State v. Bales

289 Or.App. 470

410 P.3d 1088

STATE of Oregon, Plaintiff-Respondent,

v.Barry William BALES, Defendant-Appellant.

A160413

Court of Appeals of Oregon.

Argued and submitted May 11, 2017.

December 28, 2017

Andrew D. Robinson, Deputy Public Defender, Saguache, Saguache County, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and James, Judge, and Haselton, Senior Judge.^*

DeVORE, P. J.

Defendant appeals a judgment of conviction for third-degree assault of an emergency medical services provider, ORS 163.165(1)(g) (Count 1),¹ and second-degree criminal mischief, ORS 164.354(1)(b) (Count 2).² Among other things, defendant contends that the trial court should have entered a judgment of acquittal on Count 1 because the victim, an emergency room nurse, was not an "emergency medical services provider" within the meaning of ORS 163.165 (1)(g) and ORS 682.025(4). Defendant further contends that the trial court erred by excluding testimony pertaining to a possible mental disease or defect, which could be relevant under ORS 161.300 to the mens rea on each conviction.³ On Count 1, we agree with defendant that the trial court should have granted the motion for a judgment of acquittal on the charge of third-degree assault. On Count 2, we agree with defendant that the trial court erred in excluding the testimony on the basis of improper notice under ORS 161.309(2). Accordingly, we reverse and remand as to Count 1 and Count 2 and otherwise affirm.⁴

The pertinent facts are undisputed. Defendant was a patient in a hospital emergency room because he had a dislocated arm. He did not leave when he was discharged. When the victim, an emergency room nurse, asked defendant to leave, he struck her in the head and caused injury. Afterward, defendant damaged an oxygen regulator in a nearby patient room. The state charged defendant with third-degree assault and first-degree criminal mischief. A jury found defendant guilty of third-degree assault and second-degree mischief, ORS 164.354(1)(b) (a lesser included offense). We discuss, in turn, defendant's challenges to the convictions.

EMERGENCY MEDICAL SERVICES PROVIDER

At trial, defendant moved for a judgment of acquittal, arguing that the victim, an emergency room nurse, was not an "emergency medical services provider" (herein at times, "EMS provider") within the meaning of ORS 163.165(1)(g) and ORS 685.025(4)—a term added to the crime of third-degree assault in 1995. Or. Laws 1995, ch. 738, § 1. On appeal, defendant renews his argument. Because registered nurses like the victim are licensed under ORS chapter 678, defendant asserts that the regulation and licensure of EMS providers under ORS chapter 682 is inapplicable to them. Defendant further contends that the victim did not fit the definition of an EMS provider because she did not have statutorily referenced training in "prehospital care." The state disagrees and contends that, when the legislature amended the definition in 2011, the legislature intended to expand the definition's scope beyond emergency medical technicians and paramedics to include emergency room nurses. Because the denial of a motion for a judgment of acquittal "centers on the meaning of the statute defining the offense," we review the interpretation of the statute for legal error. State v. Hunt , 270 Or.App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks omitted).

The parties' arguments raise the question whether the legislature intended the term "emergency medical services provider" to apply to an emergency room nurse. In construing the meaning of a statute, we consider its text, context, and legislative history to discern legislative intent. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

As relevant here, ORS 163.165(1)(g) provides that a person commits third-degree assault if the person

"[i]ntentionally, knowingly or recklessly causes physical injury to an emergency medical services provider, as defined in ORS 682.025, while the emergency medical services provider is performing official duties."

An "emergency medical services provider" means

"a person who has received formal training in prehospital and emergency care, and is licensed to attend any person who is ill or injured or who has a disability. Police officers, firefighters, funeral home employees and other persons serving in a dual capacity one of which meets the definition of 'emergency medical services provider' are 'emergency medical services providers' within the meaning of this chapter."

ORS 682.025(4).⁵ We start with the text and context of the statute defining "emergency medical services provider."

