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State v. Branch

Supreme Court of Oregon

January 19, 2018

STATE OF OREGON, Respondent on Review,
v.
ROBERT L. BRANCH, aka Robert Lee Branch, Jr., aka Rueben Netzer, Petitioner on Review.

          Argued and submitted May 8, 2017.

         On review from the Court of Appeals CC 14CR00250; CA A158214.[*]

          Brett Allin, Deputy Public Defender, Salem, argued the cause and fled 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 fled 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. [**]

         [362 Or. 352] 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 questioning 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.

         [362 Or. 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 sheriffs 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 insufficient 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 person 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 minimum, the conduct of a person who, during questioning 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.[1]

         I. BACKGROUND

         Defendant was driving while intoxicated and rear-ended another driver. He left the scene of the collision without 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 Sheriffs Office used that information to locate and question defendant at [362 Or. 354] his home about the circumstances of the collision and about defendant's reason for leaving the scene. Defendant admitted to Duke that he had consumed alcohol, driven the car involved in the collision, and left the scene after the collision. 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 complete 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 saying 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 adding 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 defendant 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.

         [362 Or. 355] The Court of Appeals affirmed defendant's conviction based on his repetition and embellishment of the false accusation when questioned by Lance. State v. Branch, 279 Or.App. 492, 381 P.3d 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 person of initiating a false report." Id. at 496 (citing State v. McCrorey, 216 Or.App. 301, 306, 172 P.3d 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 parties 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 circumstances 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 allegation that the other driver brandished a gun was false, or that his false allegation was "transmitted" to a "law enforcement agency." Rather, defendant's challenge to his conviction puts at issue only the meaning of the phrase "initiates a false alarm or report."

         [362 Or. 356] 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 investigation 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 questioning, 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" ...


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