State v. Meiser

                                        674

Submitted on remand from the Oregon Supreme Court May 10, 2022, affirmed
      January 11, petition for review allowed May 4, 2023 (

)
                      See later issue Oregon Reports


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

     This case, which involves the requirements for establishing a guilty except
for insanity (GEI) defense under ORS 161.295 (2011), amended by Or Laws 2017,
ch 634, § 3, is on remand from the Oregon Supreme Court. See State v. Meiser, 

, 

 (2022). The issues presented on remand are (1) the nature
of the causal link required between a defendant’s qualifying “mental disease or
defect” and the defendant’s “lack of substantial capacity either to appreciate the
criminality of the conduct or to conform the conduct to the law,” ORS 161.295(1)
(2011), and (2) whether the record in this case compels a finding that defendant
proved that necessary causal link. Held: (1) To be found guilty except for insanity
under ORS 161.295, a defendant must prove that, at the time of the criminal
conduct in question, the defendant’s qualifying mental disease or defect was sufficient on its own to bring about the requisite lack of substantial capacity. (2) The
evidence in the record did not compel a finding that, at the time defendant killed
the victim, his schizophrenia was sufficient, by itself, to bring about his asserted
lack of substantial capacity either to appreciate the criminality of that conduct or
to conform his conduct to the law; therefore, the trial court did not err in rejecting
defendant’s GEI defense.
    Affirmed.



  On remand from the Oregon Supreme Court, State v.
Meiser, 

, 

 (2022).
    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 briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Cite as 

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  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
  MOONEY, J.
  Affirmed.
676                                                            State v. Meiser

           MOONEY, J.
         This case, in which the trial court rejected defendant’s defense of guilty except for insanity (GEI) and found
him guilty of murder, is before us on remand from the
Supreme Court. State v. Meiser, 

, 

(2021) (Meiser I), rev’d in part and rem’d, 

, 

 (2022) (Meiser II). In Meiser I, we concluded that ORS
161.2951 required defendant to prove that his antisocial personality disorder played no part in bringing about the requisite lack of substantial capacity, and, because the record
would allow a reasonable trier of fact to reject defendant’s
GEI defense on that basis, we affirmed. 

. As explained more fully below, the Supreme Court
concluded that the legislature did not intend that meaning
of the statute and reversed in part and remanded. Meiser II,

. On remand, we once again affirm.
         A detailed description of the facts leading up to
this case is set out in Meiser I, 

, and,
to a lesser extent, in Meiser II, 

, and it is
unnecessary for us to repeat that here. As relevant to the
issues before us on remand, defendant, who has been diagnosed with schizophrenia and antisocial personality disorder, was convicted of murder, as a lesser-included offense of
aggravated murder, for the death of FH during a home invasion robbery.2 The trial court, acting as factfinder, rejected
    1
      The GEI defense is set out in ORS 161.295, which, as applicable in this case,
provided:
         “(1) A person is guilty except for insanity if, as a result of 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.”
ORS 161.295 (2011), amended by Or Laws 2017, ch 634, § 3. The 2011 version of
ORS 161.295 applies in this case and all references to the statute in this opinion
are to that version, despite its outdated terminology. Accord Meiser II, 

 n 1 (explaining why it is appropriate to reference the 2011 statute).
    2
      Defendant was charged with multiple counts of aggravated murder, robbery,
and burglary related to the invasion of FH’s home; he was also charged with two
counts of second-degree burglary for breaking into a martial arts studio and stealing
a samurai sword before going to FH’s home and for entering the garage of another
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defendant’s defense of GEI to that charge, and defendant
assigned error to that ruling on appeal.3 Meiser I, 

.
         As to that assignment of error, we held that ORS
161.295 required defendant to prove that his asserted lack
of substantial capacity either to appreciate the criminality
of his conduct in killing FH or to conform his conduct to the
requirements of the law was the result of his schizophrenia—
a qualifying “mental disease or defect” under ORS
161.295(1)—and that his co-occurring antisocial personality
disorder—a “personality disorder” specifically excluded as
a “mental disease or defect” under ORS 161.295(2)—played
no role in causing the requisite lack of capacity.4 Meiser I,

