No. 171 March 13, 2024 477
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
KENNETH JEARL HERIMAN,
Defendant-Appellant.
Polk County Circuit Court
20CR28691; A177517
Monte S. Campbell, Judge.
Argued and submitted November 13, 2023.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Adam Holbrook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Hadlock, Judge Pro Tempore.
JOYCE, J.
Affirmed.
478 State v. Heriman
JOYCE, J.
Defendant appeals from a judgment of conviction for
unlawful use of a weapon with a firearm enhancement, ORS
166.220, menacing, ORS 163.190, and recklessly endangering another person, ORS 163.195. In a single assignment
of error, defendant argues that the trial court erred when
it denied his request for a consultation with a community
mental health program director under ORS 161.365(1)
(2019), amended by Or Laws 2021, ch 395, § 6, amended by
Or Laws 2023, ch 281, § 43.1 We affirm.
This case requires us to address the interplay of
three statutes, ORS 161.360 (2017), ORS 161.365 (2019),
and ORS 161.370 (2019). Together, those statutes outline the
procedures for a court to follow when a defendant’s fitness
to proceed has been brought into question. We begin with a
description of those statutes to better put the factual background of this case in context.
ORS 161.360 provides that if a trial court has “reason to doubt” a defendant’s fitness to proceed by reason of
incapacity, the court “may order an examination in the manner provided in ORS 161.365.” A court may find a defendant
incapacitated if they have a “qualifying mental disorder”
and the defendant is unable to understand the nature of the
proceedings, assist and cooperate with counsel, or participate in their defense. ORS 161.360(2).
ORS 161.365, in turn, describes the process by
which such an examination takes place. It also, as particularly relevant here, sets forth a process by which a court
1
The three statutes governing the process for determining a defendant’s fitness to proceed by reason of incapacity have been amended since the trial court
issued its May 2021 ruling that defendant challenges on appeal. See ORS 161.360
(2017), amended by Or Laws 2021, ch 97, § 16; ORS 161.365 (2019), amended by
Or Laws 2021, ch 395, § 6, amended by Or Laws 2023, ch 281, § 43; ORS 161.370
(2019), amended by Or Laws 2021, ch 395, § 7, amended by Or Laws 2023, ch 227,
§ 2. Yet both parties cite to the versions of the statutes that were in effect at the
time that they filed their briefs. We analyze the question on appeal under the
versions of the statutes that were in effect at the time of the trial court’s ruling
in May 2021, and all subsequent references are to those versions of the statutes.
See Barnes v. City of Portland, 120 Or App 24, 27,
852 P2d 265 (1993) (“[U]nless
the legislature expressly provides that a statute applies retroactively, the general
rule is that the rights and liabilities of a person who is affected by an event are
defined and measured by the statutes in effect at the time of the event.”).
Cite as
331 Or App 477 (2024) 479
must order a community mental health consultation. ORS
161.365(1) provides that
“[w]hen the court has reason to doubt the defendant’s fitness to proceed by reason of incapacity as described in ORS
161.360, the court may call any witness to its assistance
in reaching its decision and shall order that a community
mental health program director or the director’s designee
consult with the defendant to determine whether services
and supervision necessary to safely restore the defendant’s
fitness to proceed are available in the community.”
ORS 161.365(1) further states that, if the court
“determines the assistance of a psychiatrist or psychologist
would be helpful, the court may” order that a certified evaluator conduct a “psychiatric or psychological examination
of the defendant,” or “[o]rder the defendant to be committed
for the purpose of an examination” to a state mental hospital or other designated facility. If a court orders a community mental health consultation, the program director or
their designee must provide the court with “a copy of the
findings resulting from the consultation.” ORS 161.365(1).
If the court orders a psychological or psychiatric evaluation,
the certified evaluator must prepare a report that contains
certain information, see ORS 161.365(2), and that report
must be filed with the court, see ORS 161.365(5). Among the
required information is the certified evaluator’s opinion on
whether a defendant is incapacitated as described by ORS
161.360. ORS 161.365(2)(c).
ORS 161.370 describes the proceedings that follow
the consultation and examination outlined in ORS 161.365.
