79 P3d 847

(2003) (applying principle in affirming denial of demurrer

challenging constitutionality of aggravated murder sentenc-

ing statutes). We begin with the motion to suppress.

A. Motion to Suppress Defendant’s Statements

Defendant contends that the statements he made

were not voluntary, requiring their suppression under ORS

136.425; Article I, section 12, of the Oregon Constitution;

and the Fifth and Fourteenth Amendments to the United

States Constitution. Applying our traditional approach, we

first address defendant’s arguments under the Oregon stat-

ute and constitution before addressing the federal constitu-

tional claim. See State v. Babson, 355 Or 383, 432-33, 326

P3d 559 (2014) (describing the “first things first” approach).

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 defendant when it was made under the influence of fear

or produced by threats.” The purpose of the statute is “to

exclude potentially false—and thus unreliable—confessions

Cite as 375 Or 1 (2026) 11

from evidence.” State v. Powell, 352 Or 210, 222, 282 P3d 845

(2012). Article I, section 12, of the Oregon Constitution, pro-

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

criminal prosecution to testify against himself.” The pur-

pose of the constitutional provision is “[t]o protect a person’s

right against compelled self-incrimination.” State v. Roble-

Baker, 340 Or 631, 638, 136 P3d 22 (2006).

In addition to serving different purposes, we have

determined that, unlike the constitutional provision, the

statute is not limited “to confessions induced by and made

to state actors.” Powell, 352 Or at 222-23. That distinction

between the statute and Article I, section 12, makes no dif-

ference in this case, and this court has recognized that both

provisions “embody the common-law rule that confessions

made by a defendant in custody that were ‘induced by the

influence of hope or fear, applied by a public officer having

the prisoner in his charge,’ are inadmissible against the

defendant.” Jackson, 364 Or at 21 (quoting Powell, 352 Or at

218).

The state has the burden of proving, by a prepon-

derance of the evidence, that a confession was voluntary.

Powell, 352 Or at 225-26. The voluntariness of an admis-

sion or confession “depends on whether or not, in the totality

of the circumstances, a defendant’s free will was overborne

and his or her capacity for self-determination was critically

impaired.” Jackson, 364 Or at 21. Giving Miranda-type

warnings at the outset of an interrogation is a relevant fac-

tor, but it “is not a guarantee that statements made after

the warnings are voluntary.” Id.

Defendant contends that the trial court erred in

concluding that the state met its burden here, because the

detectives “conveyed an implied promise of leniency” by sug-

gesting that defendant would be less culpable and would

receive more lenient treatment if he confessed to starting

the fire without intending to kill anyone. Defendant con-

tends that, like the detectives in Jackson, the detectives in

this case employed an interrogation method that is gener-

ally known as the “Reid technique.” See Jackson, 364 Or

at 28-29 (describing the “Reid technique” as a method that

“involves isolating a suspect in a small room to increase

12 State v. Monaco

anxiety; confronting the suspect with accusations of guilt

and emphasizing the strength of the evidence against the

suspect; offering sympathy and justifications or rational-

izations to allow the suspect to minimize the crime; and

encouraging the suspect to see confession as a means of

terminating the interview” (citing S. Kassin et al, Police

Induced Confessions: Risk Factors and Recommendations,

34 Law & Hum Behav 3, 6 (2010))).

According to defendant, the detectives in this case,

following the “Reid technique,” employed “maximization

tactics” by confronting defendant with evidence that tended

to show that he intentionally killed the upstairs roommates

by setting fire to the couch and staircase, followed by “min-

imization tactics” by implying that defendant would receive

the benefit of lesser charges if he confessed to starting the

fire without intending to kill anyone. We agree that the

detectives appear to have generally utilized the “Reid tech-

nique” and employed maximization and minimization tac-

tics during the interrogation. However, Jackson expressly

rejected the defendant’s suggestion “that the use of the Reid

technique or other strategies to obtain information from a

suspect is necessarily coercive or will always require the

exclusion of inculpatory statements.” 364 Or at 31. Rather,

the question a trial court must decide “is not whether a par-

ticular interrogation method was used, but whether, consid-

ering the totality of the circumstances, the suspect’s will

was overborne.” Id.

Our analysis of that issue in Jackson is instructive.

There, we observed that this court “has long recognized”

that confessions made because of impermissible induce-

ments consisting of “suggestions of leniency” are not reliable.

Id. at 22. That is because confessions “ ‘rendered under cir-

cumstances in which the confessor perceives that he or she

may receive some benefit or avoid some detriment by con-

fessing, regardless of the truth or falsity of the confession,’ ”

are unreliable. Id. at 23 (quoting Powell, 352 Or at 222). On

the other hand, our cases have drawn “a distinction between

permissible ‘mere adjuration’ and ‘adjuration accompanied

by inducement.’ ” Id. at 24 (quoting State v. Linn, 179 Or 499,

510, 173 P2d 305 (1946)). A permissible “mere adjuration”

Cite as 375 Or 1 (2026) 13

occurs, for example, “where defendants [have] been told,

as a general matter, that it would be better if they told the

truth, or that they would feel better if they told the truth[.]”

Id. By contrast, an impermissible inducement “is one that

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

Applying those principles in Jackson, we concluded

that the detectives’ statements in that case that involved

two basic themes—relieving the defendant’s conscience and

easing the suffering of the victims’ families—were generally

permissible as “mere adjurations.” Id. at 25. But we further

concluded that statements “concerning the legal ramifica-

tions of [the] defendant’s failure to confess” and statements

“about how the interrogation itself would proceed” were

potentially coercive. Id.

In the first category of potentially coercive state-

ments, we noted that the detectives’ statements in Jackson

moved “from the fairly benign to the more legally signifi-

cant.” Id. The “fairly benign” statements included those sug-

gesting that it “would * * * [be] best for everybody” if the

defendant confessed and that they were trying to “help”

the defendant by encouraging him to confess. Id. But other

statements regarding the consequences of a failure to con-

fess were more legally significant. That included statements

implying that the defendant might become a suspect in other

murders if he did not confess; that the jury would hear “irre-

futable” evidence of the defendant’s guilt and would “react

badly” if he did not confess; that the detectives, the victims’

families, and the jury would view the defendant as a “mon-

ster” if he did not confess; and that the detectives would do

everything they could to ensure that he received a harsh

sentence. Id.

In the second potentially coercive category—state-

ments about how the interrogation itself would proceed—the

detectives in Jackson had stated that they were giving the

defendant “his only significant chance to confess” because

anything he said later would sound as though he were “cook-

ing a story.” Id. In addition, the detectives said that they were

prepared to continue the interrogation “all day” and into a

second day, if necessary; that they were “working together”

with defendant; and that “he would not be permitted to talk

14 State v. Monaco

to his family” until they had “worked through” these issues.

Id. at 25-26. Taken together, we viewed those statements

as “potentially problematic” because they “conveyed to [the]

defendant that he ‘may receive some benefit or avoid some

detriment by confessing, regardless of the truth or falsity of

the confession.’ ” Id. at 27 (quoting Powell, 352 Or at 222).

We ultimately agreed with the trial court that

Jackson was “a close case.” Id. at 31. On the one hand, the

detectives “were skilled, and they may have succeeded in

convincing [the] defendant to voluntarily tell them what

happened, to the best of his memory.” Id. at 31-32. In that

regard, we noted that the detectives “did not make any

promise of immunity” and had explained that the defendant

would be charged with murder no matter what he said. Id.

at 32. In addition, they had informed the defendant of his

right to remain silent and to consult with counsel; they had

permitted the defendant to take breaks upon request and

were not consistently “hostile”; and “[f]or the most part,” the

detectives “appealed to [the] defendant’s better nature and

encouraged him to help the families of the victims.” Id.

On the other hand, we noted that the defendant in

Jackson had been diagnosed with schizophrenia; that he

had experienced delusions in the past; that he took medi-

cation for depression; and that he had significant memory

problems and physical disabilities. Id. In addition, the detec-

tives had isolated the defendant; did not allow him to call

his family until they had “worked through” things; and con-

tinued to question him for a significant length of time. Id.

The detectives also told him that it would be best for him to

confess because that might eliminate him as a suspect in

additional crimes and would give him more control over how

the case would proceed; they also said that they would do

their best to ensure that he received the maximum possible

sentence if he did not confess. Id. We indicated that none of

those factors, “[v]iewed independently,” would be dispositive,

but “together they indicate that the detectives’ methods and

inducements may have persuaded [the] defendant to tell the

detectives what they wanted to hear, whether or not that

was the truth.” Id. Ultimately, considering the totality of the

circumstances, we agreed with the trial court that the state

Cite as 375 Or 1 (2026) 15

had not met its burden of establishing that the defendant’s

admissions were voluntary. Id.