. And, because the evidence in the
record permitted a finding that defendant’s incapacity, in
whatever form, was not solely the result of his schizophrenia, we concluded that defendant had not established that
he was entitled to prevail as a matter of law on the causation
element of his defense, and, therefore, the trial court did
not err in rejecting the defense.5 

 As a result, we did not

residence to steal a bicycle to help him escape afterward. Defendant asserted the
affirmative defense of GEI to all of the charges. As noted, the trial court found
defendant guilty of the lesser-included offense of murder for the death of FH (the
court merged the multiple aggravated murder counts into one count of murder); the
court also found him guilty of second-degree burglary related to the bicycle. As to
the other charges, the court found defendant GEI. Meiser II, 

.
     3
       Defendant did not challenge the court’s rejection of his GEI defense with
respect to the burglary charge. Meiser I, 

 n 3. He raised other
assignments of error, but none of those assignments are still at issue. Specifically,
in his second assignment, defendant contended that the trial court erred in
failing to provide findings of fact and conclusions of law explaining its murder
verdict despite the GEI defense. We held that that assignment of error was not
preserved, Meiser I, 

, and defendant did not reprise that
argument before the Supreme Court, Meiser II, 

 n 2. We rejected
defendant’s third assignment of error, challenging his sentence on the merged
convictions for murder, Meiser I, 

, and his fourth, contending that the trial court erred in denying his motion in arrest of judgment as to
the crime of first-degree robbery, 

. The Supreme Court declined
defendant’s petition for review of those holdings; they are therefore undisturbed.
     4
       It is undisputed both that defendant’s schizophrenia is a “mental disease or
defect” for purposes of ORS 161.295 and that his co-occurring antisocial personality disorder is a “personality disorder” within the meaning of the statute. See
Meiser II, 

 (so noting).
     5
       Because GEI is an affirmative defense, defendant bears the burden of proving the defense by a preponderance of the evidence. ORS 161.305 (2011), amended
by Or Laws 2017, ch 634, § 5; ORS 161.055(2).
678                                                         State v. Meiser

resolve the parties’ arguments with respect to whether the
evidence compelled a finding that defendant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
Id. at 587-88.
           On review, the Supreme Court concluded that
we had erred in our interpretation of the statute, and it
reversed in part and remanded.6 Analyzing the text and
legislative history of the GEI defense, the court held that
the legislature did not intend to “require that a person who
can demonstrate the requisite lack of substantial capacity
‘as a result of mental disease or defect’ also prove that a
co-occurring personality disorder in no part contributed
to the incapacity.” Meiser II, 

. That is as
far as the court went, however, remanding for our further
consideration the issues regarding the “lack of substantial
capacity” element that we had left unresolved in Meiser I.

. The court also remanded for us to consider
whether—given the court’s rejection of the “sole cause” test
for determining incapacity—the record “compelled a finding
that defendant proved that he had experienced any qualifying incapacity ‘as a result of mental disease or defect,’ ” noting that the answer to that question “may turn on whether
the phrase ‘as a result of’ in ORS 161.295(1) means that the
qualifying ‘mental disease or defect’ must be sufficient, on
its own, to bring about the requisite incapacity, or whether
the legislature intended to require some lesser degree of
causal contribution from the qualifying ‘mental disease or
defect.’ ” 

