dissenting.
The state appeals after the trial court sustained defendant’s demurrers to the first three counts of the indictment returned against her by the grand jury in this case. Defendant was charged with four crimes: causing another person to ingest a controlled substance, former ORS 475.984 (2003), renumbered as ORS 475.908 (2005) (Count 1); unlawful application of a Schedule II controlled substance to a minor, former ORS 475.986 (2003), renumbered as ORS 475.910 (2005) (Count 2); recklessly endangering another person, ORS 163.195 (Count 3); and unlawful possession of a Schedule II controlled substance, former ORS 475.992 (2003), renumbered as ORS 475.840 (2005) (Count 4). On appeal, the state argues that the trial court’s rulings were error. I agree with the state that the trial court erred and would reverse and remand for trial on the indictment for the reasons that follow.
I first consider the demurrer to Counts 1 and 2.1 Pretrial, defendant filed a motion to dismiss Counts 1 and 2, *593asserting several as-applied constitutional challenges to the statutes on which those charges are based. 2 Defendant made no facial constitutional challenges to the statutes. Rather, she asserted that their application to her circumstances violated her procedural and substantive due process rights and the prohibitions against ex post facto laws and cruel and unusual punishment. At a hearing, the trial court explained to defendant that her constitutional arguments regarding Counts 1 and 2 should have been raised by demurrer and, with the state’s agreement, allowed defendant to file a demurrer to Counts 1 and 2 on the same grounds as her motions to dismiss. In support of her demurrer, defendant argued to the trial court that “[t]he facts, as set forth in the State’s discovery, [were] not sufficient to convict.” The state countered that the statutes on which the charges were based plainly allowed for the prosecution of persons who had used controlled substances and then had passed those substances on to their infants at birth. The trial court granted defendant’s demurrer to Counts 1 and 2, rulings that form the basis for the state’s first two assignments of error.
The majority holds that the state invited any error that the trial court may have made as to its ruling regarding Counts 1 and 2 because the state, along with defendant, asked the trial court to consider extrinsic evidence in addition to the allegations in the counts in ruling on defendant’s demurrer. It concludes that the state’s assignments of error as to Counts 1 and 2 are not reviewable on that basis. I disagree that the doctrine of invited error should be applied to those assignments of error.
*594To begin the discussion, a demurrer in a criminal case is governed by ORS 135.630. That statute provides that a trial court, when considering whether to sustain a demurrer, may consider only the information alleged in the indictment:
“The defendant may demur to the accusatory instrument when it appears upon the face thereof:
>}c ^ * *
“(4) That the facts stated do not constitute an offensef]”3
(Emphasis added.) The principle that demurrers are decided on the basis of what is alleged and not on the evidence underlying the allegations is supported by a lengthy history in Oregon jurisprudence with regard to “speaking demurrers.” Speaking demurrers are demurrers based on information that does not appear in the indictment. Speaking demurrers never have been legally cognizable under Oregon criminal procedure statutes that govern the scope of authority granted to trial courts regarding demurrers. State v. Young, 122 Or 257, 260, 257 P 806 (1927). The common law did recognize so-called special demurrers in criminal cases, but they were abolished by the adoption of the 1864 Deady Code. State v. Nussbaum, 261 Or 87, 91, 491 P2d 1013 (1971); State v. Goodall, 82 Or 329, 333, 160 P 595 (1916). In place of the common law, the legislature has repeatedly codified criminal procedures that circumscribe the authority granted to courts with respect to demurrers. Nussbaum, 261 Or at 91. Thus, parties to a criminal proceeding have no ability by their agreement to create a different procedure or confer authority on a trial court to use a different procedure than that authorized by statute. Clearly, the trial court erred *595when it considered extrinsic evidence in ruling on defendant’s demurrer as to Counts 1 and 2.
It does not necessarily follow, however, that the trial court’s error regarding its consideration of extrinsic evidence should be perpetuated by refusing to review the state’s claims of error under the “invited error” doctrine. The invited error doctrine is a principle based on a policy of promoting efficient judicial administration. If the invitation of error in a trial court is intentional or strategic and proves to be unwise, a litigant “should not be allowed to blame the court for what he has himself done, and, by doing so get a second opportunity to try his case.” Crawford v. Jackson, 252 Or 552, 555, 451 P2d 115 (1969). At the core of the principle is the understanding that a party cannot take on appeal “a position inconsistent with that which he induced the trial court to take.” Howland v. Iron Fireman Mfg. Co., 188 Or 230, 290, 213 P2d 177 (1949), reh’g den, 215 P2d 380 (1950). The purpose of the rule is not furthered by application in his case; neither party is taking a position on appeal that is inconsistent with the position that they took in the trial court. Defendant asked the trial court to grant her demurrer, and the state opposed the demurrer. On appeal, defendant asks that we affirm the trial court, and the state requests that we reverse the trial court’s ruling.
