State v. Oldfield

694                   February 12, 2025                  No. 84

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                TERRY JACOB OLDFIELD,
                   Defendant-Appellant.
               Columbia County Circuit Court
                   22CR26780; A181162

   Denise E. Keppinger, Judge.
   Submitted October 30, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
   KAMINS, J.
   Affirmed.
Cite as 

 (2025)                                695

         KAMINS, J.
          Defendant appeals a judgment convicting him of fleeing or attempting to elude a police officer, ORS 811.540(1)(b)(A),
and reckless driving, ORS 811.140. In his sole assignment of
error, defendant contends that the trial court erred by declining to give his requested instruction requiring the jury to
find that defendant knew that the vehicle pursuing him was
an “appropriately marked” police vehicle. After reviewing for
legal error, State v. Prophet, 

, 

, rev den, 

 (2022), we affirm.
         We briefly review the law as it relates to culpable
mental states: “[C]riminal liability generally requires an act
that is combined with a particular mental state. The statute
defining an offense determines its applicable mental state
(or mental states), as informed by the Oregon Criminal Code
general culpability provisions, ORS 161.085 to 161.115.”
State v. Simonov, 

, 

 (2016) (internal quotation marks, citation, and footnote omitted). And
in determining if the legislature intended for a culpable
mental state to attach to an element, or what that mental
state should be, our typical framework for statutory interpretation applies: we consider the statutory text, its context,
“as well as any useful legislative history of which we are
aware.” State v. Maskell, 

, 

(2024) (citing State v. Gaines, 

, 

 (2009)); Prophet, 

 (“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.” (Emphasis added.)).
         However, that framework carries an additional
gloss when analyzing offenses outside the criminal code,
like fleeing or attempting to elude a police officer: elements may not carry a culpable mental state at all if the
statute reflects a “clear” legislative intent to omit one. ORS
161.105(1)(b) (noting that an element of an offense defined
by a statute outside of the criminal code will have no culpable mental state if the statute “clearly indicates a legislative intent to dispense with a culpable mental state” as to
that element); State v. Ruggles, 

, 242
696                                              State v. Oldfield

P3d 643 (2010), rev den, 

 (2011) (“[C]ulpable mental state questions call for some nuanced variations on the
ordinary analysis. For example, ORS 161.105(1)(b) requires
us to look for not only indications of legislative intent, but
for clear indications.” (Emphasis in original.)); Prophet, 

 n 3 (first citing ORS 161.105(1), then citing
State v. Rainoldi, 

, 

 (2011)). If
the legislature did not “clearly indicate[ ]” that no mental
state should apply to a particular element, and the statute
does contain a mental state, we apply that mental state to
each nonprocedural element of the crime unless the text,
context, and legislative history indicate that the legislature
intended otherwise. Prophet, 

, 347 n 8.
          To determine whether the legislature has “clearly
indicate[d]” an “intent to dispense with a culpable mental
state” for an element, we apply a nonexclusive four-factor test,
outlined by the Supreme Court in Rainoldi, examining (1) “the
text of the statute defining the offense itself”; (2) “the nature
of the element at issue”; (3) “the legislative history of the statute that defines the offense at issue”; and (4) whether “requiring proof of … a mental state could frustrate the obvious
purpose of the statute.” 

; see also Simonov,

 (noting Rainoldi’s “four-factor test”). Applying
that test here, we conclude that the legislature “clearly indicate[d]” its intent that no culpable mental state should apply
to the element of the police car being appropriately marked.
        Starting with the text, in relevant part, ORS
811.540 provides,
      “(1) A person commits the crime of fleeing or attempting to elude a police officer if:
      “(a) The person is operating a motor vehicle; and
      “(b) A police officer who is in uniform and prominently
   displaying the police officer’s badge of office or operating a
   vehicle appropriately marked showing it to be an official
   police vehicle gives a visual or audible signal to bring the
   vehicle to a stop, including any signal by hand, voice, emergency light or siren, and either:
       “(A) The person, while still in the vehicle, knowingly
   flees or attempts to elude a pursuing police officer; or
Cite as 

 (2025)                             697

       “(B) The person gets out of the vehicle and knowingly
   flees or attempts to elude the police officer.”
         The text cuts against defendant’s argument. First,
the text itself does not grammatically support the application of a “knowing” mental state to the element of whether
a police vehicle is “appropriately marked.” The word “knowingly” appears directly next to the clause “flees or attempts
to elude,” and not the “vehicle appropriately marked” clause.
See State v. Christian, 

, 

 (2013)
(explaining that the adverb “recklessly” served to modify only “the phrase that immediately follows it”); State v.
Wiborg, 

, 

 (2017) (observing
that “grammatical structure” of statute “offers helpful clues
to the statute’s meaning”); Maskell, 

 (looking to location of adverb within clause to evaluate requisite
culpable mental state).
          In fact, the legislature placed the requirement of
the vehicle being “appropriately marked” in a separate subsection, before “knowingly.” Although we have previously
considered how far “down” a sentence a mental state may
“travel,” Prophet, 

 (citing State v. Schodrow,

, 

 (2003)), it is far less likely
the legislature intended for a mental state to travel “up”
into a prior subsection. Thus, although not dispositive, the
placement of the adverb “knowingly” directly next to “flees
or attempts to elude”—and in a wholly different subsection
after the “appropriately marked” element—provides some
indication that the legislature did not intend for it to apply.
         We turn next to the “nature of the element at issue,”
Rainoldi, 

. The parties both contend, and we
agree, that the “appropriately marked” element is a “circumstance” element. See Simonov, 