Applying those principles here, we note that the

interrogation that detectives Michaels and Luiz conducted is

similar in some ways to the interrogation that the detectives

conducted in Jackson. The detectives here informed defen-

dant of his right to remain silent and to consult with counsel;

they did not make any express promise of leniency; and they

were not overtly hostile during the interrogation. Michaels

was calm, patient, and empathetic during the interrogation,

as the trial court found. For the most part, the detectives

appealed to defendant’s conscience and the effect his con-

fession would have on the victims’ families. They told defen-

dant that he was going to jail on charges related to the fire

regardless of what he said. On the other hand, the detectives

indicated that defendant was potentially facing aggravated

murder charges, that it would be better for defendant if he

confessed, and that the judge and jury “would know” if he

had told the truth. In addition, they conveyed to defendant a

sense of urgency, telling him that this was his “opportunity”

to tell the truth, and that he needed to do so before they

finished filling out the paperwork on his case. Luiz became

more insistent toward the end of the interrogation. And the

detectives declined to allow defendant to call his children’s

mother until they finished the interrogation.

As in Jackson, none of those factors, in isolation,

is dispositive. We hold that the trial court did not err in

concluding, under the totality of the circumstances, that

defendant’s statements were voluntary. Although the inter-

rogation here was like the interrogation in Jackson in some

respects, it was different enough to support a different

conclusion.

Unlike the interrogation in Jackson, the detectives

here did not state that defendant would be considered a sus-

pect in other crimes if he did not confess. The interroga-

tion took place after defendant had an opportunity for a full

night’s rest; he showed no signs of intoxication or impair-

ment; the interrogation lasted four hours and was con-

ducted in the middle of the day; and the detectives did not

threaten to keep interrogating defendant “all day” and into

16 State v. Monaco

a second day, as the detectives in Jackson had threatened.

And although defendant had required medical attention the

night before the interrogation and stated at one point that

“something” was wrong with him, unlike the defendant in

Jackson, defendant does not have a history of significant

mental illness, memory problems, and physical disabilities.

Finally, defendant was comfortable speaking to Michaels

alone and maintained at the end of the interrogation that

he did not remember starting the fire, indicating that he

did not just tell the detectives what they wanted to hear. All

things considered, we conclude that the trial court did not

err in determining that the preponderance of the evidence

supports the conclusion that defendant’s statements during

the interrogation were voluntary, and that his will was not

overborne by any implied threats or promises of leniency.

We reach the same conclusion on defendant’s con-

tention that his statements should have been suppressed

under the Fifth and Fourteenth Amendments to the United

States Constitution. As under the Oregon Constitution, the

state must prove voluntariness by a preponderance of the

evidence. Lego v. Twomey, 404 US 477, 489, 92 S Ct 619, 30

L Ed 2d 618 (1972). Under the United States Constitution,

we must examine the totality of the circumstances to deter-

mine whether a confession was made “freely, voluntarily,

and without compulsion or inducement of any sort.” Haynes

v. Washington, 373 US 503, 513, 83 S Ct 1336, 10 L Ed 513

(1963) (citation and internal quotation marks omitted). For

the reasons stated above in connection with our state con-

stitutional analysis, we conclude that the trial court did not

err in declining to suppress defendant’s statements under

the United States Constitution.

B. Due Process Challenge to Felony-Murder Convictions

As stated, defendant contends that the application

of the felony-murder statute, ORS 163.115(1)(b), in this case

violates the Due Process Clause. Specifically, defendant con-

tends that the statute either required a factfinder to conclu-

sively presume that defendant acted with a culpable mental

state as to causing death or creates a strict liability offense

for felony murder. In either case, according to defendant, the

statute violates the Due Process Clause. See Nelson E. Roth

Cite as 375 Or 1 (2026) 17

& Scott E. Sundby, The Felony-Murder Rule: A Doctrine at

Constitutional Crossroads, 70 Cornell L Rev 446, 449 (1985)

(suggesting that courts must either characterize the felo-

ny-murder rule as a conclusive presumption or as a strict

liability offense and contending that the rule violates due

process either way).

Defendant first contends that ORS 163.115(1)(b)

gives rise to a conclusive presumption and that such a pre-

sumption violates due process under Sandstrom v. Montana,

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

dant in Sandstrom was convicted of deliberate homicide for

“purposely or knowingly” causing the death of the victim.

442 US at 512. The defendant admitted killing the vic-

tim, but he contended that he did not do so “purposely or

knowingly.” Id. The issue before the United States Supreme

Court was whether instructing the jury that the law “pre-

sumes that a person intends the ordinary consequences of

his voluntary acts” violated the Fourteenth Amendment’s

requirement that the state must prove every element of a

criminal offense beyond a reasonable doubt. Id. at 513. The

Court held that the instruction violated the defendant’s

right to due process. Id. at 525. The problem with such an

instruction, the Court explained, was that the jury “could

reasonably have concluded that they were directed to find

against [the] defendant on the element of intent.” Id. at 523.

As a result, the state was not required to prove beyond a

reasonable doubt “every fact necessary to constitute the

crime” charged. Id. Thus, the Supreme Court held that the

jury may have interpreted the instruction “as constituting

either a burden-shifting presumption[,] * * * or a conclusive

presumption[,]” and that “either interpretation would have

deprived [the] defendant of his right to the due process of

law[.]” Id. at 524.

Under Sandstrom, a statute that results in a burden-

shifting or conclusive presumption as to a material element

of the offense violates due process. Defendant contends that

ORS 163.115(1)(b) is such a statute, because it gives rise to a

conclusive presumption of a culpable mental state as to caus-

ing death. According to defendant, Oregon’s felony-murder

statute gives rise to that conclusive presumption, because

18 State v. Monaco

(1) felony murder is criminal homicide under Oregon law;

(2) ORS 163.005(1) defines “criminal homicide” as “inten-

tionally, knowingly, recklessly or with criminal negligence

caus[ing] the death of another human being”; and (3) this

court concluded in Blair, 348 Or 72, that felony murder in

Oregon does not require proof of a separate culpable mental

state as to causing death despite ORS 163.005(1).

We agree that, under Blair, felony murder does not

require proof of a separate culpable mental state as to caus-

ing death, notwithstanding ORS 163.005(1). But that does

not mean that a separate culpable mental state as to caus-

ing death is a required element of felony murder that is con-

clusively presumed in Oregon. Instead, as Blair concludes,

the only culpable mental state required for felony murder

in Oregon is established as a matter of law when the state

proves the culpable mental state required for the predicate

felony. Because there is no separate culpable mental state

required for causing death on a felony-murder charge, the

law does not conclusively presume any element that the

state is required to prove.

The state charged the defendant in Blair with fel-

ony murder and other crimes. 348 Or at 74. Before trial,

the defendant demurred to the felony-murder charge, con-

tending that, “because felony murder is a form of criminal

homicide, the state was required to allege in the indictment

one of the mental states described in ORS 163.005(1)[.]” Id.

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

At trial, the defendant requested jury instructions that

would have required the state to prove that he “had caused

the victim’s death knowingly, recklessly, or with criminal

negligence as one of the elements of felony murder.” Id. at

75. The trial court refused to give those instructions, and a

jury convicted the defendant of felony murder. Id. The Court

of Appeals affirmed that conviction. Id. We allowed review

to determine whether the definition of criminal homicide in

ORS 163.005(1) applies to felony murder, as codified in ORS

163.115(1)(b), “in such a way that felony 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

Cite as 375 Or 1 (2026) 19

from any mental state required to prove the underlying fel-

ony.” Id. at 75.

In resolving that question, we first noted that,

before the Criminal Code revisions in 1971, this court had

“consistently incorporated an ‘implied malice’ rule into fel-

ony murder, that is, felony murder contains no distinct or

independent mens rea requirement in relation to the cause

of death of the victim.” Id. at 78 (citing State of Oregon v.

Brown, 7 Or 186, 198, 204 (1879); State v. Branch, 244 Or 97,

100, 415 P2d 766 (1966); State v. Dorland, 161 Or 403, 404,

89 P2d 595 (1939)). Thus, when the legislature adopted ORS

163.005 and ORS 163.115 in 1971,

“the felony murder rule, as construed and applied by this

court, long had operated to impose responsibility for homi-

cides that occur during the commission or attempted com-

mission of a felony, without the separate and additional

requirement that the defendant acted with a mens rea in

causing the death of another person.”

