dissenting.
The majority, by a two-step process of misreading statutes and then misreading precedent, produces a result that will throw the trial of cases involving the defenses of insanity and extreme emotional disturbance into confusion. For that reason, I respectfully dissent.
This case requires this court to decide whether two affirmative defenses are mutually exclusive. The defense of insanity is set forth in ORS 161.295(1):
“A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.”
The defense of extreme emotional disturbance (EED) is set forth in ORS 163.135(1), which provides in part:
“It is an affirmative defense to murder for purposes of ORS 163.115(l)(a) that the homicide was committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation.” (Emphasis supplied.)
The statute also directs how a defendant may prove “reasonable explanation”: “The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances as the actor reasonably believes them to be.” ORS 163.135(1). This definition has three components: (1) an *634ordinary person; (2) in the actor’s situation; and (3) the circumstances of the situation must be as the actor reasonably believes them to be.
The majority today holds that the insanity defense and the EED defense are not mutually exclusive. The majority first notes that the insanity defense requires that a defendant be found guilty before insane. “[W]e hold that the defense of mental disease or defect requires a finding that the defendant is criminally culpable before a question arises as to whether society will hold the defendant criminally responsible.” 311 Or at 622. (Emphasis in original.) Next, the majority reviews the EED defense, which is applied during the guilt determination, and articulates a standard for EED which only incorporates the first two components of “reasonable explanation.” The majority focuses on “the ordinary person” and “the actor’s situation” components, explaining how the EED defense now contains both a subjective and an objective element. As to this discussion, I agree. But the majority fails to consider the third component of the definition of a “reasonable explanation,” and never discusses the application of both the insanity and the EED defenses in the situation as the defendant reasonably believed himself to be.1 When doing so, the defendant, as a matter of law, must, at the time of the murder, be reasonably perceiving all the facts. If, as a result of insanity, the defendant commits a homicide, how can, at that same moment, the defendant be reasonably perceiving all the facts in his situation?2 The answer, at least under Oregon law, is that he cannot. The proof is simple mathematics.
*635Both the insanity defense and the EED defense are affirmative defenses. The defendant must prove all the elements of each defense by a preponderance of the evidence, ORS 161.055(2), i.e., he must do so by convincing the trier of fact that what he claims is more probably true than false. Cook v. Michael, 214 Or 513, 519, 330 P2d 1026 (1958).
ORS 161.295, the insanity defense, is applicable to those defendants who do not know or understand what they allegedly did, or could not control their conduct. By contrast, ORS 163.135, the EED defense, is applicable to those defendants who do know and understand what they allegedly did, but could not control their conduct, and are offering a reasonable explanation so as to diminish their culpability. In the insanity defense, a defendant must prove that he or she cannot reasonably perceive the reality of the world — that he or she “lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.” ORS 161.295(1). (Emphasis supplied.) In the EED defense, the defendant must prove that he or she “reasonably believes” circumstances under which an ordinary person, in that situation, would be overcome by emotion. In my view, if a person lacks substantial capacity to appreciate the meaning of or to control the person’s commission of a certain act, then that person cannot be said reasonably to believe all the circumstances surrounding the act to be what they are in fact.
The legislature recognized the need for such logical consistency when it amended the EED defense and added “reasonably” before “believes” in ORS 163.135. See 311 Or at 627. By doing so, the legislature denied the EED defense (a defense only given by legislative grace) to a defendant who, at the time of committing the murder, did not “reasonably” believe the circumstances, i.e., was not able reasonably to perceive the world and its realities. In other words, the legislature expressly and specifically has disallowed this legislative grace to defendants who, as a result of insanity, commit murder. The EED defense was intended to be available only *636to people who, at the time of the murder, were sane. Today, however, a majority of this court gives what the legislature expressly withheld.
