dissenting.
The question in this death-penalty proceeding is: What kind of evidence is relevant to defendant’s “character or background” in determining whether defendant should receive a death sentence? ORS 163.150(1)(b) and (c). Defendant contends that the trial court erred in sustaining the state’s objection to his question to witness Christine Stevens, his estranged wife, about their daughter Emily’s welfare if defendant were to be sentenced to death.
The trial court sustained the state’s objection on the ground that the evidence sought by the question was irrelevant, stating: “I don’t find that the mother’s belief about what’s in the best interest of the child would relate in any way to the defendant’s background or character.”1
Defendant argues that the admission of evidence of the supposed potential effect of his execution on his daughter is required by ORS 163.150(1)(c)(B). He posits:
“An aspect of defendant’s background is the fact that he has a daughter and also that he was convicted of molesting her. How this daughter may feel about him and what might be best for her in terms of his punishment are matters which the jury should be able to consider in deciding the appropriate sentence.”
The state argues that evidence of the supposed potential effect of defendant’s execution on his daughter does not reflect on his “character or background” and, therefore, the *588witness’ testimony is not relevant to the question whether he should receive a death sentence.
ORS 163.150(1)(c)(B) provides that the trial court shall instruct the jury
“to answer the question [whether the defendant should receive a death sentence] ‘no’ if one or more of the jurors find there is any aspect of the defendant’s character or background, or any circumstances of the offense, that one or more of the jurors believe would justify a sentence less than death.”
As the trial court correctly noted, that statute focuses on defendant’s character or background, not on the character or background of someone else.
I would hold that the witness’ testimony was not relevant to the fourth question and, therefore, that the trial court did not commit statutory error in sustaining the state’s objection to the testimony. Accordingly, I respectfully dissent.
Whether evidence is relevant to an issue in dispute is a question of law. State v. Pinnell, 311 Or 98, 109 n 17, 806 P2d 110 (1991).2 To determine what type of evidence is relevant to the fourth question, I look for the legislature’s intent in enacting ORS 163.150(1)(c). See PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993) (setting forth method of statutory interpretation). To determine legislative intent, I first look to the text and context of the statute. Id. at 610-11.
*589In ORS 163.150(1)(b)(D) the jury is asked to decide “Whether the defendant should receive a death sentence.” ORS 163.150(1)(c)(B) requires the jury to consider any aspect of the defendant’s ‘ ‘character or background’ ’ in making that determination. The text is ambiguous as to the meaning of the terms “character” and “background.” Although the terms may have “plain meanings,” their “plain meanings” as described in the dictionary are so broad as to be unhelpful in this case.3 Moreover, the context of the statute is not instructive as to what the legislature intended by the terms “character” and “background.” Because the intent of the legislature is not clear from the text and context of the statute, I next turn to legislative history. 317 Or at 611-12.
Prior to 1989, Oregon had only three questions for the jury to answer. ORS 163.150(1)03)(A)-(C) (1984). In Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989), the Supreme Court of the United Stated held that Texas’ three-question statutory sentencing scheme, from which the Oregon scheme was derived, did not allow the jury to fully consider the effect of the defendant’s mitigating evidence. The Supreme Court explained:
“Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a ‘reasoned moral response to the defendant’s background, character, and crime * * *.’ [T]he jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” 492 US at 301. (Citations omitted; emphasis in original.)
In an attempt to comply with Penry, the 1989 legislature added a fourth question to Oregon’s death penalty statute:
“If constitutionally required, considering the extent to which the defendant’s character and background, and the circumstances of the offense may reduce the defendant’s moral culpability or blameworthiness for the crime, whether a sentence of death be imposed.” ORS 163.150(1)(b)(D) (1989).
*590In State v. Wagner, 309 Or 5, 18-19, 786 P2d 93, cert den 498 US 879 (1990) (Wagner II), this court concluded that the fourth question added in 1989 did not comply with the Eighth Amendment as interpreted in Penry:
“The lack of grammatical clarity in the statutory statement of the issue must translate into an intelligible instruction to a jury for the sentencing process to be effective.” Id. at 18.
