State v. Smith

No. 479                 July 10, 2024                     667

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
                 AMY LYNN SMITH,
                 Defendant-Appellant.
            Klamath County Circuit Court
   21CR59631, 21CR60063; A179590 (Control), A179591

   Alycia E. Kersey, Judge. (Case No. 21CR59631, Judgment
entered August 25, 2022)
   Kelly N. Kritzer, Judge. (Case No. 21CR60063, Judgment
entered August 25, 2022)
   Submitted May 31, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Joyce, Presiding Judge, Lagesen, Chief Judge, and
Armstrong, Senior Judge.
   LAGESEN, C. J.
   Convictions on Count 1 in Case No. 21CR60063 and
Count 1 in Case No. 21CR59631 reversed and remanded for
entry of judgment of conviction for a single count of felon in
possession of a firearm; remanded for resentencing; otherwise affirmed.
668   State v. Smith
Cite as 

 (2024)                                              669

           LAGESEN, C. J.
         In this consolidated criminal case, defendant appeals
a judgment of conviction for first-degree manslaughter,
unlawful possession of a weapon, and two separate counts of
felon in possession of a firearm. Defendant waived her right
to a jury and was convicted by the court in a stipulated facts
trial.1 The charges stemmed from an incident in which she
fatally shot her boyfriend, D. On appeal, she first assigns
error to the trial court’s denial of her pretrial motion to
declare borderline personality disorder a “qualifying mental disorder” for purposes of a defense of either (1) guilty
except for insanity (GEI) under ORS 161.295, or (2) partial
responsibility under ORS 161.300. Defendant asserts that
her ability to rely on those defenses was thwarted by the
trial court’s denial of her pretrial motion. Next, defendant
assigns error to the trial court’s failure to merge the felonin-possession verdicts charges. The state concedes the second assignment of error. We affirm on the first and accept
the state’s concession and reverse on the second.
         Qualifying mental disorder. In her first assignment
of error, defendant argues that the trial court erroneously
denied her motion to declare borderline personality disorder
a qualifying mental disorder for purposes of ORS 161.295
(providing for a GEI defense based on a qualifying mental
disorder) and ORS 161.300 (providing that evidence of a
qualifying mental disorder is admissible when relevant to
a defendant’s intent). Whether a particular condition is a
“qualifying mental disorder” for purposes of those statutes
is a question of law, making our review for legal error. See,
e.g., Beiswenger v. PSRB, 

, 

(2004) (treating the determination as one of law).
        ORS 161.295(1) provides the elements a defendant
must prove to qualify for the GEI defense: (1) “qualifying
mental disorder”; (2) lack of “substantial capacity either to
appreciate the criminality of the conduct or to conform the
    1
      The state charged defendant with murder. But, relying in part on defendant’s borderline personality disorder, the trial court found that defendant was
suffering an extreme emotional disturbance (EED) at the time of the crime, so
found her guilty of the lesser-included offense of manslaughter. See ORS 163.118;
ORS 163.135.
670                                                             State v. Smith

conduct to the requirements of law”; and (3) “a causal link
between the two.” ORS 161.295(1); State v. Meiser, 

, 

 (2022) (Meiser I). ORS 161.300 similarly makes evidence of a qualifying mental disorder admissible when relevant to the assessment of whether a defendant had the requisite criminal intent. This case presents
the question of whether borderline personality disorder is a
“qualifying mental disorder” for purposes of those statutes.
         Rather than define with particularity what conditions are qualifying mental disorders, the legislature has
specified what conditions are not:
       “[T]he term ‘qualifying mental disorder’ does not include
    an abnormality manifested only by repeated criminal or
    otherwise antisocial conduct, nor does the term include any
    abnormality constituting solely a personality disorder.”
ORS 161.295(2) (emphasis added); see also Beiswenger, 

 (“ORS 161.295, however, explicitly imposes
some limits on the term by describing what is not included
….” (Emphasis in original.)).
         Defendant acknowledges that the plain text of the
statute excludes personality disorders from the list of qualifying mental diseases or defects. Nonetheless, pointing to
the legislative history of the personality-disorder exclusion,
she argues that, notwithstanding the legislature’s stated
intention to exclude personality disorders from consideration for purposes of the defenses under ORS 161.295 and
ORS 161.300, the fact that borderline personality disorder
was not among the disorders specifically mentioned when
that exclusion was adopted supports the conclusion that the
legislature did not intend to preclude borderline personality
disorder as a qualifying mental disorder.2
           We reject that argument for two reasons.
    2
      Defendant also notes that the trial court stated that it was denying defendant’s motion because defendant failed to present expert testimony. She argues
that that ruling was erroneous because, under our case law, whether a disorder
qualifies as a personality disorder is a question of law. Thus, in defendant’s view,
the trial court erred by treating the issue as one of fact. We agree with the parties
that, on this record, the question is one of law. To the extent the trial court viewed
the issue as one of fact, that does not provide grounds for reversal because we
conclude, as a matter of law, that borderline personality disorder is a personality
disorder for purposes of ORS 161.295
Cite as 

