356
Argued and submitted May 3, reversed July 14, petition for review allowed
November 4, 2021 (368 Or 702)
See later issue Oregon Reports
STATE OF OREGON,
Plaintiff-Respondent,
v.
H. D. E.,
Defendant-Appellant.
Umatilla County Circuit Court
19CR07787; A171975
493 P3d 1123
Defendant reported to police that a doctor had harassed and assaulted her
children in a medical office waiting room during her husband’s medical appointment. Although the portion of defendant’s report relating to the harassment was
true, she was convicted of one count of initiating a false report, ORS 162.375,
after video evidence revealed that she had lied about the assault. She appeals,
arguing that the trial court erred in denying her motion for judgment of acquittal
because, although the portion of the report relating the assault was false, the
remaining portions were true. The state argues that the trial court correctly
denied defendant’s motion because any false report of a crime violates the statute. Held: The trial court erred in denying defendant’s motion. When a report
contains both true and false information, to violate ORS 162.375, the state must
prove that defendant’s false statements resulted in some expenditure of state
resources in excess of what would have been occasioned by the true statements
alone. Here, the state did not provide any evidence as to whether the assault
claims resulted in a greater expenditure of resources than would have resulted
from the harassment claims alone.
Reversed.
Jon S. Lieuallen, Judge.
Peter G. Klym, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
Cite as 313 Or App 356 (2021) 357
KAMINS, J.
Reversed.
358 State v. H. D. E.
KAMINS, J.
Defendant appeals a judgment of conviction for one
count of initiating a false report, ORS 162.375. Defendant
reported to police that a doctor had harassed and assaulted
her children in a medical office waiting room during defendant’s husband’s medical appointment. The trial court concluded that, although the doctor may have harassed the
children and engaged in disorderly conduct, the allegations
of assault were unfounded, and the trial court therefore convicted defendant. Defendant contends that the trial court
should have granted her motion for judgment of acquittal,
because much of the report, specifically the allegation that
the doctor had harassed the children, was true.1 We agree
with defendant and therefore reverse.
On August 27, 2018, defendant and her four children were waiting in the reception area of a medical clinic
in Hermiston for her husband to complete an appointment.
One of the doctors went to the reception area to investigate
a “racket” he could hear from his office. The doctor observed
that several of defendant’s children were “playing, just
like a family would.” The source of the “racket” was that
one of the children was throwing Legos into their storage
container “from up above.” The doctor first told defendant,
who was reading a magazine, to control her children. When
the children continued to make noise and engage in “roughhousing,” the doctor became upset and scolded the children,
ordering them to sit down and behave. When the doctor bent
down to pick up a toy, he “glanced off” one child’s leg and the
child “scuttled away.” Defendant also became upset and said
that she could sue, a comment to which the doctor responded
with profanity.
Ten minutes after the incident, defendant called the
Hermiston Police Department to report it. Officer Wallis, a
patrol officer, met with defendant about 30 minutes after her
call. According to Wallis, defendant reported that the doctor
became upset that her children were being a little loud and
1
Defendant also argues that the trial court erred in admitting evidence
that she had allegedly made false statements on a prior occasion for financial
gain. Given our disposition on defendant’s first argument, we need not reach that
issue.
Cite as 313 Or App 356 (2021) 359
got inches from their faces, yelling profanities at them and
ordering them to clean up and sit down. Defendant also told
Wallis that the doctor had forcefully shoved one of her children and pushed her son into a refrigerator, causing a possible injury. Defendant demanded that the doctor be arrested
for assault. The next day, defendant told Wallis that she
took her son to the hospital and that he was suffering from
a contusion and a possible concussion.
Surveillance video from the medical waiting room
revealed that the doctor was visibly angry when communicating with defendant and her children, but refuted defendant’s claim of any shoves to the children. Additionally,
Wallis’s independent observation, as documented by photographs and corroborated by the emergency room nurse, did
not indicate any injury to the child, although the chart notes
indicated the presence of a contusion.
