364	                            May 5, 2016	                          No. 29

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                    STATE OF OREGON,
                         Respondent,
                             v.
               JOSHUA ABRAHAM TURNIDGE,
                          Appellant.
                  (CC 08C51758; SC S059155)

   On automatic and direct review of the judgment of convic-
tion and sentences of death imposed by the Marion County
Circuit Court.
   Thomas. M. Hart, Judge.
   Argued and submitted June 17, 2015.
   Joshua B. Crowther, Chief Deputy Defender, Salem,
argued the cause for appellant. With him on the brief was
Peter Gartlan, Chief Defender, Office of Public Defense
Services.
   Susan G. Howe, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent. With
her on the brief were Ellen F. Rosenblum, Attorney General,
Anna M. Joyce, Solicitor General, David B. Thompson, and
Timothy A. Sylwester, Assistant Attorneys General.
  Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, and Baldwin, Justices, and Linder, Senior
Justice pro tempore.*
   LINDER, S. J.
   The judgment of conviction and sentences of death are
affirmed.




______________
    * Nakamoto, J., did not participate in the consideration or decision of this
case.
Cite as 359 Or 364 (2016)   365
366	                                      State v. Turnidge (S059155)

	          LINDER, S. J.

	        Defendant and his father were jointly charged and
tried on 10 counts of aggravated murder and other felonies
arising from their involvement in a bombing at a bank that
killed two law enforcement officers and injured another law
enforcement officer and a bank employee. A jury found them
each guilty on all counts and determined that sentences of
death should be imposed. The trial court thereafter entered
separate judgments of conviction for defendant and his
father, each of which included two sentences of death, one for
each murder victim. On direct review under ORS 138.012,
defendant raises 151 assignments of error, supplemented by
additional pro se assignments, relating to the pretrial and
guilt phases of his trial. He requests reversal of the judg-
ment of conviction and remand for entry of a judgment of
acquittal; he also, implicitly in the alternative, requests an
order for a new trial. We affirm the judgment of conviction
and sentences of death.1

       I.  FACTS AND PROCECURAL BACKGROUND

	       In setting out the facts, we begin with those relat-
ing to the bombing itself, followed by information learned
from the ensuing investigation. We then describe the result-
ing charges and the trial. Because a key issue relating to
the evidence as a whole involves the trial court’s denial of a
motion for judgment of acquittal, we set out the facts in the
light most favorable to the state, including all reasonable
inferences that a jury could draw from those facts. State
v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert
den, 514 US 1005 (1995); see also State v. Brown, 310 Or
347, 350, 800 P2d 259 (1990) (because jury found defen-
dant guilty, in assessing sufficiency of evidence relating to
motion for judgment of acquittal, court viewed evidence in
light most favorable to state). We describe additional facts
later in this opinion as they relate to particular assign-
ments of error.

	1
       In a separate opinion issued today, we also affirm the judgment of convic-
tion and sentences of death imposed against defendant’s father. State v. Turnidge
(S059156), 359 Or 507, ___ P3d ___ (2016).
Cite as 359 Or 364 (2016)                                                 367

A.  The Bombing
          Shortly before 10:30 a.m. on Friday, December 12,
2008, a man called a Wells Fargo Bank in Woodburn and
told the teller who answered, “If you value your life and the
life of your employees, you need to * * * get out because I’m
going to kill you, you * * * are all going to die.” The caller told
the teller to have all employees leave the bank and check
the outside garbage area, where they would find a plastic
bag containing a cell phone; he explained that he would
then call that phone to tell them what to do next. He also
stated either that he had called or was going to call a neigh-
boring bank, West Coast Bank, with similar instructions.2
The caller spoke calmly, had no accent, and—in the teller’s
estimation—was likely in his thirties or forties.
         The teller called 9-1-1, and detectives from the
Woodburn Police Department responded. The detectives
checked the outside garbage area and found several large
black plastic trash bags and a zipper-style bag containing a
cell phone. Concerned that the phone might be an explosive
device, they called for bomb technicians. Trooper William
Hakim from the Oregon State Police and an FBI special
agent responded; they examined and x-rayed the phone and
confirmed that it was not an explosive device. Another law
enforcement officer then took the phone to the Woodburn
Police Department, and Trooper Hakim and the FBI special
agent left the scene.
        Because the caller had mentioned the neighboring
West Coast Bank, a detective called dispatch and confirmed
that that bank had reported no threatening phone call.
Other detectives on the scene spoke with West Coast Bank
employees and checked that bank for suspicious packages.
In walking the exterior of West Coast Bank, one detective
noticed a large metal box among some bushes, within one
to a few feet of an exterior bank window, on a side of the
bank that faced a sidewalk and a residential street. The
box was painted green and looked like a landscaping utility
box or part of a sprinkler system. It was almost square or

   2
      West Coast Bank was located directly to the east of Wells Fargo Bank. Both
banks faced Highway 214 in Woodburn, near an Interstate 5 interchange.
368	                                    State v. Turnidge (S059155)

cube-like in shape, measuring about 11 and 1/2 inches deep
by 11 inches wide, and 15 inches high, with a nonopening
“lid” that created an appearance of a box top. The detective
rotated the box 180 degrees, thinking that, if it were a util-
ity box, it would not rotate. As the box rotated, an attached
wire popped out from underneath it. The wire was painted
the same green color and appeared to have been buried in
bark dust. In addition to rotating the box, the detective held
it by its lidded top and shifted the box slightly.
	        In response to police questions about whether the
box was recently placed or already had been in that location,
a bank employee, Perkett, and the bank branch manager,
Taylor, each looked at the box. Perkett lifted it slightly, and
Taylor tipped it to a 45-degree angle. A welded, uneven grid
with openings to the inside, fashioned from flat stock metal,
crossed the underside. Viewed from underneath, looking
through that grid, the box appeared mostly hollow. With the
box tipped, Taylor could see wires inside the hollow area, as
well as what looked like a secured motorcycle battery. He
also saw a toggle switch on the outside of the box. Taylor
and Perkett told the detective that they had not seen the
box before, and Perkett then tried to reach the bank’s land-
scaper who had worked at the bank the previous Sunday.
After several hours, the landscaper arrived and said that
the box was not his and had not been there before, which
prompted law enforcement to treat the box as a suspicious
device. They photographed it, recalled the bomb squad, and
Trooper Hakim again responded. While Trooper Hakim
was assessing the device, Chief Scott Russell and Captain
Thomas Tennant from the Woodburn Police Department—
who had been monitoring the situation throughout the
day—arrived to assist as needed.
	        Trooper Hakim inspected the device, including
turning it upside down and x-raying it, but the x-ray was not
conclusive. He ultimately concluded that the device—which,
as noted, appeared to be hollow except for the secured motor-
cycle battery inside—was a “very good hoax device.”3 So that
	3
      Several witnesses testified that the vast majority of suspicious devices
placed at banks nationwide prove to be hoax devices. A hoax device resembles a
real bomb, but does not contain any explosive filler.
Cite as 359 Or 364 (2016)                               369

it could be taken into evidence for investigatory purposes,
Trooper Hakim decided to dismantle the device to ensure
that it was safe.
         By then, it was around 5:00 p.m. and was growing
dark, and the weather was cold and rainy. To get out of the
weather and darkness, Trooper Hakim moved the device
inside West Coast Bank, which by then had closed to custom-
ers. All employees, except Taylor and Perkett, left the bank;
meanwhile, various law enforcement officers moved in and
out of the bank. Eventually, only Perkett, Taylor, Trooper
Hakim, Chief Russell, and Captain Tennant remained
inside the bank, with Captain Tennant assisting Trooper
Hakim with the device, which had been placed on the floor
with the grid side face-up, and Chief Russell observing
from nearby. Taylor went into a conference room to take an
incoming phone call, and Perkett, who was standing in the
same open area as the others, prepared to leave.
         Trooper Hakim and Captain Tennant tried with-
out success to remove bolts that appeared to hold the lid on
the device, and then Trooper Hakim used a crowbar to pry
on the lid. Hitting either the device or the crowbar with a
hammer, he succeeded in slightly moving the lid. He stated,
“There, I got it.” A second or so later, the device exploded,
causing extensive damage to the immediate area inside the
bank and violently projecting shrapnel through the win-
dows, walls, and roof, and outside onto the road and into a
nearby parked car and a residence.
         Other law enforcement officers working outside the
bank rushed inside. Trooper Hakim and Captain Tennant
had suffered horrific injuries, and were dead. Chief Russell
was alive, but his legs were nearly severed, and he was
bleeding profusely from those and other injuries. Perkett
suffered a wound to her leg, but was able to walk out of the
bank. Taylor, who had been in the conference room, was
not injured. Responding law enforcement officers called for
emergency medical help for Chief Russell, who was immedi-
ately transported to the hospital. He underwent emergency
surgery, which resulted in amputation of his right leg. He
remained in critical condition for several days due to his
multiple injuries, but survived.
370	                           State v. Turnidge (S059155)

B.  The Investigation
	        Immediately after the bombing, state and federal
law enforcement focused the investigation on the cell phone
discovered outside Wells Fargo Bank, the preblast photo-
graphs of the device—by then, known to be a bomb—and
postblast evidence gathered from West Coast Bank. On the
night of the bombing, investigators determined that the cell
phone was a prepaid “TracFone” and had been used to call
to another TracFone. Various records reviewed that same
night revealed that both phones had been purchased at
a Walmart and had been activated via the internet early
that same morning, at 4:22 a.m. and 4:30 a.m., from a Best
Western hotel in north Salem. Records also revealed that
the second TracFone (which was never recovered) had been
used to place the call to Wells Fargo Bank and to attempt to
also place a call around the same timeframe to West Coast
Bank. The next day, Saturday, investigators determined
that the phones had been purchased at a Walmart in Bend
on November 26, 2008, and that airtime cards for them had
been purchased at a particular Walmart in Salem shortly
after 9:00 a.m. on December 11. Investigators viewed video
surveillance from the Salem Walmart showing a Caucasian
male purchasing the airtime cards and then leaving the
parking lot in an older, light-blue small Chevrolet pickup
truck, possibly a LUV model. They were able to make out
some, but not all, of the truck’s license plate numbers.
	        Also on Saturday, the day after the explosion, and
continuing into Sunday, investigators searched various data-
bases to develop a list of registered small Chevrolet pick-
ups of similar age, with similar plate numbers. The search
returned a Chevrolet pickup registered to defendant’s par-
ents. After retrieving a Department of Motor Vehicles (DMV)
photograph of defendant’s father, Bruce Turnidge, investi-
gators determined that he was not the person in the sur-
veillance footage. They then searched the database for indi-
viduals associated with Bruce. That led them to defendant.
Based on his DMV photograph and identifying information,
defendant (unlike Bruce) matched the appearance, height,
weight, and apparent age of the person in the video footage.
Investigators also obtained video surveillance images from
Cite as 359 Or 364 (2016)                               371

the Bend Walmart and confirmed that the person who pur-
chased the TracFones on November 26 resembled the same
person in the Salem Walmart footage, who in turn resem-
bled defendant. Investigators obtained a series of addresses
from their searches, including a home in north Salem on
Nolan Lane.
         On Sunday, sometime after 3:30 p.m., state and fed-
eral law enforcement officers drove by the Nolan Lane prop-
erty and set up a distant perimeter. An older blue Chevrolet
LUV pickup truck, which matched the truck from the Salem
Walmart surveillance footage, was parked in the driveway.
A detective from the Keizer Police Department and a lieu-
tenant from the Oregon State Police approached the home
and knocked on the door; defendant answered and spoke
with them. Among other things, defendant stated that he
had learned about the bombing from the news and had not
been involved. Following a consent search of the pickup
and further conversation—during which defendant stated
that he had been in Bend and Medford on December 12,
spoke about a biodiesel business that he had with his
father, Bruce, and denied any involvement in the bombing—
defendant was placed under arrest and transported to the
Marion County Sheriff’s Office.
         Meanwhile, investigators learned of another address
of interest, on Potts Road in rural Jefferson, where Bruce
rented a home and out-buildings that included a garage, an
open-bay pole barn, and a closed-bay shop. Within two hours
of defendant’s arrest, several law enforcement officers went
to that address. Bruce’s wife (defendant’s mother) consented
to a search of the house. Officers located Bruce in a room
above the garage accessible from an outside entrance. They
and Bruce moved to the house, where Bruce spoke at length
with an FBI special agent about his political views. Bruce
and his wife eventually were asked to leave the property for
the night, and a search warrant was obtained.
         The next day and continuing for several days, law
enforcement executed the search warrant at the Potts Road
property. Among other things, investigators particularly
looked for items consistent with components of the bomb that
were visible in the preblast photographs or that had been
372	                                      State v. Turnidge (S059155)

otherwise discovered during the postblast investigation, as
well as any items relating to the TracFones. Inside the house,
investigators discovered and seized a desktop computer and a
laptop computer, and, from different trash cans, a TracFone
brochure and other papers. Inside the pole barn, which defen-
dant and Bruce used as a shop for their biodiesel business,
investigators found tools and other items consistent with
welding and metal fabrication work that could have been
used to construct the bomb, and electrical connectors con-
sistent with connectors visible in the preblast bomb photo-
graphs. They also found two “servo” motors, and remnants of
a third, which is a type of motor used in remote-control toys;
investigators had determined by that point that the bomb
had contained such a motor. The floor in the metalworking
area of the pole barn displayed cut marks consistent with the
dimensions of the bomb from the preblast photographs. The
pole barn appeared to have been thoroughly cleaned.
	        Outside the pole barn, investigators discovered
a burn pile containing wires, nuts, and L-shaped metal
pieces that all resembled components of the bomb, as well
as a vehicle charger used to charge electronic devices, a
cell phone battery, computer parts, other metallic objects,
and cans of spray paint. Farther away, at an outside picnic
area and along a riverbank, investigators found an empty
plastic container for Tovex, which is a slurry-type, power-
ful “high-explosive.”4 They also found sheets of metal and
plywood; flat stock metal; a spool of wire; wire crimps; a
like-new soldering kit; and an electrical connector box con-
taining wire strippers. The plywood sheet bore grinding
marks and welding splatters, and had an outline of green
paint that was similar in size and color to the bomb pictured
in the preblast photographs. Investigators also found angle
iron, expanded metal, and wire all similar to components
of the bomb. In a shallow area of the river nearby, a dive
team found similar metal pieces; another Tovex container;
a slurry-like substance adhered to a rock that was consis-
tent with Tovex; fuse-type blasting caps; a partially burned

	4
      A “high explosive” is a higher-velocity explosive (in contrast to slower-
velocity explosives such as gun powder and other powders) that requires a deto-
nator to initiate. Tovex is typically used for moving earth, such as for quarrying
and blasting.
Cite as 359 Or 364 (2016)                                 373

cardboard blasting cap box; computer and electronic compo-
nents; an antenna resembling a radio antenna; and a sheet
of metal that had a squared-off section cut out of it, similar
in dimensions to the paint outline on the plywood and to
the bomb pictured in the preblast photographs. From the
appearance and condition of some of the items—for exam-
ple, the blasting cap box—they did not appear to have been
exposed to the weather or river water for a significantly long
period of time. Subsequent paint and metallurgy analysis
showed that some of the materials recovered from the Potts
Road property—including various wires and the plywood
and various pieces of metal (painted and otherwise)—were
consistent in color, pigment, and chemical composition with
the components of the bomb recovered from the blast scene;
some of the seized and recovered metal also was determined
to have been made with the same manufacturing tooling.
Based on evidence seized from the Potts Road property,
Bruce was arrested on Tuesday, December 16.
         In addition to the Potts Road search, investigators
searched defendant’s home at Nolan Lane, where they seized
a receipt for two laptop computers that were different from
the two computers seized from the Potts Road property. The
make and model of the listed laptops later were determined
to contain the same component parts as the computer parts
found in the river and in the burn pile.
        From evidence seized during the searches and
recovered from West Coast Bank, together with fragments
of bomb components recovered during the autopsies of
Captain Tennant and Trooper Hakim, law enforcement
investigators learned more about the bomb components
and searched for related purchases. They learned that, on
November 26, about six minutes after defendant had been
recorded on a surveillance video from the Bend Walmart
purchasing the TracFones, as well as canned spray paint,
a man about the same age as defendant purchased two
toggle switches—of the same type visible on the outside
of the bomb—from a neighboring auto parts store. Also
on that same day, a little more than an hour before those
purchases, someone purchased a servo motor—of the same
type from which fragments had been discovered at the
374	                                      State v. Turnidge (S059155)

postblast scene—at a hobby shop in Bend. Investigators fur-
ther learned from phone records that defendant had been in
Bend that day and had called Bruce several times, includ-
ing within eight minutes of the purchase of the servo motor.
And, on December 1, Bruce purchased a soldering kit—like
the one found near the river—from a store in Brooks, and
someone named Bruce purchased a battery—matching the
type and brand of the battery visible in the bomb—from a
store in Albany.
	        Using the preblast photographs and analyzing
the various components recovered from the blast scene
and from the autopsies of Captain Tennant and Trooper
Hakim, investigators reconstructed the bomb to determine
the nature of its design. From the reconstructed bomb,
they determined that the real bomb had been a complex
one, constructed with scrap-type metal pieces that had
been welded, bolted, and otherwise fastened together. As
part of its design, the bomb had been mostly hollow, with
solid metal sides and what appeared to be a metal lidded
top, and then with the flat stock grid crossing the under-
side. When the bomb was tipped “upside down,” with the
flat stock grid facing upwards, a 12-volt battery had been
visible in the hollow area, secured to the grid. Also when
the bomb was in that position, farther behind the battery
at the bottom of the hollow area, a thick piece of metal was
visible, running the same width and depth dimensions as
the bomb’s metal top. Investigators described that thick
metal piece as a “shelf” inside the bomb’s structure.5 Two
electrical connectors had been attached to a corner of that
metal piece, and wire had run from the battery to those
connectors. Investigators determined that, behind that
thick metal interior “shelf,” several key components had
been concealed: a servo motor; two AA batteries; a second
internal toggle switch connected to the servo; three to five
pounds of the explosive Tovex; and a thick piece of steel
that may have encased the explosive. They also surmised

	5
       When the device was tipped “upside down,” with the flat stock grid facing
upwards, and one looked into the hollow area of the device through the grid, the
thick piece of metal appeared to be the device’s interior bottom or “floor.” When
the device was turned right-side-up, with the grid facing down, the thick piece of
metal would have been near or part of the lidded top.
Cite as 359 Or 364 (2016)	375

that the “shelf” had concealed both a receiver for the servo
and a detonator for the explosive, such as a nonelectric,
fuse-type blasting cap.
	        From the various internal components—particularly,
the servo motor, which would have operated to accept a
remote command—investigators determined that the bomb
was designed to detonate remotely, from a distance of several
hundred feet to possibly a few miles. Investigators further
determined that the bomb ran on two circuits that required
both toggle switches to be in the “on” position for detonation
to occur. The internal toggle switch, if flipped to the “on”
position, initiated a detonator. The external switch, how-
ever, operated as a safe-arm switch so that the bomb could
be safely handled. Specifically, the two switches worked
together in this way: The servo motor, when it received a
remote signal, would flip the internal toggle switch, which
in turn would initiate the detonator, which in turn would
detonate the explosive, depending on the position of the safe-
arm switch. If the safe-arm switch were “off,” then flipping
the internal switch would have no effect. If, however, the
safe-arm switch were “on,” then the detonator would be trig-
gered, and the bomb would explode.
	        Investigators theorized that, when the bomb was
planted outside the bank, the safe-arm switch was placed
in the “on” position. Then, while Trooper Hakim and
Captain Tennant worked to dismantle the bomb, a stray
radio signal operating on the same radio frequency range
as a receiver inside the bomb—such as a signal sent from a
nearby CB radio or garage door opener—may have signaled
the receiver and servo motor to flip the internal switch to
“on,” which initiated the detonator and triggered the explo-
sion. Evidence at trial also suggested alternative scenarios:
(1) in handling the bomb before the explosion, someone on the
scene inadvertently could have flipped the external safe-arm
switch to the “on” position, which either would have set the
groundwork for the explosion once the internal switch was
flipped, or, if that internal switch already had been flipped
somehow, immediately would have caused the bomb to det-
onate; or (2) an interior component itself—such as the servo
motor, the internal switch, or a detonator—might have been
376	                                        State v. Turnidge (S059155)

triggered during efforts to dismantle the bomb.6 Regardless
of the means of detonation, the explosive inside the bomb
was capable of causing death and destruction. As originally
placed at West Coast Bank, the metal grid was at the base
of the bomb, on the ground, while the area concealed by the
“shelf,” where the explosive was contained, was elevated off
the ground. That elevated positioning of the explosive ren-
dered the bomb more dangerous, because explosives typi-
cally cause greater damage when they explode above rather
than on the ground. Also, had the bomb exploded where it
was originally planted outside the bank, the damage and
destruction likely would have been even more extensive,
because the blast would not have been contained by any
structure.
	         In seeking to determine defendant’s and Bruce’s
whereabouts on December 12, investigators focused on tele-
phone carrier and cell tower records for their personal cell
phones, together with records showing the TracFone acti-
vations at the Best Western in north Salem, which offered
unsecured wireless service accessible from an exterior park-
ing lot. The carrier and cell tower records revealed a call and
travel pattern establishing that, sometime after 1:40 a.m.
on December 12, defendant left north Salem and traveled
south to Jefferson, and then, by 3:56 a.m., both defendant
and Bruce travelled away from Jefferson, separately but
in the same direction, back north toward Salem, arriving
by 4:01 a.m. in the general vicinity of the Best Western.
The TracFones then were activated at the Best Western at
4:22 a.m. and 4:30 a.m.
	        After the TracFones were activated, there was
about a three-hour time break in the phone records—during
which investigators theorized that defendant and Bruce
traveled together, north to Woodburn, and planted the bomb

