State v. Prophet

                                       330

       Argued and submitted October 20, 2020, affirmed March 16, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                JOSIE CHRISTY ANN PROPHET,
                      Defendant-Appellant.
                  Harney County Circuit Court
                      18CR84172; A171101
                                   

     Defendant appeals a judgment of conviction for resisting arrest, ORS
162.315, arguing that the trial court erred by refusing to deliver her proposed
jury instruction stating that an individual must intentionally create a substantial risk of harm to be convicted of resisting arrest. Held: For statutes within
the Criminal Code, every element other than venue, statute of limitations, and
the like requires a culpable mental state. ORS 161.095(2). For statutes that contain an explicit mental state, that mental state applies to each nonprocedural
element of the crime unless the text, context, and legislative history are clear
that the legislature intended otherwise. ORS 161.115(1). Regarding the resisting
arrest statute, ORS 162.315, the element of creating a substantial risk of injury
requires a mental state, but evidence of legislative intent affirmatively rebuts the
presumption that “intentionally” should be that mental state.
    Affirmed.



    W. D. Cramer, Jr., Judge.
   Stacy M. Du Clos, 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.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
    KAMINS, J.
    Affirmed.
Cite as 

 (2022)                                              331

            KAMINS, J.
        Defendant was convicted of resisting arrest, ORS
162.315, after attempting to prevent a police officer from
arresting her for driving under the influence of intoxicants.
She appeals, arguing that the trial court erred in refusing to deliver her proposed jury instruction stating that an
individual must intentionally create a substantial risk of
harm to be convicted of resisting arrest.1 We conclude that
the trial court did not err in refusing to give defendant’s
proposed instruction because ORS 162.315 does not require
that a defendant intentionally created a substantial risk of
harm. Accordingly, we affirm.
                   I. FACTUAL BACKGROUND
         The relevant facts are undisputed. At 4:00 p.m. on
April 11, 2018, Oregon State Police Trooper Held was dispatched to locate a silver Toyota Camry that was reportedly
being driven by someone under the influence of intoxicants.
Held located the vehicle parked on the shoulder of the road
between Burns and John Day, observing that the engine
was still running, and defendant was asleep in the driver’s
seat. Held knocked on the window to awaken defendant
and asked her a few questions, which defendant answered
politely. However, Held observed that defendant’s movements were slow and that she had watery, bloodshot eyes,
and droopy eyelids—all indicators of alcohol impairment.
          Held asked defendant to perform field sobriety
tests, at which point defendant’s demeanor changed “drastically.” Defendant appeared noticeably more upset and
began to alternate between cursing loudly and sitting on the
ground crying. Due to defendant’s irritability, Held began
to suspect that she was under the influence of methamphetamine rather than alcohol and informed her that she was
under arrest for driving under the influence of intoxicants.
Held approached defendant and attempted to put her hands
behind her back, but she became rigid and attempted to
pull her arm closer to her body and away from Held. Held
warned defendant that he would consider anything further
to be resisting, but defendant continued to scream “[n]o”
   1
       We reject defendant’s remaining assignment of error without discussion.
332                                                      State v. Prophet

and that she “wasn’t doing this.” With the help of Harney
County Sherriff’s Deputy Nisbet, who had just arrived on
scene, Held attempted to force defendant down to her knees
using a “modified arm bar” technique so that he could place
handcuffs on her. Although defendant continued to try and
pull away, the technique succeeded, and Held was able to
complete the arrest. As Held and Nisbet attempted to walk
defendant over to the patrol car, defendant dragged her toes
on the pavement, forcing them to carry her.
        After a search incident to arrest yielded drug paraphernalia that tested positive for methamphetamine residue, the state charged defendant with both possession of
methamphetamine, ORS 475.894 (2018),2 and resisting
arrest, ORS 162.315. At trial, defendant requested a jury
instruction that, to be convicted of resisting arrest, the jury
had to find that she acted “with a conscious objective to
create a substantial risk of physical injury to any person.”
The trial court refused to give defendant’s proposed instruction, however, explaining that the statute does not require
proof that defendant intended to create a substantial risk
of physical injury. Rather, the court reasoned, the intent
requirement applies only to the statute’s conduct element:
“use or threatened use of violence, physical force or any
other means.” Defendant was later convicted of resisting
arrest.
         On appeal, defendant assigns error to the trial
court’s refusal to give her proposed instruction. She argues
that ORS 162.315 requires proof that defendant intended to
create a substantial risk of injury and that she was therefore entitled to have her proposed jury instruction given.
                    II. STANDARD OF REVIEW
         We review a trial court’s jury instructions for legal
error. State v. Harper, 

, 

(2019). “A trial court commits reversible error when it incorrectly instructs the jury on a material element of a claim
or defense and that instructional error permits the jury to
reach a legally erroneous result.” 