          We begin with the latter issue because it is dispositive. In supplemental briefing, defendant contends that the
text and context of the statute demonstrate that the legislature intended to require a lesser degree of causal contribution from his schizophrenia (the qualifying “mental disease or defect”) than the “sufficient[ ] on its own” standard
   6
     The Supreme Court allowed review, limited to the following issue:
   “Is the defense of guilty except for insanity as defined in ORS 161.295(1)
   unavailable when the defendant’s lack of substantial capacity to appreciate
   the criminality of his conduct or to conform that conduct to the requirements
   of the law is the result of a combination of a ‘qualifying mental disorder’ and
   a ‘personality disorder’?”
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posited as a possibility by the Supreme Court.7 Further, in
defendant’s view, we need not decide precisely what lesser
degree the legislature had in mind because the record shows
that defendant’s schizophrenia was, at the least, “the predominant driver”8 of his behaviors. According to defendant,
because there was no “expert evidence or testimony at trial
attributing defendant’s required lack of substantial capacity
to anything other than schizophrenia—or at a minimum, to
schizophrenia as ‘the predominant driver of his behaviors’ ”
(quoting trial testimony of Dr. Choi), the record compels the
conclusion that defendant experienced the requisite incapacity “as a result of mental disease or defect.”
         The state, on the other hand, urges an “independent sufficiency” standard of causation.9 According to the
state, that standard is suggested by the legislature’s use of
the term “as a result of” instead of “cause,” and it is also
necessary to give effect to the policy-based limitation the
legislature intended in excluding personality disorders from
the term “mental disease or defect.” We agree with the state.
           Again, the GEI defense provides:
        “(1) A person is guilty except for insanity if, as a result
    of 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.”

    7
      Because the parties’ statutory construction arguments below and in Meiser I
focused on the “sole cause” question—and not the degree of causal contribution
required from the qualifying mental disease or defect—we requested, and the
parties submitted, supplemental briefing on that issue.
    8
      The “predominant driver” measure appears to come from the testimony of
Dr. Choi, one of defendant’s expert witnesses, rather than any legal source.
    9
      The state also argues that we need not decide the causal standard question
posed by the Supreme Court because, in the state’s view, the record permitted a
finding that defendant’s schizophrenia played no causal role in his alleged incapacity, and we have already held as much in Meiser I. Like the Supreme Court,
we do not understand Meiser I “as announcing [that] alternative holding.” See
Meiser II, 

 n 5 (internal quotation marks omitted).
680                                              State v. Meiser

ORS 161.295 (emphasis added). The statute thus requires
that “three elements must exist ‘at the time of engaging in
criminal conduct’: ‘mental disease or defect’; lack of ‘substantial capacity either to appreciate the criminality of the
conduct or to conform the conduct to the requirements of
law’; and a causal link between the two.” Meiser II, 

 (quoting ORS 161.295(1)). The issue before us presents
a question as to the third element, specifically, the degree of
causation required to establish the necessary “causal link”
between defendant’s schizophrenia—his mental disease or
defect—and his asserted lack of substantial capacity.

         As a starting point, we know from Meiser II that
defendant’s schizophrenia need not be the “sole” cause—
that “as a result of mental disease or defect” as used in ORS
161.295(1) does not mean “solely ‘as a result of mental disease
or defect.’ ” 

 (emphasis in original); see also 

 (“[T]he legislature did not intend to require proof that
a personality disorder played no role in bringing about the
requisite lack of capacity[.]”); 

 (in amending ORS
161.295(2) to exclude personality disorders, the legislature
intended “that a person who has ‘a personality disorder plus
a psychosis … may still qualify’ ” for the defense (quoting
Tape Recording, House Committee on Judiciary, HB 2075,
May 13, 1983, Tape 324, Side A (statement of Jeffrey Rogers)
(ellipses in Meiser II)). Given that holding in Meiser II—and
the court’s framing of the question before us on remand—we
understand the court to suggest that, although the legislature did not intend that a defendant be required to prove the
absence of a personality disorder as a potential contributing
cause of his lack of substantial capacity, it may nonetheless
have intended proof that the qualifying mental disease or
defect was sufficient by itself to bring about the incapacity.