	6
       In its case-in-chief, the state relied principally on the stray-signal theory.
After defendant and Bruce presented evidence contradicting that theory in their
defense case, the prosecutor did not rely on that theory in his closing argument
to the jury. Instead, the prosecutor focused on the evidence connecting defendant
and Bruce to the construction, design, and placement of the bomb, emphasizing
the state’s theory that the bomb was designed and intended to be lethal, and was
planted at the bank for the purpose of killing and injuring others, regardless of
the specific force that caused it to detonate.
Cite as 359 Or 364 (2016)	377

at West Coast Bank. Beginning at 7:19 a.m., both defendant
and Bruce either placed or received calls from around an
Interstate 5 rest stop near Wilsonville, north of Woodburn.
Then they traveled south, where an 8:40 a.m. call placed
them near Woodburn. The call to Wells Fargo Bank on one
of the TracFones occurred at 10:19 a.m., from the Woodburn
area; within about an hour of that call, defendant and
Bruce—still together—made calls to others on their cell
phones from Brooks, just south of Woodburn. After leaving
Brooks, they apparently each drove separately to Jefferson,
arriving at the pole barn on Potts Road after 11:00 a.m.,
where they spoke to others working there. They then visited
a mutual acquaintance in Salem at about noon. Eventually,
each returned home, with defendant’s last recorded call to
Bruce before the bombing occurring at 2:33 p.m. The next
recorded call between the two occurred about an hour after
the bombing, at 6:17 p.m., at which time each appeared to
be at his home. Investigators also determined that Bruce’s
large white pickup truck had been parked at West Coast
Bank within one to two weeks before the bombing and that
that truck had been seen travelling to the pole barn on the
Potts Road property around 2:00 a.m., on the morning of the
bombing. Finally, investigators determined that someone
driving a blue Chevrolet LUV pickup truck had purchased
gas in Woodburn in the early mid-morning hours on that
same day and then had remained parked at the gas station
for more than five minutes, with the driver looking in the
general direction of West Coast Bank.
	        As to defendant’s and Bruce’s respective reactions
and demeanors on the evening of and during the days after
the bombing, investigators learned from various witnesses
that neither acted unusually. Each continued with his ordi-
nary activities and did not display any noticeable change in
behavior or affect.
	        As part of the investigation, law enforcement
attempted to determine a possible motive for defendant and
Bruce to have built and planted the bomb. That led them to
evidence that defendant and Bruce had planned to rob a bank.
Specifically, the FBI analyzed a handwritten paper retrieved
from a trash can at the Potts Road property—which, based
378	                            State v. Turnidge (S059155)

on handwriting analysis, likely had been written by defen-
dant. They determined that that paper contained a series
of numbers that ultimately calculated the weight and mon-
etary total of particular physical counts of bills—for exam-
ple, the weight of $500,000 worth of $20 or $50 bills—and
how much various amounts would weigh for the purpose of
transporting the bills in 100-pound bags. On the computers
seized from the Potts Road property, investigators also found
evidence of fairly recent internet searches for “monetary con-
version,” offshore bank accounts, currency rates, and foreign
currency exchange rates. And investigators learned from
friends and associates that defendant and Bruce in the past
had spoken hypothetically about bank robbery, with Bruce in
particular frequently describing different bank robbery sce-
narios, including the use of explosives or fire as diversions
or otherwise, and the use of remote controlled cars to deliver
explosives. Bruce, but not defendant, also had spoken hypo-
thetically many years before about killing police by various
means, including detonating a bomb during a police memo-
rial. A friend of defendant’s also relayed that, many years
earlier, defendant had told him that defendant had called in
a bomb threat to a Woodburn bank located in the same area
as the banks involved in this case. Finally, at the time of the
bombing, both defendant and Bruce were having personal
financial troubles, and their biodiesel business was not gen-
erating any profit.
	        Investigators also learned from various of defen-
dant’s and Bruce’s family members, friends, and acquain-
tances that they viewed the government—including law
enforcement—as over-reaching, requiring ordinary citizens
to respond in possibly violent ways. As an example, defen-
dant’s former fiancée had observed defendant and Bruce
react “jubilant[ly]” to news of the 1995 Oklahoma City bomb-
ing, which they thought was an appropriate citizen response
given earlier events at Ruby Ridge, Idaho, and Waco, Texas.
Relatedly, during a hunting trip in early November 2008,
defendant and Bruce had agreed that the upcoming presi-
dential transition likely would infringe on their right to bear
arms. More generally, for his part, defendant over the years
had expressed in intense terms to friends and acquain-
tances his dislike of police and his distrust of banks.
Cite as 359 Or 364 (2016)	379

	        Investigators learned other relevant details about
both defendant and Bruce. For example, both were skilled
welders and had experience working with electronics, with
defendant having more electronics experience than Bruce.
Both had experience using remote control devices, including
experience on defendant’s part in connecting servo motors
to different control surfaces to make them function. And
both had experience using explosives; Bruce in particular
was experienced in using explosives effectively for different
objectives. Investigators also learned that, at some point
within three to four months before the bombing, two indi-
viduals resembling defendant and Bruce had spoken with a
store employee in Jefferson about blowing up stumps from a
remote location; the three had discussed that, with remote
detonations, care should be taken to avoid crossing remote
signals with CB radio signals. Finally, investigators learned
that defendant—but not Bruce—was experienced in using a
computer and owned a laptop (of the same type found at the
river at Potts Road) that automatically connected to unse-
cured wireless internet networks.
	        As noted, defendant told investigators, as well as
others, that he had driven to Bend and other Oregon cities on
December 12; he also discussed with friends, acquaintances,
and others—after his arrest—alternative theories for the
bombing and that police had wrongly arrested him. He later
testified at trial, however, that he had been driving with
Bruce in the Willamette Valley area from the early morn-
ing hours on December 12 until midday, although he offered
personally exculpatory explanations for each of the critical
time periods—such as activation of the TracFones, place-
ment of the bomb, and calling Wells Fargo Bank. Overall,
his testimony was to the effect that he had no knowledge of
any planning, bomb construction or placement, or attempted
robbery. Rather, according to defendant’s testimony, Bruce
alone had planned, built, and planted the bomb; activated
the TracFones; and called Wells Fargo Bank. As for the pur-
chases of the TracFones and spray paint, the airtime cards,
and the toggle switches, defendant maintained that he had
purchased those items at Bruce’s request, with no knowl-
edge of how Bruce intended to use them. Defendant denied
purchasing the servo motor.
380	                                       State v. Turnidge (S059155)

C.  The Charges and Trial
	        In separate, identical indictments, the state jointly
charged defendant and Bruce with aggravated murder (10
counts each, including four counts of aggravated felony
murder),7 attempted aggravated murder (three counts), con-
spiracy to commit aggravated murder, first-degree assault,
second-degree assault, unlawful manufacture of a destruc-
tive device, and unlawful possession of a destructive device.
The trial court conducted a joint guilt-phase trial, at which
the state presented the evidence generally summarized
above. Defendant took the stand in his defense and tes-
tified to the effect, also as noted above, that Bruce alone
had planned a bank robbery, built and planted the bomb
at West Coast Bank, and placed the life-threatening call to
Wells Fargo Bank. Unlike defendant, Bruce did not testify
at trial. Defendant, together with Bruce, also introduced
evidence attempting to show that—in assessing the nature
of the bomb and its destructive potential—law enforcement
officers had acted negligently or otherwise had deviated
from standard operating procedures. Defendant and Bruce
relatedly attempted to show that the bomb had exploded as
a result of law enforcement manipulation.8
	        At the conclusion of the joint guilt-phase trial, a jury
found both defendant and Bruce guilty on all counts. After sep-
arate penalty-phase proceedings under ORS 163.150(1)(a),
the jury unanimously answered “Yes” to the four questions
set out in ORS 163.150(1)(b), as to both defendant and to

	7
       The state alleged the same five theories of aggravated murder as to each
defendant—with duplicate counts for each murder victim, resulting in 10 counts
total—based on different statutory aggravating circumstances, as follows:
    •  Two or more deaths in the same criminal episode, ORS 163.095(1)(d);
    •  Death of a police officer, ORS 163.095(2)(a)(A);
    •  Death by explosive device, ORS 163.095(2)(c);
    •  Felony murder, criminal mischief (explosive device), ORS 163.095(2)(d),
       ORS 163.115(1)(b)(B); and
    •  Felony murder, robbery, ORS 163.095(2)(d), ORS 163.115(1)(b)(G).
	8
       At trial, both defendants made extensive efforts to persuade the jury that
law enforcement officers had mishandled the bomb in several respects. We do not
describe that evidence in detail, because the jury rejected it, and our standard of
review views the evidence in the light most favorable to the jury’s verdict.
Cite as 359 Or 364 (2016)	381

Bruce.9 For both defendant and Bruce, the trial court merged
their individual aggravated murder convictions relating to
each murder victim and then entered identical judgments,
one against defendant and one against Bruce, setting out
two convictions for aggravated murder (one for Captain
Tennant and one for Trooper Hakim), and two sentences of
death.
	        As noted, defendant raises 151 assignments of error
that relate to both the pretrial and guilt phases (but not
the penalty phase) of his trial. In a supplemental pro se
brief, defendant raises four additional assignments of error.
Below, we address the assignments that merit discussion.
                        II.  PRETRIAL PHASE
A.  Motion to Sever Trials (Assignment Nos. 1-5)
	        As just described, defendant and Bruce were
charged jointly, in identical indictments, with identical
offenses. Before trial, defendant moved to sever his trial
from Bruce’s trial. The state objected, and the trial court
denied the motion. During trial, in response to certain evi-
dentiary rulings that defendant viewed as unfavorable to
his defense, defendant responded by, among making other
motions, renewing his motion to sever, each time summarily
and each time unsuccessfully. On review, defendant argues
that the trial court’s rulings were error under ORS 136.060
and the Sixth and Fourteenth Amendments to the United
States Constitution.10 As we explain below, we conclude that
	90
       ORS 163.150(1)(b) provides:
   	    “Upon the conclusion of the presentation of the evidence, the court shall
   submit the following issues to the jury:
   	    “(A)  Whether the conduct of the defendant that caused the death of the
   deceased was committed deliberately and with the reasonable expectation
   that death of the deceased or another would result;
   	 “(B) Whether there is a probability that the defendant would commit
   criminal acts of violence that would constitute a continuing threat to society;
   	    “(C)  If raised by the evidence, whether the conduct of the defendant in
   killing the deceased was unreasonable in response to the provocation, if any,
   by the deceased; and
   	    “(D)  Whether the defendant should receive a death sentence.”
	10
       Defendant also argues that the trial court’s rulings violated his right to an
impartial jury, as guaranteed by Article I, section 11, of the Oregon Constitution.
382	                                     State v. Turnidge (S059155)

the trial court did not err in denying defendant’s motions to
sever.
	      Severance of trials for jointly charged defendants is
governed by ORS 136.060, which provides:
   	 “(1)  Jointly charged defendants shall be tried jointly
   unless the court concludes before trial that it is clearly inap-
   propriate to do so and orders that a defendant be tried sep-
   arately. In reaching its conclusion the court shall strongly
   consider the victim’s interest in a joint trial.

   	 “(2)  In ruling on a motion by a defendant for sever-
   ance, the court may order the prosecution to deliver to the
   court for inspection in camera any statements or confes-
   sions made by any defendant that the prosecution intends
   to introduce in evidence at the trial.”

(Emphasis added.) Central to the parties’ arguments on this
issue are their different positions on what circumstances
render a joint trial “clearly inappropriate” under that stat-
ute. According to defendant, the standard is not a partic-
ularly demanding one. The statute does not, for example,
expressly require a showing that a joint trial would create
a risk of “substantial prejudice” or would give rise to evi-
dentiary or other issues at trial that would violate a statu-
tory or constitutional provision. Under that less-demanding
standard, defendant argues that a joint trial was “clearly
inappropriate” here because he and Bruce advanced “incon-
sistent defenses,” the state relied on evidence that was not
“mutually admissible” against both of them, and some evi-
dence admitted against Bruce could easily have tainted the
jury’s view of him as well.
	         The state, relying on State v. Turner, 153 Or App
66, 956 P2d 215, rev den, 327 Or 317 (1998), and other Court
of Appeals cases interpreting ORS 136.060(1), responds
that “clearly inappropriate” is a heightened standard that
is satisfied only if a joint trial would violate a statutory or

Defendant made no specific argument about Article I, section 11, to the trial
court, however, and, on review, defendant neither cites any authority nor makes
any developed argument for the proposition that Article I, section 11, requires
jointly charged defendants to be tried separately. For those reasons, we do not
address defendant’s Article I, section 11, argument.
Cite as 359 Or 364 (2016)	383

constitutional provision, and not if there is merely a poten-
tial for prejudice to one or more defendants. Consequently,
according to the state, that standard is not satisfied by the
kinds of problems that defendant identifies, such as incon-
sistent defenses or the state’s use of evidence that is not
mutually admissible against both defendants.11
	        We begin by construing the “clearly inappropriate”
standard that ORS 136.060(1) establishes. We then examine
whether, on this record, the trial court erred by concluding
that the problems that defendant identified did not, pursu-
ant to that standard, require severance.
	         In construing a statute, we examine the text of that
statute in context and, where appropriate, consider legisla-
tive history and pertinent canons of statutory construction.
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
The term “clearly inappropriate” is not statutorily defined.
Neither is it a legal term of art. We therefore look to its
everyday meaning. See Comcast Corp. v. Dept. of Rev., 356
Or 282, 295-96, 337 P3d 768 (2014) (contrasting approach
for interpreting plain meaning of legal terms versus lay
terms). The words “clearly” and “inappropriate” do have
fairly “plain, natural, and ordinary” meanings. See PGE v.
Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d
1143 (1993) (describing meaning to be given to words of
ordinary usage). “Clearly” means “without doubt or ques-
tion.” Webster’s Third New Int’l Dictionary 420 (unabridged
ed 2002). “Inappropriate” means, of course, “not appropri-
ate,” id. at 1140, which is the opposite of “appropriate,” which
means “specially suitable” or “proper.” Id. at 106. As a mat-
ter of plain text, then, the “clearly inappropriate” standard
requires a determination that, without doubt or question,
a joint trial would not be suitable or proper in a particular
instance.
	11
       The state also argues that defendant failed to preserve his current argu-
ments because he did not argue in the trial court that the Court of Appeals cases
interpreting ORS 136.060 were decided incorrectly. Both parties, however, relied
on Court of Appeals case law to support their respective positions as to whether,
given the circumstances of this case, a joint trial was “clearly inappropriate”
under ORS 136.060. Although defendant’s argument below may not have been as
well-developed as the argument that he now makes on direct review, we conclude
that he sufficiently preserved the issue.
384	                                      State v. Turnidge (S059155)

	         Two aspects of the text of ORS 136.060(1) provide
useful insight. First, by providing that jointly charged defen-
dants “shall be tried jointly unless the court concludes” that
a joint trial would be “clearly inappropriate,” the statute
expresses a preference for joint trials. A joint trial is man-
datory in all cases, unless the statutory standard of “clearly
inappropriate” is met. In effect, then, the default approach
under the statute is for jointly charged defendants to be
jointly tried. Second, to overcome that default approach, it
is not enough that a joint trial be inappropriate; it must be
“clearly” so. There must be no doubt or question that a joint
trial is inappropriate; a risk or possibility that the joint trial
will prove inappropriate is not enough.
	         The second subsection of the statute provides con-
text that bolsters that understanding. ORS 136.060(2) gives
the trial court, in ruling on a motion to sever, the author-
ity to order the prosecution to deliver to the court, for in
camera inspection, “statements or confessions made by any
defendant that the prosecution intends to introduce into
evidence at the trial.” Through that procedural authority, a
trial court can anticipate a so-called Bruton problem, which
refers to constitutional issues that potentially arise in joint
trials of codefendants when statements or confessions of one
defendant are admissible against the defendant who made
them, but inadmissible against another defendant. In cer-
tain circumstances, the prejudice to the jointly tried defen-
dants may be sufficiently great that, despite a trial court’s
instructions limiting the jury’s consideration of the state-
ments, reversal and a remand for separate trials is consti-
tutionally required. See, e.g., Bruton v. United States, 391
US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968) (admission
of codefendant’s confession implicating both codefendant
and defendant violated defendant’s federal constitutional
rights to confrontation and cross-examination, despite jury
instruction to consider confession only as to codefendant).12
	12
        Bruton did not involve a motion for severance. Rather, the issue involved
the admissibility of a codefendant’s confession that implicated the defendant.
Because severance can address the prejudice caused by such a confession, the
United States Supreme Court in Bruton noted the existence of a provision of Rule
14 of the Federal Rules of Criminal Procedure (FRCrP) that, “[i]n ruling on a
motion by a defendant for severance[,] the court may order the attorney for the
government to deliver to the court for inspection in camera any statements or
Cite as 359 Or 364 (2016)	385

	        In combination, then, the text and context of ORS
136.060(1) suggest that “clearly inappropriate” was designed
to be a difficult standard to meet. The statute expresses a
preference for joint trials of jointly charged defendants, sets
a standard that requires no doubt or question that a joint
trial will be “inappropriate,” and then provides the trial
court with explicit authority to make a record on which the
court can assess whether any statement or confession that
the state intends to put into evidence at trial would violate
constitutional protections if the jointly charged defendants
are jointly tried.
	        Defendant, however, points to another statute, ORS
132.560, as relevant context to support his position that the
standard in ORS 136.060(1) is less demanding. ORS 132.560
governs requirements for charging instruments and controls
the joinder of offenses against a single defendant. Subsection
(3) provides that, if it appears that the state or the defen-
dant is “substantially prejudiced” by the joinder of the mul-
tiple charged offenses, then either party may move, and the
court may order, separate trials on separate offenses or other
relief that justice requires. Comparing that statute to the
severance statute at issue here, ORS 136.060(1), defendant
asserts that the “clearly inappropriate” standard in the sev-
erance statute must mean something less than what would
be considered “prejudicial,” or “substantially prejudic[ial],”
under the joinder statute.
	         That comparison does not aid defendant, for two
reasons. First, as we will describe, the “clearly inappropri-
ate” standard was added to ORS 136.060(1) in 1986, but
the legislature did not add the “substantially prejudiced”
standard to ORS 132.560(3) until years later. See Or Laws
1989, ch 842, § 1 (enacting “prejudiced” wording in ORS
132.560(3)); Or Laws 1999, ch 1040, § 17 (adding “substan-
tially”). Because those amendments occurred at different
points in time, and in different and, at most, tangentially
related statutes, it is difficult to see how the legislature’s

confessions made by the defendants which the government intends to introduce
in evidence at the trial.” 391 US at 131-32. The similarities in that wording to
ORS 136.060(2) are notable. FRCrP 14 does not, however, contain any wording
similar to the wording of ORS 136.060(1) and thus contains no explicit presump-
tion in favor of joint trials.
386	                             State v. Turnidge (S059155)

later use of the “substantially prejudiced” standard in the
offense-joinder statute helps to inform our understanding
of the earlier use of the “clearly inappropriate” standard
in the trial severance statute. See Gaines, 346 Or at 177
n 16 (“Ordinarily, only statutes enacted simultaneously
with or before a statute at issue are pertinent context for
interpreting that statute.”). Second, and in all events, we
disagree that, textually, “clearly inappropriate” communi-
cates a less demanding standard than “substantially prej-
udiced.” To the contrary, when considered in context, as we
have already considered it, “clearly inappropriate” suggests
a stringent standard, for the reasons that we have already
discussed.
	         Still, for added guidance, we turn to the enactment
history of ORS 136.060. See State v. Dickerson, 356 Or 822,
830, 345 P3d 447 (2015) (court examines prior versions
of statute as part of statutory context). Before 1983, ORS
136.060 provided that, “[w]hen two or more defendants are
jointly indicted for a felony, any defendant requiring it shall
be tried separately.” ORS 136.060 (1981), amended by Or
Laws 1983, ch 705, § 1. Thus, under the earlier version of
that statute, defendants who were jointly charged with fel-
onies were entitled to separate trials if they moved for sev-
erance and “if required.” This court did not have occasion to
consider the words “if required” in that version of the statute,
except to briefly note in one case that a trial court’s grant of
a motion to sever trials for a defendant and a codefendant
jointly charged with negligent vehicular homicide had been
“obedient to the demands of” that version of the statute.
State of Oregon v. Berry and Walker, 204 Or 69, 78, 282 P2d
344 (1955). In 1983, the legislature amended ORS 136.060,
adding what is now subsection (1), to provide, in part, that,
“[w]hen two or more defendants are jointly charged with
commission of the same crime or crimes, whether felony or
misdemeanor, * * * all of which occurred as part of the same
act or transaction, they may be tried separately or jointly in
the discretion of the court.” Or Laws 1983, ch 705, § 1. Thus,
during the early 1980s, the statute changed from one that
entitled jointly charged defendants, on a proper motion, to
separate trials “if required,” to one that allowed severance
at the court’s unbounded discretion.
Cite as 359 Or 364 (2016)	387

