State v. Branch

No. 3 January 19, 2018 351

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

ROBERT L. BRANCH,

aka Robert Lee Branch, Jr.,

aka Rueben Netzer,

Petitioner on Review.

(CC 14CR00250; CA A158214; SC S064318)

On review from the Court of Appeals.*

Argued and submitted May 8, 2017.

Brett Allin, Deputy Public Defender, Salem, argued the

cause and filed the briefs for the petitioner on review. Also

on the briefs was Ernest G. Lannet, Chief Defender, Office

of Public Defense Services.

Jacob R. Brown, Assistant Attorney General, Salem,

argued the cause and filed the brief for the respondent on

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

General, and Benjamin Gutman, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters,

Nakamoto, Flynn, and Duncan, Justices, and Landau,

Senior Justice pro tempore.**

FLYNN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

**  Appeal from Jackson County Circuit Court, J. Adam Peterson, Judge. 279

Or App 492, 381 P3d 1082 (2016).

**  Brewer, J., retired June 30, 2017, and did not participate in the decision

of this case. Nelson, J., did not participate in the consideration or decision of this

case.

352 State v. Branch

Case Summary: Defendant moved for a judgment of acquittal on the charge of

initiating a false report, ORS 162.375. The trial court denied defendant’s motion

and a jury convicted defendant of initiating a false report and other crimes. The

Court of Appeals issued a written decision affirming the judgment of the trial

court. Held: The legislature intended that as used in ORS 162.375, “initiates

a false alarm or report” includes the conduct of a person who, during question-

ing about one crime or emergency situation, falsely alleges new circumstances to

which the law enforcement agency is reasonably likely to respond as a separate

crime on an emergency basis. Applying that definition to the facts of this case,

the evidence was sufficient to permit a jury to find that defendant initiated a false

report in violation of ORS 162.375.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

Cite as 362 Or 351 (2018) 353

FLYNN, J.

This case presents a narrow question regarding the

meaning of ORS 162.375(1), which defines the crime of

“initiating a false report.” Defendant was convicted of that

crime based on evidence that, in response to questions from

sheriff’s deputies about a report that defendant left the

scene of a traffic collision without exchanging the required

driver information, defendant falsely claimed that he left

the scene because the other driver had pointed a gun at him.

Defendant urges us to hold that a person does not “initiat[e]

a false report” within the meaning of ORS 162.375(1), if the

person lies in response to police questioning “about a report

someone else initiated” and, thus, that the evidence is insuf-

ficient to permit his conviction under that statute. Although

we agree that the legislature did not intend the statute to

apply when a person merely responds to police questioning

with false information regarding the circumstances of the

same crime or emergency situation about which the per-

son is being questioned, defendant’s proposed rule sweeps

too broadly. We conclude that the legislature intended the

phrase “initiates a false alarm or report” to reach, at a mini-

mum, the conduct of a person who, during questioning about

one crime or emergency situation, falsely alleges new cir-

cumstances to which the law enforcement agency is reason-

ably likely to respond as a separate crime on an emergency

basis.1

I. BACKGROUND

Defendant was driving while intoxicated and rear-

ended another driver. He left the scene of the collision with-

out providing the information that ORS 811.700 requires

of drivers who are involved in an accident that results in

damage to a vehicle. The other driver recorded defendant’s

license plate number, called 9-1-1, and reported defendant’s

conduct. Deputy Duke of the Jackson County Sheriff’s Office

used that information to locate and question defendant at

1

We need not resolve whether the legislature intended ORS 162.375 also

to apply to reports of new crimes to which law enforcement is likely to respond

on a non-emergency basis, such as a report about a “cold case,” because there is

evidence in this case that the deputies responded to defendant’s false allegation

as if the gun presented an ongoing threat.

354 State v. Branch

his home about the circumstances of the collision and about

defendant’s reason for leaving the scene. Defendant admit-

ted to Duke that he had consumed alcohol, driven the car

involved in the collision, and left the scene after the colli-

sion. When Duke asked defendant why he had left the scene,

defendant falsely claimed that he had left because the other

driver had pointed a gun at him. Given that claim, Duke

was concerned about the safety of another sheriff’s deputy,

Lance, who was still at the scene with the other driver, and

Duke called over the radio that “there was the possibility of

a gun in play.”

Upon learning from dispatch about defendant’s claim

that the other driver brandished a gun, Lance believed that

the conduct defendant described constituted a crime. He

questioned the other driver about defendant’s claim and

extensively searched the other driver and his car, but he

found no gun.