In Wagner II, this court suggested a question that would comply with the Eighth Amendment:
“Should defendant receive a death sentence? You should answer this question ‘no’ if you find that there is any aspect of defendant’s character or background, or any circumstances of the offense, that you believe would justify a sentence less than death.” Id. at 18-19.
The 1991 legislature modified the statutory fourth question to comply with this court’s holding in Wagner II. ORS 163.150(1)(b)(D) and (c)(B) track that language in Wagner II.
The original enactment of the fourth question after Penry, and the modification following Wagner II, make it clear that the legislature intended the scope of the statutory fourth question to be co-extensive with the scope of the fourth question required by the Eighth Amendment. Accordingly, cases dealing with the Eighth Amendment fourth question and with what kind of evidence is relevant to that question inform our inquiry under ORS 163.150(1)(c)(B).
In Lockett v. Ohio, 438 US 586, 604, 98 S Ct 2954, 57 L Ed 2d 973 (1978), a plurality of the Supreme Court of the United States concluded:
“[T]he Eighth and Fourteenth Amendments require that the sentencer in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Footnote omitted; emphasis in original.)
In Penry v. Lynaugh, supra, the Supreme Court, in essence, adopted the plurality opinion in Lockett and held that the “jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” 492 US at 302.
*591The terms “character” and “background,” as used in Lockett andPenry and, therefore, as used in ORS 163.150-(1)(c), have been read quite broadly and have not necessarily been linked to a defendant’s culpability for the specific crime for which he or she is being sentenced. For example, in Skipper v. South Carolina, 476 US 1, 5, 106 S Ct 1669, 90 L Ed 2d 1 (1986), the Supreme Court held that testimony about the defendant’s behavior in prison after the murder and about the defendant’s adaptability to prison life was relevant for Eighth Amendment purposes. The Court explained that “a defendant’s disposition to make a well-behaved and peaceful adjustment to prison life is itself an aspect of his character that is by nature relevant to the sentencing determination.” Id. at 7.
In order to determine whether the witness’ testimony in this case was relevant to defendant’s “character or background,” we must carefully examine defendant’s offers of proof.
In an offer of proof, the witness testified that a sentence of death would not be good for her daughter, explaining:
“A: How can you put into words what —
‡ ‡ ‡ ‡
“A: I know. I know, ’cause she’s just a child now. She’s got — I’m not so sure that she’s aware of how, I don’t know, how — I don’t know what the word is I’m — what type of crime that was committed already, you know. And how just, I don’t know, deep it is, I guess. I don’t know. It was easy for her probably to block out and ignore, you know, the sharp edges ofit. But when it’s brought all back to her, you know, it’sjust — and then she’ll realize even more that, you know, just something that was so bad that, you know, they took his life for it, too. And, you know that’s pretty — that’s pretty serious punishment.”
The witness said that she would allow her daughter to see defendant “[i]f [daughter] wanted to go look at him just to see him, to maybe get a feeling if she hated him, or what she really felt.” When defense counsel asked the witness whether there was anything about defendant’s “character” that suggested “that your daughter should be able to talk to [defendant] about such things?,” the witness responded, “I don’t know, *592when she’s old enough to handle it and understand it, I’m sure she’s still goingto, you know, want to see him for maybe some reason or another.” The witness added only, “He is her father.”
An examination of defendant’s offers of proof demonstrates that the witness did not know how her daughter actually felt about defendant and that she did not purport to know what her daughter thought defendant’s sentence should be. Defendant’s offers of proof do not suggest that the witness had even discussed those matters with her daughter.
Given that the daughter had been sodomized by defendant when she was only five years old and that he had sexually abused and then brutally murdered her five-year-old cousin and also had kidnapped, sexually abused, and assaulted her four- and eight-year-old cousins, what, in fact, would have been good for the witness’ daughter, if relevant at all, would be a matter requiring expert testimony. OEC 702. See State v. Tucker, 315 Or 321, 340 n 4, 845 P2d 904 (1993) (Unis, J., concurring) (“If expertise is required to supply the rational link between the opinion or inference and the perceived facts, the opinion or inference will not be admissible unless the requirements for expert testimony under OEC 702 have been met.”).