	        In 1986, the voters passed a “Crime Victims’ Bill
of Rights” that amended several statutes, including ORS
136.060. Or Laws 1987, ch 2. As a result of that amend-
ment, ORS 136.060(1) took its current form, mandating a
joint trial for jointly charged defendants “unless the court
concludes before trial that it is clearly inappropriate to do
so and orders that a defendant be tried separately,” and fur-
ther requiring the court to “strongly consider the victim’s
interest in a joint trial.” Or Laws 1987, ch 2, § 6.13
	        Defendant asserts that, in amending ORS 136.060
as part of the 1986 crime victims’ rights initiative, the vot-
ers intended to increase victims’ rights, but not remove
rights from criminal defendants. The wording of the ini-
tiative contradicts that assertion, however. Textually, the
voters expressed a preference for joint trials that did not
exist in the 1983 version of the statute, and they signifi-
cantly constrained a trial court’s authority to grant a defen-
dant’s motion for severance, limiting that authority to cir-
cumstances in which it was “clearly inappropriate” to go
forward with joint trials. The fact that the voters may have
done so to further a victim’s interest in having joint trials,
rather than with the independent goal of narrowing when a
defendant could obtain severance, does not change the fact
that the voters achieved their objective by making it harder
for a jointly charged defendant to obtain a severance.14 See
generally Bruton, 391 US at 134 (“Joint trials do conserve

	13
        As part of the 1986 initiative, the voters also removed the earlier refer-
ences to felonies or misdemeanors. ORS 136.060(1) now refers more generally to
“[j]ointly charged defendants.”
	14
       When interpreting a statute adopted via initiative, this court may con-
sider the history of the measure, including “the ballot title and arguments for
and against the measure included in the voters’ pamphlet, and contemporaneous
news reports and editorial comment on the measure.” Ecumenical Ministries v.
Oregon State Lottery Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994); see also
State v. Algeo, 354 Or 236, 246, 311 P3d 865 (2013) (court may consider history
of voter-adopted measure, if useful to court’s analysis, in addition to considering
text and context). But see State v. Sagdal, 356 Or 639, 643, 343 P3d 226 (2015)
(court exercises caution in relying on statements of advocates, such as those con-
tained in voters’ pamphlet, due to partisan character). The only part of the vot-
ers’ pamphlet pertinent to ORS 136.060 was the statement that the measure
would “[i]ncrease[ ] preference that jointly charged defendants be tried together.
Court shall strongly consider victim’s interest in joint trial when deciding defense
request for separate trials.” Official Voters’ Pamphlet, General Election, Nov 4,
1986, 52.
388	                              State v. Turnidge (S059155)

state funds, diminish inconvenience to witnesses and public
authorities, and avoid delays in bringing those accused of
crime to trial.”).
	        We therefore construe ORS 136.060(1) as follows.
In granting a pretrial motion to sever, a trial court must
conclude that a joint trial is “clearly inappropriate,” which
means that the record must establish, beyond doubt or ques-
tion, that a joint trial of jointly charged defendants would
be inappropriate. “Inappropriate,” in that context and given
the preference for joint trials, necessarily means legally
inappropriate, such that going forward with a joint trial
would be legal error. That is, the standard is triggered by
the kind of circumstances that—in advance of trial—a court
can foresee likely could result in a legal error of sufficient
gravity to give rise to either a mistrial or a reversal, fol-
lowed by separate retrials. An example of the kind of cir-
cumstance that the legislature had in mind is reflected in
subsection (2) of the statute, which ensures the trial court’s
authority to order the prosecution to turn over statements
and admissions of a jointly charged defendant that the pros-
ecution anticipates introducing at trial. That subsection
plainly anticipates the kind of circumstance that arose in
Bruton, where the defendant could not be tried jointly with
his codefendant—given the admissions and statements on
which the prosecution had relied to prove the codefendant’s
guilt—without violating the defendant’s federal confronta-
tion and cross-examination rights. See 391 US at 135-36
(reversing on that ground). That is not to say that a Bruton
problem is the exclusive ground on which a trial court may
allow a motion to sever, but it demonstrates the nature of
the standard involved: A trial court may conclude that it
would be “clearly inappropriate” for jointly charged defen-
dants to be jointly tried when the information available to
the trial court in advance of trial permits the court to rea-
sonably predict that a joint trial could likely inject error into
the trial that would result either in a mistrial in the course
of the trial or a later reversal by an appellate court.
	       In articulating that standard, one aspect of the
statutory procedure and standard bears special emphasis.
By its express terms, ORS 136.060(1) requires the “clearly
inappropriate” determination to be made in advance of trial
Cite as 359 Or 364 (2016)	389

and on the basis of the record made at that time. In par-
ticular, that statute expressly declares that jointly charged
defendants “shall be tried jointly” unless the court concludes
“before trial” that it is clearly inappropriate to do so and
“orders” separate trials. The record on which the trial court
is to resolve the motion is thus necessarily the record made
at the time of the motion. We therefore agree with the Court
of Appeals, which for many years has held:
    “When we review a trial court’s ruling on a motion to sever,
    * * * we examine the decision in light of the arguments
    asserted and circumstances pertaining at the time the
    pretrial motion was made. * * * Errors that occur during
    trial may provide grounds for a mistrial motion or for other
    relief, but they cannot provide the basis for a motion to
    sever.”

Turner, 153 Or App at 74. As a simple matter of practical-
ity, it is difficult to see how a joint trial can be severed into
separate trials once the trial has begun. Even if it could
be, however, the statute does not authorize midtrial sever-
ance. Therefore, although defendant in this case renewed
his severance motion during the trial at several points, the
only severance motion and arguments in support that we
consider are those that he made pretrial, pursuant to ORS
136.060.15
	        We turn to the merits of defendant’s motion. In par-
ticular, we consider whether—when defendant made his
pretrial motion to sever—the trial court could determine on
the record before it that a joint trial was “clearly inappropri-
ate.” In support of his motion, defendant relied, in part, on
his claim that the state intended to offer certain statements
or confessions made by Bruce that violated defendant’s con-
frontation and cross-examination rights under Bruton, 391
US 123. As we have discussed, if defendant were correct in

	15
       Although we do not consider defendant’s midtrial motions for severance
as such, defendant coupled those midtrial motions with other objections and
grounds for relief—such as moving to admit or exclude certain evidence or for a
mistrial. To the extent that defendant has raised claims of errors based on the
appropriate related objections and motions that he made midtrial, we have con-
sidered them either expressly in resolving those other claims of error, or we have
considered them and declined to address them because they lack merit or—if any
error occurred—such error was harmless.
390	                               State v. Turnidge (S059155)

that regard, a joint trial would be “clearly inappropriate”
under ORS 136.060(1), and it would have been error for the
trial court to decline to order separate trials. But, as we will
explain, none of Bruce’s statements were objectionable on
that basis.
	In Bruton, the United States Supreme Court held
that a defendant is denied his or her rights under the
Confrontation Clause of the Sixth Amendment when, in a
joint trial with a codefendant, the codefendant does not tes-
tify, but the codefendant’s statement implicating the defen-
dant as a participant in a crime is admitted in evidence. 391
US at 126. In so holding, the Supreme Court overruled prior
case law holding that jury instructions limiting the use of
such evidence were sufficient to cure the prejudice. Id. While
acknowledging that juries generally can be expected to fol-
low limiting instructions of that kind, id. at 135, the danger
of the jury not doing so in this context was too great:
   “[T]here are some contexts in which the risk that the jury
   will not, or cannot, follow instructions is so great, and the
   consequences of failure so vital to the defendant, that the
   practical and human limitations of the jury system can-
   not be ignored. Such a context is presented here, where
   the powerfully incriminating extrajudicial statements of
   a codefendant, who stands accused side-by-side with the
   defendant, are deliberately spread before the jury in a joint
   trial. Not only are the incriminations devastating to the
   defendant but their credibility is inevitably suspect, a fact
   recognized when accomplices do take the stand and the
   jury is instructed to weigh their testimony carefully given
   the recognized motivation to shift blame onto others. The
   unreliability of such evidence is intolerably compounded
   when the alleged accomplice, as here, does not testify and
   cannot be tested by cross-examination.”
Id. at 135-36 (citations and footnote omitted).
	         As that passage reveals, the danger that the Court
identified was specific to statements made by one defen-
dant that directly incriminated the other defendant, that
were not subject to cross-examination, and that could not
be cured by a jury instruction. For the Bruton rule to apply,
the nontestifying codefendant’s out-of-court statement must
“on its face” incriminate the other defendant. Richardson v.
Cite as 359 Or 364 (2016)	391

Marsh, 481 US 200, 208-09, 107 S Ct 1702, 95 L Ed 2d 176
(1987). Where the statement does not expressly incriminate
the other defendant, and instead becomes incriminating
“only when linked with evidence introduced later at trial,”
no Bruton problem arises. Richardson, 481 US at 208.
	        In this case, defendant’s Bruton argument ran to
various out-of-court statements that Bruce had made, which
ultimately were admitted into evidence and which we have
earlier generally described. See 359 Or at 378 (generally
describing statements); see also State v. Turnidge (S059156),
359 Or 507, 511, ___ P3d ___ (2016) (summarizing some
statements at issue in more detail). In none of those state-
ments, however, did Bruce confess to or make admissions
about the charged crimes. Neither did any of Bruce’s state-
ments directly implicate defendant in the charged crimes
or shift blame for the crimes to defendant. Indeed, the chal-
lenged statements did not relate directly to the crimes at all.
They revealed, instead, Bruce’s unfavorable views toward
government and law enforcement, which the state offered to
demonstrate his motives in committing the crimes. Bruce’s
out-of-court statements did not, as Bruton requires, “on
their face” incriminate defendant and did not present a risk
of prejudice that was the same as or analogous to the risk
that animated the holding in Bruton. The fact that the state
intended to introduce Bruce’s statements at the joint trial
therefore did not render the joint trial “clearly inappropri-
ate” under ORS 136.060(1) and require the trial court to
order separate trials.16
	        In addition to his Bruton-based claim, defendant
also argued below that the trial court should order separate
trials because the state’s use of Bruce’s out-of-court state-
ments in a joint trial would, in effect, “taint” him “by associ-
ation,” notwithstanding any limiting jury instruction to the
	16
      Defendant separately assigns error to his motion, under Bruton and on
Sixth Amendment grounds, to exclude Bruce’s out-of-court statements. Our
analysis above effectively resolves that assignment of error as well.
	 Because the statements do not fall within the Bruton rule, we also need
not decide whether, as the state argues, that rule is now limited by Crawford
v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004). See, e.g.,
U.S. v. Smalls, 605 F3d 765, 768 n 2 (10th Cir 2010) (“the Bruton rule, like the
Confrontation Clause upon which it is premised, does not apply to nontestimonial
hearsay statements”; citing representative federal cases).
392	                             State v. Turnidge (S059155)

contrary. Specifically, defendant argued that, given his close
relationship with Bruce—that is, because he was Bruce’s
son and coworker—the jury might conclude that defendant
took seriously, or even endorsed, Bruce’s beliefs. Defendant’s
argument was, in essence, that Bruce’s out-of-court expres-
sions of his anti-government sentiments likely would not be
relevant and admissible against defendant if he were sep-
arately tried and admitting them in a joint trial would be
so highly prejudicial that the jury could not be expected
to follow the court’s instructions to consider that evidence
against only Bruce.
	        We do not agree that the earlier statements that
Bruce had made were irrelevant to defendant’s guilt. Here,
the state had ample evidence that Bruce and defendant had
committed the crimes together. If, then, the state could prove
that Bruce had a motive to commit the crimes (i.e., his anti-
government, anti-law enforcement, and anti-establishment
sentiments), that would be relevant to show why the crimes
were committed, even if the motivation were Bruce’s, and
defendant’s role were that of a follower or an aide who did
not share those views. If that evidence “tainted” defendant
in some way, as he argued in support of severance, the taint
was not an impermissible one. See generally Zafiro v. United
States, 506 US 534, 540, 113 S Ct 933, 122 L Ed 2d 317
(1993) (right to fair trial does not include right to exclude
codefendant’s testimony if relevant). And even if the taint
were in some way impermissible, it is the kind of concern
that we have long trusted limiting jury instructions to over-
come. See generally State v. Reyes, 209 Or 595, 630-31, 308
P2d 182 (1957) (when evidence is admissible for limited pur-
pose, such as to show motive, court should give instruction
on request to minimize possible use of evidence by jury for
inadmissible purpose).
	        But more to the point, defendant’s claim in that
regard does not meet the “clearly inappropriate” standard
for severance under ORS 136.060(1). As we have discussed,
that standard is not implicated by every evidentiary dis-
pute over relevancy and potential prejudice that inevitably
may arise at trial. Rather, the standard is triggered by the
kind of circumstances that, in advance of trial, a court can
foresee will lead to a legal error of sufficient gravity that it
Cite as 359 Or 364 (2016)	393

could likely result in either a mistrial or a reversal, followed
by separate retrials. Evidence that Bruce held fervent anti-
government sentiments, and harbored a motive to commit
the crimes as a result, does not satisfy that standard.
	        The same is true of the final argument that defen-
dant made in support of his motion for severance and that he
renews on review. He argued that his and Bruce’s “respec-
tive positions at trial may conflict and may require mutu-
ally exclusive defenses, of such a nature that, in viewing the
totality of the evidence in the case, the defendant will be
denied a fair trial[.]” See generally Rhone v. United States,
365 F2d 980, 981 (DC Cir 1966) (generally noting scenario
in which defenses are irreconcilable, presenting danger that
jury will unjustifiably infer that conflicting defenses demon-
strates guilt of both defendants). By way of example, defen-
dant cites aspects of his and Bruce’s opening statements,
in which his counsel asserted his innocence and pointed to
Bruce as the lone perpetrator, while Bruce’s counsel asserted
that defendant was not truthful. Those aspects of the trial
record, according to defendant, show that he and Bruce took
“inconsistent and hostile positions at trial,” and each was
attempting to use the state’s evidence “to exculpate himself
and inculpate the other.”17
	        In essence, however, the only inconsistency in their
defenses was that defendant’s theory of the case was that
Bruce had committed the crimes without defendant’s assis-
tance, while Bruce, through his not-guilty plea, effectively
claimed that he was not involved in the crimes at all. If
that kind of inconsistency in the defenses of jointly charged
defendants were to render joint trials “clearly inappro-
priate,” then few, if any, joint trials could ever go forward
under ORS 136.060(1). It would be the rare case in which
jointly tried defendants would not have different theories
as to their respective roles in and culpability for the crime.
Thus, it would be the usual case, not the exceptional one, in
which jointly charged defendants could point to the tension

	17
        In making this argument, defendant relies on aspects of the record from
trial, rather than the motion for severance, which, as discussed, is not part of a
trial court’s consideration when ruling on a motion for severance. In any event,
we reject defendant’s argument for the reasons explained in the text below.
394	                                       State v. Turnidge (S059155)

that might arise from their inconsistent theories and the
evidence that they may present. If we were to deem joint
trials to be “clearly inappropriate” in every such case, the
statute would establish a presumption in favor of joint trials
but then except the usual case to which the presumption
would otherwise apply. In effect, the exception would be so
broad as to swallow the presumptive rule—a result that we
do not think the voters intended when they enacted the cur-
rent version of ORS 136.060(1). The statute requires more,
and the kind of “inconsistency” in the defenses advanced by
jointly charged defendants on which defendant relies in this
case does not satisfy it.
	       For those reasons, we conclude, as did the trial court,
that a joint trial of defendant and Bruce was not “clearly
inappropriate” in these circumstances, ORS 136.060(1).
Consequently, the trial court did not err in denying defen-
dant’s motion to sever.18
B.  Motion to Suppress Statements Made to Law Enforcement
    (Assignment No. 6)
	       Before trial, defendant moved to suppress the state-
ments that he made to law enforcement when he was ques-
tioned at his home, arguing, among other things, that those
statements were obtained in violation of his right to coun-
sel under Article I, section 12, of the Oregon Constitution.19
In particular, defendant argued that he was in custody or
circumstances sufficiently compelling to be the equivalent
of custody, and, while being questioned in that setting, he
invoked his derivative right to counsel, which required law
enforcement to immediately cease questioning. The trial
court denied that motion, reasoning that the surrounding
	18
        Defendant also argues that the trial court’s failure to sever his trial from
Bruce’s trial violated his fair trial rights under the Sixth Amendment to the
United States Constitution, which applies to the states through the Fourteenth
Amendment, Pointer v. Texas, 380 US 400, 85 S Ct 1065, 13 L Ed 2d 923 (1965).
Our analysis of defendant’s so-called Bruton claim under the “clearly inap-
propriate” standard of ORS 136.060(1) necessarily resolves defendant’s Sixth
Amendment argument as well.
	19
        Article I, section 12, of the Oregon Constitution provides that “[n]o per-
son shall be put in jeopardy twice for the same offence [sic], nor be compelled in
any criminal prosecution to testify against himself.” The right to counsel that
Article I, section 12, provides is derivative of the protection against compelled
self-incrimination. State v. Joslin, 332 Or 373, 380, 29 P3d 1112 (2001).
Cite as 359 Or 364 (2016)	395

circumstances had not been compelling and that, in all
events, defendant knowingly and voluntarily waived his
rights and chose to speak with law enforcement.
	         On review, defendant renews his argument, but only
in part. As he did below, he argues that the circumstances
were sufficiently compelling to trigger his derivative right
to have counsel present, if he invoked that right, before law
enforcement could continue questioning him. Beyond that,
however, he does not focus on whether he adequately waived
his rights and responded to questions. Rather, his princi-
pal argument on review is that he equivocally—rather than
unequivocally—invoked his right to counsel, which required
law enforcement to clarify whether he wanted to continue
speaking without counsel present before asking him further
investigatory questions. As we explain below, we agree with
the trial court that the circumstances were not compelling
within the meaning of Article I, section 12, and defendant’s
derivative right to counsel therefore was not triggered. As a
result, law enforcement was not required to cease or narrow
the questioning, contrary to defendant’s position. The trial
court therefore correctly denied defendant’s motion.
    1.  Additional facts
	        We state the facts consistently with the trial court’s
factual findings and its denial of defendant’s motion to sup-
press. State v. Shaff, 343 Or 639, 641, 175 P3d 454 (2007). To
the extent that the court did not make express findings, we
presume that the court decided the facts in the light most
favorable to the state. Ball v. Gladden, 250 Or 485, 487, 443
P2d 621 (1968).
	       As we described earlier, by December 14, the second
day after the bombing, investigators had identified defen-
dant as a possible suspect, based on both their review of the
Salem Walmart video surveillance footage and defendant’s
association with Bruce, who in turn owned a Chevrolet
LUV pickup truck that matched the truck in the footage.
Detective Troncosco from the Keizer Police Department and
Lieutenant Duvall from the Oregon State Police drove by
defendant’s home on Nolan Lane around 4:00 p.m., and saw
a Chevrolet LUV pickup truck, which matched the one in the
396	                             State v. Turnidge (S059155)