Lance then joined Duke at defendant’s house to com-

plete his accident investigation. Lance pressed defendant

about whether he wanted to stick to his statement about the

gun in order to give defendant a chance to keep “from getting

into additional trouble,” if possible. Without specifically say-

ing whether he had found a gun, Lance warned defendant:

“If you tell me that he had a gun and cannot describe for me

the kind of gun that I found in the vehicle, then I’m going to

arrest you for what’s called initiating a false report, which is

giving me information that’s not true about a weapon being

pointed.” Defendant continued to insist that he had seen a

gun and even elaborated about the type of gun and about

the other driver’s actions regarding the gun, including add-

ing a claim that the other driver had threatened, “I will kill

you.” The deputies had already concluded, however, that the

gun story was false and arrested defendant without further

investigation.

Among other offenses, the state charged defendant

with one count of knowingly initiating a false report, ORS

162.375. Defendant moved for a judgment of acquittal on

that count, but the trial court denied the motion. The jury

found defendant guilty of initiating a false report, and defen-

dant appealed.

Cite as 362 Or 351 (2018) 355

The Court of Appeals affirmed defendant’s convic-

tion based on his repetition and embellishment of the false

accusation when questioned by Lance. State v. Branch, 279

Or App 492, 381 P3d 1082 (2016). In doing so, the court

emphasized its holding in prior cases that “evidence that

a person has lied in response to police questioning in the

course of an investigation is not enough to convict the per-

son of initiating a false report.” Id. at 496 (citing State v.

McCrorey, 216 Or App 301, 306, 172 P3d 271 (2007)). Under

that standard, the court concluded that defendant’s initial

false statement to Duke was insufficient to support the con-

viction but that the circumstances surrounding his repeti-

tion of the false accusation to Lance permitted the jury to

find that defendant knowingly initiated a false report, in

violation ORS 162.375. Branch, 279 Or App at 496-97.

II. DISCUSSION

Defendant sought review in this court, but both par-

ties challenge the decision of the Court of Appeals in part.

Defendant argues that neither his initial false statement

nor his repetition of the statement was made under circum-

stances that permit a finding that he violated ORS 162.375.

The state responds that either false statement is sufficient

to support a finding that defendant violated the statute and

urges this court to correct the Court of Appeals’ statement

to the contrary.

ORS 162.375(1) provides:

“A person commits the crime of initiating a false report

if the person knowingly initiates a false alarm or report

that is transmitted to a fire department, law enforcement

agency or other organization that deals with emergencies

involving danger to life or property.”

Although the statute describes a number of elements, there

is no dispute that defendant acted “knowingly,” that his alle-

gation that the other driver brandished a gun was false, or

that his false allegation was “transmitted” to a “law enforce-

ment agency.” Rather, defendant’s challenge to his convic-

tion puts at issue only the meaning of the phrase “initiates

a false alarm or report.”

Defendant argues that the phrase “initiates a false

alarm or report” does not include false statements that are

356 State v. Branch

made “in response to police questioning during an investiga-

tion of a report that someone else had initiated.” Under that

construction of the statute, defendant contends, the Court of

Appeals correctly concluded that defendant did not violate

ORS 162.375(1) by making his false accusation about the

gun to Duke but erred in concluding that defendant violated

the statute when he repeated the false accusation to Lance.

The state acknowledges that the statute may exclude

some lies that are made in response to police questioning,

but contends that a person can be found to have initiated

a false alarm or report during an encounter that the per-

son did not initiate “when the person falsely reports a new

criminal matter.” Under that test, the state contends, both

defendant’s false statement to Duke and his false statement

to Lance support his conviction for “initiating a false report”

because defendant’s accusation that the other driver bran-

dished a gun was a report about a new criminal matter.

Defendant’s argument that the statute excludes any

false accusations made in response to police questioning pri-

marily focuses on the legislative history of ORS 162.375(1).

We have repeatedly emphasized, however, that our first step

in construing a statute is to examine the statutory text and

context, because “there is no more persuasive evidence of

the intent of the legislature than the words by which the leg-

islature undertook to give expression to its wishes.” State v.

Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (internal quo-

tation marks omitted). That is where we begin our analysis

in this case as well.

A.  Text and Context

As a starting point, we emphasize that the object

of the verb “initiates” is not “the encounter.” Rather, for a

violation of ORS 162.375, it is the “false alarm or report”

that must be initiated. Thus, the text of the statute does not

necessarily exclude false accusations made in response to

questioning that was initiated by law enforcement, unless

that limitation is implied by the phrase “initiates a false

alarm or report.”