But according to the majority, what the above reasoning overlooks is
“that the state, as appellant, invited the court to rule on the demurrer on a basis not permitted by the controlling statute and urges us also to ignore the controlling statute. The error that the state invited was not the allegedly erroneous result of the trial court’s ruling on defendant’s demurrer on Counts 1 and 2, but the erroneous consideration of the demurrer on those counts.”
232 Or App at 578. (Emphasis in majority.) Respectfully, the majority’s reasoning makes little sense and is inconsistent with the record in the trial court. The record in the trial court reveals that it was not only the state who urged the trial court to consider extrinsic evidence. Indeed, the record is replete with indications that it was defendant who desired that the court consider extrinsic evidence and that the state acquiesced in that request in an effort to afford the trial court *596a complete record on which the parties could receive a ruling regarding whether the state’s theory was legally cognizable. It is only because the state ended up on the losing side of the issue in the trial court that it finds itself unable to obtain review of the trial court’s rulings under the majority’s reasoning. That fact has nothing to do with the goal of the invited error doctrine to prevent a party on appeal from taking a position inconsistent with that which it induced the trial court to take.
Moreover, the fact that the parties did not heed the requirement of ORS 135.630 in the trial court or in their briefing and argument to this court is not an impediment to our review. For example, in Miller v. Water Wonderland Improvement District, 326 Or 306, 951 P2d 720 (1998), the Supreme Court held that, even though the plaintiff never pleaded or argued in the trial court or in this court that a particular statute was controlling, that statute, nonetheless, was dispositive of the issue in the case. Pertinent to the circumstances in this case, the Miller court observed that “parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law.” Id. at 309 n 3.
Indeed, review in this case of the state’s assignments of error is consistent with this court’s own case law. In State v. Ferguson, 201 Or App 261, 270, 119 P3d 794 (2005), we concluded that the state’s role in suggesting a dismissal as an appropriate procedural disposition after the court granted the defendant’s motion to suppress evidence was not invited error that prevented the state from challenging both the dismissal and the suppression orders on appeal on preservation grounds, because there was no inherent unfairness to the process or to the trial court by reviewing the state’s claim of error. In that case, “everyone involved — the prosecutor, the defense attorney, and the trial court — viewed the dismissal as a complementary disposition to the suppression ruling. Everyone likewise knew that the state intended to appeal and seek a reversal.” Id. at 270-71. The same reasoning applies here to similar circumstances; there is no inherent unfairness to the process or to the parties merely because we apply the correct standard of review to the trial court’s grant of defendant’s demurrer, and all that is required is to inquire *597whether the allegations in the counts state facts sufficient to constitute a crime under the governing statutes.
I would conclude that the trial court erred in granting defendant’s demurrer to Counts 1 and 2 in light of the limitation in ORS 135.630 that the grant of a demurrer be based only on the information that appears in the counts. Both counts allege facts in the wording of the statutes under which the charges are brought, and they do not contain any additional allegations.4 When an indictment is alleged in the wording of the statute under which the charge is brought, the allegation is generally sufficient to withstand a defendant’s demurrer. State v. Fair, 326 Or 485, 490, 953 P2d 383 (1998). That general rule is applicable here. Moreover, the counts alleged in the wording of the statutes permit a reasonable person to understand what is being alleged. For those reasons, the state’s assertion that Counts 1 and 2 state facts sufficient to constitute criminal offenses is correct, and the trial court erred in granting defendant’s demurrer as to those counts.5
*598I turn next to Count 3. Unlike Counts 1 and 2, which allege information entirely in the wording of the statute, Count 3 of the indictment contains additional information:
“(Count 3 — ORS 163.195) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH[.]”
