State v. H. D. E. ( 2022 )

579
Argued and submitted March 10, decision of Court of Appeals reversed, and
case remanded to Court of Appeals for further proceedings December 22, 2022
STATE OF OREGON,
Petitioner on Review,
v.
H. D. E.,
Respondent on Review.
(CC 19CR07787) (CA A171975) (SC S068885)
522 P3d 829
Defendant was convicted of Initiating a False Report, ORS 162.375, based
on evidence that she had contacted the police to report another person’s crim-
inal conduct and that much—but not all—of what she reported was false. On
appeal, she argued that she was entitled to a judgment of acquittal because
there was no evidence that her false statements to the police had resulted in
any greater expenditure of police resources than would have resulted if she had
excluded those false statements from her report. The Court of Appeals agreed
and reversed defendant’s conviction: It concluded that, when a person’s report to
the police contains both true and false statements, the person can be convicted of
initiating a false report under ORS 162.375 only if the state proves that the false
statements resulted in an expenditure of investigatory resources beyond that
which would have resulted based on the true statements alone—and because the
record was silent on that point, defendant was entitled to a judgment of acquittal.
The state sought review, arguing that any true statements defendant had made
were irrelevant and that her false statements constituted a “false report” in their
own right because they informed the police of a current crime or emergency to
which the police were likely to respond. Held: The state was not required to prove
that defendant’s false allegations caused law enforcement to devote greater or
different resources to the investigation of defendant’s report than it would have
devoted had she only made the true allegations, and the trial court did not err in
denying defendant’s motion for judgment of acquittal.
The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further proceedings.
En Banc
On review from the Court of Appeals.*
Stacy M. Chaffin, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
______________
* Appeal from Umatilla County Circuit Court, Jon S. Lieuallen, Judge. 313
Or App 356, 493 P3d 1123 (2021).
580 State v. H. D. E.
Peter G. Klym, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
brief for respondent on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
DeHOOG, J.
The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.
Cite as 370 Or 579 (2022) 581
DeHOOG, J.
In this case, we again consider the crime of initi-
ating a false report, an offense committed when a person
“knowingly initiates a false alarm or report that is trans-
mitted to a fire department, law enforcement agency or other
organization that deals with emergencies involving danger
to life or property.” ORS 162.375(1). The trial court convicted
defendant of that crime based on evidence that she had trig-
gered a police investigation by making a call and subsequent
statements to the police that included both true and false
allegations against another person. On appeal, defendant
argued that the trial court should have granted her motion
for judgment of acquittal because much of what she had
reported to the police had been true and there was no evi-
dence that her false statements had resulted in any greater
expenditure of police resources than would have resulted
had she not made them. The Court of Appeals agreed with
defendant and reversed the judgment of conviction; the state
now seeks review of that decision by this court. For the rea-
sons that follow, we hold that the trial court properly denied
the motion for judgment of acquittal and that the Court of
Appeals therefore erred in reversing on that ground.1
I. BACKGROUND
Viewed in the light most favorable to the state,2 the
facts relevant to defendant’s conviction under ORS 162.375
are as follows. On August 27, 2018, defendant called the
Hermiston Police Department’s nonemergency number and
reported that an individual—a doctor—“had assaulted her
1
In the Court of Appeals, defendant challenged her conviction on a second
ground—a claim of evidentiary error. Having concluded that defendant was enti-
tled to reversal on the ground that the trial court had erred in denying defen-
dant’s motion for judgment of acquittal, the Court of Appeals did not reach that
second claim of error. State v. H. D. E., 313 Or App 356, 358 n 1, 493 P3d 1123
(2021). We remand to the Court of Appeals for consideration of that second claim
of error, as defendant has requested we do if we reverse the Court of Appeals’
decision.
2
See State v. Hedgpeth, 365 Or 724, 730, 452 P3d 948 (2019) (The “standard
for reviewing the denial of a motion for judgment of acquittal involves viewing
the evidence in the ‘light most favorable to the state’ to determine if the ‘state
presented sufficient evidence from which a rational trier of fact, making reason-
able inferences,’ could find the essential elements of the crime beyond a reason-
able doubt.” (Quoting State v. Clemente-Perez, 357 Or 745, 756, 762, 359 P3d 232
(2015).)).
582 State v. H. D. E.
[two] children by pushing them and getting in their faces
and yelling at them,” and that “he was verbally abusive as
well.” She agreed to come to the police department to file
a report. When defendant arrived about 30 minutes later,
Officer Wallis, who had been dispatched to take her report,
met her in the lobby. Defendant told Wallis that the doctor
that she had identified had “assaulted” two of her children.
She explained that she and her children had been in the
waiting room of the doctor’s medical office, and she acknowl-
edged that the children had been playing “a little loudly.”
Defendant said that, as a result, the doctor had come out
into the waiting room and gotten “inches from their face,
* * * yell[ed] at them, [and] cuss[ed] at them”; had pushed
her daughter’s leg “as hard as he could”; had shoved her
son into a refrigerator that was located in the lobby; and,
when defendant approached the doctor and berated him for
touching her children, had gotten “an inch from her face”
and told her that it was “his fucking office and nobody [was]
going to tell him what to do.” Defendant told Wallis that she
wanted the doctor to be charged with assault. When Wallis
explained to her that unwanted touching, without physical
injury, might be “harassment” but not assault, she asked
him whether she needed to contact her lawyer, a comment
that Wallis took to be a threat to sue the police department
if he did not arrest the doctor.