1. “Initiates”

Defendant emphasizes the word “initiates” in argu-

ing that the text of ORS 162.375 excludes false accusations

Cite as 362 Or 351 (2018) 357

made in response to questioning. The legislature did not

provide a definition for “initiates,” but it is a word of com-

mon usage, and we frequently consult dictionary definitions

to determine the meaning of such terms “on the assump-

tion that, if the legislature did not give the term a special-

ized definition, the dictionary definition reflects the mean-

ing that the legislature would naturally have intended.”

Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d

768 (2014). Defendant emphasizes that common meanings

of the verb “initiate” include formulations such as “to begin

or set going : make a beginning of”; “to bring about the ini-

tial formation of”; and “to mark the beginning of.” Webster’s

Third New Int’l Dictionary 1164 (unabridged ed 2002).2 We

agree that those definitions generally capture the meaning

that the legislature intended when it used the term “initi-

ates” in ORS 162.375(1). See In re Blaylock, 328 Or 409, 416,

978 P2d 381 (1999) (quoting and relying upon the Webster’s

definition in construing term “initiate” as used in Code of

Professional Responsibility Disciplinary Rule 2-104). While

that ordinary meaning of the term “initiates” may make it

clear that the statute applies in some situations, such as

a person calling an emergency line to falsely report that

a crime is occurring, it is less clear what the legislature

intended when the person makes an identical report during

contact that law enforcement or an emergency organization

initiated.

Defendant proposes that the meaning suggested by

the definitions quoted above “confirms” that ORS 162.375(1)

excludes “responsive reports to police questioning.” We do

not share defendant’s conviction that the word “initiates”

so readily resolves the meaning of ORS 162.375(1). Nothing

about Duke’s questioning raised the possibility that the

other driver had brandished a gun. Instead, defendant

introduced that new circumstance, and his false allega-

tion caused Lance to undertake an investigation into a new

crime, separate from the crimes about which defendant was

2

Although Webster’s Third was originally published in 1961, in subsequent

republishing, new definitional material appears in an addendum section. As a

result, we have explained, “any version of Webster’s Third—regardless of its copy-

right date—provides a relevant source of ordinary meaning for statutes enacted

any time after 1961, if not earlier.” State v. Eastep, 361 Or 746, 751 n 2, 399 P3d

979 (2017).

358 State v. Branch

being questioned. In that sense, defendant’s false allegation

“mark[ed] the beginning of” any information being provided

to law enforcement about a gun crime and “set going” the

law enforcement response to that crime. Thus, defining the

term “initiates” does not resolve whether the legislature

intended to preclude the statute from applying to a person

who falsely informs law enforcement officers of a new, ongo-

ing crime whenever the false allegation is made in response

to a police inquiry.

2. “Report”

The statutory text and context suggest that the leg-

islature intended to draw a different line between a false

statement that “initiates a false alarm or report” and a false

statement that does not—a line that depends on the nature

of the false statement rather than whether a law enforce-

ment question supplied the opportunity or motivation for the

false statement. Like the word “initiates,” the word “report”

is also a word of common usage that the legislature has not

defined. Dictionary definitions of the noun “report” vary

from the very casual (“common talk” and “rumor”) to some-

what formal (“something that gives information : a usu[ally]

detailed account or statement * * *”) to formal (“a usu[ally]

formal account of the results of an investigation given by a

person or group authorized or delegated to make the inves-

tigation”). Webster’s at 1925. All of the definitions, however,

describe a communication of information.

Other parts of ORS 162.375 suggest that the “report”

with which the legislature was concerned is one that informs

a law enforcement agency or other emergency organization

that a situation exists of a type to which the organization

responds with resources. See Force v. Dept. of Rev., 350 Or

179, 188, 252 P3d 306 (2011) (“ ‘[C]ontext’ includes, among

other things, other parts of the statute at issue.”). First, the

kind of false “report” that the statute prohibits is a report

“that is transmitted to a fire department, law enforcement

agency or other organization that deals with emergencies

involving danger to life or property.”3 ORS 162.375(1). In

3

Although it might seem possible to read the text in such a way that the

phrase “that deals with emergencies involving danger to life or property” modi-

fied “false alarm or report,” we conclude that the phrase, instead, modifies—and

Cite as 362 Or 351 (2018) 359

addition, the statute as a whole suggests that the legislature

intended to criminalize “reports” about the types of situa-

tions to which the law enforcement or other emergency orga-

nization is reasonably likely to respond with its resources.