Id. (emphasis added). And we further noted that this court,

in cases decided after those statutes were adopted in 1971,

had “continued to treat felony murder as requiring no dis-

tinct or independent mens rea with respect to the cause of

the victim’s death.” Id. (citing State v. Link, 346 Or 187, 205,

208 P3d 936 (2009); State v. Zweigart, 344 Or 619, 626, 188

P3d 242 (2008), cert den, 558 US 829 (2009); State v. Quinn,

290 Or 383, 405 n 8, 623 P2d 630 (1981), overruled on other

grounds by State v. Hall, 339 Or 7, 115 P3d 908 (2005)). We

saw nothing in the statutes to indicate “that the legislature

intended to change that long-standing rule.” Id. at 79. And

we noted that “much [of] the legislative history suggests

that the legislature intended to adhere to it.” Id. at 80.

In summary, we determined in Blair that the text,

context—including this court’s case law—and the legislative

history of the felony-murder statutes “compel the conclusion

that the legislature intended to continue the implied mal-

ice rule.” Id. And as we noted in Blair, that “implied malice

rule” does not require a “distinct or independent mens rea

requirement in relation to the cause of death of the victim.”

Id. at 78. Accordingly, we concluded without further expla-

nation that

20 State v. Monaco

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

that a defendant act with a culpable mens rea with respect

to causing the victim’s death; (2) under ORS 163.005(2),

‘criminal homicide’ includes ‘murder,’ and (3) under ORS

163.115(1)(b), requisite culpable mens rea is established, as

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

commission of the predicate felony.”

Id. at 80 (emphasis added).1 Thus, the trial court “properly

overruled [the] defendant’s demurrer and properly refused

to give [the] defendant’s requested jury instruction.” Id.

Defendant does not contend that Blair was wrongly

decided, nor are we otherwise persuaded at this time to

revisit that opinion, so we adhere to its holding.2 We did not

conclude in Blair that a culpable mental state as to causing

death was conclusively presumed for felony murder. Rather,

we concluded that a separate culpable mental state as to

causing death was not required, and that the only culpable

mental state required for felony murder could be established

by proof that the defendant committed the predicate felony

with its requisite mental state.3 And as we will explain, we

1

In concluding that a separate culpable mental state with respect to causing

the victim’s death was not required for felony murder in Oregon, the Blair court

acknowledged that ORS 163.005(1) required a culpable mental state with respect

to causing the victim’s death for “criminal homicide,” including “murder.” The

court’s reading of that statute in conjunction with ORS 163.115(1)(b) meant that

any required culpable mental state for causing death was established as a matter

of law by proof of the culpable mental state for the predicate felony, and that a sep-

arate culpable mental state as to causing death was not required. The concurring

opinion disagrees, stating that “the most sensible way” to read Blair’s conclusion

is that the term “culpable mens rea” in point (3) refers to ORS 163.005(1) and (2),

not to the statute that immediately precedes that phrase, ORS 163.115(1)(b). 375

Or at 30 (DeHoog, J., concurring). Although the Blair opinion states its conclusion

without further explanation, as noted, the concurrence’s reading of that conclusion

cannot be “the most sensible way” to read it, because that reading violates the doc-

trine of the last antecedent, a “long-recognized grammatical principle” ordinarily

used in interpreting statutes. State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996).

Under that principle, “[r]eferential and qualifying words and phrases, where no

contrary intention appears, refer solely to the last antecedent.” Id. (citation and

internal quotation marks omitted). Thus, a phrase “usually is construed to apply

to the provision or clause immediately preceding it.” Id.

2

Because there was no due process issue asserted in Blair, the court did not

address whether its reading of the felony-murder statutes effectively resulted in

a conclusive presumption for purposes of the Due Process Clause.

3

The concurring opinion states that a culpable mental state as to causing

death is an element of felony murder, but that it is an element that the state is

not required to prove. 375 Or at 38 (DeHoog, J., concurring). Our Criminal Code

defines crimes in terms of the elements that the state must prove at trial. The

Cite as 375 Or 1 (2026) 21

conclude in this case that Oregon’s felony-murder statute, as

interpreted in Blair, does not violate due process.

Sandstrom is not to the contrary, and no other

United States Supreme Court case has addressed the issue.4

The defendant in Sandstrom was charged with deliberate

homicide, not felony murder, so the United States Supreme

Court did not decide in that case whether a state’s felo-

ny-murder statute constituted a burden-shifting or conclu-

sive presumption that violated due process. But the high-

est courts in other states have addressed the issue. Those

courts have consistently determined that state felony-mur-

der statutes that, like Oregon’s law, do not require proof of

a separate culpable mental state as to causing death, do not

result in a conclusive presumption that violates due process.

For example, in State v. Patterson, 311 Kan 59,

61-62, 455 P3d 792, 795 (2020), the defendant contended that

his felony-murder conviction violated due process because

Kansas law “requires an intent-to-kill element for homicide”

that is eliminated for felony murder because “that intent is

conclusively presumed based only on the jury’s finding [that]

Uniform Criminal Jury Instructions are all written in terms of the elements that

the state must prove for each offense. See, e.g., UCrJI 1305 (listing the elements

that “the state must prove beyond a reasonable doubt” to establish the crime

of second-degree felony murder). The concurring opinion does not explain how

something can be a required element of an offense if the state is not required to

prove it.

4

The state contends that felony-murder statutes are “beyond constitutional

challenge” under Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 L Ed 2d 973 (1978).

We disagree. The defendant in Lockett drove the getaway car in a robbery-mur-

der. 438 US at 590-51. She was convicted of aggravated murder and sentenced

to death. Id. at 597. The main issue before the Supreme Court was the constitu-

tionality of the death sentence, but the Court also addressed—albeit briefly—a

due process challenge to her conviction. The defendant contended that the Ohio

Supreme Court’s interpretation of the “complicity provision” of Ohio’s aggravated

murder statute “was so unexpected that it deprived her of fair warning of the

crime with which she was charged” in violation of the Due Process Clause. Id.

The Supreme Court disagreed, concluding that the Ohio Supreme Court’s opinion

“shows clearly” that the construction given the statute was consistent with prior

Ohio law and the statute’s legislative history. Id.

The Court then stated, in the context of addressing the defendant’s constitu-

tional challenge to the death sentence, that “States have authority to make aid-

ers and abettors equally responsible, * * * or to enact felony-murder statutes” and

that such a proposition “is beyond constitutional challenge.” Id. at 602 (emphasis

added). That statement was in a section of the opinion that was joined by only

four justices, and it did not amount to a holding that state felony-murder statutes

are beyond constitutional challenge. Id. at 589, 602.

22 State v. Monaco

the defendant was participating in an inherently danger-

ous felony.” The Kansas Supreme Court disagreed, holding

that the Kansas felony-murder statute “does not operate as

an unconstitutional, conclusive presumption that invades

the jury’s province.” Id. at 67, 455 P3d at 798. The court

explained that, under Kansas law, “intent to kill is not an

element of felony murder” and that the statute “expressly

requires proof that the defendant engaged in dangerous,

felonious conduct and that a death occurred as a result of

that conduct.” Id. at 67, 455 P3d at 798.5 The court concluded

that, “[b]y codifying participation in the felony as a statu-

tory alternative for the intent and premeditation otherwise

required for a first-degree murder conviction, the statute

imposes a rule of law. It does not remove from the jury’s con-

sideration an intent element required by a criminal statute.”

Id.

In State v. Burkhart, 325 Mont 27, 103 P3d 1037

(2004), the Montana Supreme Court distinguished the trans-

fer of felonious intent under Montana’s felony-murder statute

from the type of conclusive presumption that the Supreme

Court disapproved in Sandstrom. The court first noted that,

under the Montana statute, the defendant’s “purpose and

knowledge to commit felony-murder was presumed when he

assaulted [the victim] * * * causing [the victim’s] death.” 325

Mont at 40-41, 103 P3d at 1046.6 But, the court explained,

5

The Kansas felony-murder statute addressed in Patterson provided that

“[m]urder in the first degree is the killing of a human being committed: (1) inten-

tionally, and with premeditation; or (2) in the commission of, attempt to com-

mit, or flight from any inherently dangerous felony.” Kan Stat Ann § 21-5402(a).

The Kansas statute does not include a definitional provision for “murder” or

“homicide” that imports a general term like “criminal homicide” into its defi-

nition of murder comparable to ORS 163.005(1). The Patterson court noted that

the Kansas Supreme Court had “long recognized” that, in felony-murder cases,

“ ‘the elements of malice, deliberation, and premeditation which are required for

murder in the first degree are deemed to be supplied by felonious conduct alone if

a homicide results.’ ” 311 Kan at 63, 455 P3d at 796 (quoting State v. Hobbs, 248

Kan 342, 345-46, 807 P2d 120, 124 (1991), overruled on other grounds by State v.

Berry, 292 Kan 493, 254 P3d 1276 (2011)).

