State v. Cervantes

223 P.3d 425, 232 Or. App. 567, 2009 Ore. App. LEXIS 2090

Opinions

BREWER, C. J.

In this pretrial appeal, the state assigns error to the trial court’s allowance of defendant’s demurrers to three charges: causing another person to ingest a controlled substance, former ORS 475.984 (2003), renumbered as ORS 475.908 (2005); unlawful application of a controlled substance to a minor, former ORS 475.986 (2003), renumbered as ORS 475.910 (2005); and recklessly endangering another person, ORS 163.195.¹ As explained below, the state is not in a position to obtain reversal as to the first two charges. As to the third charge, recklessly endangering another person, we conclude that the trial court properly allowed defendant’s demurrer. Accordingly, we affirm the trial court’s decision.

As pertinent to the issues raised on appeal, the indictment provided:

“(Count 1 - ORS 475.984) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did knowingly cause another person to ingest, other than by administering or dispensing, a controlled substance or a controlled substance analog without consent of the other person. The State further alleges that this count is a separate and distinct criminal act from all other counts. The State further alleges that the following aggravating conditions were present: deliberate cruelty was involved; there was harm or loss significantly greater than typical; a vulnerable victim was involved; the victim sustained permanent injury.

“(Count 2 - ORS 475.986) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and intentionally apply METHAMPHETAMINE, a Schedule II controlled substance, to the body of [EH], a person under 18 years, by means other than injection, inhalation or ingestion[.] The State further alleges that this count is a separate and distinct criminal act from all other counts. The State further alleges that the following aggravating conditions were present: deliberate cruelty was involved; there was harm or loss significantly greater than typical; a vulnerable victim was involved; the victim sustained permanent injury.

“(Count 3 - ORS 163.195) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH[.] The State further alleges that this count is a separate and distinct criminal act from all other counts.”

Before trial, defendant filed what she characterized as a “motion to dismiss” the first two counts, asserting that “[t]he facts, as set forth in the State’s discovery, are not sufficient to convict.” In particular, she argued that the state’s theory of the case as to the first two counts was based on evidence that defendant ingested methamphetamine while the alleged victim, EH, was a fetus in defendant’s womb and that methamphetamine was passed to the fetus via the umbilical cord and continued to be passed in the moments after EH was born but before the umbilical cord was severed. She argued that the legislature did not intend former ORS 475.984 or former ORS 475.986 to apply to such facts and that, if the legislature did so intend, those statutes are unconstitutional as applied to such facts as these under various provisions of the state and federal constitutions. Defendant also filed a demurrer to Count 3 of the indictment, arguing that, as alleged, the indictment failed to state a crime because a fetus is not a “person” for purposes of ORS 163.195 and that, if the statute did apply to the facts as alleged, it would be unconstitutional under various state and federal constitutional provisions. The state filed written responses on the merits to both of defendant’s motions.

The trial court held a hearing on the motions described above, as well as additional pending motions, taking evidence that indicated that the state’s theories on the first two counts were, in fact, as defendant assumed — that defendant passed drugs to EH “during the period of time after [EH] was born and was no longer in the womb and before the umbilical cord was cut.” As to the third charge, reckless endangerment, the court asked the prosecutor:

“[A]re you saying that Count 3 requires that [defendant] provides drugs to her child after the child is born, or are you saying it was the, it was [defendant’s] act of taking the drugs while the child was, was unborn and the drugs entering the child’s body while it was unborn which created a substantial risk of serious physical injury to the baby after it was born?”

The prosecutor responded:

“I think it’s a little bit of both, Your Honor. Because the way the State is looking at this is that it is, she, she takes the controlled substance when the child is not a person, a person for purposes of criminal law. But those substances still, still passed, are still passed into that child upon birth before that umbilical cord is cut. * * * [T]he state has to prove that it is a person that’s being placed in the risk of serious physical injury. So it has to be at the time of birth.”

At that point in the hearing, the court began to consider whether it was appropriate to be looking at factual issues, noting that criminal procedure did not, in essence, provide for summary judgment procedures. Defense counsel responded by suggesting that the court did not need to decide disputed facts but could simply view the anticipated evidence in the light most favorable to the state. Both parties then proceeded to argue the merits of defendant’s motions. The court then asked counsel whether the issues raised by defendant were “appropriately raised now under this pleading, which doesn’t talk anything about in Counts 1 and 2, prenatal use of methamphetamine,” and asked counsel for further argument on that issue.

When the court reconvened, it noted that the “motion to dismiss” filed by defendant concerning the first two charges was based on an argument that the facts as set forth in the state’s discovery were not sufficient to convict, and it denied that motion, noting that it was the equivalent of a summary judgment motion, which does not exist in criminal cases. The court went on, however, to suggest that defendant’s constitutional arguments concerning those charges “can be raised by demurrer” and “probably should have been by demurrer.” Defendant then moved to amend her motion and “to proceed as a demurrer to Counts 1 and 2 on the basis of the constitutional grounds as set forth and argued and laid out in the body of the memoranda.” The court asked the prosecutor if she had any objection, and she responded, “Your Honor, the State has no, no objection. We have an interest in having the constitutional issues resolved here.”