Although placed last in the wording of the definition for “reasonable explanation” under ORS 163.135, the requirement that the defendant “reasonably” believe is, in logic, undertaken first. This initial inquiry often is overlooked in cases, as it is today by the majority,3 because the EED defense is designed for persons who knew what they were doing when they committed homicide. The debate normally is centered on whether the EED defense is subjective, objective, or both. But the question of whether the defense is subjective or objective is separate from whether the defendant “reasonably believes” certain facts to be true, and any prior cases or legislative history must be read accordingly. The majority fails in this when it attacks the issue in this case under the first and second components of a “reasonable explanation’ ’ — “the ordinary person” and “the actor’s situation” — and concludes that “the legislature did not intend that an individual’s mental disease or defect (as defined by ORS 161.295) should be included with that phrase [in the actor’s situation].” 311 Or at 628. Of course it didn’t. The majority has missed the point.
Now, upon reviewing the entire plain language of the two defenses, it is apparent that they contain inconsistent elements.4 And given the fact that they are both affirmative defenses, it is clear that they are mutually exclusive. If, under the statutory scheme, an actor murders someone as a result of insanity, a fact which must be proved more probable than not, then any other reason for the actor’s conduct that is inconsistent with insanity is a fortiori less probable than not.
*637The majority confuses the difference between concurrent causation and “but for” causation. The majority states that the EED defense requires that “[t]he defendant is entitled to the [EED] defense only if the defendant was acting under such a[n extreme emotional] disturbance. ORS 163.135(1).” 311 Or at 623. (Emphasis supplied.) I agree. In the next sentence, the majority states that “[t]he defendant must prove * * * that he or she ‘acted under’ an emotional disturbance.” Id. (Emphasis in original.) Again, I agree. But the majority does not recognize the consequence of this last point. A person can be extremely emotionally disturbed and yet remain controlled, i.e., not murder someone. The EED defense requires that the extreme emotional disturbance be the cause of the murder, that “the homicide was committed under the influence of extreme emotional disturbance * * ORS 163.135(1). (Emphasis supplied.)
The same must be said of the insanity defense: “A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person [is insane] * * *.” ORS 161.295. (Emphasis supplied.) The statute mandates that the elements of a crime must be performed as a result of insanity. It is illogical to say that an act was committed under the influence of one psychological occurrence and as a result of another psychological occurrence. Both statements require a predominant psychological occurrence.
The majority does not address this problem when it proclaims, correctly, I believe, that “[t]he drafters of the extreme emotional disturbance defense recognized that there is no reason why a defendant who is ‘insane’ may not also be ‘extremely emotionally disturbed.’ ” 311 Or at 624. It is logical, for example, for a man who believes himself to be from Mars — a delusion — also to murder someone while under the influence of an extreme emotional disturbance. But it is illogical to say that at the same time, as a result of his insanity, he murdered. On the other hand, if as a result of “being from Mars” the man kills the victim, then, as a matter of law, the man, under any circumstances, did not murder under the influence of extreme emotional disturbance; the homicide instead was a product of the insanity.
*638In language and in application, the insanity and EED defenses are mutually exclusive. Of course, an insane defendant who has yet to prove insanity, may successfully assert an EED defense. But once the trier of fact finds the third component of the “reasonable explanation” — that the defendant reasonably believed all the circumstances to be as, in fact, they were — then the defendant is precluded from asserting that at the time of the murder he lacked the “capacity” to prevent his acts or appreciate their criminality. The state, in essence, need only argue issue preclusion: The issue of what was the predominant psychological occurrence in the defendant’s mind at the time of the murder has been decided already — the defendant committed the murder under the influence of, i.e., because of, the extreme emotional disturbance. Hence, a defendant may raise both the insanity defense and the EED defense at trial. The trier of fact, however, can only, under the statutory scheme, find one applicable to the defendant. The defendant cannot have it both ways.
The majority has needlessly further complicated an area of the law that cries out for clarification. Because of the timing of our decision — a circumstance that is no one’s fault — murder trials for the next two years are going to be even more complicated than they have been.