Walmart footage, parked in the driveway. They called for
back-up; other officers arrived; and, with the permission of
adjacent and nearby neighbors, two officers secured vantage
points to observe the home, and others established a dis-
tant perimeter. At 4:23 p.m., Troncosco and Duvall parked
Duvall’s unmarked car in front of defendant’s home and
approached the door. One officer observing the home from
a distant vantage point briefly drew his weapon to “cover”
them, but neither he nor his weapon were visible from defen-
dant’s home. At that point, none of the other officers could be
seen from defendant’s home.
	        Troncosco and Duvall, both wearing plain clothes,
knocked on the door. Defendant answered. Troncosco and
Duvall explained that they were investigating the Woodburn
bank bombing and were talking to individuals who owned
pickup trucks. They asked defendant if they could speak
with him privately. Defendant agreed to talk, stated that
they could talk on the porch, and he stepped outside and
closed the door. By then, it was getting dark and snowing,
and it was very cold. Troncosco asked defendant if he would
be willing to speak in Duvall’s unmarked car to get out of
the weather. Troncosco was also concerned that, with the
door shut, he and Duvall could not see whether anyone was
inside the house near the door, which presented a safety con-
cern. Defendant agreed to speak in Duvall’s car, went back
inside his house for a few moments, and returned wearing a
jacket.
	        Before the three walked to Duvall’s car, Troncosco
told defendant that he was not under arrest and asked if
he had any weapons. Defendant responded that he was
unarmed, and he consented to be searched for weapons.
Duvall quickly patted down the outside of defendant’s cloth-
ing and confirmed that he was unarmed. Duvall then entered
the car on the driver’s side, defendant sat in the front passen-
ger’s seat, and Troncosco sat in the back seat. Once inside,
defendant asked Troncosco if “he had to talk.” Troncosco
again told defendant that he was not under arrest, that he
did not have to speak with them, and that he was free to
leave. Troncosco also told defendant that, although he was
not under arrest, Troncosco would advise him of his rights,
Cite as 359 Or 364 (2016)	397

and he then read defendant his Miranda rights. Defendant
acknowledged that he understood those rights and stated
that he had no questions.
	        Troncosco began by verifying defendant’s identity,
confirming his name and asking other identifying informa-
tion. About then, one or two law enforcement officers walked
in from the more distant areas, but without weapons drawn.
Also by then, defendant’s fiancée, who had been in the home,
had opened the door to watch as defendant was interviewed.
One or both of the officers who had emerged from the more
distant areas approached defendant’s front porch, and stood
by, casually speaking with defendant’s fiancée. Defendant’s
fiancée did not see any officer’s weapon drawn.
	        At that point, Troncosco asked defendant if he
would be willing to speak at the office because they were
not in a good setting to conduct the interview. Defendant
replied, “This sounds serious. Do I need an attorney?”
Troncosco told defendant that he could not offer legal
advice and that defendant would need to make that deci-
sion himself. Troncosco again explained that law enforce-
ment was contacting several owners of similar trucks and
that he was not the only person being contacted. Defendant
asked Troncosco a second time whether he should have an
attorney, adding that he had nothing to do with the bomb-
ing. Troncosco again told defendant that defendant had to
decide for himself whether he wanted an attorney present.
Troncosco added that the police had spoken with other peo-
ple who had not thought it necessary to have an attorney,
but emphasized that defendant needed to answer that ques-
tion for himself.
	        Defendant then proceeded to talk to Troncosco and
Duvall in Duvall’s car. In response to questions, defendant
explained, among other things, that he had been driving
the blue Chevrolet LUV pickup truck, but Bruce owned it;
that defendant had a biodiesel business with Bruce that
involved, for defendant, welding and painting metal; and
that defendant was trying to get a second job because he and
Bruce needed money to expand. Defendant also stated that
he had been in Bend, Medford, and Eugene on the day of the
bombing, driving Bruce’s larger white pickup truck, and had
398	                                    State v. Turnidge (S059155)

learned of the bombing through news coverage. Finally, in
response to questions about whether he owned a computer,
defendant told Troncosco and Duvall that he had owned a
laptop, but it had been stolen and he had not reported the
theft.20
	        After speaking with defendant for about 18 min-
utes, Duvall told defendant that he and Troncosco would
like to look in his truck. Defendant agreed, saying, “I don’t
care; have at it” and “be my guest.” Troncosco and Duvall
gave defendant a consent-to-search card, which he read and
signed, stating as he signed it, “I’ve got nothing to hide.” The
three left Duvall’s car and walked to the truck. Defendant
opened the truck, and Troncosco photographed it while
defendant stood nearby in the driveway, smoking a ciga-
rette. After photographing the truck, Troncosco and Duvall,
out of defendant’s earshot, agreed that the truck was the one
in the surveillance footage.
	        Troncosco and Duvall then walked over to defen-
dant, who was still standing in the driveway, smoking
while it continued to snow. Troncosco told defendant that
the driveway was not a good place to talk and asked if
defendant would go to their office to continue their conver-
sation. Defendant responded that he did not see any need
to continue talking with them because he already had told
them everything and had not been involved in the bomb-
ing. Troncosco replied that he had some photographs back
at his office that defendant might be interested in seeing.
Defendant then said, “[T]his sounds serious” and stated
that he should have an attorney if he were going to do that.
Troncosco asked defendant if he already had an attorney;
defendant told Troncosco that he would get one and that
they then could talk the next day. Troncosco confirmed that
defendant did not want to speak any further without hav-
ing an attorney and then advised defendant that he was
being placed under arrest. Troncosco handcuffed defendant
and had him sit in one of the patrol cars while police contin-
ued their on-site investigation.

	20
        By the time that Troncosco and Duvall asked defendant about owning a
computer, law enforcement knew that the TracFones had been remotely activated
over the internet.
Cite as 359 Or 364 (2016)	399

	        Before trial, defendant moved to suppress all
statements that he made to Troncosco and Duvall, argu-
ing (among other things) that, when he made those state-
ments, he was in a police-dominated atmosphere that ren-
dered the circumstances compelling, thus implicating his
right to remain silent and his derivative right to counsel,
under Article I, section 12. As earlier described, the trial
court concluded that the circumstances were not compel-
ling and that, even if they were, defendant waived his
rights up until the point when, upon arrest, he unequiv-
ocally invoked his right to counsel under Article I, sec-
tion 12.21 We review the trial court’s denial of defendant’s
motion to suppress for legal error. State v. Ehly, 317 Or 66,
75, 854 P2d 421 (1993).
     2.  Analysis
	        Article I, section 12, provides, in part, that “[n]o
person shall be * * * compelled in any criminal prosecution
to testify against himself.” Although by its terms that pro-
vision is a guarantee against self-incrimination, encom-
passed within it is a derivative or adjunct right to have
the advice of counsel in responding to police questioning.
See State v. Meade, 327 Or 335, 339, 963 P2d 656 (1998)
(right to assistance of counsel during custodial interroga-
tion arises out of Article I, section 12, right against self-
incrimination); see generally State v. Randant, 341 Or 64,
70, 136 P3d 1113 (2006), cert den, 549 US 1227 (2007)

	21
       Defendant makes two additional arguments on direct review that we
decline to consider. First, he argues that both his verbal expressions and other
observable conduct while at the sheriff’s office amounted to “statements” that
followed impermissible questioning after he unequivocally invoked his derivative
right to counsel. At trial, however, defendant did not mention in his motion to
suppress any verbal expression or conduct after the conversations at his home
generally, or at the sheriff’s office in particular. Because his argument in that
regard is unpreserved, we do not consider it.
	    Second, before the trial court and again on direct review, defendant argues
that the statements at issue were obtained in violation of the Fifth Amendment
to the United States Constitution, as well as Article I, section 12. On review,
defendant only briefly cites the Fifth Amendment and does not offer any devel-
oped argument in support of his reliance on it. We therefore do not address it.
See State v. Thompson, 328 Or 248, 254 n 3, 971 P2d 879, cert den, 527 US 1042
(1999) (court refused to address state or federal constitutional arguments in part,
because, “on review, defendant has failed to present any thorough and focused
constitutional analysis”).
400	                            State v. Turnidge (S059155)

(discussing and comparing right to counsel as derived from
both Article I, sections 11 and 12, of Oregon Constitution).
The right to counsel that flows from Article I, section 12,
applies only when a suspect is placed in “full custody” or
when circumstances “create a setting which judges would
and officers should recognize to be ‘compelling,’ ” i.e., the
same “compelling circumstances” that give the right to
Miranda protections more generally. State v. Smith, 310 Or
1, 7, 791 P2d 836 (1990) (internal quotation marks omit-
ted). To protect that derivative right to counsel, when a sus-
pect in police custody or compelling circumstances asks to
speak to a lawyer or have a lawyer’s assistance, all police
questioning must cease. State v. Charboneau, 323 Or 38,
54, 913 P2d 308 (1996), cert den, 520 US 1233 (1997); State
v. Montez, 309 Or 564, 572, 789 P2d 1352 (1990). When,
however, the request is “equivocal”—that is, when it is
unclear or ambiguous if the suspect is unwilling to answer
any questions without counsel present—police are limited
to asking follow-up questions to clarify whether the suspect
meant to invoke his or her right to counsel. Charboneau,
323 Or at 55-56; Montez, 309 Or at 572. In either case, noth-
ing prevents the suspect from thereafter waiving the right
to have counsel present during that or later interrogations.
Meade, 327 Or at 339.
	        Here, defendant contends that, although he was not
in full custody at the time, his encounter with Troncosco
and Duvall effectively placed him in “compelling circum-
stances,” thus triggering his rights under Article I, section
12, including a derivative right to counsel. In that regard,
it is helpful to clarify the limited nature of the issue that
defendant raises. The issue is not whether Troncosco and
Duvall adequately advised defendant of his Miranda rights.
They read defendant his Miranda rights, explaining that he
was not under arrest and was free to leave; they thus appear
to have opted to advise defendant of those rights regardless
whether the warnings were constitutionally required. On
review, defendant does not challenge the adequacy of those
warnings or whether he voluntarily and knowingly waived
them.
	      Whether the circumstances were compelling for
purposes of Article I, section 12, nevertheless is in dispute
Cite as 359 Or 364 (2016)	401

because, if they were, then defendant had a derivative right
to counsel that attached when he was questioned. That would
mean that, if defendant invoked his right to have counsel
present while being questioned, Troncosco and Duvall were
obligated either to cease asking questions entirely or to clar-
ify whether defendant wanted an attorney present for ques-
tioning, depending on whether the invocation was equivo-
cal or unequivocal. On the other hand, if the circumstances
were not compelling, such that the derivative right to coun-
sel under Article I, section 12, did not attach, Troncosco and
Duvall were entitled to continue to ask defendant possibly
incriminating questions, as long as they did not do so in a
way that rendered his responses involuntary. Cf. State v.
McAnulty, 356 Or 432, 459, 338 P3d 653 (2014), cert den, 577
US ___, 136 S Ct 34 (2015) (analyzing voluntariness of state-
ments separately from whether suppression required based
on Miranda violation). Thus, the predicate issue is whether
defendant was questioned under circumstances that were,
for constitutional purposes, compelling. Only if they were
must we consider whether defendant invoked his right to
have counsel present in a way that required Troncosco and
Duvall either to cease or limit their questioning.22
	22
       At trial, defendant argued that his request for counsel was unequivo-
cal, obligating police to cease all questioning. He did not further argue that, if
the trial court determined his invocation instead to be equivocal—in the sense
that Troncosco and Duvall should have been unsure whether he was or was not
invoking counsel—then Troncosco and Duvall exceeded the scope of permissible
questioning by failing to first clarify whether defendant in fact was unequivo-
cally invoking counsel. Although the trial court at one point characterized defen-
dant as “equivocal[ly]” asking for counsel, the trial court did so in the context
of finding that defendant had made a knowing and voluntary Miranda waiver.
Defense counsel expressly disagreed with the trial court that defendant had, in
that sense, “equivocal[ly]” invoked his right to counsel. The trial court also found
that defendant had been being “coy” and playing a “coy game” with Troncosco and
Duvall. In context, we understand the trial court to have found that defendant
was deliberately expressing ambivalence about wanting an attorney in an effort
to determine the degree to which he was a suspect. Indeed, defendant expressly
argued as much in his written memorandum to the trial court in support of his
motion to suppress. At no point, in either his written or oral submissions, did
defendant argue that his questions about obtaining an attorney were equivocal
invocations in the sense that law enforcement could, in response, seek only to
clarify whether he was affirmatively invoking his right to counsel.
	 On review, defendant now argues both that he unequivocally invoked his
derivative right to counsel (so that all questioning had to cease) or, alternatively,
did so “equivocally”—that is, ambiguously—such that Troncosco and Duvall were
required to clarify his intent. As we will explain, we conclude that the circum-
stances were not compelling. We therefore do not consider whether defendant’s
402	                                    State v. Turnidge (S059155)

	         To determine whether the circumstances were com-
pelling for purposes of Article I, section 12, the overarch-
ing issue is whether the questioning occurred in a “police-
dominated atmosphere.” State v. Roble-Baker, 340 Or 631,
641, 136 P3d 22 (2006). The answer to that question turns
on “how a reasonable person in the suspect’s position would
have understood his or her situation.” Shaff, 343 Or at 645.
Relevant factors in that regard are the location of the encoun-
ter, the length of the encounter, the amount of force exerted
on the suspect, and the suspect’s ability to terminate the
encounter. Roble-Baker, 340 Or at 640-41. Those factors are
not exhaustive or applied mechanically; ultimately, this court
must consider the totality of the circumstances to determine
whether “compelling circumstances” existed. Id. In arguing
that the circumstances in this case were compelling, defen-
dant principally relies on the location of his encounter, the
number of officers on the scene, his inability to terminate the
encounter, and what he characterizes as coercion.
	         We turn to an examination of the facts in light of
the principles set out above, mindful that we are bound by
the trial court’s findings if there is evidence to support them.
Shaff, 343 Or at 648. Troncosco and Duvall, wearing plain
clothes, first spoke with defendant at his front door and on his
front porch. A brief time passed, and the three then went to
Duvall’s unmarked patrol car. The car was parked directly in
front of defendant’s home, and defendant sat in the front, as
opposed to the back, of the car. From there, the three moved
to defendant’s driveway, where Troncosco and Duvall photo-
graphed defendant’s truck while defendant stood nearby in
his driveway, smoking. He later was formally arrested in the
driveway. Defendant’s entire encounter with Troncosco and
Duvall occurred within view of his fiancée and at or within
close proximity to his home, a place familiar to him. That fact
reduces significantly the likelihood that the circumstances
were inherently compelling for purposes of the Article I, sec-
tion 12, analysis. See Shaff, 343 Or at 646 (so explaining;
citing representative cases); see also State v. Carlson, 311 Or

alternative argument about the ambiguous nature of his invocation is properly
before us or—even assuming that it is—whether defendant’s inquiries about
whether he should get an attorney were sufficient to require Troncosco and
Duvall to ask only clarifying questions of defendant.
Cite as 359 Or 364 (2016)	403

201, 204-05, 808 P2d 1002 (1991) (questioning in familiar
setting of parking lot of suspect’s apartment not inherently
compelling). Defendant counters that evidence by urging
that Troncosco and Duvall “isolated” him from his home,
which is characteristic of compelling circumstances. It was
defendant, however, who declined Troncosco’s and Duvall’s
request to speak in his home, and defendant who agreed to
be interviewed in Duvall’s car to get out of the cold. In other
words, defendant made the choice to speak privately with
Troncosco and Duvall somewhere other than in his home.
That is not the kind of police-forced isolation that increases
the potential for the circumstances to be compelling.
	        Equally important to the analysis is the nature of
Troncosco’s and Duvall’s interactions with defendant. The
trial court expressly found that Troncosco and Duvall were
“relaxed” in their exchange with defendant, and it implic-
itly found that they were not overbearing. Consistently with
those findings, defendant frequently set boundaries on his
interaction with Troncosco and Duvall, and they readily
accepted the boundaries that he set. See State v. Johnson,
340 Or 319, 332, 131 P3d 173, cert den, 549 US 1079 (2006)
(setting not compelling, partly because defendant exercised
control over interrogation). For example, in responding to
Troncosco’s and Duvall’s request to enter his home to speak
with him, defendant instead said he would speak to them
on the porch, and Troncosco and Duvall agreed. Then, when
Troncosco and Duvall suggested that they move to Duvall’s
unmarked patrol car to get out of the dark and snowy weather,
defendant agreed to that suggestion, but he declined their
request to go the state police office to talk, again drawing a
boundary that Troncosco and Duvall respected. That give-
and-take dynamic between defendant and Troncosco and
Duvall continued up to the point when defendant told them
that he would not speak with them further until he first
consulted an attorney. In short, nothing about Troncosco’s
and Duvall’s dialogue with or behavior towards defendant
was overbearing and, in that sense, coercive.
	        Defendant argues, however, that the atmosphere was
police-dominated because multiple officers had surrounded
the perimeter area near defendant’s home, and those officers
were armed and had their weapons drawn while Troncosco
404	                                      State v. Turnidge (S059155)

and Duvall talked with defendant. The trial court specifi-
cally found, however, that the officers who had secured the
perimeter, and the one officer who had drawn his weapon to
cover Troncosco and Duvall from a distant vantage point,
had not been visible to defendant. The record provides ample
support for that finding. Defendant’s encounter with law
enforcement was limited to his interactions with Troncosco
and Duvall, with the possible exception of the one or two offi-
cers who might have become visible to defendant while he
was in Duvall’s car.23 That fact alone does not compel a con-
clusion that the circumstances were compelling.
	        Defendant also urges that the circumstances were
compelling because he was unable to terminate his encoun-
ter with Troncosco and Duvall. The record provides no sup-
port for that assertion, especially when viewed—as we are
bound to view it—in the light most favorable to the trial
court’s ruling. The atmosphere was, as the trial court found,
relaxed. And, as we have described, Troncosco and Duvall
were not overbearing and, to the contrary, they respected
defendant’s preferences and the limitations that he set on
their encounter. Beyond that, Troncosco and Duvall repeat-
edly told defendant that he did not have to talk with them.
During their initial encounter with defendant at the front
door, for example, Troncosco and Duvall set the tone by ask-
ing defendant if he would speak with them and then later
asking defendant if he would do so in Duvall’s car, with
defendant agreeing to both requests. Then, before entering
Duvall’s car, Troncosco advised defendant that he was not
under arrest. Again, once in the car, Troncosco reminded
defendant that he did not have to speak with them and was
free to leave, and he also gave defendant formal Miranda
warnings, and did so while emphasizing to defendant that
he was not, however, under arrest.24 Defendant was thus
	23
        The trial court expressly found that, other than the one officer who had
drawn his weapon to cover Troncosco and Duvall, none of the officers on the scene
had drawn their weapons at any time; it further found that defendant’s fiancée
did not see any police weapons during the encounter. The court did not make any
finding, however, as to whether defendant saw either of the officers who walked
in from the more distant areas.
	24
        Likewise, although defendant does not expressly so argue, Troncosco’s rec-
itation of Miranda rights did not transform the nature of the encounter from one
that was not compelling into one that was. The reading of Miranda rights is a
Cite as 359 Or 364 (2016)	405

fully aware that he could have terminated the interview at
any point, and Troncosco and Duvall did nothing to suggest
that, had defendant attempted to stop answering questions,
they would have ignored him or pressured him into continu-
ing. Nothing in their actions or attitudes belied their words.
The trial court, in making its factual findings, expressly
characterized defendant as having been “coy,” attempting
to glean information about the investigation. The record
as a whole, as well as in combination with the trial court’s
express and implicit findings, provides no basis to conclude
that defendant was unable, due to law enforcement coercion
or overbearance, to terminate the encounter if he so desired.
	        Finally, in arguing that the circumstances were
compelling, defendant points to the fact that Duvall
searched defendant for weapons. That argument again
misses the mark. Duvall quickly patted down the outside
of defendant’s clothing with defendant’s consent, which had
been obtained after Troncosco had informed defendant that
he was not under arrest and that the search would be lim-
ited to a weapons check. After that patdown, defendant sat,
unrestrained, in the front seat of an unmarked patrol car
parked in front of his home, speaking with Troncosco and
Duvall, who were dressed in plain clothes. Viewed in con-
text, Duvall’s patdown search did not convert the otherwise
noncompelling situation into a compelling one.
	        Based on the totality of the circumstances, we con-
clude that a reasonable person in defendant’s position would
not have perceived the circumstances of the encounter
with Troncosco and Duvall to be compelling for purposes
of Article I, section 12. The encounter occurred at a place
familiar to defendant, in a relatively relaxed and noncoercive
environment, with repeated expressions by Troncosco and
Duvall that defendant had the ability to end the encounter
whenever he wanted, and with repeated instances in which
defendant exercised control over the terms of the encounter.

factor that weighs in favor of concluding that a defendant subject to police inter-
rogation understands his or her ability to terminate questioning and to other-
wise seek counsel rather than cooperate with law enforcement. See, e.g., State
v. Jarnagin, 351 Or 703, 722-24, 277 P3d 535 (2012) (advice of Miranda rights
effective not only to ensure knowing and voluntary waiver of right to remain
silent and to have assistance of counsel, but also to overcome taint of earlier
interrogation made in compelling circumstances without Miranda warnings).
406	                                       State v. Turnidge (S059155)

The trial court therefore did not err in denying defendant’s
motion to suppress.
C.  Excusal of Jurors for Cause and Destruction of Completed
    Jury Questionnaires (Assignment Nos. 18-41, 44)
	During voir dire, the trial court excused several
jurors for cause. Following voir dire, at the court’s direc-
tion, the completed juror questionnaires that had been used
during voir dire were destroyed. Defendant assigns error
to the trial court’s excusal of three prospective jurors and
also to the destruction of the questionnaires. With regard to
excusal of the three prospective jurors, defendant contends
that the court improperly excused those jurors because
of their general objections to the death penalty, in viola-
tion of the rule announced in Witherspoon v. Illinois, 391
US 510, 88 S Ct 1770, 20 L Ed 2d 776 (1968), under the
Sixth Amendment to the United States Constitution.25 With
regard to destruction of the questionnaires, which contained
information about the prospective jurors’ personal back-
grounds, as well as, to some degree, their views on the death
penalty, defendant argues that the destruction violated the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution. We begin by discussing the
court’s excusal of the three prospective jurors and then turn
to the court’s decision to destroy the questionnaires.
      1.  Excusal of prospective jurors Hamlin, Porter, and
          Burns
	        As noted above, defendant raises a Witherspoon
challenge to the trial court’s excusal of three prospective
jurors—Hamlin, Porter, and Burns. In Witherspoon, the
Supreme Court held that, under the Sixth Amendment right
to an impartial jury, “a sentence of death cannot be carried
out if the jury that imposed or recommended it was chosen
by excluding veniremen for cause simply because they voiced
general objections to the death penalty or expressed consci-
entious or religious scruples against its infliction.” 391 US at
	25
          The Sixth Amendment provides, in part, “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury
* * *.” The Sixth Amendment applies to the states through the Due Process Clause
of the Fourteenth Amendment. Duncan v. Louisiana, 391 US 145, 149, 88 S Ct
1444, 20 L Ed 2d 491 (1968).
Cite as 359 Or 364 (2016)	407

