State v. Meiser

                                        570

  Argued and submitted February 11, 2020, affirmed January 21, petition for
                 review allowed May 20, 2021 (

)
                      See later issue Oregon Reports


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       ERIK JOHN MEISER,
                        Defendant-Appellant.
                   Clackamas County Circuit Court
                        CR1201547; A166534
                                    

     Defendant appeals from a judgment, following a bench trial, convicting him
of one count of murder, ORS 163.115, and one count of second-degree burglary,
ORS 164.215, and finding him guilty except for insanity (GEI) as to two counts
of first-degree robbery, ORS 164.415, and other crimes. Defendant assigns error
to (1) the trial court’s rejection of his GEI defense to murder, (2) the trial court’s
failure to provide factual findings and legal conclusions explaining the murder
verdict despite the GEI defense, (3) his sentence for murder as unconstitutionally
disproportionate, and (4) the trial court’s denial of his post-trial motion in arrest
of judgment, challenging the sufficiency of the indictment’s allegations of first-degree robbery. Held: The evidence permitted the factfinder to reject defendant’s
GEI defense as to the murder charge. Defendant failed to make an appropriate
request at trial so as to challenge on appeal the trial court’s failure to elaborate
on the murder verdict or any legal dispute about the GEI defense. Defendant’s
life sentence was not constitutionally disproportionate. The indictment, aided by
trial evidence, was sufficient to allege first-degree robbery. Accordingly, the trial
court did not err in rendering its judgment.
    Affirmed.



   Katherine E. Weber, Judge.
   Daniel J. Casey argued the cause and filed the briefs for
appellant.
   Leigh A. Salmon, Assistant Attorney General argued
the cause and filed the brief for respondent. Also on the
reply brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  DeVORE, P. J.
  Affirmed.
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           DeVORE, P. J.,
         Defendant was indicted on six counts of aggravated murder, ORS 163.095, two counts of first-degree
robbery, ORS 164.415, one count of first-degree burglary,
ORS 164.225, and two counts of second-degree burglary,
ORS 164.215. Acting as factfinder, the trial court found
defendant guilty of the lesser-included offense of murder,
ORS 163.115 (2011),1 and one count of second-degree burglary. The court found defendant guilty except for insanity (GEI) on the other counts. See ORS 161.295 (2011) (GEI
defense).2
          On appeal, defendant raises four assignments of
error. In his first assignment, he disputes the trial court’s
rejection of his GEI defense to murder. Assuming his view
of the defense is correct, he argues that there is insufficient
evidence to permit a reasonable factfinder to find him guilty
of murder. In his second assignment, he contends that the
trial court erred in failing to provide factual findings and
legal conclusions explaining the murder verdict despite the
GEI defense. In his third assignment, defendant challenges
his sentence for murder—life imprisonment with the possibility of parole after 25 years—as unconstitutionally disproportionate. In the same assignment, he also contends
that the trial court erred by refusing to consider a belated
defense of extreme emotional disturbance (EED), raised for
the first time at sentencing. In his fourth assignment, he
disputes the trial court’s denial of his post-trial motion in
arrest of judgment, challenging the sufficiency of the indictment’s allegations of first-degree robbery. For the reasons
that follow, we conclude that the trial court did not err, and
we affirm.

    1
      The murder and aggravated murder statutes have since been amended. Or
Laws 2019, ch 65. We refer to the versions in effect at the time of the offenses in
2012.
    2
      Under that statute, a “person is guilty except for insanity if, as a
result of a mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity to either appreciate the criminality of his conduct or to conform the conduct to the requirements of the
law.” ORS 161.295 (2011), amended by Or Laws 2017, ch 634, § 3. As with
other statutes, we refer to the version that was in effect at the time of the
offenses.
572                                           State v. Meiser

                         I.   FACTS
         We begin with an overview of the offenses and
note additional facts in our discussion of particular issues.
In determining whether defendant proved his affirmative
defense as a matter of law, we review the evidence, including
all reasonable inferences, in the light most favorable to the
trial court’s verdict. See Peters v. Belleque, 

, 

 (2011) (To warrant a judgment of acquittal “the evidence before the trial court, taken in the light
most favorable to the state, must permit only one reasonable
conclusion—that petitioner established each element of the
defense.”); State v. McCartney, 

, 

 (1983), rev den, 

 (1984) (A motion for judgment of acquittal based on an affirmative defense may only
be granted when there are no facts presented upon which
“reasonable men could differ.” (Internal quotation marks
omitted.)).
        Defendant was charged with aggravated murder
arising out of an incident in which defendant murdered the
victim, FH, during a home invasion gone wrong. Defendant
arrived in Lake Oswego early on a September morning in
2012. Carrying a samurai sword that he had stolen from
a martial arts facility, defendant walked a mile to find a
neighborhood that he believed to be affluent. After identifying FH’s home as one where he believed he might force the
homeowners to wire him $40,000, defendant hid next door
and waited for the occupants to leave.
        FH and his wife, MH, left their home around
5:30 a.m. to take their dogs for a walk. Defendant entered
their home, swapping the sword for a machete he found in
the garage. He believed that the machete would be “more
intimidating” and allow him to “control the situation better.”
The couple returned home about an hour later. MH picked up
the newspaper, while FH attended to the dogs in the backyard. When MH entered the kitchen, she looked up from her
newspaper to see defendant with fabric covering his head
and holding a knife in one hand and a machete in the other.
He held the knife up to his lips and whispered, “Shh, I don’t
want to hurt you.” MH screamed. FH ran toward the kitchen
to see what was wrong. Upon seeing the intruder, FH and
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MH ran outside. MH called 911 from the side of the house,
while FH ran down the driveway, but fell backwards into
bushes. As FH laid on the ground, defendant struck FH four
times with the machete. Three blows were lethal. Defendant
struck until FH stopped making noise. Defendant ran back
into the couple’s home to get his backpack in order not to
leave evidence behind, then escaped through the backyard.
MH ran around the side of the house and found her husband. He died moments later.
         Defendant ran through the neighborhood looking
for a vehicle that he could use to escape. Defendant entered
a neighbor’s garage to take a bicycle, but he left it because
it had a flat tire. Defendant ran to another vacant house
where he changed his clothes, showered, and took a nap.
At 9:00 a.m. the same morning, defendant was seen sitting
at a bus stop in Lake Oswego. An officer approached him
looking for suspects. The officer asked defendant if he knew
anything about the incident. Defendant appeared calm, normal, and on the “happy side.” He did not arouse the officer’s
suspicion. The officer checked defendant’s ID and spoke with
defendant for about five minutes.
          Defendant remained in the Portland area for a couple of days. He alternated sleeping on buses, in a U-Haul, in
an airstream trailer, and possibly in an abandoned house.
Three days after the murder, police identified defendant
from fingerprints left at the scene and announced his identity at a press conference. To change his appearance, defendant shaved off his beard at a gas station. He took a bus to
Salem and made his way to Corvallis, walking along backroads. Defendant bought food and paid his expenses with
money his wife wired to him through a credit union. He
learned that there was a warrant out for his arrest. He used
an alias to check into a motel in Corvallis. Five days after
the murder, police located him using his cellphone data.
They arrested defendant without incident at the motel.
          During interviews with the police, defendant said
that he had a “dual purpose” for the home invasion. One
purpose was “restitution” for himself and one purpose was
to “set [his] son free.” We describe those two purposes before
retelling defendant’s narrative.
574                                           State v. Meiser

          First, defendant explained that he believed that
he had been “systemically persecuted” by a “large portion
of American society,” that he had been unable to find work
because he had been “blacklisted,” and that there were “people out there who really believe[d] that their prosperity is
… better off without [his].” He had attempted to enroll in
college and believed he had been “roadblocked” when trying
to get financial aid. Because he believed people were making
it impossible for him to “get in” to society, he wanted to “go
a step further and try to take the money that society [had]
… taken away from [him].” He developed a plan to force an
affluent person to perform a “mediocre balance transfer” of
$40,000 so that he could put a down payment on a condo and
get a “toehold in society” as a property owner. He viewed
the $40,000 as “restitution” and “reparations” for what “had
been done to [him].”