The majority’s conclusion is not supported by the legislative history it cites. In the only history pertinent to this issue, the majority quotes then Representative Carson’s articulation of the test under the current EED defense: “Given particular, specified circumstances, does the jury, in its mind, find the activity reasonable for a person with these characteristics.” See 311 Or at 625. (Emphasis supplied.) Given what particular and specific circumstances? The statute expressly provides the answer: “[U]nder the circumstances as the actor reasonably believes them to be.” ORS 163.135(1). (Emphasis supplied.)
Neither can the majority successfully seek refuge in the “persuasive” authority on which it relies. Of those cases, the first two contradict the majority, the third is different, and the fourth is wrong.
*639The majority reads People v. Ford, 423 NYS2d 402, 102 Misc 2d 160 (1979), and People v. Patterson, 39 NY2d 288, 383 NYS2d 573, 347 NE2d 898 (1976), aff’d sub nom Patterson v. New York, 432 US 197, 97 S Ct 2319, 53 L Ed 2d 281 (1977),5 to hold that “the defendant’s extreme emotional disturbance need not rise to the level of insanity before he or she is entitled to the mitigating effects of the defense — not that it must not rise to that level.” 311 Or at 631. (Emphasis in original.) Earlier, the majority stated, however, that insanity and extreme emotional disturbance are different in kind, not different in degree. See 311 Or at 623-24.
The majority also states that:
“[Sjince Patterson and Ford, the New York Court of Appeals in People v. Young, 65 NY2d 103, 490 NYS2d 179, 182, 479 NE2d 815 (1985), expressly has held that a defendant could claim and the jury could find that his crime of intentional murder should be mitigated to manslaughter because of extreme emotional disturbance and that he should he not guilty by reason of insanity of the crime of manslaughter.”
311 Or at 631. (Emphasis in original.) The majority misreads Young; that case did not involve two affirmative defenses. In Young, the defendant was charged with a single count of second degree murder. NY Penal Law § 125.25. The defendant raised the affirmative defenses of insanity6 and EED.7 *640“At the People’s request, the [trial] court agreed, additionally, to charge manslaughter in the first degree (Penal Law § 125.20).”8 Id. 65 NY2d at 107. Once the trial court allowed the state to charge the defendant with first degree manslaughter, the affirmative defense of EED was not applicable to the case. See New York Penal Law § 125.25(1)(a) (“Nothing contained in this paragraph [which sets forth the affirmative defense of extreme emotional disturbance] shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree”).
In Young, supra, the trial court first instructed the jury on the elements of second degree murder and the applicability of the insanity defense. The trial court next gave instructions on the elements of first degree manslaughter; it did not instruct the jury on the affirmative defense of EED. The New York Court of Appeals reversed because the trial court failed to instruct the jury that it could find the defendant both guilty of first degree manslaughter and insane. This holding, however, does not aid the majority, for two different reasons.
First, because there was no affirmative defense of EED, the defendant in Young did not have the burden of proof *641on the definition of extreme emotional disturbance. The commentary to New York Penal Article 125 states that, when the charging authority directly charges the defendant with first degree manslaughter, “extreme emotional disturbance” is neither an element of first degree manslaughter nor a defense thereto and need not be alleged by the people or proved by either party. McKinney’s Penal Law Comment prec. § 125.00 at 489 (citing Staff Comments of the Commission on Revision of the Penal Law). Second, unlike Oregon’s, New York’s EED defense, and its definition of a “reasonable” explanation or excuse, does not contain the limit at issue in this case. New York’s definition states “* * * the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” NY Penal Law § 125.25(l)(a). (Emphasis supplied.) Oregon’s EED defense requires the “actor’s situation” to be “under the circumstances as the actor reasonably believes them to be.” ORS 163.135(1). (Emphasis supplied.) It is this one word — “reasonably” — that is at issue in this case.
