State v. Meiser

438                            June 13, 2024                              No. 21

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                  STATE OF OREGON,
                  Respondent on Review,
                             v.
                  ERIK JOHN MEISER,
                   Petitioner on Review.
         (CC CR1201547) (CA A166534) (SC S070059)

   On review from the Court of Appeals.*
   Argued and submitted September 14, 2023.
   Daniel J. Casey, Portland, argued the cause and filed the
briefs for petitioner on review.
   Joanna R. Hershey, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  Before Flynn, Chief Justice, and Duncan, Garrett,
Bushong, James and Masih, Justices, and Nakamoto, Senior
Judge, Justice pro tempore.…
   DUNCAN, J.
   The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
  Bushong, J., concurred and filed an opinion, in which
Nakamoto, S.J., joined.
  James, J., concurred and filed an opinion, in which
Masih, J., joined.



______________
    * Appeal from Clackamas County Circuit Court, Katherine E. Weber,
Judge. 

, 

 (2023).
   … DeHoog, J., did not participate in the consideration or decision of this case.
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440                                                State v. Meiser

          DUNCAN, J.
        This criminal case requires us to construe ORS
161.295, which defines the “guilty except for insanity” (GEI)
defense. Subsection (1) of ORS 161.295 provides that
     “[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.”
By its terms, ORS 161.295(1) requires a connection between
the person’s lack of capacity and the person’s mental disease or defect: The lack of capacity must be “a result of” the
mental disease or defect. The issue in this case concerns the
meaning of “as a result of.”
        For the reasons explained below, we conclude that
“as a result of” must be given its plain, natural, and ordinary meaning, and, therefore, to prove the GEI defense,
a defendant must show that their lack of capacity was a
“consequence” or “effect” of their mental disease or defect.
The defendant’s mental disease or defect may combine with
another condition to cause the lack of capacity, and the
mental disease or defect need not be sufficient on its own
to cause the lack of capacity. Because the Court of Appeals
held otherwise, we reverse and remand.
                       I. BACKGROUND
         This is the second time that this case is before this
court. The historical facts of the case are recounted in the
earlier decisions of both the Court of Appeals and this court.
State v. Meiser, 

, 

 (2021),
rev’d, 

, 

 (2022) (Meiser I); State v.
Meiser, 

, 

 (2022) (Meiser II);
State v. Meiser, 

, 

 (2023)
(Meiser III). For the purposes of this decision, a summary of
the trial and appellate proceedings is sufficient.
A.    Trial Court Proceedings
       Based on an incident in 2012, defendant was
charged with multiple crimes, including several counts of
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aggravated murder and burglary. The aggravated murder
charges were based on the killing of one person, FH.
         The trial court repeatedly found defendant unfit to
stand trial by reason of incapacity. See ORS 161.360 (providing that a defendant may be found incapacitated if unable
to understand the nature of the proceedings, to assist and
cooperate with defense counsel, or to participate in the
defense). Defendant spent nearly four years confined at the
Oregon State Hospital before the trial court found him fit to
stand trial.
        Defendant waived his right to a jury, and the case
proceeded to a bench trial. Defendant did not dispute that
he had committed the charged acts, but he raised a GEI
defense. As mentioned, the GEI defense is defined by ORS
161.295, which provides, in full:
        “(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, § 3.1

     1
       Because the crimes charged in this case were committed in 2012, the 2011
version of ORS 161.295 applies. All references to the statute in this opinion are to
the 2011 version.
     In ORS 161.295(2), the reference to “chapter 743, Oregon Laws 1971,” is to the
Oregon Criminal Code of 1971, of which the GEI defense is a part. Or Laws 1971,
ch 743, § 36.
     In 2017, the legislature amended ORS 161.295 to replace the term “mental disease or defect” with the term “qualifying mental disorder,” a term that
the legislature thought had fewer negative connotations. Or Laws 2017, ch 634,
§ 3. In the preamble to the bill that made the change, the legislature explained
that it did not intend to “mak[e] a substantive change” in the law and wanted
to preserve “the validity of all previous court decisions interpreting” the prior
wording. Id., preamble. Although we are mindful of the negative connotations of
the phrase “mental disease or defect,” we use it in this opinion because it is the
applicable statutory phrase.
442                                               State v. Meiser

        The GEI defense is an affirmative defense. ORS
161.305. A defendant bears the burden of proving the elements of the defense by a preponderance of the evidence.
ORS 161.055(2). As ORS 161.295(1) provides, to prove the
GEI defense, a defendant must prove three elements:
      (1) they suffered from a mental disease or defect
      (2) that resulted in
      (3) a lack of substantial capacity either (a) to appreciate the criminality of their conduct or (b) to conform their
   conduct to the requirements of the law.
In addition, as ORS 161.295(2) provides, a mental disease
or defect does not include two types of abnormalities, specifically, (1) those manifested only by repeated criminal or
antisocial conduct and (2) those constituting solely a personality disorder.
        At trial, defendant called four mental health professionals to testify in support of his GEI defense. As we
recounted in our prior decision, defendant
   “offered the testimony of 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. One of the psychiatrists explained that, as a symptom of defendant’s schizophrenia, defendant experienced ‘command auditory hallucinations’—voices that defendant believed to be telepathic
   communications from unseen entities—although defendant
   did not experience ‘the kind of overwhelming command auditory hallucinations some other psychotic individuals have.’
       “Two of the experts addressed the other elements of the
   GEI defense. Both testified that, at the time of the crimes,
   defendant lacked substantial capacity to conform his conduct to the requirements of the law. And both testified that,
   if not for the psychosis, defendant would not have committed the crimes. One of the experts specifically rejected
   the suggestion that defendant’s ‘conduct [was] a result of
   antisocial personality disorder rather than schizophrenia.’
   The other opined that both of defendant’s conditions were
   ‘active’ at the time of the murder but that defendant’s psychosis associated with his schizophrenia ‘was more the predominant driver of his behaviors.’ ”
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Meiser II, 

 (brackets in Meiser II). The
state did not offer any contrary expert testimony; instead,
it raised arguments about the applicable legal tests for the
defense and the sufficiency of defendant’s evidence.
         Sitting as the factfinder, the trial court found that
defendant had proved the GEI defense for some counts, but
not for the aggravated murder counts or for one of the burglary counts. On the aggravated murder counts, the trial
court found defendant guilty of murder as a lesser-included
offense and merged the guilty verdicts into a single conviction. On the burglary count, the trial court found defendant
guilty of second-degree burglary as charged.
         The trial court did not address either the parties’
disputes regarding what defendant was required to show
to prove the elements of the GEI defense or their disputes
regarding whether defendant’s evidence was sufficient to
prove those elements. Instead, the trial court stated its verdicts without elaboration, as a jury does in the absence of a
special verdict form.
B. Meiser I
         Defendant appealed, raising several assignments of
error, including one asserting that the trial court had erred
by rejecting his GEI defense to the murder charge.2 Because
the trial court had not expressed the basis for its rejection of
the defense, defendant addressed all three elements of the
defense. The first element—that defendant suffered from a
qualifying mental disease or defect at the time of the murder, specifically, schizophrenia—was not disputed. The second and third elements—whether, as a result of his schizophrenia, defendant lacked the requisite capacity either to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law—were disputed. As
to each of those elements, the parties disagreed about what
a defendant must show to prove the element and whether
defendant’s evidence compelled a finding that he had made
that showing.

    2
      Defendant did not challenge the trial court’s rejection of his GEI defense on
the burglary charge.
444                                           State v. Meiser

         Regarding the second element—that a defendant’s
lack of capacity must be “a result of” a mental disease or
defect—defendant asserted that, as a legal matter, a defendant’s lack of capacity is “a result of” a mental disease or
defect if the mental disease or defect is a cause of the lack
of capacity, even if it combines with other causes. Therefore,
if his schizophrenia was a cause of his lack of capacity, he
could establish the second element, even if his personality
disorder was also a cause of his lack of capacity. The state,
on the other hand, argued that a defendant’s lack of capacity
must be solely attributable to the defendant’s mental disease
or defect. So, the state urged, if defendant’s schizophrenia
combined with his personality disorder to cause his lack of
capacity, defendant could not prove the second element. The
Court of Appeals agreed with the state, ruling that, to prove
the second element of the GEI defense, a defendant must
show that their lack of capacity resulted solely from a mental disease or defect. Meiser I, 

. Therefore,
the court concluded, the GEI defense is not available to a
defendant if the defendant’s lack of capacity resulted from a
combination of a mental disease or defect and a personality
disorder. 

         The Court of Appeals then applied its understanding of the GEI defense to the evidence in the case. 

 at 582-
86. Because the GEI defense is an affirmative defense and
the trial court had determined that defendant had failed
to carry his burden in proving it, the question for the court
was whether the evidence, viewed in the light most favorable to the state, compelled a conclusion that defendant had
proved that his asserted lack of capacity at the time of the
murder was solely attributable to his schizophrenia. 

 (describing standard of review). The court summarized defendant’s evidence and noted that he had presented
expert testimony that his lack of capacity was caused by his
schizophrenia. 

. But, based on the experts’ testimony and defendant’s statements about the crimes, the
court concluded that a reasonable factfinder could find that
any lack of capacity that defendant experienced was caused
by a combination of his schizophrenia and his personality
disorder. 

 That is, “the evidence permitted the factfinder
to conclude, at the least, that defendant’s schizophrenia and
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antisocial personality disorder were both active impairments.” 

 “Therefore, defendant did not establish, as a
matter of law, the causation element of the GEI defense.” 

.3
C. Meiser II
        On defendant’s petition, we allowed review of
Meiser I to address the parties’ disagreement about the elements of the GEI defense, specifically, their disagreement
“about whether ORS 161.295 requires proof that defendant
experienced the requisite incapacity solely ‘as a result of’
his schizophrenia, and not in any part as a result of his
co-occurring antisocial personality disorder.” Meiser II, 369
     3
       The Court of Appeals noted, but did not resolve, the parties’ disputes about
the third element of the GEI defense, specifically, their disputes about (1) what
a defendant must show to prove that they lacked the requisite capacity to appreciate the criminality of their conduct, and (2) whether the evidence compelled
either a conclusion that defendant lacked the requisite capacity to appreciate the
criminality of his conduct or a conclusion that he lacked the requisite capacity
to conform his conduct to the requirements of law. 

 (noting the parties’ dispute about whether a defendant’s ability to “appreciate the criminality”
of their conduct depends on a “subjective moral standard” and explaining that
it did not need to resolve that dispute because “the trial court’s rejection of the
GEI defense is already justified by the facts that permit the trial court to have
found that defendant’s asserted incapacity, in whatever form, is not the result of a
mental disease or defect”); 

 (noting that it did not need to determine
whether the evidence compelled a finding that defendant had been unable to conform his conduct to the requirements of law because “[t]he evidence permitted
the trial court, sitting as factfinder, to reject the GEI defense” on the ground that
defendant had failed to prove that any incapacity he experienced at the time of
the murder was solely attributable to his schizophrenia).
    In addition, the Court of Appeals rejected defendant’s other assignments of
error, including one asserting that the trial court had erred by declining to set
out its conclusions of law regarding his GEI defense. 

. Defendant
based that assignment of error on State v. Colby, 

, 

(2018). In Colby, the Court of Appeals held that the trial court had erred when,
during a bench trial in which the parties disputed the required elements of a
crime, it declined the defendant’s request that it identify its understanding of the
elements. 

. Based on Colby, the Meiser I court noted that,
    “in a bench trial, ‘there is no fixed procedural means of preserving a challenge to the trial court’s determinations as to the elements of a crime, nor
    is the trial court required to express its ruling in a particular way.’ Yet, a
    request may be appropriate, even if made unconventionally, as when pointing
    out in a bench trial a dispute that is reflected in conflicting jury instructions
    before the court.”