The court then proceeded to rule on defendant’s demurrer to all three charges. Specifically, as to the first two charges, the court noted that a fetus is not a “person” under Oregon law, and that having methamphetamine in one’s body is not a crime in Oregon and “only arguably becomes unlawful subsequently and then only if and when the child is born and then only if mother still has methamphetamine in their system and some of that methamphetamine passes to the newborn after the child is born and before the umbilical cord is severed.” The court went on to note that crimes require a “voluntary act,” ORS 161.095, that neither former ORS 475.984 nor former ORS 475.986 criminalized consuming methamphetamine, yet that was the only “voluntary act” that the state would attempt to prove. The court concluded that, instead, “it is the delivery through the umbilical cord after birth that the State attempts to punish” and that the flow of blood through an umbilical cord was not a knowing or intentional act. Thus, the court concluded, former ORS 475.984 and former ORS 475.986 were unconstitutional as applied, because “a person of reasonable intelligence would not know that these statutes prohibited defendant’s alleged conduct.”

As for Count 3, reckless endangerment, the court noted that the pertinent allegation in the indictment was that defendant had ingested methamphetamine that “would be passed to” EH “upon her birth.” The court, based on the parties’ agreement on the definition of “person” as found in ORS 163.005(3) (a “person” is one who “has been born and was alive at the time of the criminal act”), concluded that the named victim was not yet a living person when the voluntary act (ingestion of drugs) occurred and that the named victim who was not a “person” at that time “was the only one who could possibly have been endangered, i.e., for whom a risk of serious physical injury could have been created by defendant’s prenatal drug use.” Therefore, the court concluded, because no act was alleged to have occurred after the only possible victim became a “person,” no crime was alleged.

The state appealed the court’s pretrial demurrer rulings, arguing that, as a matter of substantive law, the court was incorrect. Defendant responded by arguing that, as a matter of substantive law, the court was correct. In their arguments with respect to the charges alleged in Counts 1 and 2, the parties both continue to make arguments pertaining to the facts that they expected the state to prove, rather than limiting their arguments to the facts as alleged in the indictment.

A demurrer in a criminal case is governed by ORS 135.630. That statute provides that a trial court, when considering whether to sustain a demurrer, may consider only the information alleged in the indictment:

“The defendant may demur to the accusatory instrument when it appears upon the face thereof.

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“(4) That the facts stated do not constitute an offense[.]”

(Emphasis added.) See, e.g., State v. Morgan, 151 Or App 750, 755, 951 P2d 187 (1997), rev den, 327 Or 82 (1998) (“a demurrer cannot be sustained on the basis of facts extrinsic to the indictment”); State v. Barker, 140 Or App 82, 84, 914 P2d 11, rev den, 323 Or 265 (1996) (“Defendant’s argument about what he expects the state to present at trial is premature and does not provide a basis for sustaining a demurrer.”); State v. Durant, 122 Or App 380, 382, 857 P2d 891 (1993) (“A defendant may not rely on facts extrinsic to the indictment to support his theory of invalidity.”); State v. Kurtz, 46 Or App 617, 624, 612 P2d 749, rev den, 289 Or 588 (1980) (“Defendant does not contend that the indictment does not contain all the statutory requirements of the offense. To support his theory, defendant must rely on facts extrinsic to those contained in the indictment. A demurrer cannot be sustained on that basis.”); State v. Gates, 31 Or App 353, 356, 570 P2d 670 (1977) (“To reach [its] conclusions that the indictment was defective the court had to rely on facts not appearing on the face of the indictment. It follows that the demurrer should not have been sustained. ORS 135.630.”).

Despite the limited scope of ORS 135.630, the parties urge us to consider facts that are extrinsic to the wording in Counts 1 and 2 for purposes of determining whether the trial court properly sustained defendant’s demurrer. In response to a request by this court at oral argument, the parties submitted a joint memorandum of supplemental authority in which they argue that we should consider facts extrinsic to what is alleged in the indictment.

As explained below, we conclude that we cannot decide the issues concerning Counts 1 and 2 on the basis that the parties argued in the trial court and continue to argue on appeal. In the trial court, the court suggested — and both defendant and the state agreed — that the court should consider by way of a pretrial demurrer the constitutionality of Counts 1 and 2 in light of the evidence that the state expected to introduce at trial. It appears that neither party cited ORS 135.630 or asserted that it was inappropriate for the court to consider, in ruling on defendant’s demurrer, facts other than those appearing on the face of the indictment.

On appeal, both parties continue to argue the substantive merits of their positions. Neither party has questioned whether it was appropriate for the trial court to have decided the substantive issue by way of demurrer. In their supplemental memorandum to this court concerning this issue, the parties suggest that the trial court’s approach is supported by this court’s decision in State v. Gyenes, 121 Or App 208, 855 P2d 642 (1993), and that in any event, they should be allowed to stipulate that a court can consider extrinsic facts in ruling on a demurrer.

In Gyenes, the issue was whether the trial court erred in dismissing charges of giving a bribe under ORS 162.015(1), because the statute on its face reached conduct that purportedly violated Article I, section 8, of the Oregon Constitution. The defendant argued that the statute was overbroad. However, the facts that the defendant relied on to support his demurrer did not appear on the face of the indictment. We observed, in dictum, that it is permissible for a defendant to challenge the constitutionality of a statute by way of a demurrer if the assertion is that the statute is constitutionally overbroad and infringes on free speech rights, even if the indictment does not allege on its face that the defendant engaged in the allegedly constitutionally protected conduct. 121 Or App at 211. We held, however, that we did not need to address the defendant’s constitutional challenge because the statute, contrary to the parties’ arguments, did not prohibit unreported campaign contributions. Id. at 211-12. Thus, we concluded that, because the sole basis for the defendant’s demurrer was that ORS 162.015(1) criminalized unreported campaign contributions and the statute did not proscribe that conduct, the trial court had erred in concluding that it unconstitutionally burdened the defendant’s rights under Article I, section 8. 121 Or App at 213.²

This case presents different circumstances from those that existed in Gyenes. Here, the trial court based its grant of defendant’s demurrer on the state’s representation of what evidence it would offer at trial to prove Counts 1 and 2, which are alleged in the wording of the underlying statutes. In light of the legislature’s codification of the principle that demurrers must be decided based on the information that appears on the face of a charging instrument, we decline to extend our dictum in Gyenes to this case where defendant expressly makes only as-applied constitutional challenges that do not implicate free speech concerns.