         Next, we reject defendant’s suggestion that “as a
result of” means that the defense is available if the qualifying mental disease or defect is simply “one” cause of the
defendant’s incapacity. If we read ORS 161.295(1) to require
only that defendant prove that his mental disease was one
cause of his incapacity—no matter how remote or insignificant a cause it might have been—that reading would effectively nullify the exclusions set out in ORS 161.295(2).
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          The word “cause” when used in a criminal statute
generally means “cause-in-fact.” State v. Turnidge (S059155),

, 

 (2016), cert den, ___ US ___,

 (2017). And while the word “cause” does not
appear in ORS 161.295, it is worth noting that the Supreme
Court in Turnidge discussed the concept of causation in the
context of criminal statutes that “attach[ ] liability or responsibility for conduct that causes a result,” and not in the context of criminal statutes that permit defendants to avoid
responsibility for conduct that causes a result. Id. (emphasis
added). Interpreting ORS 161.295 to make the GEI defense
available to defendants when they can establish that a mental disease or defect played some role—or any role—in their
capacity to appreciate the criminality of their conduct or to
conform their conduct to the law does not hold up under the
statutory construction framework established by State v.
Gaines, 

, 

 (2009).10
         Here, as the state points out, the legislature used
the phrase “as a result of” in ORS 161.205(1), rather than the
word “cause,” which has an established meaning in Oregon
criminal law. See Turnidge (S059155), 

 (“To say
that a person ‘caused’ harm to another expresses, at least for
most purposes in the law, the idea that, ‘but for’ a person’s
act or conduct, the harm would not have happened[.]”); 

 (legislature intended phrase “caus[es] the death of
another” in criminal homicide statute to mean only cause-in-fact and not to also encompass the concepts of proximate
or legal causation). “Ordinarily, when the legislature uses
different terms, we assume that the legislature intends
those terms to have different meanings. That assumption is
particularly warranted when … the terms appear together
in the same statutory scheme and give rise to different legal
consequences.”11 See Norwood v. Premo, 

,
    10
       In construing a statute, we examine the text of the statute in context,
considering any useful legislative history, and, if necessary, applying maxims of
statutory construction. 

 “[T]he text and context of a statute are the best indications of the legislature’s intent.” State v. Stout, 

, 

(2018) (internal quotation marks omitted).
    11
       However, even assuming that the legislature intended “as the result of” in
ORS 161.295(1) to carry the same meaning as the word “causes,” notwithstanding its use of different terms, see generally Burrage v. United States, 

, 

, 

 (2014) (noting state court cases that assign
682                                                             State v. Meiser

451, 

, rev den, 

 (2017) (internal citation omitted).
          The phrase “as a result of” is not defined for purposes of ORS 161.295(1). We therefore look to its “plain,
natural, and ordinary meaning.” PGE v. Bureau of Labor
and Industries, 

, 

 (1993). As the
Supreme Court noted in Meiser II, the noun “result,” as relevant here, means “ ‘something that results as a consequence,
effect, issue, or conclusion.’ ” 

 (quoting Webster’s
Third New Int’l Dictionary 1937 (unabridged ed 2002)).12
That definition references the verb form of the same word,
which means “to proceed, spring, or arise as a consequence,
effect, or conclusion.” 

 The preposition “of” here is “used
as a function word to indicate the cause, motive, or reason
by which a person or thing is actuated or impelled.” Id. at
1565.
          Incorporating those definitions to this context, “as a
result of” in ordinary usage suggests that the mental disease
or defect must be the reason for defendant’s lack of substantial capacity or, stated in the reverse, that defendant’s lack
of substantial capacity must come about as a consequence,
effect, issue, or conclusion of the mental disease or defect.
Examining the plain meaning of those words, in turn, could
logically lead to the conclusion that the mental disease or
defect must be sufficient, on its own, to bring about the lack
of capacity. See id. at 1891 (“reason” means “a sufficient
ground of explanation or of logical defense; esp : a general
principle, law, or warranted presumption that supports a
conclusion, explains a fact, or validates a course of conduct”);
id. at 482 (defining “consequence” to mean “something that
but-for causation to similar phrases in criminal statutes such as “results in,”
“because of,” and “as a result of”), we still would conclude that it did not intend
a strict cause-in-fact view of causation to apply to the GEI defense in question.
That is so because, as discussed below, see 323 Or App at 684-85, the legislature
in ORS 161.295(2) expressly imposed policy-based limitations on the availability
of the defense. See Turnidge (S059155), 