 (quoting Colby, 

 (internal citations omitted)).
But the Meiser I court did not reach defendant’s argument regarding the trial
court’s failure to set out its conclusions of law because defendant “did not adequately preserve [his] request for a ruling on a disputed point of law.” 

446                                              State v. Meiser

Or at 349 (emphasis in original). Applying our methodology
for statutory interpretation, we examined the text and legislative history of ORS 161.295. Meiser II, 

.
        We began by looking at ORS 161.295(2), which
establishes exclusions to the term “mental disease or defect.”
Meiser II, 

. Again, that subsection provides:
   “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(2). We explained that the exclusion of “ ‘an
abnormality manifested only by repeated criminal or otherwise antisocial conduct’ ” has been a part of ORS 161.295
since the statute’s enactment as a section of the Oregon
Criminal Code of 1971. Meiser II, 

 (quoting
Or Laws 1971, ch 743, § 36 (emphasis in Meiser II)). We further explained that the exclusion was intended to prevent
the GEI defense from being used by “a category of offenders whom the drafters did not view as possessing ‘a mental disease or defect.’ ” Meiser II, 

. “[T]he category of concern was ‘psychopaths’ (or ‘sociopaths’),” and the
legislature addressed that concern “by specifying that ‘the
terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise
antisocial conduct.’ ” 

 (quoting Or Laws 1971, ch 743, § 36
(emphasis in Meiser II)). The purpose of the exclusion was
“to prevent ‘recidivists’ from ‘qualify[ing] for the defense
merely by being labeled psychopaths.’ ” Meiser II, 

 (quoting Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 36, 35 (July 1970) (brackets in Meiser II)).
Based on the text of the exclusion and its legislative history,
we concluded that, although the legislature intended to preclude defendants from using the GEI defense based solely
on having been labeled a psychopath or a sociopath, it did
not intend to preclude defendants who suffered from both a
mental disease or defect and another condition from using
the defense. Id. We explained that,
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   “[b]y structuring the statute to exclude those who were
   ‘merely’ labeled as ‘psychopaths,’ (or those demonstrating
   ‘an abnormality manifested only by repeated criminal or
   otherwise antisocial conduct,’) the legislature left open the
   possibility that the defense could be available to offenders
   who suffered from ‘a mental disease or defect’ in addition
   to whatever label attached to their repeated criminal or
   antisocial conduct. And we understand the legislature to
   have intentionally struck that balance.”

 (emphasis in original; internal citations omitted).
         We also examined the other exclusion in ORS
161.295(2), that is, the exclusion of “any abnormality constituting solely a personality disorder.” Meiser II, 

. We explained that the legislature added that exclusion
in 1983, and the legislative history regarding the exclusion
showed that the legislature intended to remove “the category of disorders characterized only as personality disorders
from the larger group of ‘mental disease or defect’ that can be
relied on for use of the insanity plea under ORS 161.295(1).”
Meiser II, 

 (internal quotation marks omitted). We noted that the legislative history also showed that
the legislature’s choice to use the term “only” was intended
“to indicate that a person who has ‘a personality disorder
plus a psychosis … may still qualify’ ” for the defense.

 at 357 (quoting Tape Recording, House Committee on
Judiciary, HB 2075, May 13, 1983, Tape 324, Side A (statement of Jeffrey Rogers) (ellipses in Meiser II)). Based on its
text and legislative history, we concluded that the 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). But it does not make the defense so narrow as 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, 

. Therefore, we concluded that
the Court of Appeals had erred in holding that “defendant
could prevail on his GEI defense only if he proved that his
co-occurring personality disorder played no part in causing
the requisite lack of substantial capacity.” 

 (emphasis
448                                                       State v. Meiser

in original). Because the Court of Appeals “did not consider—
except under the ‘sole cause’ test …—whether the evidence
compelled a finding that defendant proved that he had experienced any qualifying incapacity ‘as a result of mental disease
or defect,’ ” we remanded the case to the Court of Appeals. 

We noted that, to determine whether defendant had proved
the required connection, the Court of Appeals might have to
determine whether the legislature intended to require that a
mental disease or defect be “sufficient, on its own,” to bring
about the requisite lack of capacity, or whether it intended a
“lesser degree of causal contribution.” Id.4
D. Meiser III
        On remand, the Court of Appeals asked the parties
to submit supplemental briefs regarding the nature of the
required connection between a defendant’s mental disease or
defect and the requisite lack of capacity, and the parties did.
         Based on the text and context of the phrase “as a
result of,” defendant argued that “result” should be given its
plain, natural, and ordinary meaning, that is, “something
that proceeds or arises as a consequence, effect, or conclusion of something else.” Applying that meaning, defendant
further argued that the evidence that he had presented
compelled the conclusion that, at the time of the murder, he
was incapacitated “as a consequence or effect proceeding or
arising from his schizophrenia.”
         The state, on the other hand, argued that the phrase
“as a result of” should be construed to impose a “standard
of independent sufficiency.” Therefore, the state argued, if a
defendant raising a GEI defense has both a mental disease
or defect and a personality disorder, the defendant must
show that the mental disease or defect would have brought
about the requisite lack of capacity on its own. Applying
that standard, the state argued that defendant’s evidence
did not compel a conclusion that defendant’s schizophrenia
was sufficient, on its own, to bring about the requisite lack
of capacity.
    4
      We also noted that the issue of whether defendant’s evidence compelled a
conclusion that he had proved the third element of the defense—that he lacked
the requisite capacity—was still an open one, because the Court of Appeals had
not needed to address it in Meiser I. Meiser II, 

.
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        The Court of Appeals agreed with the state, ruling that, in order for a defendant to prove that their lack
of capacity was “a result of” their mental disease or defect,
the defendant must show that, “standing alone,” the mental
disease or defect “was sufficient, at the time of the criminal conduct, to bring about the incapacity.” Meiser III, 

; see also 

 (the required causal connection is “one of independent sufficiency” (internal quotation marks omitted)).
         Applying that standard, the Court of Appeals held
that the record did not show that defendant had proved the
causation element of his GEI defense as a matter of law. 

. That is, the record—viewed in the light most favorable
to the state as it had to be, see Meiser I, 

(setting out standard of review)—did not compel a finding
that, at the time of the murder, defendant’s schizophrenia
was sufficient, by itself, to bring about the requisite lack of
capacity. Meiser III, 

. The court acknowledged that both a psychologist, Beaver, and a psychiatrist,
Choi, had testified that defendant “was experiencing command-auditory hallucinations, a hallmark of schizophrenia, on the day of the murder.” 

 It also acknowledged that
Beaver had testified that, at the time of the murder, defendant was “floridly psychotic” and would not have committed
the crimes if not for his “active psychosis,” and that Choi
had testified that, during and after the murder, defendant
was “highly psychotic,” and without the psychosis “would
not have committed the crimes.” 

. The experts’ testimony was corroborated by evidence 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.”
450                                              State v. Meiser

 

 (ellipses in original). The Court of Appeals concluded that the evidence “would certainly permit a finding”
that “defendant’s asserted lack of substantial capacity …
was ‘the result of’ his schizophrenia under [an] independent
sufficiency measure.” 

 (emphasis in original). But
the court went on to say that that was “not the only finding that could reasonably be derived from [the] record.” 

Pointing to Choi’s testimony that defendant’s schizophrenia
and personality disorder “both were active” and defendant’s
statement that he had “lashed out” in anger when he killed
FH, the court concluded that a factfinder could find that
defendant’s schizophrenia was not sufficient, on its own, to
bring about his lack of capacity:
   “[E]ven 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 was sufficient—independent of his antisocial personality disorder—to bring about his lack of substantial capacity
   at the time of the act.”

 (emphasis in original). Consequently, the Court
of Appeals affirmed the trial court’s judgment. 

.
        On defendant’s petition, we allowed review to
determine the connection that a defendant must establish
between their mental disease or defect and their lack of
capacity in order to prove the GEI defense.
                        II. ANALYSIS
         The issue on review presents a question of statutory
interpretation, to which we apply the methodology set out
in State v. Gaines, 

, 

 (2009).
Our goal is to ascertain the intent of the legislature that
enacted the provision at issue. SAIF v. Ward, 

, 

 (2022). To do so, we look first to the text
of the provision, in context, which is the best evidence of
the legislature’s intent. Gaines, 

. We may then
look to the legislative history of the provision, giving it the
weight we deem appropriate. 

.
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A.    Text
         We begin with the text of ORS 161.295, which we
set out again:
         “(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.”
         As discussed, to prove the GEI defense, a defendant
must show that, “as a result of” a mental disease or defect,
they lacked the substantial capacity to appreciate the criminality of their conduct or to conform their conduct to the
requirements of the law. Thus, the defendant must show a
connection between their mental disease or defect and their
lack of capacity. The key term in the legislature’s expression
of the required connection is “result.” The legislature did not
define that term, and it is a term of common usage. “When
the legislature has not specially defined a term of common
usage, we generally assume that the legislature intended to
use the term in a manner consistent with its ‘plain, natural,
and ordinary meaning,’ and we often consult dictionaries for
guidance in determining what the legislature would have
understood a term to mean.” Kinzua Resources v. DEQ, 

, 

 (2020).
         The term “result,” when used as a noun, as it is
in ORS 161.295(1), is defined as “something that results as
a consequence, effect, issue, or conclusion.” Webster’s Third
New Int’l Dictionary 1937 (unabridged ed 2002). That definition uses the verb form of “result,” which means “to proceed, spring, or arise as a consequence, effect, or conclusion.” 

 Neither definition indicates that a “result” must
be attributable to a single cause or an independently sufficient cause.
452                                                             State v. Meiser

          The definitions of “result” as a noun and a verb
use several terms, and, of those terms, “consequence” and
“effect” fit best in the context of the GEI defense. See Jenkins
v. Board of Parole, 

, 

 (2014) (relying on context to determine which, among multiple dictionary definitions, the legislature intended); State v. Fries,

, 

 (2008) (same). Although it is
possible to say that a person’s lack of capacity “issued from”
or was “a conclusion of” their mental disease or defect, it is
more natural to say that their lack of capacity was “a consequence of” or an “effect of” their mental disease or defect.
          The definitions of “consequence” and “effect” support
the view that a “result” may have multiple causes. The term
“consequence” is defined as “something that is produced by a
cause or follows from a form of necessary connection or from
a set of conditions,” as in the phrase “this refined taste is the
[result] of education and habit.” Webster’s at 482. Similarly,
the term “effect” is defined as “something that is produced
by an agent or cause : something that follows immediately
from an antecedent : a resultant condition,” as in the example “low mortality, the [result] of excellent social services
available in every village.” Id. at 724. Thus, the fact that
“result” is defined as a “consequence” or “effect” indicates
that a “result” may flow from “a set of conditions.” Id. at 482.
          To summarize, the legislature’s use of the term
“result”—a term of common usage—indicates that the GEI
defense applies if a defendant proves that they lacked the
requisite capacity as a “consequence” or “effect” of their mental disease or defect. Id. at 1937. It further indicates that the
lack of capacity need not be solely attributable to the mental
disease or defect; a “set of conditions” can combine to result
in the lack of capacity. Id. at 482.5
    5
      Because “result” is a word of common usage and there is no indication that
the legislature intended it to have a specialized meaning, we look to its common
meaning. But, even if we were to assume that the legislature intended “result”
to have a legal meaning, the meaning would be the same, because the common
meaning of the term, as set out in Webster’s, tracks the legal meaning, as set out
in Black’s Law Dictionary. When the Oregon Criminal Code was enacted, Black’s
defined the noun “result” to mean “[t]hat which results, the conclusion or end to
which any course or condition of thing leads, or which is obtained by any process or operation; consequence or effect.” Black’s Law Dictionary 1478 (rev 4th ed
1968). Similarly, it defined the verb version of “result” as “[t]o proceed, to spring,
or arise, as a consequence, effect, or conclusion ….” Id.
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B.   Context
          Those indications are supported by the immediate
context of the phrase “as a result of.” Notably, the legislature did not modify “result.” ORS 161.295(1) simply provides
that “[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 lacked the requisite capacity. The
statute does not say, for example, that “a person is guilty
except for insanity if, solely as a result of mental disease or
defect ….” Nor does it say that “a person is guilty except for
insanity if, primarily as a result of mental disease or defect
….” Nothing in the text of ORS 161.295(1) suggests that a
defendant’s lack of capacity can be “a result of” the defendant’s mental disease or defect only if the mental disease or
defect rises to a certain degree or amount or accounts for a
certain portion of the defendant’s lack of capacity. The provision does not require, for example, that a defendant’s mental
disease or defect must be a major cause or an independently
sufficient cause of the defendant’s lack of capacity.
         The fact that, in ORS 161.295(1), the legislature did
not modify “result” with a quantitative descriptor is significant on its own. But its significance is heightened because
another subsection of the same statute, ORS 161.295(2),
shows that, when the legislature first enacted the GEI statute in 1971 and when it later amended it in 1983, it was
aware that a person’s mental condition can result from a combination of causes. PGE v. Bureau of Labor and Industries,