The trial court explained its reasoning for granting defendant’s demurrer as to Count 3 in its memorandum opinion:
“Defendant last says that Count 3 fails to allege a crime because it is logically impossible for the State to convict. She relies on State v. Downes, 31 Or App 1183[, 572 P2d 1328] (1977). See also State v. Daline, 175 Or App 625[, 30 P3d 426] (2001). These cases hold that once a drug enters one’s body, control over that drug is lost. That is a critical point because criminal liability, at a minimum, requires ‘the performance by a person of conduct which includes a voluntary act.’ ORS 161.095. The only voluntary act which the State alleges or can arguably prove is defendant’s use of methamphetamine.
“The indictment alleges that the victim is a living person, [EH]. The definition of a ‘person’ requires that the person ‘has been born and was alive at the time of the criminal act.’ ORS 163.005(3). The indictment specifically alleges a contrary set of facts.
“The State says that it is not necessary to prove that any person was actually in the zone of danger when the reckless behavior was committed. State v. Harbert, 155 Or App 137[, 963 P2d 710] (1998). That may generally be the case. In this instance, that is not persuasive. First and foremost, the State has alleged a named victim, [EH]. She was not yet a living person when the voluntary act occurred. Second, [EH] was the only one who could possibly have been endangered, i.e., for whom a risk of serious physical injury could have been created by defendant’s prenatal drug use.
“Because no voluntary act committed after [EH’s] birth is even alleged in the indictment, no crime is alleged.”
(Boldface in original.)
*599On appeal, the parties reassert the arguments that they made to the trial court. Essentially, defendant argues that she “could admit to every fact alleged by the state [in Count 3] and still be innocent of the crime of recklessly endangering another person” because “the legislature did not intend for the statute to apply to prenatal conduct.” The state responds that “[t]he plain language of the statute allows for prosecution of persons who recklessly endanger infants who receive methamphetamine at birth.” I understand the state to mean that the legislature did not intend prosecutions under ORS 163.195 to be restricted to instances where the conduct and the risk that a person will be injured occur contemporaneously.
The parties’ arguments present different conceptualizations about when an alleged crime is complete for purposes of ORS 163.195(1). Defendant’s argument presupposes that the criminal act of recklessly endangering another was completed for purposes of this case at the time that defendant ingested methamphetamine, a point in time before her child was born. In defendant’s view, it is legally irrelevant that the risk of harm caused by her ingestion of methamphetamine before her child’s birth existed at a later point in time due to the passage of methamphetamine through the umbilical cord in the moments after her child’s birth. The majority appears to agree with defendant’s reasoning. It holds:
“there must be some such person in existence, somewhere, at the time the risk is created and who therefore has at least the potential, at that time, to be harmed. Only if that requirement is met, is the crime complete — regardless of how long the possibility of harm may endure[.]
«íK í[í ík % ‡
“Here, defendant did not create a risk of harm ‘to another person,’ because, at the time of her conduct, there was no person in existence within the spatial zone of danger who potentially could be harmed.”
232 Or App at 584, 587.
In contrast to defendant’s argument, the state’s theory focuses on two different time periods that it asserts are *600alleged in Count 3. It alleges that defendant ingested methamphetamine on July 19,2004, that would be passed at some later, unspecified time from defendant’s body to her child’s body after the child was born. Presumably, by alleging that the risk to defendant’s child existed at the child’s birth, the state seeks to avoid defendant’s contention that the legislature did not intend for the statute to apply to her prenatal conduct, an issue that will be discussed later in this opinion.
Thus, the issue as framed by the parties’ arguments is whether defendant’s and the majority’s interpretation of the scope of ORS 163.195(1) is what the legislature intended in 1971 when it enacted the statute or whether the state’s interpretation is the correct construction of the statute.6 To commence the task of discerning the legislature’s intention in that regard, it is necessary to examine the text of the statute in its context by giving words in the statute “their plain, natural, and ordinary meaning,” unless the legislature has expressly defined a word for purposes of the statute. Also, we are free to consider legislative history even if we do not perceive an ambiguity in the statute’s text, if the legislative history appears useful to our analysis. State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). The third step of the analytical construct for interpreting the legislature’s intention if its intent remains unclear after examining text, context, and legislative history, is to resort to general maxims of statutory construction in an effort to resolve any remaining uncertainty.