   2
       Amended by Ballot Measure 110 (2020); Or Laws 2021, ch 591, §§ 36, 39.
Cite as 

 (2022)                                333

                       III.   ANALYSIS
         Under ORS 162.315, a person may not “intentionally resist” someone “known by the person to be a peace
officer or parole and probation officer in making an arrest.”
Paragraph (2)(b) defines “resist” in relevant part as:
   “the use or threatened use of violence, physical force or
   any other means that creates a substantial risk of physical injury to any person and includes, but is not limited
   to, behavior clearly intended to prevent being taken into
   custody by overcoming the actions of the arresting officer.”
ORS 162.315(2)(b). Here, the parties dispute to which portions of that definition the modifier “intentionally” applies.
         Defendant argues that the intent requirement in
ORS 162.315 applies to each part of the definition of resisting: that a defendant must (1) intentionally use or threaten
to use violence, physical force, or any other means to
(2) intentionally create a substantial risk of physical injury
to any person. That is evident, in defendant’s view, for two
reasons. First, conduct can only constitute “resisting” if it
satisfies the second part; that is, if it creates a substantial
risk of physical injury to any person. Thus, the legislature
likely intended the mental state of intent to apply to both
parts of the prohibited conduct. Second, even if the legislature had not specifically intended the intent requirement in
ORS 162.315 to apply to the creation of a substantial risk of
physical injury, it is nevertheless required by Oregon’s statutory scheme governing the construction of statutes with
respect to the requisite mental state.
         In response, the state argues that defendant’s
interpretation is inconsistent with the text of ORS 162.315,
which specifies that behavior “clearly intended to prevent
being taken into custody” violates the statute regardless
of whether defendant intends to create any risk of physical injury. The state contends that its interpretation is further bolstered by legislative history, where prior drafts of
the statute more clearly indicated that the intent requirement was meant to apply only to the act of preventing defendant from being taken into custody—not to the creation of
a risk of injury. To resolve the issue, we must answer two
questions: does the element of creating a substantial risk
334                                          State v. Prophet

of injury require a culpable mental state, and if so, is that
mental state intentionally?
A. Overview of Culpability Provisions
         Determining which culpable mental state attaches
to which elements of a crime is a “chronically vexing problem.” State v. Schodrow, 

, 

(2003). The problem largely stems from the interaction of two
different sets of statutes governing the analysis. First, as
always, we construe the statute defining the crime to “pursue the intention of the legislature if possible.” ORS 174.020.
However, for the purpose of construing the requisite mental
state in criminal statutes, the legislature has also supplied
a separate set of default rules which, “[a]s the courts have
repeatedly pointed out since 1978, … are confusing.” State
v. Ruggles, 

, 

 (2010) (citing
State v. Blanton, 

, 

 (1978)).
          Those general culpability statutes for the most part
reflect the legislature’s policy choice to “use the Model Penal
Code (MPC) approach to culpability.” State v. Owen, 

, 

 (2022). A key objective of the
Model Penal Code (MPC) is to “limit the condemnation of
conduct as criminal when it is without fault.” ORS 161.025
(1)(d); Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 11, 11 (July 1970) (“The Commission follows the Model
Penal Code in expressing a policy adverse to use of ‘strict
liability’ concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment.”). At its core,
“[t]he MPC approach is based on the principle that, to be
criminally liable, a person must know or have reason to
know ‘the facts that give his conduct its offensive character.’ ” State v. Olive, 

, 113 n 2, 

(2013) (citing MPC § 1.13 comment at 211). As a result, the
MPC requires, and Oregon adopted, a culpable mental state
for “each material element” of the crime. Id.; ORS 161.095(2).
        Oregon’s culpability statutes are the legislature’s
attempt to effectuate the general goal of requiring a culpable mental state for each of a crime’s material elements.
Under ORS 161.095(2), “a person is not guilty of an offense
unless the person acts with a culpable mental state with
Cite as 

 (2022)                                                 335

respect to each material element of the offense that necessarily requires a culpable mental state.” That statute creates two questions: (1) What are the “material elements that
necessarily require a mental state”?; and (2) What “culpable
mental state” should apply to those elements?3
         Turning to the second question first, the legislature supplied statutory default rules to aid in determining
which mental state to apply. ORS 161.115. Those rules differ depending on whether a criminal statute contains an
explicit mental state, governed by ORS 161.115(1), or not,
governed by ORS 161.115(2). If a statute defining a criminal offense explicitly provides a mental state, that mental state typically applies to “each material element of the
offense that necessarily requires a culpable mental state.”
ORS 161.115(1); State v. Simonov, 

, 

 (2016) (“If a statute defining an offense in the Criminal
Code includes a single mental state ‘but does not specify the
element to which it applies, the prescribed culpable mental
state applies to each material element of the offense.’ ”).
         If the statute defining a criminal offense does not
contain an explicit mental state, we must assess which mental state to apply by evaluating the type of element at issue.
ORS 161.115(2); ORS 161.085(7) - (10). Typically, “ ‘conduct’
elements require proof of an intentional or knowing mental state, ‘result’ elements require proof of an intentional,
reckless, or criminally negligent mental state, and ‘circumstance’ elements require proof of a knowing, reckless, or
criminally negligent mental state.” Simonov, 

-
40. Determining whether an element is a circumstance, conduct, or result element “ultimately is a matter of legislative
intent.” 