That intention is reflected in the statute’s specification that

the sentence for any person convicted of “initiating a false

report” shall include “a requirement that the person repay

the costs incurred in responding to and investigating the

false report” and that, “[i]f the response to the false report

involved the deployment of a law enforcement special weap-

ons and tactics (SWAT) team or a similar law enforcement

group,” the sentence must include a minimum term of incar-

ceration. ORS 162.375(3).

Of course, many types of false statements that are

made during the course of an existing police investigation

can trigger the expenditure of resources.4 For example,

when Lance questioned defendant about leaving the scene

of the collision, if defendant had falsely claimed that he

had an alibi for the time of the collision, the deputies might

have expended resources to investigate the false claim of

alibi. That, however, does not make the alibi necessarily

a “report,” as that term is used in ORS 162.375. In other

words, we recognize that the legislature may choose to

address a perceived problem—here the waste of emergency

resources—without necessarily prohibiting every contribu-

tion to the problem.

We infer from the broader statutory context that a

false “report,” as that term is used in ORS 162.375, describes

limits—“other organization.” That conclusion flows both from the grammatical

rule of the “last antecedent” and from the fact that leaving the noun “other organi-

zation” unlimited could expand the scope of liability under the statute far beyond

what we conclude the legislature intended. See State v. Clemente-Perez, 357 Or

745, 754, 359 P3d 232 (2015) (“The doctrine of the last antecedent provides that

‘[r]eferential and qualifying words and phrases, where no contrary intention

appears, refer solely to the last antecedent,’ ” and that “ ‘[t]he last antecedent is

the last word, phrase, or clause that can be made an antecedent without impair-

ing the meaning of the sentence.’ ” (Quoting State v. Webb, 324 Or 380, 386, 927

P2d 79 (1996).)).

4

Although ORS 162.375 appears to be designed to prevent the waste of the

resources of an organization that responds to emergencies, we emphasize that

the text does not suggest that an actual response by the organization is an ele-

ment of the crime. Rather, as indicated above, the statute makes any response to

a false report a factor to be taken into account in fashioning the sentence. ORS

162.375(3).

360 State v. Branch

a more specific conveying of information than simply mak-

ing a false statement. That context includes two statutes

that prohibit the making of any false “statement” under

oath: ORS 162.065 (providing that a person who know-

ingly “makes a false sworn statement * * * in regard to a

material issue” commits the Class C felony of “perjury”)

and ORS 162.075 (providing that a person who “makes a

false sworn statement” commits the Class A misdemeanor

of “false swearing”). Those statutes were enacted as part

of the same comprehensive revision of the Criminal Code

that created ORS 162.375, and they supply pertinent con-

text for the meaning of ORS 162.375. Or Laws 1971, ch 743,

§§ 183, 184, 212. See State v. Klein, 352 Or 302, 309, 283 P3d

350 (2012) (a statute’s context includes “related statutes”);

see also Miller v. Water Wonderland Improvement District,

326 Or 306, 309-10 n 4, 951 P2d 720 (1998) (considering

a statute enacted in the same bill as the statute at issue

as relevant context for statutory interpretation). Similarly,

two other statutes make it a crime to knowingly give very

specific false information to law enforcement: ORS 162.385

(prohibiting person from knowingly giving “a false or ficti-

tious name, address or date of birth to any peace officer for

the purpose of” the officer issuing a citation or arresting the

person on a warrant) and ORS 807.620 (prohibiting person

from knowingly giving “a false or fictitious name, address

or date of birth to any police officer who is enforcing motor

vehicle laws”).

If ORS 162.375(1), which contains no requirement

that the false “report” be provided under oath, prohibited

any false statement to an emergency organization, then it

would render both the prohibitions on sworn false state-

ments and the prohibitions on providing specific categories

of false information largely redundant.5 We have empha-

sized that “an interpretation that renders a statutory pro-

vision meaningless should give us pause, both as a matter

of respect for a coordinate branch of government that took

the trouble to enact the provision into law and as a matter

5

A violation of ORS 162.375 is a Class A misdemeanor, as are most of the

statutes described above. However, the crime of “perjury,” ORS 162.065, is a

Class C felony, and in that sense is the one statute in the group that is not entirely

redundant of ORS 162.375.