If neither party contests a report’s conclusions under ORS
161.365, the court can determine a defendant’s fitness to
proceed on the basis of the report. ORS 161.370(1). If either
party contests the findings, then the court must hold a
hearing on the issue. Id. If the court concludes that a defendant lacks fitness to proceed, then the criminal proceeding
against them must be suspended and the court must determine how best to proceed. ORS 161.370(2). In deciding how
best to proceed, if the court concludes that a defendant is
dangerous to themselves or others as a result of a qualifying mental disorder, or that, “based on the findings resulting from the consultation described in ORS 161.365(1),” the
480 State v. Heriman
services necessary to restore a defendant’s fitness are not
available in the community, then the court must commit a
defendant to the Oregon State Hospital or other qualifying
facility. ORS 161.370(2)(a). Alternatively, if the court does
not make those conclusions, or if the court determines that
“care other than commitment for incapacity to stand trial
would better serve the defendant and the community,” then
the court must “release the defendant on supervision for as
long as the unfitness endures.” ORS 161.370(2)(b).
To summarize, with respect to a community mental
health consultation:
• A court must order a community mental health consultation if the court has reason to doubt the defendant’s
fitness to proceed by reason of incapacity;
• The person conducting that consultation must provide
findings to the court; and
• Those findings will be used by the court only if the court
first concludes that a defendant lacks fitness to proceed.
In contrast, with respect to a psychiatric or psychological
evaluation:
• The court may order a psychiatric or psychological evaluation by a certified evaluator;
• The certified evaluator must prepare a report that
includes specific information and an opinion as to
whether the defendant is incapacitated; and
• The court uses that report to assist in its determination
of a defendant’s fitness to proceed.
With that legal framework in mind, we turn to the
facts giving rise to this appeal.
After defendant was arrested, and before trial, his
defense counsel told the court during a status hearing that
defendant might have an “aid-and-assist issue.” Defense
counsel explained that he had already contacted a few providers to request a psychological examination for defendant,
but that there was no availability to schedule the examination for another three weeks. The trial court scheduled
another status hearing for the parties to address defendant’s
aid-and-assist issue.
Cite as 331 Or App 477 (2024) 481
At a subsequent status hearing, defense counsel
told the court that defendant had completed a psychological
examination with Dr. Stoltzfus, a licensed clinical psychologist. Defense counsel explained that, based on the examination, Stoltzfus had recommended that the court find defendant unable to aid and assist. The state informed the court
that it had reviewed Stoltzfus’s report but was not ready
to stipulate to defendant’s unfitness to proceed. Thus, consistent with the process set out in ORS 161.370, the court
scheduled a hearing on defendant’s fitness to proceed.
At that hearing, the court received Stoltzfus’s report
into evidence. In that report, Stoltzfus diagnosed defendant
with “Delusional Disorder,” but explained that defendant’s
“psychiatric impairment d[id] not appear to meet the criteria
for Schizophrenia.” Stoltzfus concluded that defendant “does
qualify for a mental disorder, the extent to which is difficult to determine.” Although Stoltzfus concluded that defendant “underst[ood] the nature and participants of courtroom
proceedings,” Stoltzfus also determined that defendant did
“not appear capable of assisting or cooperating with counsel,
or of participating in his own defense, because of underlying delusional thought patterns and because he refuses to
cooperate.” Thus, Stoltzfus recommended in his report that
the court find defendant unfit to proceed and further recommended that defendant receive “hospital level of care.”
Stoltzfus also testified that he believed that defendant
needed further evaluation at the Oregon State Hospital to
determine whether defendant had schizophrenia:
“Typically, [OSH] is somehow able to access all the medical records on a case. If there are none out there, which
actually [defendant] says there aren’t, then it’s kind of a
moot issue. But if they’re able—if there are more records
out there, then either the folks from the State Hospital or
myself really need those in order to—to move away from
the diagnosis of merely a delusional disorder into a fullblown schizophrenic disorder.”
The court also heard a report, through defense
counsel, that defendant’s mother had stated that defendant
had been diagnosed with schizophrenia and had suffered
from the condition for most of his life.
482 State v. Heriman
Notwithstanding the fact that the hearing was
designed to be a contested fitness to proceed hearing under
ORS 161.370, during the hearing, defense counsel asked
the court to order a community mental health consultation
under ORS 161.365(1).