Wallis gave defendant his business card before
going to the doctor’s office to investigate her allegations.
There he interviewed the doctor, who acknowledged having
confronted defendant’s children but denied having shoved
them. While at the medical office, Wallis learned that there
was a surveillance camera in the waiting room that likely
would have recorded the incident reported by defendant.
Wallis watched the videorecording, but what he saw “didn’t
seem to * * * match * * * [defendant’s] statements[.]”
The next day, defendant telephoned Wallis to tell
him that, the night before, she had taken her son to the
emergency room (ER) after he complained that his head
hurt. She told Wallis that her son had been diagnosed with
injuries—a contusion and a possible concussion—which, she
insisted, had resulted from the doctor’s assault. Wallis met
with defendant and her son so that he could examine the
Cite as 370 Or 579 (2022) 583
child’s head injury. Although defendant pointed at an area
on her son’s head as a purported site of injury, Wallis was
unable to see any bruising, swelling or redness there, and no
such evidence of injury appears in photographs that Wallis
took at the time.
Several months later, the doctor received a letter
from defendant stating that she intended to sue him for
$864,000 in damages over the waiting-room incident and
noting that the incident, along with the ER visit, had been
reported to the police. Defendant indicated in the letter that
she was “willing to settle out of court.”
II. PROCEDURAL HISTORY
The state charged defendant with two counts of ini-
tiating a false report, ORS 162.375.3 The state eventually
dismissed the second count, which related to defendant’s
contacts with Wallis the day after the alleged incident.
Defendant tried the first count—which related to her initial
call to the police department and contacts with Wallis on
the day of the alleged incident—to the court. At trial, the
state presented testimony from both the doctor and Wallis.
The doctor acknowledged having scolded the children and
having inadvertently touched the boy’s leg as he bent down
to pick up a toy, but he denied having pushed either child.
Wallis testified regarding his own interactions with defen-
dant as described above. The state also introduced the video-
recording of the incident, which the trial court viewed.
At the conclusion of the state’s case-in-chief, defen-
dant moved for judgment of acquittal. Defendant argued
that, in her report to the police, she had accurately described
conduct by the doctor that would, at a minimum, have con-
stituted the crime of harassment. In defendant’s view, even
if her report of an assault by the doctor had been false, add-
ing those false allegations to an otherwise truthful report
of the crime of harassment would not constitute initiating a
3
ORS 162.375(1) provides:
“A person commits the crime of initiating a false report if the person know-
ingly initiates a false alarm or report that is transmitted to a fire depart-
ment, law enforcement agency or other organization that deals with emer-
gencies involving danger to life or property.”
584 State v. H. D. E.
false report within the meaning of ORS 162.375. The trial
court denied defendant’s motion with little explanation. At
the conclusion of trial, the court found defendant guilty, dis-
cussing that decision at greater length and explaining that
its verdict was based solely and specifically on defendant’s
assertion that the doctor had “assault[ed]” her children.4
Defendant appealed, arguing that the trial court
had erred in denying her motion for judgment of acquittal.
Relying on our decision in State v. Branch, 362 Or 351, 408
P3d 1035 (2018), she argued that she could not be guilty
of initiating a false report, because, as the trial court had
purportedly found, she had truthfully reported conduct that
constituted the crime of harassment, and her additional
false statements about assaultive conduct had not alleged
“circumstances to which the law enforcement agency [was]
reasonably likely to respond as a current separate crime or
emergency in itself.” Branch, 362 Or at 368 (emphasis added).
The state responded that defendant had reported
two kinds of conduct by the doctor—yelling and forcible
shoving—and contended that her report of forcible shov-
ing qualified as a false report in its own right because it
informed the police of a current crime or emergency to which
the police were likely to respond.
Like defendant, the Court of Appeals in this case
focused on Branch. Based on our interpretation of ORS
162.375 in that case, the Court of Appeals observed that,
“when a criminal investigation is already underway, a per-
son does not violate ORS 162.375 ‘by falsely confirming or
denying knowledge of a report or alarm that already is under
investigation, or by falsely conveying information about cir-
cumstances to which the agency would be unlikely to devote
resources, except for whatever relevance the information
4
Defendant contends that, by limiting its verdict to the allegations of
assault, the trial court implicitly found that she had truthfully reported con-
duct constituting the crime of harassment and that the police would likely have
investigated that allegation even if she had not also alleged assaultive conduct.
The state implicitly agrees with that characterization of the court’s decision. In
our view, however, the court may simply have assumed without deciding that
defendant’s allegations stated the crime of harassment. Because it is not material
to our analysis, we similarly accept for purposes of discussion that view of the
court’s decision, but we do not address the legal merit of any such ruling.
Cite as 370 Or 579 (2022) 585
may have to an existing criminal investigation.’ ” State v.