 (explaining that legal or
proximate cause, in contrast to actual cause, or cause in fact, “expresses a policy judgment as to whether conduct that factually caused harm should result in
liability or responsibility” (emphasis in original)). In other words, in enacting
subsection (2), the legislature significantly narrowed the meaning of “as a result
of” and thus the causation analysis to be applied under subsection (1).
     12
        The court was making the point there that, “[i]n ordinary usage, the term
‘result’ is not limited to the concept of sole causation.” Meiser II, 

.
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is produced by a cause or follows from a form of necessary
connection or from a set of conditions : a natural or necessary result”); id. at 724 (“effect” means “power to bring
about a result : operative force : influence”); id. at 1201 (the
noun “issue,” as relevant, means “final outcome : result,
consequence”); id. at 471 (“conclusion” in logic means “the
necessary consequence of two or more related propositions
taken as premises”).
          Of course, we do not read words in a vacuum. We
examine them in context. See State v. Cloutier, 

, 

 (2011) (“Dictionaries, after all, do not tell
us what words mean, only what words can mean, depending on their context and the particular manner in which
they are used.” (Emphasis in original.)); State v. Corcilius,

, 

 (2018) (“Thus, when the
dispute centers on the meaning of a particular word or
words, a dictionary definition—although providing some
evidence of meaning—should not be relied on to resolve a
dispute about plain meaning without critically examining
how the definition fits into the context of the statute itself.”
(Internal quotation marks and brackets omitted.)). In this
case, that exercise reinforces our understanding that the
legislature intended the phrase “as a result of” to mean
that the GEI defense would be available only if the qualifying mental disease or defect, standing alone, was sufficient, at the time of the criminal conduct, to bring about the
incapacity.
        The pertinent causation test—“as a result of mental disease or defect at the time of engaging in criminal
conduct”—has been in existence from the time the original
insanity defense statute was enacted as part of the Oregon
Criminal Code of 1971. Meiser II, 

 (citing Or
Laws 1971, ch 743, § 36). As the Supreme Court observed in
Tharp v. PSRB, 

, 

 (2005),
   “[t]he 1971 law expressed, in a coherent sequence of specific
   provisions, the policy that a person is ‘not responsible’ for
   criminal conduct if the person engages in criminal conduct
   but, because of a mental disease or defect, lacks the capacity to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.”
684                                           State v. Meiser

 (emphasis added). The commentary to the proposed
Oregon Criminal Code explains that subsection (1) of
the proposed statute was based on section 4.01(1) of the
Model Penal Code, in part, “a modernized rendition” of the
M’Naughten rule. Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 36, 34 (July 1970). That rule provides, in its
“classic form,” that “ ‘[i]t must be clearly proved that at the
time of committing the act, the party accused was laboring
under such a defect of reason, from disease of the mind, as
not to know the nature and quality of the act he was doing,
or as not to know that what he was doing was wrong.’ 8 Eng
Rep 718 (1843).” Id.
          The legislature did not define the terms “mental
disease or defect,” except to state what is not included. See
ORS 161.295(2); Beiswenger v. PSRB, 

,

, rev dismissed, 

 (2004). Originally,
only “an abnormality manifested only by repeated criminal
or otherwise antisocial conduct” was excluded from mental
disease or defect. Or Laws 1971, ch 743, § 36. But, in 1983,
the legislature amended the statute to also exclude “any
abnormality constituting solely a personality disorder.” Or
Laws 1983, ch 800, § 1. See Meiser II, 