.

     3
       Although not at issue here, the same analysis applies to statutes outside the
Criminal Code that impose criminal liability unless the legislature clearly indicates an intent to dispose of the mental state requirement. See ORS 161.105(1) (a
culpable mental state is not required if “[a]n offense defined by a statute outside
the Oregon Criminal Code clearly indicates a legislative intent to dispense with
any culpable mental state requirement for the offense or for any material element
thereof”); see also State v. Rainoldi, 

, 

 (2011) (describing analysis for crimes outside the Criminal Code as a “sequence” where it is
first determined whether the legislature intended to dispose of the mental state
requirement and then determined, in the same manner as for statutes within the
Criminal Code, which mental state applies to which element).
336                                            State v. Prophet

        The remaining question under ORS 161.095(2) is:
What are the elements that “necessarily require a mental
state”?
B.    Determining Which Are the “Material Elements that
      Necessarily Require a Mental State”
         Oregon appellate courts have been inconsistent
when determining what are the material elements of the
offense that necessarily require a culpable mental state.
The difficulty stems from the language of ORS 161.115(1)
and ORS 161.095(2), requiring the application of a culpable
mental state for “each material element of the offense that
necessarily requires a culpable mental state.” That “tautological” phrase “introduces a confusing appearance of circularity in the text.” State v. Andrews, 

, 

 (2001), overruled in part on other grounds by State
v. Rutley, 

, 

 (2005) (musing
that the phrase “has bedeviled us”); Blanton, 

;
see also Rutley, 

, aff’d in part, rev’d in part,

, 

 (2007) (“[T]hat rule, which appears
in no other state or federal jurisdiction, is gibberish.”).
         Like the question of which mental state to apply,
the question of which elements require culpable mental
states has, at times, been treated differently when a statute
contains an explicit mental state and when it does not. For
statutes that do not contain a mental state, the Supreme
Court has clarified the analysis by setting out several “core
principles.” State v. Haltom, 

, 

(2020) (quoting Simonov, 

). First, the statute defining the offense, read with the assistance of the general culpability provisions, is the source of the appropriate
mental state. 

 Second, a culpable mental state is required
for each material element of the crime except for those relating to the statute of limitations, jurisdiction, venue, and the
like. 

 To determine which mental state to apply, courts
look to the “default” rules contained in ORS 161.085 as a
“guideline.” Id. at 802.
         As discussed above, the default rule governing
statutes without a mental state requires an evaluation of
the type of element at issue—conduct, circumstance, or
result. Id. at 798-99. To determine the appropriate mental
Cite as 

 (2022)                            337

state, the “initial[ ] focus” is on whether the legislature
that enacted the criminal statute intended the element at
issue as a “circumstance or as part of the conduct that the
statute proscribes.” 

. After reviewing the legislative history of the statute defining the criminal offense to
answer the question of what type of element the legislature
intended, the court next reviews the same history to look for
any evidence of which mental state the legislature intended
to attach. 

 That evidence “should then be considered to
confirm or rebut any tentative conclusion reached under the
default rule analysis.” 

 Thus, despite the existence of the
“default” culpability rules such as ORS 161.115(2), the question of the appropriate mental state to apply is ultimately a
matter of the intent of the legislature enacting the criminal
statute. 

.
         Left unresolved by Simonov and Haltom was
whether that analysis of which are the “material elements
that necessarily require a mental state” is the same for statutes that contain an explicit mental state. The Supreme
Court has recently answered that question in the affirmative. Owen, 

. But this court’s case law has,
at times, taken various analytic approaches to determining
which elements are material when a statute contains an
explicit mental state.
         The conflicting body of case law, summarized below,
appears to stem from the requirement of ORS 161.115(1)
that any explicit mental state must apply to “each material element of the offense that necessarily requires” one.
As described below, in the face of legislative history revealing that the legislature did not intend an explicit mental
state to apply to a circumstance or result element, courts
have treated the phrase “element that necessarily requires
a mental state” as malleable when necessary to effectuate legislative intent. Such treatment cannot survive after
Simonov, Haltom, and Owen.
C. Background of Determining Material Elements for
   Statutes that Contain an Explicit Mental State
       Nearly 50 years ago, the Supreme Court determined that the framework described in Simonov applied
338                                          State v. Prophet

to statutes that contain an explicit mental state. Without
much analysis, the court reasoned that the phrase in ORS
161.115(1) “necessarily requires a culpable mental state”
appeared to create a distinction based on whether the element at issue is one that “defin[es] the substance or quality
of the forbidden conduct” or relates “solely to the statute of
limitations, jurisdiction, venue and the like.” Blanton, 

. The court simply observed: “The [C]ourt [of Appeals]
concluded that the phrase apparently was meant to distinguish those elements defining the substance or quality of
the forbidden conduct from others relating, in the explanation of the Criminal Law Revision Commission, ‘solely to the
statute of limitations, jurisdiction, venue and the like,’ and
the state offers no contrary explanation.” 