522. The Court further noted that a prospective juror could
constitutionally be excused for cause if it was “unmistak-
ably clear” that he or she would “automatically vote against
the imposition of capital punishment without regard to any
evidence that might be developed at the trial.” Id. at 522
n 21. In a later case, however, the Court retreated from the
“unmistakably clear” formulation in Witherspoon because of
its practical difficulties as a legal standard. Wainwright v.
Witt, 469 US 412, 424, 105 S Ct 844, 83 L Ed 2d 841 (1985).
Instead, the Court explained that “a juror may not be chal-
lenged for cause based on [the juror’s] views about capital
punishment unless those views would prevent or substan-
tially impair the performance of [the] duties as a juror in
accordance with [the juror’s] instructions and * * * oath.” Id.
at 420 (quoting Adams v. Texas, 448 US 38, 45, 100 S Ct
2521, 65 L Ed 2d 581 (1980) (internal quotation marks and
emphasis omitted)). We thus must determine whether the
trial court abused its discretion in applying that standard
in this case. See State v. Lotches, 331 Or 455, 473-74, 17 P3d
1045 (2000), cert den, 534 US 833 (2001) (applying abuse
of discretion standard of review to determine whether trial
court erred in excusing jurors who expressed personal oppo-
sition to death penalty).
	        Before defendant’s trial, as part of voir dire, the
venire of prospective jurors was notified that the state
was seeking the death penalty and that, if the jury found
defendant guilty, the jury would be required to answer four
additional questions during the penalty phase to determine
whether defendant would receive the death penalty, includ-
ing a fourth question that asked whether defendant “should
receive a death sentence.” See ORS 163.150(1)(b)(D) (jury
in penalty phase must decide whether defendant should
receive death sentence). The parties and the trial court
then asked specific prospective jurors questions designed
to determine if they would be able to follow the law during
the penalty phase. Those questions led the court to excuse
several prospective jurors, either because their views were
too strongly in favor of or against the death penalty. On
review, defendant challenges the court’s excusal of three
of those prospective jurors—Hamlin, Porter, and Burns—
contending that they voiced only general moral objections to
408	                                State v. Turnidge (S059155)

the death penalty that did not rise to the level of “substan-
tially impair[ing] the performance” of their duties as jurors.
Witt, 469 US at 420. We examine each of those jurors’ state-
ments and answers during voir dire in turn.
	       We begin with prospective juror Hamlin. Defense
counsel began voir dire by discussing a number of topics,
such as the presumption of innocence, jury unanimity,
and exposure to pretrial publicity. Defense counsel then
asked Hamlin about his view of the death penalty. Hamlin
responded, “I disagree with the death penalty on ethical
grounds. I * * * believe that people are fallible, and even 12
people could be wrong.” Counsel followed up by asking, “I’ve
read your juror questionnaire, and I guess I view it as—
what what’s important here is, do you think you can follow
the law?” Hamlin and defense counsel then had the follow-
ing exchange:
   	 “JUROR (Hamlin):  Maybe I’m not understanding you
   here, * * * or not understanding the question, but isn’t [ques-
   tion] No. 4[, which asks whether a defendant should receive
   a death sentence, ORS 163.150(1)(b)(D)] subjective[?]
   	 “[DEFENSE COUNSEL]:  You’re absolutely right, it is
   a subjective question. There’s no burden of proof. It’s up to
   you to decide. But you have to follow the law, and what that
   means, I think, is that you have to consider what you’ve
   heard. You can’t go into that jury room and say, Okay, my
   morals say I can’t vote for the death penalty and thus I’m
   going to just—no matter what I’ve heard, I’m just going to
   answer No. 4 ‘no.’ Does that make sense, what I’m saying?”
   	 “JUROR (Hamlin):  Yeah, kind of. I don’t know how I
   could answer that question. I’ve never been placed in that
   situation. * * *
   	 “[DEFENSE COUNSEL]:  I guess as you’ve taken an
   oath already, I think that oath is to try your best to follow
   the law, and I guess what I’m hearing you saying is that
   you would try to do that.
   	 “JUROR (Hamlin):  I * * * suppose you could say that,
   yes.”
After that exchange, defense counsel asked other prospec-
tive jurors about the questions that they potentially would
Cite as 359 Or 364 (2016)	409

face during the penalty phase. Counsel eventually returned
to Hamlin:
  	 “[DEFENSE COUNSEL]:  Mr. Hamlin, what about
  those questions? I think you’ve told me a little bit about
  your views on the death penalty. In thinking about it now,
  do you think you could follow through?

  	 “JUROR (Hamlin):  To be honest, I * * * don’t know. I
  mean, on one hand, I think following the law is important;
  but on the other hand, if the law tells me I have to put some-
  one to death, that doesn’t sit very well with me.”

(Emphasis added.)
	      One of the prosecutors later followed up on Hamlin’s
answers:
  	 “[PROSECUTOR]:  You also indicated on your jury
  questionnaire that you are opposed to the death penalty,
  and if I understand it, it is not for religious reasons.

  	   “JUROR (Hamlin):  No, it is not.

  	 “[PROSECUTOR]:  Now, you’ve obviously heard the
  discussion that I had with [a prior juror who had reserva-
  tions about the death penalty]. When you go back in the
  jury room, if you find the defendant guilty of aggravated
  murder—the defendants, I should say, in this case, either
  one or both—those are the four questions that you’re going
  to answer. Could you ever impose a death sentence, know-
  ing that you would have to answer all four of those ques-
  tions ‘yes’?

  	   “JUROR (Hamlin):  I believe it is possible that I could.

  	 “[PROSECUTOR]:  On your jury questionnaire you
  specifically indicated that you believed it was possible if the
  prosecution made—I think the words you used were * * * an
  impassioned argument.

  	   “JUROR (Hamlin):  Emotional, I believe.

  	 “[PROSECUTOR]: Emotional. What if the judge
  instructs you, and I think he will, that essentially emotion
  doesn’t play a part in this? You are to consider the evidence
  dispassionately; that means without passion. Okay? In
410	                                State v. Turnidge (S059155)

   other words, you can’t be emotional. You can’t be emotional
   in favor of the victims. You can’t be emotional in favor of the
   defendants. Okay?
   	 “Knowing that, and the fact that that is the law, that
   you would have to consider this without emotion, would you
   be able to do so? Would you be able to deliberate?
   	   “JUROR (Hamlin):  No.
   	 “[PROSECUTOR]: Okay, would it be fair to say then,
   sir, that if you know you cannot consider emotion, you have
   to render your verdict dispassionately, that you would not be
   able to follow the law as to those four questions because of
   your own personal beliefs regarding the death penalty?
   	   “JUROR (Hamlin):  I believe that’s highly likely.”
(Emphasis added.)
	        At that point, the prosecutor asked that Hamlin
be excused for cause. The trial court then asked Hamlin
directly, “Are you saying you won’t follow the law as I instruct
you?” Hamlin replied, “I don’t know.” After seeking further
clarification from Hamlin about whether he understood the
issue, the court asked, “Are you saying you can’t do your
job?” Hamlin replied, “I’m saying I don’t think I could vote
to put a man to death.” The court then inquired again about
Hamlin’s ability to follow the law:
   	 “JUROR (Hamlin):  I think I could consider the * * *
   points in question four, but I don’t know if that would ever
   lead me to a response of ‘yes.’
   	 “THE COURT:  And why is that? Because you just
   know what you want the answer to be before you have the
   facts to support it?
   	   “JUROR (Hamlin):  I suppose so, yes.
   	 “THE COURT:  And do you think that’s appropriate as
   a * * * citizen and your obligation under the law?
   	 “JUROR (Hamlin):  When it comes to the death penalty,
   I suppose so.”
(Emphasis added.) The court then excused Hamlin for cause.
	      On review, defendant urges that Hamlin’s answers
were sufficiently equivocal to preclude his excusal from a
Cite as 359 Or 364 (2016)	411

death penalty jury. We disagree. Hamlin’s answers during
voir dire reflected that, for sincere moral and ethical reasons,
he was opposed to the death penalty. That fact alone is not
disqualifying. Indeed, the point of the fourth question under
ORS 163.150(1)(b) (whether the defendant “should receive
a death sentence”) is to have each juror, in deciding the
appropriate punishment, view the facts of the crime and the
defendant’s culpability through the prism of the juror’s per-
sonal moral and ethical beliefs. In doing that, however, each
juror must be able to apply the law and, true to the oath that
the jurors take, come to a decision within the boundaries
that the law sets. If a juror—whether in favor of or against
the death penalty on principle—holds such strong ethical or
moral views that the juror’s conclusion is effectively foregone,
no matter the law or the evidence in the case, that juror may
be appropriately excused for cause. Witherspoon, 391 US at
522; see also Witt, 469 US at 424 (question is whether juror’s
views would “prevent or substantially impair” performance
of duties as juror).
	         In Hamlin’s case, the voir dire exchanges quoted
above show that Hamlin’s completed juror questionnaire
raised concerns about Hamlin’s ability or willingness to
vote to impose the death penalty. The trial court and both
the prosecutor and defense counsel took pains during voir
dire to clarify Hamlin’s position. Although Hamlin’s position
may have been somewhat equivocal at the outset, as the voir
dire continued, it became unequivocal: Hamlin conceded
that he knew how he would answer the fourth question,
even without knowing the facts or knowing whether, under
the law, his consideration of the facts would support that
answer. And he was candid in saying that, for him, “[w]hen
it comes to the death penalty,” he thought that approach
was appropriate. For that reason, Hamlin did not think that
there were any facts that could lead him to vote “yes” on the
fourth question. Hamlin’s categorical answers provided the
trial court with grounds to conclude that Hamlin’s personal
beliefs would prevent or substantially impair his perfor-
mance of his duties as a juror. Under Witherspoon and Witt,
a prospective juror who takes that position may be excused
from a capital jury for cause, and the trial court therefore
did not abuse its discretion in excusing Hamlin.
412	                              State v. Turnidge (S059155)

	        We reach a similar conclusion as to prospective
juror Porter. During voir dire, in response to defense coun-
sel’s inquiry about the prospective jurors’ general positions
on the death penalty, Porter volunteered, “I cannot make the
decision. Nobody has nobody’s life in their hands.” Defense
counsel noted that, although Porter’s completed question-
naire suggested that Porter opposed the death penalty, she
had answered that nothing would prevent or impair her
ability to follow the trial court’s instructions. Porter reiter-
ated, “I’m saying ‘no’ to the death penalty” and would do so
“regardless of the judge’s instructions.”
	       Later, the trial court suggested that it was not yet
prepared to dismiss Porter for cause because Porter’s state-
ments about whether she could follow the court’s instruc-
tions were inconsistent. The prosecutor then asked Porter if
there were “any way that you could answer ‘yes’ to question
four?” Porter replied, “No.” The prosecutor asked her about
a statement in her questionnaire that she “could not, no
matter what the facts, impose death,” and whether that was
her “answer here today?” Porter stated, “Yes.” The following
exchange then occurred:
   	 “[PROSECUTOR]:  Okay. So again, no matter what
   the facts, no matter the instructions given to you by the
   court, you could not vote ‘yes’ to question four?
   	   “JUROR (Porter):  I think I will answer ‘no.’
   	   “[PROSECUTOR]:  No, you could not.
   	   “JUROR (Porter):  I could not.”
The trial court also addressed Porter, noting her inconsis-
tent answers on the juror questionnaire and asking, “Are
you telling me that you could not impose the death pen-
alty no matter what?” Porter then explained her views and
beliefs at length. Ultimately, Porter maintained that she
would respond “no” to the fourth question, and the court
excused her for cause.
	       The trial court’s decision to excuse Porter, based
on Witherspoon and Witt, is supported by the record, which,
as set out above, contains numerous references to Porter’s
answers on her completed juror questionnaire and several
Cite as 359 Or 364 (2016)	413

lengthy colloquies showing that Porter’s position on the
death penalty would prevent or substantially impair her
performance of her duties as a juror. Under Witherspoon and
Witt, the trial court did not abuse its discretion in excusing
her from the jury.
	        The third juror excused for cause was prospective
juror Burns. As defense counsel during voir dire began to
explore Burns’s ability to sit on a death penalty case, defense
counsel asked, “Mr. Burns, I think from your questionnaire,
I can gather what your views of the death penalty are, so
I’m not going to ask you that question. But I guess my ques-
tion is: Are you able to follow the rules?” Burns replied,
“Absolutely.” Later, the prosecutor talked to the prospec-
tive jurors about the death penalty, focusing in particular
on whether the jurors would be able to answer “yes” to the
fourth question. Burns responded:
   	 “JUROR (Burns):  * * * I’m having * * * a [little] trouble.
   The truth of the matter is that you’ve kind of gone to the
   heart of the matter for me, is * * * you get to this point, and
   the thought of sitting here in judgment of a man on trial
   for his life just frightens the living daylights out of me. I’m
   getting very emotional about it just hearing you talk about
   it.
   	 “[PROSECUTOR]:  It’s better to do this up front than
   to find out at the end—
   	 “JUROR (Burns):  On the other hand, I have tremen-
   dous respect for the law of the land—and I want to say that
   I could say ‘yes’ to question four. And I think I answered in
   my questionnaire that the crime would have to be particu-
   lar[ly] heinous to me in order for me to put a man to death,
   which is what I’m doing, in essence.
   	 “[PROSECUTOR]: Yes.
   	 “JUROR (Burns):  And it would be very, very tough
   for me to make that call. That said, if * * * it was heinous
   enough, I think that I could go to that place, but it scares
   the hell out of me, just saying it to you.
   	 “[PROSECUTOR]:  It shouldn’t be easy for anyone.
   * * * I apologize in advance. I don’t want to press you, but
   * * * this is my last chance to speak to you about this. I want
   to be absolutely sure we consider this from all angles.
414	                               State v. Turnidge (S059155)

  	 “So, you’re on the jury. You’re considering the four ques-
  tions. There’s already been a finding of guilt as to aggra-
  vated murder. All of the other jurors have answered all of
  the questions ‘yes,’ and it’s down to you, and you’re trying
  to make those decisions. And in your heart of hearts, you’re
  convinced that questions one, two and three have been
  proved beyond a reasonable doubt. There is no burden of
  proof on the fourth question. It is simply considering the
  aggravating and mitigating circumstances and that first
  question that it poses: Shall a death sentence be imposed[?]
  Everything is moving forward toward a sentence of death.

  	 “If you were convinced that the answer should be ‘yes’
  to question four, there have been 47 ‘yes’ votes to this point,
  and you hold that life in your hands, do you think you’ll be
  able to do it?

  	    “JUROR (Burns):  I don’t know.

  	    “[PROSECUTOR]:  You * * *

  	 “JUROR (Burns):  I mean, I’m really sort of tripping
  out as you tell this to me, and * * * the safe way is to say
  ‘no,’ but in my head I’m thinking that the right way is to say
  ‘yes.’ You have to follow the law.

  	 “[PROSECUTOR]: Uh-huh. You understand—you
  heard what [defense counsel] said, though, that is, that the
  law is always satisfied with life, and there’s * * * no formu-
  lation of this that ever mandates a sentence of death.

  	 “So, knowing that, knowing that the law will never com-
  pel you to return a verdict of death, and you’re holding * * *
  that last vote—

  	 “JUROR (Burns):  I couldn’t do it, I couldn’t do it.
  I would argue as strong as—first of all, I believe that 30
  years [or] life without parole is a far worse punishment
  than death. I believe putting a man to death in such a sit-
  uation as this, you’re * * * doing him a favor, in kind of a
  macabre sense.

  	 “But I would argue, as strongly as I possibly could with
  my fellow jurors, not to put this man to death, I think.”

(Emphasis added.)
Cite as 359 Or 364 (2016)	415

	        After that line of questioning, the trial court
excused Burns for cause. In response to the trial court’s rul-
ing, defense counsel argued:
   	 “I think the rehabilitation or whatever you want to call
   it was unreasonable by the State. I think [Burns] was clear,
   he could do it. They just kept pounding on him, pounding
   on him, pounding on him.

   	 “One of the things he did say is that it depended on—
   and I’m going to paraphrase[—]as the fourth question
   talks about, any circumstances of the offense, and he talked
   about a heinous offense. So if he considered this a heinous
   offense, he could say ‘yes’ to that. I think that’s what he
   said, and the State just beat him, and that’s when he said
   ‘no.’ * * *”

The court disagreed, stating, “[W]ith regard to Mr. Burns,
whom I already highlighted that I thought was going to be
in, if it came down to the last vote and he was the one, that’s
when he said, ‘No, I won’t do that.’ Which surprised me, but
that—that’s where he was.”
	        The situation with prospective juror Burns differs
somewhat from those of prospective jurors Hamlin and
Porter. Viewed in context, the voir dire quoted above sug-
gests that Burns’s completed juror questionnaire did not
contain answers that either counsel or the court viewed as
likely requiring excusal under Witherspoon (or, at least, that
some clarifying inquiry was required). In fact, based on the
questionnaire alone, the trial court commented that he had
marked Burns as “in,” meaning that the court thought that
Burns’s answers would not disqualify him on that basis.
But, when questioned at length, Burns’s position either
changed or became more apparent to Burns himself as he
attempted to come to terms with how he in fact would feel
about imposing death as a sentence. He initially suggested
that he would consider imposing the death penalty for a
crime that was sufficiently heinous. Then, when pressed
specifically about what he would do if his was the final vote
on the fourth question, and all the other jurors already had
answered all four questions in favor of the death penalty, he
ultimately declared that he “couldn’t do it.”
416	                               State v. Turnidge (S059155)

	        The issue posed by Burns’s answers is similar to the
voir dire issue that this court resolved in State v. Nefstad,
309 Or 523, 533-38, 789 P2d 1326 (1990), cert den, 516 US
1081 (1996), which was also a death penalty case. During
voir dire in Nefstad, Myers, a prospective juror, made equiv-
ocal statements about his ability to apply the law, and, when
pressed, he told the judge that, “[a]t the risk of contradict-
ing [himself] again, [he] could not assure [the judge] that
[he] would not let his feelings interfere.” Id. at 537 (brackets
in original). In concluding that the trial court’s excusal of
Myers was not error under Witherspoon, this court stated:
   	 “The trial court’s question and Myers’s response came
   after defendant[’s] counsel and the prosecutor had com-
   pleted their examination of Myers. The trial judge, who had
   an opportunity to hear Myers’s responses and to observe
   his demeanor during the previous questioning, concluded
   that Myers’s answers to the judge’s question (and, by impli-
   cation, his answers to the prosecutor’s inquiries) should be
   believed. In such a case, particularly where the prospective
   juror has given admittedly contradictory responses, the
   trial court’s conclusion with regard to his ‘ultimate qualifi-
   cations is entitled to great weight,’ where the court had the
   advantages of ‘observing [his] demeanor, apparent intelli-
   gence and candor, all of which are factors in the trial of a
   challenge for cause.’ ”
Id. at 537-38 (quoting State v. Brumfield, 104 Or 506, 528-29,
209 P 120 (1922)); see also Witt, 469 US at 426 (because
trial court has opportunity to assess prospective juror’s
demeanor, deference should be paid to trial court in deter-
mining whether prospective juror would be unable to apply
law faithfully and impartially); White v. Wheeler, 577 US
___, 136 S Ct 456, 461, 193 L Ed 2d 384 (2015) (trial court
did not err in excusing prospective juror who initially sug-
gested that he could follow law but eventually stated that
his views would prevent him from imposing death penalty).
	        As a general rule, we accord “great deference” to the
trial court’s assessment of a prospective juror’s qualifica-
tions, because “the trial court has the advantage of observ-
ing a challenged prospective juror’s demeanor, apparent
intelligence, and candor.” McAnulty, 356 Or at 463 (internal
quotation marks omitted). And we give “greatest deference
Cite as 359 Or 364 (2016)	417

to the trial court when a juror’s answers are contradictory or
unclear.” State v. Compton, 333 Or 274, 286, 39 P3d 833, cert
den, 537 US 841 (2002). In this case, in Burns’s owns words,
he was getting “very emotional” as he discussed his ability
to apply the death penalty, later stating that he was “trip-
ping out.” Given Burns’s inconsistent statements, the state-
ments in the record showing that Burns’s thoughts on the
question evolved over the course of voir dire, and the trial
court’s superior vantage point to assess Burns’s demeanor
and the import of his answers, the trial court properly exer-
cised its discretion in accepting and relying on Burns’s final
statement—that he “could not do it”—as a basis for deter-
mining, under Witherspoon and Witt, that Burns was not
qualified to sit as a juror in this case.
	        In short, the record supports the trial court’s deter-
mination that Hamlin’s, Porter’s, and Burns’s views on the
death penalty would interfere with their respective abilities
to follow the law. We therefore conclude that the trial court
did not abuse its discretion in excusing those prospective
jurors under the Sixth Amendment, under the standards
that the Supreme Court announced in Witherspoon and Witt.
      2.  Destruction of completed juror questionnaires
	        We turn, then, to the trial court’s order to destroy the
juror questionnaires after voir dire was completed. Defendant
contends that, without Hamlin’s, Porter’s, and Burns’s com-
pleted questionnaires, this court cannot adequately review
whether the trial court properly excused those jurors under
Witherspoon and Witt, which, in turn, amounts to a violation
of the Due Process Clause.26 Defendant makes two alterna-
tive arguments on that point. First, he contends that the
trial court’s decision to destroy the juror questionnaires—
instead of preserving them for the record—constituted per
se reversible error under the Due Process Clause, one that