 (relying on legislative history of both 1971 and 1983 enactments
to determine meaning of “mental disease or defect” in ORS
161.295(1); noting that the court may consider later amendments that were intended by the legislature to modify or
otherwise alter the meaning of the original terms of the
statute).
         The legislative history of the 1983 amendments has
been recounted at length in previous cases, and we do not
repeat that here. See Meiser II, 

; Tharp,

; Beiswenger, 

. For our
purposes, it is enough to acknowledge that the oft-repeated
history is replete with references to the legislature’s intent
to narrow the availability of the GEI defense. See, e.g.,
Meiser II, 

 (“That exclusion [for personality
disorders]—like the original exclusion—specifies certain
mental conditions that are not included within the broader
terms ‘mental disease or defect,’ and in doing so, narrows
access to the defense set out in subsection (1).”); Beiswenger,
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 (“Legislators repeatedly expressed concern
that criminal defendants not be permitted to avoid criminal responsibility and incarceration merely by asserting
that they suffered from some ‘mental disease or defect,’ as
broadly defined.”); 

 (“[B]y narrowly defining ‘mental disease or defect,’ the legislature intended to make the insanity defense less broadly available to criminal defendants.”
(Citing, e.g., House Floor Debate, HB 2075, June 16, 1983,
Reel 19, Track I (statement of Rep Peter Courtney).)). As
then-Representative Courtney explained at the first hearing on the bill in the Senate, the amendment “ ‘would remove
personality disorders as a category that could be relied on
for use of the insanity plea.’ ” Beiswenger, 

(quoting Tape Recording, Senate Committee on Judiciary,
HB 2075, June 29, 1983, Tape 234, Side A (statement of Rep
Peter Courtney (emphasis added))).
         Although it does not speak directly to the question
before us, we glean from that history that the legislature
intended that a qualifying, “mental disease or defect” be the
basis—without regard to any excluded condition that the
defendant might also have—by which a person may avoid
criminal responsibility. The mental disease or defect must,
therefore, be sufficient—on its own—to bring about the requisite incapacity. To interpret the statute otherwise would
make it possible for a defendant who has both a mental disease and a personality disorder, where the mental disease is
not itself sufficient to cause the requisite incapacity, to avoid
criminal liability on the basis of the personality disorder,
in direct conflict with ORS 161.295(2) and the legislature’s
express intention.
         Based on the text, context, and legislative history of
the GEI defense, we conclude that the legislature intended
the required causal link between a defendant’s “mental
disease or defect” and the defendant’s “lack of substantial
capacity” reflected in ORS 161.295 to be one of “independent
sufficiency.”
         We next must determine whether—applying that
standard—the record reflects that defendant established
the causation element of his defense as a matter of law. That
is, viewing the evidence in the light most favorable to the
686                                                     State v. Meiser

state, does the record compel a finding that, when he killed
FH, defendant’s schizophrenia was sufficient, by itself, to
bring about the requisite lack of substantial capacity either
to appreciate the criminality of that conduct or to conform
his conduct to the law? See Meiser I, 

 (setting out that standard of review); 

 (“defendant is
required to show that the evidence was so compelling that
no rational factfinder could have determined that defendant
failed to establish the affirmative defense of GEI” (emphasis
in original)); Peters v. Belleque, 

, 

, rev den, 

 (2011) (to prevail as a matter of law on an affirmative defense, the evidence, viewed
in the light most favorable to the state, “must permit only
one reasonable conclusion—that [the defendant] established
each element of the defense”). We conclude that it does
not.
         As has been recounted previously, at trial, defendant
offered the testimony of four mental health professionals—
“a psychologist and three psychiatrists, all of whom opined
that defendant was suffering from schizophrenia but recognized that he had a co-occurring diagnosis of antisocial personality disorder.”13 Meiser II, 