Cite as 362 Or 351 (2018) 361

of complying with the interpretive principle that, if possi-

ble, we give a statute with multiple parts a construction

that ‘will give effect to all’ of those parts.” State v. Cloutier,

351 Or 68, 98, 261 P3d 1234 (2011) (quoting ORS 174.010).

Moreover, the legislature’s use of the distinct term “report”

in ORS 162.375(1) suggests that the legislature intended to

describe something different from a “statement.” See also

Northwest Natural Gas Co. v. City of Gresham, 359 Or 309,

323, 374 P3d 829 (2016) (“[I]f the legislature uses different

terms in related statutes, it likely intended them to have

different meanings.” (Emphasis in original.)).

Thus, our examination of text and context suggests

that the legislature intended a “report,” within the meaning

of ORS 162.375, to refer to a communication that informs

a law enforcement agency or other emergency organization

that a situation exists of a type to which the organization

would respond with an expenditure of resources. In the

context of a communication to a law enforcement agency,

the phrase “false report” includes, at a minimum, a com-

munication that falsely alleges circumstances to which the

agency is reasonably likely to respond as a current crime

or emergency. Conversely, it does not include a statement

that merely conveys information to which the agency would

respond only because the information is relevant to an exist-

ing report or alarm.

This case illustrates the type of communication

that meets the intended definition of a “report.” The deputies

responded and began an investigation after the other driver

called 9-1-1 to communicate that defendant had fled the

scene of the collision, and then Lance investigated whether

the other driver was in possession of a weapon after defen-

dant falsely alleged that the driver had pointed a gun at

him, because Duke considered the allegation to represent a

safety concern and Lance believed that the alleged conduct

constituted a crime. Both were “reports.” However, defen-

dant’s statement admitting that he had consumed alcohol

was not a “report,” because it did not communicate a cir-

cumstance of a type to which law enforcement is likely to

respond independent of its relevance to the existing investi-

gation into whether defendant committed the crime of driv-

ing while intoxicated.

362 State v. Branch

3.  “Initiates a False Alarm or Report”

That understanding of the term “report” provides

a more clear suggestion of what “initiate[ ] a false alarm or

report” means in the context of law enforcement questioning

that the person did not initiate. Text and context suggest

that a person “initiates a false alarm or report” if the per-

son’s communication “begin[s]” or “mark[s] the beginning

of” informing the organization about the circumstances

that are the subject of the report. In the context of ques-

tioning initiated by law enforcement, that suggested mean-

ing includes, at a minimum, falsely reporting new circum-

stances to which the law enforcement agency is reasonably

likely to respond as a separate, ongoing crime or emergency.

Conversely, the text and context suggest that a person does

not violate ORS 162.375 during law enforcement question-

ing by falsely confirming or denying knowledge of a report

or alarm that already is under investigation, or by falsely

conveying information about circumstances to which the

agency would be unlikely to devote resources, except for

whatever relevance the information may have to an exist-

ing criminal investigation (i.e., by making a false statement

that is not a “report”).

B.  Legislative History

Despite the contrary meaning suggested by the stat-

utory text and context, defendant argues that the legislative

history demonstrates an intent “to exclude false reports that

are responsive to police interrogation” from the prohibition

of ORS 162.375. We disagree.

The legislature adopted ORS 162.375 in 1971, as part

of a comprehensive revision of the Oregon Criminal Code.

Or Laws 1971, ch 743, § 212. The text of ORS 162.375, which

we have discussed in detail above, was proposed to the leg-

islature by the Oregon Criminal Law Revision Commission,

a body consisting of legislators and non-legislators that the

legislature created in 1967 to revise the criminal laws of the

state. Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code, Final Draft and Report

§ 212, 207 (July 1970); see State v. Garcia, 288 Or 413, 416,

605 P2d 671 (1980) (describing history of the commission).

Cite as 362 Or 351 (2018) 363

A subcommittee of the commission considered preliminary

draft language for the section that became ORS 162.375 and

then provided a tentative draft, along with commentary, to

the commission. Commentary to Criminal Law Revision

Commission Proposed Oregon Criminal Code, Tentative

Draft No. 1, § 8, 49 (Feb 1970). The full commission later

approved the subcommittee’s wording for the draft legislation.

See Minutes, Criminal Law Revision Commission, May 15,

1970, 61-62 (approving section setting out new crime of “ini-

tiating a false report”). The commission then presented to

the legislature a Final Draft of the proposed criminal code,

along with commentary. Final Draft and Report § 212, 207;

Gaines, 346 Or at 178.

