State v. Makin , 360 Or. 238 ( 2016 )

238 September 15, 2016 No. 56
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
ROBERT CLATE MAKIN,
Petitioner on Review.
(CC C100549CR; CA A153309; SC S063440)
On review from the Court of Appeals.*
Argued and submitted March 7, 2016.
Rankin Johnson IV, Portland, argued the cause and filed
the briefs for petitioner on review.
Jeff J. Payne, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. With
him on the brief were Ellen F. Rosenblum, Attorney General,
and Paul L. Smith, Deputy Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices, and Armstrong,
Justice pro tempore.**
KISTLER, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
______________
** On appeal from the Washington County Circuit Court, Rick Knapp,
Judge. 271 Or App 374, 348 P3d 1197 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
Cite as 360 Or 238 (2016) 239
Case Summary: Defendant was driving with his three children in his car
when an officer stopped him for a traffic violation. The officer found methamphet-
amine and other drug paraphernalia and defendant was subsequently charged
with first-degree child neglect for knowingly allowing his children to stay “[i]n
a vehicle where controlled substances are being criminally delivered * * *.” ORS
163.547(1)(a)(A). Defendant moved for judgment of acquittal, arguing that the
first-degree child neglect statute only applied to instances where children are
present when drugs are actually delivered, but there was no evidence that defen-
dant had delivered or was in the process of delivering a controlled substance
when his children were present. The trial court found defendant guilty of three
counts of first-degree child neglect and the Court of Appeals affirmed those con-
victions without discussion. Held: (1) The legislative history demonstrates that
the legislature did not intend the word “deliver,” as used in ORS 163.547, to mean
possession with attempt to deliver; (2) first-degree child neglect, therefore, does
not include knowingly leaving or allowing a child under 16 years of age to stay
in a vehicle where controlled substances are possessed with an intent to deliver
them at some unspecified time in the future; and (3) because the evidence pre-
sented at trial only supports the inference that defendant possessed a controlled
substance with the intent to deliver it, the evidence was insufficient to find defen-
dant guilty of first-degree child neglect.
The decision of the Court of Appeals is affirmed in part and reversed in
part. The judgment of the circuit court is affirmed in part, reversed in part, and
remanded for further proceedings.
240 State v. Makin
KISTLER, J.
The question in this case is whether a reasonable
trier of fact could find defendant guilty of first-degree child
neglect for knowingly allowing his children to stay “[i]n a
vehicle where controlled substances are being criminally
delivered * * *.” See ORS 163.547(1)(a)(A) (defining that
offense). The evidence at trial showed that defendant’s three
children were in his car when a police officer stopped him
for a traffic violation. Also in the car were methamphet-
amine and implements for selling it. There was no evidence,
however, that defendant had sold or was delivering meth-
amphetamine to an identified buyer while his children were
with him in the car. Rather, all that the evidence showed
was that, while his children were in the car, defendant pos-
sessed methamphetamine with the intent to sell it at some
undefined point in the future.
The trial court found defendant guilty of first-
degree child neglect, as well as other offenses. On appeal,
the Court of Appeals affirmed defendant’s first-degree child
neglect convictions without discussion. See State v. Makin,
271 Or App 374, 348 P3d 1197 (2015) (per curiam) (address-
ing other convictions). Having allowed defendant’s petition
for review, we now reverse his convictions for first-degree
child neglect. We accordingly affirm in part and reverse
in part the Court of Appeals decision and the trial court’s
judgment.1
Because this case arises on defendant’s motion
for judgment of acquittal, we state the facts in the light
most favorable to the state. For several weeks, defendant
had been selling methamphetamine out of his car. He did
so because he did not want his fiancée to discover what he
1
The trial court found defendant guilty of one count of delivering metham-
phetamine, one count of manufacturing methamphetamine, one count of possess-
ing methamphetamine, and three counts of first-degree child neglect. The Court
of Appeals affirmed defendant’s convictions for possession, delivery, and child
neglect but reversed and remanded his conviction for manufacturing to allow
defendant to contest venue. Makin, 271 Or App at 375. Neither party challenges
the latter ruling on review. As a result of our opinion and the Court of Appeals
decision, defendant’s convictions for delivery and possession are affirmed, his
convictions for child neglect are reversed, and his conviction for manufacturing is
reversed and remanded.