. The
experts explained that schizophrenia is typically evidenced
by hallucinations, delusions, and a disordered thought process, whereas antisocial personality disorder is characterized by a disregard for the rights of others “manifested in
various ways, by repeated acts of aggression, by repeated
acts of criminality, where you’re breaking the law, by consistent irresponsibility, not being able to hold a job and so
forth.”
         In arguing that no reasonable factfinder could find
other than that he proved the causation element of his GEI
defense to the murder of FH—viz., that he experienced a
qualifying incapacity “as a result of” his schizophrenia—
defendant relies on the testimony of psychiatrist Dr. Choi
and psychologist Dr. Beaver. Both experts testified that
defendant was experiencing command-auditory hallucinations, a hallmark of schizophrenia, on the day of the murder.
In opining that defendant lacked the capacity to conform his
   13
        The state did not offer any expert testimony.
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conduct to the requirements of the law, Dr. Beaver testified
that, at the time of the murder, defendant was “floridly psychotic.” He explained:
      “Part of that psychotic process was not only his overall
   impaired ability to reason, perceive the world accurately,
   but was a combination of, one, this driving force that was
   the motivator for him, that he had to—to engage in certain
   behaviors in order to save his children and his wife.
      “And, two, that he was[,] related to that, being commanded to do certain things and that to resist would also
   further endanger his children and wife and that he felt
   there was no other choice, since his first priority was to
   protect them.”
When asked whether defendant would have committed the
crimes if not for his active psychosis, Beaver responded, “I
don’t believe so.” He further testified that, in his opinion,
defendant’s conduct was not a result of antisocial personality disorder rather than schizophrenia.
         Dr. Choi similarly testified to his opinion that
defendant lacked substantial capacity to conform his conduct to the requirements of the law. In Choi’s opinion,
before, during, and after the murder, defendant was “highly
psychotic,” and, without the psychosis, defendant would not
have committed the crimes. In his view, defendant’s command auditory hallucinations “were influencing his behaviors” and “giving him a push.” Choi said that defendant was
“highly agitated and … much of that agitation had to do
with this psychotic, paranoid process he was under.”
         The record also reflects that defendant was suffering from hallucinations and delusions at the time of his
crimes—including that he had been “deleted” from society;
that he was being “systematically persecuted by … a large
portion of American society,” as well as the police, who would
only protect people of a certain class; that he needed a condo
to get a “toehold into society” as a property owner so that
police would protect him and his family; that his daughter
would be turned into a cannibal by the voices he heard; and
that his son was being poisoned and would also be harmed
by the entities represented by the voices.
688                                               State v. Meiser

         That evidence would certainly permit a finding that,
at the time he engaged in the murder of FH, defendant’s
asserted lack of substantial capacity either to appreciate the
criminality of his acts or to conform his conduct to the law
was “the result of” his schizophrenia under the independent
sufficiency measure described above—that is, without the
need to take into account his co-occurring personality disorder. However, that is not the only finding that could reasonably be derived from this record. Based on the evidence
described below, a reasonable factfinder could instead determine that, in the absence of his active antisocial personality
disorder, defendant would not be able to establish the requisite incapacity at the time of the murder. In other words,
that his schizophrenia, standing alone, was not sufficient to
cause defendant’s asserted lack of capacity to appreciate the
criminality of murdering FH or to refrain from doing so.
          Choi testified that “most people with schizophrenia are not violent,” and that the command auditory hallucinations defendant experienced “weren’t definitive and
overwhelmingly powerful,” but “were present to a moderate degree.” Both Choi and Beaver testified that defendant
was able to resist or ignore the hallucinations at times, and
there was evidence that defendant could put parameters
around them—for example, he stated that he would have
left if there were children in the home. Defendant’s objective
when he entered the couple’s home was to force an affluent
person to wire transfer him $40,000 for a down payment
on a condo so that he could get that “toehold into society”
and protect his family. He repeatedly stated that he did not
intend to hurt anyone during the robbery.
         The moments surrounding the murder are significant, given that defendant must establish the requisite
causal connection “at the time of engaging in [the] criminal
conduct.” ORS 161.295(1). Defendant repeatedly said that,
when the couple ran from the house screaming, he “panicked.” And, as we described in Meiser I, when FH looked up
at him after falling into 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.’
Cite as 

 (2023)                               689

   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.”