In response, the court asked defense counsel to clarify
his request because the court had thought that defense counsel was asking for an order under ORS 161.370—which allows
a court to order that a defendant engage in mental health
treatment to help a defendant who is unfit to proceed regain
fitness. In response, defense counsel reiterated that he was
seeking an order for defendant to receive a community mental health consultation as an initial step toward obtaining an
order declaring defendant unable to aid and assist because,
in his view, Stoltzfus had not yet diagnosed defendant with a
“qualifying mental disorder” as ORS 161.360(2) requires:
“[Defense Counsel]: Your Honor—so we ultimately would
be seeking [an order under ORS 161.370]. I just believe that
the evidence that’s going to be made available at this time
will not satisfy one of the requirements which is the qualifying mental health disorder piece.
“So I don’t believe that there’s sufficient evidence at this
time to actually seek [an order under ORS 161.370], so I
believe [that an order under ORS 161.365] is more appropriate to let us get that community mental health consultation. And then ultimately hopefully have [defendant]
transported to the Oregon State Hospital for an evaluation
to be completed to then see whether [an order under ORS
161.370] is appropriate at that time.”
The court responded, “Well, then, that’s kind of a
problem, because I think that [ORS 161.365] is for when someone has not been evaluated. He’s been evaluated by a qualified
mental health professional.” Based on its review of Stoltzfus’s
report, the court agreed with defense counsel that “there
doesn’t appear to be the proper diagnosis for [an ORS 161.370]
order.” Because Stoltzfus did not diagnosis defendant with a
qualifying mental disorder, the court concluded that “we don’t
need a hearing to do a Community Restoration order.”2
2
The parties have not explained why a delusional disorder would not serve
as a qualifying mental disorder under ORS 161.360, but that point is undisputed,
Cite as 331 Or App 477 (2024) 483
The trial court thus denied defense counsel’s
request for a consultation with a community mental health
program director and also denied the request that it understood defense counsel to be making for an order under ORS
161.370:
“[Court]: So if we have evidence that there are medical
records that need to be accessed, that’s one thing. If we just
don’t know … or there may not be, then I don’t see … the
point of sending him to the State Hospital to do an evaluation that will be equally as good as Dr. Stol[tzfus].
“So the motion for [an ORS 161.370 order] this morning is denied for lack of proper diagnosis from—again,
Dr. Stol[tzfus] is a very well qualified mental health provider. So the motion for [an ORS 161.370 order] is denied.
“I will—maybe we can do a Community Restoration
Evaluation, but again, that presupposes he’s unable to aid
and assist. So at this point the Defense motions for those
findings are denied.
“So, [defense counsel], I just don’t know how to make
legal findings without proper evaluation. So I guess I just,
by default, find that he is able to aid and assist because
there’s not a proper diagnosis, and this matter should
remain on for trial.”
On appeal, defendant argues that the trial court
erred when it denied his request for a consultation with
a community mental health program director under ORS
161.365(1) (2019). In defendant’s view, the trial court—if
it had reason to doubt defendant’s fitness to proceed—was
required to order a community mental health consultation.
And defendant maintains that the court had ample reason
to doubt his fitness, given Stoltzfus’s report and testimony,
and given reports from defendant’s mother that he suffered
from schizophrenia. In contrast, the state maintains that
the court did not have reason to doubt his fitness because
Stoltzfus concluded that defendant did not have a qualifying
mental disorder (and thus could not be found to be unfit). We
review whether the trial court correctly construed its obligations to order a community mental health consultation
so we accept it for purposes of this appeal without expressing any opinion on the
issue.
484 State v. Heriman
under ORS 161.365(1) for errors of law.3 Dayton v. Jordan,
302 Or App 256, 257,
460 P3d 525, rev den,
366 Or 492
(2020). We agree with defendant that the trial court erred
in concluding that, because Stoltzfus did not find that defendant had a qualifying mental disorder, the court was not
required to order a community mental health consultation.
We further conclude, however, that the error was harmless.
The “reason to doubt” a defendant’s fitness to proceed standard “is not a bright line test.” State v. Cunningham,
164 Or App 680, 687-88,
995 P2d 561 (2000). The difficulty
in delineating such a line perhaps stems from the broad
meaning of the phrase “reason to doubt.”4 See Kostyshyn v.
