State v. Gonzalez-Valenzuela , 358 Or. 451 ( 2015 )

No. 56 December 24, 2015 451
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
JACKELIN GONZALEZ-VALENZUELA,
Petitioner on Review.
(CC C100316CR; CA A146278; SC S061751)
En Banc
On review from the Court of Appeals.*
Argued and submitted May 7, 2014.
David L. Sherbo-Huggins, Deputy Public Defender,
Salem, argued the cause for petitioner on review. With him
on the briefs was Peter Gartlan, Chief Defender, Office of
Public Defense Services.
Erin Galli, Assistant Attorney General, Salem, argued
the cause for respondent on review. With her on the brief
were Ellen F. Rosenblum, Attorney General, and Anna M.
Joyce, Solicitor General, Salem.
LINDER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
* Appeal from Washington County Circuit Court, Steven L. Price, Judge.
258 Or App 263, 303 P3d 1096 (2013).
452 State v. Gonzalez-Valenzuela
Case Summary: Defendant challenged the sufficiency of the evidence used
to convict her of child endangerment under ORS 163.575(1)(b), which prohibits
knowingly permitting a minor “to enter or remain in a place where unlawful
activity involving controlled substances is maintained or conducted.” Defendant
had allowed her two daughters to enter and remain in a car in which defendant
illegally possessed drugs. The trial court rejected defendant’s argument and con-
victed her, and the Court of Appeals affirmed. Held: (1) illegal drug possession
constitutes “unlawful activity” involving controlled substances for the purposes
of ORS 163.575(1)(b); but (2) the phrase “a place where unlawful activity involv-
ing controlled substances is maintained or conducted,” as used in ORS 163.575(1)
(b), refers to a place where a principal or substantial use of the place is to facili-
tate unlawful drug activity.
The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings
Cite as 358 Or 451 (2015) 453
LINDER, J.
Defendant was convicted of two counts of child
endangerment under ORS 163.575(1)(b), which prohib-
its knowingly permitting a minor “to enter or remain in
a place where unlawful activity involving controlled sub-
stances is maintained or conducted.” The issue in this case
is whether that statute is violated when a person know-
ingly possesses drugs in a container—here, a purse—while
in a car with two children. As we will explain, contrary to
defendant’s argument, we conclude that a person in that
circumstance can be found to have engaged in unlawful
“activity” involving controlled substances. We agree with
defendant, however, that when, as here, the possession of
the drugs in the car is a brief isolated incident of illegal drug
activity, the car is not, within the meaning of the statute,
“a place” where unlawful activity involving controlled sub-
stances “is maintained or conducted.” ORS 163.575(1)(b).
We therefore conclude that defendant was entitled to a
judgment of acquittal on the charges of child endanger-
ment, and reverse the contrary decisions of the trial court
and the Court of Appeals.
The facts of this case are not in dispute. Defendant
and her five-year-old daughter were passengers in a bor-
rowed car driven by defendant’s 17-year-old daughter. A
police officer stopped the car for a traffic violation and,
during the stop, noticed objects in defendant’s open purse
that appeared to be drugs. The officer asked for consent
to search the car, which defendant gave. As a result of
the consent search, the officer confirmed that defendant’s
purse contained drugs—specifically, small amounts of
heroin, methamphetamine, and methadone. Based on
those facts, defendant was charged with unlawful pos-
session of heroin (ORS 475.854), unlawful possession of
methamphetamine (ORS 475.894), unlawful possession
of a controlled substance (ORS 475.840(3)(b), renumbered
ORS 475.752(3)(b)), and two counts of child endangerment
(ORS 163.575).
At the end of a short bench trial, defendant argued
for acquittal on the two counts of child endangerment,
asserting that the state’s evidence was insufficient to
454 State v. Gonzalez-Valenzuela
establish liability under ORS 163.575(1)(b).1 She presented
two grounds for acquittal. First, she argued that possession
is passive and therefore cannot be “activity,” as that term
is used in the statutory phrase “unlawful activity involving
controlled substances.” Id. Second, she argued that, even if
possession is “activity,” a brief isolated incident of illegal drug
activity in a particular “place” is insufficient as a matter of
law to establish that the place is one where drug activity “is
maintained or conducted.” Id. On the latter point, defendant
asserted that, to satisfy the statute, the drug activity must
occur with some degree of regularity, which would require
the state to prove more than a brief isolated incident. The
trial court rejected both of defendant’s arguments and con-
victed her of four counts of illegal drug possession and two
counts of child endangerment.
On appeal, defendant challenged the child-
endangerment convictions on the same grounds that she
asserted in the trial court. State v. Gonzalez-Valenzuela,
258 Or App 263, 268-72, 308 P3d 1096 (2013).2 The Court
of Appeals first held that possession is “activity” within the
meaning of the child-endangerment statute. Id. In doing so,
the Court of Appeals interpreted the term “activity” in light
of a contemporaneously passed statute that treated posses-
sion as a type of “ ‘criminal activity in drugs.’ ” Id. at 269-70(quoting former ORS 167.207(1), repealed by Or Laws 1977,
ch 745, § 54; emphasis added). Given that context, the Court
1
Defendant did not expressly move for judgment of acquittal. Instead, she
challenged the legal sufficiency of the state’s evidence in her closing arguments.
Because she opted for a bench trial, defendant made her closing argument to
the trial court. The Court of Appeals treated defendant’s closing argument as a
motion for judgment of acquittal. State v. Gonzalez-Valenzuela, 258 Or App 263,
265 n 3, 308 P3d 1096 (2013). We agree with the long-standing case law from the
Court of Appeals that, under the circumstances, defendant’s closing argument
was the equivalent of a motion for judgment of acquittal and, therefore, preserved
the issue that defendant presents. Compare State v. Forrester, 203 Or App 151,
155, 125 P3d 47 (2005) (by challenging evidence as insufficient as matter of law
to support conviction, defendant made functional equivalent of motion for judg-
ment of acquittal in argument to trial court), with State v. Schodrow, 187 Or App
224, 231, 66 P3d 547 (2003) (where defendant argued for existence of element
that state must prove, not adequacy of evidence to prove element, issue preserved
was functional equivalent of challenge to jury instructions, not motion for judg-
ment of acquittal; proper relief was reversal with remand, not outright reversal).
2
Defendant did not challenge her convictions for illegal drug possession. Id.
at 264.
Cite as 358 Or 451 (2015) 455
of Appeals concluded that the legislature intended to include
illegal drug possession within the statutory phrase “unlaw-
ful activity involving controlled substances.” Id. at 270-72.3
The Court of Appeals therefore rejected defendant’s first
argument.
The Court of Appeals also rejected defendant’s
second argument: that a “place” is one where illegal drug
activity “is maintained or conducted” only if the illegal drug
activity occurs regularly at that place. Id. at 268-72. The
operative question, according to the Court of Appeals, was
“not whether unlawful activity exists in a place, but whether
that activity is being ‘maintained or conducted’ ” in a place.
Id. at 268. After reviewing dictionary definitions for “main-
tain” and “conduct,” the Court of Appeals concluded that
“unlawful activity in a place can be ‘maintained’ through a
continuation of the status of an unlawful act or ‘conducted’
if the unlawful activity is immediately occurring under the
direction of a person.” Id. The Court of Appeals held that
defendant “maintained” possession of drugs in the car by
“carrying, storing, and concealing those substances in her
purse.” Id. at 268-69. Because the Court of Appeals affirmed
defendant’s conviction by applying the definition of “main-
tained,” it did not address whether defendant’s conviction
could be affirmed under the definition of “conducted.” Id. at
269.
Chief Judge Haselton agreed with the interpre-
tive analysis in the majority opinion but wrote separately
to highlight three concerns, which he thought were best
addressed through legislative amendment. Id. at 272-74.
First, he worried that applying the child-endangerment
statute to a parent’s “surreptitious possession of drugs”
went beyond the legislative intent behind the statute. Id.
at 272-73. Second, he believed that the “practical upshot” of
the analysis is that a parent possessing drugs in the pres-
ence of his or her children could be charged with separate
3
The current version of the child-endangerment statute refers to “unlaw-
ful activity involving controlled substances,” ORS 163.575(1)(b), but the original
version referred to “unlawful narcotic or dangerous drug activity,” Or Laws 1971,
ch 743, § 177. The legislature made that change in 1979 only to modernize the
language in the statute. See Or Laws 1979, ch 744, § 8 (making only linguistic
rather than substantive changes). That change does not affect our analysis.
456 State v. Gonzalez-Valenzuela
possession and endangerment charges and sentenced to
consecutive sentences. Id. at 273. Third, he was concerned
that the reasoning used in the opinion would mean that
“anywhere a person merely possesses drugs is ‘a place where
unlawful activity involving controlled substances is main-
tained or conducted,’ ” including, for example, “a supermar-
ket, a church, or a synagogue—or, for that matter, our court-
room, Reser Stadium, or the Rose Festival Fun Center.” Id.
(quotation omitted).
In this court, defendant challenges her convictions
for child endangerment by asserting the same two argu-
ments that she made to the trial court and the Court of
Appeals. “On review of a challenge to a denial of a motion
for acquittal, we view the facts in the light most favorable to
the state and consider whether a rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” State v. Zweigart, 344 Or 619, 632, 188
P3d 242 (2008). If the parties dispute the meaning of the
essential elements of the offense, then we must first deter-
mine the meaning that the legislature intended—a matter
of statutory construction—before we can determine whether
the trial record supports the defendant’s conviction. In this
case, the parties do not dispute the facts established by
the trial record and instead dispute only the meaning of
the essential elements of child endangerment under ORS
163.575(1)(b). This case, therefore, presents an issue of stat-
utory construction.
Under our usual method for resolving issues of stat-
utory construction, “[w]e begin with the text and context
of the statute, which are the best indications of the legisla-
ture’s intent. If appropriate, we also consider the statute’s
legislative history. Finally, if the statute’s meaning remains
unclear, we may resort to general maxims of statutory con-
struction.” State v. Walker, 356 Or 4, 13, 333 P3d 316 (2014).
The relevant subsection of the child-endangerment
statute states:
“(1)  A person commits the offense of endangering the
welfare of a minor if the person knowingly:
“* * * * *
Cite as 358 Or 451 (2015) 457
“(b)  Permits a person under 18 years of age to enter or
remain in a place where unlawful activity involving con-
trolled substances is maintained or conducted[.]”
ORS 163.575(1)(b).
As already noted, defendant first contends that
possession is not “activity,” as that term is used in subsec-
tion (b). Although neither “possession” nor “activity” is spe-
cifically defined by statute, the legislature has provided rel-
evant definitions for “possess” and “act.” “ ‘Possess’ means
to have physical possession or otherwise to exercise domin-
ion or control over property.” ORS 161.015(9).4 Defendant
is correct that “to have * * * possession” generally does not
refer to an action but instead refers to a state of affairs or
state of being. See Randolph Quirk et al, A Comprehensive
Grammar of the English Language 178 (1985) (noting that
“have” expresses a stative meaning when it is used to mean
“possess”); Tom McArthur ed., Oxford Companion to the
English Language 985 (1992) (contrasting stative verbs,
which “refer to states of affairs,” with dynamic verbs, which
“refer to actions”).5 Drug possession most often begins with
an action to acquire the drugs and ends with an action to
dispose of them, whatever the disposition. Drug possession
occurs between those two actions but is itself not neces-
sarily an action. After acquiring drugs, a person can con-
tinue possessing them while taking no additional action
and while doing nothing at all. Defendant contends that,
although she possessed the drugs in the car, her posses-
sion was passive, consisting only of her failure to dispose of
the drugs. That passivity, defendant argues, should not be
treated as “activity” under ORS 163.575(1)(b), and there-
fore, no illegal drug activity was maintained or conducted
in the car.
4
This case involves physical possession of drugs. We do not address the
extent to which constructive possession might constitute “an unlawful activity
involving controlled substances” under ORS 163.575(1)(b). See State v. Daniels,
348 Or 513, 520, 234 P3d 976 (2010) (“The concept of constructive possession
broadens the scope of the crime of possession beyond physical control.”).
5
Other examples of verbs with stative meanings include “own” and “con-
tain.” To say that someone “owns” a house is not to describe an action but to
describe that person’s status as a homeowner. Similarly, to say that a box “con-
tains” files is to describe its contents rather than an action that the box has
undertaken.
458 State v. Gonzalez-Valenzuela
At first blush, it may seem counterintuitive to
describe a failure to act as an action. In fact, however, it is
common—at least, in the law—to do so. Courts, for exam-
ple, often refer to culpable conduct as an act, regardless of
whether the culpability stems from a party’s act or failure
to act. For example, the law may describe a party as having
“acted negligently” by “failing to appear” for certain legal
proceedings. In re Carini, 354 Or 47, 58, 308 P3d 197 (2013)
(emphasis added). Likewise, an insurer can be described as
having “acted in bad faith in failing to make or in unduly
delaying an offer or counteroffer to settle.” Eastham v.
Oregon Auto. Ins. Co., 273 Or 600, 608, 540 P2d 364 (1975)
(emphasis added).
The legislature that passed the child-endangerment
statute expressly adopted that broad understanding of
activity as encompassing both culpable action and culpable
inaction. The child-endangerment statute was enacted by
the legislature in 1971 as part of a bill, largely drafted by
the Oregon Criminal Law Revision Commission, that over-
hauled Oregon’s criminal code. Or Laws 1971, ch 743, § 177,
codified as ORS 163.575. That same bill defined “to act” as
“either to perform an act or to omit to perform an act.” Or
Laws 1971, ch 743, § 7(5), codified as ORS 161.085(5). The
bill also stated, “ ‘[O]mission’ means a failure to perform an
act the performance of which is required by law.” Or Laws
1971, ch 743, § 7(3), codified as ORS 161.085(3); see also Or
Laws 1971, ch 743, § 7(4), codified as ORS 161.085(4) (defin-
ing “conduct” as “an act or omission and its accompanying
mental state”). Those definitions remain in effect.
By prohibiting defendant’s possession of drugs—
ORS 475.854, ORS 475.894, ORS 475.752(3)—the law
required defendant to dispose or otherwise divest herself of
drugs that she possessed unlawfully. Thus, defendant failed
to perform an act required by law when she failed to rid
herself of the drugs that she possessed. That omission con-
stituted an act, and that act occurred in the car. Therefore,
while defendant was in the car, she engaged in “illegal activ-
ity involving a controlled substance.” ORS 163.575(1)(b).
Further statutory context confirms that the legisla-
ture intended “activity” to include possession. As the Court
Cite as 358 Or 451 (2015) 459
of Appeals pointed out, the same bill that created the child-
endangerment offense also established the offense of “crim-
inal activity in drugs,” which included possession:
“A person commits the crime of criminal activity in drugs
if he knowingly and unlawfully manufactures, cultivates,
transports, possesses, furnishes, prescribes, administers,
dispenses or compounds a narcotic or dangerous drug.”
Former ORS 167.207(1) (emphases added), repealed by Or
Laws 1977, ch 745, § 54. We need not decide the extent to
which the phrase “unlawful activity involving controlled
substances” in the child-endangerment statute overlaps
with the scope of the phrase “criminal activity in drugs” in
former ORS 167.207(1). The fact that possession is included
as “criminal activity in drugs” confirms that the legislature
intended possession to be “activity” and fall within “unlaw-
ful activity involving controlled substances.” We therefore
reject defendant’s first argument and hold that illegal drug
possession may constitute “unlawful activity involving con-
trolled substances.” ORS 163.575(1)(b).
Defendant’s second argument raises the question of
whether a brief isolated incident of illegal drug possession in
a place is sufficient to establish that the place is one “where
unlawful activity involving controlled substances is main-
tained or conducted.” ORS 163.575(1)(b). Defendant con-
tends that a brief isolated incident of drug activity is insuffi-
cient, because that statutory phrase is best read as referring
to a drug house or opium den or some other place where the
drug activity occurs with enough regularity for the place to
be associated with drug activity. In that sense, defendant
asks the court to incorporate standards like those often
required to establish a criminal nuisance for maintaining a
drug house. See, e.g., ORS 167.222 (prohibiting maintaining
a place resorted to by drug users). The state, on the other
hand, argues that the plain meaning of the relevant statu-
tory terms includes no limitations requiring proof that the
drug activity occurred regularly. Based on that reading, the
state asks this court to affirm defendant’s convictions for
child endangerment.
As described above, we approach issues of stat-
utory interpretation by reading the text in context with
460 State v. Gonzalez-Valenzuela
any relevant legislative history and, if necessary, appli-
cable canons of construction. Walker, 356 Or at 13. None
of the relevant statutory terms related to this issue is
defined by statute.6 Without a statutory definition, “we
ordinarily look to the plain meaning of a statute’s text
as a key first step in determining what particular terms
mean.” Comcast Corp. v. Dept. of Rev., 356 Or 282, 295,
337 P3d 768 (2014).
Defendant argues that an ordinary English speaker
could reasonably describe a drug house or opium den as
“a place where unlawful activity involving controlled sub-
stances is maintained or conducted.” According to defen-
dant, those words refer to a particular type of place—namely,
one that is used principally or substantially to serve drug-
related purposes rather than any place where drug activ-
ity may have occurred on one occasion. Defendant’s reading
conforms to our normal understanding of similar phrases.
For example, if someone referred to “a place where surgery
is performed,” we likely would assume that the person was
referring to a hospital and not any place where a surgery
may have occurred, such as a sidewalk where emergency
surgery was performed once following an accident. We would
not normally think that a single incident of emergency sur-
gery converts that sidewalk into “a place where surgery is
performed.”
The state, on the other hand, contends that the
plain meaning of the relevant terms suggests a broader
understanding than that offered by defendant. According to
the state, an ordinary English speaker could reasonably say
that, under the facts of this case, defendant “maintained”
possession of drugs, or otherwise “conducted” drug activity,
while she was in the car, even if that drug activity was brief
or isolated. The state argues, as a result, that the car was “a
place where drug activity is maintained or conducted.” The
state supports that argument by relying on the dictionary
definitions of “maintain” and “conduct.”
6
Two of the relevant terms are “activity” and the verb form of “conduct.”
As noted above, the legislature has defined “to act” and the noun form of “con-
duct.” ORS 161.085(5) (defining “to act”); ORS 161.085(4) (defining “conduct”).
Although those definitions were relevant to defendant’s first argument, they do
not speak to defendant’s argument that the activity must occur regularly.
Cite as 358 Or 451 (2015) 461
“[A]s stilted as the approach may sometimes seem,”
this court frequently attempts to resolve disputes about
plain meaning by consulting dictionary definitions of the
relevant terms. Comcast, 356 Or at 296. However, we have
also stressed that, “[i]n construing statutes, we do not simply
consult dictionaries and interpret words in a vacuum.” State
v. Cloutier, 351 Or 68, 96, 261 P3d 1234 (2011). Although
dictionaries may provide a useful starting point to identify-
ing the plain meaning of a statute, this case highlights their
limitations.
As an initial matter, not all disputes about plain
meaning can be resolved by defining a particular word or
words. Sometimes disputes about plain meaning instead turn
on the meaning conveyed through the grammar and struc-
ture of the relevant provision. See, e.g., Cuff v. Department of
Public Safety Standards, 345 Or 462, 470, 198 P3d 931 (2008)
(relying on verb tense); Baker v. City of Lakeside, 343 Or 70,
74, 164 P3d 259 (2007) (noting that two interpretations were
“[g]rammatically * * * permissible”). And even when the dis-
pute centers on the meaning of a particular word or words, a
dictionary definition—although providing some evidence of
meaning—should not be relied on to resolve a dispute about
plain meaning without critically examining how the defini-
tion fits into the context of the statute itself. That context
may dictate applying one definition rather than another, if
the dictionary contains multiple definitions for a relevant
term. See Kohring v. Ballard, 355 Or 297, 304, 325 P3d 717
(2014) (“[W]e examine word usage in context to determine
which among competing definitions is the one that the legis-
lature more likely intended.”). That context may also reveal
that the dictionary contains no definitions clarifying the
issue in dispute. See, e.g., State v. Murray, 340 Or 599, 604,
136 P3d 10 (2006) (looking beyond dictionary definitions
where the definitions could not “be said to clarify the issue”).
Further, a statute’s plain meaning is frequently
more than the sum of its individually defined terms.
Dictionary definitions lack context and often fail to capture
the nuanced connotations conveyed by the normal use of a
term in a particular context. Those more nuanced connota-
tions may represent the plain meaning of a term in context
even though those connotations result from tacit knowledge,
462 State v. Gonzalez-Valenzuela
accumulated experience, and common sense that are not
reflected well—if at all—in dictionary definitions. See,
e.g., Kohring, 355 Or at 305 (departing from the dictionary
definition of “sustained” because “[i]n the context of ORS
14.080, it seems clear that the legislature did not intend the
term to be understood literally”). As a result, “dictionaries
are only the starting point for our textual analysis,” State
v. Clemente-Perez, 357 Or 745, 765, 359 P3d 232 (2015), and
should not be used as the ending point.
In this case, the Court of Appeals rejected defen-
dant’s reading of the child-endangerment statute based
on the dictionary definitions of “maintain” and “conduct.”
Relying on Webster’s Third New International Dictionary
(unabridged ed 2002), the Court of Appeals concluded that
“maintain” means “ ‘1: to keep in a state of repair, efficiency,
or validity : preserve from failure or decline * * * 3: to per-
severe in : carry on : keep up : CONTINUE.’ ” Gonzalez-
Valenzuela, 258 Or App at 268 (quoting Webster’s at 1362).
It further concluded that “conduct” means “ ‘[2]b: to have
the direction of : RUN, MANAGE, DIRECT <~s a scientific
experiment> <~s a daily newspaper column> <~s a small
business enterpriser>.’ ” Id. (quoting Webster’s at 474).
Based on those dictionary definitions, the Court of
Appeals concluded that “unlawful activity in a place can
be ‘maintained’ through a continuation of the status of an
unlawful act or ‘conducted’ if the unlawful activity is imme-
diately occurring under the direction of a person.” Id. The
Court of Appeals explained that, “[v]iewed in that fashion,
defendant’s conduct in possessing, transporting, storing,
and concealing the controlled substances in her purse main-
tained the status of her possession of those substances.” Id.
In effect, the Court of Appeals determined that the dictio-
nary definition of “maintain” could encompass a brief iso-
lated incident of drug activity and did not require that the
activity occur regularly. Because defendant—at least, in that
sense of the word—“maintained” unlawful drug possession
in the car, the Court of Appeals concluded that the car was
a place where unlawful drug activity was maintained. The
Court of Appeals held that “[u]nder the plain meaning of
the word ‘maintain,’ then, defendant’s conduct violated ORS
163.575(1)(b).” Id. at 269.
Cite as 358 Or 451 (2015) 463
The state asks us to adopt that analysis as well,
arguing that defendant’s reading imposes a requirement
of regularity or duration that is not supported by the plain
meaning of the statute’s words.7 But the question that nei-
ther the state nor the Court of Appeals addresses is why the
definitions of “maintain” and “conduct” resolve the question
of whether a brief isolated incident of drug activity in a place
makes that “a place where unlawful activity involving con-
trolled substances is maintained or conducted.”
The state and the Court of Appeals are correct that
the definitions of “maintain” and “conduct” do not, by them-
selves, require the type of regularity or duration asserted
by defendant. Even “maintain,” which connotes some sense
that the event occurs over time, may be used to describe
momentary events, such as, “The player maintained posses-
sion of the ball as he crossed the plane of the end zone.”
Although that sentence suggests that the player’s posses-
sion occurred both before he crossed the plane and after he
crossed the plane, neither of those states needs to take much
time.
Nevertheless, the dictionary definitions of “main-
tain” and “conduct” do not resolve the parties’ dispute. When
assessing the plausibility of competing interpretations,
we consider dictionary definitions, among other potential
sources of meaning, to determine whether an offered inter-
pretation is permitted. “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.” Cloutier, 351 Or at 96.8
7
According to the state, defendant’s reading therefore violates ORS 174.010,
which states: “In the construction of a statute, the office of the judge is simply to
ascertain and declare what is, in terms or in substance, contained therein, not
to insert what has been omitted, or to omit what has been inserted[.]” However,
relying on ORS 174.010 at this stage begs the question of “what is * * * contained”
in the statute. Although ORS 174.010 instructs us to disregard terms or sub-
stance not contained in the statute, that instruction does not help us determine
the terms and substance that are contained in the statute, which is the question
before us.
8
See Lawrence M. Solan, The New Textualists’ New Text, 38 Loy LA L Rev
2027, 2056 (2005) (“The problem with using dictionaries to determine the ordi-
nary meaning of a word * * * is that the purpose of a dictionary is to determine
the outer boundaries of appropriate usage for each entry.”); Henry M. Hart,
Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and
464 State v. Gonzalez-Valenzuela
Although the state and the Court of Appeals are cor-
rect that the dictionary definitions of “maintain” and “con-
duct” lack a requirement of duration and regularity, that
fact means only that “maintain” and “conduct” may refer
to events of either short or long duration or events that are
either isolated or regular. For example, the bare statement,
“The company maintained/conducted its normal manufac-
turing operation,” does not by itself tell us how long or how
frequently the company engaged in that activity.9
Thus, the lack of a requirement for duration and
regularity in the dictionary definitions of “maintain” and
“conduct” establishes that both parties’ interpretations
might be permitted but neither is required. To determine
whether the legislature intended for a brief isolated inci-
dent of drug activity in a place to make it “a place where
unlawful activity involving controlled substances is main-
tained or conducted,” we must consider the possible sources
of duration and regularity beyond the dictionary definitions
of “maintain” and “conduct.”
One potential source of duration and regularity is
verb tense. A verb used in the simple present tense may
express habitual activity, which “impl[ies] an inherently
unrestricted time span” and “refers to a whole sequence
of events, repeated over the period in question.” Quirk,
Comprehensive Grammar of the English Language at 179. An
example of habitual activity conveyed by the simple present
tense is “She rides her bike to work.” That sentence refers
to a particular woman’s regular mode of transportation to
work. That sentence likely would not be used to refer to a
woman who had ridden her bike to work only once, particu-
larly if she had no intention to do it regularly in the future.
The statutory phrase “is maintained or conducted”
is also in the simple present tense, although it is stated in
Application of Law 1190-91 (William N. Eskridge, Jr. & Philip P. Frickey eds.,
1994) (“A dictionary, it is vital to observe, never says what meaning a word must
bear in a particular context. Nor does it ever purport to say this.” (Emphasis in
original.)).
9
One could say, “Although production usually stops from noon to 1:00 p.m.,
today the company maintained/conducted its normal manufacturing operation
during the lunch hour.” Or one could say, “The company maintained/conducted
its normal manufacturing operation throughout the holiday season.”
Cite as 358 Or 451 (2015) 465
the passive voice. Id. at 159 (noting that “kisses” is the sim-
ple present tense in active voice and “is kissed” is the simple
present tense in the passive voice). The relevant phrase in
the child-endangerment statute could be rewritten in the
active voice as “a place where a person maintains or con-
ducts, or persons maintain or conduct, unlawful activity
involving controlled substances.”
Although we do not say—using an example from
above—that a single incident of emergency surgery con-
verts a sidewalk into a “place where surgery is performed,”
a sidewalk where surgery occurred once may be referred to
as a “place where surgery was performed.” And if the sur-
gery is happening in the moment, then the sidewalk may
be described as a “place where surgery is being performed.”
Neither the past tense nor the present progressive tense con-
vey the sense of habitual activity that may be conveyed by
the simple present tense. Similarly, “a place where unlawful
activity involving controlled substances was maintained or
conducted” and “a place where unlawful activity involving
controlled substances is being maintained or conducted” are
not the same as “a place where unlawful activity involving
controlled substances is maintained or conducted.”
Both the state and the Court of Appeals depart
from using simple present tense in their analyses. For
example, as the Court of Appeals framed it, “The precise
inquiry is not whether unlawful activity exists in a place,
but whether that activity is being ‘maintained or conducted’
therein.” Gonzalez-Valenzuela, 258 Or App at 268 (empha-
sis added).10 Likewise, the state argues in its brief that the
intent of the statute was to prevent minors “from being at
the place where the [drug] activity is being maintained or
conducted.” (Emphasis added.) The state also argues that
“the car carrying defendant and her daughters was a place
where unlawful drug activity was maintained or conducted.”
10
This court used a similar construction in State v. McBride, 352 Or 159,
164, 281 P3d 605 (2012) (“The illegal conduct is not the use of drugs in a minor’s
presence. It is, instead, the act of permitting the minor to enter or remain where
illegal drug activity is occurring.” (Emphasis added.)). However, the issue in
McBride was only the meaning of “permits.” Nothing in McBride states the stan-
dard for determining whether a place is “a place where unlawful activity involv-
ing controlled substances is maintained or conducted.” ORS 163.575(1)(b).
466 State v. Gonzalez-Valenzuela
(Emphasis added.) And the state most frequently character-
izes the question as being whether “the legislature intended
the unlawful transportation and possession of a drug to con-
stitute maintaining and conducting an unlawful drug activ-
ity.” (Emphasis added.)
None of those constructions, however, is faithful
to the words and context of the statute, which remain “the
best indications of the legislature’s intent.” Walker, 356 Or at
13. “[W]e do not lightly disregard the legislature’s choice of
verb tense, because we assume that the legislature’s choice
is purposeful.” Martin v. City of Albany, 320 Or 175, 181, 880
P2d 926 (1994). If the legislature used the simple present
tense in the child-endangerment statute with the intent of
conveying habitual activity, then the verb tense would sup-
port defendant’s position.
The problem with that analysis is that the simple
present tense may express other meanings as well. One of
the other meanings expressed by the simple present tense
is “timeless” statements, like scientific, mathematic, or
geographic facts, such as, “Water boils at 100°C.” Quirk,
Comprehensive Grammar of the English Language at 179.
Statutes are often written as legal facts. The legislature
has used the simple present tense throughout the criminal
code with that intended meaning. For example, the crimi-
nal homicide statute enacted in 1971 stated: “A person com-
mits criminal homicide if, without justification or excuse, he
intentionally, knowingly, recklessly or with criminal negli-
gence causes the death of another human being.” Or Laws
1971, ch 743, § 87(1), codified as ORS 163.005(1) (emphasis
added). The legislature undoubtedly did not intend that pro-
vision to impose criminal penalties only on those who habit-
ually cause the deaths of another human being. Similarly,
other parts of the child-endangerment statute use the sim-
ple present tense with the intention of expressing timeless
legal facts: “A person commits the offense of endangering
the welfare of a minor if the person knowingly * * * [p]ermits
a person under 18 years of age * * *.” ORS 167.575(1)(b)
(emphases added). If the legislature used the simple present
tense in the relevant part of the child-endangerment statute
to convey a statement of timeless fact, then the verb tense
would not favor either party.
Cite as 358 Or 451 (2015) 467
Thus, without more, the verb tense is ambiguous,
because the legislature’s use of the simple present tense
may indicate an intent to refer either to habitual conduct
or to timeless facts. It may be that those examples of the
simple present tense used when referring to timeless facts
are grammatically distinct from its use in the relevant
portion of the child-endangerment statute at issue—“is
maintained or conducted”—which need not refer to the
actions of the person committing the offense but can refer
instead to the conditions under which that person acts.
Even if those uses are distinct, we would be hesitant to
resolve that grammatical ambiguity by presuming that
the legislature intended to place so much weight on such a
subtle distinction.
Nevertheless, we find sufficient support for defen-
dant’s reading in other contextual clues of the legislature’s
intent, namely, the legislature’s use of “place.” “Place” has
broad and narrow definitions respectively supporting the
state and defendant. The state asserts that “the plain
meaning of ‘place’ is ‘physical environment : SPACE’ and ‘an
indefinite region or expanse : AREA.’ ” (Quoting Webster’s at
1727.) But “place” can have other meanings, and the state
provides no argument for why the legislature intended the
definitions it offers.
In addition to the definitions offered by the state,
Webster’s also defines “place” to mean “a building or local-
ity used for a special purpose .”
Webster’s at 1727. In Clemente-Perez, we recently acknowl-
edged that meaning of “place,” which denotes a particular
purpose: “Reading the phrase ‘place of residence’ as a whole,
the term ‘place’ can be viewed as further describing (and
limiting) the area excepted from the general provisions of
ORS 166.250—that is, that one’s ‘place of residence’ is the
particular structure set apart for residential purposes.” 357
Or at 764-65 (emphasis added). That meaning of “place”
is consistent with the defendant’s reading of the child-
endangerment statute—namely, that the phrase “a place
where unlawful activity involving controlled substances is
maintained or conducted” refers to a place used principally
or substantially to serve drug-related purposes.
468 State v. Gonzalez-Valenzuela
In State v. Smith, 31 Or App 749, 571 P2d 542 (1977),
the Court of Appeals used a similar analysis to interpret the
drug-promotion statute, which was amended and re-enacted
by the 1971 legislature, Or Laws 1971, ch 743, § 376. At that
time, the drug-promotion statute stated:
“A person commits the offense of criminal drug promo-
tion if he knowingly maintains, frequents, or remains at a
place:
“(a)  Resorted to by drug users for the purpose of
unlawfully using narcotic or dangerous drugs; or
“(b)  Which is used for the unlawful keeping or sale of
narcotic or dangerous drugs.”
ORS 167.222(1) (1977). The defendant in Smith was con-
victed of drug promotion based on evidence that she “became
aware that marihuana was present and being sold when
[the resident and an undercover officer] made a deal, and
‘remained’ in the apartment for the brief interval thereafter
a matter of minutes until [the undercover officer] returned
and arrested her.” Smith, 31 Or App at 753.
The Court of Appeals in Smith addressed whether
that evidence was sufficient to establish liability under the
drug-promotion statute. The state argued that the defen-
dant had remained in a place that had been “used for the
unlawful keeping or sale of narcotic or dangerous drugs.”
ORS 167.222(1) (1977). There was no dispute that drugs had
been used or sold at the apartment on one occasion, but there
was no evidence that drug activity otherwise had occurred
there.
The Court of Appeals understood the interpretive
question raised as “focus[ing] on the nature of the ‘place’
in which a person must remain to be in violation.” Smith,
31 Or App at 753. The Court of Appeals traced the “histor-
ical antecedents” of the drug-promotion statute to previous
criminal nuisance statutes and determined that the drug-
promotion statute was not intended to apply to “any place,
but only * * * a certain ‘type’ of place.” Id. at 755 (quoting
former ORS 474.130(3)). The Court of Appeals held that
the legislature intended for the drug-promotion statute to
apply to “a place where a principal or substantial purpose
Cite as 358 Or 451 (2015) 469
is the commercial sale or use of illegal drugs.” Id. (empha-
sis added). In that sense, the Court of Appeals interpreted
the drug-promotion statute “as a modern version of the stat-
ute * * * [that] prohibited frequenting ‘an opium den.’ ” Id.at 755 (citing State v. Sam, 14 Or 347, 13 P 303 (1887)). As
a result, in that case, the Court of Appeals interpreted the
drug-promotion statute as a continuation of previous crim-
inal nuisance statutes and held that “evidence of a single
occasion of use or sale of illegal drugs at a given place * * *
is insufficient as a matter of law to sustain a conviction for
criminal drug promotion.” Id.Thus, although the Court of Appeals in Smith did
not consult dictionary definitions, it nevertheless analyzed
the issue consistently with the usual methodology that this
court applies: The text was not “read in isolation but [was]
considered in context,” including “ ‘the preexisting common
law and the statutory framework within which the law was
enacted.’ ” Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140
(2004) (quotation omitted). Using that context, the Court of
Appeals understood “place” consistently with Webster’s nar-
rower definition of the word—namely, as “a building or local-
ity used for a special purpose.” Webster’s at 1727.11
Although the drug-promotion statute is a con-
tinuation of a prior criminal nuisance statute, the child-
endangerment statute is not. Nevertheless, the standards
for establishing a criminal nuisance are relevant. The child-
endangerment statute is part of a patchwork of statutes
intended as a continuation of a previous statute prohibit-
ing contributing to the delinquency of a minor: former ORS
167.210 (1969), repealed by Or Laws 1971, ch 743, § 432.
This court had previously held that contribution statute to
be unconstitutionally vague. State v. Hodges, 254 Or 21, 28,
457 P2d 491 (1969). In attempting to ensure the continuing
criminality of conduct previously prohibited under the con-
tribution statute, the Criminal Law Revision Commission
noted that “in almost every instance the same conduct could
11
In fact, the Court of Appeals understood “place” to mean something slightly
broader than the dictionary definition, because it was not limited to a “building
or locality” but instead applied to “ ‘[a]ny store, shop, warehouse, dwelling house,
building, vehicle, boat, aircraft, or any place whatever.’ ” Smith, 31 Or App at 754
(quoting ORS 474.130(1)).
470 State v. Gonzalez-Valenzuela
be prosecuted” under other sections of the proposed criminal
code. Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report,
162 (July 1970).
The child-endangerment statute was intended
to fill gaps left by those other sections and, therefore, was
“designed to provide coverage for specific acts injurious to
the welfare of minors not specifically prohibited elsewhere
in the proposed Code.” Id. at 178; see also State v. McBride,
352 Or 159, 164 n 3, 281 P3d 605 (2012) (discussing his-
tory of the child-endangerment statute). In particular, the
Commission intended the relevant subsection of the child-
endangerment statute to fill a gap between providing drugs
to a minor and maintaining a drug house:
“If a minor is sold or given illegal drugs, or if the actor
maintains a place resorted to by drug users or used for
the unlawful keeping or sale of drugs, the crime of crimi-
nal activity in drugs or criminal drug promotion would be
committed.”
Commentary to Criminal Law Revision Commission Pro-
posed Oregon Criminal Code, Final Draft and Report, 178.12
Thus, although the child-endangerment statute is
not a continuation of a criminal nuisance statute, the gap it
was intended to fill is still defined by reference to a crimi-
nal nuisance statute—namely, the drug-promotion statute,
which prohibits maintaining a drug house. Defendant’s
reading of the child-endangerment statute fits that gap bet-
ter than the state’s reading. Under defendant’s reading, the
child-endangerment statute does not prohibit drug activity
or drug houses, but prohibits allowing a minor to enter or
remain in a drug house or similar location. In that sense,
the relevant text from ORS 163.575(1)(b), “a place where
unlawful drug activity is maintained or conducted,” would
be read as referring to a drug house.
12
There are no reported cases applying the former contributing statute to the
facts like those of this case. The Commission noted that, based on reported cases
applying the former contributing statute, “the conduct punished under the stat-
ute primarily involved sexual or sexually lewd acts.” Id. at 127. The Commission
cited “one case involving drug use,” in which the defendant facilitated the posses-
sion and use of drugs by the minors, rather than engaged in drug activity in the
presence of minors. Id. (citing State v. Holleman, 225 Or 1, 357 P2d 262 (1960)).
Cite as 358 Or 451 (2015) 471
Additionally, context from related statutes provides
further support for defendant’s reading. Not only was “place”
given a similar meaning in the drug-promotion statute, ORS
167.222(1) (1977), but it was also given a similar meaning in
another statute prohibiting conduct previously prohibited as
a criminal nuisance: maintaining a “place of prostitution,”
ORS 167.012. See also ORS 167.002 (“ ‘Place of prostitution’
means any place where prostitution is practiced.”); ORS
167.027(1), Or Laws 1971, ch 743, § 254 (“On the issue of
whether a place is a place of prostitution as defined in ORS
167.002, its general repute and repute of persons who reside
in or frequent the place shall be competent evidence.”).
Further, the legislature has often used both “main-
tain” and “conduct” to refer to nuisances. For example,
Oregon’s criminal code, both before the 1971 revision that
established the child-endangerment statute and in the 1971
revision itself, used “maintain” and “conduct” to refer to
brothels, former ORS 465.120 (1969) repealed by Or Laws
1989, ch 846, § 15 (referring to “the person conducting or
maintaining” a “bawdyhouse”), and saloons, ORS 471.640
(referring to property “used in conducting or maintaining
such nuisance”). And the legislature had used the term
“maintain” to refer to a nuisance created by a drug house.
Former ORS 474.130(2) (1969), amended by Or Laws 1971,
ch 743, § 376 (“No person shall keep or maintain such a com-
mon nuisance.”).13
13
It is not clear that “maintain” and “conduct” must be given distinct defi-
nitions. This court has previously observed that when “maintain” and “conduct”
are used to describe the same thing, they largely mean the same thing. In the
context of describing the authority conveyed by a license to “establish, conduct, or
maintain a dental parlor,” this court stated, “[T]here is no substantial distinction
between ‘conducting’ a dental parlor and ‘maintaining’ or managing one.” State
ex rel. Bloom v. State Bd. of Dental Examiners, 96 Or 529, 536-37, 190 P 338(1920). That is consistent with the fact that Black’s Law Dictionary (4th rev ed
1968) defines both “maintain” and “conduct” as meaning, among other things, to
“carry on.” Id. at 367, 1105. And in turn, Black’s defines “keep” as meaning “[t]o
maintain, carry on, conduct, or manage; as, to ‘keep’ a liquor saloon, bawdy house,
gaming table, nuisance, inn, hotel or policy game.” Id. at 1006; see also Riley Hill
Gen. Contractor, Inc. v. Tandy Corp., 303 Or 390, 396, 737 P2d 595 (1987) (consid-
ering the use of synonymous pairs); David Mellinkoff, The Language of the Law
122 (1963) (identifying “keep and maintain” as a synonymous pair historically
used in the law).
Although “maintain” and “conduct” are similar, they may nevertheless be
given distinct effect. Cf. ORS 174.010 (stating that statutes should be interpreted
472 State v. Gonzalez-Valenzuela
The state claims that its broader interpretation is
supported by the fact that the offense at issue is “endan-
gering the welfare of a minor.” ORS 163.575(1). According
to the state, a minor’s exposure to a single instance of drug
activity can endanger the welfare of that minor, and, there-
fore, the text used in the child-endangerment statute should
be interpreted to prohibit a single instance of drug activity
in the presence of a child. This court, however, has previ-
ously stated that the focus of the child-endangerment stat-
ute is not the minor’s exposure to drug activity. “The legis-
lature in some circumstances has made it either a crime,
or a more serious crime, to engage in particular conduct in
the presence of a minor. The focus of [ORS 163.575(1)(b)],
however, is different.” McBride, 352 Or at 164 (citation
omitted). That is confirmed by another subsection of the
child-endangerment statute, which criminalizes allowing a
minor “to witness an act of sexual conduct or sadomasoch-
istic abuse.” ORS 163.575(1)(a) (emphasis added). Instead,
the focus of ORS 163.575(1)(b) is on the harm a minor expe-
riences from being in a particular place associated with
drug activity, not from being exposed to particular drug
activity. McBride, 352 Or at 164 (so stating); see also State
v. Nease, 46 Or 433, 440-41, 80 P 897 (1905) (stating that
early criminal nuisance law prohibited keeping houses that
“disturbed or injured the public peace or morals, by congre-
gating large numbers of idle and dissolute persons in one
place for vicious purposes”).
Regardless, the state’s attempt to reframe the
question as being about whether a minor is harmed by
to “give effect to all” provisions). The distinction has less to do with what they
mean and more to do with the types of direct objects with which they may be
used. “Maintain” is more likely to apply to a state or a status, and “conduct” is
more likely to apply to an event or occurrence. For example, we do not say, “A
defendant maintained a drug sale and conducted possession.” Instead, we say,
“A defendant conducted a drug sale and maintained possession.” Thus, the leg-
islature’s decision to use both “maintain” and “conduct” is not evidence that the
legislature intended those terms to have distinct meanings. It is more likely that
both terms were included to create the syntactic versatility needed to refer to the
various types of drug activities covered by the phrase “unlawful activity involv-
ing controlled substances.”
Nevertheless, we need not reach the issue of what “maintain” and “conduct”
mean exactly, because, as noted above, we conclude this case is resolved on
grounds other than the meaning of “maintain” and “conduct.”
Cite as 358 Or 451 (2015) 473
exposure to one incident of drug activity is not well taken.
There are countless ways that one might endanger the
welfare of a child; not all of them are criminalized by the
child-endangerment statute. Instead, as noted above, the
child-endangerment statute was “designed to provide cov-
erage for specific acts.” Commentary to Criminal Law
Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report, 178. One specific act covered by
the child-endangerment statute is “permit[ting] a minor to
enter or remain in a place where unlawful activity involv-
ing controlled substances is maintained or conducted.” ORS
163.575(1)(b). We must interpret that phrase to determine
whether it includes permitting a minor to enter or remain
in a place where a brief isolated incident of drug activity has
occurred.
Defendant offers a more plausible reading of that
relevant statutory text in context. To be sure, the legisla-
ture could have been clearer if it had cross-referenced the
drug-promotion statute expressly. But the state’s theory of
legislative intent also does not find its clearest expression
in the text of the child-endangerment statute. We conclude
that the legislature intended subsection (b) of the child-
endangerment statute to be defined in reference to the crim-
inal nuisance standards for drug houses and similar loca-
tions. Therefore, the phrase “a place where unlawful activity
involving controlled substances is maintained or conducted,”
ORS 163.575(1)(b), refers to a place where a principal or
substantial use of the place is to facilitate unlawful drug
activity.
We need not, and do not in this case, decide the full
range of facts that can or will satisfy that legal standard. In
many circumstances, a reasonable jury may be able to draw
competing inferences from the facts as to whether a partic-
ular location or venue qualifies as a “place” where unlawful
drug activity is “maintained or conducted.” Relevant to the
determination will be the nature of the activity, its dura-
tion or frequency, and the degree to which the activity is
an incidental, brief, spontaneous, or isolated occurrence in
the particular place, or conversely, the degree to which it
has become a quality or characteristic of the place itself.
The facts of this case are straightforward, however, and
474 State v. Gonzalez-Valenzuela
readily fail the legal meaning that we have identified; the
state does not argue otherwise. Here, defendant rode with
her daughters in a borrowed car, with drugs in defendant’s
purse. No evidence in this record would permit a reasonable
inference that the car in which defendant was riding was
used for drug activity in a way that would make that activ-
ity more than an incidental characteristic of the car itself.
Instead, the only reasonable inference on this record—and
the state effectively concedes as much—is that defendant’s
possession of drugs while in this car with her daughters was
a brief isolated incident of drug activity. That evidence, as
we have concluded, is legally insufficient to satisfy the child-
endangerment statute. Consequently, the trial court at the
conclusion of the bench trial in this case should have entered
a judgment of acquittal.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.