Cite as 360 Or 238 (2016) 241
was doing. One day, a police officer stopped defendant for
a traffic violation. Defendant’s three children were in the
car with him.2 In response to routine questioning, defendant
admitted that his driver’s license had been suspended for
driving under the influence of intoxicants. He also admitted
that he had drugs on him. A search revealed that defendant
had approximately 27.5 grams of methamphetamine on his
person. In his car, he had scales, baggies, and drug records,
as well as syringes and cotton balls for his customers’ use.
Defendant told the officers that a week earlier he had pur-
chased approximately three-quarters of an ounce of meth-
amphetamine for resale.
At the close of the evidence, defendant moved for
a judgment of acquittal on the first-degree child neglect
charges. Defendant did not dispute that the trial court rea-
sonably could find that he possessed methamphetamine
with the intent to sell it and that his three children were
with him in the car while he possessed the methamphet-
amine. He argued, however, that there was no evidence that
he had actually delivered or was in the process of delivering
any methamphetamine while his children were in the car.
Defendant’s motion accordingly reduced to a question of stat-
utory interpretation: Does the phrase “a vehicle where con-
trolled substances are being criminally delivered” include
a vehicle in which a person possesses methamphetamine
with the intent to deliver it at some undefined point in the
future? The trial court ruled that it did, and the Court of
Appeals upheld that ruling without discussion. We allowed
defendant’s petition for review to consider that question.
In analyzing that question, we employ our familiar
methodology. We look to the text, context, and legislative
history of ORS 163.547(1)(a)(A) to determine the legisla-
ture’s intent. See State v. Gaines, 346 Or 160, 170-71, 206
P3d 1042 (2009). As we understand the parties’ arguments,
defendant’s argument rests primarily on what he views as
the plain text of ORS 163.547(1)(a)(A) while the state relies
primarily on what it views as the statute’s context. As we
explain below, the dispositive answer to the parties’ dispute
lies in the statute’s legislative history.
2
All three children were under 16 years of age.
242 State v. Makin
I. TEXT
ORS 163.547(1)(a) provides in part:
“A person having custody or control of a child under 16
years of age commits the crime of child neglect in the first
degree if the person knowingly leaves the child, or allows
the child to stay:
“(A)  In a vehicle where controlled substances are being
criminally delivered or manufactured[.]”
Defendant argues that the ordinary meaning of the verb
“deliver” supports his position that he was not delivering
controlled substances while his children were in the car. As
defendant notes, in this context, “deliver” ordinarily means
“GIVE, TRANSFER : yield possession or control of : make
or hand over[.]” Webster’s Third New Int’l Dictionary 597
(unabridged ed 2002). As used in ORS 163.547(1)(a)(A), the
ordinary meaning of deliver implies a transfer of controlled
substances, which did not occur in this case while defen-
dant’s children were in the car.
Defendant also notes that the legislature used the
present progressive form of the verb “deliver.” See The Oxford
Companion to the English Language 809 (McArthur ed
1992) (discussing present progressive verb form).3 Generally,
the progressive aspect of a verb “indicates a happening in
progress at a given time.” Quirk et al., A Comprehensive
Grammar of the English Language 197 (1985). When used
with an event, “the progressive conveys the idea that an
event has duration, and has not yet come to an end.” Id. at
199. Defendant infers from the use of the present progres-
sive form of deliver that the legislature intended to prohibit
controlled substances from being delivered while children
were in a vehicle. Defendant notes that he was not in the
process of delivering methamphetamine while his children
were in his car. In his view, the only inference that the
evidence permits is that he possessed methamphetamine
3
The legislature also used the passive voice. In this context, the use of the
passive voice implies that the legislature was not concerned with who was deliv-
ering controlled substances but whether children were present when controlled
substances were being delivered.
Cite as 360 Or 238 (2016) 243
with the intent to deliver it at some unspecified point in the
future.4
II. CONTEXT
The state does not dispute that the text of the
statute, viewed in isolation, supports defendant’s posi-
tion. Its argument focuses instead on the statute’s context.
Specifically, the state reasons that ORS 163.547(1)(a)(A)
refers to and incorporates the definition of “deliver” in the
Controlled Substances Act, ORS 475.005 to 475.285 and
475.752 to 475.980. The Controlled Substances Act defines
“deliver” as the “actual, constructive or attempted transfer
* * * from one person to another of a controlled substance.”
ORS 475.005(8). It follows, the state contends, that it need
not prove an actual delivery. An attempted delivery will
suffice.