Moreover, State v. Knutson, 81 Or App 353, 725 P2d 407 (1986), relied on by the parties in their supplemental memorandum as authority for the proposition that parties may stipulate to have the court consider facts extrinsic to the indictment when deciding a demurrer, is not in the same posture as the present case. In Knutson, the trial court correctly determined that the parties’ arguments, which involved an examination of facts outside of the indictment to determine whether the statute of limitations had run, were not cognizable as a demurrer. The parties stipulated, and this court apparently accepted without questioning, that the issue could be resolved by way of a motion to dismiss. We express no opinion as to the propriety of what this court did in Knutson. We merely note that we do not consider our unexamined acceptance of the parties’ stipulations as to legal issues in that case to permit parties in subsequent cases to stipulate that a court may decide an issue in a manner directly contrary to the provisions of a controlling statute.

In sum, the parties, both in the trial court and on appeal, have urged the courts to address, by way of a demurrer, an issue that is not properly subject to a demurrer. The dissent suggests that the parties’ failure to heed ORS 135.630 “is not an impediment to our review.” 232 Or App at 596 (Edmonds, J., dissenting). With all due respect, we disagree. The parties agreed in the court below with the trial court’s erroneous conclusion that the arguments the parties were making were cognizable in the context of a demurrer, and they incorrectly assert on appeal that this court should affirm or reverse a trial court decision on the merits of a demurrer that the court should never have considered. In this peculiar circumstance, neither party is in the position to obtain a reversal on appeal.

This precise problem does not lend itself easily to one of our standard labels. In one sense, it is not, strictly speaking, a lack of preservation of error — the parties made the arguments below that they are making on appeal. In another sense, however, it is lack of preservation — the correct answer to the preliminary question presented in this case is that the trial court should not have reached the merits of defendant’s arguments concerning Counts 1 and 2 in the context of deciding a demurrer. Neither party, in the trial court or in this court, made the argument that the trial court should not do so. Where neither party has preserved or argued a point, unless the matter is a jurisdictional one, this court is not in a position to rule in one party’s favor on that point. Moreover, in this case, when the trial court suggested that a demurrer was the appropriate procedural vehicle for raising these arguments, both parties agreed that the trial court should address defendant’s arguments in the context of a demurrer. In that respect, both parties affirmatively invited the error that this court has identified.

The dissent, relying on Miller v. Water Wonderland Improvement District, 326 Or 306, 951 P2d 720 (1998), concludes that we should correct the trial court’s error in deciding this issue by demurrer despite the parties’joint position that no such error occurred. 232 Or App at 596 (Edmonds, J., dissenting). Our view, however, is that the state, as appellant, cannot obtain a reversal under these circumstances, because it invited the error that the trial court made. When both parties urge a trial court to commit legal error in making a ruling, neither party is in a position to benefit from that invited error and obtain a reversal of the ruling on appeal. Accord Anderson v. Oregon Railroad Co., 45 Or 211, 216-17, 77 P 119 (1904) (Under the invited error doctrine, a party who “was actively instrumental in bringing it about * * * cannot be heard to complain, and the case ought not to be reversed because of it.”).

Miller does not undermine that basic principle. Nothing in the court’s brief opinion in Miller (or in Stull v. Hoke, 326 Or 72, 948 P2d 722 (1997)) suggests that the court intended to abrogate a century of case law and eliminate the prudential doctrine that a party that invites an error may not obtain a reversal on appeal based on that error. In Miller, the court merely noted in passing that a party’s failure to argue the applicability of the pertinent law would not prevent the court from applying the pertinent law. 326 Or at 309 n 3. Moreover, in Stull, the court first concluded that the general issue on appeal was sufficiently preserved under the basic preservation principles enunciated in State v. Hitz, 307 Or 183, 188-89, 766 P2d 373 (1988), then rejected the notion that a party’s failure to make a specific argument in the Court of Appeals precluded the Supreme Court from considering the argument, stating that the court was responsible for identifying the correct interpretation of a statute. Stull, 326 Or at 76. As the dissent notes, the court stated in Miller that “ ‘parties may not prevent a court from noticing and invoking an applicable statute by relying on other sources of law.’ ” 232 Or App at 596 (quoting Miller, 326 Or at 309 n 3) (Edmonds, J., dissenting). In this case, both the majority and the dissent notice and properly invoke ORS 135.630, and in fact fundamentally agree about the limitations imposed by that statute. The point on which we disagree is whether the state is entitled to prevail on appeal, based on an error that it invited the trial court to commit — and, indeed, on appeal, invites this court to commit.

The dissent also makes the superficially appealing argument that the state could not have invited the error because it has consistently taken the position, in the trial court and in this court, that defendant’s demurrer to Counts 1 and 2 should not be sustained. 232 Or App at 596 (Edmonds, J., dissenting). What that assertion overlooks, however, is that the state, as appellant, invited the court to rule on the demurrer on a basis not permitted by the controlling statute and urges us also to ignore the controlling statute. The error that the state invited was not the allegedly erroneous result of the trial court’s ruling on defendant’s demurrer on Counts 1 and 2, but the erroneous consideration of the demurrer on those counts. The invited error doctrine has never been interpreted in the manner that the dissent would now suggest.