         Second, defendant explained that he had heard
voices, whom he referred to as real people. He said that,
beginning in 2006, they followed him everywhere he went
and told him to do things or his children would be killed.
He believed that the voices had made him a drug addict,
had made him think that he needed to have sex with random women, and had been poisoning him, as evidenced by
the dark circles under his eyes. The voices told him that
he had been “deleted” from society and that all information
regarding his existence had been removed from “the system.” When he got to Lake Oswego, he said that the voices
“told [him] that if [he] didn’t kill that guy, that they would
murder … my son and turn my little infant daughter into a
cannibal when she grew up.” The voices did not identify the
specific person that he was supposed to kill or how he was
supposed to kill the person.

        Defendant said that he arrived in Lake Oswego
after randomly jumping on buses “looking for affluency.”
He said that he broke into the martial arts studio because
there was a Corvette parked outside. He thought that the
Corvette’s owner would be inside and be the type of person
from whom he could get the $40,000 wire transfer. Finding
no one inside the studio, he decided to take the samurai
sword.
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         Defendant said, when he chose the couple’s home
next, he initially “never wanted to hurt anybody.” Consistent
with his “dual purposes,” he “simply wanted a balance transfer” that would be “enough for [him] to get a toehold in society and … to protect [his] family.” Entering the couple’s
home, he said, he checked to make sure that there were no
children in the house. He looked at bank statements in the
couple’s office to confirm that they were wealthy. His plan
was to sit down with the couple and “have a discussion about
the ailments of society and … that [their] generation had
an obligation to [him].”
          Defendant said that, when the couple ran, he realized he “was going to fail, once again” and was not going to
get his “mediocre balance transfer.” At that point, defendant
said he “panicked.” The voices had “been telling [him] that
the only way [he would] ever get any money [was] through
this course of action,” and he felt that he and his family
would “always be subject to abject poverty.” While he panicked, he was concerned he would have to “look into the eyes
of [his] little girl and tell … her every day of her life, ‘Your
father just doesn’t have what it takes to give you things. I’m
sorry.’ ” As FH looked up after falling in the bushes, defendant “knew that … [he] couldn’t get [FH] to respond to
[him] and decided that this was going to be the person who
[he] victimized in return for [his] victimization.” Defendant
explained that he “just lashed out” and thought, “I have
been put through too much” and “I have had enough,” as he
struck FH four times with the machete. Defendant then fled
the scene.
         Police asked whether defendant knew his plan was
wrong from the beginning. Defendant answered, “Of course
I know it was wrong” but that “right or wrong and morality
is out the window.” He said that he “never thought [he] was
doing the right thing” and that “[he] knew what [he] was
doing was … not a good thing to do the whole time.”
         The state charged defendant with aggravated murder and other offenses. The trial court found defendant
able to aid-and-assist in his defense. Defendant waived his
right to a jury and tried his case to the court as factfinder.
Defendant did not dispute that he had committed the acts,
576                                                          State v. Meiser

but he asserted a GEI defense. He offered the testimony at
trial of three psychiatrists and a psychologist, who testified
that defendant suffers from schizophrenia and antisocial
personality disorder.
         The trial court found defendant guilty of murder, as
the lesser included offense of aggravated murder, and guilty
of second-degree burglary, related to entry into a neighbor’s
house to steal the bicycle. The trial court found defendant
guilty except for insanity as to the other charges, related
to the first-degree robbery of FH and MH, the first-degree
burglary of their home, and the second-degree burglary of
the martial arts studio.
                       II. THE GEI DEFENSE
         On appeal, defendant first assigns error to the trial
court’s rejection of his GEI defense as to murder.3 The trial
court had not expressly addressed the legal or factual disputes between the parties in colloquy or a written opinion.
Instead, the court rendered its verdicts like a jury without
elaboration. For that reason, defendant addresses on appeal
each disputed element in his GEI defense, in order to show
that he was entitled to prevail on the defense as a matter of
law. See Peters, 

 (the evidence must permit only one reasonable conclusion, that defendant established each element of the defense). He first asserts the legal
proposition that he should be permitted to prove that he
lacked the requisite capacity as a result of a combination
of schizophrenia, which is a qualifying mental disease or
defect, and antisocial personality disorder, which is not a
qualifying mental disease or defect.4 Next, he contends that
the evidence requires a finding that his resulting incapacity rendered him unable to appreciate the criminality of his
conduct under a subjective moral standard. Alternatively,

    3
      Although the trial court rejected defendant’s GEI defense as to murder
and one count of second-degree burglary, defendant does not argue that the trial
court erred in rejecting his GEI defense as to second-degree burglary.
    4
      In 2017, the legislature amended ORS 161.295, replacing the term “mental disease or defect” with the term “qualifying mental disorder.” Or Laws 2017,
ch 634, § 3. The amendment was not effective until January 1, 2018, and is not
applicable in this case. Here, for convenience, we use the term “qualifying mental
disease or defect” to refer to a mental disease or defect that is not excluded by
ORS 161.295(2), which we quote below.
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he contends that the evidence requires a conclusion that his
resulting incapacity rendered him unable to conform his
conduct to the requirement of law.
          The state responds that the requisite incapacity must result from a qualifying mental disease or defect
itself, not from a combination of qualifying and nonqualifying impairments. The state relies on our decision in State
v. Peverieri, 

, 

, rev den, 

 (2004). The state argues that combined disabilities are
not recognized to cause or result in the requisite incapacity
for a GEI defense. Next, as to one of two forms of incapacity, the state responds that the incapacity is not determined
by defendant’s ability to “appreciate the criminality” of his
conduct based on a “subjective moral standard.” Regardless
of the answer to that dispute, the state concludes that the
evidence permitted a finding that defendant appreciated the
criminality of his conduct and that he was able to conform
his conduct to the requirements of law.
A.    Mental Disease or Defect Resulting in Incapacity
         Defendant’s initial argument about a combination
of impairments presents a preliminary question of statutory
interpretation. As such, we review the question as a matter
of law. Peverieri, 

. The essential terms of
law appear in ORS 161.295. The statute describes the GEI
defense in its central and its supplemental paragraphs:
         “(1) A person is guilty except for insanity if, as a result
     of a mental disease or defect at the time of engaging in
     criminal conduct, the person lacks substantial capacity
     either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.
        “(2) As used in chapter 743, Oregon Laws 1971, the
     terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise
     antisocial conduct, nor do they include any abnormality
     constituting solely a personality disorder.”
Reading the paragraphs together, we have said that a
defendant seeking to establish a GEI defense “must show
that, at the time of the crime, as a result of a mental disease or defect (which does not include a personality disorder or general antisocial behavior), the defendant lacked
578                                           State v. Meiser

the substantial capacity to appreciate the criminality of
his conduct or to conform that conduct to the requirements
of law.” State v. Shields, 