The state also contends that the context for the
child-neglect statute includes the Court of Appeals decision
in State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den, 307 Or
77 (1988). In that case, the Court of Appeals held that, under
the Controlled Substances Act, “the possession of a large
amount of [a controlled substance], not for personal use but
for sale” was evidence from which the trier of fact reasonably
could find an attempted delivery and thus a “delivery” for
the purposes of the Controlled Substances Act. See Boyd, 92
Or App at 53-54.5 It follows, the state reasons, that defen-
4
This case does not require us to decide whether first-degree child neglect
only prohibits allowing underage children to stay in a vehicle where an actual
transfer of controlled substances is occurring or whether the prohibition extends
to allowing children to stay vehicles in which controlled substances are in the
process of being delivered—i.e., are being driven—to an identified buyer. In this
case, there is no evidence that such a delivery was in progress. See Quirk, A
Comprehensive Grammar of the English Language 199 (when used with an event,
“the progressive conveys the idea that an event has duration, and has not yet
come to an end”). Rather, defendant merely possessed methamphetamine with
the intent to deliver it at some undefined point in the future.
5
Boyd explained that attempted delivery requires intentionally engaging
in conduct that constitutes a substantial step toward the delivery of controlled
substances. See 92 Or App at 53-54. The dispute in Boyd was not whether a rea-
sonable trier of fact could infer an intent to deliver in Boyd: the defendant in Boyd
admitted that she possessed bindles of heroin with the intent to sell them. Id. at
53. Rather, the dispute was whether a reasonable trier of fact could find that the
possession of a substantial amount of heroin “not for personal use but for sale”
constituted a substantial step. Id. at 54. Relying on legislative commentary, the
Court of Appeals held that a reasonable trier of fact could draw that inference. Id.
244 State v. Makin
dant’s possession of a large amount of methamphetamine
for sale constituted an ongoing attempted delivery, which
permitted the trial court to find that controlled substances
“were being delivered” while his children were in the car.
Defendant, for his part, does not question Boyd’s
interpretation of “delivery” for the purposes of the Controlled
Substances Act. Rather, he argues that the Controlled
Substances Act and Boyd do not constitute context for
the purposes of the child-neglect statute. The parties’ dis-
agreement over the sources of law that serve as context for
a statute presents an interesting question in the abstract.
We need not resolve that question, however, to decide this
case. In this case, the legislative history of the child-neglect
statute reveals that, in enacting that statute, the legisla-
ture specifically discussed both the Controlled Substances
Act and Boyd in determining the effect, if any, that those
two sources of law would have on the meaning of the child-
neglect statute. That legislative history shows that the leg-
islature was aware of those issues and, in our view, provides
a surer guide to determining the legislature’s intent than
an abstract discussion of which context matters. We accord-
ingly turn to the legislative history.
III.  LEGISLATIVE HISTORY
In describing the legislative history, we discuss the
ways in which the bill that became the child-neglect stat-
ute changed as it progressed through the two chambers of
the legislature and the differing issues on which the House
and the Senate judiciary committees focused when each
chamber considered the bill. Essentially, we draw the fol-
lowing conclusions from that history. First, the comments
of one of the bill’s sponsors and the members of the House
Judiciary Committee make clear that the word “delivered”
in what became ORS 163.547(1)(a)(A) did not include “pos-
session with intent to deliver.”6 More to the point, the text
of the bill that emerged from the House made that point
expressly. Second, the discussion of the changes that the
Senate Judiciary Committee made to the bill point in more
6
As noted, under Boyd, possession with intent to deliver is sufficient evi-
dence from which a trier of fact can find an attempted delivery and, under the
Controlled Substances Act, a delivery.
Cite as 360 Or 238 (2016) 245
than one direction. The discussion that is most helpful to the
state occurred between the counsel for the committee and a
witness. However, given the other discussions that occurred
among the members of the committee and the legislative
history from the House, we do not find a sufficiently clear
intent in the Senate to depart from the House’s understand-
ing of the bill. Finally, the House’s decision to concur in the
Senate amendments does not provide a basis for reaching a
different conclusion.
A.  House Judiciary Committee
In 1990, Representatives Courtney and Mannix
introduced House Bill (HB) 2545, which created a new crime
of child neglect. Bill File, HB 2545, Nov 29, 1990. Section 1
of the bill created the crime of first-degree child neglect. As
initially introduced, section 1 made it a crime for a person
having custody or control of a child under 16 years of age to
“knowingly leav[e] the child, or allo[w] the child to stay in a
structure or vehicle and in the immediate proximity where
controlled substances are criminally delivered or man-
ufactured.” Id. § 1. Section 3 of the bill created the crime
of second-degree child neglect. It differed from section 1 in
that it applied to consumption and possession rather than
delivery and manufacture. See id. § 3. Specifically, section 3
made it a crime to knowingly leave or allow a child under
16 years of age to stay “in a structure or vehicle and in the
immediate proximity where controlled substances are crim-
inally possessed or consumed.” Id.