H. D. E., 313 Or App 356, 360, 493 P3d 1123 (2021) (quoting
Branch, 362 Or at 362). Given that understanding of Branch,
the Court of Appeals then derived the following corollary:
“[W]hen a criminal investigation is not yet underway at the
time of a report containing both true and false statements,
to prove that a defendant initiated a false report through
the inclusion of the false statements, the state must prove
either that (1) the false statements resulted in an expen-
diture of investigatory resources beyond that which would
have resulted based on the true statements alone; or (2) if no
investigation occurs, that the false statements would have
‘start[ed] the ball rolling’ on an expenditure of resources
beyond that which would have been triggered by the true
statements alone.”
H. D. E., 313 Or App at 360-61 (second brackets in H. D. E.;
emphasis added). Applying that rule, the court held that
defendant could not be convicted of initiating a false report
unless her false statements regarding an assault had trig-
gered an expenditure of law enforcement resources beyond
those triggered by her truthful report of harassment. Id. at
362. Because the record was silent on that issue, the Court
of Appeals concluded that no rational trier of fact could find
“that defendant’s false statements on their own resulted in a
law enforcement response different in scope from that which
would have resulted from the true statements on their own,”
meaning that she was entitled to a judgment of acquittal.
Id.III. THE PARTIES’ ARGUMENTS
On review, the state contends that neither the text
nor context of ORS 162.375 supports the Court of Appeals’
interpretation of that statute. The state further argues that,
by requiring the state to prove an unnecessary expenditure
of police resources under the circumstances of defendant’s
case, the Court of Appeals has effectively adopted an addi-
tional element that is not found in the statutory definition
of initiating a false report and was not contemplated by the
legislature in enacting ORS 162.375. In the state’s view, that
statute requires proof of only the following express elements:
Defendant (1) “knowingly” (2) “initiate[d]” (3) a “false alarm
586 State v. H. D. E.
or report” that (4) was “transmitted” to (5) an “organization
that deals with emergencies involving danger to life or prop-
erty.” Here, the state contends, those elements were satisfied
when defendant falsely reported to the police that the doctor
had assaulted her children. The state further argues that,
to the extent that defendant’s report happened to include
truthful allegations of harassment, that is immaterial to
whether defendant’s false allegations of assault constituted
a “false * * * report” within the meaning of the statute.
Defendant disputes the state’s assertion that the
Court of Appeals’ decision effectively requires proof of a
new element. According to defendant, that opinion merely
explains how an established element—the requirement of
a “false * * * report”—can or cannot be proved under vari-
ous circumstances. Defendant contends that, because ORS
162.375 is solely directed at the waste or misdirection of
police and emergency resources caused by false alarms and
reports, a “mixed” report including both true and false alle-
gations is not a “false * * * report” unless the false allega-
tions themselves would trigger such waste or misdirection,
which, in this case, would mean an expenditure of police
resources different from, or greater than, the expenditure of
resources likely to have resulted from defendant’s truthful
allegations alone. Defendant argues that, because her true
and false allegations described offenses having common ele-
ments or encompassing similar conduct—meaning, in her
view, that any police response would likely have been the
same with or without the false allegations—her statements
to the police did not satisfy the requirement of a “false * * *
report.”
IV. ANALYSIS
The parties’ dispute raises a question of statutory
interpretation: Can a false allegation of a crime that is trans-
mitted to the police constitute a “false * * * report” under
ORS 162.375 if it is accompanied by the truthful allegation
of another crime that is itself likely to trigger a similar
expenditure of police resources? To answer that question,
we apply our standard methodology, examining the statu-
tory text in context, together with any helpful legislative
history, and considering any applicable maxims of statutory
Cite as 370 Or 579 (2022) 587
interpretation if the statute’s meaning remains ambiguous
following that inquiry. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009).
A. Text and Context
For purposes of that analysis, we begin with the
disputed text: “false report.” That term, or more accurately,
the phrase “false alarm or report,”5 is found within the first
subsection of ORS 162.375, which defines the crime of “initi-
ating a false report” as follows:
“A person commits the crime of initiating a false report
if the person knowingly initiates a false alarm or report
that is transmitted to a fire department, law enforcement
agency or other organization that deals with emergencies
involving danger to life or property.”
ORS 162.375(1). The term “false report” itself provides lit-
tle guidance. It informs us that, to be prohibited, a convey-
ance must in some way be “false,” but it does not indicate
whether a false allegation of crime that is accompanied by
a truthful allegation of another crime may nonetheless be
a “false report.” Certainly, however, the ordinary meanings
of the words “false” and “report” do not readily convey that
only a report that results in an unnecessary expenditure
of resources can qualify as a “false report,” as defendant
contends.6
Turning to the statutory context, the parties appear
to agree that the text immediately following the “false report”
5
Although the statutory element found in ORS 162.375 is a “false alarm or
report,” for convenience—and because only a “report” is at issue in this case—we
use the shortened term “false report” throughout the remainder of this opinion.
6
In Branch, we described the ordinary meaning of the word “report” in the
following terms:
“Dictionary definitions of the noun ‘report’ vary from the very casual (‘com-
mon talk’ and ‘rumor’) to somewhat formal (‘something that gives informa-
tion : a usu[ally] detailed account or statement * * *’) to formal (‘a usu[ally]
formal account of the results of an investigation given by a person or group
authorized or delegated to make the investigation’). * * * All of the definitions,
however, describe a communication of information.”