Accordingly, I turn first to the wording of ORS 163.195(1). It provides that “[a] person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” The conduct of defendant alleged to be in violation of ORS 163.195(1) is defendant’s conduct on July 19, 2004. According to the indictment, defendant created on that date “a substantial risk of *601serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH.”7 When the word “upon” is used in the above context, it functions to “indicate a beginning course of action or an action or condition that is beginning.” Webster’s Third New Int’l Dictionary 2518 (unabridged ed 2002). The indictment does not allege when defendant’s child was born, only when defendant ingested the methamphetamine that created a substantial risk of serious physical injury to the child. With respect to when the methamphetamine allegedly endangered another person, the indictment uses the word “would” in the phrase “THAT WOULD BE PASSED TO [EH] UPON HER BIRTH.” The use of the word “would” in that context expresses a sense of futurity from a point of view in the past, or in the wording of Count 3, from July 19,2004 (the date defendant allegedly ingested methamphetamine).8 But we do not know from the allegations in the indictment whether the conduct on which the state’s prosecution is based (defendant’s ingestion of methamphetamine) occurred months, hours, or minutes before the birth of defendant’s child.
The gravamen of the offense described in ORS 163.195(1) is a “reckless” act. “Recklessly” is defined in ORS 161.085(9), which provides as follows:
“ ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Thus, generally, to incur criminal responsibility for a “reckless” act, the actor is required by the law to foresee the future consequences of his or her conduct. If the conduct would create a substantial and unjustifiable risk to others, and if it constitutes a deviation from the standard of care that a *602reasonable person would observe, then Oregon statutes put a putative actor on notice that he or she may be held criminally responsible for harm that occurs in the future.
The “harm” that ORS 163.195(1) contemplates in the context of ORS 161.085(9), is not actual injury but the substantial risk of serious physical injury to another person. The legislature’s focus on the risk of harm rather than actual injury to the victim is a further indicator of legislative intent. The ordinary meaning of the word “risk” within the context of ORS 163.195(1) refers to the “possibility” of serious physical injury.9 A “possibility” by its inherent nature is an event that “may take place, eventuate[,]” in the future. Webster’s at 1771. In this case, the state alleges that defendant’s child was another “person” within the meaning of the statute at the point in time that she was endangered by a substantial risk of serious physical injury. Thus, the narrow issue is whether the legislature contemplated that a risk to a person in the future created by prior conduct is criminalized under the statute.
In addition to the text of ORS 163.195(1), other statutes may provide context to discern the scope intended by the legislature. Generally, for purposes of the Oregon Criminal Code promulgated in 1971, a “person” is defined, in part, as a “human being.” ORS 161.015(5). For purposes of criminal homicide statutes, the legislature defines the words “human being” to mean “a person who has been born and was alive at the time of the criminal act.” ORS 163.005(3). If the definition of “human being” is imported from ORS 163.005(3) into ORS 163.195(1), it could mean, as defendant argues, that the legislature intended that a person does not commit the crime of recklessly endangering another person by creating a substantial risk of serious physical injury to an unborn child because the unborn child is not a “person” for purposes of the statute.
In this case, however, the state alleges in Count 3 that defendant’s child was a “person” at the time that she was exposed to a substantial risk of serious physical injury. Had the state alleged that the child was exposed to that risk only *603while in the womb, we would be confronted with an issue that directly implicates ORS 161.015(5). But the state has elected to prosecute defendant for creating a risk that is alleged to have existed within a narrow window of time that existed after the child’s birth and when she was a “person.” Defendant’s argument that her child was not a “person” pursuant to ORS 161.015(5) at the time that she allegedly created a risk of injury to a person gains traction only if the legislature intended to require that all the elements of ORS 163.195(1) be completed at the point in time that the conduct creating the risk occurred.
Also, part of the context of ORS 163.195(1) is ORS 161.095(1). That statute provides that “[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.” ORS 161.095(1) requires us to identify the “voluntary act” for purposes of the state’s allegations in Count 3 under ORS 163.195(1). The voluntary act alleged in Count 3 is that defendant ingested methamphetamine before the birth of her child. That allegation suffices to satisfy the minimal culpability requirement that ORS 161.095(1) imposes.