On February 19, 1991, the House Subcommittee
on Crime and Corrections held a public hearing and work
session on the bill. Much of the discussion focused on
whether section 1 of the bill was broader than necessary
to serve its purpose.7 The proponents of the bill explained
that the purpose of section 1 was to impose greater pen-
alties on people who expose their children to the dangers
associated with distributing and manufacturing controlled
substances. In describing those dangers, the proponents
emphasized the risk of exposing children to the chemicals
7
No one discussed section 3 of the bill, which created the crime of second-
degree child neglect.
246 State v. Makin
used in manufacturing methamphetamine and to the dan-
gers of violence arising from the distribution of controlled
substances.
Members of the subcommittee pressed the bill’s pro-
ponents on essentially three points. First, they asked whether
the dangers of growing—i.e., manufacturing—marijuana
were the same as the dangers of manufacturing metham-
phetamine. Tape Recording, House Committee on Judiciary,
Subcommittee on Crime and Corrections, HB 2545, Feb 19,
1991, Tape 27, Side A (remarks of Representative Mason).
Second, they questioned whether the effect of the bill
would be to separate children from parents whose criminal
acts were essentially a consequence of their addiction. Id.
(remarks of Representatives Mason and Bauman). Finally,
they considered whether section 1 of the bill would apply
only to actual deliveries of controlled substances or would
also apply to attempted deliveries, as defined in Boyd. Tape
Recording, House Committee on Judiciary, Subcommittee
on Crime and Corrections, HB 2545, Feb 19, 1991, Tape 28,
Side A (remarks of Representatives Mason and Mannix).
The last point arose when the chair of the subcom-
mittee asked what the phrase “criminally delivered,” as used
in section 1 of the bill, meant. Id. (remarks of Representative
Miller). Jim McIntyre, on behalf of the Oregon Sheriff’s
Association, explained that the bill would apply to the
delivery and manufacture of controlled substances, as set
out in ORS 495.005. Id. The chair also asked how section
1 of the bill differed from a section of the existing child-
endangerment statute, which made it a misdemeanor to
“[p]ermi[t] a person under 18 years of age to enter or remain
in a place where unlawful activity involving controlled sub-
stances is maintained or conducted.” See id. (remarks of
Representative Miller) (referring to ORS 163.575(1)(b)).
After a brief colloquy, Representative Mannix
explained that section 1 of the child-neglect bill applied to
younger children (children under 16 years of age) and car-
ried a greater penalty than the child-endangerment stat-
ute. Id. He also noted that the child-endangerment statute
prohibits permitting a child to enter or remain in a place
where controlled substances are possessed. Id. He explained
Cite as 360 Or 238 (2016) 247
that, by contrast, first-degree child neglect would apply only
to allowing children to remain where controlled substances
are manufactured or delivered. Id. He reasoned that man-
ufacturing and delivery pose greater risks to children than
possession. Id.In response, one of the witnesses testifying in sup-
port of the bill stated that the phrase “criminally delivered”
was intended to incorporate the definition of “delivery”
from the Controlled Substances Act. Id. (testimony of Jim
McIntyre). In his view, the phrase included, as the statutory
definition in the Controlled Substances Act does, attempted
deliveries as defined in Boyd; that is, “criminally delivered”
in the child-neglect act included possession with intent to
deliver. Id. At that point, Representative Mason expressed
his concern that Boyd had interpreted attempted delivery in
the Controlled Substances Act too broadly. Id. Representative
Mannix explained that “Boyd involves attempt to deliver
and trying to determine whether or not there’s an intent to
deliver by looking at the quantity [of drugs possessed].” Id.He then added, “We are not talking attempted delivery here
[in the child-neglect bill], we’re talking about actual deliv-
ery.” Id. Representative Mannix also explained, in response
to the witness’s reliance on the definition of delivery in the
Controlled Substances Act and the interpretation of that
term in Boyd, that the legislature had the power to define
“delivery” for the purposes of the child-neglect statute differ-
ently from the Court of Appeals’ interpretation of that term
in the Controlled Substances Act. Id.8
After considering the testimony at the public hear-
ing, the subcommittee went into a work session, in which it
agreed to reduce the crime seriousness level of first-degree
child neglect to mitigate the prospect that children would
be separated from their parents as a result of the parents’
addiction, and it agreed to delete the phrase “in the imme-
diate proximity.” Id. A member of the subcommittee moved
to send the bill, as amended, to the full committee with a
8
As Representative Mannix put it, “Boyd is as ethereal as the next panel
sitting in the Court of Appeals, whereas this is hard law.” Tape Recording, House
Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2545,
Feb 19, 1991, Tape 28, Side A.
