State v. Meiser

369 Or. 347

506 P.3d 402

STATE of Oregon, Respondent on Review,

v.Erik John MEISER, Petitioner on Review.

CC CR1201547 (SC S068327)

Supreme Court of Oregon.

Argued and submitted September 23, 2021.

March 22, 2022

Daniel J. Casey, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Leigh A. Salmon, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Thomas Stenson, Disability Rights Oregon, Portland, filed the briefs on behalf of amicus curiae Disability Rights Oregon.

Before Walters, C.J., and Balmer, Flynn, Duncan, Nelson and Garrett, JJ.^**

FLYNN, J.

Defendant, who has been diagnosed with schizophrenia and a co-occurring antisocial personality disorder, contends that the trial court and the Court of Appeals erred in its understanding of the evidence required to establish that he was guilty except for insanity (GEI) with respect to charges of murder. GEI is an affirmative defense that requires proof that, "as a result of mental disease or defect," the defendant "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) (2011), amended by Or Laws 2017, ch. 634, § 3.¹ But "the terms ‘mental disease or defect’ do not include * * * any abnormality constituting solely a personality disorder." ORS 161.295(2). The parties agree that schizophrenia is a "mental disease or defect" within the meaning of ORS 161.295, and they agree that defendant's co-occurring antisocial personality disorder is a "personality disorder" within the meaning of the statute. But they disagree about whether ORS 161.295 requires proof that defendant experienced the requisite incapacity solely "as a result of" his schizophrenia, and not in any part as a result of his co-occurring antisocial personality disorder. As explained below, we conclude that the legislature intended to specify that a co-occurring disorder that is solely a personality disorder is excluded from the "mental disease or defect" that forms the basis for a GEI defense, but the legislature did not intend to require proof that a co-occurring personality disorder played no causal role in bringing about the requisite lack of substantial capacity. That conclusion resolves the issue on which we allowed review, but it leaves unresolved additional legal and factual questions regarding defendant's proof of causation and incapacity. We remand the case to the Court of Appeals to address those questions.

I. BACKGROUND

Defendant, who has been diagnosed with schizophrenia and antisocial personality disorder, killed FH during a home-invasion robbery. At the time, defendant was suffering from multiple delusions, including the belief that his children were in danger because "poorer people were being harvested." Defendant believed that the only way to protect his children was to own property, and he set out to steal $40,000 for a down payment on a "condo." Defendant first broke into a martial arts studio, looking for a person whom he believed might be a source of money. No one was in the building, but defendant found and stole a samurai sword.

After stealing the sword, defendant decided to rob FH and his wife. Defendant later told a detective that he targeted FH and his wife because voices—"these people who follow me constantly"—told him that "the only way" he would "ever get any money is through this course of action." Defendant waited until he saw FH and his wife leave their house and then entered it to wait for them to return. His plan was to have "a discussion about the ailments of society" and then have them transfer $40,000 to defendant. He did not plan to harm anyone, but he took a machete from the victims’ workbench to intimidate them. When the victims returned home and found defendant, both victims panicked and ran outside. Defendant pursued FH and struck him multiple times in the head with the machete. Defendant then changed clothes nearby, discarded his bloody jeans, and entered the garage of another residence to steal a bicycle to help him escape.

The state charged defendant with multiple counts of aggravated murder, robbery, and burglary related to the invasion of FH's home, as well as with second-degree burglary counts related to the samurai sword and the bicycle. Defendant was repeatedly found to lack the capacity to stand trial. He spent nearly four years confined at the Oregon State Hospital before ultimately being found competent to stand trial. Defendant did not dispute that he had committed the criminal acts for which he had been charged, but he asserted the affirmative defense of GEI to all of the charges. See ORS 161.295 (setting out the GEI defense); ORS 161.305 (2011), amended by Or Laws 2017, ch. 634, § 5 (specifying that "[m]ental disease or defect constituting insanity under ORS 161.295 is an affirmative defense"). As defined by the legislature, that defense required defendant to prove that, "as a result of mental disease or defect at the time of engaging in criminal conduct," he "lack[ed] substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law." ORS 161.295(1). But the legislature also specified that "the terms ‘mental disease or defect’ do not include * * * any abnormality constituting solely a personality disorder." ORS 161.295(2).

Defendant waived his right to trial by jury and tried his case to the court. He offered the testimony of a psychologist and three psychiatrists, all of whom opined that defendant was suffering from schizophrenia but recognized that he had a co-occurring diagnosis of antisocial personality disorder. One of the psychiatrists explained that, as a symptom of defendant's schizophrenia, defendant experienced "command auditory hallucinations"—voices that defendant believed to be telepathic communications from unseen entities—although defendant did not experience "the kind of overwhelming command auditory hallucinations some other psychotic individuals have."

Two of the experts addressed the other elements of the GEI defense. Both testified that, at the time of the crimes, defendant lacked substantial capacity to conform his conduct to the requirements of the law. And both testified that, if not for the psychosis, defendant would not have committed the crimes. One of the experts specifically rejected the suggestion that defendant's "conduct [was] a result of antisocial personality disorder rather than schizophrenia." The other opined that both of defendant's conditions were "active" at the time of the murder but that defendant's psychosis associated with his schizophrenia "was more the predominant driver of his behaviors."

The state offered no contrary expert testimony, but it argued that the expert testimony failed to establish the elements of defendant's GEI defense. With respect to causation, the state disputed both the sufficiency of defendant's evidence and the applicable legal test. The state did not dispute that schizophrenia is a "mental disease or defect," but it argued that defendant was required to prove that the requisite incapacity "resulted from [that] mental disease [or defect] and nothing else" and that, unless the court found that incapacity resulted "from solely a mental disease [or defect], the Court may not find the defendant guilty except insane." The state insisted that defendant could not prove the causation element of his GEI claim. It first argued that defendant's "choices" were not solely the result of his schizophrenia, but "were at least, if not substantially, influenced by his anti-social personality disorder." Second, the state argued that the court could find that "neither" condition led to defendant's conduct.

At the conclusion of the trial, the court found that defendant was guilty except for insanity with respect to the charges of burglary and robbery of FH's home and with respect to the earlier burglary of the martial arts studio. But the court found that defendant had not proven the GEI defense with respect to the murder of FH and the subsequent burglary of the garage. As to that conduct, the court found defendant guilty of murder, as the lesser included offense of aggravated murder, and of second-degree burglary. The court rendered its verdicts without explaining whether it had agreed with the state's proposal that "as a result of mental disease or defect" required defendant to prove that any incapacity was solely the result of his schizophrenia and without identifying the element or elements of the GEI defense that defendant failed to prove with respect to the murder and final burglary charges.²

Defendant appealed his convictions to the Court of Appeals and assigned error to, among other rulings, the trial court's rejection of the GEI defense to the murder charge.³ With respect to the GEI defense, defendant insisted that the state had proposed an incorrect legal test when it argued that defendant was required to prove that his incapacity resulted "solely" from defendant's schizophrenia. Although the trial court had not specified whether it accepted the state's test, defendant urged the Court of Appeals to conclude that the trial court had accepted the state's understanding that "as a result of" in ORS 161.295(1) means "solely" as a result of. Under the correct causation test, defendant contended, no reasonable factfinder could fail to find that defendant had proven the elements of his GEI defense.

The Court of Appeals affirmed. State v. Meiser , 308 Or. App. 570, 481 P.3d 375 (2021). Because the trial court had not identified the element or elements that, in its assessment, defendant had failed to prove, the Court of Appeals reasoned that defendant could establish error only if he...