, 47, 

(2017), rev den, 

 (2018). In our context, defendant
is required to show that the evidence was so compelling that
no rational fact finder could have determined that defendant
failed to establish the affirmative defense of GEI. Defendant
must show that there was no factual dispute on the several
elements of the defense. Id. at 48. Those elements are that
(1) defendant suffered a qualifying mental disease or defect
(2) that resulted in (3)(a) an incapacity to appreciate the
criminality of his conduct or (b) an incapacity to conform his
conduct to the requirements of the law. See ORS 161.295;
Shields, 289 Or App at 47 (describing the elements of a GEI
defense).
         Because defendant has addressed each element in
order to argue that he should prevail as a matter of law, we
have reviewed the arguments on each element. We recount
each argument, but we emphasize the legal dispute about
the second element involving causation, because the law’s
answer on combined causes is dispositive on these facts. We
conclude that the evidence permitted a rational factfinder
to conclude that a requisite mental disease or defect was
not the cause of a requisite incapacity at the time of the
murder. We note the differing evidence on the subsequent
issues whether defendant had the capacity to appreciate
criminality of his act or to conform his conduct to the law,
but, as we explain, we need not decide whether a rational
factfinder could have rejected the GEI defense on those
grounds.
         On the first element of the GEI defense, there is no
dispute between the parties that defendant’s schizophrenia
is a mental disease or defect within the meaning of the statute. The supplemental paragraph that is ORS 161.295(2)
defines what is not a qualifying “mental disease or defect”
by excluding “an abnormality manifested only by repeated
criminal or otherwise antisocial conduct” and excluding
“any abnormality constituting solely a personality disorder.”
Schizophrenia is not among those particular disabilities
specifically excluded from recognition as a qualifying “mental disease or defect.”
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         On the second element, we consider whether defendant suffers a mental disease or defect that results in or
causes a requisite incapacity (an incapacity that is to be
established as one of two alternatives). On the issue of
causation, the parties differ on the question whether an
incapacity to appreciate criminality or conform conduct
must be the result of a mental disease or defect or may be
the result of a mental disease or defect in combination with
a nonqualifying impairment or abnormality. In particular, the parties differ over the applicability of Peverieri, our
decision on voluntary intoxication when combined with an
ostensible mental disease or defect.
          In Peverieri, the defendant was charged with
attempted aggravated murder, and he tried the case to the
court as factfinder. Peverieri, 

. The court
rejected his GEI defense, and he appealed, contending that
the court had erred in failing to find him guilty except for
insanity. 

. The defendant had shot at a police
officer. 

. At the time, he suffered from chronic liver
failure, which caused ammonia to accumulate in his blood.
That caused him to lose the ability to think clearly and created memory problems.5 Before the shooting incident, he
drank alcohol. The combination of his cognitive impairment
and alcohol use caused him to become agitated and paranoid
when he committed the crime. A psychiatrist testified that
the defendant was incapable of conforming his conduct to
the requirements of the law. 

 The defendant did not claim
that his cognitive impairment alone constituted a mental
disease or defect. Instead, he claimed that the combination
of a mental disease or defect with alcohol caused him to be
unable to conform his conduct to the law. 

 The trial court
rejected the defendant’s combination theory. 

.
        On appeal, the defendant contended that nothing
in ORS 161.295 precluded the GEI defense when a qualifying mental disease or defect was combined with another
condition, disability, or abnormality. 

. The defendant pointed out that ORS 161.125 provided that voluntary
intoxication, “as such,” cannot constitute a defense, but that

    5
      We assumed for the sake of analysis that the liver complications qualified
as a mental disease or defect. Peverieri, 

.
580                                               State v. Meiser

should not mean that the statute foreclosed his reliance on
intoxication in combination with other conditions as a basis
for the insanity defense under ORS 161.295. Insofar as that
goes, we agreed, but recognized that that did not mean that
“there is not some other statute that is such an impediment.”

 We determined that ORS 161.295 “is just such a statute.”

 We explained that
   “ORS 161.295(1) provides that a person is guilty except
   for insanity if he or she proves that the lack of substantial
   capacity is ‘a result of mental disease or defect’ at the time
   of the crime. The statute does not provide that the defense
   is available upon proof of a lack of capacity as a result of
   mental disease or defect in combination with other factors
   such as voluntary alcohol consumption. When the legislature wants to require proof of either a single cause or a
   combination of causes, it generally does so. In this instance,
   the legislature did not do so. It stated only that insanity
   may be claimed upon proof that a defendant’s condition is a
   result of a mental disease or defect.”

 (emphasis in original; citations omitted). We
concluded that the defendant’s condition at the time of the
crime was not a result of a mental disease or defect, “but
rather that it was a result of the mental disease or defect
and voluntary intoxication.” 

 (emphasis in original). Therefore, the statute did not apply, and the trial court
did not err in rejecting the defendant’s insanity defense. 

        Defendant argues that Peverieri is distinguishable
because the GEI defense in that instance was based on a
mental disease in combination with voluntary intoxication.
He argues that the case did not implicate ORS 161.295(2),
which expressly but incompletely excludes personality disorders from the definition of “mental disease or defect.”
Defendant accepts that his antisocial personality disorder
is an excluded personality disorder. But, he stresses that
a qualifying “mental disease or defect” in ORS 161.295(2),
excludes “any abnormality constituting solely a personality
disorder.” (Emphasis added.) Therefore, defendant argues,
the exclusion of antisocial personality disorders from qualifying “mental disease[s] or defect[s]” should only occur
where a defendant’s disability is only a personality disorder.
He argues that a personality disorder in combination with
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schizophrenia should be recognized to result in incapacity
to appreciate criminality and conform one’s conduct.
         Before going further, we note that defendant has
not referred us to any relevant legislative history on the
original enactment of ORS 161.295(2) (Or Laws 1971,
ch 743, § 36), which uses the term “only” with reference to
the exclusion of criminal conduct, nor to the amendment of
ORS 161.295(2) (Or Laws 1983, ch 800, § 1), which uses the
term “solely” with its reference to exclusion of personality
disorders. See Beiswenger v. PSRB, 

,

, rev dismissed, 

 (2004) (reviewing
legislative history of HB 2075 (1983)). In passing, defendant comments that Peverieri “erred” by failing to address
ORS 161.295(2), but defendant does not ask us to overrule
Peverieri.6 Defendant does not develop any argument that
Peverieri was plainly wrong in construing ORS 161.295(1) at
the time it was decided. See State v. Civil, 

, 

 (2017) (explaining standards for overruling precedent only when “plainly wrong”). Nor has defendant suggested that Peverieri, in construing the causation
element of ORS 161.295(1), has been drawn into question
by any subsequent decision of the Oregon Supreme Court.
Instead, defendant only seeks to distinguish Peverieri by
suggesting that the case did not implicate ORS 161.295(2)
while this case does. Therefore, we do not question whether
Peverieri correctly construed the causation element of ORS
161.295(1).
         Although defendant insists that Peverieri is distinguishable, we disagree. Like the defendant in Peverieri,
who conflated ORS 161.295(1) with the limitation in ORS
161.125 that intoxication “as such” could not be a defense,
defendant conflates ORS 161.295(1) with the limitation in
ORS 161.295(2) that an abnormality that is “solely” a personality disorder shall not be considered a mental disease
or defect. The exclusion of personality disorders from the
“mental disease or defect” only serves to exclude them from
the first element of the GEI defense that requires a mental
    6
      Defendant explains that he mentions that Peverieri so erred “for purposes
of possible further review by the Oregon Supreme Court.” We express no opinion
as to whether a claim that a prior decision is wrongly decided, supported by a
developed argument in this court, is necessary for review in the Supreme Court.
582                                             State v. Meiser