, 

 (1993) (a statutory term’s
context includes other sections of the same statute).
         As we explained in Meiser II, when ORS 161.295
was originally enacted in 1971, subsection (2) of the statute limited the definition of “mental disease or defect” by
providing that “the terms ‘mental disease or defect’ do not
include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Or Laws 1971, ch 743,
§ 36 (emphasis added). The purpose of that exclusion was
“to prevent ‘recidivists’ from ‘qualify[ing] for the defense
merely by being labeled psychopaths.’ ” Meiser II, 369 Or at
360 (quoting Commentary § 36 at 35 (brackets in Meiser II;
emphasis added)). In 1983, the legislature amended ORS
454                                           State v. Meiser

161.295(2) to add an exclusion for “any abnormality constituting solely a personality disorder.” Or Laws 1983, ch 800,
§ 1 (emphasis added). The exclusions in ORS 161.295(2) show
that, in both 1971 and 1983, the legislature was alert to the
fact that an “abnormality” can result from a combination of
conditions. They also show that the legislature intended to
prevent abnormalities resulting “only” or “solely” from certain conditions—specifically, psychopathy and personality
disorders—from being the basis for a GEI defense. They do
not, however, show that the legislature intended to prevent
abnormalities resulting from a combination of conditions
from being the basis of a GEI defense. If the legislature
had intended to limit the availability of the GEI defense to
situations where a defendant’s lack of capacity was “only”
or “solely” the result of the defendant’s mental disease or
defect, it could have. Likewise, if it had wanted to limit the
availability of the defense to situations where the defendant’s lack of capacity was an “independent” result of the
defendant’s mental disease or defect, it could have.
          The broader context of ORS 161.295 further indicates that “result” should be given its plain, natural, and
ordinary meaning and that a “result” may flow from a combination of conditions. As mentioned, ORS 161.295 was
enacted as part of the Oregon Criminal Code. Or Laws
1971, ch 743, § 36. As we will explain, this court has already
construed similar causation requirements in other statutes
enacted as part of the code and held both that the term
“cause” should be given its plain, natural, and ordinary
meaning and that, in situations where multiple acts combine to bring about a result, each act is a “cause.” We did so
first in State v. Murray, 

, 

 (2007), and
then in State v. Turnidge (S059155), 

, 

 (2016).
         In Murray, we construed ORS 163.165, which provides that a person commits third-degree assault if the person “[r]ecklessly causes serious physical injury to another by
means of a deadly or dangerous weapon.” (Emphasis added.)
The parties disputed the meaning of “cause.” Murray, 

. We noted that the legislature had not defined the
Cite as 

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term and that it was a term of common usage, and we looked
to the term’s dictionary definition:
       “The word ‘cause’ is not defined in the criminal statutes.
   It is, however, a word of common usage, which we presume
   the legislature intended to be given its plain, natural, and
   ordinary meaning. The dictionary defines the verb ‘cause’
   as follows: ‘1: to serve as a cause or occasion of : bring into
   existence: MAKE (careless driving … accidents) … 2: to
   effect by command, authority or force.’ Webster’s [at 356].”
Id. at 52 (first citation omitted; second ellipses in Murray).
Accordingly, we ruled that a person “causes” serious physical injury to another if the person “brings about, makes, or
effects by force the serious injury of another person.” Id.
         We applied that rule to the facts of the case. In
Murray, the defendant had been charged with third-degree
assault for injuring the victim in a car crash. Id. at 51. The
defendant owned an automobile shop that converted conventional cars into race cars, and the victim was his employee.
Id. at 50. The car crash occurred while the defendant was
test driving a race car and the victim was voluntarily riding
with him. Id. At trial, the defendant moved for a judgment
of acquittal on the third-degree assault charge, asserting
that he was not criminally responsible for the victim’s injuries because the victim was a voluntary participant in the
reckless activity that led to his injuries. Id. at 51. This court
rejected that argument, ruling that a person commits third-degree assault if the person recklessly causes serious physical injury to another person, “no matter the role of the other
person in the reckless conduct.” Id. at 52.
         This court followed Murray in Turnidge. In that
case, we construed the criminal homicide statute, ORS
163.005(1), which applies when a person “causes the death
of another.” We reviewed the text, context, and legislative
history of the homicide statute, and we concluded that the
term “cause” should be given its plain, natural, and ordinary meaning. Turnidge, 

. As in Murray, we
derived that meaning from the term’s dictionary definition.

. We then applied that meaning to the facts of
the case and again concluded that a result may follow from
a combination of conditions. 

.
456                                           State v. Meiser

         In Turnidge, the defendant was charged with multiple crimes, including aggravated murder, attempted aggravated murder, and assault. 

. The charges were
based on an incident during which a bomb was found outside
a bank and then brought inside the bank, where it exploded
when law enforcement officers attempted to disarm it. 

. The explosion killed two persons and injured two
others. 

. The state’s theory was that the defendant
had helped build and place the bomb. 

. The
state did not contend that the defendant had detonated the
bomb; its evidence suggested that the bomb was detonated
as a result of how it was handled after it was found or as
a result of a stray radio signal. 

. The defendant moved for a judgment of acquittal on the ground that
the state’s evidence was insufficient to prove that he had
caused the deaths and injuries. 

. On review,
we rejected that argument, holding that the state’s evidence
of the defendant’s conduct provided an ample basis for the
jury to find that he had caused the deaths and injuries, and
we noted that the defendant’s role “did not have to be the
last link in the chain, or the only one, for the jury to make
that determination.” 

. Later, when discussing jury
instructions on causation, we stated that “a defendant’s conduct ‘causes’ a result if it brings about, makes, or effects by
force that result, ‘no matter the role’ of another person and
regardless of [the] other person’s reckless participation.” 

at 483 (quoting Murray, 

); see also 

 (explaining that, for the purposes of the criminal statutes at issue,
causation does not “depend on a comparison of a defendant’s
causal role with that of the victim or some third party”).
         To summarize, the context of the phrase “as a
result of” in ORS 161.295(1) indicates that “result” should
be given its plain, natural, and ordinary meaning. It shows
that the legislature was alert to the fact that conditions can
combine to cause a lack of capacity and that it knew how to
use quantitative descriptors to address situations involving
a single condition. The fact that the drafters did not use a
quantitative descriptor to modify “result” indicates that the
legislature did not intend to impose a quantitative requirement on the connection between a defendant’s mental disease or defect and their lack of capacity. In addition, the GEI
Cite as 

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defense is part of the Oregon Criminal Code, and Murray
and Turnidge show that, when construing statutes in the
code, this court has given a similar term, “cause,” its plain,
natural, and ordinary meaning. Murray and Turnidge also
illustrate that multiple factors may combine to bring about
a result, and, if they do, each of the factors is a “cause.”
Murray, 

; Turnidge, 

. And they
illustrate that whether a factor is a “cause” does not depend
on its relative contribution to bringing about the result.
Murray, 

; Turnidge, 

.
C. Legislative History
         The legislative history does not indicate otherwise.
The commentary to the final draft of the Oregon Criminal
Code states that section 36 of the final draft, which became
ORS 161.295, was based on section 4.01 of the Model Penal
Code (MPC). Commentary § 36 at 34. The parties have not
identified, and we have not found, anything in the legislative history of either the Oregon Criminal Code or the MPC
that indicates that the drafters of either code intended
“result” to have anything but its plain, natural, and ordinary meaning. They have not identified, and we have not
found, any discussions of the nature of the connection that
must exist between a defendant’s mental disease or defect
and their lack of capacity in order for the GEI defense to
apply. Nothing in the legislative history indicates that the
legislature intended to make the GEI defense available only
if a defendant’s mental disease or defect rose to a certain
degree or amount or accounted for a certain portion of their
lack of capacity. In other words, nothing in the legislative
history indicates that the legislature intended to attach a
quantitative requirement to the connection between a defendant’s mental disease or defect and their lack of capacity. If
we were to attach one, we would be adding words to the statute and wholly speculating about what the degree, amount,
or portion should be.
         It is true, of course, in both 1971 and 1983, the legislature intended to put some limits on the GEI defense.
They did so through ORS 161.295(2), which narrows the
definition of “mental disease or defect.” But, as we explained
in Meiser II, the legislative history from 1971 shows that
458                                           State v. Meiser

the legislature did not intend to preclude defendants who
suffered from both a mental disease or defect and another
condition from being able to use the defense. Meiser II,
369 Or at 360. As we further explained, the 1983 legislature “intended to retain that balanced approach when it
amended subsection (2) to also exclude ‘personality disorders’ from the definition of ‘mental disease or defect.’ ” Id.
That additional exclusion narrowed the availability of the
GEI defense, but it did not make the defense “so narrow as
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.” Id. at 360-61.
         Just as we have not found anything in the legislative history of ORS 161.295 to indicate that the legislature
intended a defendant’s mental disease or defect to be the
sole cause of their lack of capacity, we have not found anything in the legislative history to indicate that the legislature intended a defendant’s mental disease or defect to be
an independently sufficient cause of their lack of capacity.
Thus, nothing in the legislative history leads to a conclusion
other than the one that follows from the plain text and context of ORS 161.295. To the contrary, the legislative history
reinforces the idea that, in both 1971 and 1983, the legislature was aware that conditions can combine to result in a
lack of capacity and that, contrary to the Court of Appeals’
conclusion in Meiser III, it did not intend to limit the availability of the GEI defense to situations where a defendant’s
mental disease or defect, “standing alone,” was sufficient to
bring about the requisite lack of capacity.
D. Summary and Conclusion
          As we have explained, the plain text of ORS
161.295(1) states that a person is “guilty except for insanity” if, “as a result of” their mental disease or defect, the
person “lacks substantial capacity either to appreciate the
criminality of the conduct or to conform the conduct to the
requirements of law.” To determine the meaning of “as a
result of,” we have applied our established method of statutory interpretation and examined the text, context, and legislative history of ORS 161.295(1). Gaines, 

.
Cite as 

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Each of those indicators of legislative intent support giving
“result” its plain, natural, and ordinary meaning: “consequence” or “effect.”
         First, the text. The legislature did not define
“result,” and it is a term of common usage that means, as
relevant here, “consequence” or “effect.” Webster’s at 1937.
And a “consequence” or “effect” may flow from a “set of conditions.” 