Defendant was charged with initiating a false
report, in violation of ORS 162.375. At the close of the state’s
case, defendant moved for a judgment of acquittal, arguing
that the evidence was insufficient to prove that she had filed
a false report, because the portions of the report relating to
the crime of harassment were true, even if the description
of the assault was inaccurate. The trial court denied the
motion, and, after a bench trial, found defendant guilty. The
court observed that the guilty verdict was
“not for calling in and saying there’s issues or [the doctor]
was yelling and pointing. … If it was the other, just that
he was harassing my children, yelling and screaming at
us, disorderly conduct-type stuff, I wouldn’t find you had
violated the law. But it’s mostly because of the assaultive
nature, the different allegations there, which I don’t think
there’s any—I haven’t heard any facts to support them.”
On appeal, defendant renews her argument that
she could not be convicted of initiating a false report,
because much of the report was true. The state responds
that, regardless of whether the portion of the report relating
to harassment was true, the portion relating to assault—a
separate crime from harassment—was not, and defendant
was therefore guilty of initiating a false report as to that
crime.
360 State v. H. D. E.
“We review the trial court’s ruling on defendant’s
motion for judgment of acquittal to determine whether,
viewing the facts and reasonable inferences that may be
drawn from those facts in the light most favorable to the
state, a rational trier of fact could have found the essential
elements of the crime proved beyond a reasonable doubt.”
State v. Borden, 307 Or App 526, 528,
476 P3d 979 (2020).
The crime of initiating a false report requires that
a person “knowingly initiate[ ] a false alarm or report that
is transmitted to a fire department, law enforcement agency
or other organization that deals with emergencies involving
danger to life or property.” ORS 162.375. A person “initiates” a false report if the person’s communication “begin[s]
or mark[s] the beginning of informing the organization
about the circumstances that are the subject of the report.”
State v. Branch, 362 Or 351, 362,
408 P3d 1035 (2018) (internal quotation marks omitted). For purposes of the statute,
a “report” is “a communication that informs a law enforcement agency or other emergency organization that a situation exists of a type to which the organization would respond
with an expenditure of resources.”
Id.
The statute does not criminalize any false statement to police, it only prohibits those false statements that
would initiate an investigation. State v. McCrorey, 216 Or
App 301, 306,
172 P3d 271 (2007). Specifically, under Branch,
when a criminal investigation is already underway, a person
does not violate ORS 162.375 “by falsely confirming or denying knowledge of a report or alarm that already is under
investigation, or by falsely conveying information about circumstances to which the agency would be unlikely to devote
resources, except for whatever relevance the information
may have to an existing criminal investigation.” Branch,
362 Or at 362.
Correlatively, when a criminal investigation is
not yet underway at the time of a report containing both
true and false statements, to prove that a defendant initiated a false report through the inclusion of the false statements, the state must prove either that (1) the false statements resulted in an expenditure of investigatory resources
beyond that which would have resulted based on the true
Cite as 313 Or App 356 (2021) 361
statements alone; or (2) if no investigation occurs, that the
false statements would have “start[ed] the ball rolling” on
an expenditure of resources beyond that which would have
been triggered by the true statements alone. See id. at 366
(explaining that a false statement “initiates” an investigation if it “starts the ball rolling” on a law enforcement
response to a newly reported crime). This is in keeping with
the remedy supplied by the legislature in the statute. The
legislature provided that a person convicted of initiating a
false report must pay the law enforcement costs in responding to the report. ORS 162.375(3)(a). There is no indication,
however, that the legislature intended to impose financial
responsibility for law enforcement costs that would have
resulted absent the false statements, indicating that the
legislature did not intend to criminalize those statements
that do not, or would not, add to the expenditure of resources
occasioned by true information.