 (ellipses and brackets in original). A
reasonable trier of fact could conclude that, at that point,
defendant was no longer motivated by his delusions about
the need to protect his family from harm, but by anger and
revenge against an affluent member of an older generation
for his economic position—in other words, that it was his
antisocial personality disorder that was affecting his capacity to refrain from killing FH.
          Indeed, with respect to defendant “lashing out,”
Dr. Choi testified that “the psychosis perhaps drove him to
that point. But another interpretation could be he just—he
was angry and he lashed out? … [Y]eah, I think both can
be true.” Choi acknowledged that defendant had reported
that “he was very angry” and “that anger was part of his
motivation for the acts that he did.” Choi opined, “[T]here’s
a good argument to be made that the anger [defendant] was
feeling might partially have been just a normal response to
a situation, but very reasonably could have been driven by
delusions.” When asked directly whether defendant’s behavior, “before, during and after the homicide of [FH],” was
“driven by antisocial personality disorder or by schizophrenia, by delusions and hallucinations,” Choi stated that “both
were active.” He acknowledged that defendant “did express
anger,” that he “expressed things that would be consistent
with antisocial motivations,” but, in Choi’s opinion, the psychosis “was more the predominant driver of [defendant’s]
behaviors.” He concluded his testimony stating, “[W]hat I
can confidently say is that [defendant] had a whole heck of a
lot of delusions that played a major role in the acts he committed, both in the attempt to rob [FH] and ultimately in
the homicide that occurred.”
         However, even accepting Choi’s opinion that defendant’s schizophrenia “played a major role in” and “was more
the predominant driver of” defendant’s criminal conduct in
killing FH—and that, if not for that psychosis, defendant
would not have committed the act—a reasonable trier of fact
would not be required to find that defendant’s schizophrenia
690                                                         State v. Meiser

was sufficient—independent of his antisocial personality
disorder—to bring about his lack of substantial capacity
at the time of the act. Rather, a reasonable person could
determine, based on Choi’s testimony, together with all the
other evidence, that defendant did not establish, by a preponderance of the evidence, that his schizophrenia, by itself,
brought about his asserted lack of substantial capacity to
appreciate the criminality of killing FH or to conform his
conduct to the law by not doing so. In other words, a factfinder could find that defendant’s lack of capacity at the time
of the homicide was brought about by his active antisocial
personality disorder—whose characteristics include “anger,
violence, repeated criminality, impulsivity, and a reckless
disregard for the safety of others,” Meiser I, 

, or, at the least that, in the absence of the personality disorder, defendant’s schizophrenia, by itself, would not
have led to his incapacity.
          To be found guilty except for insanity under ORS
161.295, a defendant must prove that his mental disease
or defect was sufficient by itself to bring about his lack
of capacity to appreciate the criminality of his conduct or
to conform his conduct to the law at the time he engaged
in that conduct. The fact that a defendant also has a personality disorder does not foreclose application of the GEI
defense so long as the qualifying mental disease or defect
is sufficient by itself to bring about defendant’s substantial
lack of capacity. Applying that standard, on this record, the
trial court, as factfinder, was not compelled to conclude that
defendant’s lack of capacity was brought about by his schizophrenia. The evidence supported a finding that defendant’s
schizophrenia was not sufficient by itself to have resulted
in the requisite incapacity. The trial court did not err, as a
matter of law, in rejecting the defense.14 We therefore affirm.
           Affirmed.



    14
       Given that conclusion, we need not address the remaining questions before
us on remand—specifically, whether the record required a finding that defendant
lacked substantial capacity either to appreciate the criminality of his act or to
conform his conduct to the requirements of law.