The dissent also suggests that State v. Ferguson, 201 Or App 261, 119 P3d 794 (2005), rev den, 340 Or 34 (2006), supports its proposition that the invited error doctrine does not apply in circumstances such as these. 232 Or App at 596 (Edmonds, J., dissenting). We disagree. In Ferguson, the defendant prevailed on a pretrial evidentiary issue, and the state wanted to appeal that ruling. 201 Or App at 263-64. The prosecutor informed the trial court that, although she was not going to dismiss the case, “under ORS 136.120, you could dismiss the case because the prosecution is unprepared for trial.” Id. When the court asked if that would negatively affect the state’s appeal rights, the prosecutor replied that it would not. Id. at 270. As we explained, the state was incorrect that it could invite a dismissal under those circumstances. Id. at 266-69; accord State v. Shaw, 338 Or 586, 113 P3d 898 (2005). Nevertheless, under the circumstances of that case, we declined to apply the invited error doctrine. We noted:

“[W]hen the trial court specifically asked if the dismissal under ORS 136.120 would adversely affect the state’s pursuit of an appeal, and the prosecutor responded that it would not, the prosecutor’s understanding was at least consistent with the approach that many of our * * * cases had reflected.”

Ferguson, 201 Or App at 270. We agreed with the state that the invited error doctrine should not be applied, because a number of our cases did, in fact, suggest that the state’s course of action was permissible. We stated:

“Given the uncertainties of our case law at the time, and the fact that there is no inherent unfairness to the process or to the trial court in reversing the dismissal order, we agree that the state’s role in suggesting a dismissal as an appropriate procedural disposition is not invited error that estops the state from challenging both the dismissal and the suppression orders on appeal.”

Id. at 271.

This case is significantly different from Ferguson in two ways. First, neither the controlling statute, ORS 136.630, nor the case law on point provides any support for the notion that the trial court had the ability to look beyond the face of the indictment in considering whether to sustain the demurrer. Second, in Ferguson, the putative “invited error” was not of the variety that foreclosed the ability to review the error on appeal. Here, by contrast, the dissent agrees with us that the error at issue is so fundamental that we are, in fact, unable to review the issue as framed by the parties on appeal. 232 Or App at 597 (Edmonds, J., dissenting). In that circumstance, where the invited error is such that it cannot be addressed in substance on appeal, there simply is no basis for permitting a party that invited the error to prevail on its assignment of error concerning that error on appeal.

No cognizable exception to the invited error doctrine applies in these circumstances. The state does not argue that the trial court committed “plain error” in deciding the demurrer issue in violation of ORS 135.630, and because the court’s decision on the merits of the demurrer did not create a jurisdictional problem, there is no basis for this court to reverse the decision of the trial court. Cf. State v. Terry, 333 Or 163, 185, 37 P3d 157 (2001), cert den, 536 US 910 (2002) (alleged defect in pleading did not deprive the trial court of jurisdiction; court could not consider matter in the first instance on appeal unless it constituted “plain error”); State v. Caldwell, 187 Or App 720, 724, 69 P3d 830 (2003), rev den, 336 Or 376 (2004) (“preservation requirements apply to a challenge to the failure of an indictment to allege an offense”).

In sum, the state is not in a position to obtain reversal on Counts 1 and 2. It asks this court to decide the merits of a demurrer based on facts not properly before the trial court. Moreover, because the state is precluded from taking a position (and in fact does not take the position) that facts extrinsic to the indictment were not properly before the trial court, it cannot prevail on appeal on its assignments of error relating to those counts, either on the ground set out by the dissent, or on the ground that it asserts on appeal. Accordingly, we reject the state’s assignments of error pertaining to Counts 1 and 2.

We turn to defendant’s demurrer to Count 3 of the indictment. As pertinent here, that count alleged:

“That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH[.]”

(Uppercase in original.) Defendant demurred to that count on the ground that the facts alleged failed to constitute the crime of reckless endangerment as provided in ORS 163.195.³ The trial court agreed. For the reasons explained below, we affirm the trial court’s ruling.

This court reviews a trial court’s ruling on a demurrer to a charging instrument for errors of law. State ex rel Juv. Dept. v. Aragorn, 189 Or App 65, 72, 73 P3d 939, rev den, 336 Or 192 (2003). In this case, we consider whether the relevant conduct alleged in Count 3 — again, that defendant “did unlawfully and recklessly create a substantial risk of serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH” — fell within the scope of the conduct that the legislature intended to prohibit by enacting ORS 163.195. We determine the statute’s intended meaning in that regard according to the interpretive method set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P3d 1143 (1993), as modified by subsequent amendments to ORS 174.020 and by State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We first examine the text and context of the statute, as well as any relevant legislative history that the parties have offered; if those inquiries do not resolve the issue, we apply relevant maxims of statutory construction. See, e.g., State v. Daline, 175 Or App 625, 631-32, 30 P3d 426 (2001) (in considering whether facts alleged constituted crime charged, court construed applicable statutory provisions to determine scope of offense statute). In considering whether defendant’s conduct as alleged fell within the ambit of the statute, we evaluate that conduct solely as it is alleged in Count 3 and do not consider any facts extrinsic to the charged offense. Id. at 628.