.
         Multiple aspects of the context of ORS 161.295(1)
support giving “result” its plain, natural, and ordinary
meaning. The legislature did not modify the term “result”
in ORS 161.295(1); it did not include any quantitative limitations on the term. The legislature’s failure to do so is significant on its own, but its significance is heightened because
the legislature used such limitations—specifically, “only”
and “solely”—in ORS 161.295(2). Altogether, ORS 161.295
shows that the legislature intended the GEI defense to be
available if a defendant’s lack of capacity was a consequence
or effect of the defendant’s mental disease or defect, even if
it was also the consequence or effect of another condition.
In addition, giving “result” its plain, natural, and ordinary
meaning and recognizing that a result may flow from a combination of conditions is consistent with what this court did
in Murray and Turnidge when construing a similar term
in criminal statutes that were also enacted as part of the
Oregon Criminal Code. In those cases, this court used the
dictionary definition of “cause” and held that multiple factors may combine to bring about a result, and that each is a
“cause,” regardless of the relative contribution of each factor.
Murray, 

; Turnidge, 

.
         The legislative history is consistent with the text
and context. It indicates that the legislature intended to
impose some limits on the availability of the GEI defense
but that it did not intend to impose a quantitative requirement on the connection between a defendant’s mental disease or defect and their lack of capacity.
         Consequently, we reject the Court of Appeals’ conclusion that a defendant’s mental disease or defect must be “sufficient by itself” to bring about the requisite lack of capacity.
460                                                          State v. Meiser

E.    Response to Justice Bushong’s Concurrence
          We now address Justice Bushong’s concurrence, in
which he argues that (1) we could have resolved the meaning
of “as a result of” in Meiser II; (2) our conclusion that “result”
should be given its plain, natural, and ordinary meaning
fails to provide sufficient guidance to mental health experts
and trial courts; and (3) we should interpret “as a result of”
to require application of a “substantial factor” causation
standard he draws from civil negligence cases decided in the
1960s and 1970s. ___ Or at ___, ___, ___ (Bushong, J., concurring) (slip op at 4:8 - 5:5, 6:6 - 7:2, 12:13 - 13:7).6 As we will
explain, (1) in Meiser II, we did not address the issue that
we resolve in this opinion because the Court of Appeals had
not addressed it and the parties had not briefed it; (2) giving
“result” its plain, natural, and ordinary meaning is not confusing and is consistent with what we have done when construing required causal connections in other criminal cases;
and (3) we should not import the concurrence’s “substantial
factor” causation standard because (a) this court has already
stated that civil negligence standards of causation are an
“uneasy fit in the criminal law context,” Turnidge, 

 n 62; (b) the concurrence’s assertion that, when the
legislature adopted the Oregon Criminal Code, it intended
to import a “substantial factor” causation standard from
civil negligence law and reject a “but for” causation standard
is not supported by the legislative history that the concurrence relies on; and (c) the concurrence’s “substantial factor”
causation standard (i) would cause uncertainty and confusion because the term “substantial factor” is not defined and
has been understood in different ways, at different times and
in different contexts, and (ii) could be misleading because it
could suggest a quantitative requirement or a comparison of
the relative contributions of different factors, which—as the


     6
       We note that no party has advocated for use of a “substantial factor” test
in this case. The state has argued for an “independently sufficient” test: “[T]o
qualify for the GEI defense, a defendant must prove that his mental disease or
defect was independently sufficient to bring about the requisite lack of substantial capacity.” Defendant has argued that we give “result” its dictionary definition: Based on the “plain-meaning/ordinary-usage definition of ‘result,’ ” the
legislature “intended merely that the substantial incapacity be a consequence,
effect, issue, or conclusion proceeding or arising from mental disease or defect.”
Cite as 

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text, context, and legislative history just discussed show—
the legislature did not intend.
    1.   The Meiser II remand was appropriate.
         The concurrence appears to argue that we should
have resolved the meaning of “result” in Meiser II. ___ Or
at ___ (Bushong, J., concurring) (slip op at 4:8 - 5:5). We disagree. In Meiser II, the issue on review was whether the Court
of Appeals had erred in ruling that the GEI defense is not
available if a defendant’s lack of capacity resulted from both
a mental disease or defect and a personality disorder. Meiser
II, 369 Or at 349-50 (identifying issue on review); id. at 361
(same). Accordingly, the parties’ briefs focused on whether
the legislature intended to allow “combined causation” at
all. They did not address whether, if the legislature intended
to allow “combined causation,” it also intended to require
a certain degree of causal contribution from a defendant’s
mental disease or defect. We resolved the issue presented by
the Court of Appeals opinion and the parties’ briefing, holding that the Court of Appeals had “erred in concluding that
defendant could prevail on his GEI defense only if he proved
that his co-occurring personality disorder played no part in
causing the requisite lack of substantial capacity.” Meiser II,
369 Or at 361 (emphasis in original).
         We then explained that “[t]hat conclusion answers
the question that this court allowed review to address, but
it does not fully resolve whether defendant was entitled to
prevail on his GEI defense.” Id. That was, in part, because
the Court of Appeals had not considered—“except under the
‘sole cause’ test” that we rejected—“whether the evidence
compelled a finding that defendant proved that he had experienced any qualifying incapacity ‘as a result of mental disease or defect.’ ” Id. We observed that,
   “[a]s the state emphasizes, any 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.’ ”
462                                            State v. Meiser

Id. We also observed that defendant had not argued for a
specific standard of causation and that the amicus curiae
had argued for a “but for” standard of causation, that is,
“but for” the mental disease or defect the incapacity would
not have occurred. Id. at 361 n 10. We took no position on the
issue, and we remanded the case to the Court of Appeals, so
that the parties and the Court of Appeals could address it,
id. at 361-62, which they did.
         On remand, the parties submitted supplemental
briefing. Based on that briefing, the Court of Appeals issued
Meiser III, in which it ruled that, in order to prove the GEI
defense, a defendant must show that their mental disease or
defect was an independently sufficient cause of their lack of
capacity. 

. We allowed review to address
that new ruling, and we have done so in this opinion.
         The concurrence comments that, “if the dictionary
definition alone is sufficient,” we could have just said so in
Meiser II. ___ Or at ___ (Bushong, J., concurring) (slip op
at 4:18 - 5:2). To the extent that that comment is critical of
our reliance on the dictionary definition, we note that, when
construing a statutory term of common usage, “we generally assume that the legislature intended to use the term in
a manner consistent with its ‘plain, natural, and ordinary
meaning,’ and we often consult dictionaries for guidance in
determining what the legislature would have understood a
term to mean.” Kinzua Resources, 

. Of course,
“[i]n construing statutes, we do not simply consult dictionaries and interpret words in a vacuum. 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.” State v. Cloutier, 

,

 (2011) (emphasis in original). Accordingly, we
apply our method of statutory construction and look beyond
the text at issue to its context and legislative history. 

; Gaines, 

. We have done that here,
and our conclusion regarding the meaning of “result” is supported by those sources.
         The concurrence asserts that, in Meiser II, we
implicitly suggested that “result” should not be given its dictionary definition. ___ Or at ___ (Bushong, J., concurring)
Cite as 

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(slip op at 5:6-8). We disagree with that reading. Nothing in
Meiser II was intended to prejudge issues that the parties
and the Court of Appeals had not yet addressed.
         The concurrence points out that, in Meiser II, we
quoted the definition of “result.” ___ Or at ___ (Bushong,
J., concurring) (slip op at 5:2-5). That is true. We did so in
the context of explaining that the definition of “result” did
not support the Court of Appeals’ conclusion that a defendant’s mental disease or defect had to be the sole cause of
the defendant’s lack of capacity. We stated:
   “In ordinary usage, the term ‘result’ is not limited to the
   concept of sole causation. See Webster’s at 1937 (defining
   noun ‘result,’ most pertinently, as ‘something that results
   as a consequence, effect, issue, or conclusion’).”
Meiser II, 369 Or at 359-60. That was the full extent of our
reference to the dictionary definition of “result.” We used
the definition in our analysis of the statutory construction
issue presented in Meiser II. We were not addressing any
other statutory construction issue. In fact, we explicitly
stated that, although, as a matter of judicial efficiency, “this
court sometimes resolves issues beyond those as to which
we allowed review, rather than remanding to the Court of
Appeals to resolve remaining issues,” we were declining to
do so because “the remaining statutory construction issue
would benefit from consideration in the first instance by
the Court of Appeals.” Id. at 361-62. Thus, contrary to the
concurrence’s assertion, our reference to the dictionary definition of “result” was not an implicit suggestion that the
term should not be given its plain, natural, and ordinary
meaning. We used that meaning in our Gaines analysis of
the question presented then, just as we have used it in our
Gaines analysis of the question presented now.
    2. The plain meaning of “result” is clear and using it is
       consistent with case law.

        The concurrence’s second argument is that our
opinion does not clearly identify the test that the legislature
intended and does not provide adequate guidance to mental
health experts and trial courts. ___ Or at ___ (Bushong, J.,
concurring) (slip op at 6:6 - 7:2). We disagree. We are giving
464                                             State v. Meiser

the term “result” its plain, natural, and ordinary meaning,
taken from its dictionary definition. We do not think that
that meaning is unclear. It is straightforward, and factfinders—whether judges or juries—will be able to apply it.
Moreover, using the dictionary definition is consistent with
our case law. As recounted above, ___ Or at ___ (slip op at
19:2 - 21:19), we did the same thing with “cause” in both
Murray and Turnidge. Murray, 

 (applying dictionary definition of “cause”); Turnidge, 

(same).
      3. It is not appropriate to import the concurrence’s “substantial factor” causation standard into the GEI
         statute.
         Instead of giving “result” its plain, natural, and
ordinary meaning, the concurrence would hold that, to determine whether a defendant’s lack of capacity was “a result of”
their mental disease or defect, a court must apply a “substantial factor” test for causation. ___ Or at ___ (Bushong,
J., concurring) (slip op at 3:5-8). More specifically, it appears
that the concurrence would hold that a court must apply the
“substantial factor” test used in civil tort cases decided in
the 1960s and 1970s. ___ Or at ___ (Bushong, J., concurring)
(slip op at 12:13 - 13:7). We do not believe it is appropriate
to import the concurrence’s “substantial factor” causation
standard into the GEI statute for three reasons.
          a. This court has cautioned against importing
             civil law tort principles into criminal law.
         First, in Turnidge, we cautioned against importing civil law tort principles into criminal law. 

n 62. We noted that “long-standing observations” by scholars
“point out that civil law tort principles of causation are an
uneasy fit in the criminal law context,” both because tort and
criminal law involve different policy objectives and because
tort law issues are generally governed by common law, while
criminal law issues are generally governed by statute. 