248 State v. Makin
“do pass” recommendation. That motion failed. The subcom-
mittee then voted to reconsider the bill, and various sub-
committee members suggested ways in which future work
sessions could narrow the bill, none of which touched on the
issue that this case presents. Id.On March 12, the subcommittee held a second work
session on HB 2545, at which it considered amendments
proposed by Representative Mason.9 Of relevance here,
those amendments changed the definition of second-degree
child neglect. As initially proposed, the bill had defined
second-degree child neglect as knowingly leaving or allow-
ing a child under 16 years of age to stay “in a structure
or vehicle * * * where controlled substances are criminally
possessed or consumed.” Bill File, HB 2545, Nov 29, 1990.
Representative Mason proposed amending the definition of
second-degree child neglect to apply to knowingly leaving or
allowing a child under 16 years of age to stay “in a vehicle
or on premises where controlled substances are consumed
in the presence of the child or are criminally possessed with
the intent to distribute in the presence of the child.” Bill File,
HB 2545, Mar 19, 1990 (proposed amendments) (emphasis
added).
In discussing the proposed amendments,
Representative Mason stated the changes that the amend-
ments would make to the wording of the bill. However, he
did not explain why he was proposing those changes or dis-
cuss how those changes would work. See Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2545, Mar 12, 1991, Tape 51, Side A
(discussing proposed amendments). The subcommittee
then voted to accept the amendments, approved the bill, as
amended, and sent it to the full committee with a “do pass”
recommendation. Id. The House subsequently voted in favor
of the bill, as amended.
Section 1 of the bill, as approved by the House,
defined the crime of first-degree child neglect as knowingly
leaving or allowing a child under 16 years of age to stay
9
Representative Mannix was a sponsor of the bill, but he was not a member
of the subcommittee. Accordingly, he neither voted on the bill in the subcommit-
tee nor moved to amend it.
Cite as 360 Or 238 (2016) 249
“in a vehicle or on premises where controlled substances are
criminally delivered or manufactured for consideration or
profit.” Bill File, HB 2545, Mar 28, 1991 (A-Engrossed Bill).
Section 3 of the bill defined the crime of second-degree child
neglect as knowingly leaving or allowing a child under 16
years of age to stay “in a vehicle or on premises where con-
trolled substances are consumed in the presence of the child
or are criminally possessed with the intent to distribute in
the presence of the child.” Id.Although the subcommittee did not explain why it
approved the March 12 amendments that Representative
Mason had proposed, the textual change that the subcom-
mittee made and that the House later approved makes one
proposition clear: “Delivered,” as that term was used in sec-
tion 1 of the bill, did not include “possessed with intent to dis-
tribute.” Rather, if a defendant knowingly left a child under
16 years of age in a vehicle where controlled substances
were possessed with an intent to distribute them, then that
defendant would not be guilty of first-degree child neglect.
Rather, the defendant would be guilty of second-degree child
neglect.
While Representative Mason did not make that
point explicitly in proposing the March 12 amendments to
the bill, the change that he proposed is consistent with both
his and Representative Mannix’s earlier comments during
the February 19 public hearing on the bill. Representative
Mason had expressed his disagreement with the extent to
which Boyd had expanded the concept of attempted deliv-
ery in the Controlled Substances Act, and Representative
Mannix had explained that “delivery” for the purposes of
the child-neglect bill referred only to actual deliveries. By
excepting “possessed with intent to distribute” out of the
term “delivered,” as used in section 1 of the child-neglect bill,
the March 12 amendments effectively removed attempted
deliveries, as defined in Boyd, from the scope of “delivered”
as used in section 1 of HB 2545.