362 Or at 358 (Quoting Webster’s Third New Int’l Dictionary 1925 (unabridged ed
2002) (brackets in Branch).). In addition, “false” is defined, in relevant part, as
meaning “not corresponding to truth or reality” and, alternatively, “intentionally
untrue.” Webster’s at 819.
588 State v. H. D. E.
reference provides at least some guidance as to that term’s
intended meaning. Both parties acknowledge our observa-
tion in Branch that the word “report” draws meaning from
that context, which indicates that a “report” is a communi-
cation that informs a fire, police, or other emergency organi-
zation of a situation to which the organization would likely
respond with an expenditure of resources. Branch, 362 Or at
361.
Defendant also relies on the broader context of ORS
162.375. She points first to the statute’s penalty provisions,
which, at subsection (3), provide:
“(a) The court shall include in the sentence of any per-
son convicted under [ORS 162.375] a requirement that the
person repay the costs incurred in responding to and inves-
tigating the false report.
“(b) If the response to the false report involved the
deployment of a law enforcement special weapons and tac-
tics (SWAT) team or a similar law enforcement group, the
court shall impose, and may not suspend, a term of incar-
ceration of:
“(A) At least 10 days.
“(B) At least 30 days if the deployment resulted in
death or serious physical injury to another person.”
ORS 162.375(3). Defendant contends that those penalty
provisions suggest that a “false report” is one that would
result in the needless or wasted expenditure of emer-
gency resources, with the assumption being that resources
expended in response to any true allegations of crime would
not be wasted. Defendant notes that the entire subsection
ties the penalties for initiating a false report to actual and
needless expenditures by requiring, first, that persons con-
victed of the crime repay the organization’s actual costs in
responding, ORS 162.375(3)(a), and, second, that persons
whose false reports cause certain kinds of resources to be
deployed serve time in jail, ORS 162.375(3)(b). Defendant
also reasons that, insofar as paragraph (3)(a) is phrased
in terms of repaying “the costs” (as opposed to “any costs”)
incurred in responding to a false report, that provision nec-
essarily assumes that a person convicted of that offense will
have caused an unnecessary expenditure of resources in
Cite as 370 Or 579 (2022) 589
response to the false report. (Emphasis added.) Defendant
contends that the penalty provisions therefore indicate
that the “false reports” that are subject to ORS 162.375(1)
are reports that result in the unnecessary expenditures of
emergency resources.
We disagree. As the state observes, the fact that
the statute’s penalty provisions expressly contemplate the
amount and type of resources that are expended in response
to a “false report” does not make those expenditures an
aspect of the “false report” itself, nor does it make them a
required element of the crime of initiating a false report.
At most, the penalty provisions can be viewed as reflecting
a general legislative concern with preserving emergency
resources, which is something that no one disputes.
The parties also point to various other statutes
that criminalize false statements, each contending that
those statutes provide supportive context for their respec-
tive views. Defendant echoes our observation in Branch, 362
Or at 360, that a comparison of ORS 162.375 with various
“perjury-type” statutes—which have the potential to crim-
inalize almost any materially false statement made under
oath or subject to some formal process—suggests that a
“false report” for purposes of ORS 162.375(1) requires more
than just a false statement. But while that might be true,
it does little to advance defendant’s assertion that a “false
report” is necessarily one that results in wasted resources.7
The state, on the other hand, points out two specific and
related “perjury-type” statutes—ORS 162.065 and ORS
162.075—and argues that, insofar as they both criminal-
ize the making of “a [singular] false sworn statement,” they
imply that a single false statement “may constitute a crime
even when accompanied by other[,] true statements.” But,
even accepting the state’s premise as to how those other
statutes work, it is difficult to see what bearing that point
might have on the meaning of “report” under ORS 162.375(1),
7
Because it is undisputed that a police investigation took place in defen-
dant’s case, we, like the parties, focus on the first prong of the Court of Appeals’
rule. See H. D. E., 313 Or App at 360-62 (where an investigation occurs, the state
must prove that “the false statements resulted in an expenditure of investigatory
resources beyond that which would have resulted based on the true statements
alone”).
590 State v. H. D. E.
which, on its face, may contemplate a single statement or, as
the state’s prosecution theory in this case suggests, multiple
statements, some of which are true, but at least one of which
is false.
We, like the Court of Appeals, find that our opin-
ion in Branch significantly informs our construction of ORS
162.375(1). See State v. McAnulty, 356 Or 432, 441, 338 P3d
653 (2014), cert den, 577 US 829 (2015) (when examining
the text in context, “[w]e also consider this court’s prior con-
struction of the statutes at issue”); State v. Cloutier, 351 Or
68, 100, 261 P3d 1234 (2011) (“Our analysis of [the statute]
is also informed by this court’s prior construction of that
statute or its predecessors.”).8 In Branch, the defendant
had been involved in a car accident and had left the scene
without performing his statutory duties to the other driver.
Officers who arrived at the scene obtained information that
enabled them to identify the defendant, and one of the offi-
cers went to the defendant’s home to question him about
his involvement. When asked why he had left the scene
without exchanging information with the other driver, the
defendant told the officer that the other driver had pointed
a gun at him. The officer relayed that statement to another
officer who had remained at the scene, who proceeded to
investigate the reported use of a gun as a potential crime.