Those observations predate the legislature’s enactment
of the Oregon Criminal Code. See 

 (citing Paul K. Ryu,
Causation in Criminal Law, 106 U Pa L Rev 773, 773, 803
(1958) for the proposition that “causation has received ‘scant
Cite as 

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attention’ in area of criminal law, as opposed to civil tort
law; in criminal law field, courts have not applied a uniform
law of causation, and principles should not necessarily track
civil law principles, because the policy objectives of tort and
criminal law are not the same”).
        b.    The concurrence’s “substantial factor” test is
             not supported by legislative history.
         Second, the legislative history of ORS 161.295 does
not support the concurrence’s claim that the legislature
intended to adopt a “substantial factor” causation standard.
As noted, nothing in the legislative history of either the
Oregon Criminal Code or the MPC indicates the nature of
the connection that must exist between a defendant’s mental disease or defect and their lack of capacity. And, the term
“substantial factor” does not appear anywhere in the legislative history of the GEI provision to the Oregon Criminal
Code. In fact, the term does not appear anywhere in the
commentary to the Oregon Criminal Code. Nothing in the
legislative history of the GEI statute indicates that the legislature intended to import a “substantial factor” causation
standard from civil negligence law into the GEI statute.
         To support its position, the concurrence relies on
the fact that the drafters of both the MPC and the Oregon
Criminal Code disfavored the rule regarding insanity set
out in Durham v. United States, 214 F2d 862, 874-75 (DC
Cir 1954), abrogated by United States v. Brawner, 471 F2d
969 (DC Cir 1972). But, as we will explain, Durham did not
concern the standard of causation.
        As we have explained, the GEI statute was based
on section 4.01 of the MPC. Commentary § 36 at 34. The
commentary to that section of the Oregon Criminal Code
explains that both the MPC and Oregon drafters declined
to adopt the Durham rule.
         The Durham rule was that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.” Durham, 214 F2d at 874-75 (emphasis
added). Thus, under the Durham rule, whether a defendant
was criminally responsible turned on whether their mental
disease or defect caused their conduct, not whether it caused
466                                           State v. Meiser

a lack of capacity. That was a problem because, under the
rule, a defendant was not criminally responsible if their
conduct was a product of their mental disease or defect,
regardless of whether they had the capacity to appreciate
the criminality of their conduct or conform their conduct to
the requirements of the law.
         To illustrate the problem, the MPC drafters provided a hypothetical: a situation where a person murders
a wealthy relative because, as a result of a mental disease
or defect, the person believes that they will inherit a large
amount of money. Model Penal Code § 4.01 comment 3 at 173
n 24 (Official Draft and Revised Comments 1985). Under
the Durham rule, the person could raise a defense based
on their mental disease or defect because there would be a
causal connection between the mental disease or defect and
their criminal conduct, even if they had been fully capable
of understanding the criminal nature of their conduct and
conforming their conduct to the requirements of the law.
The MPC and Oregon drafters rejected the Durham rule
because of that problem. Model Penal Code § 4.01 comment
5 at 159 (Tentative Draft No. 4 1955); Commentary § 36 at
35-36. They wanted to make sure that there was a causal
connection between a person’s mental disease or defect and
the requisite lack of capacity, and they did that by providing that a person is GEI when, as a result of a mental disease or defect, the person lacks the requisite capacity. Model
Penal Code § 4.01(1) (Proposed Official Draft 1962); ORS
161.295(1). Thus, the drafters’ rejection of the Durham rule
says nothing about the requisite standard of causation. The
rule did not set out any standard of causation, and the drafters’ rejection of it does not provide any support for the concurrence’s conclusion that the drafters intended to adopt a
“substantial factor” causation standard.
         The concurrence also mentions United States
v. Currens, 290 F2d 751, 774 (3rd Cir 1961), to which the
Oregon drafters referred. ___ Or at ___ n 13, ___, ___ n 16
(Bushong, J., concurring) (slip op at 19:5 n 13, 21:7, 21:7
n 16). In Currens, the court stated that “[t]he jury must be
satisfied that at the time of committing the prohibited act
the defendant, as a result of mental disease or defect, lacked
Cite as 

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substantial capacity to conform his conduct to the requirements of the law which he is alleged to have violated.” 290
F2d at 774. That rule is essentially the same as the rule in
ORS 161.295. It simply provides that the defendant’s lack of
capacity must result from the defendant’s mental disease or
defect. And, like ORS 161.295, it does not specify an amount
of causation. It does not say, for example, that the lack of
capacity must result solely from, primarily from, or substantially from the mental disease or defect.
         The Currens court explained that its rule allows for
consideration of the “total mental condition.” 290 F2d at 774.
That supports our interpretation of “result” as meaning a
“consequence” or “effect.” Giving “result” its plain, natural,
and ordinary meaning allows for consideration of a defendant’s “total mental condition,” because, as discussed above,
a “result” may flow from “a set of conditions.” Webster’s
at 482. Therefore, a defendant raising a GEI defense can
show the required connection between their mental disease
or defect and their lack of capacity by showing that their
mental disease or defect was a condition that contributed to
their lack of the requisite capacity.
         c.    The concurrence’s test is unclear, would
              cause uncertainty and confusion, and could be
              misleading.
          Third, although the concurrence asserts that using
the “substantial factor” causation standard would provide
clarity, ___ Or at ___, ___, ___ (Bushong, J., concurring)
(slip op at 1:18-19, 7:3-6, 17:2-9), it is difficult to see how that
would be the case because the concurrence does not define
“substantial factor” causation. This court had not defined
the term before 1971, nor had Black’s Law Dictionary. In
fact, this court has still not defined the term. The concurrence notes that the term has been used in civil negligence
cases and employment discrimination cases. ___ Or at ___
(Bushong, J., concurring) (slip op at 9:1 - 12:2). In both of those
contexts, the commentaries to the uniform jury instructions
relating to the term state that this court has not defined
“substantial factor.” The comment to the Uniform Civil Jury
Instruction on substantial factor causation in the negligence
context, UCJI 23.02, states that “the UCJI Committee could
468                                             State v. Meiser

find no Oregon case defining substantial factor in this context.” Comment to UCJI 23.02, Oregon State Bar Committee
on Uniform Civil Jury Instructions (Dec 2014) (emphasis in
original). Likewise, the comment to the “substantial factor”
instruction in the employment discrimination context, UCJI
59A.03, states that “[t]he Oregon Supreme Court has established the ‘substantial factor’ standard but has not defined
precisely what substantial factor means.” Comment to UCJI
59A.03, Oregon State Bar Committee on Uniform Civil Jury
Instructions (Dec 2011) (emphasis in original).
          Not only is the term “substantial factor” undefined,
it also has been used in different ways at different times and
in different contexts. See Burrage v. United States, 

, 

, 

 (2014) (“The judicial
authorities invoking a ‘substantial’ or ‘contributing’ factor
test in criminal cases differ widely in their application of
it.”); see also Restatement (Third) of Torts § 26 comment j
(2010) (“The ‘substantial factor’ rubric is employed alternately to impose a more rigorous standard for factual cause
or to provide a more lenient standard.”).
         The concurrence relies heavily on civil negligence
cases from the 1960s and 1970s. ___ Or at ___ (Bushong,
J., concurring) (slip op at 9:1 - 10:13). It asserts that “a substantial factor test was widely used” in those cases, and it
further asserts that the legislature intended to import that
causation standard into the GEI statute when it enacted the
Oregon Criminal Code in 1971. ___ Or at ___, ___ (Bushong,
J., concurring) (slip op at 12:13 - 13:1, 18:3 - 21:13). But, as
discussed above, nothing in the legislative history indicates
that the legislature intended to do so. And there is reason
to believe that they did not, given that they were creating a
statutory code, as opposed to relying on common law, and
given the different policy objectives of civil negligence and
criminal law. See Turnidge, 

 n 62. Moreover,
even assuming for the sake of argument that the legislature
intended to import “substantial factor” causation, it is not
clear what they would have understood “substantial factor”
to mean because, as we will explain, that term was used
in different ways during that time period, including in the
authorities cited by the concurrence.
Cite as 

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          It is important to understand that in the 1960s,
civil negligence law was evolving. Commentators and courts
were trying to disentangle factual causation, which asks
whether the defendant’s conduct was a cause of the plaintiff’s
injury, from the other policy limits on the scope of liability
that had been included within the element of proximate or
legal cause. See Turnidge, 

 (“Legal or proximate cause … expresses a policy judgment as to whether
conduct that factually caused harm should result in liability
or responsibility. The idea generally is that some conduct,
although an actual cause of harm, nevertheless should not
result in liability or responsibility for that harm.” (Emphasis
in original.)); see also Stoneburner v. Greyhound Corp. et al,

, 

 (1962) (“ ‘Legal cause,’ or, ‘proximate cause,’ in its larger aspect, covers, in general, all of
the limitations placed by the law upon the responsibility of
a person for his negligent conduct.” (Citing W. Page Keeton
et al, Prosser and Keeton on The Law of Torts § 9, 252 (2d ed
1955).)).
          The concurrence asserts that the term “substantial factor” was used to refer to factual causation. ___ Or
at ___, ___, ___ (Bushong, J., concurring) (slip op at 9:3,
9:10, 12:14). But that was not how it was always used in
the 1960s and 1970s. At times, this court used it to capture legal or proximate cause and concepts of relativity. For
example, in Sworden v. Gross, 

, 

(1966), this court stated that whether “proximate cause”
existed depended on whether a defendant’s negligence was
“a substantial factor in bringing about the injury or damage
in question.” Similarly, in Hills v. McGillvrey, 

, 

 (1965), this court equated “substantial”
and “proximate” cause. See also Furrer v. Talent Irrigation
District, 

, 

 (1970) (stating that
“[t]he term ‘substantial factor’ expresses a concept of relativity which is difficult to reduce to further definiteness”).
        Moreover, even when the term “substantial factor”
was used in connection with factual causation, it was understood in different ways, as the authorities cited by the concurrence illustrate. Some of the authorities regarded “but
for” causation as overinclusive and preferred “substantial
470                                              State v. Meiser

factor” causation as an alternative that excluded some causes
that would satisfy the “but for” test. ___ Or at ___ (Bushong,
J., concurring) (quoting Restatement (Second) of Torts § 431
comment a (1965)) (slip op at 12:8-12). But other authorities
did not view the “substantial factor” test as excluding any
“but for” causes and viewed the “substantial factor” test as
an improvement in rare situations where conduct should
satisfy the causation element but would fail the “but for”
test, such as when there were two independently sufficient
causes. ___ Or at ___ (Bushong, J., concurring) (citing Haas
v. Estate of Mark Steven Carter, 

, 

 (2023)) (slip op at 8:8-13). Thus, even assuming that we
should look to authorities from the 1960s and 1970s, those
authorities used the term “substantial factor” in different
ways. That fact would have been a reason for the legislature
not to import the term into the criminal law.
          The concurrence also cites post-1971 cases to support its view that the GEI statute requires “substantial factor” causation. ___ Or at ___, ___, ___ (Bushong, J., concurring) (slip op at 8:8 - 9:8, 10:14 - 12:2, 16:9 - 17:9). Of course,
those cases cannot inform our understanding of what the
1971 legislature meant. The concurrence uses them to say
that juries have been able to apply “substantial factor”
causation. But those cases apply different versions of “substantial factor” causation. If “substantial factor” causation
states different standards, then it is not a clear statement of
any standard.
          For example, sometimes “substantial factor”
causation is understood as “but for” causation. See, e.g., UCJI
59A.03 (“A substantial factor is one that made a difference
in an employment decision; that is, the decision would not
have been made without it. It need not be the only factor.”);
Comment to UCJI 59A.03 (noting that the Court of Appeals
has described the standard as a “but for” test). Sometimes it
is understood to exclude remote or trivial but-for causes. See,
e.g., California Civil Jury Instructions, CACI No. 430 (2024)
(defining “substantial factor” as a cause that is “more than
a remote or trivial factor”). And sometimes it is understood
to supplement “but for” causation to capture conduct that
should satisfy the causation element but would fail the “but
Cite as 

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for” test. See, e.g., Turnidge, 

 n 61 (the “substantial factor” test applies in those circumstances where
the “but for” test “provides an inadequate test of cause-infact” (citing W. Page Keeton et al, Prosser and Keeton on The
Law of Torts § 41, 266 (5th ed 1984))); Haas, 

(same).
         In addition, experience with “substantial factor”
causation has led commentators and courts, including this
one, to recommend tests and jury instructions that more
directly address causation issues. Restatement (Third)
§ 27 comment b; Haas, 370 at 754 n 8, 757 n 9; see David
W. Robertson, The Common Sense of Cause in Fact, 75 Tex
L Rev 1765, 1776, 1780 (1997) (“[C]ourts seem to feel that
it is appropriate to shift to the substantial factor vocabulary whenever the but-for test is proving difficult to work
with for whatever reason. … When courts begin turning
to the substantial factor vocabulary in a broader range of
cases [beyond multiple sufficient causes], valuable precision
of analysis is lost and nothing is gained.”). For example, in
Haas, we noted that “a substantial factor instruction may
not be the best way to instruct a jury on factual causation
because of the ambiguity that it can create.” 

n 9 (citing Keeton, Prosser and Keeton on The Law of Torts
§ 41 at 268 (recommending directly instructing the jury on
multiple sufficient causes rather than using substantial
factor instruction) and Restatement (Third) § 27 comment
b); see also Haas, 370 at 754 n 8 (noting that, in situations
where a “substantial factor” test has been used to capture
causes that would fail the “but for” test, such as a “multiple-sufficient-causal-set situation,” it may be appropriate “to
use an instruction that is specific to that situation rather
than a typical but-for or substantial factor instruction.”).
         Finally, “a substantial factor instruction that
informs a jury that, to find factual causation, it must find
that a defendant’s negligence was a ‘substantial’ or ‘important’ factor in causing the plaintiff’s injury may be misleading.” Haas, 

. Such an instruction
   “can lead a jury erroneously to believe that it must search for
   a most significant causal factor, when that is not required.
   This court has made it plain that, in considering the
472                                              State v. Meiser

   factual cause element of a negligence claim, the jury is not
   to examine whether one defendant’s causal role was relatively more important than that of another defendant.”