This court has looked to commentaries produced by

both the commission and its subcommittees as legislative

history for the revised criminal code. E.g., Gaines, 346 Or at

178; see State v. Woodley, 306 Or 458, 462, 760 P2d 884 (1988)

(unless a contrary indication exists, court assumes that the

legislature accepted the commission’s explanations for its

drafting choices). That legislative history strongly supports

our conclusion that the legislature intended to criminalize

“reports” to an emergency organization about situations of a

type to which the organization responds with resources. As

explained in the commentary to the Final Draft and Report,

the new provision that became ORS 162.375 was intended to

address the waste and diversion of emergency resources:

“Criminal statutes dealing with false fire alarms are found

in nearly all American jurisdictions. The rationale support-

ing criminal liability is based upon the waste of govern-

ment resources involved and the creation of circumstances

where personnel and equipment are made unavailable to

deal with legitimate emergencies. Section 212 is intended

to reach fire and police departments, and all other orga-

nizations, public or private, that respond to emergency

alarms involving danger to life or property.”

Commentary to Final Draft and Report § 212, 208-09. The

commentary to an earlier draft elaborated on that intent:

“The proposed section will provide law enforcement agencies

with increased protection from unjustified harassment and

interference with official duties.” Commentary to Tentative

Draft No. 1, Art 22 § 8, 51.

364 State v. Branch

The legislative history also supports our conclusion

that the legislature did not intend to criminalize all false

statements made in response to a police inquiry. The com-

mentary to both the Preliminary Draft and later Tentative

Draft approved by the subcommittee contrast the intended

scope of ORS 162.375 with similar statutes from other juris-

dictions. The commentary describes a Wisconsin statute

that “would seem to cover any false oral statement given

to a police officer in the course of an investigation” and con-

cludes that the Wisconsin approach “may be unduly broad”

because, “[i]f such statements are to be subject to prosecu-

tion, it seems reasonable that they be reduced to writing and

signed by the declarant, and that an intent to mislead be

established.” Commentary to Tentative Draft No. 1, Art 22,

§ 8, 50; Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code, Preliminary Draft No. 1,

Art 22, § 11, 51 (May 1969). The commentaries add that a

similar provision in the “Canadian Criminal Code is even

broader,” prohibiting “ ‘causing a public officer to enter upon

an investigation by * * * doing anything * * * to divert suspi-

cion from himself.’ ” Commentary to Tentative Draft No. 1,

Art 22, § 8, 50; Commentary to Preliminary Draft No. 1, Art

22, § 11, 51 (omissions in both commentaries).

However, nothing in the commentary that the com-

mission provided to the legislature suggests that ORS

162.375 would permit false reports of a new crime or emer-

gency as long as the report is made in response to police

questioning. To support his argument that the legislative

history, nevertheless, demonstrates that intent, defendant

relies on changes to the Preliminary Draft language that

were recommended by the commission’s subcommittee and

on comments during the hearing at which the subcom-

mittee discussed the proposed changes. Language in the

Preliminary Draft referred to the crime as “Rendering

a False Report” and applied if a person “causes * * * to be

transmitted” either a “false alarm of fire or other emer-

gency” or “false information relating to an offense.” Criminal

Law Revision Commission Proposed Oregon Criminal Code,

Preliminary Draft No. 1, Art 22, § 11 (May 1969). After dis-

cussions in the subcommittee, members ultimately voted to

make various changes, including changing the name of the

Cite as 362 Or 351 (2018) 365

crime from “Rendering a False Report” to “Initiating a False

Report” and replacing the phrase “causes * * * to be trans-

mitted” with “knowingly initiates.” Criminal Law Revision

Commission Proposed Oregon Criminal Code, Tentative

Draft No. 1, Art 22, § 8 (Feb 1970).6

Defendant argues that the change to “initiates”

reflects a decision by the subcommittee that, “categorically,

the statute should not punish” false reports that are

“responsive to police questioning.” As we will explain, defen-

dant overstates the significance of the subcommittee dis-

cussions and of the addition of the term “initiates.”7 For the

most part, the comments that defendant cites are entirely

consistent with the rule that the text and context of ORS

162.375(1) suggest—that a person “initiates a false alarm

or report” during questioning initiated by law enforcement

if the person falsely informs the questioners about new cir-

cumstances of the type to which the law enforcement agency

is reasonably likely to respond as a new crime or emergency.

Defendant relies on the following history. Thomas

O’Dell, a representative of the Attorney General, proposed

adding the word “initiates” to address a concern, expressed

by Representative Harl Haas, that the earlier language per-

mitted any oral statement “requested and solicited by the

police officer [to] be the subject of prosecution” and that, “[i]f

every time you talk to a police officer you are in essence

testifying under oath, subject to the penalties of being pros-

ecuted for your statement if it’s an error, that’s a pretty big

policy statement.” Tape Recording, Criminal Law Revision

Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81,

6

The subcommittee also eliminated language from the preliminary draft

that would have prohibited transmitting “false information relating to an offense”

to law enforcement agencies. Criminal Law Revision Commission, Preliminary

Draft No. 1, Art 22, § 11, 50; Criminal Law Revision Commission, Tentative

Draft No. 1, Art 22, § 8, 49.

7

Although the change from “causes to be transmitted” to “knowingly initi-

ates” also could be seen as intended to broaden the scope of the statute beyond the

person actually making a report, the commentary to both the Preliminary Draft

and the Final Draft reflect that the commission intended that broad scope from

the outset. See Final Draft and Report, § 212, 208-09 (The draft explains that

“[t]he section applies whether the false alarm was directly or indirectly caused

to be transmitted. Criminal liability should not be dependent on whether the

person acted himself or caused another to act for him.”); Criminal Law Revision

Commission, Preliminary Draft No. 1, Art 22, § 11.

366 State v. Branch

Side 2 (statement of Haas); Minutes, Criminal Law Revision

Commission, Sept 16, 1969, 18. Defendant highlights O’Dell’s

suggestion that his proposed substitution of “initiates”

would make the statute applicable when a person “starts

the ball rolling.” Tape Recording, Criminal Law Revision

Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81,

Side 2. Defendant also cites an additional comment by Haas

that “we’re talking about * * * initiating the wheels of law

enforcement to go in action on an assertion you’ve made, as

opposed to just a verbal statement to a police officer.”8 Id.

Although defendant assumes that those comments

reflect a belief that the proposed language would exclude a

false report made in response to police questioning, Chairman

Wallace Carson used the same “ball rolling” phrase to

explain his opinion that a person who intentionally lies

during a police investigation should be responsible: “[W]hen

they start the ball rolling, they’re going to be responsi-

ble.” Tape Recording, Criminal Law Revision Commission,

Subcommittee No. 2, Sept 16, 1969, Tape 81, Side 2.

Moreover, defendant assumes a false dichotomy. If,

in response to police questioning about one crime, a person

reports a new crime, that report “starts the ball rolling” or

sets going “the wheels of law enforcement” on a response

to that new crime as fully as if the same report were made

through an unprompted call to the police station. Indeed

that point is illustrated by the facts of this case—when

defendant reported to Duke that a man who was not previ-

ously suspected of any crime had engaged in conduct that

Duke considered to present a safety risk and that Lance

considered to be a crime, the report started the “ball roll-

ing” and the “wheels of law enforcement” turning toward

the investigation of an entirely new crime that the deputies

were not otherwise investigating.

Although other isolated comments during the sub-

committee hearing seemingly come closer to supporting defen-

dant’s construction of the statute, in context the statements

8

This court has previously quoted tape recorded statements made during

meetings of a subcommittee of the Criminal Law Revision Commission as part

of our inquiry into legislative intent. See, e.g., Eastep, 361 Or at 757; State v.

Simonov, 358 Or 531, 544, 368 P3d 11 (2016); Garcia, 288 Or at 416.

Cite as 362 Or 351 (2018) 367

are less clear than defendant believes. For example, defen-

dant highlights a comment that he attributes to Project

Director Donald Paillette, who described his understand-

ing of the line that the statute should draw as: “It’s ‘who

called the fuzz?’ ” Tape Recording, Criminal Law Revision

Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81,

Side 2. But Paillette’s colorful phrasing must be under-

stood in the context of the contrast he was drawing with

false statements made during a “follow-up investigation”—a

type of statement that he believed the statute should not

prohibit. In other words, the comment could be understood

as, figuratively, “who called the fuzz [on a new criminal

investigation]?”

Moreover, Paillette’s comment was immediately fol-

lowed by the comment of another subcommittee member who

expressed the extreme opposite perspective: “I think it’s the

same thing, a waste of governmental resources[;] * * * you’re

sending the police on a wild goose chase by giving them false

information.” Id. Several other members then expressed

concern that, if the statute prohibited all false statements to

the police, it would criminalize a common situation in which

people who are approached by the police during an investi-

gation falsely deny knowledge of the particular crime or sus-

pect in order to avoid becoming involved. Id. As one member

emphasized, although that “might not be the best thing for a

person to do socially,” it does not seem to “rise[ ] to the level

of a crime.” Id. Representative Haas then offered his opinion

that “[t]his is more directed at the guy who calls up” and

reports an ongoing crime. Id. After those comments, the sub-

committee voted to substitute the term “initiates” in place

of “rendering” and “causes * * * to be transmitted.” Minutes,

Criminal Law Revision Commission, Subcommittee No. 2,

Sept 16, 1969, 19; Tape Recording, Criminal Law Revision

Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81,

Side 2.