In summary, Count 3 alleges that defendant’s child was “another person” for purposes of ORS 163.195(1). The time frame that the state has elected for purposes of Count 3 is a period of time, according to the indictment, that begins when defendant ingested methamphetamine and ends when her child’s umbilical cord was cut. Her child was a “person” for purposes of ORS 161.015(5) during that time frame. Additionally, the allegations in Count 3 allege that defendant’s conduct caused a risk of serious physical injury to her child during that time frame. The state, however, has not alleged criminal responsibility for creating any risk of injury that existed before methamphetamine would be passed to defendant’s child upon her birth.10
*604It would seem that, in the absence of any wording in the statute itself requiring that the conduct and the risk of serious physical injury to another person occur contemporaneously, the legislature did not intend a limitation in that regard when it enacted ORS 163.195(1). Had it intended to impose such a limitation, it could have easily expressed that requirement in the text of the statute. Nonetheless, I turn to the legislative history underlying the statute. Gaines, 346 Or at 172.
ORS 163.195 was enacted as part of the 1971 revision of the Oregon Criminal Code. In State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980), the Supreme Court traced the history of the 1971 revision of Oregon’s Criminal Code:
“The 1971 legislature adopted the present kidnapping statutes as part of the complete revision of the Oregon Criminal Code. The 1967 legislature created the Oregon Criminal Law Revision Commission to revise the criminal laws of this state. Carefully kept records of the proceedings of the Commission and of its subcommittees were preserved and, accordingly, provide a rich source for determination of the drafter’s intent.”
(Footnote omitted.) In State v. Lonergan, 344 Or 15, 25 n 3, 176 P3d 374 (2008), Justice Kistler, writing for the dissent, amplified the understanding expressed in Garcia regarding the import of the Commission’s deliberations:
“The Commission divided responsibility for drafting the revised criminal code among three subcommittees. Those subcommittees produced drafts of the code and submitted those drafts, together with commentaries on them, to the Commission, which produced a final draft of the proposed code and presented the final draft and commentary to the legislature. This court has looked to both the commentary and the discussions that preceded the adoption of the final draft as legislative history for the resulting laws.”
The commentary to the section that is now codified as ORS 163.195(1) explains that the statute was intended to create a new offense that would criminalize “reckless conduct which places another person in danger of serious bodily harm.” Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report *605§ 96, 97 (July 1970). In the view of the commission, “[t]he statute covers potential risks as well as cases where a specific person is within the zone of danger.” Id. The latter statement is significant in discerning the intent of the legislature; it demonstrates that the legislature contemplated criminalizing conduct that creates a risk of harm to a person who is in the zone of danger at the time of criminal conduct or who later becomes endangered because of the potential risk created by the conduct.
Other parts of the commentary also support the understanding that the legislature intended ORS 163.195(1) to criminalize conduct that creates a risk to persons who later enter the zone of danger. For example, the commentary lists several then-existing Oregon criminal statutes that were repealed because they prohibited conduct that was encompassed by ORS 163.195. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 96, 97 (July 1970). Some examples of these statutes include permitting vicious animals to be at large, former ORS 166.150 (1969), repealed by Or Laws 1971, ch 743, § 432; and abandoning refrigerators in places accessible to children, former ORS 166.560 (1969), repealed by Or Laws 1971, ch 743, § 432. Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 96, 97 (July 1970). Those statutes criminalize conduct when, at the time the conduct occurs, there may not be any other person in the zone of danger, but the possibility exists that another person will be endangered in the future by the risk caused by the conduct.11
Former ORS 166.560 (1969) is particularly illustrative. It provided:
“It is unlawful to maintain or leave in a place accessible to children any discarded ice box, refrigerator or similar container with a door or lid attached that cannot be opened *606with ease from the inside. Violation of this section is a misdemeanor.”
Under that former statute, the criminal conduct creating the risk of danger was the leaving of a refrigerator with a door that could not be opened from the inside in a place accessible to children. The statute was obviously intended to address risks that existed during time periods beyond when a refrigerator was abandoned. At the moment of abandonment, there may not have been any children in the zone of danger, but the conduct created a risk that children could be endangered in the future when they entered the zone of danger created by the abandonment. The examples in the commentary regarding vicious animals and spring guns contemplate similar scenarios when there may not be another person endangered at the time of the conduct creating the risk of harm but where a person is subsequently placed in danger by the conduct.12
Admittedly, my review of the minutes of the commission and subcommittee meetings regarding proposed versions of ORS 163.195 did not uncover any indication that the legislature expressly considered whether ORS 163.195(1) applies to circumstances where the risk was created before the victim was born. However, it is reasonable to infer from the legislature’s expressed desire to protect children that it would have wanted to protect a child at the time of his or her birth from the risk of serious physical injury caused by a mother’s prenatal ingestion of methamphetamine at a time when the mother consciously disregarded the risk that *607methamphetamine would be passed at birth through the umbilical cord.13 That inference is not only consistent with the language of the statute itself but also with the legislature’s general policy to protect children from being subjected to reckless risks of physical harm.