 (emphasis added).
          Thus, the concurrence’s “substantial factor” test
would not provide the guidance that the concurrence says
is needed. To the contrary, because “substantial factor” is
undefined and can mean different things to different factfinders, and because it may cause factfinders to believe that
they must quantify and compare relative contributions of
different causes, the “substantial factor” test could cause
uncertainty and confusion, and it could cause factfinders to
believe—contrary to what the legislature intended, as evidenced by the text, context, and legislative history of the
GEI statute—that the GEI defense does not apply unless
a defendant proves that their mental disease or defect
accounted for a specific (but unspecified) amount or portion
of their lack of capacity.
                     III.   CONCLUSION
        Because the Court of Appeals erred in its conclusion regarding what a defendant must show to prove the
required connection between their mental disease or defect
and their lack of capacity, we again remand the case to the
Court of Appeals.
        The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.
        BUSHONG, J., concurring.
         The majority opinion concludes that the Court of
Appeals erred in interpreting ORS 161.295, which required
defendant to prove that his requisite lack of capacity occurred
“as a result of “ a mental disease or defect to establish his
“guilty except for insanity” (GEI) defense. I agree with the
majority opinion that the “sufficient by itself” test adopted
by the Court of Appeals to establish that causal link was not
what the legislature intended, and I agree with the majority
opinion that, to establish a GEI defense, a defendant’s mental
disease or defect may combine with other conditions to cause
Cite as 

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the required lack of capacity. I also agree that the appropriate
disposition is to reverse and remand for further proceedings.
         I write separately because, in my view, the majority
opinion’s conclusion that the dictionary definition of the word
“result” is sufficient to define the causal link, neither reflects
what the legislature intended nor provides enough guidance
to mental health experts and trial courts when confronting the causation element of a GEI defense. Rather, when
the legislature adopted ORS 161.295 as part of Oregon’s
Criminal Code in 1971, I conclude that it intended for courts
to use substantial factor causation—which was widely used
by Oregon courts at that time—as the causal link required
to establish the GEI defense. In my view, that interpretation
provides appropriate guidance to mental health experts and
trial courts in resolving this complex factual issue.
         The majority opinion declines to adopt substantial factor causation, concluding that (1) the absence of a
“quantitative descriptor” in ORS 161.295(1) shows that
the legislature did not intend to adopt substantial factor
causation; (2) substantial factor causation is taken from
civil negligence law, and we have cautioned against using
civil negligence standards in the criminal law context; and
(3) unlike the dictionary definition adopted by the majority opinion, substantial factor causation is unclear, would
cause uncertainty and confusion, and could be misleading
to juries. But the majority opinion reads too much into the
absence of a “quantitative descriptor” in the statute, and
not enough from the fact that substantial factor causation
was widely used in civil negligence and other cases in the
1960s and 1970s. That fact alone suggests that the legislature intended to adopt substantial factor causation when it
enacted ORS 161.295(1) in 1971. Many juries have applied
substantial factor causation, suggesting that it is not as
unclear, uncertain, confusing, or misleading as the majority
opinion states. Those criticisms fairly apply to the majority opinion’s approach because, although it defines the term
“result,” it declines to endorse any established legal test for
the causation element of the GEI defense.
       Ultimately, although the difference between
our approaches boils down to the word “substantial,” the
474                                             State v. Meiser

distance between them is relatively short. Under the majority opinion’s decision, a defendant asserting a GEI defense
could establish the defense if the factfinder concludes that
their lack of capacity was “a result” or “a consequence” or
“an effect” of a mental disease or defect. That appears to be
just another way of saying that the mental disease or defect
must be a factor in causing the requisite lack of capacity.
Under the approach set forth below, to establish the GEI
defense, a defendant’s mental disease or defect must be a
substantial factor in causing the requisite lack of capacity.
         As I will explain, “substantial factor” is no less clear
than the dictionary definition of “result” adopted by the
majority opinion, and it is more likely what the legislature
intended when it enacted ORS 161.295(1) in 1971 against
the backdrop of well-established Oregon law at that time.
The test is also demonstrably well-suited to juries evaluating the factual complexity of co-occurring mental conditions. Accordingly, I would conclude that, to prevail on a GEI
defense, a defendant must prove that, when they committed
the offense at issue, their mental disease or defect was a
substantial factor in bringing about their lack of substantial capacity to appreciate the criminality of their conduct
or to conform their conduct to the requirements of law. And
I would remand this case to the Court of Appeals to decide
whether the evidentiary record compelled a finding that
defendant was GEI under that standard.
         I begin with a brief explanation of why the majority
opinion’s dictionary definition provides no more clarity than
substantial factor causation before turning to why substantial factor causation is what the legislature likely intended
when it adopted the GEI statute.
       THE MAJORITY OPINION’S DICTIONARY
                  DEFINITION
         The first time we addressed this case, we determined that the Court of Appeals had erred in State v. Meiser,

, 

 (2021) (Meiser I), when it concluded that “defendant could prevail on his GEI defense
only if he proved that his co-occurring personality disorder
played no part in causing the requisite lack of substantial
Cite as 

 (2024)                                                    475

capacity.” State v. Meiser, 

, 

 (2022)
(Meiser II) (emphasis in original). We remanded to the Court
of Appeals to address two unresolved questions: whether the
evidence in the record compelled findings that (1) defendant
lacked the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the law;
and (2) defendant lacked that requisite capacity “as a result
of” a mental disease or defect. 

 We indicated that resolution of the second 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.’ ” 

         Thus, in Meiser II, we identified—but did not
decide—another specific statutory interpretation issue
regarding the GEI statute, directed the Court of Appeals
to interpret that provision, and indicated that one interpretation that it could consider was the “sufficient by itself”
standard that the Court of Appeals ultimately adopted. Now
we reverse, indicating that the Court of Appeals erred in
adopting an interpretation that we had suggested it could
consider, and concluding that the dictionary definition of
“result” is sufficient to define the necessary causal link.1
         I do not see the point in allowing review twice in
this case to interpret ORS 161.295(1) without clearly deciding what causal link the legislature intended. Nor do I think
that a dictionary definition of the term “result” provides
mental health experts and trial courts adequate guidance
when they are confronted with a GEI defense. If the dictionary definition alone is sufficient, we could have just said so
in our discussion of that definition when we first addressed
the statutory interpretation question. See Meiser II, 369 Or
at 360 (noting that the dictionary defines “result,” when used
as a noun, to mean “something that results as a consequence,

    1
      In Meiser II, we explained that, to prove the affirmative defense of GEI
under this statute, a defendant must establish that three elements existed at the
time of engaging in criminal conduct: (1) a mental disease or defect; (2) a lack of
substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law; and (3) “a causal link between the
two.” 369 Or at 354.
476                                                            State v. Meiser

effect, issue, or conclusion” (citing Webster’s Third New Int’l
Dictionary 1937 (unabridged ed 2002) (emphasis added))).
          The fact that we did not decide the issue when we
cited the dictionary definition in Meiser II implicitly suggests that the definition of the term “result” does not resolve
the issue.2 Moreover, “we have cautioned against relying
solely on dictionary definitions to determine the meaning of
statutory terms ‘without critically examining how the definition fits into the context of the statute itself.’ ” Marshall v.
Pricewaterhouse Coopers, LLP, 

, 543, 

(2023) (quoting State v. Gonzalez-Valenzuela, 

,

 (2015)). That is because “[d]ictionary definitions
lack context and often fail to capture the nuanced connotations conveyed by the normal use of a term in a particular
context.” Gonzalez-Valenzuela, 

. “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.” State v. Cloutier, 

, 

 (2011) (emphasis in original). And where,
as here, a statute uses an ordinary word that has a specific
legal significance, we typically do not rely solely on a dictionary definition. See Kinzua Resources v. DEQ, 

, 

 (2020) (“[C]onsulting a dictionary does not
help us to resolve what the legislature intended the term
‘controlling’ to mean.”).
         If the dictionary definition of the word “result”
alone provided the clarity to which the majority opinion
aspires, then perhaps it would suffice to adopt that standard, notwithstanding our implicit suggestion in Meiser II
that simply defining that term does not resolve the issue.
But characterizing that definition as “plain, natural, and
ordinary” does not make its meaning any clearer or more
precise. A factfinder deciding whether a defendant’s lack of
substantial capacity at the time of the charged offense was a
    2
      The majority opinion indicates we could not have resolved the meaning of
“as a result of” in Meiser II because that would have “prejudged” an issue that
the parties and the Court of Appeals had not yet addressed. ___ Or at ___ (slip
op at 26: 8-10). But interpreting the statute is a legal question and we could have
decided that question if we thought that a dictionary definition resolved the issue.
My point is that our decision to remand in Meiser II after citing the dictionary
definition of “result” suggests that we did not consider the dictionary definition of
the statutory term to have provided an adequate and dispositive resolution.
Cite as 

 (2024)                                                    477

“result,” “consequence,” or “effect” of the defendant’s mental
disease or defect in the context of a co-occurring personality
disorder must still make a difficult assessment of the complex interactions of overlapping disorders that have challenged mental health experts for decades.3 I do not see why
the majority opinion believes that telling jurors to apply the
dictionary definition of “result” will leave them any more
certain or less confused than telling them to assess whether
the defendant’s mental disease or defect was a “substantial
factor” in causing the requisite lack of capacity.
         As I will explain, juries in Oregon and nationwide
have decided cases using substantial factor causation in various contexts for many decades, demonstrating that substantial factor causation has not caused as much uncertainty or
confusion as the majority opinion suggests. In my view, when
the legislature adopted ORS 161.295(1) in 1971,4 it intended
to place this difficult decision in the hands of juries by applying an accepted legal test that was preferred by this court at
the time. Additionally, a fair reading of the legislative history
of the statute provides some support for the conclusion that
the prevailing causation principle strikes the balance that
the legislature intended when it enacted the GEI statute.
         I summarize this court’s case law applying substantial factor causation before turning to the legislative history
of ORS 161.295.
           SUBSTANTIAL FACTOR CAUSATION
         Our case law analyzing causation in civil and criminal cases has generally addressed two different tests, “but
for” and “substantial factor” causation. In most cases, as we
have recognized, the two tests lead to the same result, and
    3
      As one commentator explained, “[t]he clinical ability to reliably distinguish the functional impact of impairments arising from personality disorders
from those of other co-occurring mental disorders … is simply not supported in
clinical literature and experience.” Robert Kinscherff, Proposition: A Personality
Disorder May Nullify Responsibility for a Criminal Act, 38 J L Med & Ethics 745,
750 (2010); see also Natalie Abrams, Definitions of Mental Illness and the Insanity
Defense, 7 J Psychiatry & L 441, 448-50, 453 (1979) (describing the difficulty in
“show[ing] a causal connection between a ‘mental illness’ and a criminal act”).
    4
      We noted in Meiser II that the causation test—”’as a result of mental disease or defect at the time of engaging in criminal conduct’ ”—was included in the
original statute that was enacted as part of the comprehensive Oregon Criminal
Code of 1971. Meiser II, 369 Or at 356 (quoting Or Laws 1971, ch 743, § 36).
478                                           State v. Meiser

we have often used a but-for test to establish causation under
both criminal and civil law. State v. Turnidge (S059155), 

, 470 n 61, 

 (2016) (noting that “[t]he two
tests, in all but rare circumstances, lead to the same conclusion”); Joshi v. Providence Health System, 

,

 (2006) (pointing out that “the two standards
produce the same result in most cases”). We recently stated,
in Haas v. Estate of Mark Steven Carter, 

, 

 (2023), that “the substantial factor standard ‘has
not supplanted’ the but-for standard of causation; rather,
‘the two standards apply to different types of negligence
cases.’ ” (Quoting Joshi, 

).
         But we also recognized that there is “at least one
situation in which a but-for instruction will not work.” Haas,

. We explained that substantial factor causation
was developed “primarily for that circumstance—the situation in which the concurrent conduct of two or more causes
combine to create an injury, and either one of those causes,
operating alone, would have been sufficient to produce the
same result.” 