After questioning the other driver and searching for a gun,
that officer concluded that the defendant’s story about the
other driver had been false. As a result, the defendant was
charged with and convicted of initiating a false report, ORS
162.375. 362 Or at 353-54. He appealed and later sought
review by this court, arguing that, because he had made the
false statements about the other driver in response to police
questioning, he had not “initiate[d]” a false report within the
meaning of that crime’s statutory definition. Id. at 355-56.
In our decision, we proceeded to construe the
phrase “initiates a false alarm or report” in ORS 162.375(1).
We first determined that the legislature had intended the
8
Although in Branch we construed the meaning of the phrase “initiates a
false alarm or report” rather than just the term “false * * * report,” we consider
that case relevant to our interpretation here, because it construed the phrase
as a whole while contemplating the specific meanings of its constituent terms,
including “report.”
Cite as 370 Or 579 (2022) 591
word “initiates” to have its ordinary meaning—“to mark the
beginning of”—but that that determination did not resolve
the issue. Id. at 357. We then turned to “report” and, based
on that term’s immediate context, inferred that it
“refer[s] to a communication that informs a law enforce-
ment agency or other emergency organization that a sit-
uation exists of a type to which the organization would
respond with an expenditure of resources.”
Id. at 361. We then relied on that understanding of “report”
in our preliminary construction of the phrase “initiates a
false alarm or report.” We explained:
“Text and context suggest that a person ‘initiates a false
alarm or report’ if the person’s communication ‘begin[s]’
or ‘mark[s] the beginning of’ informing the organization
about the circumstances that are the subject of the report.
In the context of questioning initiated by law enforcement,
that suggested meaning includes, at a minimum, falsely
reporting new circumstances to which the law enforcement
agency is reasonably likely to respond as a separate, ongo-
ing crime or emergency. Conversely, the text and context
suggest that a person does not violate ORS 162.375 during
law enforcement questioning by falsely confirming or deny-
ing knowledge of a report or alarm that already is under
investigation, or by falsely conveying information about cir-
cumstances to which the agency would be unlikely to devote
resources, except for whatever relevance the information may
have to an existing criminal investigation (i.e., by making a
false statement that is not a ‘report’).”
Id. at 362 (brackets in original; emphases added).9
Defendant understands the foregoing interpreta-
tion of ORS 162.375, and particularly the emphasized por-
tion of the last sentence, to mean that a false report is one
9
After ascertaining that the legislative history of ORS 162.375 confirmed
that meaning, we restated the rule more succinctly:
“[A]t a minimum, in the context of questioning initiated by law enforcement, a
person ‘initiates a false alarm or report’ within the meaning of ORS 162.375,
if the person falsely alleges new circumstances to which the law enforcement
agency is reasonably likely to respond as a current separate crime or emer-
gency in itself, not merely because the false information is relevant to the
crimes or emergency about which the person is being questioned.”
Id. at 368.
592 State v. H. D. E.
that would result in an agency expending resources that it
would not otherwise have expended. Thus, in defendant’s
view,
“* * * [A] report or alarm is only false for purposes of the
statute if it would result in wasted or needless expenditure
of responsive resources. Any false statements made during
the report that do not independently give rise to wasted
resources, do not constitute a new ‘false alarm or report’
because those statements did not ‘get the ball rolling’ on a
misguided investigation. It is not a new criminal matter.
Instead, the ball is rolling in the appropriate directi[on],
investigating true allegations. If there are no false alle-
gations that waste emergency resources, there is no ‘false
alarm or report’ under ORS 162.375.”
Defendant’s reading of Branch is flawed. True, as
defendant emphasizes, we stated there that a person does
not violate ORS 162.375 by falsely communicating “circum-
stances to which the agency would be unlikely to devote
resources” except for their relevance to an existing investi-
gation. 362 Or at 362. In so stating, however, we were con-
trasting such statements with those that “falsely report[ed]
new circumstances to which the law enforcement agency is
reasonably likely to respond as a separate, ongoing crime
or emergency[,]” id. (emphases added), which presumably
could violate the statute. Nothing in Branch suggests that
the analysis turns on whether a person’s false statements
resulted in a particular type or degree of investigation.
Rather, it turns on whether the false statements relate to
“new” crimes or emergencies, as opposed to being relevant
only to crimes or emergencies that are already under inves-
tigation, because only then could the person have “initi-
ate[d]” anything.10
Thus, to the extent that Branch informs our deci-
sion here, it tends to support the state’s position. Although
Branch did not involve a combination of true and false
statements made in a single communication—or by the
same person—that decision nevertheless suggests that,
10
Here it is undisputed that, prior to defendant’s first call to the Hermiston
Police Department, there was no ongoing investigation concerning these
circumstances.
Cite as 370 Or 579 (2022) 593
in determining whether a person has initiated a “false
report” for purposes of ORS 162.375(1), the relevant inquiry
is whether the person has made one or more statements
informing an emergency organization of a “crime,” “emer-
gency,” or other “circumstance[ ]” to which the organization
was likely to devote resources. Branch is therefore in accord
with the state’s contention that, if a person’s false statement
about a criminal episode would inform a law enforcement
agency about a crime to which it would likely respond with
an expenditure of resources, that statement may constitute
a “false report” even if accompanied by truthful statements
about the same event.