 (defining “circumstance” element); State v. Rapp, 

, 267

, rev den, 

 (2020) (explaining that
ORS 811.540 criminalizes knowingly fleeing or eluding an
officer “under certain statutorily specified circumstances”).
Unlike “conduct” elements, “that describe the nature or
essential character of the defendant’s act or omission,”
Simonov, 

, “circumstance” elements “do[ ] not
change the essential character of the prohibited conduct.”
698                                                         State v. Oldfield

 (noting that value of property for crime of theft “is
a circumstance; it is an accessory fact that accompanies, not
modifies, the defendant’s conduct”). For the crime of “fleeing
or attempting to elude a police officer,” the “essential character of the prohibited conduct” is the act of fleeing or eluding
a pursuing police officer.
         Historically, “circumstance” elements that the legislature considered to be “attendant” to the commission of
the offense for crimes outside the criminal code generally
did not require proof of a culpable mental state. Rainoldi,

; see also State v. Turnidge (S059155), 

, 

 (2016), cert den, 

 (2017)
(“When the legislature makes an element an ‘attendant circumstance’ to the commission of an offense, as contrasted
with an aspect of the prohibited conduct, the element generally does not require proof of a mental state, unless, of course,
the legislature indicates otherwise.”). For example, in State
v. Rutley, 

, 

 (2007), the Supreme
Court held that, for the crime of delivery of a controlled substance, the attendant circumstance that the delivery occur
within 1,000 feet of school did not carry a culpable mental
state. Id.; see also Rainoldi, 

 (no culpable mental state for attendant circumstance status of being a felon
for the purpose of the offense of felon in possession).1 Thus,
the type of element factor, too, weighs in favor of concluding
that the legislature clearly intended to dispense with a mental state as to the “appropriately marked” element.
         Most importantly, requiring proof of a culpable
mental state as to the element of the police car’s markings
     1
       To be clear, for offenses inside the criminal code non-procedural “attendant
circumstance” elements are “material element[s] of the offense that necessarily
require[ ] a culpable mental state.” ORS 161.095(2); see also Prophet, 

 (all elements other than venue, statute of limitations, and the like
require mental state). However, for offenses outside the criminal code, whether
an element is an “attendant circumstance” is one of the considerations in the
multi-factor analysis to determine whether the legislature clearly intended to
dispense with a mental state. Rainoldi, 

 (“[T]here is a difference
… between elements of an offense that pertain to the conduct of the defendant
and those that pertain … to an ‘attendant circumstance’ to the commission of
the offense. The former type of element is generally regarded as the type that
requires proof of a culpable mental state, while the latter is not.”); cf State v.
Jimenez-Correo, 

, 

 (2012) (applying test from
Rainoldi but noting that “classifying the element in that way in this case does not
evince a clear legislative intent regarding culpable intent one way or another”).
Cite as 

 (2025)                               699

would frustrate the obvious purpose of the statute. Rainoldi,

 (final factor of test to determine when legislature “clearly indicated” an intent to dispense with culpable
mental state for element of offense outside of criminal code);
Ruggles, 

. The statute was enacted as part
of the Oregon Vehicle Code, the purpose of which is “[t]o provide maximum safety for all persons who travel or otherwise
use the public highways of this state.” ORS 801.020(11)(a);
see State v. Redding, 

, 121 n 4, 

(2023) (so stating); State v. Thomas, 

,

 (1990) (looking to ORS 801.020(11)(a) to interpret other provisions in the vehicle code). To carry out the
policy of “provid[ing] maximum safety,” the legislature has
chosen to make it a crime for a person to knowingly flee or
attempt to elude a police officer in an appropriately marked
vehicle that gives a signal to stop. Requiring a culpable
mental state would frustrate the purpose of the vehicle code,
because it would allow defendants to escape liability merely
because they did not know whether a police car was appropriately marked—or did not know what markings were
“appropriate.”
          When considering whether including a culpable mental state would frustrate obvious legislative intent, Ruggles is
instructive. 

. In that case, the defendant
was charged with refusing “to obey a lawful order” by a police
officer, ORS 162.247(1)(b). The issue was whether the state
needed to prove that the defendant knew that the order he
refused to obey was lawful. We held, “decisively,” that the
legislature clearly intended to dispense with a culpable mental state as to the lawfulness of the order, because such a
requirement “would severely complicate enforcement of the
statute, if not render enforcement impossible.” 

 In doing so,
we noted that the question of whether an order is lawful or not
is complex and difficult for ordinary citizens to resolve. 

 (“It is difficult to imagine a prosecution in which the state
could prove that a defendant knew or should have known that
a particular order was lawful.” (Emphasis in original.))
       Similarly, the average person is unlikely to have
mastered the intricacies of police vehicle markings, or
even know which markings render a vehicle “appropriately
700                                          State v. Oldfield

marked.” In fact, such a requirement would carry with it
a perverse incentive for motorists to actively avoid knowing whether the police car pursuing them had appropriate
markings. See Rutley, 

 (holding that no mental
state required for 1,000-foot distance requirement because
it would “create an incentive for drug dealers not to identify
schools, and not to take into consideration their distance
from them in engaging in their illegal activity” (emphases in
original)). Under defendant’s proposed construction, a driver
who knowingly flees a police officer but lacks awareness of
the officer’s vehicle’s markings has, perplexingly, not committed the crime of fleeing a police officer. And even under
a lesser criminal negligence culpable mental state, a defendant could still escape liability by showing that their failure
to be aware of whether the car was appropriately marked
was not “a gross deviation from the standard of care that
a reasonable person would observe in the situation.” ORS
161.085(10). The legislature could not have intended such a
result.
         Accordingly, the trial court did not err by refusing
to give a jury instruction that misstated the law, because
the legislature clearly intended to dispense with a culpable
mental state as to the “appropriately marked” element of the
offense of fleeing or attempting to elude a police officer.
        Affirmed.