# State v. Wiborg

> Court of Appeals of Oregon · April 26, 2017 · 285 Or. App. 131

URL: https://www.frixlaw.com/law-library/cases/8129016

## Case

- **Full name:** STATE OF OREGON, Plaintiff-Respondent v. DAVID ROY WIBORG
- **Court:** Court of Appeals of Oregon
- **Decided:** April 26, 2017
- **Citations:** 285 Or. App. 131; 396 P.3d 258; 2017 Ore. App. LEXIS 536; 2017 WL 1491127
- **Precedential status:** Published
- **Opinion:** Dissent by Devore
- **Judges:** Devore, Duncan, Flynn, Tempore
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8129016

## How later opinions describe it (automated extraction)

- reversing and remanding for a new trial after the appellate court concluded that “the trial court applied an incorrect legal standard with regard to [an] element of the offense and, thus, did not make a finding on an element necessary to convict.”
- observing that “grammatical structure” of statute “offers helpful clues to the statute’s meaning”

## Opinion text

DeVORE, J.,
dissenting.
The majority opinion has one of two meanings, and both may be flawed. One meaning erases an essential word from the statute, and the other meaning makes the statute a contradiction in terms. Because I fear that neither meaning may properly construe ORS 165.570(1)(a), I reluctantly dissent.
One reading of the majority opinion may be that a defendant cannot be convicted of the crime of improper use of an emergency communication system if the person knowingly makes an emergency call for the purpose of reporting a situation that the person believes is an emergency, no matter how wildly unreasonable that belief may be. State v. Wiborg, 285 Or App 131, 133, 139, 141 , 396 P3d 258 (2017). That is because the majority concludes that the trial court *142 erred in finding defendant guilty without a finding that he knew his belief was unreasonable. Id.
That conclusion departs subtly but significantly from the statute. In relevant part, ORS 165.570(1) provides:
“A person commits the crime of improper use of the emergency communications system if the person knowingly:
“(a) Makes an emergency call * * * for a purpose other than to report a situation that the person reasonably believes requires prompt service in order to preserve human life or property [.] ”
(Emphasis added.) The majority opinion could reach the same conclusion that it reaches if the word “reasonably” were deleted from the statute. The same conclusion would be reached if the statute provided that a person commits the crime “if the person knowingly makes an emergency call * * * for a purpose other than to report a situation that the person [reasonably] believes” is an emergency. In this case, defendant called repeatedly about imagined prowlers. Despite being told that there were no prowlers and despite being warned not to call again, he demonstrated that he did not accept what he was told, and so he called yet again. Thus, the majority’s conclusion may mean that he cannot be convicted so long as he subjectively believes that his call involves an emergency. Insofar as he “knows,” the situation is an emergency. In effect, the majority’s decision omits the word “reasonably” from the statute.
One explanation for that problem in the majority opinion may be that the statute involves more than just the question whether it does or does not include proof of a culpable mental state. To be sure, it does. The statute expressly requires that, to be found to violate the statute, a person must act “knowingly.” ORS 165.570(1). But the issue is not just “how far down the sentence the word ‘knowingly’ is intended to travel.” Wiborg, 285 Or App at 138 . The phrase “reasonably believes” introduces another consideration—a consideration that demands that the factfinder consider more than just what the defendant subjectively believes. That added consideration—reasonable belief—should be impossible to overlook.
*143 The phrase “reasonable belief’ is a well-established term of legal meaning that is familiar in many settings. For example, an officer’s stop of a person must be justified by reasonable suspicion of criminal activity. The standard has subjective and objective components. An officer must subjectively suspect that the person stopped is involved in criminal activity and that belief must be objectively reasonable under the totality of the circumstances. State v. Mitchele, 240 Or App 86, 90-91 , 251 P3d 760 (2010). Similarly, to have probable cause to arrest, an officer must subjectively believe that a crime has been committed and that belief must be objectively reasonable in the circumstances. State v. Pollock, 337 Or 618, 622-23 , 102 P3d 684 (2004). In a civil claim for wrongful civil proceedings, one element required is an absence of probable cause for an underlying proceeding. To have probable cause means that the person “'reasonably believes’ that he or she has a good chance of prevailing— that is, he or she subjectively has that belief and the belief is objectively reasonable.” Roop v. Parker Northwest Paving Co., 194 Or App 219, 238 , 94 P3d 885 (2004), rev den, 338 Or 374 (2005). The best expression of this common concept is found in the Oregon Rules of Professional Conduct (ORPC), which governs lawyers. It provides this definition:
“‘Reasonable belief or ‘reasonably believes’ when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.”
ORPC 1.0(1). The recurring use of the term “reasonable belief’ through many fields of Oregon law confirms that, when the legislature chose those words to describe the offense of misuse of the 9-1-1 system, the legislature chose familiar words with specific legal meaning. To choose words with a well-understood meaning is the best way to express legislative intent. See State v. Gaines, 346 Or 160, 171 , 206 P3d 1042 (2009) (“[T]here is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes.” (Internal quotation marks omitted.)).
In this instance, the legislature chose the words, “reasonably believes,” in order to require both subjective *144 and objective components when speaking of the defendant’s belief. To recap, a person commits the offense if the person knowingly makes an emergency call for a purpose other than to report a situation that the person reasonably believes is an emergency. ORS 165.570. The subjective alternative is that the person commits the offense if the person knowingly calls to report a situation that the person does not personally or subjectively believe is an emergency. The objective alternative is that the person commits the offense if the person knowingly calls to report a situation that could not appear to be an emergency, given what a reasonable person in defendant’s circumstances would believe. See, e.g., ORS 124.100(5) (a defendant is liable “for permitting another person to engage in physical or financial abuse [of a vulnerable person] if the [defendant] knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical or financial abuse” (emphasis added)); Wyers v. American Medical Response Northwest, Inc., 268 Or App 232, 246-47 , 342 P3d 129 (2014), aff’d, 360 Or 211 , 377 P3d 570 (2016) (ORS 124.100(5) does not require a plaintiff to prove that a defendant subjectively knew that the offender was engaged in misconduct with a vulnerable person at the time of the conduct; rather, “the legislature’s use of ‘reasonable person’ nomenclature demonstrates that it intended to impute knowledge of the abuse to a defendant under an objective standard” (emphasis added)).
To the extent that the majority opinion produces a result that a defendant cannot be convicted whenever the defendant believes the call is an emergency, even when all the circumstances known to a reasonable person indicate that the situation is not an emergency, then the majority opinion has omitted the word “reasonable” from the well-understood term “reasonable belief.” If so, then we violate legislative intent and a basic rule of interpretation. See ORS 174.010 (a court cannot omit words in a statute); Gaines, 346 Or at 171 (best expression of intent are the statute’s words).
The alternate reading of the majority opinion is a reading that makes the statute a contradiction in terms. That unhappy conclusion is the result of the attempt to reconcile the term “knowingly” with the term “reasonably,” when doing so without appreciating that “reasonably *145 believe” is a term of legal meaning with an objective component. The majority reads together “knowingly” and “reasonably believes” and, by conflating the terms, fails to recognize reference to an objective consideration. See Wyers, 360 Or at 221-30 (rejecting defendant’s interpretation of ORS 124.100(5)). In the majority’s view, the statute requires the state to prove that defendant knew that his belief was unreasonable. Wiborg, 285 Or App at 133, 140-41 .
The trouble with that interpretation is that a person who subjectively believes that a situation is an emergency, when it is not actually an emergency, cannot be proven to “know” that his or her belief is unreasonable. Defendant demonstrated that problem, when being told repeatedly on different days, after police inspection, that there were no prowlers on his property. Yet, he called again. To “know” a circumstance is much the same as to “believe” a circumstance exists. 1 Accordingly, the majority opinion can be read to require the state to prove that, although defendant believed the situation was an emergency, he actually knew that it was not. For all practical purposes, that is a contradiction in terms.
