concurring.
The constituent components of the majority opinion’s PGE/Gaines deconstruction are (at least for me) ultimately, abstractly, unassailable. Accordingly, I concur in the disposition. Nevertheless, with due regard for the majority’s closely reasoned treatment, I write separately to highlight some frankly troubling features of our holding.
First, our result — that a parent’s mere surreptitious possession of drugs in his or her child’s presence violates ORS 163.575(l)(b) — is arguably inconsistent with that statute’s legislative intent, as elucidated in State v. McBride, 352 Or 159, 281 P3d 605 (2012). There, the Supreme Court explained that ORS 163.575 was “‘designed to provide coverage for specific acts injurious to the welfare of minors not specifically prohibited elsewhere’” in the Oregon Criminal Code. Id. at 164 (quoting Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 177, [178] (July 1970)) (emphasis added). The court further noted that the statute was intended “to criminalize conduct that previously was proscribed as ‘contributing to the delinquency of a minor,’ but to do so with sufficient specificity to avoid unconstitutional vagueness.” Id.; see also id. at 168 (“ORS 163.575(l)(b) proscribes conduct directed at minors.” (Emphasis added.)).
*273It is problematic, at least, to deem a parent’s mere possession of a controlled substance of which a child is unaware to be conduct “injurious to the welfare” of the child or “conduct directed at” the child. Nor does it appear that a parent’s surreptitious possession of a controlled substance in a child’s presence constituted “contributing to the delinquency of a minor” under that (now-repealed) statutory scheme;1 certainly, there are no reported Oregon appellate decisions relating to such a prosecution.2
Second, the necessary practical upshot of our holding is that, subject to the prosecutor’s charging discretion, a parent who possesses controlled substances while his or her children are present can be convicted not only of possession of a controlled substance, but also of endangering the welfare of a minor. Further, because each of those offenses involves separate victims, the parent is (within the trial court’s discretion) subject to the imposition of consecutive sentences. ORS 137.123(5)(b).
Third, depending on the proper construction of the term “place” in ORS 163.575(l)(b) — a matter that the majority opinion, perhaps channeling the Supreme Court in McBride,3 silently defers — our analysis sanctions incongruous results. To wit: Under our reasoning, as so unqualified, anywhere a person merely possesses drugs is “a place where unlawful activity involving controlled substances is maintained or conducted.” ORS 163.575(l)(b). Thus, if a person who possesses drugs walks into a school, a supermarket, a church, or a synagogue — or, for that matter, our courtroom, Reser Stadium, or the Rose Festival Fun Center — that “place” becomes one in which “unlawful activity involving controlled substances is being maintained or conducted.” By extension, to the extent that a parent knows of that possession by some third party (even a stranger) and, nevertheless, permits his or her child (or some child under his or her
*274control) to remain in that place, the parent violates ORS 163.575(l)(b).4
“Slippery slope” scenarios can be facile. Nevertheless, the real — not illusory — “whole” of our holding is greater than the total of its individual, analytic “parts.” Lacking a plausible, principled alternative path, correction, if any, “lies not injudicial ingenuity, but in legislative amendment.” Grijalva v. Safeco Ins. Co., 153 Or App 144,158, 956 P2d 995 (1998), rev’d on other grounds, 329 Or 36, 985 P2d 784 (1999) (Haselton, J., concurring).
Former OES 167.210 (1907), repealed by Or Laws 1971, ch 743, § 432.
Accord, e.g., State v. Williams, 236 Or 18, 386 P2d 461 (1963) (involving furnishing alcohol to a minor); State v. Iverson, 231 Or 15, 371 P2d 672 (1962) (engaging in sexual conduct with a minor); State v. Casson, 223 Or 421, 354 P2d 815 (1960) (bringing minor into association with a person whom the defendant knew was a “vicious or immoral person”).
See 352 Or at 168 n 6.
That is so because, under ORS 163.575 (l)(b), the defendant need not have been personally engaged in “unlawful activity involving controlled substances”; rather, the gravamen of the offense is simply knowingly permitting a child to remain in the “place” where such activity is being “maintained or conducted.”