Additionally, the legislature has directed us in ORS 174.010 not to insert words into a statute that do not otherwise appear therein. By its terms, ORS 163.195(1) applies to a defined universe of risks in that the legislature has provided further qualifications that the risks created by the actor subject him or her to criminal liability only if they are substantial in nature and only if they could cause serious physical injury. Had the legislature intended to criminalize conduct under ORS 163.195(1) only if the victim were a person at the time of the conduct, it could have easily provided for that kind of qualification in the same way that it imposed the qualifications that the risk be substantial and that the risk constitute a risk of serious physical injury. Essentially, the majority writes into the statute an additional qualification that finds no support in the text and the context of the statute or in its underlying legislative history. Rather, the legislative history is clear that the legislature expressly contemplated that the statute cover potential risks of harm to persons who were not in the zone of danger at the time of the risk-creating conduct without any qualification as to whether they were persons at the time of the conduct.
For all of the above-stated reasons, I would conclude that the legislature did not intend to prevent the state from obtaining a conviction under ORS 163.195(1) if it is able to prove that defendant’s conduct on July 19, 2004, created a substantial risk of serious physical injury that continued to the time of the child’s birth and before the child’s umbilical cord was severed. It follows, in my view, that Count 3 states facts sufficient to allege a violation of ORS 163.195(1).
Additionally, the majority’s reliance on the jurisprudence of other states is misplaced. For example, the majority *608relies in part on the reasoning in Kilmon v. State, 905 A2d 306 (Md 2006), where the Maryland Supreme Court held that Maryland’s reckless endangerment statute was not applicable to a pregnant woman who ingested controlled substances before the birth of her child. That court was concerned with the breadth of that statute, observing that if it accepted the state’s interpretation, the statute could be construed to criminalize activities such as ingesting legal drugs, consuming alcoholic beverages, smoking, failing to maintain a nutritious diet, failing to wear a seat belt, skiing, or horseback riding.
The Kilmon decision fails to meaningfully inform our decision for a number of reasons. First, our task is not to decide what is a reasonable or an unreasonable policy. Rather, our task as an Oregon intermediate appellate court is to apply well-settled principles of statutory interpretation to discern what the Oregon legislature would have intended, had it considered this issue. Moreover, the legislature has imposed its own limitations on the conduct that is deemed to violate the statute. For example, the state is required to prove that defendant acted “recklessly” as defined by ORS 161.085(9). To be criminally liable for a reckless act, the act must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Here, the risk of harm alleged by the state is narrow in scope. Under the allegations in Count 3, the state will have to prove that defendant ingested methamphetamine that would be passed from defendant’s body to the victim’s body at the precise moment in time between the victim’s birth and the cutting of her umbilical cord. The state will have to also prove defendant’s culpable mental state at the time that she ingested methamphetamine in light of the alleged risk and in accordance with the definition of recklessness under ORS 161.085(9). In other words, the statutory requirement that the state prove the culpable mental state of recklessness helps to insure that other risk-creating behavior by pregnant women will not become the subject of criminal prosecutions.
Defendant also makes alternative arguments in support of the trial court’s ruling, none of which I find persuasive. First, defendant makes an as-applied vagueness challenge to ORS 163.195 under the Due Process Clause. As I *609have previously noted, the allegations in Count 3 do not inform us when defendant allegedly ingested methamphetamine in relation to when her child was born. For purposes of determining whether a person of ordinary intelligence would know that his or her conduct endangers the health of another under the circumstances alleged in Count 3 depends, at least in part, on the proximity in time of defendant’s ingestion of methamphetamine to the birth of the child. Absent the allegation of that fact, I would conclude that we are unable to meaningfully review defendant’s constitutional challenge and that any review of this issue would have to await a more fully developed record.
Defendant also argues that applying ORS 163.195(1) to her circumstances violates her substantive due process rights because the state is “[p]rosecuting a drug-addicted pregnant woman for her choice to carry her pregnancy to term[.]” Defendant asserts that,
“[i]n the present case, the state’s theory of prosecution implicates defendant’s substantive due process [rights] in two respects: (1) it intrudes on an individual’s decision whether to have a child; and (2) it interferes with defendant’s personal autonomy during her pregnancy. Both of those matters involve intimate and personal choices central to the liberty protected by the Fourteenth Amendment.”