	26
       The Fourteenth Amendment to the United States Constitution provides,
in part, “No state shall * * * deprive any person of life, liberty, or property, with-
out due process of law[.]” In arguing that the trial court erred in destroying the
completed juror questionnaires, defendant also offers a general citation to the
Equal Protection Clause of the Fourteenth Amendment (“[n]o state shall * * *
deny to any person within its jurisdiction the equal protection of the laws”), but
he does not connect any part of his argument to that clause or the principles that
it embodies.
418	                                       State v. Turnidge (S059155)

obviates any need for defendant to make a predicate show-
ing of prejudice. Alternatively, even if he must show that the
destruction of the completed questionnaires actually preju-
diced him in this case, defendant argues that he has made
that showing and is therefore entitled to reversal. We first
provide the additional facts necessary to discuss defendant’s
arguments; we then discuss why neither argument is well
taken.27
           a.  Additional facts
	        In advance of voir dire, the prospective jurors were
asked to complete written questionnaires for use by coun-
sel and the trial court during jury selection. The trial court
included on the blank juror questionnaire form an express
statement that, at the conclusion of voir dire, the completed
questionnaires would be destroyed. The court did so because
it thought that the prospective jurors would feel more com-
fortable providing candid written answers if they were
assured that the completed questionnaires would later be
destroyed. Counsel for both parties had an opportunity to
review that form before it was given to the prospective jurors
to complete, but neither party objected or otherwise raised
any concern about the representation on the form that the
completed questionnaires would be destroyed.
	       Instead, defendant raised an objection to the
destruction only after the jurors already had completed the
questionnaires, arguing at that point that the question-
naires should be preserved for the record on appeal. The
state agreed and likewise urged the trial court not to destroy
the questionnaires. In response, the trial court voiced con-
cern that the questionnaires would “clog the record.” The

	27
      Defendant raises additional arguments based on ORS 19.420(3) and
Article VII (Amended), section 3, of the Oregon Constitution, contending that
those provisions required the trial court to ensure preservation of an adequate
record for purposes of appellate review. See ORS 19.420(3) (appellate court may
reverse judgment and order new trial, “as justice may require,” whenever it
appears that appeal cannot be prosecuted due to loss or destruction of reporter’s
notes, audio records, exhibits, “or other matter necessary to the prosecution of the
appeal”); Or Const, Art VII (Amended), § 3 (right to jury trial; Supreme Court
may determine, “after consideration of all the matters thus submitted,” whether
judgment should have been rendered or, instead, should be changed). Defendant’s
arguments based on those sources of law are not preserved, however, and so we do
not address them.
Cite as 359 Or 364 (2016)	419

parties then offered to scan the questionnaires to preserve
them in digital form. The court rejected that solution, how-
ever, expressly noting its commitment to the representa-
tion that it already had made to the prospective jurors that
the completed questionnaires would be destroyed after voir
dire. As a solution to the parties’ concerns about ensuring
the adequacy of the record for review, the trial court gave
the parties additional time at the conclusion of voir dire to
review the completed questionnaires to determine what
information, if any, should be read into the record to pre-
serve it for appeal. After that time period passed, pursuant
to the court’s order, the questionnaires were destroyed.
         b. Analysis
	        Defendant first argues that that trial court’s order
to destroy the questionnaires is a ground for per se reversal
because it deprived defendant of a record capable of mean-
ingful appellate review, in violation of defendant’s due pro-
cess protections. He acknowledges that due process usually
requires a showing of prejudice to obtain a reversal of a trial
court judgment based on inadequacy of the record. See, e.g.,
Bransford v. Brown, 806 F2d 83, 86 (6th Cir 1986) (“[T]o
demonstrate denial of a fair appeal, petitioner must show
prejudice resulting from the missing transcripts.”). He con-
tends, however, that some federal courts have indicated that
a defendant’s burden to show prejudice is relieved when the
government’s conduct in destroying or failing to preserve
information for the record is “invidiously motivated” or made
in “bad faith.” See id. at 85-86 (no per se violation of due pro-
cess right to fair appeal when transcript of jury instructions
is simply missing and failure to produce it is not “invidiously
motivated”); see also Arizona v. Youngblood, 488 US 51, 57,
109 S Ct 333, 102 L Ed 2d 281 (1988) (under Due Process
Clause, defendant must show that lost evidence is material
and exculpatory, unless evidence lost in bad faith).
	        Even if defendant’s understanding of the cited
cases is correct, they do not assist him here. The cases that
defendant cites require a showing of “invidious motivation”
or a similar kind of “bad faith.” Defendant did not at trial,
and does not now, suggest that the trial court in this case
acted with invidious motivation or bad faith in destroying
420	                            State v. Turnidge (S059155)

the juror questionnaires. Instead, defendant argues that the
questionnaires are missing from the record as a result of the
trial court’s intentional decision to destroy them. The record,
to be sure, demonstrates that the court acted intentionally,
rather than through inadvertence or mistake. But taking
an action intentionally does not necessarily mean that the
action was taken for an improper motive or purpose, such
as to impair the fairness of the proceedings or to prevent
meaningful review of the record by an appellate court. Nor
does the record suggest that the trial court was so motivated
in this case.
	        Neither party disputes what happened in this
case or why it happened. The blank questionnaire form
represented to the prospective jurors that the completed
questionnaires would be destroyed after voir dire. That
representation was made so that prospective jurors would
provide more forthcoming information relevant to their per-
sonal experiences, backgrounds, and biases—information
of value to the parties and the trial court in any case, but
of particular value in a death penalty case. Both parties
had an opportunity to object to the representation that the
questionnaires would be destroyed; neither party did. When
the trial court later had the questionnaires destroyed, it
did so intentionally, but for one principal reason: To keep
faith with the representation that it already had made to
the prospective jurors and that was in place when they
completed their questionnaires. Nothing in the cases that
defendant cites suggests a legal rationale that would deem
the destruction of the questionnaires in the circumstance of
this case to be a per se violation of due process. We therefore
reject defendant’s argument that, even without a showing
of actual prejudice, he is entitled under the Due Process
Clause to a reversal of the judgment and a remand for a
new trial in this circumstance.
	        Our conclusion that the trial court’s order destroy-
ing the completed juror questionnaires did not per se deprive
defendant of due process does not mean that we approve
of the trial court’s action. We recognize only that the trial
court was well-intentioned in its reasons for destroying the
questionnaires. We do not endorse as appropriate the rep-
resentation on the form that the questionnaires would be
Cite as 359 Or 364 (2016)	421

destroyed, nor do we endorse the practice of destroying the
questionnaires pursuant to that representation. Trial courts
are most likely to make such a representation and take such
steps in cases of particular sensitivity, such as death penalty
cases. The sensitive nature of such cases, however, makes it
all the more important to preserve all aspects of the record
for review. Administrative concerns of retaining and pre-
serving voluminous paper questionnaires can be readily met
in this digital age through scanning and electronic storage.
Concerns about unduly exposing information that prospec-
tive jurors might be more willing to disclose on paper than
in the public limelight of a courtroom can be accommodated,
if otherwise authorized by law, by sealing the completed
questionnaires after voir dire and advising the prospective
jurors in advance that the questionnaires will be sealed and
later opened, if at all, only pursuant to court order. We are
confident that, through those or other resourceful solutions,
trial courts can appropriately encourage and obtain candid
information from jurors that will aid the parties and the
trial court alike in conducting meaningful voir dire, without
destroying that information and rendering it unavailable for
later review.
	        The question remains, however, whether defen-
dant was in fact prejudiced by the trial court’s decision to
destroy the jury questionnaires, entitling him to reversal
under the Due Process Clause. To demonstrate prejudice,
defendant must show that the record—without the juror
questionnaires—is insufficient for this court to evalu-
ate whether the trial court properly excused prospective
jurors Hamlin, Porter, and Burns under Witherspoon and
Witt. See Boyd v. Newland, 467 F3d 1139, 1142 (9th Cir
2006), cert den, 550 US 933 (2007) (granting federal writ
of habeas corpus because missing part of transcript ren-
dered it impossible to review petitioner’s claim); Brecht
v. Abrahamson, 507 US 619, 637-38, 113 S Ct 1710, 123
L Ed 2d 353 (1993) (similarly applying “actual prejudice”
standard as whether error “had substantial and injurious
effect or influence” in determining jury’s verdict). As we
will explain, both the nature of defendant’s challenge and
the specific record of this case defeats defendant’s claim of
prejudice.
422	                            State v. Turnidge (S059155)

	       The first problem for defendant’s claim of actual
prejudice is that the trial court gave defendant and the
state alike an ample alternative avenue to create the
record that defendant now claims is missing. In particular,
before the completed juror questionnaires were destroyed
pursuant to the trial court’s directive, the court permitted
the parties to review the questionnaires with the specific
objective of supplementing the record, beyond anything
that already had come out during the course of voir dire,
with answers or other information in the questionnaires
that either party thought was important to their case.
Neither party opted to supplement the record pursuant to
the court’s invitation.
	         The second problem for defendant’s claim of actual
prejudice is that the voir dire itself—which is a matter of
record in this case—was the natural way to explore the
information on the completed juror questionnaires. The
record reveals that the parties in fact used voir dire for that
purpose and provides no basis to conclude that the ques-
tionnaires, if preserved, would have revealed anything
on review that either was not explored during voir dire
or was not effectively superseded by the voir dire record.
Throughout voir dire, during which the parties still had full
access to the questionnaires, counsel for both sides repeat-
edly referred to the answers that various prospective jurors
had given and explored those answers—and made a record
of them—as appropriate to their examinations of the indi-
vidual jurors. That occurred in particular during the voir
dire examination of the three prospective jurors—Hamlin,
Porter, and Burns—that we have already quoted from and
discussed at some length. For example, in the examination
of Hamlin, defense counsel specifically commented that he
had “read [Hamlin’s] juror questionnaire” and went from
that comment to asking Hamlin about his ability to follow
the law. The prosecutor, in turn, referred to the fact that
Hamlin’s answers on the questionnaire suggested that he
was opposed to the death penalty, which prompted the pros-
ecutor to explore Hamlin’s views in greater depth through
voir dire. And likewise, the prosecutor asked Hamlin spe-
cifically about the suggestion on his questionnaire that he
might be able to impose a death sentence if the prosecution
Cite as 359 Or 364 (2016)	423

made “an impassioned argument.” In examining Porter and
Burns, both counsel similarly referred to answers that those
prospective jurors had given on their questionnaires and
explored those answers in meaningful depth in the course
of voir dire.
	        Thus, the completed juror questionnaires served
their usual purpose in this case: They were a springboard
from which the parties—and, as necessary, the trial court—
could examine and make a record in the depth necessary on
each prospective juror’s background, experiences, attitudes,
and beliefs. In this instance, to the extent that the question-
naires contained information that had bearing on whether
particular prospective jurors held views that would prevent
or substantially impair their performance of their duties as
a juror in a death penalty case, the normal process of voir
dire gave the parties a full opportunity to make a record
of that information. And, because the parties went through
voir dire knowing that the court was not going to preserve
the questionnaires for the record, they had every incentive
to take full advantage of that opportunity. The record before
us has provided us with a meaningful basis to review defen-
dant’s claims that the trial court erred in excusing Hamlin,
Porter, and Burns. We have no reason to conclude that the
questionnaires themselves—had they been preserved—
would have materially aided our review.28
	        In asserting that the record is insufficient for that
review, and that the destruction of the completed juror ques-
tionnaires therefore prejudiced him, defendant principally
relies on the Ninth Circuit’s decision in Ayala v. Wong, 693
F3d 945 (9th Cir 2012), withdrawn and superseded, 730 F3d
831 (9th Cir 2013), amended and superseded, 756 F3d 656
(9th Cir 2014), rev’d and rem’d sub nom Davis v. Ayala, 576

	28
        In addition to specific arguments about the excusal of Hamlin, Porter, and
Burns, defendant also makes a generic argument that the destruction of the com-
pleted juror questionnaires led to the improper excusal of 19 additional jurors.
Other than bare citations to the transcript, he includes no information about
the voir dire of those jurors; neither does he make any specific factual or legal
arguments concerning them. We have reviewed the voir dire transcripts in full
and the court’s excusal of those jurors for various reasons. The record provides no
basis to conclude that, if the questionnaires had not been destroyed and therefore
were now available on review, defendant might be able to demonstrate some error
in the excusal of those 19 jurors.
424	                                         State v. Turnidge (S059155)

US ___, 135 S Ct 2187, 192 L Ed 2d 323 (2015).29 Ayala was
a federal habeas corpus case in which the Ninth Circuit
concluded that the fact that completed juror questionnaires
were inexplicably missing from the record violated the peti-
tioner’s right to an adequate record for purposes of review,
and was both error and prejudicial.30
	        The Ninth Circuit’s holding in Ayala, 756 F3d 656,
does not aid defendant, because of the different kind of chal-
lenge to the excusal of prospective jurors that it involved.
Ayala involved a so-called Batson claim—that is, a claim
that the prosecutor, while articulating a legitimate basis to
challenge a prospective juror, in fact did so for impermissi-
ble discriminatory reasons, such as race. Batson v. Kentucky,
476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986). As the Ninth
Circuit explained, in analyzing a Batson challenge, an appel-
late court must engage in a “comparative juror analysis” to
determine whether a prosecutor’s reasons for challenging a
racially diverse prospective juror were pretextual.31 Ayala,
	29
        Defendant relies on aspects of the Ninth Circuit’s 2012 and 2013 decisions
in Ayala. The Ninth Circuit issued its 2014 decision after defendant filed his
opening brief in this case.
	30
       Although the Supreme Court reversed the Ninth Circuit, its ground for
doing so does not inform our resolution of the issue. The California Supreme
Court, on direct appeal in the petitioner’s case, had concluded that the peti-
tioner had not been prejudiced by the loss of the questionnaires. Davis v. Ayala,
576 US at ___, 135 S Ct at 2195. In a subsequent habeas corpus proceeding,
the Ninth Circuit determined instead that petitioner had been prejudiced and
that the California Supreme Court thus had erred. Id. at 2196-97. On review,
the Supreme Court concluded that the Ninth Circuit had incorrectly determined
the prejudice issue anew. The Court determined that, properly framed, the ques-
tion on habeas review was whether the California Supreme Court’s resolution
of the harmless error question had amounted to an unreasonable application of
established federal law and concluded that it had not. Id. at 576 US at ___, 135
S Ct at 2202, 2208. The Court’s answer to that question does not, however, com-
pel the conclusion that the California Supreme Court was required to rule as it
did on direct review of the petitioner’s convictions. Consequently, it is for us to
determine in the first instance whether we can engage in meaningful review of
defendant’s Witherspoon challenge to the excusal of prospective jurors Hamlin,
Porter, and Burns, despite the destruction of the completed juror questionnaires.
If defendant later files for federal habeas corpus relief and, in the course of that
collateral proceeding, challenges our resolution of that issue, it will be a different
question—as it was in Ayala—whether our answer amounts to an unreasonable
application of established federal harmless error law.
	31
        For example, permissible reasons for challenging a prospective juror might
be related to the juror’s other life experience or prior jury service. See gener-
ally State v. Henderson, 315 Or 1, 8, 843 P2d 859 (1992) (citing representative
cases). But if completed juror questionnaires revealed—as voir dire itself might
Cite as 359 Or 364 (2016)	425

756 F3d at 676; see also Miller-El v. Dretke, 545 US 231, 240-
52, 125 S Ct 2317, 162 L Ed 2d 196 (2005) (engaging in com-
parative juror analysis to consider the petitioner’s Batson
challenge). In addition, in Ayala, some of the prosecution’s
proffered reasons for striking nonwhite jurors referred to
the questionnaires that had been lost. Ayala, 756 F3d at
677. In combination with a related, but different, error that
the Ninth Circuit determined had hampered the petitioner’s
ability to have his Batson challenge meaningfully reviewed,
the Ninth Circuit concluded that the petitioner’s due process
interest in an adequate record for review had been prejudi-
cially harmed. Id. at 672.
	         This case does not involve a racial-discrimination
challenge under Batson; rather, it involves a death panel-
eligibility challenge under Witherspoon. A Witherspoon chal-
lenge asks a different question than does a Batson challenge.
A Batson challenge asks whether the prosecutor uniformly
requested excusal of all prospective jurors who possessed a
specific trait; such a challenge therefore is inherently com-
parative and entails looking for patterns in the backgrounds
and profiles of the jurors that would reveal any hidden bias
on a prosecutor’s part. A Witherspoon challenge, by con-
trast, asks whether an individual prospective juror’s views
about the death penalty will so hinder that juror’s judgment
that he or she will be unable to follow the oath to consider
the facts, follow the law, and decide the case impartially. A
Witherspoon challenge therefore is not inherently compara-
tive and does not necessarily entail considering the jury pool
in the same aggregate way as does a Batson challenge. In
this particular instance, at least, defendant’s Witherspoon
challenge depends on the specific juror’s responses to the
parties’ and the trial court’s inquiries about each juror’s
individual views on the death penalty. When—as in this
case—the record on appellate review shows that the trial
court excused a prospective juror because that juror indi-
cated on the record an inability to follow the law and, in an

not—that the prosecutor had not challenged white prospective jurors with the
same or similar life experience and prior jury service noted on their question-
naires, while challenging racially diverse prospective jurors on that purported
basis, then the questionnaires themselves, more so than voir dire, would reveal
the potentially pretextual nature of the prosecutor’s explanation.
426	                                       State v. Turnidge (S059155)

appropriate case, to impose the death penalty, the record is
sufficient for appellate review of a Witherspoon challenge.
For such a challenge, no per se prejudice to the defendant
arises from the inability to make a comparative analysis of
prospective jurors based on the aggregate information avail-
able only through their collective questionnaires.
	        For those reasons, we conclude that the record per-
mits adequate review of defendant’s challenges to the excusal
of prospective jurors Hamlin, Porter, and Burns, and that
the trial court’s decision to destroy the completed question-
naires, while ill-advised, did not prejudice defendant and
does not require reversal under the Due Process Clause.32
D.  Evidence of Prior Bad Acts (Assignment No. 114)
     1.  Additional facts
	        Defendant next argues that the trial court erred in
admitting evidence that, years earlier, he had called in a
bomb threat to a different Woodburn bank. That evidence
came from defendant’s friend, Laughlin, who testified that, in
1995, he had gone to a job site in Woodburn where defendant
was working, to meet defendant for lunch. As they prepared
to leave the job site for a particular restaurant in Woodburn,
defendant told Laughlin that he had just telephoned a bank
near that restaurant, told the bank teller who answered
that there was a bomb in the bank, and directed the teller to
take $50,000 to an outhouse located in a construction area
in the bank’s parking lot. Laughlin and defendant then went
to the restaurant and, from there, watched police vehicles
arrive at the bank and officers examine the outhouse. The
call had been a hoax. The bank involved was not either the
Wells Fargo Bank or the West Coast Bank involved in the
charged 2008 crimes, but it was near those banks.33
	32
        In another assignment of error, defendant argues that the trial court erred
in advising the prospective jurors—through the statement included on the blank
juror questionnaire form—that the questionnaires would be destroyed following
voir dire. Defendant did not make that argument to the trial court. We therefore
do not address it, except to the extent that, as expressly stated earlier in this
opinion, we disapprove of that practice and expect trial courts in future cases to
find other ways to encourage juror candor without deleting materials from the
record of the case.
	33
        Testimony in the record, together with street photographs of the area from
the 2008 bombing admitted into evidence, show that the restaurant from which
Cite as 359 Or 364 (2016)	427