B.  Senate Judiciary Committee
When HB 2545 went to the Senate Judiciary
Committee, that committee did not express any concern
about section 1 of the bill. See Tape Recording, Senate
250 State v. Makin
Committee on Judiciary, HB 2545, May 29, 1991, Tape 197,
Side A and Tape 198, Side A. Rather, it focused on the first
part of section 3 of the bill, which provided that a person
commits the crime of second-degree child neglect if the per-
son knowingly leaves or allows a child under 16 years of age
to stay “on premises where controlled substances are con-
sumed in the presence of the child.” See id. at Tape 198, Side
A. Senator Brockman asked whether the bill, if enacted,
would require a parent who brought his or her child to a
public event to leave if someone at the event began smoking
marijuana. Id. As part of that discussion, Senator Cohen
asked whether section 3 of the bill was essential. Id. In
asking that question, Senator Cohen focused on excising
the part of section 3 that prohibited knowingly allowing a
child to stay on premises where controlled substances are
consumed. Id. A witness who supported the bill responded
that, while “life would continue” if that part of section 3
were removed, “possessing with intent to distribute in the
presence of a child * * * is an entirely different area.” Id. (tes-
timony of John Bradley).
At that point, the counsel for the committee asked
the witness “if you could prove possession with intent to
deliver don’t you basically have a delivery?” Id. (remarks
of Ingrid Swenson). The witness replied that “currently in
Oregon law you do.” (testimony of John Bradley). The witness
noted, however, that “Representative Mason has from time
to time talked about doing away with it.” Id. The counsel
responded, “So, that behavior is actually covered in subsec-
tion (1) is what I’m saying.” Id. (remarks of Ingrid Swenson).
The witness replied that it was, and the issue received no
further discussion.
Approximately two weeks later, the Senate
Judiciary Committee held a work session on the bill. At that
session, the committee considered amendments that limited
the reach of the bill. Of relevance here, the committee con-
sidered an amendment that deleted section 3 of the bill in its
entirety. Bill File, HB 2545, June 18, 1991 (proposed amend-
ments to A-Engrossed HB 2545). Under that amendment,
HB 2545 would no longer prohibit what had been second-
degree child neglect—knowingly leaving or allowing a child
under 16 years of age to stay in a vehicle or on premises
Cite as 360 Or 238 (2016) 251
“where controlled substances are consumed in the presence
of the child or are criminally possessed with the intent to
distribute in the presence of the child.”10 In explaining that
proposed amendment, the counsel for the committee stated:
“[S]ection (3) would have basically required a person who
was in the presence of even the criminal possession of a
controlled substance to leave or remove the child. Under
those circumstances, it would have been a C felony. That
provision has been deleted.”
Tape Recording, Senate Committee on Judiciary, HB 2545,
June 11, 1991, Tape 226, Side A (remarks of Ingrid Swenson).
No further discussion of the proposed amendment occurred,
and the committee voted at the end of the work session to
approve it.
The committee made a separate but related change
to section 1 of the bill. During the work session, Senator
Shoemaker observed that, as he understood the purpose
of section 1 of the bill, it was to prohibit “criminal delivery
or manufacture [that] occur[red] while the child is on the
premises and in the proximity” of that activity. Id. (remarks
of Senator Shoemaker). He noted that, as currently writ-
ten, section 1 prohibited leaving or allowing a child to be in
a vehicle or on premises where controlled substances “are
criminally delivered or manufactured.” Id. He reasoned
that, by using the verb “are delivered or manufactured,”
“[y]ou could have a place where that does happen but isn’t
happening then. It’s still a place where substances are deliv-
ered or manufactured. I don’t think that was intended.” Id.He added that using “ ‘are being,’ I think, would do it.” Id.That is, he suggested that using the present progressive form
of the verb would better capture the legislature’s intent. Id.In response to Senator Shoemaker’s observation,
two witnesses explained that, for premises, the risks to chil-
dren were substantial even if controlled substances were
not in the process of being delivered or manufactured. They
noted that the presence of precursor chemicals used to man-
ufacture methamphetamine posed grave risks to children
10
The amendments also narrowed section 1 of the bill, which defined first-
degree child neglect. They provided that “ ‘vehicle’ and ‘premises’ do not include
public places.”
252 State v. Makin
even if methamphetamine was not currently being manufac-
tured. See id. (testimony of Russ Spencer). They also noted
the possibility of “booby traps and shoot outs” on premises
on which controlled substances are sold, even though con-
trolled substances were not in the process of being sold. Id.Those witnesses explained that the knowledge within a
community that drugs are present in a house “makes the
house a target,” with the prospect of “violent drug rip-offs
[and] drive-by shootings.” Id.Senator Shoemaker recognized that those concerns
applied to premises where controlled substances “are manu-
factured or delivered.” Id. He questioned, however, whether
those concerns also applied to automobiles. He asked:
“Assume an automobile is used for delivery without the
child. The child is not there. The next day, the mother
drives the car with the child in it. Is that neglect?”