         Subsequent decisions quickly began expanding the
types of elements that do not require proof of a culpable
mental state despite the language of ORS 161.115, moving
toward an approach that distinguished “attending circumstances” as ones that do not require a mental state. In State
v. Van Norsdall, for example, we explained that Oregon’s
statute prohibiting felons from possessing firearms does not
require proof that defendant knew that he or she was a felon.

, 

, rev den, 

, and
rev den, 

 (1994), overruled by State v. Rainoldi,

, 

 (2010). We reasoned that the
status of being a felon is an “attending circumstance[ ]” more
like “venue, jurisdiction, statute of limitations and the like”
because it “exist[s] outside the actor’s state of mind.” Id. at
304-05; see also State v. Walker, 

, 

 (1996) (for purposes of delivering a controlled substance within 1,000 feet of a school, no culpable mental state
is required with respect to distance from school because
the location of the offense is “an attendant circumstance of
the underlying criminal conduct of delivery of a controlled
substance”).
         Recognizing that we were beginning to deviate
from the distinction set out in Blanton, in State v. Engen, we
set about reexamining prior decisions in an effort to clarify
the analysis. 

, 

 (1999),
rev den, 

 (2000). We observed that, although the
approach has varied at times, “the most consistent theme
Cite as 

 (2022)                             339

has been a search for legislative intent: Did the legislature
intend to require proof of a culpable mental state with respect
to a particular material element?” Id. at 603. Accordingly,
we explained, the inquiry reduces to an examination of the
statute’s text, context, and legislative history according to
the standard statutory construction methodology. See id. at
603-04. Applying our new test, we concluded that Oregon’s
statute prohibiting possession of a controlled substance did
not require proof that defendant knew the specific type of
controlled substance possessed because the legislature did
not intend it to. Id. at 609.
         The following year, we again attempted to clarify
the analysis when evaluating an ordinance prohibiting
a person from carrying a firearm in Portland city limits.
Andrews, 

. “Disavow[ing]” the distinction
of “attendant circumstances,” we acknowledged that “[f]or
nearly 30 years, we and the Supreme Court have struggled
… in attempting to develop a principled approach as to
which elements of criminal offenses require culpable mental states and which do not,” leading to a “patchwork of
appellate decisions [that] has not been entirely consistent.”

 (internal quotation marks omitted).
Despite the inconsistency in the case law, we were able
to derive one “clear principle” that “a circumstance [that]
transforms otherwise innocent conduct into criminally culpable conduct” is a material element necessarily requiring
a culpable mental state. 

. We also observed that,
at least for crimes outside the Criminal Code and subject to
the provisions of ORS 161.105(1)(b), that principle does not
apply if “there is a clear indication of legislative intent to
dispense with any culpable mental state requirement.” 

(internal quotation marks omitted).
         That “principle,” as well as Engen’s focus on legislative history, was short-lived, as “neither ha[d] ever been
applied in a subsequent case.” Rutley, 

.
Three years later in Schodrow, we again changed the
analysis when evaluating whether, to commit the crime of
unlawful possession of a firearm, the defendant must know
that the object possessed is a firearm. 

.
Rather than follow Engen and examine the legislative intent
behind the statute defining the offense, or follow Blanton
340                                                         State v. Prophet

and decide whether that element relates solely to statute of
limitations, venue, and the like, we simply declined to enter
the “thicket of case law” surrounding the statutes governing
the construction of mental culpability requirements. 

. Instead, we concluded that the statute itself provided
a complete answer by prescribing a culpable mental state
of “knowingly.” 

 We explained that, under the definition
provided in ORS 161.085(8), acting “knowingly” means acting with “an awareness that the conduct of the person is of
a nature so described or that a circumstance so described
exists.” 

. Thus, because carrying “a firearm” is part
of “the nature of the conduct or a circumstance described by
the statute, a person must be aware that the object he or
she is carrying is a firearm.” 

 Anything less “would render the prescribed culpable mental state a nullity and would
effectively convert the crime into a strict liability offense.”

          Over the next several years, we regularly applied
the Schodrow methodology to cases with the express mental
state of “knowingly” rather than interact with the phrase
“material element that necessarily requires a culpable mental state.” 4 In State v. Dixon, we concluded that the crime
of permitting a minor to enter a place with drug activity
required that the defendant was aware that the person
was a minor because age was “a necessary circumstance
of the offense” and therefore the mental state of knowingly
required an awareness of it. 

, 

 (2004). In State v. Lane, we concluded that a defendant
cannot be convicted of escape from a correctional facility,
ORS 162.155(1)(c), without demonstrating that he had an
awareness of a necessary circumstance of the offense—that
is, that what he escaped from was, in fact, a correctional
facility. 