	         Anticipating that the state would seek to have
Laughlin’s testimony of the 1995 incident admitted, defen-
dant moved in limine to exclude it. The state, in its written
response, urged that the evidence was “related to motive,
ability, planning and preparation,” as well as “intent” and
“knowledge,” and it therefore was admissible under OEC
404(3). The state further suggested that the trial court
should admit the evidence without balancing its prejudi-
cial versus probative value, citing OEC 404(4). At a pre-
trial hearing on the matter, the court granted defendant’s
motion and ruled that the evidence would not be admitted.
The court at that time was not persuaded that the evidence
was relevant for anything other than propensity. The court,
however, gave the state leave to ask the court to reconsider
its ruling later, acknowledging that the relevancy of the evi-
dence for one or more nonpropensity purposes might become
more apparent during trial. The court further suggested
that, if it were to later conclude that the evidence was rele-
vant, then the evidence would still be subject to balancing
under OEC 403. Because of the court’s initial pretrial deter-
mination that the evidence was not relevant, the trial court
directed the state not to refer to evidence of the 1995 bomb
threat during voir dire and opening arguments.
	        During trial, the state sought to present evidence
of the 1995 bomb threat, beginning with an offer of proof,
and defendant objected on several grounds. First, he argued
that the proffered evidence was insufficient to show that the
event actually had occurred. Second, he suggested that the
state was offering the evidence as proof of modus operandi
and identity, and that the 1995 conduct was insufficiently
similar to the 2008 bombing to be relevant for that purpose.
Third, defendant argued that the incident was too remote in
time to be relevant. Finally, defendant argued that the 1995
bomb threat was not relevant to prove intent. Consistently
with its written argument, the state responded that—for
some of the charged crimes—the state had to prove that the
crimes related to an attempt to rob a bank. For those crimes,

defendant and Laughlin watched police arrive and inspect the outhouse outside
the bank that had received the 1995 bomb threat was located across the highway
from the Wells Fargo Bank that received the threatening phone call in this case,
which, in turn, was located next door to the bombed West Coast Bank.
428	                             State v. Turnidge (S059155)

the state argued that evidence of the 1995 bomb threat was
relevant to prove motive, ability, planning, preparation,
intent, and knowledge. The state further urged that the past
bomb threat was similar to the conduct charged, involved
the same class of victim, and involved, in essence, a “dry
run” of a bank robbery. The parties also debated whether
the probative value of the evidence was significantly out-
weighed by its prejudicial impact, with defendant urging
that it was not, and the state countering that the evidence
was not “unfairly” prejudicial. Both parties relied on the
analysis of admissibility outlined in State v. Johns, 301 Or
535, 725 P2d 312 (1986).
	        On the basis of those arguments, the trial court
revisited and reversed its pretrial ruling. The trial court
ruled, based on Johns, that evidence of the 1995 bomb threat
was admissible because “it’s similar, it’s unique, and it’s only
separated in time.” Consistently with that ruling, the state
later introduced Laughlin’s testimony describing the 1995
incident during its case-in-chief.
    2.  Parties’ arguments on review
	        On review, the parties renew the arguments that
they made to the trial court. Specifically, both parties rely
significantly on the analytical framework announced in
Johns to argue their respective positions on the admissibil-
ity of the evidence of the 1995 bomb threat.
	        In addition, both parties also advance supplemen-
tal arguments in light of this court’s recent decision in State
v. Williams, 357 Or 1, 346 P3d 455 (2015), which addressed
OEC 404(4). Relying on Williams, defendant contends that
a balancing exercise under OEC 403 still is required before
uncharged prior bad act evidence may be admitted and that
the admission of such evidence in cases other than those
involving child sexual abuse (at issue in Williams) is still
subject to the analytical framework announced in Johns.
The state, likewise relying on Williams, contends that, in
criminal cases, OEC 404(4) preempts the limitations that
OEC 404(3) otherwise places on the admission of evidence
of “other crimes, wrongs or acts,” and that such evidence is
always admissible under OEC 404(4) if it is relevant—even
for a propensity purpose—as long as its admission does not
Cite as 359 Or 364 (2016)	429

violate due process. Additionally, defendant relies on State
v. Leistiko, 352 Or 172, 282 P3d 857, adh’d to as modified on
recons, 352 Or 622, 292 P3d 522 (2012), to argue that, if the
trial court properly admitted evidence of the 1995 bomb
threat, then the court sua sponte should have instructed
the jury not to consider that evidence without first deter-
mining whether defendant committed the charged acts to
which that evidence was relevant. The state responds by
urging that the limiting instruction required in Leistiko
applies only to evidence that is relevant under a “doctrine
of chances” theory, which is not the relevancy theory that
applied to the evidence of the 1995 bomb threat in this
case.
	       We address the parties’ respective arguments below.
As we will explain, we ultimately conclude that the trial
court did not err in applying OEC 404(3) and in admitting
the evidence, and that no limiting instruction was required.
    3.  Analysis
         a.  OEC 404(3), OEC 403, and OEC 404(4); statu-
             tory text and general principles
	       We begin by setting out the evidentiary rules at
issue. OEC 404(3) provides:
   	 “Evidence of other crimes, wrongs or acts is not admissi-
   ble to prove the character of a person in order to show that
   the person acted in conformity therewith. It may, however,
   be admissible for other purposes, such as proof of motive,
   opportunity, intent, preparation, plan, knowledge, identity,
   or absence of mistake or accident.”
Evidence admitted or excluded under OEC 404(3) is often
referred to as “prior bad acts” evidence. See, e.g., Johns, 301
Or at 555 (citing treatises). OEC 404(3) is an “inclusion-
ary” rule, as opposed to an “exclusionary” rule, expressly
stating that prior bad acts evidence may be admissible as
long as it is relevant for any purpose other than to prove
“propensity”—that is, to prove the character of a person, to
show that the person acted in conformity with that char-
acter. Id. at 548; see generally Williams, 357 Or at 16 n 15
(discussing rationale of general evidentiary ban on so-called
“propensity” evidence).
430	                                      State v. Turnidge (S059155)

	        If a trial court determines that prior bad acts
evidence is relevant for a purpose other than to estab-
lish that a person has a propensity to act in a particular
way, the admissibility analysis does not necessarily end,
however.34 At least unless OEC 404(4) otherwise directs—
which we discuss next—admissibility still depends on a trial
court determination, in response to a proper motion, that
the probative value of the evidence outweighs the danger of
unfair prejudice under OEC 403. See OEC 403 (“Although
relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consid-
erations of undue delay or needless presentation of cumula-
tive evidence.”); Johns, 301 Or at 550 (discussing balancing
analysis required under OEC 403); see also Williams, 357
Or at 19 (“When a party objects, under OEC 403, to ‘other
acts’ evidence offered under OEC 404(4), a trial court must
engage in the balancing anticipated by OEC 403.”).
	       OEC 404(4), enacted in 1997, Or Laws 1997, ch 313,
§ 29, applies more specifically to prior bad acts evidence in
“criminal actions.” It provides:
    	 “In criminal actions, evidence of other crimes, wrongs
    or acts by the defendant is admissible if relevant except as
    otherwise provided by:

    	 “(a)  [OEC 406 through 412] and, to the extent
    required by the United States Constitution or the Oregon
    Constitution, [OEC 403];

    	 “(b)  The rules of evidence relating to privilege and
    hearsay;

    	   “(c)  The Oregon Constitution; and

    	   “(d)  The United States Constitution.”

	34
       And, as explained in other cases, a court’s determination that evidence
is relevant for a nonpropensity purpose in turn may require further analysis,
depending on the asserted purpose. See, e.g., State v. Garrett, 350 Or 1, 10, 248
P3d 965 (2011) (to be relevant to establish motive, prior bad acts evidence need
not have same physical elements as charged crime); Johnson, 340 Or at 339 (to
admit prior crimes evidence as relevant to proof of identity based on modus ope-
randi, trial court must find “very high degree of similarity” between charged and
uncharged crimes, together with “highly distinctive” methodology).
Cite as 359 Or 364 (2016)	431

As described, the parties, relying on this court’s analysis
of that provision in Williams, 357 Or 1, dispute the extent
to which that analysis controls in this case. In effect, the
state’s position is that, under Williams, evidence of the 1995
bomb threat was admissible under OEC 404(4), even if rel-
evant as propensity evidence, and no balancing of the pro-
bative value of the evidence against its potential for undue
prejudice under OEC 403 was required. Because the state’s
argument, if correct, would negate the need to examine the
admissibility of the 1995 evidence under OEC 404(3), we
examine our holding in that case in some detail.
        b.  Williams and its analysis of OEC 404(4)
	        The defendant in Williams was convicted on two
counts of first-degree sexual abuse of a child victim. At trial,
the defense theory was essentially that, if the defendant had
touched the victim at all (which he disputed), any touching
had been inadvertent, instead of for a sexual purpose, as the
state was required to prove. 357 Or at 3. The state offered evi-
dence that children’s underwear had been found secreted at
several locations in the defendant’s home, arguing that that
evidence was relevant to demonstrate that he had touched
the victim with a sexual purpose and not accidentally. Id. at
4. The defendant asserted that the evidence was not admis-
sible under OEC 404(3), pursuant to the analytical frame-
work that Johns had announced. The state, however, urged
that OEC 404(3) had been superseded by OEC 404(4). This
court agreed with the state, concluding that “the legislature
intended OEC 404(4) to supersede OEC 404(3) in criminal
cases, except, of course, as otherwise provided by the state
or federal constitutions.” Id. at 15.
	        This court then considered whether, under OEC
404(4), due process required the exclusion of “propensity”
evidence previously not admissible under OEC 404(3), based
on principles of fundamental fairness. Williams, 357 Or at
18. The court ultimately concluded that, in child sexual
abuse prosecutions where the state offered prior bad acts
evidence to prove that the defendant had a propensity to sex-
ually abuse children, due process “at least requires that, on
request, trial courts determine whether the probative value
of the evidence is outweighed by the risk of unfair prejudice.”
432	                                      State v. Turnidge (S059155)

Id. at 19. The court specifically reserved, however, the ques-
tion whether—in assessing the admissibility of propensity
evidence—that due process analysis requires the same “tra-
ditional” or “subconstitutional” balancing that OEC 403
requires, or whether the due process analysis requires some
greater or different showing of prejudice before exclusion
of the evidence is constitutionally compelled. Id. at 19 n 17.
The court ultimately concluded in Williams that the trial
court had correctly admitted the disputed evidence under
principles of relevancy and a “traditional” type of balancing.
Id.; id. at 23-24. It was therefore unnecessary in Williams
to decide whether the challenged evidence “also would be
admissible under any distinct ‘due process’ balancing test.”
Id.35
	        Williams thus answered one question (propen-
sity evidence can be admitted in a child sexual abuse case
under OEC 404(4) if due process permits) and reserved two
questions: (1) the extent to which prior bad acts evidence
can be admitted solely for propensity purposes in criminal
cases other than ones involving child sexual abuse; and
(2) whether, in criminal cases in which evidence is admit-
ted for propensity purposes, due process requires traditional
OEC 403 balancing or requires a greater showing of unfair
prejudice than traditional OEC 403 balancing would require
to exclude otherwise probative evidence. We need not resolve
those questions in this case, however, because this case dif-
fers from Williams in two ways that render Williams distin-
guishable and not controlling.
	         First, this case does not involve child sexual abuse.
Thus, the holding in Williams that propensity evidence is
relevant in child sexual abuse cases to show that a defendant
committed the charged acts is not on point here. Second, this
case does not squarely present the issues that Williams spe-
cifically reserved. Most notably, unlike Williams, this case
does not present the question whether the contested evidence
could have been admitted solely for propensity purposes, in
reliance on OEC 404(4). The state’s theory of admissibility
	35
        This court in Williams ultimately determined that the trial court had not
erred in admitting the disputed evidence because the evidence met the minimal
logical relevancy requirements of OEC 401. 357 Or at 23-24.
Cite as 359 Or 364 (2016)	433

was not that the 1995 bomb threat evidence showed that
defendant had the character trait of being a bank robber or
bomber, and that the jury therefore should infer from his
propensity to rob or bomb banks that he bombed West Coast
Bank in 2008. Instead, the state introduced that evidence to
show that defendant effectively had made a trial run at rob-
bing a Woodburn bank in a particular location, by making
a threat, instructing a teller to go to a location outside, and
then watching the police response to the threat. Succinctly
stated, the state’s theory of relevance included that the 1995
incident was part of defendant’s planning process for com-
mitting several of the charged crimes.36 That theory falls
squarely within the nonexclusive list of nonpropensity pur-
poses for which prior bad acts evidence historically has been
admissible, which are largely codified in OEC 404(3). See
Williams, 357 Or at 9-12 (discussing long history of permit-
ting admission of prior bad acts evidence for nonpropensity
purposes; quoting Dowling v. United States, 493 US 342,
352-53, 110 S Ct 668, 107 L Ed 2d 708 (1990), for propo-
sition that prior bad acts evidence admitted for a nonpro-
pensity purpose does not create due process “fundamental
fairness” problem, in part because “the trial court’s author-
ity to exclude potentially prejudicial evidence adequately
addresses” the possibility that the jury would use the evi-
dence improperly).
	        We therefore decline the parties’ invitations to
examine whether our holding in Williams extends to other
kinds of propensity evidence not presented by these facts
or to consider the circumstances in which such evidence is
and is not admissible, consistently with due process.37 As

	36
        The state raises additional theories for admission of the 1995 bomb threat
evidence under OEC 404(3), including motive, intention, and knowledge. We do
not address those additional theories, because, as explained further below, the
evidence was relevant to show defendant’s plan, and which in turn permitted the
trial court to admit the evidence under OEC 404(3).
	37
        Were we to conclude that the trial court erred in its determination that
the 1995 bomb threat evidence was relevant and admissible for nonpropensity
purposes, we could consider whether, in light of Williams, the trial court was
nonetheless “right for the wrong reason” or whether any error was harmless. (As
noted, in Williams, this court explained that the legislature intended OEC 404(4)
to supersede OEC 404(3) in criminal cases.) But, given our conclusion below that
the evidence was properly admitted under settled cases interpreting OEC 404(3),
we need not address the potential application of OEC 404(4) here.
434	                            State v. Turnidge (S059155)

in Williams, we leave those issues to another day and to a
case in which we must reach them to resolve the dispute
before us. This case is more readily resolved by settled
principles under OEC 404(3) and OEC 403, to which we
now turn.
        c.  Johns and its analysis of OEC 404(3)
	        We begin with defendant’s argument under OEC
404(3). As we earlier described, defendant argued in the trial
court, and maintains on review, that the trial court misap-
plied the relevancy framework for OEC 404(3) announced
in Johns and therefore improperly admitted evidence of the
1995 bomb threat. In particular, defendant focuses—as did
the parties and the trial court below—primarily on the var-
ious factors that Johns identified for assessing relevancy,
such as whether the victim in the prior act was the same
victim or in the same class as the victim in the present case;
whether the type of prior act was the same or similar to
acts involved in the charged crime; and whether the physi-
cal elements of the prior act and the present act were simi-
lar. See Johns, 301 Or at 555-56 (outlining potential factors).
As we will explain, however, the analytical framework that
Johns announced was specific to the “doctrine of chances”
relevancy theory at issue in that case, which is not at issue
in this case. We examine Johns at greater length to explain
why it does not provide the proper framework for analysis of
the relevancy of the 1995 bomb threat evidence that defen-
dant challenges.
	        The defendant in Johns had been charged with
intentional murder after shooting his wife. In his defense,
he did not dispute that he was holding the gun when it dis-
charged and his wife was shot. He did claim, however, that
the gun had discharged accidentally as he attempted to take
it from his wife, who initially had fired the gun when defen-
dant first entered their darkened bedroom. Id. at 537-38.
The state offered evidence that the defendant previously
had attempted to use a rifle in the course of an assault on
his former wife. Id. at 540. This court described that evi-
dence as evidence of “prior acts to prove intent or lack of
mistake,” id. at 551, and recognized that theory of relevance
as the “doctrine of chances”:
Cite as 359 Or 364 (2016)	435

   	 “ ‘* * * The doctrine teaches us that[,] the more often the
   defendant performs the actus reus, the smaller is the like-
   lihood that the defendant acted with an innocent state of
   mind. The recurrence or repetition of the act increases the
   likelihood of a mens rea or mind at fault. In isolation, it
   might be plausible that the defendant acted accidentally or
   innocently; a single act could easily be explained on that
   basis. However, in the context of other misdeeds, the defen-
   dant’s act takes on an entirely different light. The fortu-
   itous coincidence becomes too abnormal, bizarre, implau-
   sible, unusual or objectively improbable to be believed.
   The coincidence becomes telling evidence of mens rea.’
   Imwinkelried, Uncharged Misconduct Evidence 8, § 5:05
   (1984) (footnotes omitted).”
Johns, 301 Or at 552-53 (ellipsis in original). After survey-
ing numerous treatises discussing the doctrine of chances
theory of relevance, this court then stated:
   “[I]n evaluating prior crime evidence on the issue of intent
   or absence of mistake, the trial judge should make these
   determinations:
   	 “(1)  Does the present charged act require proof of
   intent?
   	   “(2)  Did the prior act require intent?
   	 “(3)  Was the victim in the prior act the same victim or
   in the same class as the victim in the present case?
   	 “(4)  Was the type of prior act the same or similar to
   the acts involved in the charged crime?
   	 “(5)  Were the physical elements of the prior act and
   the present act similar?”
Id. at 555-56 (emphasis added).
	        Thus, the particular analytical framework outlined
in the quote above was specifically fashioned to determine
the relevancy and admissibility of evidence offered to prove a
defendant’s “intent or absence of mistake” under the theory
of doctrine of chances—that is, evidence countering a defen-
dant’s claim that he or she performed the act alleged but did
so by mistake. See id. at 550 (describing issue in Johns as
“whether the defendant acted with intent and not by mis-
take or accident”; observing that case did not involve “any
436	                            State v. Turnidge (S059155)

theory of motive, opportunity, preparation, plan, knowledge
or identity or any other unlisted theory” from OEC 404(3));
accord Leistiko, 352 Or at 182-83 (multi-factor analysis in
Johns pertained specifically to doctrine of chances theory
of admissibility), 184 n 9 (under doctrine of chances, term
“intent” generally signifies “the absence of accident, inad-
vertence, or [causality],” which differs from mental state of
“intentionally” defined in ORS 161.085(7) (internal quota-
tion marks omitted)).
	        In this case, as discussed later in this opinion (in
resolving defendant’s challenge to the trial court’s denial of
his motion for judgment of acquittal), most of the charges
required the state to prove that defendant acted “intention-
ally.” See 359 Or at 456-58 (so explaining). That does not
mean, however, that the state’s proof of that element was
governed by Johns. Prior bad acts evidence can be relevant
to a defendant’s intent on theories other than the doctrine
of chances. To give just one example, suppose that a defen-
dant told the victim on one day that he would strangle her
to death if she dated another man, and then, one or several
days later, he saw her on a date with another man and shot
and killed her. In that example, the evidence of the prior
threat would be relevant to prove the defendant’s motive,
and perhaps a plan, and, in turn, that he had acted inten-
tionally, even if the defendant’s theory of the case was not
that he had killed the victim by accident (or otherwise with
a nonculpable mental state, such as in self-defense). Such
evidence would not depend on the doctrine of chances for
its logical relevance to those theories on which it permissi-
bly may be admitted, and, because the doctrine of chances
would not be at work, the factors that Johns identified would
not apply. Admissibility of the prior threat thus would not
depend on whether the threatened physical act (to strangle
to death) differed from the ultimate physical act that killed
the victim (shooting with a gun). Rather, the prior threat
would be directly relevant to establish the defendant’s
motive, plan, and willingness to commit the charged crime,
and the logical relevance of the evidence as to that pur-
pose would not depend on any inference that the defendant
had committed similar past acts with sufficient frequency
that it becomes increasingly unlikely—with each new act
Cite as 359 Or 364 (2016)	437

committed—that he committed the act inadvertently or
by accident. Put another way, a prior threat of that kind
is not “intent” evidence based on a doctrine of chances the-
ory: It would not be offered to show that the defendant acted
intentionally, rather than inadvertently; rather, it would be
offered to show that the defendant had a motive to commit
the charged murder (jealousy), and a plan (to kill the victim
if she dated another person), and that he acted intention-
ally, in the sense that he acted “with a conscious objective
to cause the result or to engage in the conduct so described.”
ORS 161.085(7).
	        The relevance of the evidence of the 1995 bomb
threat at issue in this case similarly does not depend on
application of the “doctrine of chances.” Defendant did not
advance any sort of defense (such as inadvertence or self-
defense) that customarily would be countered by a doctrine
of chances theory of relevancy. And the state did not offer
that evidence to prove “intent” in the “absence of mistake”
sense of the term. OEC 404(3); Leistiko, 352 Or at 182; Johns,
301 Or at 555. Rather, the state sought to introduce evidence
of the 1995 bomb threat to show, among other things, that
defendant had a plan to commit at least some of the charged
crimes, as demonstrated by an earlier trial run involving
both calling in a threat to a bank teller and observing the
police response to the threat.38 That theory of logical rele-
vance is bolstered in the context of other evidence that the
state introduced, without objection, about defendant’s prior
statements about robbing banks.
           d.  Proving a plan under OEC 404(3)
	        We turn to a consideration of the nature of the
proof required to render prior bad act evidence relevant and
thus admissible for the nonpropensity purpose of proving
“plan” under OEC 404(3). This court discussed that issue
in Leistiko, which involved a “doctrine of chances” theory
of relevancy. The defendant in Leistiko had been charged
with multiple counts of rape, involving three different

	38
       Of course, the 1995 bomb threat had been a hoax, and the 2008 bombing
was not. But, as illustrated further below, the jury reasonably could have inferred
from the 1995 bomb threat a plan on defendant’s part to commit at least some of
the charged crimes and underlying felonies.
438	                            State v. Turnidge (S059155)

victims, and the state sought to introduce evidence of his
involvement in an earlier, uncharged sexual encounter with
a fourth woman, for several purposes: to show the state
of mind of each victim in the charged crimes; to show the
defendant’s state of mind, so as to negate his assertion at
trial that he had not acted with the required mens rea to
commit the charged crimes; and to show that defendant had
a plan that he had carried out with each victim. 352 Or at
180-81.
	        In its discussion of the relevance of the evidence to
prove “plan,” the court principally focused on the scenario
in which the state seeks to introduce prior bad act evidence
to prove a plan, to permit the jury to infer that a defendant
had acted consistently with that plan in committing a sub-
sequent crime. The court first cited John Henry Wigmore,
2 Evidence § 304, to distinguish between two distinct, non-
propensity uses of prior bad acts evidence, both of which
were at issue in Leistiko: (1) use of the evidence to prove
intent by negating an asserted innocent state of mind; and
(2) use of the evidence to prove a plan or design aimed to
show a precedent design that in turn shows, by probability,
“ ‘the doing of the act designed.’ ” 352 Or at 188 (quoting
Wigmore, 2 Evidence § 304 at 249). In Wigmore’s view, to
be logically relevant to prove the latter, the proponent must
show not only a similarity between the prior act and the
charged act, but also “such a concurrence of common fea-
tures that the various acts are naturally to be explained as
caused by a general plan of which they are the individual
manifestations.” 352 Or at 188 (citing Wigmore, 2 Evidence
§ 304 at 249 (emphasis from Leistiko omitted)). The court
contrasted Wigmore’s view with a slightly different view
set out in Edward J. Imwinkelried, Uncharged Misconduct
Evidence § 3:24. In Imwinkelried’s view, where the prose-
cution seeks to establish an inference of a plan or design
to prove that a defendant acted consistently with that plan
or design, the prior bad acts evidence should be admissi-
ble only if sufficient to establish a modus operandi. 352
Or at 188-89 (citing Imwinkelried, Uncharged Misconduct
Evidence § 3:24 at 3-163-3-167). Otherwise, the evidence “is
vulnerable to the claim that the prior bad acts are merely
propensity evidence.” 352 Or at 188; see also id. at 189
Cite as 359 Or 364 (2016)	439