Id. The witness explained that that was not his intent, and
counsel for the committee suggested distinguishing vehicles
from premises. Adopting Senator Shoemaker’s proposal to
use the progressive form of the verb, the committee coun-
sel suggested referring to “a vehicle where controlled sub-
stances are being criminally delivered or manufactured.”
Id. (remarks of Ingrid Swenson). The Chair concurred and
suggested that the bill be amended “to accommodate the dif-
ferences between a vehicle and a premise.” Id. (remarks of
Senator Cohen). The committee agreed conceptually to that
amendment. The committee also agreed to send the bill,
as amended, to the Senate with a “do pass” recommenda-
tion, which voted for it. The House concurred in the Senate
amendments, and the Governor signed the bill.11
11
Because the version of HB 2545 that came out of the Senate differed from
the version of the bill that came out of the House, the bill, as amended by the
Senate, went back to the House. Initially, the House voted not to concur in the bill
and appointed representatives to be part of a conference committee. Four days
later, the House voted to reconsider its earlier decision and then voted to concur
in the Senate version of the bill. Senate and House Journal, Regular Session,
1991, H-102. Although there are tape recordings of the discussion on the House
floor, the tapes are almost completely inaudible. It appears from the tapes and the
House logs that Representative Mannix spoke in favor of reconsidering the bill
and concurring in the Senate version of the bill. However, what any speaker said
cannot be determined. Perhaps because of that difficulty, neither party has relied
on any statement made on the House floor after the amended bill came back from
the Senate.
Cite as 360 Or 238 (2016) 253
With that history in mind, we turn to the parties’
arguments. The state notes that the witness who testified
before the House subcommittee in support of HB 2545 took
the position that “delivered,” as that term was used in sec-
tion 1 of the bill, included attempted deliveries as defined in
Boyd; that is, the witness reasoned that possession of con-
trolled substances with the intent to deliver them constituted
an attempted delivery and thus a “delivery” for the purposes
of section 1 of HB 2545. The difficulty with the state’s reli-
ance on that witness’s testimony is that the House subcom-
mittee did not accept it. As noted, Representative Mason,
who was a member of the subcommittee, expressed his view
that Boyd’s interpretation of “delivery” in the Controlled
Substances Act was too broad. Moreover, Representative
Mannix, who was one of the bill’s sponsors, explained that
“delivery,” as that term was used in section 1 of the child-
neglect statute, referred to actual delivery, not attempted
delivery.
Of greater significance, after that hearing, the
House subcommittee amended the bill to make “possession
with intent to distribute” a ground for second-degree child
neglect. While knowingly leaving a child in a vehicle where
controlled substances “are criminally delivered” would con-
stitute first-degree child neglect, knowingly leaving a child
in a vehicle where controlled substances “are criminally
possessed with the intent to distribute” would constitute
second-degree child neglect. That textual change necessar-
ily implies that, as the bill came out of the House, “delivered”
did not include “possessed with the intent to distribute.” Put
differently, first-degree child neglect, as the bill emerged
from the House, excluded “Boyd deliveries” from the concept
of delivery.
The legislative history in the Senate does not provide
a basis for departing from that understanding. As noted, the
Senate voted to delete section 3 of the bill, which had defined
second-degree child neglect as knowingly leaving or allowing
a child to stay in a vehicle or on premises where controlled
substances were consumed in the presence of the child or pos-
sessed with intent to distribute in the presence of the child.
Two different inferences can be drawn from that decision.
First, the Senate could have intended that the child-neglect
254 State v. Makin
statute would not apply to either of the acts identified in
section 3 and instead could have chosen to leave those acts
subject only to the existing child-endangerment law. Second,
the Senate could have intended to eliminate the first part
of section 3 (prohibiting leaving a child in a place or vehicle
where controlled substances are consumed), but it could have
intended that the second part of section 3 (addressing pos-
session of controlled substances with the intent to distribute)
would be subsumed in the term “delivered” in section 1 of the
bill, which defined first-degree child neglect.
As discussed above, the colloquy between the com-
mittee counsel and one of the witnesses on May 29 supports
the latter inference. However, no member of the commit-
tee ever endorsed (or even commented on) the interpreta-
tion that the committee counsel suggested. Moreover, when
the committee actually considered an amendment to delete
section 3 in its entirety, the only explanation for doing so
focused on something else. Counsel explained that section
3 “would have basically required a person who was in the
presence of even the criminal possession of a controlled sub-
stance to leave or remove the child.” Tape Recording, Senate
Committee on Judiciary, HB 2545, June 11, 1991, Tape 226,
Side A. Specifically, after hearing an explanation that sec-
tion 3 would apply to possession, the committee voted to
delete that section. Ordinarily, the effect of deleting section
3 of the bill in its entirety would be that the bill would not
prohibit either of the acts (consumption or possession with
intent to distribute) that section 3 previously had covered.