. We made the same observation in
Turnidge, 

 n 61, and in Joshi, 

.
           In Joshi we explained that substantial factor
causation “is an improvement over the ‘but for’ rule for [that]
special class of cases” and for “two other types of situations
which have proved troublesome” for but-for causation. 

(quoting W. Page Keeton, Prosser and Keeton on The Law of
Torts 267-68 (5th ed 1984)). One situation is where “a similar, but not identical result would have followed without the
defendant’s act.” 

 The other is where “one defendant has
made a clearly proved but quite insignificant contribution to
the result, as where he throws a lighted match into a forest
fire.” 

         In those situations, we continue to apply substantial
factor causation. In addition, substantial factor causation
was routinely used in Oregon and nationwide during the
1960s and 1970s to establish factual causation in civil negligence cases. See Elk Creek Management Co. v. Gilbert, 

, 

 (2013) (noting that, when the Oregon
Residential Landlord and Tenant Act was enacted in 1973,
“this court used the ‘substantial factor’ test to determine the
Cite as 

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‘cause in fact’ of a plaintiff’s injuries”); Restatement (Second)
of Torts § 431 (1965) (stating that a person’s conduct causes
harm to another if “his conduct is a substantial factor in
bringing about the harm”).5
         Before 1971, Oregon juries regularly used substantial factor causation to decide factual causation under
the common law. Dewey v. A. F. Klaveness & Co., 

, 

 (1963) (O’Connell, J., concurring)
(explaining the causation standard as “a substantial factor
in physically producing the injury”); Babler Bros. v. Pac.
Intermountain, 

, 

 (1966)
(adopting the views of the concurring opinion in Dewey and
holding that “it is for the trier of fact to say whether (a) the
conduct complained of was a substantial cause of the harm,
and (b) whether the conduct in question was negligent”);
Stewart v. Jefferson Plywood Co., 

, 

 (1970) (describing “[t]he scope of the liability of an actor
whose conduct is a substantial factor in causing an injury”);
Furrer v. Talent Irrigation District, 

, 

 (1970) (approving substantial factor jury instruction
but noting that “[t]he term ‘substantial factor’ expresses a
concept of relativity which is difficult to reduce to further
definiteness”).
         In Furrer, we made it clear that “[t]he proper use of
the substantial factor test” as adopted in the 1948 revision of
the Restatement “has limited its application very definitely
to the fact of causation alone.” 

 at 510-11 (quoting Prosser
on Torts § 49, 297 (3d ed 1964)). And in Babler Bros., this
court overruled prior precedent to make it clear that using
substantial factor causation to establish factual causation
“will, in most cases, avoid the conceptual debate about
    5
      Substantial factor causation is a factual question to be decided by juries.
See Restatement (Second) § 434(2)(a). That distinguishes it from the Restatement’s
concepts of “legal” or “proximate” causation. Under the Restatement’s approach,
legal or proximate cause presented a legal question that would be decided by
courts as a matter of law. Restatement (Second) §§ 431, 453 (explaining that “legal
cause” requires a court to decide whether there is any rule of law that relieves a
negligent actor from liability “because of the manner in which his negligence has
resulted in the harm” even if a jury could find that the actor’s negligence was a
substantial factor in causing the harm); see also Hills v. McGillvrey, 

, 

 (1965) (noting that the “difficulty” with the 1934 Restatement’s
discussion of proximate cause “is that it assumes that it is the function of the
court rather than of the jury” to determine proximate cause).
480                                                          State v. Meiser

‘proximate’ cause, and will focus upon the proper function of
the jury.” 

.6
         We have also applied the substantial factor standard
to determine factual causation in two different types of medical malpractice cases. In McEwen v. Ortho Pharmaceutical,

, 

 (1974), the plaintiff alleged that she
was harmed after using oral contraceptives that had been
manufactured by two different pharmaceutical companies.
This court held that “[t]he respective liability of multiple
defendants depends upon whether the negligence of each
was a substantial factor in producing the complained of
harm.” 

. In that context, we explained, the plaintiff
need not show that each defendant’s negligence was “sufficient to bring about the plaintiff’s harm by itself;” rather, it
was enough that each defendant “substantially contributed
to the injuries eventually suffered by [the plaintiff].” 

          In the other medical malpractice case, Simpson
v. Sisters of Charity of Providence, 

, 

(1978), this court held that the trial court did not err in
instructing the jury on substantial factor causation to determine whether plaintiff’s injuries were caused by a hospital’s
negligent failure to take adequate x-rays of his spine. We
explained that “[w]e have approved the use of the substantial factor formula in numerous cases” and concluded that,
“ ‘as applied to the fact of causation alone, no better test has
been devised.’ ” 

 at 560 (quoting W. Prosser, Law of Torts
240, § 41 (4th ed 1971)).
         Although substantial factor causation is no longer used as widely in civil negligence cases, as we noted in
Haas, Oregon courts still routinely use substantial factor
causation in employment discrimination cases. See Holien
v. Sears, Roebuck and Co., 

, 90 n 5, 

     6
       The majority opinion states that civil negligence law was “evolving” during
the 1960s, and that substantial factor causation was used in different ways, with
the court at times using the term to include the concepts of legal or proximate
cause. ___ Or at ___ (slip op at 37:6-10). That was true during the 1950s and
1960s. But using “substantial factor” causation to include legal or proximate
cause—which are matters that would be decided by the court—was the reason
that this court in Babler Bros. overruled an earlier case that had misapplied the
causation analysis. 

. And by 1970, when we decided Furrer, we made
it clear that the proper use of substantial factor causation was limited to factual
causation. 

.
Cite as 

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(1984) (stating that “[a] common law or statutory cause of
action for wrongful discharge emanating from sex discrimination is restricted to cases when sex is for no legitimate
reason a substantial factor in the discrimination”); Seitz
v. State, 

, 

 (1990) (“We
use the ‘substantial factor’ test to determine whether [the]
plaintiff’s protected activities were the cause of [the] defendant’s adverse [employment] actions.”).7
         Substantial factor causation was preferred in the
1960s and 1970s in part because, intuitively, it made sense
in a way that was easy to understand. See Leon Green, The
Causal Relation Issue in Negligence Law, 60 Mich L Rev 543
(1962) (arguing for widespread use of the substantial factor
test because it avoids the hypothetical thinking required
under the but-for test and directly applies the kind of judgments implicit in causal decision-making, thus yielding a
lower rate of error)8; Restatement (Second) § 431 comment a
(substantial factor test captures the common-sense understanding of causation, rather than the “philosophic sense”
of causation represented by the but-for test, which could
include events “so insignificant that no ordinary mind would
think of them as causes”).
        In summary, our case law recognizes that a substantial factor test was widely used in civil negligence
cases to establish factual causation during the 1960s and
1970s—contemporaneous with Oregon’s enactment of ORS
161.295(1).9 Additionally, that test is still used to determine

     7
       A uniform jury instruction used in employment discrimination cases states
that “[a] substantial factor is one that made a difference in an employment decision; that is, the decision would not have been made without it. It need not be the
only factor.” UCJI 59A.03.
     8
       Leon Green’s article was cited favorably by the concurring opinion in
Dewey, 

 (O’Connell, J., concurring) (stating that “the work of Leon
Green most closely relates to the position which I have taken”). As noted above,
this court later adopted the views expressed by Justice O’Connell in his Dewey
concurrence. See Babler Bros., 

-65 (citing concurring opinion in
Dewey and adopting that approach because it avoids “the conceptual debate about
‘proximate’ cause and … focus[es] upon the proper function of the jury”).
     9
       The majority opinion states that cases decided after the 1971 enactment of
ORS 161.295(1) are irrelevant to determining the legislature’s intent. I agree, but
those cases are relevant to my point, which is that substantial factor causation
has been applied by juries for decades, and that, as a test of factual causation,
it is not as uncertain or confusing as the majority opinions suggests. In fact,
482                                                    State v. Meiser

factual causation in employment discrimination and some
civil tort cases because we have recognized that, in those
situations, substantial factor causation is an improvement
over but-for causation. As I will explain, analyzing whether
a criminal defendant’s lack of capacity was “a result of” a
mental disease or defect in the context of co-occurring mental conditions presents another situation where substantial
factor is the better test for factual causation.
         The more common test, but-for causation, is typically applied when assessing the effects of discrete, readily
separable links in a causal chain. Turnidge, 

(conduct occurring “early in the chain of causation … may
be a ‘but-for’ cause by resulting in a series of forces or events
that follow to cause the injury, each of which is also a link
in the causal chain without which the injury would not have
resulted”). We concluded in Turnidge that, for purposes of
criminal responsibility in general, “[t]he test of causation
for most circumstances is whether, ‘but for’ the defendant’s
conduct, the event would not have occurred.” 

.
Where the specified result follows from such a chain of
events, we explained, the defendant’s role does “not have to
be the last link in the chain, or the only one, for the jury to
make that determination.” 

.
          Similarly, in the civil tort cases that use a but-for
test, a jury is often asked to determine whether a defendant’s
conduct, or something else within a sequence of events,
caused a plaintiff’s injury, as in Haas and Joshi. But where
a jury is called on to assess an individual’s motivation, as in
employment discrimination cases, we have consistently used
substantial factor as the test for causation. See, e.g., Ossanna
v. Nike, Inc., 

, 

 (2019) (applying
substantial factor causation). Assessing a criminal defendant’s mental condition to determine whether their lack of
capacity was a result of a mental disease or defect is like
evaluating an employer’s motivation for an employment decision. Both circumstances require evaluating mental states
that exist concurrently in a person’s mind—which are neither discrete links in a causal chain, nor readily separable

by 1978, when we decided Simpson, we thought that “no better test has been
devised.” 