ORS 163.195 provides:

“(1) A person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

“(2) Recklessly endangering another person is a Class A misdemeanor.”

For the purpose of the issue presented in this case, ORS 163.195 requires that a defendant (1) recklessly engage in conduct that (2) creates a substantial risk of (3) serious physical injury to another person. For clarity of analysis, we refer to the “serious physical injury” aspect of the third element as the “harm” required under the statute. The disputed issue in this case is whether, by ingesting methamphetamine (conduct that defendant does not dispute having committed), defendant created a “risk” of that harm to “another person.”

This court previously has ascertained that, for the purpose of ORS 163.195, the noun “risk” refers to “ ‘the possibility of loss, injury, disadvantage, or destruction’ or ‘something that creates or suggests a hazard or adverse chance : a dangerous element or factor.’ ” State v. Mojarro-Sandoval, 208 Or App 178, 144 P3d 996, rev den, 342 Or 117 (2006) (quoting Webster’s Third New Int’l Dictionary 1961 (unabridged ed 2002) (emphasis added)). Based on those plain meanings, we understand the legislature’s use of the word “risk” to indicate that the relevant harm need only be possible or potential; it need not actually occur. Moreover, in instances in which the harm does in fact occur, it need not do so immediately, but may do so at some later time. Thus, depending on the nature of a defendant’s reckless risk-creating conduct — for example, firing a weapon into the air, leaving a campfire unattended, or leaving a hazardous substance in a public place — the “temporal” zones of danger implicated by particular forms of risk-creating conduct may vary. And, the same is true of the “spatial” zone of danger created by particular risk-creating conduct; depending, again, on the nature of that conduct, that danger zone may extend, once the risk of harm is created, to locations more or less remote from the location of the conduct itself.⁴

The question then becomes whether, at the time that a defendant engages in the risk-creating conduct, both aspects of the third element of ORS 163.195 — both the harm and the relevant category of victim — must exist and be available for possible or potential realization of the risk. As a matter of grammar — the legislature’s use of the present tense verb “creates” — as well as ordinary principles of criminal liability, and notwithstanding the temporal and spatial elasticity encompassed in the legislature’s use of the term “risk,” we conclude that, at the time that the defendant creates the risk, his or her conduct must, at that moment, create both the possibility of serious physical injury and the possibility of that injury being inflicted — whether immediately or at some later time — on “another person.” That is, regardless of whether the harm of which a risk is created is of a type that typically has the potential of occurring almost immediately (firing a weapon on a crowded street) or is one that typically has the potential of occurring at some time later (leaving an unattended campfire), and whether the harm is of a type that is relatively limited in its spatial scope (again, firing a weapon) or is capable of relatively widespread diffusion (improper disposal of airborne toxic materials in a windy location), all aspects of the potential consequence — notwithstanding that it may never actually occur — must be created by the conduct or otherwise be in existence at that time. Stated yet another way, the defendant’s creation of the risk contemplated by the legislature — including the existence of the relevant category of potential victim — must be complete at the time that the defendant engages in the risk-creating conduct.

The dissent agrees that ORS 163.195 encompasses and criminalizes conduct that creates a risk of harm to a person who “later becomes endangered” or “later enter[s] the zone of danger.” 232 Or App at 605 (Edmonds, J., dissenting) (emphasis added). The dissent notes that, at the time that ORS 163.195 originally was enacted, it was intended to encompass the conduct previously captured by, among other criminal offense statutes, former ORS 166.560 (1969), repealed by Or Laws 1971, ch 743, § 432. That statute provided for the offense of unlawfully leaving in a place accessible to children any discarded refrigerator that could not be opened from the inside. The dissent reasons that the statute “obviously” was intended to address risks of harm that persisted beyond the time at which the refrigerator originally was discarded and risks of harm that endangered persons who were not within the danger zone at that time. 232 Or App at 606 (Edmonds, J., dissenting). The dissent concludes that it therefore is reasonable also to infer that, in enacting ORS 163.195, the legislature would have intended to protect a child “at the time of his or her birth” from the risk of injury caused by a mother’s prenatal ingestion of methamphetamine. Id. (Edmonds, J., dissenting).

The dissent’s reasoning is sound as to all but its final conclusion. As discussed above, we agree that ORS 163.195 and similar prohibitions on risk-creating conduct apply regardless of whether any person is within the danger zone at the time that the defendant commits the conduct. And, we agree that it is not necessary for the particular person, if any, who eventually comes into the danger zone to have existed at the time that the defendant committed the risk-creating conduct. Rather, we agree that ORS 163.195, as well as similar current and former statutes, apply even if the particular person who eventually comes into that zone or actually is injured had not even been born when the defendant committed the relevant conduct.

It does not follow, however, that such statutes apply when, at the time that a defendant commits the relevant risk-creating conduct, there are no persons at all, anywhere, who are in existence and capable of potentially coming into the zone of danger created by that particular risk-creating act. To the contrary; as discussed above, there must be some such person in existence, somewhere, at the time the risk is created and who therefore has at least the potential, at that time, to be harmed. Only if that requirement is met, is the crime complete — regardless of how long the possibility of harm may endure; when, if ever, a contemplated victim comes within the spatial danger zone; and when, if ever, the possibility of harm results in actual harm. Conversely, if no person having the potential to be harmed exists at the time that the defendant commits the risk-creating conduct, the defendant’s conduct simply does not, and cannot, constitute a crime of the nature of ORS 163.195, former ORS 166.560 (1969), and similarly structured offenses.