, 

 (2005).
          In State v. Jones, we again determined that “material element that necessarily requires a mental state” was
     4
       At times, we framed the inquiry as a grammatical one that still did not
require an evaluation of whether an element was a material one necessarily
requiring a mental state. See State v. Travalini, 

, 

 (2007), rev den, 

 (2008) (“As a matter of grammar … it is not at
all clear how far down the sentence the word ‘knowingly’ is intended to travel.”);
see also Schodrow, 

-30 (quoting Wayne R. LaFave & Austin W.
Scott, Jr., Criminal Law § 27, 193 (1972)).
Cite as 

 (2022)                                       341

flexible enough to effectuate the intent of the legislature
enacting the criminal offense. 

, 

 (2008), rev den, 

 (2009). In that case, we were
called upon to determine whether the explicit mental state of
intent in the first-degree theft statute, ORS 164.055, applies
to the element that the value of the property stolen is $750 or
more.5 Rather than simply apply the statute’s explicit mental state to that nonprocedural element, we opted instead
to examine the text, context, and legislative history of the
theft statute to conclude that the value of the object stolen
was not a “material element of the offense that necessarily
requires a culpable mental state.” Jones, 

.
We noted that, grammatically, the intentional mental state
immediately preceded and modified only the act of “taking, appropriating, obtaining, or withholding property from
an owner” in ORS 164.015. 

. Moreover, requiring
proof that defendant intended to steal property worth $750
or more would work against the statute’s “obvious legislative purpose” and impose similar requirements on other
parts of the statute that would not make sense. 

 at 620-
21 (explaining that requiring intent to steal property worth
$750 would impose similar requirements for other prongs
of the statute, such as requiring defendant to specifically
intend to steal a “livestock animal” or steal property during
a “catastrophe”).
         In Rainoldi, we reexamined the “thicket” of case
law in light of the then-recent revisions to our statutory construction methodology that permitted consideration of legislative history regardless of whether the text of a statute is
ambiguous. 

 (citing State v. Gaines, 

, 

 (2009)). We reconsidered the same
issue as Van Norsdall and came to the opposite conclusion,
that a defendant must know they are a felon to commit the
crime of being a felon in possession of a firearm. Rainoldi,

. Looking for the first time to the legislative history of ORS 161.095, we explained that the drafters
intended the phrase “material element of the offense that
necessarily requires a culpable mental state” to encompass
all elements “that are relevant to the harm or evil incident
   5
     The requisite value has subsequently been raised to $1000 by Or Laws
2009, ch 16, § 3.
342                                                        State v. Prophet

to the conduct sought to be prevented” by the statute. Id. at
147. By contrast, the phrase was not meant to include elements relating solely to “venue, jurisdiction, statute of limitations, and the like.” Id.6
         That tortured case law suggests that one fundamental question remained when reviewing cases that are encompassed by ORS 161.115(1) as opposed to ORS 161.115(2): Did
the rule that any nonprocedural element is a material element that necessarily carries a mental state eliminate any
consideration of the intent of the legislature enacting the
criminal statute if that statute specifies a mental state?
D. Construction of ORS 161.115(1)
         As discussed above, ORS 161.095(2) implements
the MPC’s default imperative that every material element
in every criminal offense carry a mental state. As recently
clarified in Owen, the identical language in ORS 161.115(1)
is not to be interpreted differently. The same test applies to
every criminal statute whether or not that statute contains
an explicit mental state: an element is material and requires
a culpable mental state unless it relates solely to the statute
of limitations, jurisdiction, venue, or similar matters. Owen,

. That interpretation comports with the legislative intent to follow the MPC approach of requiring a
culpable mental state for all nonprocedural elements of a
crime, whether or not the legislature explicitly provided one.

.
        To the extent that our conflicting and inconsistent
case law interpreting the first-degree theft statute suggests that some nonprocedural elements are not “material,”
and therefore carry no mental state at all, we disavow that
analysis. See e.g., State v. Stowell, 

, 

 (2020) (citing Jones, 

) (reasoning that
     6
       The Supreme Court ultimately reversed our decision in Rainoldi, but it did
so on the ground that the legislature had clearly intended to dispense with a
mental state requirement for ORS 166.270, an offense outside the Criminal Code.
For that reason, it did not address whether a particular element was a material element of the offense that necessarily required a culpable mental state. See
Rainoldi, 

 (“Because we conclude that the legislature’s intentions
are clear in that regard, it is not necessary for us to examine whether proof of a
culpable mental state is required under ORS 161.095(2).”).
Cite as 

