State v. Smith

553 P.3d 604

333 Or.App. 667

STATE of Oregon, Plaintiff-Respondent,

v.Amy Lynn SMITH, Defendant-Appellant.

A179590 (Control)

A179591

Court of Appeals of Oregon.

Submitted May 31, 2024

July 10, 2024

Klamath County Circuit Court, 21CR59631, 21CR60063; Alycia E. Kersey, Judge. (Case No. 21CR59631, Judgment entered August 25, 2022); Kelly N. Kritzer, Judge. (Case No. 21CR60063, Judgment entered August 25, 2022)

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General, filed the brief for respondent.

Before Joyce, Presiding Judge, Lagesen, Chief Judge, and Armstrong, Senior Judge.

LAGESEN, C. J.

₆₆₉In this consolidated criminal case, defendant appeals a judgment of conviction for first-degree manslaughter, unlawful possession of a weapon, and two separate counts of felon in possession of a firearm. Defendant waived her right to a jury and was convicted by the court in a stipulated facts trial.¹ The charges stemmed from an incident in which she fatally shot her boyfriend, D. On appeal, she first assigns error to the trial court’s denial of her pretrial motion to declare borderline personality disorder a "qualifying mental disorder" for purposes of a defense of either (1) guilty except for insanity (GEI) under ORS 161.295, or (2) partial responsibility under ORS 161.300. Defendant asserts that her ability to rely on those defenses was thwarted by the trial court’s denial of her pretrial motion. Next, defendant assigns error to the trial court’s failure to merge the felon-in-possession verdicts charges. The state concedes the second assignment of error. We affirm on the first and accept the state’s concession and reverse on the second.

[1] Qualifying mental disorder. In her first assignment of error, defendant argues that the trial court erroneously denied her motion to declare borderline personality disorder a qualifying mental disorder for purposes of ORS 161.295 (providing for a GEI defense based on a qualifying mental disorder) and ORS 161.300 (providing that evidence of a qualifying mental disorder is admissible when relevant to a defendant’s intent). Whether a particular condition is a "qualifying mental disorder" for purposes of those statutes is a question of law, making our review for legal error. See, e.g., Beiswenger v. PSRB, 192 Or App 38, 45, 84 P.3d 180 (2004) (treating the determination as one of law).

[2] ORS 161.295(1) provides the elements a defendant must prove to qualify for the GEI defense: (1) "qualifying mental disorder"; (2) lack of "substantial capacity either to appreciate the criminality of the conduct or to conform the ₆₇₀conduct to the requirements of law"; and (3) "a causal link between the two." ORS 161.295(1); State v. Meiser, 369 Or. 347, 354, 506 P.3d 402 (2022) (Meiser I). ORS 161.300 similarly makes evidence of a qualifying mental disorder admissible when relevant to the assessment of whether a defendant had the requisite criminal intent. This case presents the question of whether borderline personality disorder is a "qualifying mental disorder" for purposes of those statutes.

Rather than define with particularity what conditions are qualifying mental disorders, the legislature has specified what conditions are not:

"[T]he term ‘qualifying mental disorder’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor does the term include any abnormality constituting solely a personality disorder."

ORS 161.295(2) (emphasis added); see also Beiswenger, 192 Or App at 45, 84 P.3d 180 ("ORS 161.295, however, explicitly imposes some limits on the term by describing what is not included * * *." (Emphasis in original.)).

Defendant acknowledges that the plain text of the statute excludes personality disorders from the list of qualifying mental diseases or defects. Nonetheless, pointing to the legislative history of the personality-disorder exclusion, she argues that, notwithstanding the legislature’s stated intention to exclude personality disorders from consideration for purposes of the defenses under ORS 161.295 and ORS 161.300, the fact that borderline personality disorder was not among the disorders specifically mentioned when that exclusion was adopted supports the conclusion that the legislature did not intend to preclude borderline personality disorder as a qualifying mental disorder.²

We reject that argument for two reasons.

₆₇₁First, although we have recognized that the term "personality disorder" is ambiguous, that was in the context of assessing whether conditions not specifically designated as personality disorders under the Diagnostic and Statistical Manual of Mental Disorders (DSM) qualified as personality disorders under the statute. Beiswenger, 192 Or App at 45-46, 84 P.3d 180.³ As we concluded in Beiswenger, the statutory term "personality disorder" includes sexual misconduct disorders and alcohol and drug dependency. Id. at 46, 84 P.3d 180 (stating that it is "plausible that the legislature could have intended the inclusion of these conditions under the term personality disorder"). We have never held that a disorder that is specifically classified as a personality disorder under the DSM-III does not qualify as a personality disorder under the plain terms of the statute.

On the contrary, the Supreme Court has recognized that the term must be considered in the "context of professional disciplines such as psychiatry and psychology, although here, of course, [its] application has specific legal consequences." Tharp v. PSRB, 338 Or. 413, 423, 110 P.3d 103 (2005). Viewed in that context, the most natural reading of the term "personality disorder" in ORS 161.295 is as including all disorders specifically designated as personality disorders in the DSM, in addition to other disorders that have the characteristics identified in Beiswenger. Had the legislature intended that one or more of the disorders designated in the DSM as personality disorders not be treated as personality disorders for purposes of ORS 161.295, we think it would have been clearer about that intention by, for example, identifying such disorders specifically.

Second, contrary to defendant’s argument, the legislative history suggests that the legislature intended ₆₇₂the phrase "personality disorder" to be expansive, so as to narrow the availability of the defenses described in ORS 161.295 and ORS 161.300. Tharp, 338 Or. at 428, 110 P.3d 103 ("The bill as amended further limits the scope of mental diseases or defects for which a person may be found, under present law, ‘not responsible.’ " (Quoting Staff Measure Analysis, House Committee on Judiciary, HB 2075 (1983).)). Although defendant is correct that the history does not appear to address borderline personality disorder specifically, that "oft-repeated" history, as recounted recently in Meiser II, is "replete with references to the legislature’s intent to narrow the availability of the GEI defense." State v. Meiser, 323 Or App 674, 684, 524 P.3d 130 (2023) (Meiser II), rev’d and remanded on other grounds, 372 Or. 438, 551 P.3d 349 (2024); see also Meiser I, 369 Or. at 360, 506 P.3d 402 (the 1983 amendment excluding personality disorders intentionally "narrows access to the defense set out in subsection (1)"). In our view, it would be at odds with that history to conclude that a disorder specifically classified as a personality disorder can nevertheless constitute a qualifying mental disorder under ORS 161.295 or ORS 161.300.

For those reasons, the trial court did not err in denying the motion to declare borderline personality disorder a qualifying mental disorder.

Merger. In support of her second assignment of error, defendant asserts that, under State v. O'Dell, 264 Or App 303, 310, ...