As I understand the constitutional implications of defendant’s argument, they are that the application of ORS 163.195 to the circumstances alleged in Count 3 interferes with her right of privacy and her reproductive rights under the Fourteenth Amendment to the United States Constitution. I note, however, that “[a] legislature can make a law as hroad’ and inclusive as it chooses unless it reaches into constitutionally protected ground.” State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981).
I would conclude that, as applied to her circumstances, at least on the record before us, defendant has not demonstrated that the state infringed upon her reproductive rights when it prosecuted her under ORS 163.195(1). As the state correctly observes, it alleges that she ingested a substance that was unlawful for her to use and that would be passed on to her child upon her child’s birth. There is nothing *610in those allegations on their face that alleges an interference with defendant’s right to become or remain pregnant or that alleges her use of methamphetamine played a role in the decision to become or remain pregnant.14
Defendant also argues that the application of ORS 163.195(1) to the circumstances alleged in Count 3 violates equal protection principles under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In defendant’s view, the state’s theory of prosecution is aimed at a specific gender and is therefore unevenly applied. I have reviewed defendant’s memoranda submitted to the trial court and observe that this issue apparently was not raised to the trial court, nor did the trial court consider the issue. I would therefore not reach it on appeal. ORAP 5.45. Moreover, I question whether such an issue is a proper ground for adjudication of a demurrer in light of the scope of the standard of review established by ORS 135.630.
Finally, defendant argues that ORS 163.195(1) violates Eighth Amendment prohibitions against cruel and unusual punishment because it punishes her for her drug addiction. She relies on Robinson v. California, 370 US 660, 82 S Ct 1417, 8 L Ed 2d 758 (1962), in which the Court held a statute unconstitutional because it made criminal the status of being a drug addict. The Court reasoned that applying such a law constituted cruel and unusual punishment because it targeted an illness rather than a behavior or an act. There is no allegation in Count 3 that defendant was addicted to methamphetamine at the time she allegedly ingested it. Once again, defendant’s argument assumes a fact not alleged by the state in Count 3, contrary to the standard of review for demurrers imposed by the legislature.
Defendant made additional constitutional arguments to the trial court regarding all of the counts, some of which she repeats in response to the state’s appeal. All her arguments suffer from infirmities that are similar to the *611problems with review that are discussed above. Accordingly, I would decline to consider them because they are not ripe for consideration based on the record before us.
In sum, I would reverse the trial court’s rulings as to the first three counts of the indictment and, for that reason, I dissent.
Carson, S. J., joins in this dissent.Count 1 alleges:
“That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did knowingly cause another person to ingest, other than by administering or dispensing, a controlled substance or a controlled substance analog without consent of the other person[.]
“The State further alleges that this count is a separate and distinct criminal act from all other counts.
“The State further alleges that the following aggravating conditions were present: deliberate cruelty was involved; there was harm or loss significantly greater than typical; a vulnerable victim was involved; the victim sustained permanent injury.”
Count 2 alleges:
“That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and intentionally apply METHAMPHETAMINE, a Schedule II controlled substance, to the body of [EH], a person under 18 years, by means other than injection, inhalation or ingestion[.]
*593“The State further alleges that this count is a separate and distinct criminal act from all other counts.
“The State further alleges that the following aggravating conditions were present: deliberate cruelty was involved; there was harm or loss significantly greater than typical; a vulnerable victim was involved; the victim sustained permanent injury.”
Black’s Law Dictionary 261 (9th ed 2009) provides the following definition of an “as-applied challenge”:
“A claim that a law or governmental policy, though constitutional on its face, is unconstitutional as applied, usu. because of a discriminatory effect; a claim that a statute is unconstitutional on the facts of a particular case or in its application to a particular party.”
(Emphasis added.)
Also, the Supreme Court has explained that, when a charge is alleged in statutory language, defendants are unable to assert in a demurrer that the statute is unconstitutional as applied to them:
“The indictment was written in terms of the statute, without elaboration. We thus do not know what specific operative facts the state will show, if the case is remanded for trial. It follows that, because this case arises out of the trial court’s pretrial decision to sustain defendants’ demurrer, defendants are unable to assert at this time that the statute is unconstitutional as applied to them.”