 (2022)                                                  343

the element of value of the stolen goods in the theft statute
is not “material” and therefore does not require a culpable
mental state).7 All nonprocedural elements for crimes within
the Criminal Code carry a mental state.
         As described in Simonov and Haltom, if a statute
does not provide an explicit mental state, courts must sift
through legislative intent relating to both the type of element at issue and the legislature’s desired mental state. As
explained below, ORS 116.115(1) does not preclude consideration of whether the legislature intended the explicit mental
state to apply to each nonprocedural element of the crime, as
is made clear by the history of the provision.
         Like the rest of Oregon’s culpable mental state statutes, ORS 161.115 traces its roots back to the 1971 revision
of the Criminal Code drafted by the Criminal Law Revision
Commission. Although discussion of the statute during the
commission’s meetings was relatively brief, multiple committee members indicated that the provision’s primary function was to “provide against bad drafting techniques.” Tape
Recording, Criminal Law Revision Commission, June 17,
1969, Tape 68, Side 1 (statements of Professor George Platt
and Donald Paillette). Professor Platt in particular explained
that ORS 161.115(1) was specifically directed toward resolving any ambiguity in the statute about to which elements a
specified mental state applies:
    “What happens sometimes in states is the crime will be in
    a state of disarray. ‘It’s against the law to knowingly A and
    B and C’ without repeating the word ‘knowingly’ before B
    and C. It becomes ambiguous then, well what’s the intent
    with respect to the B and C elements? [ORS 161.115(1)]
    says that it’s the same as it would be for A.”

 In other words, the purpose of ORS 161.115(1) was specifically to fill in gaps when it was unclear how the legislature wanted a criminal statute to be interpreted. See also
Owen, 

 (referring to ORS 161.115(1) as a “guiding rule of construction”). It was not meant to supply a new

    7
      Because this opinion overrules our existing precedents, the panel specifically advised all members of the court of the effect of its decision, but neither the
chief judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc.
344                                             State v. Prophet

substantive rule of statutory construction that overrides
more specific expressions of the legislature’s intent for how
a given statute was meant to be interpreted.
        ORS 161.115(1) is based on MPC § 2.02(4), which
provides:
   “When the law defining an offense prescribes the kind
   of culpability that is sufficient for the commission of an
   offense, without distinguishing among the material elements thereof, such provision shall apply to all the material
   elements of the offense, unless a contrary purpose plainly
   appears.”
(Emphasis added.) By its own terms, MPC § 2.02(4)
expressly conditions the operation of its rule on the absence
of a contrary expression of legislative intent. Although the
same language was not included as part of ORS 161.115(1),
it appears to accord with both common sense and how the
commission understood that the statute would work. When
asked how to define which elements in a statute would be
considered “material,” various members of the commission
expressed their dissatisfaction with the MPC’s rigid definition because it did not accurately separate the elements that
they believed required a culpable mental state from the ones
that they did not. Instead, the commission opted to provide
guidance to the courts through the gap-filling general culpability provisions, but ultimately entrust the courts with
the responsibility of construing legislative intent.
         Further, to exclude legislative intent from the analysis in service of robotically applying the statute’s explicit
mental state to anything in the statute other than venue,
statute of limitations, and the like conflicts with our fundamental charge as a court—to construe statutes to effectuate
the intent of the legislature. See, e.g., Spaght v. State ex rel
Dept. of Transportation, 

, 

 (1977) (observing that “a statute should be construed
to carry out the intent of the legislature and to accomplish
the purpose for which it was enacted”); ORS 174.020(1)(a)
(“In the construction of a statute, a court shall pursue the
intention of the legislature if possible.”). Ignoring the intent
of the legislature that enacted the criminal statute would
require us to interpret such statutes in a manner that is
Cite as 

 (2022)                                345

fundamentally different from how we interpret all other
statutes, particularly since Gaines, which encourages the
consideration of relevant legislative history whenever it
is helpful to our analysis. 

. It would also
exclude those statutes from the “core principle” described
in Simonov, Haltom, and Owen that the determination of
which mental state to apply to which elements is ultimately
a matter of the intent of the legislature enacting the criminal statute. It is thus appropriate to examine a statute’s text,
context, and legislative history when determining whether
the legislature intended the statute’s explicit mental state
to apply to all nonprocedural elements. As always, text is
paramount, and when “considering legislative history, we
will not lightly disregard our understanding of the statute
based on the common and natural meaning of its text and
context.” 

         We note that our conclusion also comports with
another key direction from the legislature about how to
construe statutes. Under ORS 174.020(2), “[w]hen a general
provision and a particular provision are inconsistent, … a
particular intent controls a general intent that is inconsistent with the particular intent.” See State v. Ramoz, 

, 

 (2021) (“ORS 174.020(2) provides that,
when two provisions are inconsistent, the more specific provision controls.” (Internal quotation marks omitted.)). Thus,
if a particular statute reflects a specific legislative intent for
how it should be construed that is inconsistent with ORS
161.115(1), ORS 174.020 provides that the more specific
intent should control our construction of the statute.