Ultimately, the legislative history for ORS 162.375

does not disclose clear evidence that the legislature intended

to exclude reports of a new ongoing crime that a person makes

during police questioning about another matter, simply

because the report is also “responsive to police questioning.”

368 State v. Branch

Although several subcommittee members expressed con-

cern about situations in which a person responds to a police

question with a false statement that is relevant only to the

existing investigation, no member raised the example of

a person who falsely reports a new crime in a way that is

also responsive to a police question. Thus, no member of the

subcommittee offered an opinion about whether the statute

should apply when a person sets the law enforcement “ball

rolling” in the direction of a separate criminal investigation

in that way.

Significantly, in the most meaningful indication of

intent to emerge from the subcommittee—the version of the

commentary that was ultimately forwarded to the full com-

mission, and then to the legislature—the only limitation on

the scope of “initiates a false alarm or report” is the sugges-

tion that the laws of Wisconsin and Canada were “unduly

broad” in prohibiting “any false oral statement,” or even

“doing anything” to divert suspicion, during the course of

an investigation. Commentary to Tentative Draft No. 1, Art

22, § 8, 50; Commentary to Preliminary Draft No. 1, Art 22,

§ 11, 51. Thus, the legislative history provides no basis for us

to depart from the meaning suggested by the “more persua-

sive evidence of the intent of the legislature” that is supplied

by the text and context of the statute. See Gaines, 346 Or at

171; see also Cloutier, 351 Or at 102 (“The fact of the matter,

however, is that the legislative history * * * provides a little

something for everyone and does not clearly resolve the mat-

ter one way or the other.”).

We conclude that, at a minimum, in the context of

questioning initiated by law enforcement, a person “initi-

ates a false alarm or report” within the meaning of ORS

162.375, if the person falsely alleges new circumstances to

which the law enforcement agency is reasonably likely to

respond as a current separate crime or emergency in itself,

not merely because the false information is relevant to

the crimes or emergency about which the person is being

questioned.9

9

We emphasize that the statute also requires the person to act “knowingly.”

Unless context requires otherwise, “knowingly,” as the term is used in chapter

743, Oregon Laws 1971 (the 1971 Oregon Criminal Code) means, “with respect to

Cite as 362 Or 351 (2018) 369

C.  Defendant’s Motion for Judgment of Acquittal

Under that test, the facts of this case permit a find-

ing that defendant violated ORS 162.375.10 As defendant

acknowledges, the jury could find that defendant falsely told

Duke that the other driver had pointed a gun at him. Lance

testified that he conducted a search and questioned the

other driver because he believed that the conduct defendant

described constituted a crime. Thus, the evidence permit-

ted a finding that defendant’s false accusation was a false

“report.” The jury could also find that defendant “initiated”

that false report, because there was evidence that defendant

was the first person to tell the deputies that the other driver

had pointed a gun at defendant and there was also evidence

that Lance would not have investigated a gun-related crime

or searched the other driver’s car if not for defendant’s report

about the gun.

We thus agree with the Court of Appeals’ that defen-

dant’s conviction should be affirmed. For the reasons dis-

cussed, however, we disagree with the Court of Appeals that

only defendant’s subsequent elaboration on his false report

supports his conviction under ORS 162.375.

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

conduct or to a circumstance described by a statute defining an offense, * * * that

a person acts with an awareness that the conduct of the person is of a nature so

described or that a circumstance so described exists.” ORS 161.085(8). Although

that requirement is not at issue in the present case, it limits the circumstances

under which a person can be convicted for making a false report that is respon-

sive to a police question.

10

We review a trial court’s denial of a motion for judgment of acquittal to

determine “whether there was sufficient evidence in the record from which a rea-

sonable trier of fact could find the elements of the crime beyond a reasonable

doubt.” State v. Rader, 348 Or 81, 91, 228 P3d 552 (2010). In so doing, we “resolve

all conflicts of evidence in favor of the state and give the state the benefit of all

reasonable inferences.” Id.