 (2024)                                                671

         First, although we have recognized that the term
“personality disorder” is ambiguous, that was in the context
of assessing whether conditions not specifically designated
as personality disorders under the Diagnostic and Statistical
Manual of Mental Disorders (DSM) qualified as personality
disorders under the statute. Beiswenger, 

.3
As we concluded in Beiswenger, the statutory term “personality disorder” includes sexual misconduct disorders and alcohol and drug dependency. 

 (stating that it is “plausible that the legislature could have intended” the inclusion
of these conditions under the term personality disorder”). We
have never held that a disorder that is specifically classified
as a personality disorder under the DSM-III does not qualify
as a personality disorder under the plain terms of the statute.
         On the contrary, the Supreme Court has recognized that the term must be considered in the “context of
professional disciplines such as psychiatry and psychology,
although here, of course, [its] application has specific legal
consequences.” Tharp v. PSRB, 

, 

 (2005). Viewed in that context, the most natural reading of the term “personality disorder” in ORS 161.295 is as
including all disorders specifically designated as personality disorders in the DSM, in addition to other disorders that
have the characteristics identified in Beiswenger. Had the
legislature intended that one or more of the disorders designated in the DSM as personality disorders not be treated
as personality disorders for purposes of ORS 161.295, we
think it would have been clearer about that intention by, for
example, identifying such disorders specifically.
         Second, contrary to defendant’s argument, the
legislative history suggests that the legislature intended
     3
       In Beiswinger, we looked to the DSM-III in assessing whether a condition
was an excluded personality disorder. See Diagnostic and Statistical Manual of
Mental Disorders (3d ed rev 1987) (DSM-III-R). More recently, we have looked to the
DSM-5 when evaluating psychiatric terms of art. See Diagnostic and Statistical
Manual of Mental Disorders (5th ed 2013) (DSM-5); see, e.g., State v. A. B. K.,

, 

 (2022). In so doing, we did not address a potential timing issue: whether to look to the edition of the DSM available at the time
the legislature promulgated a particular term, or whether to look to the edition
of the DSM available at the time of the decision. We need not resolve that potential timing issue here because, as the state points out, both the DSM-III and the
DSM-5 classify borderline personality disorder as a personality disorder. DSM-III at 305, 321-23; DSM-5 at 663.
672                                            State v. Smith

the phrase “personality disorder” to be expansive, so as to
narrow the availability of the defenses described in ORS
161.295 and ORS 161.300. Tharp, 

 (“The bill
as amended further limits the scope of mental diseases or
defects for which a person may be found, under present law,
‘not responsible.’ ” (Quoting Staff Measure Analysis, House
Committee on Judiciary, HB 2075 (1983).)). Although defendant is correct that the history does not appear to address
borderline personality disorder specifically, that “oftrepeated” history, as recounted recently in Meiser II, is
“replete with references to the legislature’s intent to narrow the availability of the GEI defense.” State v. Meiser,

, 

 (2023) (Meiser II), rev’d
and remanded on other grounds, 

 (2024); see also
Meiser I, 

 (the 1983 amendment excluding
personality disorders intentionally “narrows access to the
defense set out in subsection (1)”). In our view, it would be
at odds with that history to conclude that a disorder specifically classified as a personality disorder can nevertheless
constitute a qualifying mental disorder under ORS 161.295
or ORS 161.300.
        For those reasons, the trial court did not err in
denying the motion to declare borderline personality disorder a qualifying mental disorder.
         Merger. In support of her second assignment of
error, defendant asserts that, under State v. O’Dell, 

, 

 (2014), the trial court plainly
erred when it failed to merge the guilty verdicts on the felonin-possession charges. The state concedes that the trial
court plainly erred. We agree, accept the state’s concession,
and exercise our discretion to correct the error. See State v.
Ferguson, 

, 

 (2016) (holding that it was appropriate to exercise discretion to correct
the trial court’s error in failing to merge multiple guilty
verdicts).
         Convictions on Count 1 in Case No. 21CR60063 and
Count 1 in Case No. 21CR59631 reversed and remanded for
entry of judgment of conviction for a single count of felon in
possession of a firearm; remanded for resentencing; otherwise affirmed.