disease or defect. See Shields, 289 Or App at 48-50 (first
determining whether defendant was diagnosed with a qualifying mental disease or defect). The second element of the
GEI defense still requires that a qualifying mental disease
or defect result in or cause defendant’s incapacity to appreciate criminality or conform his conduct. That second element
is the same “impediment” that we recognized in Peverieri
to require that the mental disease or defect must be the
cause of incapacity. The phrase that we quoted in Peverieri,
“a result of mental disease or defect,” precludes causation
in “combination with other factors.” 192 Or App at 232-33.
It does not matter that, in Peverieri, intoxication “as such”
was limited by another statute (ORS 161.125), while, in this
case, “solely” a personality disorder is limited by the supplemental paragraph of the GEI statute (ORS 161.295(2)). In
both cases, a mental disease or defect must be the cause of
incapacity that substantially renders a defendant unable to
appreciate criminality or conform conduct to the law.
         As a consequence, Peverieri determines our construction of ORS 161.295 and becomes the standard for
reviewing the evidence on the second element in the GEI
defense. We must determine whether defendant’s asserted
incapacity was “a result of a mental disease or defect,” rather
than as a result of combination with some nonqualifying
factor, impairment, or abnormality. Applying that standard, we must determine whether, as a matter of law, the
evidence below was such that no rational factfinder could
have rejected defendant’s GEI defense. See Shields, 289 Or
App at 53; State v. Smith, 

, 

 (1975). In doing so, we must review all relevant facts in
the light most favorable to the state. See Peters, 

          At trial, the primary source of evidence on the issue
was the testimony of the mental health professionals called
by defendant. In reviewing that testimony, we observe that,
when considering the evidence of the medical experts, the
trier of fact is not required to accept the conclusions of expert
witnesses. See Beiswenger, 

 (so noting in
the context of how to define “mental disease or defect”). If
there is expert evidence that the factfinder decides does not
carry convincing force over other evidence in the case, the
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factfinder may make its determinations based upon the latter. State v. Siens, 

, 

 (1973).
We have noted that the “legislature wished the determination of whether an individual suffers a ‘mental disease or
defect’ not to be exclusively within the domain of psychiatric or psychological professionals.” Beiswenger, 

 (emphasis in original). After reviewing the evidence
in that light, we conclude that a rational factfinder could
have determined that defendant failed to establish that his
asserted incapacity was the result of schizophrenia, defendant’s qualifying mental disease or defect.
         Defendant’s experts testified that, at the time of the
crimes, defendant suffered both schizophrenia and antisocial personality disorder. Based on that testimony, defendant argued that schizophrenia resulted in a lack of capacity to appreciate the criminality of his conduct or to conform
his conduct to legal requirements. He argued that his antisocial personality disorder played no role. The state did not
contest the schizophrenia diagnosis, but the state argued
that defendant’s schizophrenia and antisocial personality
disorder were co-occurring and that the antisocial personality was manifest at the time of the murder.
         Each mental health witness had examined defendant or reviewed his medical history from 2010 to 2016. Up
until 2014, the consensus diagnoses was that defendant
manifested two disorders: delusional disorder and antisocial personality disorder. In 2014, psychiatrist Choi revised
his diagnoses to schizophrenia and antisocial personality
disorder.
         At trial, psychiatrist Kleinman described the hallmarks of schizophrenia typically to include hallucinations,
delusions, and a disordered thought process where the
affected person’s speech or behavior is disconnected and
not logical. As he described it, the onset of schizophrenia
typically corresponds with an irreversible 10-point IQ drop.
Psychiatrist Peykanu explained that the symptoms of schizophrenia commonly prevent persons from forming long-term
relationships and impairing their ability to communicate in
a linear or coherent manner about subjects related to their
delusions. Dr. Choi said schizophrenia causes people to lose
584                                            State v. Meiser

their ability to demonstrate a normal range of emotional
affect, and Dr. Kleinman said schizophrenia hinders people
from being resourceful. Dr. Choi testified that schizophrenia is not typically associated with an increase in violence.
        Dr. Choi testified that defendant’s second and
co-occurring diagnosis, antisocial personality disorder, is
characterized by repeated criminal activity, a disregard for
the rights of others, repeated acts of aggression, consistent
irresponsibility, and being unable to maintain employment.
         Each professional who testified about defendant’s
diagnoses testified that defendant had schizophrenia and
antisocial personality disorder. That testimony indicated
that, as a result of his schizophrenia, defendant had been
experiencing command-auditory hallucinations for the six
years leading up to the murder. Dr. Choi testified that, on
the day of the murder, defendant was experiencing command hallucinations that were “influencing his behaviors”
and “giving him a push” to take action in order to protect his
family from imminent harm. Dr. Choi concluded that, without these hallucinations, defendant would not have entered
the couple’s home or murdered FH, and that defendant’s
actions were a result of his schizophrenia and his “highly
psychotic” state.
         Dr. Choi, however, also testified that defendant’s command hallucinations “weren’t definitive and overwhelmingly
powerful” and were present only to a “moderate degree.”
In their opinions, defendant could set parameters on his
command hallucinations, as evidenced by his commitment
to leaving the couple’s home if he had discovered children
inside or if the couple had not appeared to be wealthy.
Dr. Beaver, a clinical neuropsychologist, testified that defendant felt he had a choice as to whether to go through with
the robbery. The professionals testified that, at the time of
defendant’s acts in 2012, defendant demonstrated all of the
described criteria of antisocial personality disorder. They
testified that, leading up to his arrival in Lake Oswego,
he had demonstrated anger, violence, repeated criminality, impulsivity, and a reckless disregard for the safety of
others—all criteria of antisocial personality disorder rather
than schizophrenia.
Cite as 

 (2021)                            585

         Defendant told the psychiatrists that, upon arriving
at the couples’ home, his intention was to just rob the couple and get money and that he did not plan to kill anybody.
When FH fell into the bushes, defendant realized that he was
not going to succeed in getting a bank transfer. Defendant
repeatedly told the psychiatrists that he “panicked.” At that
time, Dr. Choi and Dr. Beaver testified, defendant’s language describing the attack was no longer focused on saving his family but on what another generation “owe[d] him,”
his anger at being stuck in “abject poverty,” and his fear
of being a “deadbeat dad.” On cross-examination, Dr. Choi
acknowledged that it was possible that, given defendant’s
description of the murder, defendant was just angry and
he lashed out. Dr. Choi summarized that what “drove”
defendant—whether psychosis, as he believed, or just panic
and anger—could both be true.

         Despite the experts’ testimony that they believed
that defendant’s incapacity was caused by his schizophrenia, a reasonable factfinder could nonetheless conclude that,
as defendant looked at FH in the bushes, he was motived to
kill out of revenge against an affluent member of an older
generation for his economic position. A rational factfinder
could conclude that it was anger expressed in the attack,
indicative of antisocial personality disorder, rather than
schizophrenia, which is not typically expressed in violence.
Defendant had the ability to set limitations on his hallucinations and said that he would have aborted his robbery
attempt if specific conditions, such as the absence of children, were not fulfilled.