At first blush, the text of ORS 682.025(4) appears broad enough to encompass an emergency room nurse, given its inclusion of "[p]olice officers, firefighters, funeral home employees and other persons serving in a dual capacity one of which meets the definition of 'emergency medical services provider.' " However, the context of the provision reveals that EMS providers and emergency room nurses are trained differently and meet different licensure requirements. See State v. Meek , 266 Or.App. 550, 556, 338 P.3d 767 (2014) ( "Text, however, cannot be viewed in isolation, but must, instead, be considered in the totality of the statutory framework."). That context suggests that the legislature did not intend for an emergency room nurse to come within the definition of "emergency medical services provider" on that basis alone.

ORS chapter 682—the chapter that contains the "emergency medical services provider" definition—begins by authorizing the types of rules that the Oregon Health Authority may adopt as necessary to carry out the functions of that ORS chapter. ORS 682.017. From the outset, that provision demonstrates that ORS chapter 682 is aimed at regulating emergency vehicles, EMS providers, and emergency care systems and dispatching aid. ORS chapter 682 does not govern hospital emergency rooms or their personnel. The rules that the Oregon Health Authority may adopt include:

"(a) Requirements relating to the types and numbers of emergency vehicles, including supplies and equipment carried;

"(b) Requirements for the operation and coordination of ambulances and other emergency care systems;

"(c) Criteria for the use of two-way communications; and

"(d) Procedures for summoning and dispatching aid.

"(3) The authority shall adopt rules establishing levels of licensure for emergency medical services providers. The lowest level of emergency medical services provider licensure must be an emergency medical responder license."

ORS 682.017(2), (3). As written, that context, within which the definition of "emergency medical services provider" appears, reflects that ORS chapter 682 is concerned with the care provided before a patient reaches a hospital.

In other parts of ORS chapter 682, the legislature distinguished an EMS provider from an emergency room nurse. For example, ORS 682.039 provides that the Oregon Health Authority shall appoint a State Emergency Medical Services Committee composed of 18 members, including:

"(b) Four emergency medical services providers ***.

" * * * * *

"(g) One nurse who has served at least two years in the capacity of an emergency department nurse."⁶

The licensure requirements in ORS chapter 682 provide additional context for determining the meaning of "emergency medical services provider." One provision states that a "person may not act as an emergency medical services provider unless the person is licensed under this chapter." ORS 682.204(1). The provisions that follow, ORS 682.204 to 682.218, provide specific licensing requirements for EMS providers, including an application for licensure that must be submitted to the Oregon Health Authority. The Oregon Health Authority is charged with "adopt[ing] rules establishing levels of licensure for emergency medical services providers." ORS 682.017(3).

The legislature included one exception from standard licensing of EMS providers, but it was not an exception for nurses. Called "licensure by indorsement," that exception provided:

"The Oregon Health Authority shall adopt rules to allow an applicant for licensure by indorsement as an emergency medical services provider to substitute experience and certification by a national registry of emergency medical services providers for education requirements imposed by the authority."

ORS 682.218. In its rules, the Oregon Health Authority considers certification by a national registry of emergency medical services providers. A rule provides: "A person registered with the National Registry as an EMR [emergency medical responder], EMT [emergency medical technician], AEMT [advanced emergency medical technician], or Paramedic may apply to the Authority for licensure by reciprocity." OAR 333-265-0050(1). Even that exception to the regular licensure for EMS providers applies only to first responders, paramedics, and EMTs.

By contrast, ORS chapter 678 governs nurses, who are licensed by the Oregon State Board of Nursing and who satisfy different licensure requirements than EMS providers. ORS 678.040. It is significant that different bodies regulate nurses and EMS providers. As we explain when discussing the legislative history below, the Oregon State Board of Medical Examiners formerly regulated certain levels of emergency medical technicians—the term the legislature previously used to refer to "emergency medical services providers." In 1989, however, the legislature directed the Oregon Health Authority to instead regulate all emergency medical technicians to foster greater consistency in the field. Given the legislature's deliberate decision to designate the Oregon Health Authority as the body...