The majority also cites as authority a New York lower court’s errant application of Young, viz., People v. Johns, 122 App Div 2d 74, 504 NYS2d 485 (1986). 311 Or at 631. The court in Johns cited Young, supra, as authority for the proposition that the insanity defense applied even if the defendant satisfied his burden, under the EED defense, of proving that when he committed the murder, he was acting while under the influence of an extreme emotional disturbance. Johns, 504 NYS2d at 486. As shown above, the affirmative defense of EED was not at issue in Young. The Johns court misapplied Young. Johns therefore is not persuasive authority for the position argued by the majority.
The majority today holds that the legislature intended that a criminal defendant’s mental condition, clouded by two different psychological occurrences — both of which the criminal defendant must prove — can simultaneously make the defendant partially responsible for a murder (the EED defense) and completely excuse him from all responsibility (the insanity defense). This holding is contrary to the plain language of the respective defenses, is *642anomalous in effect, is not justified by the legislative history, and is not supported by any persuasive authority.
I respectfully dissent.
Peterson, C. J., joins in this dissenting opinion.Defendant invited this error by arguing that “a defendant’s mental imbalance (serious enough to constitute insanity as defined by ORS 161.295) should be included in the phrase ‘the actor’s situation.’ ” 311 Or at 627.
The majority cites State v. Ott, 297 Or 375, 686 P2d 1001 (1984), for its legislative history and interpretation of ORS 163.195. In Ott, however, this court also overlooked the third component of the definition of a “reasonable explanation.” In summing up the amendments which created the current EED defense, we stated that “[t]his [is a] legislative mix of the ‘ordinary’ person’s views and the subjective belief of the defendant as to the reasonableness of his conduct in what the defendant believes the circumstances to be * * 297 Or at 394. We inadvertently omitted “reasonably” and should have said “* * * in what the defendant reasonably believes the circumstances to be * * This omission was not pertinent in Ott, as it had no effect on the outcome of the case. In the present case, however, the omitted word is pivotal.
Consider, for example, a situation in which a defendant is suffering from a delusion or hallucination. It is impossible to say that he “reasonably believes” all the facts involved in his situation. By definition, a delusion is “something that is falsely *635or delusively believed or propagated; false belief or a persistent error of perception occasioned by false belief or mental derangement.” Webster’s New International Dictionary 598 (3d ed 1971).
After analyzing the EED defense in light of legislative history and commentary, the majority posits that “[ujnder the third component [of the elements of the EED defense] the trier of fact determines whether, under the circumstances, an ordinary person, with certain relevant characteristics of the defendant (excluding insanity) would have been' extremely emotionally disturbed.” 311 Or at 629. (Emphasis supplied.) Again, ORS 163.135(1) expressly states that the inquiry is “under the circumstances as the actor reasonably believes them to be.” (Emphasis supplied.) By omitting the last phrase, the majority rewrites the statute.
This is of no surprise given the fact that insanity and extreme emotional disturbance are different psychological occurrences. 311 Or at 623-24.
In State v. Carson, 292 Or 451, 459, 640 P2d 586 (1982), this court, quoting People v. Ford, 423 NYS2d 402, 102 Misc 2d 160 (1979), stated that “ ‘[ejxtreme emotional disturbance’ has been defined as: ‘* * * the emotional state of an individual who: (a) has no mental disease or defect, (that rises to the level established by statute defining lack of criminal responsibility); * * ” (Emphasis supplied.) The majority states that this definition originated in People v. Patterson, 39 NY2d 288, 383 NYS2d 573, 347 NE2d 898 (1976), aff’d sub nom Patterson v. New York, 432 US 197, 97 S Ct 2319, 53 L Ed 2d 281 (1977). 311 Or at 631.
New York Penal Law § 40.15 states:
“In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:
“1. The nature and consequences of such conduct; or
“2. That such conduct was wrong.”
New York Penal Law § 125.25 states, in part:
“A person is guilty of murder in the second degree when:
“1. With intent to cause the death of another person, he causes the death of *640such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
“(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; * *
(Emphasis supplied.)
New York Penal Law § 125.20 states, in part:
“A person is guilty of manslaughter in the first degree when:
“1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or
“2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; * * *.”