         Based on expert testimony and defendant’s narrative, a rational factfinder could have concluded that defendant did not prove that his lack of capacity—to appreciate
criminality or conform his conduct—was the result of his
schizophrenia. Rather, the evidence permitted the factfinder to conclude, at the least, that defendant’s schizophrenia and antisocial personality disorder were both active
impairments. The record permitted a determination that
defendant’s compromised capacity at the critical moment
was wholly, or in part, the result of antisocial personality
disorder. Therefore, defendant did not establish, as a matter
586                                                        State v. Meiser

of law, the causation element of the GEI defense. His compromised capacity could be found, not to be the result of a mental disease or defect. See Peverieri, 

. In
short, the evidence on the second element of the GEI defense
was sufficient to permit the factfinder to reject defendant’s
GEI defense to murder.
B. Inability to Appreciate Criminality
          Assuming that he satisfied the causation element
as a matter of law, defendant next argues that undisputed
evidence at trial established the requisite incapacity, in
one of its alternate forms, in that he lacked the substantial
capacity to emotionally appreciate the criminality of his conduct. He argues that to “appreciate criminality” is based on
a “subjective moral standard.” The state disagrees that the
issue turns on whether defendant personally believed his
act to be moral.7 The state adds that, even if that were the
standard, based on the record, a rational factfinder could
conclude that defendant did appreciate the criminality of
his conduct under that standard.
          Whatever the standard, the evidence at trial
appears to be conflicting. Defendant’s expert, Dr. Choi, testified that, in his opinion, defendant lacked the substantial
capacity to appreciate the criminality of his conduct during
the murder because, “[f]rom the defendant’s point of view,”
defendant believed that his acts were “justified.” Dr. Choi
recalled that defendant had said, “Well I felt bad. I knew
what I was doing was wrong … but in the end I felt like I
had to do what I had to do to protect myself and protect my
children.” As noted above, however, the trial court was not
required to accept the opinions of experts. See Beiswenger,

 (so holding in the context of how to define
“mental disease or defect”).
          When interviewed by police, defendant was asked
if he knew whether his plan as he was entering the couple’s
    7
      The United States Supreme Court recently listed Oregon as one of 16 states
having insanity defense statutes that have “reoriented the test to focus on the
defendant’s understanding that the defendant’s act was illegal—that is, legally
rather than morally ‘wrong.’ ” Kahler v. Kansas, ___ US ___, ___, 

,
1035 n 10, 

 (2020) (including ORS 161.295 on a list of insanity
defense statutes that “excluded from the ranks of the insane those who knew an
act was criminal but still thought it right”).
Cite as 

 (2021)                             587

home was “dangerous or wrong.” Defendant responded, “Of
course I know it was wrong,” but that at that moment “right
or wrong and morality [was] out the window.” Defendant told
the police that he “knew what he was doing was not a good
thing the whole time.” He told police that, at the moment he
attacked FH with the machete, he had “lashed” out in order
to “victimize” FH in the same way that he had been victimized by society. Thus, the state emphasizes that part of
the record, which permits a factfinder to conclude that, even
with a subjective moral standard, defendant understood his
actions to be “wrong.”
         We need not resolve whether the first alternate
form of incapacity, involving appreciation of criminality, is
determined by a subjective standard. It is unnecessary to
resolve the legal or factual disputes on this point because
the trial court’s rejection of the GEI defense is already justified by the facts that permit the trial court to have found
that defendant’s asserted incapacity, in whatever form, is
not the result of a mental disease or defect.
C. Inability to “Conform Conduct to the Law”
         Our response is necessarily the same when defendant argues that the evidence, as a matter of law, required
the conclusion that, alternatively, he lacked a substantial
capacity to conform his conduct to the requirements of the
law. Again, the evidence appears to be conflicting. Dr. Choi
testified that defendant was experiencing “auditory hallucinations that told him to do things, that he was able to
resist some of the time and made it more difficult to resist
other times.” The psychiatrist also testified, however, that
he believed that defendant understood that “killing [FH] is
legally wrong.” Dr. Choi testified that defendant was able to
limit the power of the command hallucinations and formulate alternatives. The psychiatrist testified that defendant
“didn’t completely lack the capacity to … make choices or
control his behaviors.” Defendant told police that he could
choose when he obeyed his hallucinations and when he would
have decided to ignore their commands, as reflected in his
commitment to have left the couple’s home if children had
been present or if he did not think the couple was sufficiently
wealthy. Defendant repeatedly told police that, upon showing up to the home, his only intent was to rob the couple.
588                                                       State v. Meiser

         It is unnecessary for us to determine whether, based
on that evidence, a rational factfinder could conclude that
defendant was able to conform his conduct to the requirements of law. Although defendant must establish that the
evidence compelled a factfinder to reach only one conclusion
on this if not the prior alternative form of incapacity, the
evidence already suffices to have permitted the factfinder to
have found that defendant did not establish, as a matter of
law, that either form of incapacity was caused by a mental
disease or defect. The evidence permitted the trial court,
sitting as factfinder, to reject the GEI defense. Accordingly,
the trial court did not err in convicting defendant of murder.
            III.    REQUEST FOR FINDINGS AND
                        CONCLUSIONS
         In his second assignment, defendant argues that the
trial court erred, after its verdicts, by declining his request
to make factual findings and legal conclusions on the murder verdict and GEI defense. In a bench trial, we review for
legal error a trial court’s denial of a party’s request for the
court to make a required record of its ruling on the disputed
elements of a charged crime. State v. Colby, 

,
252 n 4, 

 (2018).
         Defendant relates that, after the court announced
its verdicts, he made a generalized, verbal request in which
he “ask[ed] the [c]ourt for findings of fact and conclusions
of law.” At trial, he was not more specific. On appeal, he
specifies that it was “reversible error [for the trial court] to
refuse [his] explicit request for factual findings and legal
conclusions to explain the court’s GEI verdict on the lesser
offense of murder.” Defendant argues that the trial court’s
failure to state the elements of the GEI defense that it used
to make its decision resulted in a record that is “insufficient
to determine whether the trial court accepted” the state’s
arguments regarding whether defendant could “appreciate
the criminality” of his conduct. The state argues that, if the
trial court did err, the error is harmless, because defendant’s
proposed “subjective morality prong” of the GEI defense was
an erroneous interpretation of the GEI standard.8
    8
      We do observe that, in a supplemental memorandum submitted during trial,
defendant asserted his interpretation of the meaning of the phrase “appreciate
Cite as 

 (2021)                                               589

         Defendant relies on Colby. In that case, the defendant was convicted of fourth-degree assault, ORS 163.160,
in a bench trial. 

. Although the defendant had waived a jury, he had submitted proposed jury
instructions before trial. In his instructions on the offense
at issue, the defendant described a different mental state
requirement than was described in the state’s submitted
jury instructions. 

. After the court rendered
its verdict, the defendant asked the court, “[W]ith regard to
the special jury instructions that I submitted, is the Court
taking those into consideration in this verdict?” 

.
The defendant then clarified his request, asking, “[T]he
jury instructions that I submitted, are you agreeing with
that interpretation as to the law?” 

 The defendant then
reiterated that “the special jury instructions submitted contained the correct statement of the law, which needed to be
considered by the trial court in rendering the verdict” for
“preservation purposes.” 

. The court denied
the defendant’s request to state the elements of law, based
on the defendant’s proposed jury instructions, that the court
considered when reaching its guilty verdict. 

.

         We concluded that the trial court erred in refusing
the defendant’s request to address the disputed instruction.

. We determined that “a court cannot refuse to
disclose the legal principles that it has applied in construing
the elements necessary to adjudicate guilt, when a defendant properly raises that issue.” 

. By submitting
the proposed jury instructions and specifically asking the
court whether the court agreed with the interpretation of
the law as contained in the jury instructions, we held that
the defendant’s “request triggered the trial court’s obligation to create a sufficient record” for purposes of “creating
a record that allows us to review whether the trial court
applied the correct principles of law in reaching its verdict.”