Taken together, defendant’s three offers of proof suggest only that the witness thought that her daughter might be adversely affected by defendant’s execution, because her daughter might be forced to face the gravity of his offenses, or because somehow it would deprive her daughter of the ability to work through her problems created by defendant’s aggravated murder of her cousin and his sexual abuse of her and her three young cousins. Notwithstanding defendant’s argument that he did not deserve the death penalty because he eventually could be of benefit to his daughter, nothing in defendant’s three offers of proof suggests that, because of something particular to defendant’s “character or background,” a rational inference could be drawn that there are positive aspects about defendant’s relationship with his daughter that demonstrate his “capacity to be of emotional value” to her. 319 Or at 584.
*593The testimony proffered by defendant here did not permit an inference that, because of something particular about defendant’s “character or background,” defendant’s execution would have a negative impact on a family member. The witness’ testimony did not speak to defendant’s execution as a unique loss to his daughter. Rather, it went to what the witness thought might be in the best interest of the daughter (irrespective of her relationship with defendant); it did not implicate or illuminate defendant’s “character or background.” Despite three offers of proof, the witness was never able to relate her opinion to defendant in any way. Shorn of the witness’ understandable concern for her daughter’ s welfare, the proffered testimony amounted to little more than the witness’ own preference as to the defendant’s sentence. The testimony, therefore, was not relevant to the fourth question and the trial court did not commit statutory error in excluding it.
Although this court has not previously considered whether the opinions of a defendant’s family members as to the sentence that he or she should receive are relevant under ORS 163.150(l)(c), other courts have held that such opinions are not relevant. See, e.g., State v. Moore, 122 NJ 420, 585 A2d 864, 894 (1991) (capital case: testimony nonspecific to the defendant’s character properly excluded by trial court); State v. Rose, 120 NJ 61, 576 A2d 235, 236 (1990) (capital case: emphasizing the need for mitigating evidence to be specific to the defendant); Sattiewhite v. State, 786 SW2d 271, 290 (Tex App 1989), cert den 498 US 881 (1990) (capital case: testimony as to whether death or life imprisonment should be assessed was properly excluded); see also Wunneburger v. State, 844 SW2d 864, 869 (Tex App 1992), rev den (1993) (aggravated robbery: opinions that would amount to a recommendation of a particular punishment to the trier of fact rejected).
In sum, the trial court correctly held that the witness’ testimony, which in fact was nothing more than the witness’ opinion as to the sentence for defendant that she thought might be best for their daughter, was not relevant to defendant’s “character or background.” The trial court, therefore, did not err in sustaining the state’s objection to the testimony.
*594It has been said that “hard cases make bad law.” This case illustrates that principle.
I respectfully dissent.4
Defendant did not argue that the testimony was relevant to “any circumstances of the offense.” ORS 163.150(1)(c)(B).
The state suggests that the Oregon Evidence Code (OEC) does not apply to the penalty phase of a capital proceeding and that the standard for relevance should derive from some other source. In State v. Montez, 309 Or 564, 605 n 13, 789 P2d 1352 (1990), this court recognized that the OEC generally does not apply in sentencing proceedings, citing OEC 101(4)(d). However, because the state agreed in Montez to be bound by the OEC, this court expressed no opinion in that case as to the OEC’s applicability generally to capital sentencing proceedings. Although not specifically stated in the present case, it appears from the conduct of the parties and the trial court that the same understanding occurred here. Moreover, this court has applied the OEC to penalty phase issues in other recent capital cases. See, e.g., State v. Langley, 314 Or 247, 262-66, 839 P2d 692 (1992), adhered to on recons 318 Or 28, 861 P2d 1012 (1993) (admissibility of exhibit); State v. Williams, 313 Or 19,43, 828 P2d 1006, cert den _ US _, 113 S Ct 171, 121 L Ed 2d 118 (1992) (weighing probative value of evidence against prejudice). On further reflection, I now would hold that the OEC applies to capital penalty phase proceedings and, to that extent, concur in the majority opinion.
That is particularly true as regards the word “background.”
Because the majority does not reach defendant’s constitutional arguments on his fourth assignment of error, I will not do so.