         Other states which adopted MPC § 2.02(4) likewise prioritize the legislature’s intent regarding the specific crime at issue over the general interpretive guideline.
For example, despite, like Oregon, having implemented the
MPC’s directive to apply a stated mental state to each material element of the crime, the New Jersey Appellate Division
determined that the legislature did not intend for the culpable mental state apply to the fact that a firearm was a
“community gun” as defined by the statute describing the
offense, based on the legislative history and the fact that the
legislature did not include a mental state in that part of the
346                                           State v. Prophet

statute. State v. Scott, 429 NJ Super 1, 8, 55 A3d 728, 732-
33 (2012). The court used the same methodology to reach
the opposite conclusion with regard to the crime of criminal
restraint, holding that the culpable mental state applied to
all three elements of restraining, unlawfulness, and exposing the victim to a risk of serious bodily injury, based on the
text and legislative history of the offense. State v. Worthy,
329 NJ Super 109, 114-16, 

 (2000).
         The Vermont Supreme Court likewise concluded
that, to be convicted of enabling the consumption of alcohol
by a minor, the person must not only knowingly enable, but
also know that the person being enabled is a minor. State
v. Richland, 200 Vt 401, 413, 132 A3d 702, 710 (2015). The
court acknowledged that “the presumption that mens rea
attaches to all elements of a statute may be rebutted by a
showing of clear legislative intent to the contrary,” but found
no such indication in either the text or legislative history of
the statute. Id. at 409 (emphasis in original). As discussed
above, even though those states adopted the MPC’s language
including “unless a contrary purpose plainly appears,” the
legislative history of ORS 161.115 indicates that the legislature did not intend to grant courts less flexibility than the
MPC—to the contrary, the legislature sought greater flexibility in interpreting which elements necessarily require a
culpable mental state.
          The text, context, and legislative history of ORS
161.115(1), as well as the court’s application of that provision
in Owen, demonstrate that we cannot ignore the intent of the
legislature enacting the criminal statute. Indeed, the only
point of agreement in the body of conflicting case law is the
critical importance of legislative intent to the analysis. See,
e.g., Simonov, 

 (“The determination whether
a particular element of an offense within the Criminal
Code requires a culpable mental state and, if so, what mental state is required, ultimately is a matter of legislative
intent.”); Andrews, 

 (“[W]e emphasize that
legislative intent must be the touchstone of analysis under
ORS 161.095 to ORS 161.115.”); accord Owen, 

(“[T]he definition of second-degree assault suggests that
applying the guideline in ORS 161.115(1) … would be
incorrect: It would require the knowing culpable mental
Cite as 

 (2022)                                              347

state to apply to a result element, which normally takes an
intentional, reckless, or criminal negligence mental state
under the definitions of the mental states in ORS 161.085.”).
         In sum, the analysis of determining which mental
state attaches to an element of a crime proceeds as follows
for statutes within the Criminal Code.8 For statutes that
contain an explicit mental state, that mental state applies
to each nonprocedural element of the crime unless the text,
context, and legislative history indicate that the legislature
intended otherwise. ORS 161.115(1). For statutes that do
not contain an explicit mental state, the court must determine the type of element at issue to associate a mental state
under the general culpability provisions, unless the legislature enacting the criminal statute intended otherwise. ORS
161.115(2).
E.    Construction of Mental State in ORS 162.315
         Having determined that legislative intent, including consideration of legislative history, of the statute defining the offense plays a role in analyzing whether a mental
state attaches to an element of a crime even when that statute provides an explicit mental state, we must evaluate the
resisting arrest statute to determine whether the legislature meant to require proof that defendant intended to create a substantial risk of physical injury to a person. For the
reasons explained below, we conclude that the trial court
did not err in refusing to give defendant’s proposed instruction because, while ORS 162.315 does require that a mental
state attach to the element of creating a substantial risk of
injury, that mental state is not intentionally.
         Again, ORS 162.315(1) provides, “[a] person commits the crime of resisting arrest if the person intentionally
resists a person known by the person to be a peace officer or
parole and probation officer in making an arrest.” The statute defines “resists” as:
     “the use or threatened use of violence, physical force or
     any other means that creates a substantial risk of physical

    8
      The same analysis applies to statutes that fall outside the Criminal Code
that do not reflect a legislative intent to dispense with a culpable mental state
under ORS 161.105(1).
348                                           State v. Prophet

   injury to any person and includes, but is not limited to,
   behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer.”
ORS 162.315(2)(c). We have previously observed that this
definition contains both a means and an end: “The means
includes the use of violence, physical force, or any other
means. The end is a substantial risk of physical injury to
any person.” State v. Remsh, 

, 

 (2008). The question is whether the legislature intended
to apply the mental state of intentionally to both components of the definition. ORS 161.115(1) instructs us to apply
the mental state of intentionally to both the means and the
end, so we turn to evidence of legislative intent to confirm
or rebut the conclusion under the default rule analysis.
See Haltom, 