Moreover, our various articulations of the holding
in Branch suggest that, if false statements are sufficient
to allege “new,” distinct crimes, they may qualify as “false
report[s]” even if they also happen to be relevant to ongoing
investigations. See Branch, 362 Or at 361 (stating that “false
report” would not encompass “a statement that merely con-
veys information to which the agency would respond only
because the information is relevant to an existing report or
alarm” (emphasis added)); see also id. at 362 (a person does
not violate ORS 162.375 “by falsely conveying information
about circumstances to which the agency would be unlikely
to devote resources, except for whatever relevance the infor-
mation may have to an existing criminal investigation”
(emphasis added)); id. at 368 (person initiates false report “if
the person falsely alleges new circumstances to which the
law enforcement agency is reasonably likely to respond as
a current separate crime or emergency in itself, not merely
because the false information is relevant to the crimes or
emergency about which the person is being questioned”
(emphasis added)). Thus, although Branch is, as defendant
contends, instructive, the quoted pronouncements tend to
undermine her assertion that, when a person concurrently
conveys both true and false allegations comprising legally
distinct but overlapping crimes, the false allegations qual-
ify as a “false report” only if it leads to an “unnecessary”
expenditure of resources. Under those circumstances, the
logical police response would be to investigate the false
statements both for their relevance to the separately (but
falsely) alleged crime of assault and “for whatever relevance
594 State v. H. D. E.
the information may have to an existing criminal investiga-
tion,” Branch, 362 Or at 362, not solely for its relevance to
the existing investigation.
Finally, defendant’s theory—premised as it is on a
purported lack of evidence at trial that her false allegations
led to an additional expenditure of resources—cannot easily
be squared with Branch’s observation that it does not appear
that “an actual response by the organization is an element of
the crime” of initiating a false report. 362 Or at 359 n 4. The
Court of Appeals may have sought to avoid that incongruity
by stating an alternative rule, one that would allow for a
conviction even “if no investigation occurs, * * * [so long as]
the false statements would have ‘start[ed] the ball rolling’ on
an expenditure of resources beyond that which would have
been triggered by the true statements alone,” 313 Or App at
361. However, the overall effect of the Court of Appeals’ rule
is to require—at least in cases where an investigation does
occur—an inquiry into any actual expenditure of resources,
a factual inquiry of the sort typically associated with estab-
lishing the elements of a crime.
Ultimately, Branch does not support the interpre-
tation of ORS 162.375(1) that defendant advances and that
the Court of Appeals effectively adopted in its decision.
Rather, Branch tends to support the state’s contention that,
for purposes of that statute, a “false report” may be a false
allegation of criminal conduct made alongside a truthful
allegation of a different crime, so long as the false state-
ment is one to which law enforcement is reasonably likely to
devote resources. Thus, preliminarily, at least, the statute
appears to support the state’s theory of prosecution in this
case.
B. Legislative History of ORS 162.375(1)
For further guidance, we turn to the legislative his-
tory of ORS 162.375(1), which defines the offense of “initi-
ating a false report.” Before addressing the parties’ specific
arguments regarding that history, we briefly discuss the
provision’s path to enactment.
ORS 162.375(1) was part of the 1971 Legislative
Assembly’s enactment of the revised Criminal Code, which
Cite as 370 Or 579 (2022) 595
had been drafted, at its request, by the Oregon Criminal Law
Revision Commission.11 Subcommittee 2 of that commission,
which had been assigned the task of drafting definitions for
“Perjury and Related Offenses,” drafted the provision that
later became ORS 162.375(1). The initial draft before the
subcommittee designated the crime as “Rendering a False
Report.” Preliminary Draft No. 1, Criminal Law Revision
Commission, Subcommittee 2, Article 22, section 11 (May
1969) at 50.
Donald Paillette, the director of the revision proj-
ect, proposed the specific language that, with certain minor
changes discussed below, the legislature ultimately enacted.
Paillette’s draft provided:
“A person commits the crime of rendering a false report if
he knowingly causes a false alarm or report to be transmit-
ted to a fire department, law enforcement agency, or other
organization that deals with emergencies involving danger
to life or property.”
Minutes, Criminal Law Revision Commission, Subcommittee 2,
Sept 16, 1969, 17-18. The subcommittee agreed to that
wording. However, one member of the subcommittee,
Representative Haas, expressed reservations that the word-
ing could make any oral statement to a police officer—even
one solicited by the officer—subject to prosecution. That, in
his view, meant that “every time you talk to a police officer,
you would, in essence, be testifying under oath, subject to
the penalties of being prosecuted for your statement if it is
in error.” Id. at 18 (statement of Rep Harl Haas).
Paillette observed that the proposed statute was
intended “to protect [against] the excessive use or the need-
less use of public emergency equipment[.]” Tape Recording,
Criminal Law Revision Commission, Subcommittee 2, Sept 16,
1969, Tape 81, Side 2. Another member of the subcommittee
shared a similar understanding of the new draft:
“[T]hat says the same thing, the waste of governmental
resources, in other words if you’re sending the police off on
11
This court considers the commentaries produced by the commission and its
subcommittees as part of the Criminal Code’s legislative history. Gaines, 346 Or
at 178.