.

the criminality” as contained in ORS 161.295(1). He interpreted the term “appreciate” to mean that “an offender must be emotionally as well as intellectually
aware of the significance of his conduct.” That statutory issue, however, is of no
consequence on the second assignment of error, even if it were preserved, insofar
as we have already determined, in the first assignment, that we need not reach
that statutory issue on appeal.
590                                            State v. Meiser

         We recognize here, as we did in Colby, that, in a
bench trial, “there is no fixed procedural means of preserving a challenge to the trial court’s determinations as to the
elements of a crime, nor is the trial court required to express
its ruling in a particular way.” 

 (relying on State v.
Hull, 

, 

 (1979)). Yet, a request
may be appropriate, even if made unconventionally, as when
pointing out in a bench trial a dispute that is reflected in
conflicting jury instructions before the court.
         This case is distinguishable from Colby, and our
explanation involves two ways of saying the same thing.
First, defendant did not adequately preserve a request for
a ruling on a disputed point of law, and, second, defendant
did not say enough to trigger the trial court’s duty to make
a record sufficient to facilitate review of that disputed issue
on appeal.
         To preserve an error for appellate review, “a party
must provide the trial court with an explanation of his or
her objection that is specific enough to ensure that the court
can identify its alleged error with enough clarity to permit
it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 

, 

 (2000). “Rules of preservation are meant to ensure that
the parties’ positions are presented clearly to the trial court
and that parties are not taken by surprise, misled, or denied
opportunities to meet an argument.” State v. Berg, 

, 

 (2008), rev den, 

 (2009).
          After the trial court announced its verdicts on multiple counts, defendant asked whether “the [c]ourt made or
is the [c]ourt intending to make findings of fact and conclusions of law?” Defendant did not refer the court to any prior
document filed with the court, and defendant did not refer
the court to any one of the many offenses charged, the GEI
defense, a dispute about a combination of causes of incapacity, the appreciate-the-criminality form of incapacity, or
any other legal issue in dispute in the case. The trial court
responded that, “as the finder of fact … [it] wouldn’t normally do that in the entry of a verdict,” and the court was
never “asked for those in writing.” Defendant then reiterated, “Well … we would request that there be … findings
Cite as 

 (2021)                             591

of fact and conclusions of law.” Although defendant repeated
his generalized request, he still did not refer to any particular issue briefed or law in dispute. He did not call any
particular matter to the court’s attention.
         A request for clarification of a disputed legal standard occurs where a party presents a legal question to the
court by requesting that the trial court disclose the discrete
elements of law on a matter in dispute and on which the trial
court relies in making its ultimate conclusion. Although
defendant assumes on appeal that he made a request that
requires us to reverse the judgment, his generalized request,
following a host of verdicts, that the court make “findings
of fact and conclusions of law” did not sufficiently alert the
trial court that defendant was requesting the court to state
on the record, for the purposes of preservation and review,
what view the trial court was taking on any particular disputed point of law. Defendant’s request did not tell the court
that there was a dispute of law to address or to resolve.
         Even if criminal procedure mirrored civil procedure, such a general request for findings of fact and conclusions of law addresses the sweep of facts and issues across
all counts in the case. The trial court’s response, that the
trial court “wouldn’t normally do that in the entry of a verdict,” reflects that the trial court understood defendant
merely to be asking for findings of fact and conclusions of
law similar to a party making such a request in a civil case
pursuant to ORCP 62. The trial court was correct in that
there is no criminal law equivalent to ORCP 62. Although,
as we discussed in Colby, the trial court must clarify a disputed point of law when asked, the trial court must at least
be alerted in some way that a party is requesting that it disclose specific legal principles squarely put at issue. Because
the trial court was not alerted to the substance of any particular dispute about the elements of the GEI defense under
ORS 161.295, the defendant’s second assignment of error is
unpreserved.
         Put another way, defendant’s generalized request
did not “trigger” the trial court’s obligation to address the
elements of the GEI defense. See Colby, 

(discussing that a trial court’s obligation to disclose its
592                                                       State v. Meiser

understanding of the elements of a crime only occurs where
a party has sufficiently “triggered the trial court’s obligation”). Defendant made a request for “findings of fact and
conclusions of law” that was untethered from any issue
brought then to the attention of the court or memorandum
or other document that he had previously filed. Accordingly,
the trial court did not err in failing to elaborate on its murder verdict or to provide an exposition of the GEI defense.
                IV. DEFENDANT’S SENTENCE
         In his third assignment of error, defendant argues
that the trial court erred in imposing a sentence of life, with
no possibility of parole or release for 25 years, on defendant’s
merged convictions for murder. Defendant asserts that the
sentence is disproportionate under Article I, section 16, of
the Oregon Constitution.9 Also, defendant contends that the
trial court abused its discretion in deciding not to consider
the extreme emotional disturbance defense (EED) in its
proportionality analysis, which defendant presented for the
first time in his sentencing memorandum. The state argues
that defendant’s sentence is proportional under the Oregon
Constitution, and that the trial court did not err when it
declined to consider the EED defense on the ground that
defendant had not provided timely notice. We agree with the
state in both respects.
A.    Proportionality
         Whether a sentence is constitutionally disproportionate under Article I, section 16, is a question of law. State
v. Ryan, 

, 

 (2017). In conducting that review, we are bound by any findings of historical
fact that the trial court may have made, if they are supported by evidence in the record. 

         Article I, section 16, requires that “all penalties
shall be proportioned to the offense.” The driving principle
for deciding whether a sentence is unconstitutional under

    9
      Defendant also asserts that his sentence violates the Eighth Amendment
to the United States Constitution, but he does not develop an argument that
the sentence could violate the Eighth Amendment even if it is proportional
under Article I, section 16. Accordingly, we do not further address the Eighth
Amendment point.
Cite as 

 (2021)                            593

Article I, section 16, is whether the length of the sentence
would shock the moral sense of reasonable people. Ryan,

. The legislature has primary authority to
determine the appropriate length of punishment for a given
crime, and only in rare instances when the legislature has
exceeded its authority may a court conclude that a particular punishment is constitutionally disproportionate. 

 The
Oregon Supreme Court has identified the following three
factors for determining whether a sentence is constitutionally disproportionate to the offense, as applied to a particular defendant: “ ‘(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the
penalties imposed for other, related crimes; and (3) the criminal history of the defendant.’ ” State v. Fudge, 

, 

, rev den, 

 (2019) (quoting
State v. Rodriguez/Buck, 

, 

 (2009)).
         Defendant raises arguments about each of the three
Rodriguez/Buck factors. Under the first factor, we consider
the gravity of the defendant’s particular conduct, including
consideration of how an offender’s personal characteristics
influence his conduct, and the gravity of the statutorily
defined crime itself. Rodriguez/Buck, 

. In an
as-applied challenge, a court may also consider case-specific
circumstances, such as the characteristics of the defendant
and the victim, the harm to the victim, and the relationship between the defendant and the victim. 

 The Oregon
Supreme Court has concluded that, when considering a
defendant’s personal characteristics, a sentencing court
must consider an offender’s intellectual disability, including how the disability affects the offender’s level of understanding of the nature and consequences of his conduct and
his ability to conform his conduct to the law. Ryan, 

. In Ryan, the sentencing court committed reversible
error where the record demonstrated that the sentencing
court did not consider whether the defendant had an intellectual disability. 

.
        Under the second factor, we compare the penalty
imposed with penalties for other, related crimes. Rodriguez/
Buck, 

. The focus of that inquiry is whether
the penalties for more serious crimes result in less severe
sentences. 

