State v. Branch

No. 3 January 19, 2018 351
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
ROBERT L. BRANCH,
aka Robert Lee Branch, Jr.,
aka Rueben Netzer,
Petitioner on Review.
(CC 14CR00250; CA A158214; SC S064318)
On review from the Court of Appeals.*
Argued and submitted May 8, 2017.
Brett Allin, Deputy Public Defender, Salem, argued the
cause and filed the briefs for the petitioner on review. Also
on the briefs was Ernest G. Lannet, Chief Defender, Office
of Public Defense Services.
Jacob R. Brown, Assistant Attorney General, Salem,
argued the cause and filed the brief for the respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Nakamoto, Flynn, and Duncan, Justices, and Landau,
Senior Justice pro tempore.**
FLYNN, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
**  Appeal from Jackson County Circuit Court, J. Adam Peterson, Judge. 279
Or App 492, 381 P3d 1082 (2016).
**  Brewer, J., retired June 30, 2017, and did not participate in the decision
of this case. Nelson, J., did not participate in the consideration or decision of this
case.
352 State v. Branch
Case Summary: Defendant moved for a judgment of acquittal on the charge of
initiating a false report, ORS 162.375. The trial court denied defendant’s motion
and a jury convicted defendant of initiating a false report and other crimes. The
Court of Appeals issued a written decision affirming the judgement of the trial
court. Held: The legislature intended that as used in ORS 162.375, “initiates a
false alarm or report” includes the conduct of a person who, during question-
ing about one crime or emergency situation, falsely alleges new circumstances to
which the law enforcement agency is reasonably likely to respond as a separate
crime on an emergency basis. Applying that definition to the facts of this case,
the evidence was sufficient to permit a jury to find that defendant initiated a false
report in violation of ORS 162.375.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 362 Or 351 (2018) 353
FLYNN, J.
This case presents a narrow question regarding
the meaning of ORS 162.375(1), which defines the crime of
“initiating a false report.” Defendant was convicted of that
crime based on evidence that, in response to questions from
sheriff’s deputies about a report that defendant left the
scene of a traffic collision without exchanging the required
driver information, defendant falsely claimed that he left
the scene because the other driver had pointed a gun at him.
Defendant urges us to hold that a person does not “initiat[e]
a false report” within the meaning of ORS 162.375(1), if the
person lies in response to police questioning “about a report
someone else initiated” and, thus, that the evidence is insuf-
ficient to permit his conviction under that statute. Although
we agree that the legislature did not intend the statute to
apply when a person merely responds to police questioning
with false information regarding the circumstances of the
same crime or emergency situation about which the per-
son is being questioned, defendant’s proposed rule sweeps
too broadly. We conclude that the legislature intended the
phrase “initiates a false alarm or report” to reach, at a mini-
mum, the conduct of a person who, during questioning about
one crime or emergency situation, falsely alleges new cir-
cumstances to which the law enforcement agency is reason-
ably likely to respond as a separate crime on an emergency
basis.1
I. BACKGROUND
Defendant was driving while intoxicated and rear-
ended another driver. He left the scene of the collision with-
out providing the information that ORS 811.700 requires
of drivers who are involved in an accident that results in
damage to a vehicle. The other driver recorded defendant’s
license plate number, called 9-1-1, and reported defendant’s
conduct. Deputy Duke of the Jackson County Sheriff’s Office
used that information to locate and question defendant at
1
We need not resolve whether the legislature intended ORS 162.375 also
to apply to reports of new crimes to which law enforcement is likely to respond
on a non-emergency basis, such as a report about a “cold case,” because there is
evidence in this case that the deputies responded to defendant’s false allegation
as if the gun presented an ongoing threat.
354 State v. Branch
his home about the circumstances of the collision and about
defendant’s reason for leaving the scene. Defendant admit-
ted to Duke that he had consumed alcohol, driven the car
involved in the collision, and left the scene after the colli-
sion. When Duke asked defendant why he had left the scene,
defendant falsely claimed that he had left because the other
driver had pointed a gun at him. Given that claim, Duke
was concerned about the safety of another sheriff’s deputy,
Lance, who was still at the scene with the other driver, and
Duke called over the radio that “there was the possibility of
a gun in play.”
Upon learning from dispatch about defendant’s
claim that the other driver brandished a gun, Lance believed
that the conduct defendant described constituted a crime.
He questioned the other driver about defendant’s claim and
extensively searched the other driver and his car, but he
found no gun.
Lance then joined Duke at defendant’s house to com-
plete his accident investigation. Lance pressed defendant
about whether he wanted to stick to his statement about the
gun in order to give defendant a chance to keep “from getting
into additional trouble,” if possible. Without specifically say-
ing whether he had found a gun, Lance warned defendant:
“If you tell me that he had a gun and cannot describe for me
the kind of gun that I found in the vehicle, then I’m going to
arrest you for what’s called initiating a false report, which is
giving me information that’s not true about a weapon being
pointed.” Defendant continued to insist that he had seen a
gun and even elaborated about the type of gun and about
the other driver’s actions regarding the gun, including add-
ing a claim that the other driver had threatened, “I will kill
you.” The deputies had already concluded, however, that the
gun story was false and arrested defendant without further
investigation.
Among other offenses, the state charged defen-
dant with one count of knowingly initiating a false report,
ORS 162.375. Defendant moved for a judgment of acquittal
on that count, but the trial court denied the motion. The
jury found defendant guilty of initiating a false report, and
defendant appealed.
Cite as 362 Or 351 (2018) 355
The Court of Appeals affirmed defendant’s convic-
tion based on his repetition and embellishment of the false
accusation when questioned by Lance. State v. Branch, 279
Or App 492, 381 P3d 1082 (2016). In doing so, the court
emphasized its holding in prior cases that “evidence that
a person has lied in response to police questioning in the
course of an investigation is not enough to convict the per-
son of initiating a false report.” Id. at 496 (citing State
v. McCrorey, 216 Or App 301, 306, 172 P3d 271 (2007)).
Under that standard, the court concluded that defendant’s
initial false statement to Duke was insufficient to support
the conviction but that the circumstances surrounding
his repetition of the false accusation to Lance permitted
the jury to find that defendant knowingly initiated a false
report, in violation ORS 162.375. Branch, 279 Or App at
496-97.
II. DISCUSSION
Defendant sought review in this court, but both par-
ties challenge the decision of the Court of Appeals in part.
Defendant argues that neither his initial false statement
nor his repetition of the statement was made under circum-
stances that permit a finding that he violated ORS 162.375.
The state responds that either false statement is sufficient
to support a finding that defendant violated the statute and
urges this court to correct the Court of Appeals’ statement
to the contrary.
ORS 162.375(1) provides:
“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.”
Although the statute describes a number of elements, there
is no dispute that defendant acted “knowingly,” that his alle-
gation that the other driver brandished a gun was false, or
that his false allegation was “transmitted” to a “law enforce-
ment agency.” Rather, defendant’s challenge to his convic-
tion puts at issue only the meaning of the phrase “initiates
a false alarm or report.”
356 State v. Branch
Defendant argues that the phrase “initiates a false
alarm or report” does not include false statements that are
made “in response to police questioning during an investiga-
tion of a report that someone else had initiated.” Under that
construction of the statute, defendant contends, the Court of
Appeals correctly concluded that defendant did not violate
ORS 162.375(1) by making his false accusation about the
gun to Duke but erred in concluding that defendant violated
the statute when he repeated the false accusation to Lance.
The state acknowledges that the statute may
exclude some lies that are made in response to police ques-
tioning, but contends that a person can be found to have
initiated a false alarm or report during an encounter that
the person did not initiate “when the person falsely reports
a new criminal matter.” Under that test, the state contends,
both defendant’s false statement to Duke and his false
statement to Lance support his conviction for “initiating a
false report” because defendant’s accusation that the other
driver brandished a gun was a report about a new criminal
matter.
Defendant’s argument that the statute excludes any
false accusations made in response to police questioning pri-
marily focuses on the legislative history of ORS 162.375(1).
We have repeatedly emphasized, however, that our first step
in construing a statute is to examine the statutory text and
context, because “there is no more persuasive evidence of
the intent of the legislature than the words by which the leg-
islature undertook to give expression to its wishes.” State v.
Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (internal quo-
tation marks omitted). That is where we begin our analysis
in this case as well.
A.  Text and Context
As a starting point, we emphasize that the object
of the verb “initiates” is not “the encounter.” Rather, for a
violation of ORS 162.375, it is the “false alarm or report”
that must be initiated. Thus, the text of the statute does not
necessarily exclude false accusations made in response to
questioning that was initiated by law enforcement, unless
that limitation is implied by the phrase “initiates a false
alarm or report.”
Cite as 362 Or 351 (2018) 357
1. “Initiates”
Defendant emphasizes the word “initiates” in argu-
ing that the text of ORS 162.375 excludes false accusations
made in response to questioning. The legislature did not
provide a definition for “initiates,” but it is a word of com-
mon usage, and we frequently consult dictionary definitions
to determine the meaning of such terms “on the assump-
tion that, if the legislature did not give the term a special-
ized definition, the dictionary definition reflects the mean-
ing that the legislature would naturally have intended.”
Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d
768 (2014). Defendant emphasizes that common meanings
of the verb “initiate” include formulations such as “to begin
or set going : make a beginning of”; “to bring about the ini-
tial formation of”; and “to mark the beginning of.” Webster’s
Third New Int’l Dictionary 1164 (unabridged ed 2002).2 We
agree that those definitions generally capture the meaning
that the legislature intended when it used the term “initi-
ates” in ORS 162.375(1). See In re Blaylock, 328 Or 409, 416,
978 P2d 381 (1999) (quoting and relying upon the Webster’s
definition in construing term “initiate” as used in Code of
Professional Responsibility Disciplinary Rule 2-104). While
that ordinary meaning of the term “initiates” may make it
clear that the statute applies in some situations, such as
a person calling an emergency line to falsely report that
a crime is occurring, it is less clear what the legislature
intended when the person makes an identical report during
contact that law enforcement or an emergency organization
initiated.
Defendant proposes that the meaning suggested by
the definitions quoted above “confirms” that ORS 162.375(1)
excludes “responsive reports to police questioning.” We do
not share defendant’s conviction that the word “initiates”
so readily resolves the meaning of ORS 162.375(1). Nothing
about Duke’s questioning raised the possibility that the
2
Although Webster’s Third was originally published in 1961, in subsequent
republishing, new definitional material appears in an addendum section. As a
result, we have explained, “any version of Webster’s Third—regardless of its copy-
right date—provides a relevant source of ordinary meaning for statutes enacted
any time after 1961, if not earlier.” State v. Eastep, 361 Or 746, 751 n 2, 399 P3d
979 (2017).
358 State v. Branch
other driver had brandished a gun. Instead, defendant
introduced that new circumstance, and his false allega-
tion caused Lance to undertake an investigation into a new
crime, separate from the crimes about which defendant was
being questioned. In that sense, defendant’s false allegation
“mark[ed] the beginning of” any information being provided
to law enforcement about a gun crime and “set going” the
law enforcement response to that crime. Thus, defining the
term “initiates” does not resolve whether the legislature
intended to preclude the statute from applying to a person
who falsely informs law enforcement officers of a new, ongo-
ing crime whenever the false allegation is made in response
to a police inquiry.
2. “Report”
The statutory text and context suggest that the leg-
islature intended to draw a different line between a false
statement that “initiates a false alarm or report” and a false
statement that does not—a line that depends on the nature
of the false statement rather than whether a law enforce-
ment question supplied the opportunity or motivation for the
false statement. Like the word “initiates,” the word “report”
is also a word of common usage that the legislature has not
defined. Dictionary definitions of the noun “report” vary
from the very casual (“common talk” and “rumor”) to some-
what formal (“something that gives information : 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 inves-
tigation”). Webster’s at 1925. All of the definitions, however,
describe a communication of information.
Other parts of ORS 162.375 suggest that the “report”
with which the legislature was concerned is one that informs
a law enforcement agency or other emergency organization
that a situation exists of a type to which the organization
responds with resources. See Force v. Dept. of Rev., 350 Or
179, 188, 252 P3d 306 (2011) (“ ‘[C]ontext’ includes, among
other things, other parts of the statute at issue.”). First, the
kind of false “report” that the statute prohibits is a report
“that is transmitted to a fire department, law enforcement
agency or other organization that deals with emergencies
Cite as 362 Or 351 (2018) 359
involving danger to life or property.”3 ORS 162.375(1). In
addition, the statute as a whole suggests that the legislature
intended to criminalize “reports” about the types of situa-
tions to which the law enforcement or other emergency orga-
nization is reasonably likely to respond with its resources.
That intention is reflected in the statute’s specification that
the sentence for any person convicted of “initiating a false
report” shall include “a requirement that the person repay
the costs incurred in responding to and investigating the
false report” and that, “[i]f the response to the false report
involved the deployment of a law enforcement special weap-
ons and tactics (SWAT) team or a similar law enforcement
group,” the sentence must include a minimum term of incar-
ceration. ORS 162.375(3).
Of course, many types of false statements that are
made during the course of an existing police investigation
can trigger the expenditure of resources.4 For example,
when Lance questioned defendant about leaving the scene
of the collision, if defendant had falsely claimed that he
had an alibi for the time of the collision, the deputies might
have expended resources to investigate the false claim of
alibi. That, however, does not make the alibi necessarily
a “report,” as that term is used in ORS 162.375. In other
words, we recognize that the legislature may choose to
address a perceived problem—here the waste of emergency
3
Although it might seem possible to read the text in such a way that the
phrase “that deals with emergencies involving danger to life or property” modi-
fied “false alarm or report,” we conclude that the phrase, instead, modifies—and
limits—“other organization.” That conclusion flows both from the grammati-
cal rule of the “last antecedent” and from the fact that leaving the noun “other
organization” unlimited could expand the scope of liability under the statute far
beyond what we conclude the legislature intended. See State v. Clemente-Perez,
357 Or 745, 754, 359 P3d 232 (2015) (“The doctrine of the last antecedent provides
that ‘[r]eferential and qualifying words and phrases, where no contrary intention
appears, refer solely to the last antecedent,’ ” and that “ ‘[t]he last antecedent is
the last word, phrase, or clause that can be made an antecedent without impair-
ing the meaning of the sentence.’ ” (Quoting State v. Webb, 324 Or 380, 386, 927
P2d 79 (1996).)).
4
Although ORS 162.375 appears to be designed to prevent the waste of the
resources of an organization that responds to emergencies, we emphasize that
the text does not suggest that an actual response by the organization is an ele-
ment of the crime. Rather, as indicated above, the statute makes any response to
a false report a factor to be taken into account in fashioning the sentence. ORS
162.375(3).
360 State v. Branch
resources—without necessarily prohibiting every contribu-
tion to the problem.
We infer from the broader statutory context that
a false “report,” as that term is used in ORS 162.375,
describes a more specific conveying of information than
simply making a false statement. That context includes two
statutes that prohibit the making of any false “statement”
under oath: ORS 162.065 (providing that a person who
knowingly “makes a false sworn statement * * * in regard to
a material issue” commits the Class C felony of “perjury”)
and ORS 162.075 (providing that a person who “makes a
false sworn statement” commits the Class A misdemeanor
of “false swearing”). Those statutes were enacted as part
of the same comprehensive revision of the Criminal Code
that created ORS 162.375, and they supply pertinent con-
text for the meaning of ORS 162.375. Or Laws 1971, ch 743,
§§ 183, 184, 212. See State v. Klein, 352 Or 302, 309, 283 P3d
350 (2012) (a statute’s context includes “related statutes”);
see also Miller v. Water Wonderland Improvement District,
326 Or 306, 309-10 n 4, 951 P2d 720 (1998) (considering
a statute enacted in the same bill as the statute at issue
as relevant context for statutory interpretation). Similarly,
two other statutes make it a crime to knowingly give very
specific false information to law enforcement: ORS 162.385
(prohibiting person from knowingly giving “a false or ficti-
tious name, address or date of birth to any peace officer for
the purpose of” the officer issuing a citation or arresting the
person on a warrant) and ORS 807.620 (prohibiting person
from knowingly giving “a false or fictitious name, address
or date of birth to any police officer who is enforcing motor
vehicle laws”).
If ORS 162.375(1), which contains no requirement
that the false “report” be provided under oath, prohibited
any false statement to an emergency organization, then it
would render both the prohibitions on sworn false statements
and the prohibitions on providing specific categories of false
information largely redundant.5 We have emphasized that
5
A violation of ORS 162.375 is a Class A misdemeanor, as are most of the
statutes described above. However, the crime of “perjury,” ORS 162.065, is a
Class C felony, and in that sense is the one statute in the group that is not entirely
redundant of ORS 162.375.
Cite as 362 Or 351 (2018) 361
“an interpretation that renders a statutory provision mean-
ingless should give us pause, both as a matter of respect
for a coordinate branch of government that took the trou-
ble to enact the provision into law and as a matter of com-
plying with the interpretive principle that, if possible, we
give a statute with multiple parts a construction that ‘will
give effect to all’ of those parts.” State v. Cloutier, 351 Or 68,
98, 261 P3d 1234 (2011) (quoting ORS 174.010). Moreover,
the legislature’s use of the distinct term “report” in ORS
162.375(1) suggests that the legislature intended to describe
something different from a “statement.” See also Northwest
Natural Gas Co. v. City of Gresham, 359 Or 309, 323, 374
P3d 829 (2016) (“[I]f the legislature uses different terms in
related statutes, it likely intended them to have different
meanings.” (emphasis in original.)).
Thus, our examination of text and context suggests
that the legislature intended a “report,” within the meaning
of ORS 162.375, to refer to a communication that informs
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. In the
context of a communication to a law enforcement agency,
the phrase “false report” includes, at a minimum, a com-
munication that falsely alleges circumstances to which the
agency is reasonably likely to respond as a current crime
or emergency. Conversely, it does not include a statement
that merely conveys information to which the agency would
respond only because the information is relevant to an exist-
ing report or alarm.
This case illustrates the type of communication
that meets the intended definition of a “report.” The depu-
ties responded and began an investigation after the other
driver called 9-1-1 to communicate that defendant had
fled the scene of the collision, and then Lance investigated
whether the other driver was in possession of a weapon after
defendant falsely alleged that the driver had pointed a gun
at him, because Duke considered the allegation to repre-
sent a safety concern and Lance believed that the alleged
conduct constituted a crime. Both were “reports.” However,
defendant’s statement admitting that he had consumed
alcohol was not a “report,” because it did not communicate a
362 State v. Branch
circumstance of a type to which law enforcement is likely to
respond independent of its relevance to the existing investi-
gation into whether defendant committed the crime of driv-
ing while intoxicated.
3.  “Initiates a False Alarm or Report”
That understanding of the term “report” provides
a more clear suggestion of what “initiate[ ] a false alarm or
report” means in the context of law enforcement questioning
that the person did not initiate. Text and context suggest
that a person “initiates a false alarm or report” if the per-
son’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 ques-
tioning initiated by law enforcement, that suggested mean-
ing includes, at a minimum, falsely reporting new circum-
stances to which the law enforcement agency is reasonably
likely to respond as a separate, ongoing crime or emergency.
Conversely, the text and context suggest that a person does
not violate ORS 162.375 during law enforcement question-
ing by falsely confirming or denying knowledge of a report
or alarm that already is under investigation, or by falsely
conveying information about circumstances to which the
agency would be unlikely to devote resources, except for
whatever relevance the information may have to an exist-
ing criminal investigation (i.e., by making a false statement
that is not a “report”).
B.  Legislative History
Despite the contrary meaning suggested by the stat-
utory text and context, defendant argues that the legislative
history demonstrates an intent “to exclude false reports that
are responsive to police interrogation” from the prohibition
of ORS 162.375. We disagree.
The legislature adopted ORS 162.375 in 1971, as part
of a comprehensive revision of the Oregon Criminal Code.
Or Laws 1971, ch 743, § 212. The text of ORS 162.375, which
we have discussed in detail above, was proposed to the leg-
islature by the Oregon Criminal Law Revision Commission,
a body consisting of legislators and non-legislators that the
legislature created in 1967 to revise the criminal laws of the
Cite as 362 Or 351 (2018) 363
state. Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 212, 207 (July 1970); see State v. Garcia, 288 Or 413, 416,
605 P2d 671 (1980) (describing history of the commission).
A subcommittee of the commission considered preliminary
draft language for the section that became ORS 162.375 and
then provided a tentative draft, along with commentary, to
the commission. Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Tentative
Draft No. 1, § 8, 49 (Feb 1970). The full commission later
approved the subcommittee’s wording for the draft legislation.
See Minutes, Criminal Law Revision Commission, May 15,
1970, 61-62 (approving section setting out new crime of “ini-
tiating a false report”). The commission then presented to
the legislature a Final Draft of the proposed criminal code,
along with commentary. Final Draft and Report § 212, 207;
Gaines, 346 Or at 178.
This court has looked to commentaries produced by
both the commission and its subcommittees as legislative
history for the revised criminal code. E.g., Gaines, 346 Or at
178; see State v. Woodley, 306 Or 458, 462, 760 P2d 884 (1988)
(unless a contrary indication exists, court assumes that the
legislature accepted the commission’s explanations for its
drafting choices). That legislative history strongly supports
our conclusion that the legislature intended to criminalize
“reports” to an emergency organization about situations of a
type to which the organization responds with resources. As
explained in the commentary to the Final Draft and Report,
the new provision that became ORS 162.375 was intended to
address the waste and diversion of emergency resources:
“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
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.”
Commentary to Final Draft and Report § 212, 208-09. The
commentary to an earlier draft elaborated on that intent:
364 State v. Branch
“The proposed section will provide law enforcement agencies
with increased protection from unjustified harassment and
interference with official duties.” Commentary to Tentative
Draft No. 1, Art 22 § 8, 51.
The legislative history also supports our conclusion
that the legislature did not intend to criminalize all false
statements made in response to a police inquiry. The com-
mentary to both the Preliminary Draft and later Tentative
Draft approved by the subcommittee contrast the intended
scope of ORS 162.375 with similar statutes from other juris-
dictions. The commentary describes a Wisconsin statute
that “would seem to cover any false oral statement given
to a police officer in the course of an investigation” and con-
cludes that the Wisconsin approach “may be unduly broad”
because, “[i]f such statements are to be subject to prosecu-
tion, it seems reasonable that they be reduced to writing and
signed by the declarant, and that an intent to mislead be
established.” Commentary to Tentative Draft No. 1, Art 22
§ 8, 50; Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Preliminary Draft No. 1,
Art 22 § 11, 51 (May 1969). The commentaries add that a
similar provision in the “Canadian Criminal Code is even
broader,” prohibiting “ ‘causing a public officer to enter upon
an investigation by * * * doing anything * * * to divert suspi-
cion from himself.’ ” Commentary to Tentative Draft No. 1,
Art 22 § 8, 50; Commentary to Preliminary Draft No. 1, Art
22 § 11, 51 (omissions in both commentaries).
However, nothing in the commentary that the
commission provided to the legislature suggests that ORS
162.375 would permit false reports of a new crime or emer-
gency as long as the report is made in response to police
questioning. To support his argument that the legislative
history, nevertheless, demonstrates that intent, defendant
relies on changes to the Preliminary Draft language that
were recommended by the commission’s subcommittee and
on comments during the hearing at which the subcom-
mittee discussed the proposed changes. Language in the
Preliminary Draft referred to the crime as “Rendering
a False Report” and applied if a person “causes * * * to be
transmitted” either a “false alarm of fire or other emer-
gency” or “false information relating to an offense.” Criminal
Cite as 362 Or 351 (2018) 365
Law Revision Commission Proposed Oregon Criminal Code,
Preliminary Draft No. 1, Art 22 § 11 (May 1969). After dis-
cussions in the subcommittee, members ultimately voted to
make various changes, including changing the name of the
crime from “Rendering a False Report” to “Initiating a False
Report” and replacing the phrase “causes * * * to be trans-
mitted” with “knowingly initiates.” Criminal Law Revision
Commission Proposed Oregon Criminal Code, Tentative
Draft No. 1, Art 22 § 8 (Feb 1970).6
Defendant argues that the change to “initiates”
reflects a decision by the subcommittee that, “categori-
cally, the statute should not punish” false reports that are
“responsive to police questioning.” As we will explain, defen-
dant overstates the significance of the subcommittee dis-
cussions and of the addition of the term “initiates.”7 For the
most part, the comments that defendant cites are entirely
consistent with the rule that the text and context of ORS
162.375(1) suggest—that a person “initiates a false alarm
or report” during questioning initiated by law enforcement
if the person falsely informs the questioners about new cir-
cumstances of the type to which the law enforcement agency
is reasonably likely to respond as a new crime or emergency.
Defendant relies on the following history. Thomas
O’Dell, a representative of the Attorney General, proposed
adding the word “initiates” to address a concern, expressed
by Representative Harl Haas, that the earlier language per-
mitted any oral statement “requested and solicited by the
police officer [to] be the subject of prosecution” and that, “[i]f
every time you talk to a police officer you are in essence
6
The subcommittee also eliminated language from the preliminary draft
that would have prohibited transmitting “false information relating to an offense”
to law enforcement agencies. Criminal Law Revision Commission, Preliminary
Draft No. 1, Art 22, § 11, 50; Criminal Law Revision Commission, Tentative
Draft No. 1, Art 22, § 8, 49.
7
Although the change from “causes to be transmitted” to “knowingly initi-
ates” also could be seen as intended to broaden the scope of the statute beyond the
person actually making a report, the commentary to both the Preliminary Draft
and the Final Draft reflect that the commission intended that broad scope from
the outset. See Final Draft and Report, § 212, 208-09 (The draft explains that
“[t]he 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.”); Criminal Law Revision
Commission, Preliminary Draft No. 1, Art 22, § 11.
366 State v. Branch
testifying under oath, subject to the penalties of being pros-
ecuted for your statement if it’s an error, that’s a pretty big
policy statement.” Tape Recording, Criminal Law Revision
Commission, Subcommittee No. 2, Sept 16, 1969, Tape
81, Side 2 (statement of Haas); Minutes, Criminal Law
Revision Commission, Sept 16, 1969, 18. Defendant high-
lights O’Dell’s suggestion that his proposed substitution of
“initiates” would make the statute applicable when a per-
son “starts the ball rolling.” Tape Recording, Criminal Law
Revision Commission, Subcommittee No. 2, Sept 16, 1969,
Tape 81, Side 2. Defendant also cites an additional comment
by Haas that “we’re talking about * * * initiating the wheels
of law enforcement to go in action on an assertion you’ve
made, as opposed to just a verbal statement to a police offi-
cer.”8 Id.
Although defendant assumes that those comments
reflect a belief that the proposed language would exclude
a false report made in response to police questioning,
Chairman Wallace Carson used the same “ball rolling”
phrase to explain his opinion that a person who intention-
ally lies during a police investigation should be responsible:
“[W]hen they start the ball rolling, they’re going to be respon-
sible.” Tape Recording, Criminal Law Revision Commission,
Subcommittee No. 2, Sept 16, 1969, Tape 81, Side 2.
Moreover, defendant assumes a false dichotomy. If,
in response to police questioning about one crime, a person
reports a new crime, that report “starts the ball rolling” or
sets going “the wheels of law enforcement” on a response
to that new crime as fully as if the same report were made
through an unprompted call to the police station. Indeed
that point is illustrated by the facts of this case—when
defendant reported to Duke that a man who was not previ-
ously suspected of any crime had engaged in conduct that
Duke considered to present a safety risk and that Lance
considered to be a crime, the report started the “ball roll-
ing” and the “wheels of law enforcement” turning toward
8
This court has previously quoted tape recorded statements made during
meetings of a subcommittee of the Criminal Law Revision Commission as part
of our inquiry into legislative intent. See, e.g., Eastep, 361 Or at 757; State v.
Simonov, 358 Or 531, 544, 368 P3d 11 (2016); Garcia, 288 Or at 416.
Cite as 362 Or 351 (2018) 367
the investigation of an entirely new crime that the deputies
were not otherwise investigating.
Although other isolated comments during the sub-
committee hearing seemingly come closer to supporting
defendant’s construction of the statute, in context the state-
ments are less clear than defendant believes. For example,
defendant highlights a comment that he attributes to Project
Director Donald Paillette, who described his understand-
ing of the line that the statute should draw as: “It’s ‘who
called the fuzz?’ ” Tape Recording, Criminal Law Revision
Commission, Subcommittee No. 2, Sept 16, 1969, Tape 81,
Side 2. But Paillette’s colorful phrasing must be under-
stood in the context of the contrast he was drawing with
false statements made during a “follow-up investigation”—a
type of statement that he believed the statute should not
prohibit. In other words, the comment could be understood
as, figuratively, “who called the fuzz [on a new criminal
investigation]?”
Moreover, Paillette’s comment was immediately
followed by the comment of another subcommittee member
who expressed the extreme opposite perspective: “I think it’s
the same thing, a waste of governmental resources[;] * * *
you’re sending the police on a wild goose chase by giving
them false information.” Id. Several other members then
expressed concern that, if the statute prohibited all false
statements to the police, it would criminalize a common
situation in which people who are approached by the police
during an investigation falsely deny knowledge of the par-
ticular crime or suspect in order avoid becoming involved.
Id. As one member emphasized, although that “might not be
the best thing for a person to do socially,” it does not seem to
“rise[ ] to the level of a crime.” Id. Representative Haas then
offered his opinion that “[t]his is more directed at the guy
who calls up” and reports an ongoing crime. Id. After those
comments, the subcommittee voted to substitute the term
“initiates” in place of “rendering” and “causes * * * to be
transmitted.” Minutes, Criminal Law Revision Commission,
Subcommittee No. 2, Sept 16, 1969 at 19; Tape Recording,
Criminal Law Revision Commission, Subcommittee No. 2,
Sept 16, 1969, Tape 81, Side 2.
368 State v. Branch
Ultimately, the legislative history for ORS 162.375
does not disclose clear evidence that the legislature intended
to exclude reports of a new ongoing crime that a person
makes during police questioning about another matter, sim-
ply because the report is also “responsive to police question-
ing.” Although several subcommittee members expressed
concern about situations in which a person responds to a
police question with a false statement that is relevant only
to the existing investigation, no member raised the example
of a person who falsely reports a new crime in a way that is
also responsive to a police question. Thus, no member of the
subcommittee offered an opinion about whether the statute
should apply when a person sets the law enforcement “ball
rolling” in the direction of a separate criminal investigation
in that way.
Significantly, in the most meaningful indication of
intent to emerge from the subcommittee—the version of the
commentary that was ultimately forwarded to the full com-
mission, and then to the legislature—the only limitation on
the scope of “initiates a false alarm or report” is the sugges-
tion that the laws of Wisconsin and Canada were “unduly
broad” in prohibiting “any false oral statement,” or even
“doing anything” to divert suspicion, during the course of
an investigation. Commentary to Tentative Draft No. 1, Art
22, § 8, 50; Commentary to Preliminary Draft No. 1, Art 22,
§ 11, 51. Thus, the legislative history provides no basis for us
to depart from the meaning suggested by the “more persua-
sive evidence of the intent of the legislature” that is supplied
by the text and context of the statute. See Gaines, 346 Or at
171; see also Cloutier, 351 Or at 102 (“The fact of the matter,
however, is that the legislative history * * * provides a little
something for everyone and does not clearly resolve the mat-
ter one way or the other.”).
We conclude that, at a minimum, in the context of
questioning initiated by law enforcement, a person “initi-
ates 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 emergency in itself,
not merely because the false information is relevant to
Cite as 362 Or 351 (2018) 369
the crimes or emergency about which the person is being
questioned.9
C.  Defendant’s Motion for Judgment of Acquittal
Under that test, the facts of this case permit a find-
ing that defendant violated ORS 162.375.10 As defendant
acknowledges, the jury could find that defendant falsely told
Duke that the other driver had pointed a gun at him. Lance
testified that he conducted a search and questioned the
other driver because he believed that the conduct defendant
described constituted a crime. Thus, the evidence permit-
ted a finding that defendant’s false accusation was a false
“report.” The jury could also find that defendant “initiated”
that false report, because there was evidence that defendant
was the first person to tell the deputies that the other driver
had pointed a gun at defendant and there was also evidence
that Lance would not have investigated a gun-related crime
or searched the other driver’s car if not for defendant’s report
about the gun.
We thus agree with the Court of Appeals’ that
defendant’s conviction should be affirmed. For the reasons
discussed, however, we disagree with the Court of Appeals
that only defendant’s subsequent elaboration on his false
report supports his conviction under ORS 162.375.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
9
We emphasize that the statute also requires the person to act “knowingly.”
Unless context requires otherwise, “knowingly,” as the term is used in chapter
743, Oregon Laws 1971 (the 1971 Oregon Criminal Code) means, “with respect to
conduct or to a circumstance described by a statute defining an offense, * * * that
a person acts with an awareness that the conduct of the person is of a nature so
described or that a circumstance so described exists.” ORS 161.085(8). Although
that requirement is not at issue in the present case, it limits the circumstances
under which a person can be convicted for making a false report that is respon-
sive to a police question.
10
We review a trial court’s denial of a motion for judgment of acquittal to
determine “whether there was sufficient evidence in the record from which a rea-
sonable trier of fact could find the elements of the crime beyond a reasonable
doubt.” State v. Rader, 348 Or 81, 91, 228 P3d 552 (2010). In so doing, we “resolve
all conflicts of evidence in favor of the state and give the state the benefit of all
reasonable inferences.” Id.