596 State v. H. D. E.
a wild goose chase by giving them false information and
wasting a lot of money and time.”
Id. (statement of Thomas O’Dell).
Exploring the scope of the proposed law further,
Representative Haas described a hypothetical situation
in which an officer investigating a crime takes a witness’s
statement, which turns out to be false. He asked whether
that witness could be prosecuted, comparing that situation
to “a false police report” and giving, as an example, an indi-
vidual who “went down and filed a false report that he had
been kidnapped.” He observed, “[T]hat’s what we’re talking
about—initiating the wheels of law enforcement to go into
action on an assertion that [he had] made, as opposed to just
a false verbal statement to a police officer.” Id. (statement of
Rep Harl Haas).
A third subcommittee member suggested that the
statute could be limited to address the first member’s con-
cerns regarding police-initiated questioning by requiring
that the person “initiate” (rather than “render[ ]”) a false
alarm or report. Id. (statement of Rep Wallace Carson).
Upon agreeing to that proposal, the subcommittee first
voted to amend the most recent draft by using “initiate” in
place of “cause” and “render[ ],” and then adopted the draft
as amended, resulting in the wording that is now codified at
ORS 162.375(1).
The subcommittee’s draft of the “Perjury and
Related Offenses” article was considered by the full commis-
sion in November of 1969. There was little substantive dis-
cussion of the crime now designated as “Initiating a False
Report.” Minutes, Criminal Law Revision Commission,
Nov 7, 1969, 11-12. When the Commission transmitted its
proposed draft to the Legislative Assembly, the commentary
that accompanied it described the drafters’ intent in the fol-
lowing terms:
“Criminal statutes dealing with false fire alarms are found
in nearly all American jurisdictions. The rationale support-
ing criminal liability is based upon the waste of govern-
ment resources involved and the creation of circumstances
where personnel and equipment are made unavailable to
deal with legitimate emergencies. Section 212 is intended
Cite as 370 Or 579 (2022) 597
to reach fire and police departments, and all other orga-
nizations, public or private, that respond to emergency
alarms involving danger to life or property. The section
applies whether the false alarm was directly or indirectly
caused to be transmitted. Criminal liability should not be
dependent on whether the person acted himself or caused
another to act for him.”
Commentary to Criminal Law Revision Commission Proposed
Oregon Criminal Code, Final Draft and Report § 212, 208-
09 (July 1970).
Returning to the parties’ arguments, defendant
emphasizes the legislature’s narrow purpose in enacting
ORS 162.375(1), highlighting that several of its drafters
expressly indicated the desire to curb the “needless use”
or “waste” of “emergency” or “government” resources. See,
e.g., 370 Or at 595 (comments of Paillette and subcommit-
tee member). Defendant also notes the concern—which the
subcommittee discussed at some length—that the statute
as initially drafted might be broad enough to ensnare wit-
nesses who, perhaps inadvertently, respond with less-than-
perfect accuracy to police-initiated questioning. Defendant
specifically highlights one member’s assertion that the
statute should only apply when “a person files a report of
a crime, thereby initiating the wheels of law enforcement
to go into action on an assertion that [the person] made.”
Audio Recording, Criminal Law Revision Commission,
Subcommittee 2, Sept 16, 1969, Tape 81, Side 2 (statement
of Rep Harl Haas).
For its part, the state agrees with defendant’s
view of the legislature’s purpose in enacting that statute;
the state argues, however, that the legislative history that
defendant recounts also shows that the drafters did not, in
fact, intend to limit the scope of the statute as defendant
contends they did. Among other things, the state points to
the subcommittee’s discussion of a hypothetical involving
“one kid” who calls the police to report a fictitious crime and
the perpetrator’s route, and a “second kid” who follows that
with a call, stating, “No, that first one’s wrong, it’s going
in the other direction.” Although one subcommittee member
had suggested that the draft statute would “let the second
guy off,” other members responded, “no,” because the second
598 State v. H. D. E.
kid would have “initiated the second one.” Id. (comments by
Rep Wallace Carson and Rep Harl Haas). In the state’s view,
that exchange shows that the drafters of ORS 162.375(1)
intended to criminalize the diverting of law-enforcement
resources with false allegations of crime, even if the false
allegations themselves would not independently trigger an
expenditure of resources.
Based on our own review of the legislative history
of ORS 162.375, we agree with defendant that it demon-
strates the legislature’s general goal of conserving emer-
gency resources for their intended purposes. We also agree
that it reflects that the drafters of the new statute sought
to limit its scope to what was necessary to achieve its pur-
pose, namely, to curb “the excessive use or the needless use
of public emergency” resources, which, they understood,
might not require “going any further than * * * anybody who
causes the initial report to issue.” Id. (comments of Donald
Paillette and subcommittee member); see also id. (comment
of Thomas O’Dell suggesting that proposed language might
already encompass that limitation).
But contrary to defendant’s assertion, nothing about
the legislature’s overall objective in enacting ORS 162.375,
nor its desire to limit its coverage so as to reach only con-
duct that implicated the drafters’ resource-related concerns,
necessarily suggests an intention to penalize false reporting
only if it is unaccompanied by truthful reporting likely to
trigger its own response. The legislative history of that stat-
ute therefore does not foreclose the possibility that the leg-
islature intended that it reach conduct such as defendant’s
report in this case.