.
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events or conditions. Analytically, that context is different
from assessing whether one event in a chain caused a particular result, as is common in many criminal and civil cases.
That is why, in my view, assessing a criminal defendant’s
co-occurring mental disorders is another situation where
substantial factor causation is the superior standard.
         The majority opinion declines to adopt substantial
factor causation, noting that the legislature did not include
a “quantitative descriptor” in the statute and the legislative
history does not mention “substantial factor” causation at
all.10 Those observations are correct, and I do not dispute
that they could mean that the legislature intended to reject
substantial factor causation. But that is not the only interpretation, nor is it necessarily the most natural. Where, as
here, the legislature uses the phrase—”as a result of”—to
describe a causal link without defining the word “result” or
discussing in the legislative history what it was intended to
mean, we search for the intended meaning of the term in
the context of the statute. The absence of any specific mention of “substantial factor” causation in the text or legislative history of the statute might mean that the legislature
intended to reject it, as the majority opinion suggests. But
it could also mean that the legislature did not consider or
discuss the issue, or that it assumed that courts would apply
the causation standard that was prevailing at the time.
         The majority opinion also states that allowing
juries to decide whether a criminal defendant is GEI using
substantial factor causation would import civil tort law
principles into the criminal law, contrary to our cautionary note in Turnidge. However, our cautionary note in that
case primarily addressed the “difficulty with extending the
     10
        The majority opinion notes that no party has advocated for using substantial factor causation for a GEI defense and suggests that defendant argued in
favor of a dictionary definition. ___ Or at ___ n 6 (slip op at 26 n 6). Defendant
argued that the Court of Appeals misapplied the dictionary definition but advocated for a “lesser degree” of causation than the “independent sufficiency” test
adopted by the Court of Appeals. Defendant did not take a position on what that
“lesser degree” should be, concluding that defining the causal link is not necessary because the record in this case shows that defendant’s schizophrenia was
“the predominant driver” of his behaviors. Thus, while it is true that no party
advocated for using substantial factor causation, it is also true that no party
contended that the dictionary definition alone should be used to define the causal
link.
484                                                         State v. Meiser

common-law doctrine of proximate cause in the criminal
law context[.]” 

 n 62. I am not suggesting that
we do that. But with due respect to our own admonition, we
should import a civil tort principle into criminal law if we
conclude that that is what the legislature intended.
         The majority opinion further observes that, as we
stated in Haas, instructing a jury on substantial factor
causation can be misleading: “As the Restatement (Third) of
Torts section 26 comment j (2010) points out, a substantial
factor instruction may cause confusion because it can lead
a jury erroneously to believe that it must search for a most
significant causal factor, when that is not required.” Haas,

. But juries have been applying substantial factor causation in employment discrimination and certain civil
negligence cases for decades. See, e.g., Lasley v. Combined
Transport, Inc., 

, 

 (2011) (jury determined whether defendant’s spilling of glass panes onto the
freeway was a substantial factor in causing the decedent’s
death); Crosbie v. Asante, 

, 

 (2022) (noting that, to prevail on an employment discrimination or retaliation claim, a plaintiff must establish that a
protected trait or activity “was a ‘substantial factor’ ” in an
adverse employment decision). Other courts have not found
substantial factor causation to be too confusing. See Mitchell
v. Gonzales, 54 Cal 3d 1041, 1052, 

 (1991) (describing substantial factor causation as “ ‘sufficiently intelligible
to any layman to furnish an adequate guide to the jury’ ”
(quoting Prosser, Proximate Cause in California, 38 Cal L
Rev 369, 379 (1950))). Any potential confusion in the context
of a GEI defense can be avoided by instructing the jury that
“substantial factor” causation does not mean that the jury
is to compare the relative importance of multiple causes or
search for the most significant causal factor.11

    11
       Uniform Civil Jury Instruction 23.02 clarifies how juries are to apply the
standard:
    “Many factors may operate either independently or together to cause harm.
    In such a case, each may be a cause of the harm even though the others by
    themselves would have been sufficient to cause the same harm. If you find
    that defendant’s act or omission was a substantial factor in causing the harm
    to the plaintiff, you may find that the defendant’s conduct caused the harm
    even though it was not the only cause. A substantial factor is an important
    factor and not one that is insignificant.”
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         The majority opinion suggests that substantial
factor causation is unclear because the law does not define
it. But as noted above, one of the reasons the law favored
substantial factor causation at the time was the fact that it
reflected a common-sense understanding that juries could
apply without further definition. As we stated in Simpson,
“as applied to the fact of causation alone, no better test has
been devised.” 

 (citing W. Prosser, Law of Torts
§ 41, 240 (4th ed 1971)). The fact that juries have been able
to apply it without difficulty in many civil negligence and
employment discrimination cases sufficiently demonstrates
that no further definition is needed.
         Ultimately, the majority opinion’s dictionary definition of “result” and its misgivings about applying substantial factor causation in this context do not foreclose applying
that standard to give effect to the legislature’s intent when
it enacted ORS 161.295(1) in 1971. And, as I will explain
next, although the legislative history is not clear, its silence
more likely indicates that the legislature intended for juries
to use substantial factor causation in determining whether
a criminal defendant was GEI when the defendant committed the charged offense.
        LEGISLATIVE HISTORY OF ORS 161.295
         We explained in Meiser II that the “causal link”
included in subsection (1) of ORS 161.295 was enacted in
1971 and was left unchanged by the 1983 amendment to
subsection (2) of the statute. 369 Or at 359. The statute’s
context and legislative history shed some additional light
on what the legislature intended in 1971 when it used “as a
result of” to describe the causal link between a defendant’s
mental disease or defect and the requisite lack of capacity.
We noted in Turnidge that Oregon had adopted the 1971
Criminal Code—including the GEI statute—”against the
backdrop” of developments in the common law, including
specifically Oregon’s rejection of the concept of “proximate
cause.” Turnidge, 

. And, as noted above, that
common law “backdrop” included the routine use of substantial factor causation to determine cause-in-fact.
486                                                            State v. Meiser

         It reasonably follows that the legislature would have
intended to use the same causation standard that was widely
used in 1971—substantial factor causation—as the causal
link for the GEI defense. The legislative history of that statute does not clearly explain what causal link the legislature
intended, as the majority opinion acknowledges. However, in
my view, that history provides some support for concluding
that substantial factor was the intended causal test.
         The commentary to the 1971 Criminal Code revisions explains that ORS 161.295(1) was taken from section
4.01 of the Model Penal Code with a few minor changes
in wording.12 See Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 36, 34 (July 1970). That commentary and the
commentary to section 4.01 of the Model Penal Code both
use the phrase “as a result of” repeatedly to describe the
causal connection without clearly explaining what that
phrase was intended to mean.13 However, the commentary
to section 4.01 also suggests that the drafters of the Model
Penal Code were concerned, generally, about adopting a rule
that allowed juries to apply the insanity defense too broadly.
      That commentary explains why the drafters of
the Model Penal Code declined to adopt the “Durham

    12
        Section 4.01 of the Model Penal Code provides:
         “(1) A person is not responsible for criminal conduct if at the time of such
     conduct as a result of mental disease or defect he lacks substantial capacity
     either to appreciate the criminality of his conduct or to conform his conduct
     to the requirements of law.
         “(2) As used in this Article, the terms ‘mental disease or defect’ do not
     include an abnormality manifested only by repeated criminal or otherwise
     antisocial conduct.”
     13
        The commentary to section 4.01 of the Model Penal Code reveals that the
drafters focused on the “substantial capacity” standard, not whether a lack of
substantial capacity was “as a result of” a mental disease or defect. See Model
Penal Code § 4.01 comment 3 at 172 (stating that the adoption of the substantial
capacity standard “may well be the Code’s most significant alteration of the prevailing tests[,]” acknowledging that “substantial” is “an open ended concept[,]”
but concluding that it would be “sufficiently precise for purposes of practical
administration”). The “substantial capacity” standard proposed in the Model
Penal Code was partially adopted in United States v. Currens, 290 F2d 751, 774
(3d Cir 1961) (“The jury must be satisfied that at the time of committing the
prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law which he
is alleged to have violated.”).
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rule”—based on Durham v. United States, 214 F2d 862
(DC Cir 1954)—even though that rule had been “warmly
supported by psychiatrists at the time.” Model Penal Code
§ 4.01 comment 3 at 173-74 (Official Draft and Revised
Comments 1985). Under the Durham rule, “an accused is
not criminally responsible if [their] conduct was the product
of mental disease or defect.” 214 F2d at 874-75 (emphasis
added).14 As they explain, the drafters of the Model Penal
Code were concerned that using “the product of” to describe
the causal link between a mental disease or defect and illegal conduct could be interpreted to mean “that the crime
would not have been committed but for the presence of the
mental disease or defect.” Model Penal Code § 4.01 comment
3 at 173. In their view, “[that] interpretation [was] too broad”
because it would capture motivations for criminal activity
inspired by delusional beliefs or attitudes, even if the person’s capacity to appreciate the criminality or wrongfulness
of their conduct was not substantially impaired. Id.15 Thus,
the drafters of the Model Penal Code wanted to be clear that
a defendant’s lack of substantial capacity—not the illegal
conduct itself—must occur “as a result of” the defendant’s
mental disease or defect.
        Unfortunately, the drafters of the Model Penal
Code did not elaborate on what “as a result of” was intended
to mean, and the commentary to Oregon’s revised Criminal
Code does not explain what that phrase was intended to
mean either. That commentary reveals only that Oregon,
like the Model Penal Code, rejected the Durham rule in
part because of the “troublesome causal questions” raised
by its application. See Commentary § 36 at 36 (“Like the

     14
        The DC Circuit later overruled Durham and adopted a rule based on section 4.01 of the Model Penal Code. United States v. Brawner, 471 F2d 969, 994-95
(DC Cir 1972).
     15
        The Model Penal Code commentary offered an example. If a person murders a wealthy relative believing, as a result of a mental disease or defect, that
they will inherit a large amount of money upon the relative’s death, the murderer
would be relieved of responsibility under a but-for test. But the murderer should
still be held responsible, the commentary explains, if their capacity for understanding and control were not otherwise impaired by mental illness, because
that situation would be morally indistinguishable from someone who does not
have a mental illness and commits a murder to receive an inheritance. Model
Penal Code § 4.01 comment 3 at 173 n 24.
488                                                          State v. Meiser

Model Penal Code § 4.01, the Currens test[16] recognizes
variations in degree and allows wide scope for expert testimony without the troublesome causal questions raised by
Durham.”). Rejecting the Durham rule and its potentially
sweeping application suggests that the drafters of both the
Model Penal Code and the Oregon statute were generally
concerned about adopting a standard that permitted too
broad an interpretation of the causal link between a mental
disease or defect and a defendant’s illegal conduct.
         The majority opinion’s dictionary definition would
allow juries to find that a defendant was GEI at the time
of the offense if the defendant’s lack of substantial capacity
was a “result” or “consequence” or “effect” of a mental disease or defect. In my view, because the legislature was concerned, generally, about an overbroad application of the GEI
defense, it more likely intended that the mental disease or
defect must be a substantial factor in causing a defendant’s
lack of capacity—not just a factor—consistent with the prevailing causation standard at the time.17
         Because I agree with the majority opinion’s disposition of this case, but disagree with some of its reasoning, I
respectfully concur.
           Nakamoto, S.J., joins in this concurring opinion.
           JAMES, J., concurring.
         I join fully in the majority opinion except as to section E(3)(c).
           Masih, J., joins in this concurring opinion.




    16
       See Currens, 290 F2d at 774 (stating that “[t]he jury must be satisfied that
at the time of committing the prohibited act the defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the
requirements of the law which he is alleged to have violated”). Like the commentary to the Model Penal Code and Oregon’s 1971 revised Criminal Code, the
Currens court did not discuss what it meant when it used the term “as a result of”
to describe the required causal link.
    17
       The fact that the majority opinion and this concurrence disagree about the
causation analysis that should be used to establish a GEI defense suggests that
further legislation clarifying the intended approach might be warranted.