State v. Von Eil Eyerly

JOSEPH, J.,

dissenting.

Prior to the enactment of the Oregon Criminal Code of 1971, the offense defined by ORS 481.360(2) and ORS 481.990(1) was prosecuted as a strict liability crime. It has always been designated a misdemeanor; the statutes defining it have never required on their combined face proof of a culpable mental state. The critical question in this case is whether by enacting the Criminal Code of 1971, including the provisions now found at ORS 161.085 et seq., the legislature intended to require proof of a culpable mental state for conviction of the offense, leaving it a misdemeanor, or whether the legislature intended to retain it as a strict liability offense, punishable only as a violation by virtue of ORS 161.105(2). Because I disagree with the majority’s answer to that question and with the resulting disposition of this case, I respectfully dissent.

The majority and I begin from a common place, i.e.: The culpability provisions found in ORS 161.085 et *408seq. present a puzzle not easily pieced together. I do not, however, share the majority’s perception that it is necessary to trim some of the pieces and discard others in order to solve the puzzle. We are not authorized to ignore the plain language of statutes unless that language leads to patently unreasonable results. I foresee no such results from an adherence to the language of ORS 161.095 et seq.

The majority states that "[a]ll offenses that require no proof of culpable mental state are violations, ORS 161.105(2), unless the offense is a strict-liability crime under the clear intent test of ORS 161.105(l)(b).” While I agree with that proposition, I find in the majority opinion no statutorily-supported explanation why no proof of a culpable mental state was required in this case. The answer cannot be that ORS 481.360(2) and 481.990(1) do not on their face require a culpable mental state. ORS 161.095(2) provides:

"Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”

ORS 161.105(1) sets forth the exception to 161.095(2):

"Notwithstanding ORS 161.095, a culpable mental state is not required if:
"(a) The offense constitutes a violation * * *; or
"(b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.” (Emphasis supplied.)

The majority agrees that the statutes defining the offense in question do not clearly indicate a legislative intent to dispense with a culpable mental state requirement. Therefore, if one is to conclude that no culpable mental state is required, it must be because the offense constitutes a violation. However, the offense in question lies outside the Criminal Code and is specifically designated a Class A misdemeanor. To *409say that it constitutes a violation because no culpable mental state is required is, to put it genteelly, circular. I therefore read ORS 161.085 et seq. to require proof of a culpable mental state in a prosecution under ORS 481.360(2).

Although the state may actually have proven a culpable mental state in this case, defendant was not given clear and timely notice by the complaints, the applicable statutes or by the rulings of the trial court that knowledge was an issue. I am not able to conclude with substantial certainty that defendant somehow knew from the outset that knowledge would become an issue under the amended complaints. I agree with the majority’s conclusion that the criminal convictions must be reversed. I would end the matter there. No sentencing for a violation is proper because there is no such thing as a violation under ORS 481.360(2). Furthermore, were it necessary to reach the issue, I would conclude that the demurrer should have been sustained, because the amended complaints did not state an offense.

The legislation that has caused this court five months of exquisite cogitation to arrive at a still disputed result fairly cries out for legislative clarification.