6

The Montana felony-murder statute addressed in Burkhart provided that a

person “commits the offense of deliberate homicide” if the person

“attempts to commit, commits, or is legally accountable for the attempt or

commission of * * * assault with a weapon * * * or any other forcible felony

and in the course of the forcible felony or flight thereafter, the person or any

person legally accountable for the crime causes the death of another human

being.”

Cite as 375 Or 1 (2026) 23

such a presumption “is not analogous to that derided in

Sandstrom.” Id. at 42, 103 P3d at 1047. That is because the

presumption created by the felony-murder statute “does not

operate to shift a burden from the state to the defendant,

but rather substitutes proof of the mental state necessary to

commit a homicide with proof of the mental state required

to commit the underlying felony.” Id. at 42, 103 P3d at 1047

(brackets omitted). Thus, the court concluded, “because the

felony-murder rule does not in fact raise a presumption of

the existence of an element of the crime, it does not violate

the [D]ue [P]rocess [C]lause.” Id. at 42, 103 P3d at 1047.

In State v. Wanrow, 91 Wash 2d 301, 588 P2d 1320

(1978), superseded by statute, 1975 Wash Sess Laws 863, as

recognized in In re Personal Restraint of Andress, 147 Wash

2d 602, 56 P3d 981 (2002), the Washington Supreme Court

addressed a due process challenge to the prior version of

Washington’s felony-murder statute.7 The court noted that,

under the Washington statute, where a willful assault

resulted in death, a prosecutor can allege and prove felony

murder “and not have to show intent to kill.” 91 Wash 2d at

307, 588 P2d at 1323. The defendant argued that the felo-

ny-murder statute violates due process because it “conclu-

sively presumes the existence of an intent to kill from the

existence of the malicious felonious intent,” thereby shifting

the burden to the defendant “to prove the lack of intent to

kill[.]” Id. at 311, 588 P2d at 1325. The Washington Supreme

Court disagreed, explaining that “intent to kill is not an

element of second-degree felony-murder” under Washington

law. Id. at 311, 588 P2d at 1325. Instead, “[t]he intent nec-

essary to prove the felony-murder is the intent necessary

to prove the underlying felony.” Id. at 311, 588 P2d at 1325.

The court agreed with other state and federal courts that

had “rejected the argument that the felony-murder rule

Mont Code Ann § 45-5-102(1)(b). In addition to felony murder, a person could com-

mit “deliberate homicide” under the Montana statute by “purposely or knowingly

caus[ing] the death of another human being.” Id. § 45-5-102(1)(a).

7

Like the Montana statute addressed in Burkhart, the Washington statute

addressed in Wanrow provided that the killing of a human being, unless it is

excusable or justifiable, is murder in the second degree when it is “(1) [c]ommitted

with a design to effect the death of the person killed or of another, but without

premeditation; or (2) [w]hen perpetrated by a person engaged in the commission

of, or in an attempt to commit, or in withdrawing from the scene of, a felony[.]”

Former Wash Rev Code § 9.48.040 (1974), repealed by 1975 Wash Sess Laws 863).

24 State v. Monaco

presumes the existence of an intent to kill, or any other

intent necessary for the crime of murder, in violation of the

[D]ue [P]rocess [C]lause.” Id. at 311-12, 588 P2d at 1325 (col-

lecting cases).

Every other court to address the issue has reached

the same conclusion. See, e.g., Mares v. State, 939 P2d 724,

730-31 (Wyo 1997); State v. Herrera, 176 Ariz 21, 30-31, 859

P2d 131, 140-41 (1993); Commonwealth v. Rawls, 328 Pa

Super 469, 473-74, 477 A2d 540, 543 (1984); People v. Dillon,

34 Cal 3d 441, 450, 668 P2d 697, 700, 194 Cal Rptr 390, 393

(1983), superseded by statute, 2018 Cal Stat ch 1015, as rec-

ognized in, People v. Sifuentes, 83 Cal App 5th 217, 290 Cal

Rptr 3d 320 (2022); Brown v. State, 448 NE2d 10, 15 (Ind

1983); State v. Oliver, 341 NW2d 744, 747-48 (Iowa 1983);

Commonwealth v. Moran, 387 Mass 644, 649-50, 442 NE2d

399, 402-03 (1982); State ex rel. Peacher v. Sencindiver, 160

W Va 314, 316-17, 233 SE2d 425, 426-27 (1977); State v.

Swift, 290 NC 383, 407-08, 226 SE2d 652, 668-69 (1976);

Gore v. Leeke, 261 SC 308, 315-16, 199 SE2d 755, 757-58

(1973).8 Defendant cites no authority holding otherwise.

Oregon’s felony-murder statute, as we interpreted it

in Blair, is comparable to the statutes that were upheld in

Patterson, Burkhart, Wanrow, and other cases, in that none

of those statutes required a separate culpable mental state

as to causing death as an element of felony murder. Rather,

the culpable mental state for the underlying felony is the

only required culpable mental state under the felony-mur-

der statutes in Oregon and other states. The supreme courts

in other states have concluded that those statutes do not

violate due process. We agree with those decisions.

The culpable mental state required for felony mur-

der under ORS 163.115(1)(b) is not conclusively presumed.

The state still must prove, beyond a reasonable doubt, the

culpable mental state required for defendant’s commission

of the underlying offense, in this case, first-degree arson.

8

The Ninth Circuit reached the same conclusion in People of Territory of

Guam v. Root, 524 F2d 195, 196 (9th Cir 1975) (holding that “[n]othing in the

United States Constitution deprives legislatures 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 suf-

ficient to satisfy the jurisdiction’s definition of first-degree murder”).

Cite as 375 Or 1 (2026) 25

That required the state to prove that defendant intentionally

damaged the apartment by starting a fire, ORS 164.325(1)

(a), that resulted in the death of two people. Under Blair,

proof of that culpable mental state is enough, as a matter

of law, to establish the culpable mental state required for

felony murder under ORS 163.115(1)(b).

In other words, like the felony-murder statutes

upheld in other states, ORS 163.115(1)(b) substitutes proof

of the mental state necessary to prove the underlying felony

for proof of acting with a culpable mental state in causing

death, as is ordinarily required to prove a criminal homi-

cide. That substitution does not conclusively presume an ele-

ment of the offense or shift the burden of proof as to an ele-

ment, because acting with a culpable mental state to cause

death is not an element of the offense of felony murder in

Oregon. Thus, we agree with every other case to squarely

address the issue and conclude that Oregon’s felony-murder

statute does not conclusively presume a material element of

the offense in violation of the Due Process Clause.

As noted, defendant contends that, if ORS 163.115

(1)(b) does not give rise to an impermissible conclusive pre-

sumption, then dispensing with proof that defendant acted

with a culpable mental state in causing the death of TM’s

roommates makes felony murder under ORS 163.115(1)(b) a

strict liability offense that violates the Due Process Clause.

The Court of Appeals concluded that, because a felony mur-

der under ORS 163.115(1)(b), as interpreted in Blair, did not

require the state to allege or prove that defendant acted

with a culpable mental state as to causing death, felony

murder in Oregon “is a strict liability offense.” Monaco, 336

Or App at 703.9 But, the Court of Appeals was “unpersuaded

that, by mere virtue of being a strict liability offense, felony

murder under ORS 163.115(3) violates federal due process.”

Id. at 705.

9

The Court of Appeals noted that one of the drafters of the 1971 Oregon Criminal

Code had described the new felony-murder statute as creating “strict liability” for

death caused in the commission of a qualifying felony. Monaco, 336 Or App at 703 n 2

(citing 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)); see also Model Penal Code § 210.2 cmt 6 (ALI, Commentaries

1985) (stating that the “classic formulation” of the felony-murder rule “operated to

impose liability for murder based on * * * strict liability”).

26 State v. Monaco

As noted, ORS 163.115(1)(b) dispenses with proof

of a culpable mental state as to causing death. In that

respect, we could characterize felony murder as a strict lia-

bility offense, as the Court of Appeals did, at least in part.

But if a strict liability offense is an offense that does not

require a culpable mental state at all, then felony murder is

not entirely a strict liability offense. That is because proof of

a culpable mental state—the mental state required for the

predicate felony—is still required. In any event, the issue

is not whether we label or characterize felony murder as a

strict liability offense, but whether the offense as defined

by the statute violates the Due Process Clause. See State v.

Rainey, 298 Or 459, 464-65, 693 P2d 635 (1985) (noting that,

in the case of presumptions, “it is not the label given * * * but

the effect upon the burden of proof that is significant”). And,

as noted, every case to address a due process challenge to a

state’s felony-murder statute has concluded that the offense,

as defined by statutes that are indistinguishable from

Oregon’s, does not violate due process. Defendant acknowl-

edges that no case has expressly held that a felony-murder

statute violates due process because it results in strict liabil-

ity, but he contends that the United States Supreme Court

and the New Mexico Supreme Court have “suggested” that

that might be the case.