C. Synthesis
We return to the interpretive issue at the core of
this case: whether, when a person transmits both true and
false allegations of crime to a law-enforcement agency and
the agency responds by expending resources, the state must
prove that the person’s false allegations triggered a greater
or different expenditure of resources than the truthful state-
ments would have triggered on their own. In addressing that
issue, we note that it is unnecessary for us to conclusively
decide whether, as the state appears to argue, a person can
Cite as 370 Or 579 (2022) 599
be convicted under ORS 162.375 anytime the person makes
a false statement as part of a report that is otherwise true,
though our above discussion suggests otherwise. But as to
the specific issue before us, we conclude that the state was
not required to prove that defendant’s false allegations of
assault caused law enforcement to devote greater or dif-
ferent resources to the investigation of defendant’s report
than it would have devoted had she only made the true alle-
gations. Accordingly, the trial court did not err in denying
defendant’s motion for judgment of acquittal, and the Court
of Appeals erred in concluding otherwise.
In reaching that conclusion, we first note that the
statutory text of ORS 162.375(1) lends little or no support to
defendant’s position. As discussed above, the ordinary mean-
ings of the words “false” and “report” do not convey that the
truth or falsity of a person’s allegations must be considered
as a whole, as opposed to looking at whether the person’s
false allegations themselves constitute a false report. Nor
do those terms, at least not in isolation, support the notion
that only a “report” shown to have resulted in wasted gov-
ernmental resources can constitute a “false report.” In the
absence of other indications that the legislature intended
to establish such a requirement, we would be reluctant to
recognize that requirement here.
One reason for that reluctance is that, under ORS
174.010, a court is not, when construing a statute, “to
insert what has been omitted.” And as the state observes,
the text of ORS 162.375(1) makes no reference to wasted
resources, a consideration that defendant (and the Court of
Appeals) would add to the statute. Another reason is that,
although defendant says that she is not adding an element
to the offense of initiating a false report, her arguments
suggest otherwise, which arguably places her at odds with
our observation in Branch that it does not appear that “an
actual response by the organization is an element of [that]
crime.” 361 Or at 359 n 4. That is, defendant’s argument
seems to be that—as the Court of Appeals effectively held,
see H. D. E., 313 Or App at 362—to prove the “false report”
element of ORS 162.375, the prosecution must produce evi-
dence that a person’s report resulted (or, where no investi-
gation occurred, was at least likely to have resulted) in a
600 State v. H. D. E.
wasteful expenditure of government resources. Because the
premise of that argument is that the state failed to prove a
required fact, defendant effectively contends that the state
has not established an essential element of initiating a false
report. See Black’s Law Dictionary (11th ed 2019) (defining
“elements of crime” as “[t]he constituent parts of a crime * * *
that the prosecution must prove to sustain a conviction”).
Ultimately, we find our discussion of ORS 162.375(1)
in Branch to provide the best guidance as to its application
here. And contrary to defendant’s view, her false allega-
tions that the doctor had assaulted her children were not
the sort of statements that Branch indicates would not con-
stitute false reports. Defendant falsely accused the doctor
of the crime of assault, and she has never contended that
the police would have been unlikely to respond to such an
allegation with an expenditure of resources. Thus, her alle-
gation of assault to the Hermiston police was indisputably
“a communication that inform[ed] a law enforcement agency
or other emergency organization that a situation exists of
a type to which the organization would respond with an
expenditure of resources.” Branch, 362 Or at 361. Moreover,
at the time that she made it, that allegation identified “new
circumstances to which the law enforcement agency [was]
reasonably likely to respond as a separate, ongoing crime or
emergency.” Id. at 362. That is, although defendant simul-
taneously reported that the doctor had harassed her chil-
dren and assaulted them, there was no existing criminal
investigation when she first told the police about the pur-
ported assaults. Finally, because defendant falsely accused
the doctor of the crime of assault as distinct from the crime
of harassment, she did not merely provide additional details
about a separate matter under investigation—she did not
merely “falsely convey[ ] information about circumstances
to which the agency would be unlikely to devote resources,
except for whatever relevance the information may have to
an existing criminal investigation.” Id. Rather, defendant
falsely conveyed information regarding a crime that the
police were likely to investigate in its own right.
Lastly, even though the legislative history of ORS
162.375(1) supports defendant’s contention that the drafters
of the statute were exclusively concerned with the waste
Cite as 370 Or 579 (2022) 601
and diversion of resources—and that they intended only to
criminalize reports that would tend to result in such waste
and diversion—nothing about that legislative history sug-
gests the intention to limit the statute’s coverage to circum-
stances in which the state can establish an actual expendi-
ture of resources (or, where no investigation has resulted, a
nonetheless likely expenditure of resources) specifically in
response to the false report. Consequently, we see no basis
to engraft such a requirement here.
Given that understanding of ORS 162.375(1) and
the meaning of “false report,” we conclude that the trial
court did not err by disregarding the apparently truthful
information that defendant had reported to the police, deny-
ing her motion for judgment of acquittal, and ultimately con-
victing defendant of initiating a false report based solely on
her false assertion that the doctor had assaulted her chil-
dren. The Court of Appeals therefore erred in concluding
otherwise.
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings.