State ex rel. Juvenile Department v. Fitch

LINDER, J.

Youth was taken into custody for hindering prosecution after he interfered with police efforts to apprehend a 15-year-old friend who was wanted for escape in the second degree. Youth was then searched and found to be in possession of drugs. Youth argues that, because the friend that he aided was a juvenile, not an adult, he could not be taken into custody for or found within the juvenile court’s jurisdiction on the allegation of hindering prosecution, which requires proof that the person whose prosecution was hindered committed a “crime” punishable as a felony. See ORS 162.325. Youth reasons that juveniles commit delinquent acts, not crimes, because they are not subject to criminal prosecution or punishment. Contrary to youth’s position, however, the juvenile code decriminalizes responsibility for the commission of a crime; it does not decriminalize the juvenile’s conduct. The focus of the hindering prosecution statute is on assisting a person who has engaged in unlawful conduct, not one who has been held criminally responsible for that conduct. Thus, a juvenile who engages in conduct that is classified as a felony offense commits a “crime” for purposes of the hindering prosecution statute regardless of whether the juvenile offender is subject to criminal prosecution, conviction, or punishment. We therefore affirm.

For purposes of resolving the issue presented, the facts can be briefly summarized. A 15-year-old friend of youth’s, Fowler, escaped from police custody. The next day, Sergeant Arnold investigated a report of a “suspicious vehicle” that had been associated with Fowler. The four occupants of the vehicle were getting out or had gotten out of it as Arnold parked his patrol car and approached. Arnold first conversed with youth, who was standing about 25 feet from the other occupants and whom Arnold recognized as having been with Fowler when Fowler escaped from custody the night before. Arnold asked youth if he had seen Fowler, talked to him on the phone, or otherwise heard from him; youth said that he had not. Arnold warned youth of the prohibition against hindering prosecution. Youth told Arnold that the officer who had tried to arrest Fowler the night before had already warned him about that, and youth repeated that he had not seen or heard from Fowler. As it happened, however, and as police soon learned, Fowler was one of the other occupants of the vehicle and was standing about 25 feet away when youth made those representations to Arnold. When the police discovered that fact, they took youth into .custody for hindering prosecution, searched him, and discovered in his pocket a pipe containing methamphetamine.

Before the hearing on the state’s delinquency petition, youth moved to suppress evidence of his possession of methamphetamine. Youth argued that his custody and the ensuing search were unlawful on the theory that, as a matter of law, a person cannot hinder the prosecution of a juvenile. As already described, youth reasoned that the hindering prosecution statute requires interference with the apprehension or prosecution of someone who has committed a felony crime; that juveniles, as a matter of law, do not commit crimes; and that, therefore, as a matter of law, a person does not violate the hindering prosecution statute by hindering the apprehension of a juvenile. The juvenile court rejected youth’s position and denied the motion to suppress. At the hearing, youth reiterated the same legal theory in arguing to the juvenile court that, as a matter of law, it could not find him to be within the court’s jurisdiction on the hindering prosecution allegation. The juvenile court again rejected youth’s argument.

On appeal, youth challenges the ruling on his motion to suppress and the juvenile court’s finding of jurisdiction on the hindering prosecution allegation, renewing the argument that he made to the juvenile court. In particular, youth argues that juveniles do not commit crimes but instead, as a matter of law, they commit “acts which, if done by an adult, would constitute a crime.” Youth also argues that juvenile court adjudications are not criminal convictions; that juvenile delinquency proceedings are not criminal proceedings of any kind; and that juvenile dispositions are not sentences. Necessarily, then, as youth’s argument goes, because Fowler was a juvenile, he was legally incapable of committing a felony crime and therefore youth did not hinder the apprehension of one who had “committed a crime” punishable as a felony within the meaning of the hindering prosecution statute (ORS 162.325).

Whether juveniles commit crimes ultimately involves questions of statutory interpretation, which we review as questions of law. See State v. Lawler, 144 Or App 456, 461, 927 P2d 99 (1996), rev den, 326 Or 390 (1998). But before turning to the specific statutes that bear on the issue, we begin by describing Oregon’s juvenile and criminal justice systems, as they existed historically and as they exist today, because the interplay between them is significant to our analysis.

Before the last years of the nineteenth century, “delinquency” was unknown to the common law and no separate system of juvenile justice existed, either in Oregon or in most other jurisdictions. See State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 566, 857 P2d 842 (1993); Margaret May, Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid-Nineteenth Century, 3 Crime and Justice in American History: Delinquency and Disorderly Behavior 46, 47-48 (Eric H. Monkkonen ed., 1991). Instead, the common law and the early statutory schemes of most states classified people into two categories: (1) those capable of forming criminal intent, who were subject to the full force of the criminal system, and (2) those incapable of forming such intent, who were outside the reach of the law altogether. Id. at 47-48. With respect to age, the common law drew a bright line at the “age of reason.” Juveniles under the age of seven were held legally incapable of forming criminal intent, while those over the age of 14 were held fully responsible for their actions.¹ Id. Juveniles between the ages of seven and 14 were presumed incapable of forming criminal intent, but the state was permitted to rebut that presumption. Id.; Reynolds, 317 Or at 566.

In the late 1800s, the legislature enacted Oregon’s first statutes giving trial courts limited discretion to treat juveniles differently from adults. Reynolds, 317 Or at 567. For the most part, those laws altered the trial court’s dispositional authority for juveniles who had been convicted of or charged with crimes. Id. But it took until 1907 for Oregon to create its first juvenile court system that permitted juvenile offenders to be handled through a justice system separate from the criminal system used for adults. Id. at 567-68. Importantly, however, juvenile court jurisdiction was not made exclusive. As a result, juveniles remained fully subject to criminal prosecution as adults, depending on whether the local district attorney opted to charge them as adults or to adjudicate their cases through the juvenile court. Id. at 568-69. That dual-jurisdiction system remained in place until 1959, when the juvenile justice system much as we know it today came into existence. At that time, the juvenile court was given “exclusive” jurisdiction over juveniles under age 18 who violated the law, subject only to provisions authorizing the juvenile court, in limited and specified circumstances, to transfer (i.e., “waive”) a juvenile to the circuit court for prosecution as an adult. Id. at 569. Thus, until less than 50 years ago, juveniles remained within the jurisdiction of the criminal justice system and could be charged, prosecuted, and punished as adults at the discretion of the local district attorney.²

Although juvenile court jurisdiction under our current statutory scheme is “exclusive,” that exclusive jurisdiction is riddled with exceptions. In general, the exceptions fall into three categories. The first consists of juveniles over whom juvenile court jurisdiction has been eliminated altogether — that is, juveniles ages 15, 16, or 17 who have committed statutorily specified serious felony crimes. Such juveniles are automatically criminally tried as adults in circuit court. See ORS 137.707; see generally State v. Pike, 177 Or App 151, 154, 33 P3d 374 (2001), rev den, 333 Or 568 (2002) (describing operation of the statute). The second category consists of juveniles for whom waiver from juvenile court to circuit court for prosecution as an adult is discretionary. The juvenile court is vested with such discretion in a wide variety of circumstances. See, e.g., ORS 419C.349 (juveniles under the age of 15 who commit specified serious offenses); ORS 419C.352 (same); ORS 419C.364 (all future cases involving a juvenile age 16 or older whose current case is waived to circuit court); ORS 419C.370 (blanket local orders of waiver for all juveniles who commit certain lesser offenses, such as violations of motor vehicle, boating, and game laws, as well as violations of local ordinances and certain misdemeanor-level offenses).

The third category of juvenile offenders who are subject to prosecution in circuit court as adults consists of those who commit their crimes as juveniles but who are not apprehended until after they become 18 years of age. As a rule, if a person is over age 18 when he or she is charged with a criminal offense, that person will be tried as an adult. See State v. Scurlock, 286 Or 277, 282-83, 593 P2d 1159 (1979). That is true even if the person committed the charged offense before he or she turned 18. State v. Watchman, 20 Or App 709, 711, 533 P2d 361, rev den (1975).³ Consequently, any juvenile offender is potentially subject to automatic prosecution as an adult, regardless of his or her age when the offense was committed and regardless of the nature of the offense. Whether the juvenile court or the circuit court has jurisdiction therefore initially depends, for every juvenile offender, on whether the offender is successfully apprehended and brought within the juvenile court’s jurisdiction before the offender turns 18.

To this day, consistently with that intersection of the criminal and juvenile justice systems, the criminal code makes few distinctions between adults and juveniles in its application. In general, the criminal code prohibits “persons” from engaging in specified acts. See generally ORS chapters 161-67. The term “person” is defined broadly to include any “human being” and is not limited to adult human beings. ORS 161.015(5). Insofar as the criminal code is concerned, then, crimes like escape in the second degree (i.e., the felony that Fowler committed) are committed whenever a human being, irrespective of age, engages in the prohibited act with the prescribed mental state.⁴ The primary exception is for persons who, when they committed their crime, were under the age of 12, and it applies only if the person successfully asserts immaturity as a defense.⁵ But even as to persons under the age of 12 at the time of the offense, the offending conduct is treated by the criminal code as criminal in nature and is subject to adjudication through the criminal justice system.

Necessarily, then, if a juvenile’s conduct is to be deemed noncriminal, it must be as a result of the juvenile code provisions, not those of the criminal code. Youth’s argument implicitly recognizes as much. That is, youth relies only on various aspects of the treatment of juvenile offenders under the juvenile code to argue that juveniles do not commit crimes but, instead, commit acts that if committed by an adult would be crimes. The problem with youth’s argument, however, is that it fails to distinguish between conduct and the legal responsibility attached to that conduct. The juvenile code decriminalizes only the latter, not the former, a fact that is significant (as we later discuss) to the crime of hindering prosecution.

The primary objective of the juvenile justice system is to avoid the stigma associated with a criminal conviction and to emphasize instead rehabilitative efforts for a juvenile offender. See generally Reynolds, 317 Or at 570-74. Consistently with that objective, juvenile adjudications are not the legal equivalent of criminal prosecutions. Id. at 563 (juvenile delinquency adjudication is not a criminal prosecution for constitutional purposes); State v. Thompson, 166 Or App 370, 381-82, 998 P2d 762, rev den, 331 Or 192 (2000) (juvenile delinquency proceeding is not a criminal proceeding within meaning of aggravated murder statute). Juvenile adjudications do not result in convictions. ORS 419C.400. Nor, moreover, are juvenile dispositions the legal equivalent of criminal sentences. State ex rel Juv. Dept. v. Johnson, 168 Or App 81, 87, 7 P3d 529 (2000); State v. Trice, 146 Or App 15, 20-21, 933 P2d 345, rev den, 325 Or 280 (1997). In short, juveniles who come within the juvenile court’s jurisdiction, if not waived to circuit court, are neither prosecuted nor convicted criminally as adults. In that sense, they are not held criminally responsible for their conduct.

Nothing in the juvenile code, however, decriminalizes the conduct itself. In suggesting that it does, youth relies only on ORS 419C.005, the statute establishing the juvenile court’s jurisdiction. In particular, youth asserts that, pursuant to that statute, juveniles commit only “acts which, if done by an adult, would constitute a crime,” thus suggesting that the statute decriminalizes not only the responsibility for criminal acts but the acts themselves.

The text of the statute, however, refutes rather than supports youth’s position. ORS 419C.005(1) provides:

“Except as otherwise provided in ORS 137.707, the juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city.”

(Emphasis added.) As the emphasized language makes plain, the statute recognizes jurisdiction over two kinds of acts committed by persons under 18: (1) acts that are violations of law; and (2) acts that would he violations if committed by an adult. The juvenile code has long distinguished between the two to ensure, through the latter provision, that a juvenile court’s jurisdiction attaches over a juvenile even if the juvenile commits an offense that requires the offender to be an adult or of a particular age.⁶ See ORS 163.165(1)(h) (assault in the third degree is committed when someone 18 years or older causes physical injury to someone 10 years or younger); ORS 163.435 (contributing to the sexual delinquency of a minor is committed by a person 18 years or older); ORS 161.290 (no criminal liability for offender who was under 12 at the time of the offense). In effect, ORS 419C.005 stands as an express legislative acknowledgment that a juvenile offender’s conduct can be a violation of law, not just an act that would be a violation of law if committed by an adult. The “would be” provision exists for violations that require an offender to be of a particular age, a circumstance not implicated in this case.

Thus, nothing in the juvenile code generally, or in ORS 419C.005 in particular, declares a juvenile’s conduct, as opposed to the legal responsibility that attaches for the conduct, to be noncriminal. In fact, the declared policy statement in ORS 419C.001 as to the purposes of the juvenile system belies any such suggestion. Those purposes include providing “a continuum of services that emphasize prevention of further criminal activity by the use of early and certain sanctions, reformation and rehabilitation programs * * ORS 419C.00K1) (emphasis added). They also include providing programs, policies and services provided for juvenile offenders that are effective in “preventing a youth’s return to criminal behavior.” ORS 419C.001(2)(a) (emphasis added).

The remaining issue is whether the crime of hindering prosecution turns on the conduct of the person aided or on that person’s legal responsibility for that conduct. More specifically, does a person “commit a crime” punishable as a felony within the meaning of the hindering prosecution statute only if the person is subject to criminal prosecution and felony punishment for that crime? Or does a person “commit a crime” punishable as a felony if the person engages in conduct classified as a felony offense, regardless of whether the person ultimately is prosecuted and punished criminally?

The text and context of the hindering prosecution statute provide the answer. Hindering prosecution consists of intentionally interfering, in one of several specified ways, with the apprehension, prosecution, conviction, or punishment of a person who “has committed a crime punishable as a felony * * ORS 162.325(1) (emphasis added).⁷ As a matter of plain text, the legislature drafted the hindering prosecution statute in terms that refer only to the conduct of the person aided, not to that person’s criminal responsibility for that conduct. Had the legislature intended the latter, it could have said so by, for example, referring to a person who could be charged with or convicted of a felony crime. See, e.g., ORS 131.885 (authorizing counties to offer rewards for apprehension of persons). The legislature chose instead to use language describing the aided person’s behavior.⁸

Context, both in the form of related statutes and the statutory and common-law precursors to the current hindering prosecution statute, confirms that the legislature’s choice was deliberate. See Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998) (although text is the best guide to the legislature’s intent, related statutes and the common law and statutory framework within which a law was enacted are also relevant at the first level of analysis). A related statute, ORS 162.345, declares that “[i]t is no defense to a prosecution for hindering prosecution * * * that the principal offender is not apprehended, prosecuted, convicted or punished.” Thus, the principal offender commits a “crime punishable as a felony” within the meaning of the hindering prosecution statute by engaging in conduct for which a felony sentence is authorized by law. It matters not whether that person is prosecuted or punished for engaging in the conduct.

That understanding is likewise reflected in the common law and statutory context against which the current hindering prosecution statute was enacted. As we explained in State v. Allred, 165 Or App 226, 231-32, 995 P2d 1210 (2000):

“Hindering prosecution is a descendant of the common-law crime of accessory after the fact, which was an offense based on accessorial liability. At common law, accessorial liability ‘rested on the notion that one who helps an offender avoid justice becomes in some sense an accomplice in the original crime.’ Model Penal Code and Commentaries § 242.3, 224 (Official Draft and Revised Comments 1985). One guilty of accessory after the fact was, in effect, derivatively liable for the underlying crime. Consistent with the notion of derivative liability, the accessory had to have knowledge that the principal committed the crime, the principal had to be tried first or jointly with the accessory, the principal’s conviction was a prerequisite to punishment of the accessory, and the accessory was subject to the same sentence as the principal. Id.

“The Model Penal Code (MPC) broke ‘decisively from the common-law view of the offense by rejecting its tradition of accessorial liability and adopting instead ‘the alternative theory of prosecution for obstruction of justice.’I'd. at 224-25. The MPC therefore reformulated the crime as that of hindering apprehension or prosecution. It aimed the prohibition at the ‘purposeful efforts to aid another to evade justice’ and did so ‘without regard to whether the person assisted in fact committed a crime and with penalties not invariably tied to those prescribed for the underlying offense.’Id. at 225.”

By the time the legislature revised the criminal code in 1971, Oregon already had abandoned the common-law accessory-after-the-fact predicate that the principal be convicted of and punished for a felony. Early on, Oregon’s statutes provided for accessorial liability based on the nature of the principal’s crime, rather than the principal’s criminal responsibility for the crime. See generally State v. Hinkle, 33 Or 93, 96, 54 P 155 (1898); State v. Stevenson, 2 Or App 38, 39-40, 465 P2d 720 (1970). Oregon law retained, however, the requirement that an accessory after the fact have “guilty knowledge” that the person aided has committed a crime. See The Codes and General Laws of Oregon, ch XIII, title II, § 2012 (Hill 2d ed 1892) (an accessory is a person who, after the commission of a felony, conceals or aids the offender with knowledge of the offender’s crime). In 1971, the legislature abandoned that vestige of the common-law crime and substantially adopted the approach of the Model Penal Code (MPC):

“The legislature repealed the former accessory statute (former ORS 161.230) and replaced it with hindering prosecution, codified as ORS 162.325. Although borrowing in part from the MPC, Oregon did not abandon accessorial liability altogether. Rather, it retained the requirement that the person aided be one ‘who has committed a crime punishable as a felony.’ See ORS 162.325(1). Significantly, however, Oregon shifted the emphasis to the public’s interest in preventing the obstruction of justice. The legislature changed the mental state required for hindering prosecution by deleting the requirement that a defendant know that the person he or she aided in fact had committed a felony. Instead, the mental state required is the intent to hinder apprehension or prosecution, thus aiding the offender in ‘escaping justice.’ See generally Commentary to Oregon Criminal Code of 1971, § 162.325,106 (1975).”

Allred, 165 Or App at 232-33 (emphasis in original).

Thus, as codified, hindering prosecution requires that the person aided have committed a felony crime. But, in contrast to its common-law precursor crime of accessory after the fact, hindering prosecution does not require that the person aided be prosecuted or convicted of the felony, or otherwise held criminally responsible for violating a law classifying the conduct as a felony. Text and context establish that the focus of the hindering prosecution statute is on the aided person’s criminal conduct, not the imposition of criminal responsibility for that conduct.

In this case, Fowler committed a crime punishable as a Class C felony because he engaged in conduct — i.e., escape in the second degree — for which state law authorizes a felony sentence of imprisonment. See ORS 162.155. To be sure, because of his status as a juvenile, Fowler could not have been prosecuted for or convicted of a felony crime if he had been apprehended and brought into juvenile court jurisdiction before becoming 18. But the fact that Fowler’s treatment, in terms of adjudication and disposition, likely would differ from that of an adult does not alter the nature of his conduct. Fowler’s conduct was prohibited by law and was classified and punishable as a felony. As a result, Fowler “committed a crime” punishable as a felony within the meaning of the hindering prosecution statute, and youth, by interfering with Fowler’s prosecution, violated the hindering prosecution statute.

In his dissent, Judge Wollheim, in effect, analyzes the issue in the same way that youth does and rejects the distinction that we believe the statute makes between criminal conduct and criminal responsibility for that conduct.⁹ In doing so, he relies principally on Reynolds and Thompson, arguing that our analysis here is irreconcilable with those cases. Nothing in our analysis in this case calls the holdings of either Reynolds or Thompson into doubt, however. Rather, those cases held only that an adjudication in juvenile court is not a criminal prosecution or criminal action for purposes of the Oregon Constitution or the criminal code. That remains true. More importantly, for purposes of this case, those holdings are beside the point. The question here is whether application of the hindering prosecution statute depends on the conduct of a person aided or on that person’s criminal responsibility. If the statute depended on the aided person’s criminal responsibility, we would agree that Reynolds and Thompson compel a conclusion that hindering prosecution cannot be committed by a youth offender who is adjudicated in juvenile court. As we have described at length, however, the focus of the hindering prosecution statute is on the nature of the conduct committed. Significantly, Judge Wollheim’s analysis does not address that aspect of our analysis.¹⁰

Judge Armstrong, in his dissent, approaches the issue from a different perspective. He agrees that, as a general proposition, juveniles “commit crimes,” reasoning that “whether someone has engaged in conduct that is prohibited by a criminal statute does not depend on whether the particular person is someone who can be prosecuted for that conduct. Rather, it depends on whether anyone could be prosecuted for the conduct.” 192 Or App at 74 (Armstrong, J., dissenting) (emphasis in original). He asserts, however, that the crime of hindering prosecution is uniquely directed to interference with the criminal justice system and cannot be committed by “engaging in conduct that interferes with the state’s ability to deal with a juvenile who has engaged in conduct for which the juvenile can only be adjudicated as delinquent” in the juvenile justice system. Id. at 77. None of the arguments that Judge Armstrong asserts in support of his analysis, however, withstand scrutiny.

Judge Armstrong first asserts that the reference in ORS 162.325(1) to “apprehension, prosecution, conviction or punishment” describes a four-part continuum that refers exclusively to “steps in the criminal justice process.” Id. at 76. In doing so, he places more weight on those words than their plain meaning or context will bear. What Judge Armstrong characterizes as language used to “describe the conduct constituting the crime of hindering prosecution,” id. at 75 in fact appears only in the statutory description of the intent element of the crime. See ORS 162.325(1) (set out in full at 192 Or App at 66 ). In that regard, Judge Armstrong concedes that the disjunctive phrasing of the language reflects a deliberate decision on the legislature’s part to ensure that an intent to hinder in any one of those particulars — e.g., in apprehending someone who has committed a crime, as opposed to prosecuting, convicting, and punishing that person as well — will support a conviction for hindering prosecution. 192 Or App at 76 (Armstrong, J., dissenting). Curiously, however, Judge Armstrong then discounts the subsections of the statute that expressly describe the prohibited conduct, none of which uses the language on which Judge Armstrong relies. In every instance, the legislature described conduct that applies as readily to a juvenile adjudication as to a criminal prosecution — e.g., harboring or concealing a person who has committed a crime; warning the person of impending discovery or apprehension; providing that person with money, transportation, weapons, or disguise; concealing or destroying evidence that might lead to the person’s discovery or apprehension. See ORS 162.325(1)(a) - (f). Neither the literal text nor the context of the language on which Judge Armstrong relies supports his analysis.¹¹

Next, Judge Armstrong relies on legislative history. He observes, correctly, that the hindering prosecution statute was drawn from the MPC and from jurisdictions that had adopted the MPC’s approach. He then asserts that the pertinent commentary “makes clear” that the crime of hindering prosecution was designed to reach only interferences with criminal prosecutions, not juvenile adjudications. But the portion of the commentary that Judge Armstrong cites to support his assertions says nothing of the sort. See 192 Or App at 79-80 (Armstrong, J., dissenting). To the contrary, it confirms the opposite conclusion — that is, that the crime of hindering prosecution was intended to apply broadly to efforts to aid any “fugitive from justice” or otherwise obstruct government justice procedures.¹²

Finally, Judge Armstrong’s analysis assumes a proposition that is legally incorrect. That is, it assumes the existence of juveniles who, from the moment they commit a crime forward, are subject only to adjudication in the juvenile justice system. 192 Or App at 73 (Armstrong, J., dissenting) (characterizing this case as presenting only the “narrow” question of whether a person can be guilty of hindering prosecution by interfering with the adjudication of “juveniles [who] cannot be prosecuted criminally” (emphasis in original)). As already described, however, all juveniles are potentially subject to criminal prosecution as adults because any juvenile offender, regardless of age or offense, can be criminally prosecuted as an adult if the offender is not discovered and apprehended until after age 18. Ironically, then, Judge Armstrong would hold that the hindering prosecution statute does not reach the very activity that stands the greatest chance of resulting in a juvenile offender’s prosecution as an adult by forestalling the juvenile’s discovery or apprehension — i.e., harboring or concealing the juvenile; providing the juvenile with money, transportation, weapons, or disguise; warning the juvenile of impending discovery or apprehension; or concealing or destroying evidence that might lead to the juvenile’s discovery or apprehension. See ORS 162.325(1). Such a result makes no sense.

In summary, we conclude that the juvenile code decriminalizes responsibility for the commission of a crime; it does not decriminalize the juvenile’s conduct. We further conclude that the focus of the hindering prosecution statute is on assisting a person who has engaged in conduct that is classified as a felony crime, not one who has been held criminally responsible for that conduct. A juvenile who engages in felonious conduct thus commits a “crime” for purposes of the hindering prosecution statute regardless of whether he or she is ultimately prosecuted, convicted, or punished criminally for the conduct. Here, Fowler engaged in such conduct, and youth lied to police in an effort to help Fowler avoid discovery and apprehension. Youth therefore violated the hindering prosecution statute and, as a result, the trial court correctly denied youth’s motion to suppress and properly adjudicated youth to be within the court’s jurisdiction on that ground.

Affirmed.

1 Some jurisdictions appear to have placed the age at 10 or 14. Oregon’s earliest laws contained no special provisions concerning the age below which children were presumptively incapable of having criminal capacity, and thus Oregon appears to have followed the common-law rule setting the age at seven. See State v. Ewing, 174 Or 487, 506, 149 P2d 765 (1944); see generally Reynolds, 317 Or at 566.

2 For that reason, Judge Armstrong is wrong when he asserts that the legislature has given little or no attention to the way in which the criminal code would apply to juveniles or would intersect with the juvenile code section. 192 Or App at 81 (Armstrong, J., dissenting).

3 An exception to that rule exists for circumstances in which the state intentionally delays prosecution to avoid juvenile court jurisdiction. Scurlock, 286 Or at 281-82.

4 Exceptions also arise when the crime incorporates an age requirement into its elements or when age is a defense. See ORS 163.165(1)(h) (assault in the third degree is committed when someone 18 years or older causes physical injury to someone 10 years or younger); ORS 163.435 (contributing to the sexual delinquency of a minor is committed by a person 18 years or older); ORS 163.345 (age as a defense to certain crimes). Such crimes and defenses are rare.

5 ORS 161.290 provides:

“(1) A person who is tried as an adult in a court of criminal jurisdiction is not criminally responsible for any conduct which occurred when the person was under 12 years of age.

“(2) Incapacity due to immaturity, as defined in subsection (1) of this section, is a defense.”

The legislature lowered the age of immaturity from age 14 to age 12 in 1995. See Or Laws 1995, ch 422, § 58.

6 In 1972, the Juvenile Code Committee proposed certain revisions to the juvenile code, some of which were adopted over the next few years. The committee recommended retaining juvenile court jurisdiction over juveniles who commit “an act which is a violation, or which if committed by an adult would constitute a violation” of federal, state, or local law, explaining:

“[The proposed amendments retain] the distinction between acts which are a violation of a law and acts which, if committed by an adult, would be a violation of law. Some acts which have been deemed to be against society contain particular age limits for the establishment of criminal culpability. Thus, while the act would not constitute a violation of law because of the age of the child, the juvenile court, which is not a criminal court, should still be involved with this child since it is an act against society and therefore justifies state involvement with the child.”

Commentary to Legislative Interim Juvenile Code Committee Proposed Revision, Laws Relating to Children, Final Draft and Report § 7,11 (Oct 1972).

7 The elements of hindering prosecution are set out in subsection (1) of ORS 162.325, which provides:

“A person commits the crime of hindering prosecution if, with intent to hinder the apprehension, prosecution, conviction or punishment of a person who has committed a crime punishable as a felony, or with the intent to assist a person who has committed a crime punishable as a felony in profiting or benefitting from the commission of the crime, the person:

“(a) Harbors or conceals such person; or

“(b) Warns such person of impending discovery or apprehension; or

“(c) Provides or aids in providing such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; or

“(d) Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person; or

“(e) Suppresses by any act of concealment, alteration or destruction physical evidence which might aid in the discovery or apprehension of such person; or

“(f) Aids such person in securing or protecting the proceeds of the crime.”

8 As pertinent here, the ordinary meaning of “commit” is “do, perform.” Webster’s Third New Int’l Dictionary 457 (unabridged ed 1993).

9 Importantly, Judge Wollheim’s analysis has implications that are particularly far-reaching. Several statutes in the criminal code depend on a person’s status as someone who has “committed a crime.” Consequently, if Judge Wollheim is correct that the commission of a crime depends on the attachment of criminal responsibility for the conduct that is prohibited by a criminal law, it is doubtful that anyone (adult or juvenile) can engage, for example, in solicitation of a crime (ORS 161.155(2)(a)), aiding and abetting the commission of a crime (ORS 161.155(2)(b)), or compounding the commission of a crime (ORS 162.335) when the person who commits the predicate crime is a juvenile.

10 If anything, our analysis in Thompson supports the distinction we rely on in this case between criminal conduct and criminal responsibility for that conduct. We determined in Thompson that the meaning of “criminal proceeding” depended not on the person’s conduct, but on whether the adjudication for that conduct could result in the imposition of a criminal sentence. 166 Or App at 378-79 (rejecting the state’s argument in part because it “focuses only on the conduct” involved, not whether the adjudication for the conduct could “result in the imposition of sentences” (emphasis in original)). Implicit in our analysis was our acknowledgment that a youth offender’s conduct itself is criminal, which is the important point in this case.

11 Judge Armstrong acknowledges that the conduct prohibited by the hindering prosecution statute describes activities that interfere equally with the juvenile justice and criminal justice systems. 192 Or App at 80 (Armstrong, J., dissenting). He then asserts that is “beside the point” because we must look to the intent element as context that narrows the range of the conduct described. He never explains why the reverse is not true: that is, why the breadth of the conduct described is not context for determining the scope of the intent element.

12 We note, in addition, that the commentary does not mention the language on which Judge Armstrong relies in the mental state description (i.e., an intent to hinder in the “apprehension, prosecution, conviction or punishment” of a person who has committed a crime punishable as a felony). Nothing in the commentary suggests that the language was designed to specially characterize the criminaljustice system, as opposed to more broadly encompass any intent to interfere with public justice.