 Where substantially more egregious conduct
594                                            State v. Meiser

results in the same mandatory minimum sentence as a
defendant’s conduct, the court in Rodriguez/Buck reasoned
that reasonable people would not believe the defendants’
sentences were proportioned to the defendants’ offenses in
light of the other. 

.
         Under the third factor, we determine whether the
penalty imposed is proportional by examining a defendant’s criminal history. 

. The inquiry is relevant
under a failed deterrence rationale because a defendant who
has previously been convicted of and served sentences for
other crimes has demonstrated that the previously imposed
sentences were insufficient to prevent the defendant from
returning to criminal behavior. 

         Here, as to the first factor, defendant argues that
the record does not demonstrate that the trial court considered the implications of defendant’s schizophrenia when
determining proportionality. We disagree. As discussed in
the first assignment of error, the bulk of defendant’s trial
consisted of various expert witnesses testifying as to defendant’s mental illness. At the sentencing hearing itself, the
trial court also heard, over objection, broad testimony about
defendant’s mental illness and its effect on defendant’s mental state at the time of the murder. After the trial court
heard that testimony, the trial court stated that it “believe[d]
that, based on this defendant and the totality of his history,
this crime[,] and the totality of the circumstances and this
victim and the harm caused, that this is not the rare case
where” the presumptive sentence is inappropriate. After
imposing the presumptive sentence of life, with no possibility of release or parole for 25 years, the trial court stated
that, “based on the testimony that I heard in the lengthy
trial and the additional testimony today, I think I have a
great insight into who you are and into your mental issues.”
         Given those statements, this case is distinguishable from the trial court’s error in Ryan. There, the record
contained no evidence at all that the court had considered
the defendant’s intellectual disability in the context of proportionality, because the court was unsure whether an
offender’s intellectual disability was an appropriate consideration. 

. Here, the sentencing court stated
Cite as 

 (2021)                                          595

that it had considered the “totality of the circumstances”
after allowing lengthy testimony regarding how defendant’s
schizophrenia should affect the proportionality of his sentence, which the court stated gave it “great insight … into
[defendant’s] mental issues.”
         Defendant next argues that, even if the court properly considered his mental illness, his schizophrenia lessens
the gravity of his conduct and makes the mandatory sentence
too severe. We disagree with defendant that this instance
of intentional murder was on the “lower end” of the range
of conduct encompassed within the intentional-murder statute. Although no party disputed defendant’s schizophrenia
diagnosis, defendant’s conviction for intentional murder,
ORS 163.115, was based in part on the trial court’s rejection of his GEI defense. An analysis of defendant’s personal
characteristics in this instance thus requires emphasis on
the fact that defendant was convicted of murder based on his
unexcused actions. Defendant was convicted of intentionally
causing the gravest consequence of any crime—the unprovoked death of another human being. Defendant randomly
targeted the victim based on the victim’s perceived wealth
and said that he chose to brutally attack the victim as a way
to get back at society for his own “victimization.” Defendant
said that he continued to strike the victim with the machete
until the victim no longer made any noise. Based on the
facts supporting defendant’s conviction for intentional murder, the gravity of defendant’s conduct operates to justify a
life sentence, with the possibility of parole after 25 years,
under the first factor.
         Turning to the second factor, the comparison of
the penalty imposed with the penalties for more egregious
crimes, defendant does not provide any examples of crimes
more serious than intentional murder that result in the
same sentence as defendant’s offense. Given defendant’s
failure to provide any such examples, his arguments concerning the second factor are not persuasive.10
    10
       Defendant uses the opportunity provided by the second factor to argue
that the sentencing court should have accepted his extreme emotional disturbance (EED) defense and given him the mandatory sentence for first-degree
manslaughter. We consider the EED defense in more detail below and here limit
our inquiry to the specific purpose of the second factor.
596                                           State v. Meiser

          As to the third factor, defendant does not dispute
that he has a lengthy criminal record that includes violent
assaults, burglaries, and domestic violence. Instead, defendant argues that any of his criminal history that took place
after the appearance of the first signs of his schizophrenia
in 2006 should be disregarded as irrelevant to a theory of
deterrence under the third factor. Defendant argues that
deterrence should be evaluated based on how likely defendant is to commit crimes in the future after receiving treatment for his mental illness. The state responds that there
is nothing in the record to suggest that defendant’s prior
convictions were the result of any psychotic process and that
the proper focus of a deterrence argument is on the failure
of past deterrence efforts rather than the likely deterrent
effect of future action. The state has the better argument.

         Defendant’s criminal record includes assaults, burglaries, and incidents of domestic violence that occurred
before and after 2006—the year that psychiatrists testified
that defendant’s schizophrenic symptoms started to appear.
During trial, Dr. Choi testified that, based on the reports
of those crimes and his own discussions with defendant,
there was no appearance in the record that defendant had
a delusional basis or construct at the time that he committed those crimes. Given that record, there is no evidence to
support defendant’s assertion that his criminal record is a
result of his mental illness, nor does defendant provide support for his argument that it would not be appropriate to
consider his criminal history if such evidence did exist. The
argument that defendant is unlikely to commit crimes in
the future also does not address the primary concern of the
third factor—that defendant engaged in the conduct at issue
despite past efforts at reform. Under the third factor, therefore, this is not an instance where the imposed sentence is
disproportionate based on defendant’s criminal history.

         All in all, this is not the rare case in which the
penalty imposed violates Article I, section 16. The sentence
that the trial court imposed under ORS 163.115(5)(b)—
defendant’s sentence of life imprisonment with the possibility of parole after 25 years—is not unconstitutionally
disproportionate.
Cite as 

 (2021)                             597

B.   Extreme Emotional Disturbance Defense
         In addition to challenging the proportionality of
his sentence, defendant argues that the trial court erred in
declining, due to a lack of proper notice, to consider his EED
defense, which was presented for the first time in his sentencing memorandum. We review the trial court’s decision
not to consider a belated EED defense for abuse of discretion. See State v. Pennington, 

, 

, rev den, 

 (1977).
         On appeal, defendant acknowledges that he did not
provide timely notice of his EED defense. Defendant, however, argues that “just cause” existed for his failure to provide notice of an EED defense prior to asserting the defense
in his sentencing memorandum. Defendant contends that,
because he was charged with aggravated murder, to which
EED is not a defense, defendant did not anticipate that
the trial court would find him guilty of the lesser-included
offense of intentional murder and therefore did not prepare
an EED defense prior to trial. The state responds that the
court did not abuse its discretion in rejecting the defendant’s
EED defense based on its untimeliness and further argues
that, based on the merits, the EED defense does not apply
in this case. We agree with the state that the trial court
did not abuse its discretion when it declined to consider the
EED defense and therefore do not reach the merits of defendant’s EED argument.
        Pursuant to ORS 163.115(1)(a), EED can be presented as an affirmative defense to murder. A defendant,
however, must provide pretrial notice of his intention to
present the EED defense unless the “court determines that
there was just cause for failure to file notice at the time of
defendant’s plea.” ORS 163.135(3) (2011).
         Defendant is correct that he was charged with
aggravated murder. Aggravated murder may be defined
as a murder that is committed intentionally, plus something more. State v. Wille, 

, 

(1993). Intentional murder necessarily is a lesser-included
offense of aggravated murder. 

. Defendant is
also correct that EED is a defense to intentional murder.
598                                           State v. Meiser

. The defense of EED remains available as a defense
to murder even where the charge is before the factfinder as a
lesser-included offense, rather than as a separately charged
crime, and even though EED is not a defense to aggravated
murder. 