That is the case here. Here, defendant’s alleged risk-creating conduct, by its nature, had the potential, at the time that she engaged in the conduct, to harm only an entity that was within the spatial boundaries of her physical body. Of course, that harm was not required to occur immediately; as discussed, the risk of harm contemplated by ORS 163.195 can be a risk of delayed harm. Nevertheless, at the time that defendant created that risk, it was necessary that the entity, if any, within the resulting danger zone be within the category of victim identified by the legislature. Neither the state nor the dissent contends that, for the purpose of ORS 163.195, a fetus who has not yet been born is a “person.” Because a conviction under ORS 163.195 requires a defendant to have engaged in conduct that, at the time of engaging in the conduct, created a risk of serious injury defendant to “another person,” the indictment in this case failed to allege facts sufficient to constitute that crime.

Previous cases involving convictions for recklessly endangering another person as provided in ORS 163.195— including the legislative history of the statute as discussed in one of those cases — also are consistent with that understanding. See State v. McDonnell, 343 Or 557, 563, 176 P3d 1236 (2007) (context includes prior case law interpreting and applying statute). In State v. Harbert, 155 Or App 137, 963 P2d 710, rev den, 327 Or 554 (1998), the defendant fired a total of 15 rounds from two weapons into the ceiling and front door of his home. At trial, he moved for a judgment of acquittal on the ground that the state had failed to establish that any person had been within the range of the gunshots and therefore had failed to prove that anyone was endangered. Id. at 139. On appeal, we considered the text of the statute and commentary prepared by the Criminal Law Revision Commission and concluded that the statute “prohibits conduct that is likely to expose another person to harm; it is not limited to conduct that actually exposes another person to harm.” Id. at 140-41 (citing Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report 97 (July 1970)).⁵ We noted that, in that case, although there was no evidence that any persons were actually within range of the gunshots, there was evidence that

“[t]he shots penetrated the door. Directly outside was a public street and neighboring residences. A jury reasonably could conclude beyond a reasonable doubt on those facts that defendant’s conduct created a substantial risk that persons outside the house could be seriously injured.”

Id. at 141. Thus, we reasoned that, although evidence was lacking that any specific person was within the spatial danger zone, that zone was one in which persons ordinarily could be found. See also Mojarro-Sandoval, 208 Or App at 182-83 (ORS 163.195 “prohibits conduct that is likely to expose another person to harm”; where the evidence established that the defendant drove while intoxicated, the passengers in his truck were placed at risk of harm); State v. Sumerlin, 139 Or App 579, 585-86, 913 P2d 340 (1996) (comparing offenses of reckless driving and reckless endangerment; among other distinctions, the former requires proof of endangering “the safety of persons or property,” whereas the latter requires the creation of “a substantial risk of serious physical injury to another person” (emphasis in original)). Cf. State v. White, 346 Or 275, 286, 211 P3d 248 (2009) (construing statute providing for crime of second-degree robbery; explaining that the legislature’s concern with the increased threat to the victim caused by the “potential assistance of another person” was reflected in the element of the robber being “aided by another person actually present” (emphasis added)).⁶

We emphasize that, because of the unique facts presented in this case, our holding is narrow. Here, defendant did not create a risk of harm “to another person,” because, at time of her conduct, there was no person in existence within the spatial zone of danger who potentially could be harmed. It may be a rare case indeed in which the zone in which the risk of harm applies will be so circumscribed. But here— where the only entity that possibly could be endangered was not a “person” at the time of defendant’s culpable behavior— defendant did not create a risk of serious injury to another person. For that reason, the trial court correctly allowed defendant’s demurrer to Count 3.

Finally, to the extent that the text of ORS 163.195 is ambiguous and that its text, context, and the legislative history discussed above do not definitively resolve the question, we note that at least one canon of statutory construction counsels in favor of our interpretation of the statute. We assume that the legislature did not intend an unreasonable result. State v. Vasquez-Rubio, 323 Or 275, 282-83, 917 P2d 494 (1996); State v. Rodriguez, 217 Or App 24, 33-34, 175 P3d 471 (2007); see also PGE, 317 Or at 612 (at third level of statutory construction analysis, court attempts to discern what the legislature would have intended had it considered the particular problem presented). On that point, the reasoning of the Maryland Court of Appeals i nKilmon v. State, 905 A2d 306 (Md 2006), is instructive. There, the court held that Maryland’s reckless endangerment statute, which is similar to ORS 163.195(1), could not be applied to a pregnant woman who ingested controlled substances before the birth of her child.⁷ In rejecting the state’s contrary argument, the court explained:

“Notwithstanding occasional flights of fancy that may test the proposition, the law necessarily and correctly presumes that Legislatures act reasonably, knowingly, and in pursuit of sensible public policy. When there is a legitimate issue of interpretation, therefore, courts are required, to the extent possible, to avoid construing a statute in a manner that would produce farfetched, absurd, or illogical results which would not likely have been intended by the enacting body. * * *

“Keeping in mind that recklessness, not intention to injure, is the key element of the offense, if, as the State urges, the statute is read to apply to the effect of a pregnant woman’s conduct on the child she is carrying, it could well be construed to include not just the ingestion of unlawful controlled substances but a whole host of intentional and conceivably reckless activity that could not possibly have been within the contemplation of the Legislature— everything from becoming (or remaining) pregnant with knowledge that the child likely will have a genetic disorder that may cause serious disability or death, to the continued use of legal drugs that are contraindicated during pregnancy, to consuming alcoholic beverages to excess, to smoking, to not maintaining a proper and sufficient diet, to avoiding proper and available prenatal medical care, to failing to wear a seat belt while driving, to violating other traffic laws in ways that create a substantial risk of producing or exacerbating personal injury to her child, to exercising too much or too little, indeed to engaging in virtually any injury-prone activity that, should an injury occur, might reasonably be expected to endanger the life or safety of the child. Such ordinary things as skiing or horseback riding could produce criminal liability. If the State’s position were to prevail, there would seem to be no clear basis for categorically excluding any of those activities from the ambit of the statute; criminal liability would depend almost entirely on how aggressive, inventive, and persuasive any particular prosecutor might be.”