Defendant contends that the United States Supreme

Court made that suggestion in Rehaif v. United States, 588

US 225, 139 S Ct 2191, 204 L Ed 2d 594 (2019); United States

v United States Gypsum Co., 438 US 422, 98 S Ct 2864, 57

L Ed 2d 854 (1978); and Morrissette v. United States, 342 US

246, 72 S Ct 240, 96 L Ed 288 (1952). But defendant reads

too much into those cases.

In Rehaif, the Court held that, to convict a defen-

dant for “knowingly” violating a statute that prohibited

certain categories of individuals from possessing a firearm,

the government must prove both that the defendant knew

that he engaged in the prohibited conduct—possessing a

firearm—and that he fell within one of the categories listed

in the statute. 588 US at 227. The Court explained that it

is “the defendant’s status, and not his conduct alone, that

Cite as 375 Or 1 (2026) 27

makes the difference.” Id. at 232 (emphasis in original).10

“Without knowledge of that status, the defendant may well

lack the intent needed to make his behavior wrongful.” Id.

The Court then noted that it has “sometimes

declined to read a scienter requirement into criminal stat-

utes.” Id. But the Court went on, it has “typically declined

to apply the presumption in favor of scienter in cases involv-

ing statutory provisions that form part of a ‘regulatory’ or

‘public welfare’ program and carry only minor penalties.”

Id. Because the firearms statute at issue carried a potential

penalty of 10 years in prison, the Court concluded that “this

exception to the presumption in favor of scienter does not

apply.” Id. Thus, the Court declined to apply an exception to

that usual presumption as a matter of statutory interpreta-

tion, not because such a limitation was required by the Due

Process Clause. See id.

The issue in United States Gypsum that is relevant

here was “whether intent is an element of a criminal anti-

trust offense[.]” 438 US at 426. The Court observed that “an

effect on prices, without more, will not support a criminal

conviction under the Sherman [Antitrust] Act” and thus held

that a “defendant’s state of mind or intent is an element of a

criminal antitrust offense which must be established by evi-

dence and inferences drawn therefrom and cannot be taken

from the trier of fact through reliance on a legal presumption

of wrongful intent from proof of an effect on prices.” Id. at

435. The Court disapproved of a jury instruction that stated

otherwise, explaining that it was “unwilling to construe the

Sherman Act as mandating a regime of strict-liability crim-

inal offenses.” Id. at 436. The Court indicated that, “while

strict-liability offenses are not unknown to the criminal law

and do not invariably offend constitutional requirements,” it

did not construe the Sherman Act to be such an offense. Id.

at 437-38.

In reaching that conclusion as a matter of statu-

tory interpretation, the Court indicated that its holding in

10

The defendant’s status in Rehaif was that he was an alien “illegally or

unlawfully in the United States.” 588 US at 227 (internal quotation marks omit-

ted). After learning that defendant had been shooting at a firing range, the gov-

ernment prosecuted him for “possessing firearms as an alien unlawfully in the

United States,” in violation of federal law. Id. at 228.

28 State v. Monaco

Morissette “can be fairly read as establishing, at least with

regard to crimes having their origin in the common law, an

interpretative presumption that mens rea is required.” Id. at

437.

Thus, Rehaif, United States Gypsum, and Morissette

support the conclusion that some culpable mental state

would be presumed as a matter of statutory interpretation

for crimes that originated in the common law. But the Court

did not address what culpable mental state would be pre-

sumed, nor did it suggest that the culpable mental state that

is typically required for felony murder—the culpable men-

tal state for the underlying felony—makes felony murder a

strict liability offense that violates the Due Process Clause.

Reading such a suggestion into those cases would be

inconsistent with how the United States Supreme Court has

generally addressed due process limitations on other state

criminal statutes. For example, in Patterson v. New York, 432

US 197, 198, 97 S Ct 2319, 53 L Ed 2d 281 (1977), the Court

rejected a due process challenge to a New York statute that

allocated to a defendant charged with murder the burden

of proving that the defendant’s conduct was the result of an

extreme emotional disturbance. In reaching that conclusion,

the Court noted that “preventing and dealing with crime is

much more the business of the States than it is of the Federal

Government[.]” Id. at 201. As a result, the Court stated that it

“should not lightly construe the Constitution so as to intrude

upon the administration of justice by the individual States.”

Id. Normally, the Court explained, it is within the power of

a state “to regulate procedures under which its [criminal]

laws are carried out, including the burden of producing evi-

dence and the burden of persuasion[.]” Id. (citation and inter-

nal quotation marks omitted). Thus, the Court concluded, a

state’s “decision in this regard is not subject to proscription

under the Due Process Clause unless it offends some princi-

ple of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental.” Id. (emphasis added;

citation and internal quotation marks omitted).11

11

That does not mean that the Due Process Clause provides no constraints at

all on state legislatures. See State v. Burrow, 293 Or 691, 708, 653 P2d 226 (1982)

(Linde, J., dissenting) (cautioning that Patterson “is far from holding that legis-

latures are wholly free to transfer burdens to prove facts on which a defendant’s

Cite as 375 Or 1 (2026) 29

Given how firmly entrenched the felony-murder

rule is in Oregon and the common law, we cannot conclude

that the felony-murder rule is so contrary to a fundamental

principle of justice that it must be proscribed by the Due

Process Clause in this context. See Blair, 348 Or at 77-78

(noting that the felony-murder rule “was first codified in

Oregon in 1864” and that the rule “long had operated to

impose responsibility for homicides that occur during the

commission of a felony, without the separate and additional

requirement that the defendant acted with a mens rea in

causing the death of another person”); Burkhart, 325 Mont at

37-38, 103 P3d at 1044 (tracing the common law felony-mur-

der rule to a sixteenth-century case, Mansell & Herbert’s

Case, 2 Dyer 128b; 73 Eng Rep 279 (KB 1558); Roth and

Sundby, 70 Cornell L Rev at 449 (noting that some com-

mentators trace the rule to a different sixteenth-century

case, while others trace it to “a ‘blunder’ by Lord Coke,” and

concluding that the “origins of the felony-murder rule are

disputed”).12 Thus, even if we were to characterize Oregon’s

felony-murder statute as defining a strict liability offense at

least in part, that does not mean that the statute violates

the Due Process Clause.

That is consistent with our observation that the

United States Supreme Court, “in applying the federal con-

stitution, has generally refused to interfere with the histor-

ical state power to create strict liability offenses.” State v.

Buttrey, 293 Or 575, 587, 651 P2d 1055 (1982) (citing Powell

v. Texas, 392 US 514, 536, 88 S Ct 2145, 20 L Ed 1254 (1968)

(plurality opinion), and other cases). That is because state

legislatures “have always been allowed wide freedom to

determine the extent to which moral culpability should be a

prerequisite to conviction of a crime.” Powell, 392 US at 545

(Black, J., concurring).

guilt will actually depend by manipulating ‘elements’ of the statutory definition

of the crime”).

12

Another commentator described the origins of the common-law felony-mur-

der rule as a “myth,” concluding that “Americans did not receive any felony mur-

der rules from England, for the simple reason that there was no common-law

felony-murder rule at the time of the American Revolution.” Guyora Binder, The

Origins of American Felony Murder Rules, 57 Stan L Rev 59, 63 (2004). England

abolished its felony-murder rule by statute in 1957. Homicide Act 1957, 6 Eliz 2 c

11, § 1 (Gr Brit).

30 State v. Monaco

Defendant points out that the New Mexico Supreme

Court construed that state’s felony-murder statute to

require proof of intent to kill, stating that such a construc-

tion “removes the statute from [a] threat of unconstitution-

ality.” State v. Ortega, 112 NM 554, 563, 817 P2d 1196, 1205

(1991), abrogated on other grounds as recognized by Kersey

v. Hatch, 148 NM 381, 237 P3d 683 (2010). The holding in

Ortega was that New Mexico’s felony-murder statute,

“requiring as it does both causation attributable to the

defendant * * * and an intent to kill (or to do an act greatly

dangerous to the lives of others or with knowledge that the

act creates a strong probability of death or great bodily

harm), is a valid exercise of the legislature’s authority to

prescribe serious punishment for killings committed with

the requisite criminal intent and that occur during the com-

mission or attempted commission of a first degree or other

inherently dangerous felony.”