 (reviewing evidence of legislative intent “to confirm or rebut any tentative conclusion
reached under the default rule analysis” for purposes of
ORS 161.115(2)).
         The statutory text provides little guidance to suggest how the mental state in the phrase “intentionally
resists a person” was meant to be interpreted in relation
to the means and the end components of the definition of
“resists.” We have previously described similarly worded
statutes as ambiguous because, “[a]s a matter of grammar[,] … it is not at all clear how far down the sentence
the [culpability term] is intended to travel.” See Schodrow,

 (explaining that the language of a statute
prohibiting “knowingly … [c]arr[ying] any firearm concealed upon the person” was ambiguous about whether the
knowledge requirement applies to the fact that the item is a
firearm).
          Instead, the legislative history of ORS 162.315,
which we set out in detail in Olive, provides more clarity
on how the legislature understood the statute when it was
enacted. The first preliminary draft of ORS 162.315 provided that “[a] person commits the crime of resisting arrest if
… [b]y using or threatening to use violence, physical force
or any other means creating a substantial risk of physical
injury to any person he intentionally prevents or attempts to
prevent a person he knows to be a peace officer from making
Cite as 

 (2022)                                     349

an arrest.” Olive, 

. The phrase “creating a
substantial risk of physical injury” precedes the use of the
word “intentionally.” Grammatically, had the legislature
intended to require proof of intent to create a substantial
risk of physical injury, it would have made little sense to
place that intent element after the requirement that defendant create a substantial risk of physical injury. Doing so
would have required the reader to apply the intent element
in reverse, back through the statute, in defiance of the common conventions of reading. The placement of the mental
state in the preliminary draft is consistent with the crux
of the crime—not to create a risk of injury, but to prevent a
person from making an arrest.
         Although the legislature later amended the statute
to its current form, research counsel for the Criminal Law
Revision Commission explained that the goal of the amendment was only to improve clarity by making the structure of
ORS 162.315 consistent with other sections of the proposed
code. 

 The substance was intended to “remain[ ] the same
as in the original.” 

 (internal quotation marks omitted).
The only other alteration to ORS 162.315 before its enactment was changing the phrase “from making an arrest” to
“in making an arrest” to keep the provision grammatically
correct. 

.
         The commentary reinforces our conclusion that the
legislature meant for “intentionally” to apply to the person’s
conduct, not to the result of that conduct. That commentary
provides:
   “Two culpability elements are found in subsection (1): The
   actor’s conduct must be intentional, and must be accompanied by knowledge that the person resisted is a peace officer. Subsection (2) defines ‘resists’ in terms of physical force
   or violence. Resistance is prohibited if it ‘creates a substantial risk of physical injury to any person,’ i.e., the actor, the
   peace officer or other persons in the immediate area.”
Commentary § 206 at 204 (emphasis in original). The commentary purports to describe the requisite mental states for
the crime of resisting arrest, explaining the elements that
the person must act intentionally and create a substantial
risk of physical injury as distinct from one another. Thus,
350                                                          State v. Prophet

the legislative history indicates that the legislature did not
mean for “intentionally” to apply to “creating a substantial
risk of physical injury.”9
         In sum, although the element of creating a substantial risk of injury is a “material element that necessarily
requires a mental state,” evidence of legislative intent affirmatively rebuts the presumption that “intentionally” should
be that mental state. Because defendant’s requested jury
instruction was an incorrect statement of the law the trial
court did not err in denying it.
                     IV. CONCLUSION
         In sum, we conclude that all elements other than
venue, statute of limitations, and the like, “necessarily
require[ ] a culpable mental state” under ORS 161.095(2),
regardless of whether the statute provides an explicit mental
state. We further conclude that the presumption that a statute’s explicit mental state applies to each material element
may be rebutted if an analysis of the statute’s text, context,
and legislative history indicates that was not the intent of
the legislature. Thus, because the legislative history of ORS
162.315 contains clear indication that the legislature did
not mean to require proof that the defendant specifically
intended to create a substantial risk of physical injury to
commit the crime of resisting arrest, ORS 161.115(1) does
not operate to apply the statute’s intent requirement to that
particular element. The trial court did not err in refusing to
give defendant’s proposed jury instruction.
         Affirmed.
     9
       We note that ORS 162.315 applies to “the use or threatened use of violence,
physical force or any other means that creates a substantial risk of physical
injury to any person,” which could implicate the free speech protections provided
by Article I, section 8, of the Oregon Constitution. (Emphasis added.) We have
found nothing in the legislative history of the statute to indicate that the legislature intended the mental state to attach to the “creates a substantial risk of physical injury” element to avoid a constitutional problem under Article I, section 8.
Given the text of the statute, the types of threats covered by the statute are likely
cabined by imposing an objective standard for whether the intentional threat
“creates a substantial risk of physical injury to any person.” See State v. Rangel,

, 

 (1999) (explaining that a statute criminalizing
the making of a threat can satisfy Article I, section 8, without requiring proof of
a specific intent to carry out a threat or any present ability to do so, as long as
the elements of the statute serve the same purpose of limiting its reach to those
threats that are genuine and express an intention that they will be carried out).