Kilmon, 905 A2d at 311-12. The Maryland court’s concerns are not idle ones, see, e.g., State v. Deborah J.Z., 596 NW2d 490 (Wis App), rev den, 604 NW2d 570 (Wis 1999) (reversing denial of defendant’s demurrer to charges of attempted first-degree intentional homicide and first-degree reckless injury based on her ingestion of alcohol during pregnancy and prior to delivering child, who presented with fetal alcohol effects), and nothing in the dissent’s construction of ORS 163.195(1) would foreclose those kinds of prosecutions.

Moreover, in the context of statutes governing the relationship of parents to their children, we have applied the “unreasonable results” canon to avoid interpreting a statute, ORS 163.205, so as to “create a disincentive for abusive parents to seek medical treatment for their injured children.” State v. Bordeaux, 220 Or App 165, 175, 185 P3d 524 (2008) (emphasis in original). Similar logic applies here. A construction of ORS 163.195 that makes a pregnant woman criminally liable for recklessly creating risks of harm to her unborn child has the potential of giving a woman an incentive to terminate a pregnancy in order to avoid such liability.⁸ Having employed the unreasonable results canon to avoid discouraging abusive parents from obtaining medical care for their child victims, we also employ it in order to avoid construing a statute to provide an incentive for a woman to terminate a pregnancy solely to avoid criminal liability.

Because we affirm the trial court on state statutory grounds, we need not address defendant’s federal constitutional arguments. In light of the dissent’s discussion of them, however, we offer the following observations regarding her argument based on her right, under the Fourteenth Amendment, to privacy.

Defendant’s argument under the Fourteenth Amendment urges her right to be free from exposure to enhanced criminal liability based solely on the circumstance of her pregnancy; such exposure, defendant argues, impinges upon her ability to decide, free from governmental coercion, whether to become or remain pregnant. So framed, such an argument fits within the contours of the right to privacy outlined by the United States Supreme Court and also may implicate the Equal Protection Clause of the Fourteenth Amendment.

As the Supreme Court has explained, the Fourteenth Amendment operates to protect the fundamental “right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, 405 US 438, 453, 92 S Ct 1029, 31 L Ed 2d 349 (1972). That case extended the protection for access to contraceptives recognized in Griswold v. Connecticut, 381 US 479, 85 S Ct 1678, 14 L Ed 2d 510 (1965), to unmarried persons, under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, on the ground that no rational basis existed for treating married and unmarried people differently in regard to their ability to use contraceptives. Eisenstadt, 405 US at 453-54. Eisenstadt, we have concluded, essentially stands for the proposition that the right to privacy embodied in the Fourteenth Amendment’s liberty guarantee protects from governmental interference the “decision to prevent pregnancy, or to terminate pregnancy in an early stage * * * a decision that may be made unilaterally by individuals seeking to prevent conception or by a woman who wishes to terminate a pregnancy.” Does 1-7 v. State of Oregon, 164 Or App 543, 565, 993 P2d 822 (1999), rev den, 330 Or 138 (2000). Where a governmental rule effects such an interference, “the Due Process Clause of the Fourteenth Amendment requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of* * * constitutional liberty.” Cleveland Board of Education v. LaFleur, 414 US 632, 640, 94 S Ct 791, 39 L Ed 2d 52 (1974).

In Cleveland Board of Education, the Supreme Court held that a rule requiring mandatory maternity leave for pregnant teachers violated the Fourteenth Amendment because it “unduly penalize[d] a female teacher for deciding to bear a child.” Id. at 648. In Does 1-7, by contrast, we held that a statute permitting adult adoptees to obtain access to the names of their birth parents did not unconstitutionally infringe upon the privacy rights of mothers who relinquish their children. We reasoned that, because “a birth mother has no fundamental right to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child.” 164 Or App at 565. In reaching that conclusion, we rejected the plaintiffs’ argument “that allowing their adopted children access to the birth certificates * * * [would] violate[ ] the constitutional privacy rights of birth mothers because it [would] constitutet ] an unwanted governmental intrusion into their decisions concerning whether to bear or beget children.” hi. at 564. In light of those cases and principles, there is no question that defendant in this case has a fundamental right to decide whether to become pregnant or to carry her pregnancy to term.

Having said that, we agree with the dissent that our ability to apply relevant constitutional principles in this case would be complicated by our inability to determine from the face of the indictment precisely when defendant allegedly ingested methamphetamine in relation to the birth of EH. 232 Or App at 609 (Edmonds, J., dissenting). Because that information is not set out in the indictment, we cannot determine whether, at that time, defendant was in fact in a position to exercise her fundamental right to choose whether to bear a child.