112 NM at 566, 817 P2d at 1208 (emphasis added). That

interpretation of the New Mexico statute thus avoided a

“threat of unconstitutionality,” but the New Mexico Supreme

Court did not hold that the statute would violate the Due

Process Clause without it. Id. at 563, 817 P2d at 1208.

In summary, defendant cites no case holding that

a state felony-murder statute that is comparable to ORS

163.115(1)(b) violates the Due Process Clause. We agree

with the courts in every other state that have addressed the

issue: Felony-murder statutes that are indistinguishable

from ORS 163.115(1)(b) do not conclusively presume a mate-

rial element of the offense or shift the burden of proof to the

defendant in violation of a defendant’s right to due process.

Treating ORS 163.115(1)(b) as imposing strict liability in

part does not establish a due process violation in this case.

We acknowledge that the felony-murder rule has

been widely criticized by many scholars and jurists. See

Roth and Sundby, 70 Cornell L Rev at 446 (summarizing

the criticisms and noting that “[f]ew legal doctrines have

been as maligned and yet have shown as great a resiliency

as the felony-murder rule”); Binder, 57 Stan L Rev at 60

(stating that liability for felony murder “is one of the most

persistently and widely criticized features of American

Cite as 375 Or 1 (2026) 31

criminal law”). The felony-murder rule has been criticized

for having a disparate racial impact, see Perry Moriearty,

Kat Albrecht, & Caitlin Glass, Race, Racial Bias, and

Imputed Liability Murder, 51 Fordham Urb L J 675 (2024);

G. Ben Cohen, Justin D. Levinson, & Koichi Hioki, Racial

Bias, Accomplice Liability, and The Felony Murder Rule: A

National Empirical Study, 101 Denv L Rev 65 (2024), and

for its application to deaths caused directly by the police,

see Maria T. Kolar, Felony Murder Liability for Homicides

by Police: Too Unfair & Too Much to Bear, 113 J Crim L &

Criminology 241 (2023).

We need not address those criticisms in this case.

Today’s decision is limited to the rule’s application to defen-

dant’s felony murder convictions.13 In affirming those con-

victions, we need not and do not suggest that every applica-

tion of the rule will comply with due process.

III. CONCLUSION

We conclude that the trial court did not err in (1)

declining to suppress statements that defendant made

during the interrogation by detectives Michaels and Luiz;

and (2) denying defendant’s demurrer to the felony-murder

counts.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

DeHOOG, J., concurring.

In this case, defendant entered the apartment

he had previously shared with his former girlfriend, TM,

and, in an apparently alcohol-fueled fit of despair and rage,

doused TM’s couch with gasoline and threatened to set

it on fire if TM did not return. When TM did not return,

defendant—who had good reason to know that at least one

13

As Roth and Sundby point out, requiring proof of culpability for causing

death “may not change the result in many cases” because, if a defendant “under-

takes a dangerous felony, he probably has exhibited the extreme recklessness or

malice aforethought necessary for a conviction of murder.” 70 Cornell L Rev at 491.

Defendant in this case intentionally doused a couch in gasoline and started a fire

in his ex-girlfriend’s apartment around 3:20 a.m., knowing that she had two room-

mates who would likely be asleep in the apartment at the time. Those facts would

support the conclusion that defendant recklessly caused the death of two people

sufficient to support convictions for criminal homicide as defined in ORS 163.005(1).

32 State v. Monaco

of TM’s two roommates and several of TM’s pets might be

in the apartment—lit the gasoline-drenched couch and left

the apartment, closing the door behind him as an inferno

erupted, ultimately consuming the apartment and causing

the deaths of two people and four pets. Based upon the testi-

mony of TM and other witnesses, text messages that defen-

dant had sent before and after the fire broke out, video evi-

dence of defendant leaving TM’s apartment, and rambling

admissions that defendant made during a police interroga-

tion, the state prosecuted defendant for numerous offenses,

including three counts of arson, four counts of intentional

murder, and the “felony murder” charges at issue on appeal.

Following a bench trial, the court found defendant guilty

of most of the charged offenses or lesser-included versions

of them, including four counts of felony murder and four

counts of first-degree manslaughter, with two counts of each

offense relating to each of TM’s two roommates.1

Based upon that reprehensible conduct and the

evidence of it in the record, there can be little doubt as to

defendant’s guilt of the charges on which the trial court

found him guilty. Nor, in my view, is there any question

as to whether defendant’s custodial statements were vol-

untarily made, and I fully agree with the majority opin-

ion’s analysis and conclusion regarding that issue. Where

I part ways with that opinion, however, is in the majori-

ty’s approach to defendant’s challenge to his felony-murder

convictions, and particularly its disposition of defendant’s

argument premised on this court’s opinion in State v. Blair,

348 Or 72, 228 P3d 564 (2010) (Blair II), which held that the

felony-murder statute, ORS 163.115(1)(b), does not require

the state to allege and prove that a person acted with a cul-

pable mental state with regard to that offense’s causation-

of-death element.

1

In rendering its verdicts, the trial court declined to explain the basis for

its findings as to each count, noting that, like a jury completing a verdict form, a

trial court sitting as factfinder in a trial is under no obligation to explain its deci-

sion. However, given the statutory definition of first-degree manslaughter and

the evidence presented at defendant’s trial, it appears that the court found either

that defendant had acted recklessly under circumstances manifesting extreme

indifference to the value of human life, or that he had intentionally caused the

deaths of TM’s roommates while under the influence of extreme emotional distur-

bance. ORS 163.118(1)(a), (b).

Cite as 375 Or 1 (2026) 33

As I will explain, I do not believe that the majority’s

view—that, contrary to defendant’s contention, Blair II does

not effectively hold that the felony-murder statute provides

for a conclusive presumption—can be reconciled with Blair

II itself. Further, that erroneous understanding is legally

significant because it permits the majority to rely on a body

of case law from other jurisdictions that, in my view, does

not address the issue that defendant raises under Blair II.

Ultimately, however, I conclude that the error has no practical

significance. That is, although I believe that the trial court

may well have erred in denying defendant’s demurrer to the

felony-murder charges (and that the majority may therefore

have erred in rejecting defendant’s underlying argument), I

would conclude that any error was harmless beyond a reason-

able doubt. That is, had the trial court allowed defendant’s

demurrer or otherwise required the state to prove a culpable

mental state with respect to causing the victims’ deaths, it is

beyond reasonable doubt that the state would have done so

and that the trial court would have found defendant guilty

of felony murder under those alternative circumstances.

Thus, although I do not agree with the majority’s rationale,

I respectfully concur in its ultimate disposition upholding

defendant’s felony-murder convictions.

I will begin with defendant’s reliance on Blair II

before turning to how, in my view, the majority opinion mis-

reads that decision and thus sidesteps the crux of defendant’s

argument. As the majority explains, defendant contends

that the trial court erred in denying his demurrer to the

felony-murder charges, because ORS 163.115(1)(b)—as con-

strued in Blair II—violates the Due Process Clause. 375 Or

at 16-17. He argues that, if he understands Blair II correctly,

then the felony-murder statute establishes an impermissible

conclusive presumption. See Sandstrom v. Montana, 442 US

510, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (because jurors could

reasonably view instruction that the law “presumes that a

person intends the ordinary consequences of his voluntary

acts” as directing them to find against the defendant on the

element of intent, that instruction impermissibly relieved

the state of its burden under the Due Process Clause to

34 State v. Monaco

prove every element of a criminal offense beyond a reason-

able doubt).2

The majority opinion acknowledges that, “[u]nder

Sandstrom, a statute that results in a burden-shifting or

conclusive presumption as to a material element of the

offense violates due process.” 375 Or at 17. The majority also

recognizes that, under ORS 163.115(1)(b), felony murder is

a form of criminal homicide, and that “criminal homicide”

is defined by ORS 163.005(1) as “intentionally, knowingly,

recklessly or with criminal negligence caus[ing] the death

of another human being.” Id. at 17-18. Finally, the major-

ity agrees with defendant that, notwithstanding ORS

163.005(1), the felony-murder statute, as construed in Blair

II, “does not require proof of a separate culpable mental

state as to causing death[.]” Id. at 18. The majority rejects,

however, defendant’s understanding that, under Blair II,

felony murder includes—as a required element—a culpable

mental state with regard to causing death, albeit one that

the state does not have to separately allege and prove. Id.