.
         The accusatory instrument charged in six counts
that defendant “personally and intentionally caused the
death of” the victim, “a human being who was not a participant in the crime.” That language encompasses the crime
of “homicide … committed intentionally,” for which defendant was ultimately convicted under ORS 163.115(1)(a).
There was evidence from which a rational factfinder could
determine that defendant was not guilty of aggravated murder but was guilty of intentional murder. As a consequence,
defendant had sufficient notice that the court could find him
guilty of the lesser-included offense of intentional murder.
Defendant had the opportunity to prepare the associated
defense of EED before trial. Accordingly, the trial court
did not abuse its discretion when it declined to consider the
defendant’s belated EED defense.
       V. SUFFICIENCY OF THE INDICTMENT
         In his fourth assignment, defendant argues that
the trial court erred when it denied his motion in arrest of
judgment, contending that the indictment failed to state
sufficient facts to allege the crime of first-degree robbery.
Generally, we review a defendant’s claim that the indictment failed to state the crime of first-degree robbery for
errors of law. State v. Stout, 

, 

 (2016), aff’d, 

, 

 (2018).
        Defendant argues that the language used in the
indictment, charging him with two counts of first-degree
robbery, ORS 164.415, did not sufficiently allege that he had
armed himself with a “deadly weapon,” “use[d] or attempt[ed]
to use a dangerous weapon,” or “caused or attempted to
cause serious physical injury to any person.” Defendant
urges that we vacate his GEI convictions for first-degree robbery and remand with instructions to enter GEI convictions
on third-degree robbery on those counts. The state argues
that, because defendant did not file his motion in arrest of
Cite as 

 (2021)                              599

judgment until after the verdict had been announced, the
sufficiency of the indictment only fails if it does not state
any crime at all. The state argues that the indictment meets
that relaxed standard.
          An indictment should be crafted with “sufficient
particularity and certainty … in a matter of substance, to
enable the defendant to prepare for his defense and to plead
his acquittal or conviction successfully, should he be again
indicted for the same offense.” State of Oregon v. Monk, 

, 

 (1951). Although an indictment
is sufficient if it tracks the language of the relevant statute,
an indictment does not need to strictly use the language
of the statute, and other words conveying the same meaning may be used. ORS 132.540(4). A defendant may demur
to the accusatory instrument or raise a motion in arrest of
judgment to raise a claim that “the facts stated do not constitute an offense.” ORS 135.630(4); State v. Hankins, 

, 

 (2007). An indictment fails to state
facts constituting an offense under ORS 135.630(4) when it
fails to allege each of the essential elements of the offense.
State v. Wimber, 

, 

 (1992).
         When a defendant timely challenges an indictment
by demurrer, the indictment is construed strictly against the
state. Monk, 

. A court, however, does not look
with favor where an indictment is not challenged by demurrer but raised for the first time later as a delayed attack.

. If the sufficiency of an indictment is challenged after the verdict, the language of the indictment is
held to a less exacting standard and is given a “more liberal
construction.” 

.
         In this case, defendant did not challenge the sufficiency of the indictment until after the verdict, which entitles
the language of the indictment to the “liberal construction”
explained in Monk. Nevertheless, defendant argues that the
state’s use of the phrase “dangerous weapon” rather than
“deadly weapon” and absence of the specific phrase “caused
or attempted to cause serious physical injury to any person”
are fatal to the indictment. We disagree and conclude that,
after trial, the language of the indictment was sufficient to
identify the specific offense and facts at issue and to inform
600                                            State v. Meiser

defendant of the specific offense for which he was charged.
See State v. Pachmayr, 

, 

 (2008)
(stating such outcomes as the constitutional purpose of an
indictment).
         A person commits first-degree robbery if the person
violates ORS 164.395 and the person is “(a) armed with a
deadly weapon; (b) [u]ses or attempts to use a dangerous
weapon; or (c) [c]auses or attempts to cause serious physical
injury to any person.” ORS 164.415. Count 7 of defendant’s
indictment charged defendant with first-degree robbery and
alleged:
       “The defendant, on or about September 17, 2012, in
   Clackamas County, Oregon, did unlawfully and knowingly, while in the course of attempting to commit theft,
   with the intent of preventing and overcoming resistance to
   defendant’s taking of property and retention of the property immediately after the taking, and being armed with a
   dangerous weapon, threaten the immediate use of physical
   force upon [FH].”
Count 8 of defendant’s indictment also charged defendant
with first-degree robbery and alleged:
      “The defendant, on or about September 17, 2012, in
   Clackamas County, Oregon, did unlawfully and knowingly, while in the course of attempting to commit theft,
   with the intent of preventing and overcoming resistance to
   defendant’s taking of property and retention of the property immediately after the taking, and being armed with
   a dangerous weapon, use or threaten the immediate use of
   physical force upon [MH].”
The charges were less than perfect. They state that defendant
was “armed with a dangerous weapon” (rather than armed
with a deadly weapon; or, rather than used or attempted to
use a dangerous weapon), and they state that defendant
“threaten[ed] the immediate use of physical force” upon FH
and MH, respectively (rather than uses or attempts to use
a dangerous weapon or rather than causes or attempts to
cause serious physical injury).
        Nevertheless, in light of the liberal construction
to which the indictment is entitled after trial, the phrases
in the indictment may be read together to provide the
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 (2021)                                    601

necessary notice of the charges. The phrases may be fairly
understood to charge that, because he had used or threatened the immediate use of physical force while armed with a
dangerous weapon, defendant had used or threatened to use
a dangerous weapon. The language of the indictment was
sufficient to inform defendant of the specific offenses and
facts that would be at issue. The indictment plainly referred
to the events of September 17, 2012.
         The record reflects that defendant was fully aware
of the events to which the indictment referred. The trial
evidence indicates that, when defendant was in the couple’s
home, he was armed with a machete and a knife, both of
which satisfy the “deadly weapon” element of first-degree
robbery. The evidence at trial is considered when evaluating the sufficiency of the indictment. See Monk, 

 (indictment was not “fatally defective” where it failed to
allege facts satisfying the element that an organization was
a corporation where evidence at trial was then offered and
admitted which proved that fact). Some time ago, the court
explained:
   “Though the indictment is defective in the respects noted,
   nevertheless, it is not fatally defective. It is merely a defective statement of the offense charged. The defect was cured
   by the verdict. In 42 C.J.S., Indictments and Informations,
   § 319, page 1348, appears the following: ‘ … After verdict,
   it is only a failure to allege, even imperfectly, any crime
   known to the law that can be raised. It has been variously
   stated that an indictment or information will not be held
   [invalid] after verdict unless it fails in some essential averment necessary in the description of the crime, or unless
   the indictment is void, charges no offense, and is wholly
   insufficient to intercept the running of the statute of limitations ….’ ”
Monk, 

 (emphasis added). The indictment,
aided by trial evidence, adequately served to charge defendant with first-degree robbery. The trial court did not err in
denying defendant’s motion in arrest of judgment.
                      VI. CONCLUSION
        In sum, the evidence permitted the factfinder to
reject defendant’s GEI defense as to the lesser-included
602                                           State v. Meiser

murder charge. Defendant failed to make an appropriate
request at trial so as to challenge on appeal the trial court’s
failure to elaborate on the murder verdict or any legal dispute about the GEI defense. Defendant’s life sentence is not
constitutionally disproportionate. The indictment, aided
by trial evidence, was sufficient to allege first-degree robbery. Therefore, the trial court did not err in rendering its
judgment.
        Affirmed.