However, the dissent’s construction of ORS 163.195(1) does not differentiate between the stages of pregnancy and therefore would apply to women who recklessly create, at any stage of pregnancy, a risk of serious physical injury to their unborn children — and therefore would apply to defendant regardless of the point in her pregnancy at which she ingested methamphetamine. Accordingly, if the dissent’s construction of ORS 163.195 were correct, defendant’s Fourteenth Amendment right to privacy argument would be squarely presented despite our lack of information about the stage of pregnancy during which defendant allegedly ingested methamphetamine. Again, however, because we conclude on statutory grounds that the statute does not apply to defendant’s conduct, we need not address those arguments.

In sum, the state is not entitled to reversal on appeal based on an error that both parties invited the court to commit in regard to its rulings on Counts 1 and 2. As to Count 3, ORS 163.195 does not apply to the conduct alleged therein. The trial court therefore did not err in allowing defendant’s demurrers.

Affirmed.

Footnotes

1

Former ORS 475.984(1) provides that “[a] person commits the crime of causing another person to ingest a controlled substance if the person knowingly or intentionally causes the other person to ingest, other than by administering or dispensing, a controlled substance or a controlled substance analog without consent of the other person.” Former ORS 475.986(1) provides that “it is unlawful for any person to intentionally apply a controlled substance to the body of another person by injection, inhalation, ingestion or any other means if the other person is under 18 years of age.” ORS 163.195(1) provides that “[a] person commits the crime of recklessly endangering another person if the person recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

2

The concurrence in Gyenes argued that the majority should not have considered the defendant’s constitutional overbreadth argument because it was based on facts outside the wording in the indictment and because the cases that the majority relied on involved facial challenges to a statute whose wording was incorporated into the charging instruments. 121 Or App at 213-14 (Edmonds, J., concurring).

3

Defendant’s demurrer, the trial court’s ruling, and the state’s appeal of the allowance of the demurrer to Count 3 of the indictment do not present any procedural issues such as those presented in regard to Counts 1 and 2.

4

As to the temporal or spatial remoteness of potential resulting harm, we note that the creation of a risk by particular conduct and the potential resulting harm nearly always are separated in time and space. For example, even the harm caused by a speeding bullet does not occur at precisely the same moment as the moment at which the gun was fired; the fact that the delay may be infinitesimal does not mean that it is absent altogether. Thus, most harm resulting from reckless risk-creating conduct occurs after at least some lapse of time from the creation of the risk of that harm; likewise, most harm occurs at some spatial remove, however minimal, from such conduct.

5

As we noted in State v. Lonergan, 210 Or App 155, 163, 149 P3d 1215 (2006), rev’d on other grounds, 344 Or 15, 176 P3d 374 (2008), the Commentary to the Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report (July 1970), “although not itself dispositive, offers some useful guidance in resolving” questions regarding the proper interpretation and application of Oregon’s criminal offense statutes.

6

The overwhelming majority of other courts that have considered the issue presented in this case have reached the same result, albeit under different rationales reflecting each state’s pertinent statutory scheme and decision-making methodology. See, e.g., State v. Geiser, 763 NW2d 469 (ND 2009) (holding a fetus is not a child under the statutes criminalizing child endangerment where mother had overdosed on prescription drugs while 29 weeks pregnant); Kilmon v. State, 905 A2d 306 (Md 2006) (interpreting reckless endangerment statute to not apply to umbilical delivery of controlled substances, following what the court called “this nearly universal view” and noting that to allow prosecution for ingestion of drugs might also allow prosecution for other, lawful activity that could be proven harmful to the fetus); State v. Gray, 584 NE2d 710 (Ohio 1992) (statute prohibiting creation of substantial risk to health or safety of child not applicable to abuse of drugs during pregnancy); State v. Aiwohi, 123 P3d 1210 (Haw 2005) (manslaughter statute not applicable; court recognizes that “overwhelming majority of the jurisdictions confronted with the prosecution of a mother for her own prenatal conduct, causing harm to the subsequently born child, refuse to permit such prosecutions”); Com. v. Welch, 864 SW2d 280 (Ky 1993) (legislature did not intend criminal child abuse statute to apply to prenatal “self-abuse” that caused drugs to be transmitted through umbilical cord to unborn child); Sheriff v. Encoe, 885 P2d 596 (Nev 1994) (child endangerment statute does not apply to pregnant woman’s ingestion of illegal substances and transmission of substances from mother to newborn through umbilical cord); Reyes v. Superior Court, 141 Cal Rptr 912 (Cal App 1977) (child endangerment statute not applicable to ingestion of heroin during pregnancy); People v. Morabito, 151 Misc 2d 259, 580 NYS 2d 843 (City Ct 1992) (child endangerment statute not applicable to pregnant woman’s ingestion of cocaine); Collins v. State, 890 SW2d 893 (Tex App 1994) (reckless injury statute not applicable).

7

That statute, Md Code Ann, Criminal Law, § 3-204, provides, in part:

“Prohibited

“(a) A person may not recklessly:

“(1) engage in conduct that creates a substantial risk of death or serious physical injury to another[.]”

8

It is useful to note here that, but for the circumstance of her pregnancy, a woman would be free to recklessly engage in all manner of risk-creating behaviors. We are free to be foolish, so long as we do not create a substantial risk of serious physical injury to another person. That defendant here recklessly engaged in risk-creating behavior that was independently illegal is irrelevant to the dissent’s statutory analysis. The dissent’s construction of ORS 163.195 would criminalize all risk-creating behavior recklessly engaged in by pregnant women, viz., behavior that a pregnant woman engages in while she is “ ‘aware of and consciously disregarding] a substantial and unjustifiable risk,’ ” 232 Or App at 601 (Edmonds, J., dissenting) (quoting ORS 161.085(9)), that that behavior could cause substantial physical injury to her unborn child.