In rejecting defendant’s understanding of Blair II,

the majority reads into that opinion a holding that, not only

is the state not required to prove a separate culpable mental

state as to the causation of death, see id. (so stating), but,

further, there is no culpable mental state requirement in that

regard, see id. (stating that “there is no separate culpable

mental state required for causing death on a felony-murder

charge”). With that premise read into Blair II, the majori-

ty’s conclusion in this case readily follows: Because the felo-

ny-murder statute does not require that a defendant act with

a culpable mental state with regard to causing death, “the

law does not conclusively presume any element that the state

is required to prove.” Id.3

2

Defendant alternatively argues that, if the felony-murder statute does

not result in a conclusive presumption, then it creates an impermissible strict-

liability crime by failing to require proof of a culpable mental state as to causation

of death. Because I agree with defendant’s understanding of Blair II and, thus,

tend to agree that the felony-murder statute creates an unconstitutional conclu-

sive presumption, I express no opinion whether the absence of a mental state as

to the causation of death would render felony murder a strict-liability crime or

whether such a crime would violate due process.

3

Relatedly, the majority is skeptical of my reasoning, discussed below, that Blair

II recognized a culpable mental state regarding causation of death “as an element

Cite as 375 Or 1 (2026) 35

Respectfully, however, Blair II cannot so easily be

read to dispense with any culpable mental state require-

ment with respect to causing death. Three aspects of that

decision weigh heavily against that reading. The first is

found in the text of the opinion itself. As the majority notes,

id. at 20, Blair II loosely wraps up its analysis with the fol-

lowing series of pronouncements:

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

that a defendant act with a culpable mens rea with respect

to causing the victim’s death; (2) under ORS 163.005(2),

‘criminal homicide’ includes ‘murder,’ and (3) under ORS

163.115(1)(b), requisite culpable mens rea is established, as

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

commission of the predicate felony.”

348 Or at 80.4

Although the intended connection between those

three enumerated points is not clear, it is certainly diffi-

cult to reconcile the first two points—stating that “crimi-

nal homicide” requires a culpable mental state with regard

to causing a victim’s death and that “criminal homicide”

includes “murder”—with the conclusion that the majority

attributes to the third point—that, for purposes of felony

murder, “there is no separate culpable mental state” as to

causation of death, 375 Or at 18. That is, it would make lit-

tle sense for the court in Blair II to emphasize that ORS

163.005(1) establishes a mental state requirement for crim-

inal homicide and that criminal homicide includes murder

if the court’s ultimate point were that, for “felony murder,”

no such culpable mental state is required. If that were, in

that the state is not required to prove.” 375 Or at 20-21 n 3. In the majority’s view,

if the state is not required to prove such a mental state, then it cannot be under-

stood to be an element. Id. Respectfully, the majority misses the point. It is exactly

because the felony-murder statute, as interpreted in Blair II, does not require the

state to prove any of the culpable mental states that ORS 163.005(1) contemplates

that defendant argues that the statute creates a conclusive presumption. Thus, to

reason that such a mental state cannot be an element simply begs the question.

4

I recognize that the accepted translation of the Latin term “mens rea” is

“guilty mind.” See, e.g., Black’s Law Dictionary 1178 (12th ed 2004) (“[Law Latin

‘guilty mind’] (18c) The state of mind that the prosecution, to secure a conviction,

must prove that a defendant had when committing a crime[.]”). Thus, referring,

as we did in Blair II, to a “culpable mens rea” would appear to be redundant.

Except in quoted references to other sources, this concurrence equates mens rea

with “culpable mental state.”

36 State v. Monaco

fact, the court’s intended takeaway, it is far more likely that

it would have said something closer to, “unlike ‘ordinary’

murder, a form of ‘criminal homicide’ to which the mental

state requirements set forth in ORS 163.005(1) apply, no

such mental state is required for felony murder.” But, sig-

nificantly, the court did not say that. Instead, after empha-

sizing the first two points, which together establish that

“murder” requires that a defendant act with a culpable

mental state with respect to causing death, the court said

that, “under ORS 163.115(1)(b), [i.e., felony murder, the] req-

uisite culpable mens rea is established, as a matter of law,

by the defendant’s commission or attempted commission of

the predicate felony.” In my view, the most sensible way to

read that statement is to understand the court’s reference

to “[the] requisite culpable mens rea” as referring to the

culpable mental state that ORS 163.005(1) and (2) collec-

tively require for murder, including “felony murder” under

ORS 163.115(1)(b). Yet here, the majority seems to reach the

opposite conclusion from that text, wholly disconnecting the

third point in the series from the two that precede it.5

The second aspect of Blair II that weighs against the

majority’s understanding is that, in that opinion, this court

expressly agreed with the Court of Appeals decision it was

reviewing, State v. Blair, 230 Or App 36, 214 P3d 47 (2009)

(Blair I). See Blair II, 348 Or at 80 (expressing agreement).

And in Blair I, the Court of Appeals did several notable

things. First, after recounting the historical application of

the felony-murder rule in Oregon, that court concluded that,

at least prior to the enactment of ORS 163.115(1) in 1971 as

part of the new Oregon Criminal Code, the legislature and

this court had long recognized the “implied malice” rule,

5

To be clear, the majority does seem to recognize in a footnote that, by juxta-

posing the definitional requirements of ORS 163.005 with the court’s citation to

the substantive “felony murder” statute, ORS 163.115(1)(b), Blair II can be read

to recognize a requirement of a culpable mental state as to causing death even for

felony murder, but just one that is established as a matter of law by proof of the

underlying felony (and, presumably, its own mental state requirement). 375 Or at

20 n 1. But the majority goes on to observe that, in Blair II, the court did not have

reason to explore whether the mechanism that it described for establishing “any

[such] culpable mental state requirement” resulted in a conclusive presumption

implicating due-process concerns. Id. That’s true, but it does not explain why

closer examination of that possibility is not warranted here, where the issue is

squarely presented.

Cite as 375 Or 1 (2026) 37

under which the state could obtain a conviction for felony

murder “without the necessity of proving the relationship

between the homicide and the defendant’s state of mind.”

Blair I, 230 Or App at 46 (“Rather, the defendant’s commis-

sion of or attempt to commit the predicate felony established

as a matter of law the requisite mens rea with respect to the

causation of the victim’s death.”). See also Blair II, 348 Or at

77-80 (recounting that history).

Next, the Court of Appeals recognized that, in

1971, the legislature had adopted “ORS 163.005, the general

‘criminal homicide’ statute, which had no direct antecedent

in Oregon homicide laws[.]” Id. at 48. And although that

court found no evidence in the 1971 legislative history to

indicate an intent to change the “implied malice” rule, id.

at 46 (“Rather, the legislative history reveals the opposite.”),

the court recognized the need to reconcile its understand-

ing of ORS 163.115(1)(b) with ORS 163.005(1)’s provision of

a minimum culpable mental state for criminal homicide, id.

at 47.

And last, the Court of Appeals did reconcile those

competing ideas. First, it acknowledged the requirement

that the defendant act with a culpable mental state with

respect to causing the victim’s death, and then it stated—in

terms that this court subsequently echoed in Blair II—that,

under the felony-murder statute, the requisite mental state

is established as a matter of law:

“[T]he two provisions can, and must, be harmonized in such

a way that (1) under ORS 163.005(1), all types of ‘criminal

homicide’ require that a defendant act with a culpable

mens rea with respect to causing the victim’s death; and

(2) for that particular subspecies of criminal homicide that

is ‘felony murder,’ the requisite culpable mens rea pertain-

ing to the death is established, as a matter of law, by the

defendant’s commission or attempted commission of the

predicate felony.”

230 Or App at 55-56 (emphases added; footnotes omitted).

Thus, rather than stating that, under the felony-murder

statute, there is no requirement that a defendant act with

a culpable mental state with regard to causing a death, the

Court of Appeals expressly recognized that, by virtue of

38 State v. Monaco

ORS 163.005(1), there is such a requirement, just one that

is established as a matter of law rather than alleged and

proved as part of the state’s case.

In agreeing with the Court of Appeals’ decision in

Blair I—using, at times, nearly indistinguishable phrasing

and narrative form—this court’s decision in Blair II cannot

be viewed as holding that the felony-murder statute does not

require that a defendant act with a culpable mental state

with respect to causing death. Rather, just like the Court

of Appeals opinion it was affirming, Blair II is best under-

stood as recognizing that such a mental state is an element

of felony murder, albeit one as to which the state bears no

separate burden of proof.

Finally, the third aspect of Blair II that weighs

against reading it as the majority does is the logical predicate

essential to its conclusion. Specifically, before the court in

Blair II could hold that, “under ORS 163.115(1)(b), [the] req-

uisite culpable mens rea is established, as a matter of law, by

the defendant’s commission or attempted commission of the

predicate felony[,]” the court necessarily understood there to

be a “requisite * * * mens rea,” that is, a required culpable

mental state with regard to causing death. Blair II, 348 Or

at 80; see also 375 Or at 20 n 1 (stating that Blair II’s read-

ing of ORS 163.005(1) “in conjunction with ORS 163.115(1)(b)

meant that any required culpable mental state for causing

death was established as a matter of law by proof of the cul-

pable mental state for the predicate felony”) (slip op at 22 n 1).