State, 51 A3d 416, 420 (Del 2012) (noting that courts have
“avoided providing a precise, all encompassing, definition of
the circumstances that will create ‘a reason to doubt’ the
defendant’s competence” and have instead adopted an openended definition of the term that can include reliance on a
defendant’s behavior, demeanor, and relevant medical opinion). Although not conducive to an exact definition, examining the separate meanings of “reason” and “doubt” nevertheless provides some guidance. “Reason” is defined as “a
consideration, motive, or judgment inducing or confirming a
belief, influencing the will, or leading to an action or course
of action”; “a rational ground or motive[.]” Webster’s Third
New Int’l Dictionary 1891 (unabridged ed 2002). “Doubt”
means “to be uncertain or undecided in opinion of or belief”;
“to lack confidence in”; “consider unlikely or improbable”;
“uncertainty of belief or opinion”; “the subjective state of
being uncertain of the truth of a statement or the reality of
an event as a result of incomplete knowledge or evidence.”
Webster’s at 679.
3
Both parties suggest that our standard of review is for abuse of discretion.
While that is the appropriate standard in determining whether the court correctly denied an evaluation by a psychiatrist or psychologist—see ORS 161.365(1),
providing that the court may order an evaluation—whether the court must order
a community mental health consultation when it has “reason to doubt” a defendant’s fitness presents a question of statutory construction.
4
The legislative history reveals that the legislature intended to incorporate
the Model Penal Code’s “reason to doubt” standard. Commentary to Criminal
Law Revision Commission Proposed Oregon Criminal Code, Final Draft and
Report § 51, 47-48 (July 1970). Unfortunately, the Model Penal Code does not
define that phrase or its intended scope.
Cite as 331 Or App 477 (2024) 485
Considering the separate meanings of “reason” and
“doubt” and in the context of ORS 161.365, the phrase “reason to doubt” suggests that there are circumstances that
provide the court with rational grounds to be uncertain or
undecided as to whether a defendant is fit to proceed by
reason of incapacity. The phrase is a broad one and is not
dependent upon any particular level of medical, psychological, or other relevant information or evidence.
A diagnosis of a qualifying mental disorder could
provide the court with “reason to doubt.” That said, and contrary to what the trial court concluded, the inverse is not necessarily true. In other words, there can be reason to doubt—
i.e., rational grounds to be uncertain about—a defendant’s
fitness even if a psychologist has examined them and concluded that, given the available information, the defendant
does not have a qualifying diagnosis. The trial court thus
erred in concluding that because defendant did not have a
qualifying mental condition, it could not order a community
mental health consultation under ORS 161.365(1).
The trial court also viewed the community mental health consultation as unnecessary because to order
one “presupposes” that defendant was unable to aid and
assist. We appreciate that, as ORS 161.370 contemplates,
the community mental health consultation findings become
relevant only after a court concludes that a defendant has a
qualifying mental disorder and lacks fitness to proceed; as
described above, in that event, the court must consider the
consultation’s findings to assess whether services to restore
a defendant’s fitness are available in the community. But
as framed, ORS 161.365(1) mandates a community mental
health consultation “when the court has reason to doubt the
defendant’s fitness to proceed by reason of incapacity”; that
mandate is not dependent upon whether a court ultimately
finds that a defendant is unable to aid and assist.
That said, for that very reason, the error here is
harmless. See State v. Davis, 336 Or 19, 32,
77 P3d 1111
(2003) (error is harmless if there is little likelihood that
the error affected the verdict). Had the court ordered a
community mental health consultation, that consultation
would have been relevant only if the trial court found that
486 State v. Heriman
defendant had a qualifying mental disorder and was unfit
to proceed. Here, the court concluded that defendant did not
have a qualifying mental disorder and thus declined to find
that he was unfit to proceed. Defendant has not challenged
that ruling. To the contrary, as emphasized in his reply brief,
defendant assigns error only to “the trial court’s denial of his
‘request for consultation with a community mental-health
program.’ ”5 He did not additionally or alternatively assign
error to the trial court’s conclusion under ORS 161.370.
Thus, because the community mental health consultation
that defendant sought, and the trial court wrongly denied,
would only have mattered had the court’s ruling under ORS
161.370 been before us, the error is harmless.
Affirmed.
5
For that same reason, we disagree with defendant’s contention that we
must use the federal harmlessness standard. As framed on appeal, the error is
procedural in nature and involves a violation of state statute.