The Senate Judiciary Committee made one last
change that bears on this issue. As noted, Senator Shoemaker
proposed changing the verb form from “are delivered” to “are
being delivered.” After considering the witnesses’ concerns
regarding the risks to children present on premises where
controlled substances are manufactured or delivered, the
committee distinguished between vehicles and premises. It
made it a crime to knowingly leave or allow a child under
16 years of age to stay in a vehicle where controlled sub-
stances “are being criminally delivered or manufactured”
while making it crime to leave the child on premises where
controlled substances “are criminally delivered or manufac-
tured.” Bill File, HB 2545, June 20, 1991 (B-Engrossed Bill).
Cite as 360 Or 238 (2016) 255
For the most part, the use of the progressive form
of the verb answers the question of when the child must
be present in a vehicle—when a delivery is occurring. It
does not address what acts constitute a delivery within the
meaning of the child-neglect statute. However, in discuss-
ing the problem regarding vehicles that the bill sought to
address, one of the witnesses explained that there had been
a well-documented case where the defendant made three
controlled buys in his car while two of his children were in
the car. Tape Recording, Senate Committee on Judiciary,
HB 2545, June 11, 1991, Tape 226, Side A (testimony of
Russ Spencer). He observed, “As to whether it would consti-
tute neglect under the bill if the next day they were driving
down the road, I don’t know but that’s not our intent.” Id.The witness did not express a concern that vehicles where
deliveries customarily are made would become targets for
people attempting to steal drugs in the same way that drug
houses would. Rather, the focus was on the dangers that
ongoing deliveries posed to children inside the cars. While
not dispositive, the committee’s decision to require that a
delivery of controlled substances in a vehicle be contempo-
raneous with the children’s presence is consistent with the
notion that the committee was concerned with something
more than possessing drugs in a vehicle with an intent to
deliver those drugs at some undefined point in the future.
On balance, we are not persuaded that the Senate’s
decision to delete section 3 of the bill defining second-degree
child neglect reflects an intent to depart from the House’s
understanding of the bill. Three considerations lead us to
that conclusion. First, the legislative history in the House
clearly demonstrates an intent to distinguish “delivered”
from “possessed with intent to distribute.” Second, ordi-
narily, the effect of deleting section 3 of the bill (prohibiting
second-degree child neglect) would be to eliminate the prohi-
bition against all the conduct that that section covered, leav-
ing any criminal prosecution of that conduct to the child-
endangerment statute. Third, the stated reason for deleting
second-degree child neglect in its entirety was to eliminate
the part of that section that referred to possession, not just
the part of section 3 that referred to consumption. Arrayed
against those considerations is an earlier colloquy between
256 State v. Makin
the Senate committee counsel and a witness, which no mem-
ber of the Senate ever endorsed. In our view, that colloquy is
far too thin a reed on which to rest the conclusion that the
state asks us to draw from the legislative history.
We accordingly hold that first-degree child neglect,
as defined in ORS 163.547, does not include knowingly leav-
ing or allowing a child under 16 years of age to stay in a
vehicle where controlled substances are possessed with an
intent to deliver them.12 Because the state does not argue
that the evidence in this case gives rise to any inference other
than possession with intent to deliver, we reverse the Court
of Appeals decision to the extent it upheld defendant’s con-
victions for first-degree child neglect. On review, defendant
does not challenge his convictions for delivery and posses-
sion, and the state does not challenge the Court of Appeals
decision reversing defendant’s conviction for manufacturing
and remanding that charge for further proceedings. Those
parts of the Court of Appeals decision are affirmed.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded for further proceedings.
12
The state did not charge defendant with child endangerment for allow-
ing his children to “remain in a place where unlawful activity involving con-
trolled substances is maintained or conducted[.]” See ORS 163.575(1)(b); State v.
Gonzalez-Valenzuela, 358 Or 451, 473-74, 365 P3d 116 (2015) (discussing factors
that would give rise to such a charge). We accordingly have no occasion to con-
sider whether the facts in this case would be sufficient for a reasonable trier of
fact to find defendant guilty of that offense.