State v. Chakerian, 325 Or 370, 373-74 n 4, 938 P2d 756 (1997).
Count 1 alleges, in part, that “the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did knowingly cause another person to ingest, other than by administering or dispensing, a controlled substance or a controlled substance analog without the consent of the other person.” Count 2 alleges, in part, that “the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and intentionally apply METHAMPHETAMINE, a Schedule II controlled substance, to the body of [EH], a person under 18 years, by means other than injection, inhalation or ingestion.”
On appeal, defendant argues that the trial court properly granted defendant’s demurrer as to Counts 1 and 2 because the relevant statutes either are unconstitutionally vague as applied to her or are unconstitutionally overbroad as applied to her. Defendant also argues that the application of the statutes to her circumstances violates equal protection principles and that to punish defendant on these facts would be cruel and unusual. With respect to her first argument, defendant contends that she could not reasonably have known that the statutes criminalized her prenatal drug use. I understand defendant’s argument to constitute a “fair warning” argument under the Due Process Clause of the Fourteenth Amendment. Our Supreme Court has described the constitutional test for statutory vagueness to be whether the statute would give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act accordingly. State v. Illig-Renn, 341 Or 228, 241, 142 P3d 62 (2006). At the time that defendant allegedly ingested methamphetamine that would be passed to her child, former ORS 475.908 prohibited a person from knowingly causing another person to ingest a controlled substance, and former ORS 475.910 prohibited a person from intentionally applying a controlled substance to the body of another person under the age of 18. In my opinion, those statutes survive a facial challenge of unconstitutional vagueness in terms of notifying a person of ordinary intelligence of what conduct is prohibited.
The United States Supreme Court decided Roe v. Wade, 410 US 113, 93 S Ct 705, 35 L Ed 2d 147 (1973), after the Oregon legislature enacted ORS 163.195(1). The legislature’s intent regarding ORS 163.195(1) should be discerned through a lens that predates Roe v. Wade and its progeny. However, the constitutionality of any application of ORS 163.195(1) under the federal constitution would, of course, take into account the subsequent developments in the law.
The word “passed” in the context of the indictment means “[t]o transfer or be transferred.” Black’s Law Dictionary 1233 (9th ed 2009).
See Webster’s at 2638.
See Webster’s at 1961.
I am not aware of any legal principle that requires the state to prosecute a crime based on events that occur within a particular time frame. Rather, the state is at liberty as part of its prosecutorial function to select the time frame within which it will endeavor to prove the elements of an offense.
Other statutes replaced by ORS 163.195 involved risks that occurred contemporaneously with the conduct causing the risk; for example, dueling, former ORS 166.010 (1969), repealed by Or Laws 1971, ch 743, § 432, and throwing or shooting at a motor or railway vehicle, former ORS 164.530 (1969), repealed by Or Laws 1971, ch 743, § 432. The Commission also referenced ORS 166.320, setting spring guns or set guns, as a statute it intended to repeal, however, that statute was not repealed.
Other criminal statutes promulgated by the legislature also contemplate victims who may not have been in the zone of danger at the time of the criminal conduct. Statutes that make conduct criminal when committed with a “reckless” state of mental culpability often require, as elements of proof, events that occur at a different time than the initial act of reckless conduct. See, e.g., ORS 164.325 (making it unlawful to recklessly cause serious physical injury to a firefighter or peace officer acting in the line of duty relating to a fire started by an offender intended to damage the property of the offender or another person’s property); see also ORS 164.885 (making it unlawful to place, set, or arm an explosive device with the intent of damaging, destroying or discouraging the operation of any aircraft); ORS 164.886 (making it unlawful tree spiking that results in serious physical injury to another person). Construing ORS 163.195(1) to provide for criminal responsibility for the creation of a risk to a person who later enters the zone of danger would be consistent with the legislature’s decision in other contexts to criminalize reckless conduct that has delayed effects.
It would appear that the state’s theory depends in part on the dissipation rate of methamphetamine in the human body and when, in relation to the time she gave birth, defendant ingested the methamphetamine. Of course, that information is not available to us based on the allegations in the indictment.
To the extent that defendant argues that public policy and other Oregon laws operate to prohibit the application of ORS 163.195(1) to her circumstances, I am unaware of any statute that cannot coexist or is so inconsistent with this application that we would be required under ORS 174.020(2) to render a harmonizing construction of both statutes.