If the felony-murder statute had no such requirement, then

there would be nothing to be established as a matter of law.

Thus, in my view, the majority’s approach to defen-

dant’s “conclusive presumption” argument flows from a mis-

guided understanding of this court’s opinion in Blair II. And

for several reasons, that matters. The first, of course, is that,

under the principle of stare decisis, this court must adhere

to its precedents until they are overturned, and this court

cannot fulfill that obligation by proceeding from a misun-

derstanding of what its earlier cases have held.

Second, as noted above, the majority’s reading of

Blair II allows it to summarily dismiss defendant’s contention

Cite as 375 Or 1 (2026) 39

that the felony-murder statute results in an impermissible

conclusive presumption. See 375 Or at 18 (“Because there

is no separate culpable mental state required for causing

death on a felony-murder charge, the law does not conclu-

sively presume any element that the state is required to

prove.”). In concluding that there is no culpable mental state

requirement in that regard, the majority opinion sidesteps

the more difficult question, namely, if the felony-murder

statute does have a mental state requirement with respect

to causation of death, does a rule establishing that require-

ment “as a matter of law” result in a conclusive presumption

of the sort held to violate due process in Sandstrom? It is

not readily apparent to me why a rule that establishes an

element of an offense “as a matter of law” upon proof of a dif-

ferent element of a different offense would not be considered

a conclusive presumption, and, as noted above, my initial

inclination is to think that it would. But my point here is not

that the answer is obvious, and I acknowledge that reason-

able minds may differ as to that answer. My concern here is

that defendant’s arguments have raised that question, but

the majority’s interpretation of Blair II evades it here and

further insulates it from future consideration.

Third, and finally, the majority’s reading of Blair II

allows it to rely on case law from other jurisdictions, where

neither the statutes at issue nor the applicable decisional

law recognized, as an element of felony murder, a culpable

mental state with respect to causing the death of another.

For example, the majority opinion discusses the Kansas

Supreme Court’s decision in State v. Patterson, 311 Kan

59, 455 P3d 792 (2020), and suggests that the reasoning of

that case supports the majority’s conclusion that Oregon’s

statute does not create a conclusive presumption. 375 Or

at 21-22. But, as the majority acknowledges, “[t]he Kansas

statute does not include a definitional provision for ‘mur-

der’ or ‘homicide’ that imports a general term like ‘criminal

homicide’ into its definition of murder comparable to ORS

163.005(1).” Id. at 22 n 5.

Similarly, the majority opinion cites State v.

Burkhart, 325 Mont 27, 42, 103 P3d 1037, 1044, 1047(2004),

a Montana Supreme Court decision that construed that

40 State v. Monaco

state’s felony-murder statute to “substitute proof” of the

mental state required to establish the underlying felony for

the proof that otherwise would be necessary to establish

“deliberate homicide” under a separate statutory provision.

375 Or at 22-23. But as in Kansas, Montana law did not

make a culpable mental state as to causing death an ele-

ment of felony murder, so that court’s decision that its stat-

ute did not create an impermissible conclusive presumption

is likewise not on point.6

The same is true regarding the other opinion

discussed at length by the majority, State v. Wanrow, 91

Wash 2d 301, 588 P2d 1320 (1978), superseded by statute,

1975 Wash Sess Laws 863, as recognized in In re Personal

Restraint of Andress, 147 Wash 2d 602, 56 P3d 981 (2002),

and, as far as I have determined, each of the cases that

the majority string-cites in favor of its conclusion that ORS

163.115(1)(b) is constitutional. See 375 Or at 23-24( discuss-

ing Wanrow); id. at 24 (listing other cases). As the majority

opinion acknowledges, none of the cases it relies on in con-

cluding that Oregon’s felony-murder statute is constitutional

involved statutes that had, as an element of felony murder, a

culpable mental state with respect to causing death. Id. (so

noting). Thus, because the premise underlying the major-

ity’s reliance on those cases—that Oregon’s felony-murder

statute has no such requirement—is, in my opinion, flawed,

the majority’s reliance on those cases to support its conclu-

sion that Oregon’s statute complies with the requirements of

due process is equally flawed.

As a final note regarding the majority opinion, both

it and many of the cases it cites acknowledge the potential

for the felony-murder rule to lead to disparate and harsh

results. See 375 Or at 30-31 (acknowledging wide criticism

of the rule by scholars and jurists; citing numerous schol-

arly articles and studies). Although it may not go that far

6

In any event, Burkhart has other limitations, as it does not appear to

reflect a careful analysis of the Sandstrom issue, and instead states somewhat

summarily that the Montana statute “does not operate to shift a burden from the

state to the defendant[.]” 325 Mont at 42, 103 P3d at 1047. That may be true, but

that does not necessarily mean that the statute did not unconstitutionally relieve

the state of a burden of proving an element of an offense. See Sandstrom, 442 US

at 524 (holding that a statute that shifts the state’s burden of proof to the defen-

dant or that creates a conclusive presumption violates due process).

Cite as 375 Or 1 (2026) 41

in addressing those concerns, recognizing ORS 163.005(1)’s

definition of “criminal homicide” as requiring, for purposes

of felony murder, that the state prove that a defendant acted

with a culpable mental state with regard to a victim’s death

would be a small step in that direction. This court’s decision

in Blair II precludes direct application of ORS 163.005(1)

in the form of a jury instruction or otherwise, and, as the

majority has observed, the correctness of Blair II is not before

us. However, the meaning of that case is before us, and the

majority’s reading of it curtails defendant’s plausible chal-

lenge to Oregon’s felony-murder law. Given the significance

of that reading, as well as the reasons stated above for why,

in my view, that reading is erroneous, I cannot agree with

the majority’s analysis here.

That is not to say that I dissent. For one thing,

although I disagree with the majority’s reliance on Blair II

to foreclose defendant’s “conclusive presumption” argument,

the question remains whether Oregon’s felony-murder stat-

ute, as defendant reads Blair II to construe it, would indeed

violate the Due Process Clause. Although, as I have stated, it

is challenging to distinguish an element that is “established

as a matter of law” from one that is “conclusively presumed,”

especially when both concepts are triggered by proof of the

same underlying fact, my point is not that I am certain how

a proper due-process inquiry would turn out. My point is

simply that we should begin that inquiry from the correct

premise, which, in my view, the majority opinion does not do.

The other reason that I do not dissent is that, as dis-

cussed above, I view any error that the trial court may have

made in denying defendant’s demurrer to the felony-murder

counts to be harmless beyond a reasonable doubt. See State

v. Cook, 340 Or 530, 544, 135 P3d 260 (2006) (“A federal con-

stitutional error is harmless, such that the conviction will

be upheld, if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless

beyond a reasonable doubt.” (Internal quotation marks omit-

ted.)); see also ORS 131.035 (error is grounds for reversal of

criminal conviction only if it “has prejudiced the defendant

in respect to a substantial right”); State v. Davis, 336 Or 19,

28, 77 P3d 1111 (2003) (under Article VII (Amended), section

42 State v. Monaco

3, of the Oregon Constitution, court “must affirm a judg-

ment, despite any error committed at trial, if, after consid-

ering all the matters submitted, the court is of the opinion

that the judgment was such as should have been rendered in

the case” (internal quotation marks omitted)).

Here, the basis for defendant’s demurrer was that

the felony-murder counts failed to state offenses, because

they did not include allegations that he had acted with one

of the culpable mental states listed in ORS 163.005(1) with

respect to the deaths that he had caused. However, as noted

above, defendant also was tried on multiple counts of inten-

tional murder, and the trial court found him guilty of multi-

ple counts of first-degree manslaughter, including separate

counts as to each of defendant’s two human victims. First-

degree manslaughter has a mental state element of at least

recklessness under circumstances manifesting extreme

indifference to the value of human life. ORS 163.118(1). It is

inconceivable that, had the trial court granted the demur-

rer, thereby requiring the state to refile and include in its

allegations of felony murder that defendant had acted with

at least criminal negligence7 with respect to the victims’

deaths, the trial court would have failed to find defendant

guilty of felony murder as to each victim. Cf 375 Or at 31 n

13 (noting that, if a mental state were required with respect

to causing death, the facts here would support a conviction

for criminal homicide under a recklessness theory). Thus, in

my view, any error in this case would satisfy the harmless

beyond a reasonable doubt standard so as not to warrant

reversal. Accordingly, I respectfully concur.

7

Under ORS 163.005(1), the minimum culpable mental state for “criminal

homicide” is criminal negligence, and defendant has not argued that the state

should have been required to allege and prove any more culpable state of mind.