After the decision in this case, the statute remains enforceable in one or two situations—one that is narrow and one that is implausible. In one, the statute may be enforced against a person who never believed at all that the situation was an emergency. In that case, the term “reasonably” is unnecessary and has been rendered surplusage. That is an interpretation to be avoided. See Dept. of Transportation v. Stallcup, 341 Or 93, 101 , 138 P3d 9 (2006) (rejecting construction that would relegate portion of statute to surplu-sage). In the other situation, the statute may be enforced against a person who had a genuine belief that the situation was an emergency when it was not an emergency, if, but only if, the state can prove that the person, simultaneously and paradoxically, had “knowledge” that the belief *146 was unreasonable. That situation presents a contradiction in terms, if not an impossibility of proof.
Despite the majority’s reference to an opinion of the Supreme Court, I am unpersuaded. Our issue of statutory construction was not presented for decision in that case, In re Strickland, 339 Or 595 , 124 P3d 1225 (2005). Among other things, that case involved a question whether a lawyer committed criminal acts that reflected adversely on the lawyer’s honesty, trustworthiness, or fitness to practice law for purposes of the Oregon Code of Professional Responsibility Discipline Rule (DR) 1-102 (A) (2) (providing that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice law). Id. at 601 . One of the underlying convictions, among others, did involve abuse of the 9-1-1 system, ORS 165.570(1). Id. at 597 . Due to the facts of that case, however, the court was not called upon to decide whether the term “reasonably believes” involves both objective and subjective components. That is because the facts were extreme.
The subject lawyer had called 9-1-1 in a deliberately faked emergency. Muddying the water, he admitted that he had violated another statute, ORS 162.375, which meant knowingly making a false report, and which did not involve the term “reasonably believes.” For purposes of the disciplinary rule, the court referred to the lawyer’s conduct as “a pattern of criminal conduct” because there were multiple charges. Id. at 601 . The situation happened to be the narrow one, noted above, in which a person abused the 9-1-1 system, ORS 165.570, because the person actually knew that there was no emergency. The court’s recitation that “he did not reasonably believe” the situation was an emergency reflected those extreme facts. Id. Under any interpretation, a defendant who did not subjectively believe the situation was an emergency would violate the statute. The decision is controlling insofar as such conduct, on those facts, reflects on the lawyer’s honesty, trustworthiness, or fitness to practice under DR 1-102(A)(2). But, the case did not present, nor squarely address, the question that arises when a caller believes the situation is an emergency but, under the circumstances, the caller reasonably should not believe it is *147 an emergency. Because our question was not presented or debated, Strickland is not controlling.
Whatever the proper meaning of the statute, this case reflects the difficulty of using the criminal justice system in dealing with mental illness. Such cases call for the exercise of prosecutorial discretion when choosing which cases to bring and which cases to leave for social services. When the criminal justice system is invoked, as here, there may be a more appropriate response than our reconstruction of the statute. If a person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law, then that defense should be interposed to criminal liability. See ORS 161.295 (mental disease or defect; guilty except for insanity). Similarly, evidence of a mental illness is admissible when relevant to a culpable mental state (here, “knowingly”). See ORS 161.300 (mental disease or defect admissible if relevant to the intent that is an element of a crime). To construe this statute more narrowly than the legislature intended is compassionate, but it may be a case of bad facts making bad law, when an appropriate defense may be a better answer.
In the end, this is an argument I am happy to lose. Nevertheless, out of concern for this statute, I respectfully dissent.
ORS 161.085(8) explains:
“‘Knowingly’ or ‘with knowledge,’ when used with respect to conduct or to a circumstance described by a statute defining an offense, means 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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8129016. Public record. Not legal advice.