There is no dispute that defendant “initiated” a
report to the Hermiston Police Department, because it
“marked the beginning” of the police investigation. There is
also no dispute, for purposes of our standard of review, that
the report contained some false information and some true
information. Defendant accurately reported facts that could
constitute the crime of harassment2 and falsely reported
facts that could constitute the crime of assault.
Accordingly, the only remaining question is whether
the false statements contained in defendant’s report concerned a situation to which the police department “would
respond with an expenditure of resources” beyond the
expenditure of resources triggered by the true statements.
Here, the record undisputedly reflects that the report defendant initiated actually resulted in a law enforcement investigation. However, because the legislature only intended to
punish false statements that would trigger the expenditure
of law enforcement resources other than those triggered
by the true statements, the question is whether defendant’s false statements did that in this case. Specifically,
2
As relevant here, a person commits the crime of harassment by “(A) [s]ubjecting … [another] person to offensive physical contact; or (B) [p]ublicly insulting … [another] person by abusive words or gestures in a manner intended and
likely to provoke a violent response.” ORS 166.065(1)(a).
362 State v. H. D. E.
a rational trier of fact could find that element satisfied if
the record permits the conclusion that, but for the false
part of defendant’s report—that the doctor had assaulted
her children—the police investigation either would not have
occurred or, instead, would have entailed a lesser expenditure of resources. By contrast, if the true statements in
defendant’s report—that the doctor approached her children
closely, yelled at them, and touched one of them—would
have triggered the same investigation absent the inclusion
of the assault information, then the false information simply
provided false details in an otherwise valid report.
The record is silent on whether the harassment
information would justify a law enforcement response different from the assault information. The state, which bears
the burden to prove each element of the crime, proffered
no evidence as to how the law enforcement response could
be parsed. Indeed, Officer Wallis testified that his initial
thought in response to defendant’s report was that, if a crime
was committed, it was the crime of harassment, not assault.
Despite that belief, Wallis continued to expend law enforcement resources to investigate that crime. Given the absence
of any evidence that defendant’s false statements would
generally lead to, or actually caused, the expenditure of any
resources different from what would have been expended
as a result of the truthful information, a rational trier of
fact could not conclude that defendant’s false statements on
their own resulted in a law enforcement response different
in scope from that which would have resulted from the true
statements on their own. Accordingly, the trial court erred
in denying the motion for judgment of acquittal.
The state argues that it does not matter if defendant accurately reported facts supporting the crime of
harassment, because she also reported a separate crime of
assault, and any false report of a crime violates the statute.
However, under Branch, the critical inquiry is whether the
false information would trigger law enforcement to expend
resources; it does not depend on whether the person making
the report accurately named the crime. In Branch, police
located the driver in a suspected hit and run who falsely
claimed he had left the scene of the accident because the
other driver had pointed a gun at him. 362 Or at 354.
Cite as 313 Or App 356 (2021) 363
Although the driver did not initiate the involvement of law
enforcement because police were already investigating the
hit and run, his false information triggered a new investigation of a separate crime and therefore violated ORS 162.375.
Id. at 361. Conversely, any false statement the driver made
about his own intoxication—even if it alerted the police to
the crime of driving while intoxicated—would not violate
the statute, because it related to an ongoing investigation of
the hit and run. Id. Many reports could describe facts that
constitute more than one crime, some of which prove to be
false. For example, an accurate report of theft that included
the false detail that the suspect was trespassing would not
violate the false reporting statute, because the expenditure
of resources would already have been initiated by the theft
report.
Under Branch, the question is not whether the false
details in an otherwise true report of a crime themselves
contain the elements of a crime, but whether false allegations initiating an investigation would trigger the expenditure of additional law enforcement resources beyond those
expended based on true information in the report. In cases
where the “false report” contains both true and false information that could trigger a law enforcement response, the
state must prove that the false statements either did (or
would have) “gotten the ball rolling” on the expenditure of
resources. Because the record does not contain any such evidence, defendant was entitled to a judgment of acquittal.
Reversed.