(Wigmore would require lesser degree of similarity than
Imwinkelried).
	        Ultimately, this court in Leistiko did not have to
decide between Wigmore’s or Imwinkelried’s views, because
both sources required—in the context of showing a plan or
design aimed to establish, by probability, the commission
of charged crime—“something more than the similarity
required for other crimes evidence to be admissible to prove
intent is necessary for it to be admissible to prove a plan.”
352 Or at 189. The challenged evidence in Leistiko was not
sufficiently similar for it to be relevant and thus admissible
to provide intent; a fortiori, that evidence was not sufficient
to prove plan under either Wigmore’s or Imwinkelried’s
views. Id.
	       In reaching that conclusion, this court specifi-
cally highlighted the distinction that Imwinkelried made
between prior bad acts evidence that is in the nature of a
“spurious plan,” as opposed to a “true plan.” 352 Or at 188
n 13. Evidence of a “spurious plan” is, as just described,
prior bad act evidence offered to show that a defen-
dant engaged in a pattern or systematic course of con-
duct from which the existence of a plan is to be inferred.
Imwinkelried, Uncharged Misconduct Evidence § 3:24 at
3-161-3-163; see also Leistiko, 352 Or at 188 n 13 (describ-
ing “spurious plan” evidence as evidence of series of prior
similar acts offered to establish plan or design to commit
those acts). In a “true plan” scenario, on the other hand,
the prosecution offers prior bad act evidence to show that
the defendant “in fact and in mind formed a plan[,] includ-
ing the charged and uncharged crimes as stages in the
plan’s execution.” Imwinkelried, Uncharged Misconduct
Evidence § 3:22 at 3-147.39 In other words, the challenged
evidence is proof of part of the planning process (even if it
is a bad act itself) and establishes one or several prelimi-
nary steps that culminate in the commission of a charged

	39
       The distinction between “true plan” and “spurious plan” evidence is not
limited to criminal cases or charged crimes. Relevancy requirements, and the
limits on bad acts evidence under OEC 403, apply equally in civil cases. But we
frame the distinction here in the context of criminal prosecutions, because that is
what this case involves and that is the context in which Imwinkelried discusses
it.
440	                                        State v. Turnidge (S059155)

crime.40 To be relevant, evidence of a “true plan” need not
be similar to the charged crime. Id. Indeed, the charged
crime “need not have been contemplated originally.” Id. at
3-149-3-150.41
	Unlike Leistiko, this case involves “true plan,” not
“spurious plan,” evidence. Here, the state did not introduce
evidence of the 1995 bomb threat to show, first, that defen-
dant had a plan in 1995 to commit a bank robbery using a
bomb and, because he had such a plan on a past occasion,
the jury should infer that he acted consistently with that
plan by also later committing the 2008 bombing. If that were
the state’s theory, then, under Leistiko, the relevancy of the
1995 bomb threat would require some heightened degree of
similarity between the two incidents.42 Instead, the state
has argued that the 1995 bomb threat showed evidence of
a trial run of a bank robbery. That qualified as “true plan”
evidence, as described by Imwinkelried. The 1995 bomb
threat (under the state’s theory) was an actual preparatory
step in the commission of the later, 2008 bank bombing, one
that aided defendant in gathering information about how
the bank and law enforcement personnel would respond to a
caller who claimed that a bomb had been planted outside the
bank. The heightened degree of similarity between the prior
bad act and the charged crime required to establish the rel-
evancy of a “spurious plan”—as explained and applied in
	40
        One example of “true plan” evidence would be evidence that a defendant
stole a gun to commit a robbery. Leistiko, 352 Or at 188 n 13. There, of course,
the two crimes both involve theft. Another example, however, would be theft of
a gun to commit murder. In that case, the prior bad act (theft) has no similar-
ity with the planned crime of murder. It is relevant, however, because it was a
step in committing the murder and is evidence that, in Imwinkelried’s words, the
defendant had “in fact and in mind formed a plan” to kill the victim using a gun.
Imwinkelreid, Uncharged Misconduct Evidence § 3.22 at 3-147.
	41
       An example of a prior bad act not initially committed in contemplation
of the charged act would be evidence that a defendant formed a plan to gain an
inheritance by killing other possible heirs, A, B, and C, but, at a later point, D
was born, and the defendant then killed D. Evidence of the defendant’s attempts
to kill A, B, and C would be relevant under a “plan” theory to prove that the defen-
dant killed D. Imwinkelried, Uncharged Misconduct Evidence § 3:22 at 3-150.
	42
        Because this case does not involve “spurious plan” evidence, as did Leistiko,
352 Or at 189, we need not resolve any difference between the approaches set out
by Wigmore and Imwinkelried as to the degree of similarity required for the
prior bad act to be relevant. Neither do we need to decide whether the 1995 bomb
incident was sufficiently similar to the 2008 bombing be admissible under such a
theory.
Cite as 359 Or 364 (2016)	441

Leistiko, 352 Or at 188-89 & n 13—therefore does not apply
here. Instead, the admissibility of the 1995 bomb threat evi-
dence depended simply on whether it was logically probative
of a “true plan” on defendant’s part; if so, then the evidence
was relevant and admissible.
	        In that regard, several aspects of the 1995 bomb
threat that we earlier described show that that evidence
was logically probative to prove that defendant had made
the threat as a preliminary step (that is, a trial run)
to accomplishing the charged crimes in this case. See
Imwinkelried, Uncharged Misconduct Evidence § 3:22
at 3-147 (in true plan case, test is whether prior crime
evidence is logically relevant to show that defendant
formed a plan with both uncharged and charged crimes
as stages in plan’s execution). Both the 1995 threat and
the current crimes involved banks in the small town of
Woodburn, located in the same general area; indeed, the
jury could have found from evidence presented during the
state’s offer of proof and admitted in the record that all
three bank locations were within view of the restaurant
from which defendant and Laughlin had watched police
respond to the 1995 bomb threat. The 1995 incident also
supports the inference that, in placing the bomb in 2008,
defendant and Bruce purposely selected that same gen-
eral location—conveniently located near Interstate 5—
which was familiar to defendant from the 1995 incident.
Also, both incidents involved threatening calls made to
bank tellers with instructions to go to specific locations
outside, but in the immediate vicinity of, the banks in
question, which, again, suggests that the 1995 incident
served as trial run for the later planting of a real bomb.
Finally, defendant learned from the 1995 bomb threat
the nature of the police response when a life-threatening
call is placed to a bank. It is true, as defendant urges,
that there was a significant lapse of time between the
two events. But in the case of “true plan” evidence, that
does not necessarily detract from the relevancy of the evi-
dence. As long as it is logical to infer that the past act
was a preparatory step in the commission of the charged
crimes—and here, it is—the prior steps of a plan do not
have to be proximate in time to the charged crimes to be
442	                                      State v. Turnidge (S059155)

relevant. Id. at 3-149 (for “true plan” evidence, uncharged
crimes and charged crimes need not be proximate in
time; for logical relevance, “it makes no sense to adopt
a categorical rule that the crimes be proximate to each
other”).
	         In short, the evidence of the 1995 bomb threat qual-
ified as “true plan” evidence. Because it was relevant for that
nonpropensity purpose, the trial court properly held under
OEC 404(3) that the evidence was admissible.43
           e.  Balancing under OEC 403
	        As discussed earlier, if a trial court determines that
prior bad acts evidence is relevant to a nonpropensity pur-
pose under OEC 404(3), the court, on a proper motion, must
weigh the probative value of the evidence against its poten-
tial to unduly prejudice the defendant, per OEC 403, before
admitting the evidence. Williams, 357 Or at 19. And as noted
earlier, as part of their arguments about OEC 404(4), the
parties debate whether the trial court was required to, and
did, engage in OEC 403 balancing here. Specifically, as part
of his supplemental argument submitted after Williams
was decided (but not in his opening brief that raised this

	43
        As summarized earlier, in evaluating whether to admit the evidence of
the 1995 bomb threat, the trial court considered some of the factors set out in
Johns. In our discussion of Johns set out above, relating to prior bad acts evi-
dence in the context of the doctrine of chances, and in light of the state’s argu-
ment as to why the evidence here should have been admitted, we do not mean
to suggest that the trial court erred in considering those factors. Depending on
the state’s asserted relevancy rationale for admitting contested prior bad act
evidence, a variety of factors may apply, as our discussion above about proof
of a “plan” demonstrates. Compare Leistiko, 352 Or at 188 (to establish modus
operandi, similarities must be notably significant), with Garrett, 350 Or at 10
(to establish motive, prior bad acts evidence “need not have the same physical
elements as the crime charged” (citing State v. Hampton, 317 Or 251, 855 P2d
621 (1993))).
	   Relatedly, prior bad acts evidence offered to demonstrate “knowledge” might
or might not require similarities to the charged crime to be logically relevant.
The state might, for example, offer evidence that a person charged with burglary
had knowledge of an alarm system by showing that he had previously burgled a
location with a similar alarm system. But it might also offer evidence showing
that he had stolen a book that explained and provided diagrams of how to disarm
such an alarm system. The burglary of the first location would bear significant
similarities to the second and would be relevant because of those similarities.
The theft, on the other hand, would bear little resemblance to the charged con-
duct, but that fact would not detract from its logical relevance given the subject
matter of the theft.
Cite as 359 Or 364 (2016)	443

assignment of error), defendant contends that, notwith-
standing OEC 404(4), the trial court was required to bal-
ance under OEC 403 to ensure that admission of the 1995
bomb threat evidence did not violate due process. According
to defendant, the trial court admitted that evidence without
assessing whether it was more probative than unfairly prej-
udicial, and thus erred.
	         To be sure, as defendant observes, the trial court
did not specifically articulate its findings in terms of the
“probative” versus “prejudicial” value of the evidence. The
trial court, did, however, refer to factors that play into the
balancing analysis. The court noted—necessarily on the
“prejudice” side of the equation—that the 1995 bomb threat
incident was remote in time. See Johns, 301 Or at 555 (“As
to the time element, the closer in time of the prior act to
the act charged, the greater the probative value; the more
remote, the less probative value.”) The court also noted—
necessarily on the “probative” side of the equation—the
high degree of similarity between the 1995 incident and the
charged crimes. See id. (“[T]he less similarity, the less pro-
bative value.”). Moreover, when the trial court at the pre-
trial motion in limine hearing gave the state leave to later
ask it to reconsider its ruling on the admissibility of the
1995 bomb threat evidence, the court expressly declared
that, if it did reverse its ruling, it would admit that evidence
only if it determined that the evidence was relevant; the
court further noted that the balancing test set out in OEC
403 also would apply. When the trial court reversed its rele-
vancy ruling at trial and admitted the evidence, defendant
did not raise any objection or note any concern that the trial
court had failed to engage in the balancing that the trial
court said that it would perform. On this record, we con-
clude that, contrary to defendant’s argument now, the trial
court performed the balancing under OEC 403 that OEC
404(3) requires.
        f.  Limiting jury instruction under Leistiko
	        Finally, we consider defendant’s argument that,
under Leistiko, 352 Or 172, the trial court was required sua
sponte to give the jury a particular limiting instruction and
that its failure to do so amounted to plain error. The state
444	                                      State v. Turnidge (S059155)

responds that any error that might have occurred is neither
preserved nor plain. Because this court issued its decision in
Leistiko after the trial in this case, and because Leistiko—
as discussed further below—raised a doctrine of chances
issue that is related to our earlier discussion of Johns, we
address defendant’s contention on the merits. We begin by
explaining this court’s decision in Leistiko.

	In Leistiko, the challenged evidence was rele-
vant for a nonpropensity purpose under only a doctrine of
chances theory. There, the defendant was charged with the
forcible rape of three women; in his defense, the defendant
did not concede sexual contact with all three women, but
he asserted that, if the contact had occurred, it had been
consensual. 352 Or at 177. To show forcible compulsion and
rebut defendant’s claim of consent, the state offered evidence
that, on a separate and distinct occasion that was not part
of the charges that the state had brought, the defendant
had engaged in forcible sexual intercourse with a different
woman. Although the defendant’s consent defense differed
somewhat from an “absence of mistake” defense described in
the “doctrine of chances” discussion from Johns, it similarly
involved a contention that the defendant—if he committed
the charged acts at all—did not do so with a culpable men-
tal state. Accordingly, this court specifically addressed the
“intent” argument in Leistiko in terms of the “doctrine of
chances.” Id. at 185. In rejecting the state’s argument that
the disputed evidence had been properly admitted under the
doctrine of chances, this court observed that “the doctrine of
chances rests on the proposition that the defendant either
concedes the act that requires proof of a mental state or the
trial court instructs the jury not to consider uncharged mis-
conduct evidence offered to prove intent unless and until the
jury finds the act that requires proof of intent to have been
done and is proceeding to determine intent.” Id. (emphasis
added).44 Defendant argues that Leistiko controls here, so
that the trial court was required to sua sponte instruct the
jury that it could not consider the evidence of the 1995 bomb

	44
       Defendant also cites and relies on State v. Pitt, 352 Or 566, 293 P3d 1002
(2012). Pitt, like Leistiko, was a case involving a doctrine of chances relevancy
theory and therefore is not on point here.
Cite as 359 Or 364 (2016)	445

threat until it first determined that defendant had commit-
ted the required actus rea for the charged crimes.
	        However, consistently with our earlier discus-
sion, although a Leistiko-styled limiting instruction may
be required when prior bad acts evidence is offered to
prove “intent” or “absence of mistake” under the doctrine
of chances theory of relevancy, such an instruction is not
required when prior bad acts evidence is admitted for other
relevant purposes. Leistiko, in effect, was predicated on the
fact that, under the doctrine of chances, the prior bad act is
only conditionally relevant—that is, its relevancy depends
on whether the factfinder first agrees that the defendant
committed the charged criminal act, which it can do if the
defendant concedes as much or if, before considering the
prior bad act evidence, the factfinder resolves any dispute
of fact on the point against the defendant. 352 Or at 185-
86. That same rationale does not generally apply to other
theories on which prior bad acts may be relevant, however.
Modus operandi or “signature crime” evidence is illustrative.
The point of requiring a high degree of similarity between
a defendant’s past criminal acts and the charged acts is to
establish identity—that is, that the defendant is the perpe-
trator of the crime. See, e.g., State v. Johnson, 313 Or 189,
197, 832 P2d 443 (1992) (when prior bad acts are sufficiently
similar to charged acts to give rise to an inference of “sig-
nature crime,” factfinder can infer defendant’s identity as
perpetrator of charged offense). Given that purpose, the
factfinder must necessarily consider such evidence as part
of determining whether the defendant committed the actus
reus, not afterwards.
	        So, too, here. As we have concluded, the 1995 bomb
threat evidence went to defendant’s affirmative plan to rob a
bank, a relevant and admissible purpose under OEC 404(3).
If believed by the jury for that purpose, the evidence tended
to show both that defendant engaged in the charged conduct
and did so with the required mental state. For the evidence
to be relevant, the jury was not first required to conclude
that defendant in fact had engaged in the charged criminal
conduct. Rather, the 1995 bomb threat evidence was inde-
pendently probative of that very fact. For those reasons, the
446	                              State v. Turnidge (S059155)

trial court did not err in failing to give a Leistiko-style lim-
iting instruction.
                    III.  GUILT PHASE
A.  Evidence of Defendant’s Views About Law Enforcement
    and Other Political and Related Beliefs (Assignment
    Nos. 45-48)
	         As earlier described, during the joint guilt-phase
trial, the state introduced the testimony of several witnesses
who testified about defendant’s anti-establishment political
views, including his negative views toward law enforcement.
On review, defendant challenges the admission of testimony
of six of those witnesses, raising a relevancy argument
under OEC 401 and related challenges under the First and
Fourteenth Amendments to the United States Constitution.
Because the state responds that some of defendant’s chal-
lenges are not preserved, we first describe both the testi-
mony and the nature of defendant’s objections—or lack
thereof—to that testimony. As explained below, we conclude
that defendant preserved his relevancy and federal consti-
tutional challenges to most, but not all, of the testimony at
issue. We then address defendant’s challenges on the merits,
which, as we will explain, we reject.
    1.  Additional facts, witness testimony, and preservation
	         Before trial, defendant moved in limine to exclude
evidence of the 1995 bomb threat incident, described ear-
lier. In resolving that motion, the trial court agreed that the
evidence was not admissible and precluded the state from
mentioning that incident in its opening statement, but gave
the state leave to revisit the issue during trial. In response
to the court’s ruling, the state asked if the ruling extended
to other anticipated testimony, from additional witnesses,
about statements that defendant and Bruce had made over
the years expressing their political and related views. The
court then clarified that its ruling was directed to only the
1995 bomb threat evidence. Defendant did not object to the
limited scope of the court’s ruling and thus did not preserve
any pretrial challenge to the anticipated evidence of his
political and related views. In effect, before trial, defendant’s
Cite as 359 Or 364 (2016)	447

only objection was to the evidence of the 1995 bomb
threat.
	        At trial, the state introduced testimony about
defendant’s views from several witnesses, beginning with
Sherwood. Sherwood testified that defendant had stated
that he had no respect for law enforcement, had made dis-
paraging statements about police, and was concerned about
the upcoming presidential election and its effect on his right
to bear arms and the stability of government. Defendant did
not object to that testimony at any point; his challenge to
that testimony on review therefore is not preserved, and we
do not address it.
	        Next, the state introduced testimony from
McLaughlin. McLaughlin first testified to a derogatory
statement that defendant had made about women generally.
Defendant objected on relevancy grounds, and the trial court
overruled the objection. Defendant did not object on First
Amendment grounds. Consequently, defendant’s relevancy
challenge—but not any First Amendment challenge—to
that part of McLaughlin’s testimony is preserved and prop-
erly before us on review. As we note below, however, even if
the trial court erred in admitting that testimony, any such
error was harmless. 359 Or at 449 n 46.
	        McLaughlin next testified to statements that defen-
dant had made reflecting his negative views of government
generally, banks and law enforcement more specifically,
and the then-leading Democratic candidates for president,
including statements disparaging one candidate’s gender
and another’s race. Defendant did not object to that testi-
mony, and nothing in his earlier objection to McLaughlin’s
testimony relating to defendant’s derogatory statement
about women can be construed as raising a general objection
to the rest of McLaughlin’s testimony. Defendant’s challenge
to those latter aspects of McLaughlin’s testimony—describ-
ing defendant’s views of government, banks, law enforce-
ment, and the presidential candidates—therefore is not pre-
served, and we do not address it. See State v. Clemente-Perez,
357 Or 745, 752, 359 P3d 232 (2015) (citing State v. Wyatt,
331 Or 335, 343, 15 P3d 22 (2000), for proposition that party
448	                            State v. Turnidge (S059155)

must provide trial court with explanation of objection spe-
cific enough to ensure that court can identify alleged error
and with sufficient clarity to permit immediate consider-
ation and correction of error).
	        Later, the state introduced testimony from Laughlin
about the 1995 bomb threat incident, as described above.
As the state prepared to ask Laughlin about defendant’s
views of law enforcement more generally, defendant objected
on relevancy grounds, also citing the First and Fourteenth
Amendments to the United States Constitution. The trial
court overruled that objection, but permitted defendant to
have a standing objection to all similar evidence. The state
then introduced testimony from Laughlin to the effect that
defendant would “hate cops” if he were pulled over, given a
ticket, or arrested. In light of defendant’s objection, defen-
dant’s challenges to that testimony—based both on rele-
vancy and the First Amendment—are properly before us on
review.
	        After Laughlin testified, the state introduced testi-
mony from three more witnesses whose testimony defendant
challenges on review. Defendant’s standing objection during
Laughlin’s testimony operated to preserve his relevancy and
First Amendment challenges to the testimony of those three
witnesses. The first additional witness was Warner, who was
an employee at an establishment where defendant had been
a regular morning coffee customer. Warner had told defen-
dant that she had obtained a new job working for a 9-1-1 call
center, to which defendant had replied that he would not be
able to work with police every day and that, if he had a job
like that, “he would have to kill someone because he fucking
hated police.” After Warner later quit her 9-1-1 job, defen-
dant told her, “I knew you weren’t a fucking Nazi.” Another
witness, Wood, who had worked in 2008 as an assistant for
Bruce’s brother, testified that defendant quickly went from
cordial to agitated when she told him that she previously
had worked for another state’s public safety department and
that her husband worked in corrections; defendant declared
that he hated officers, who he said should “go deal with the
illegal immigrants that were breaking the law instead of
the law abiding white men.”
Cite as 359 Or 364 (2016)	449

	        Finally, the state introduced testimony from
Chasteen, who briefly had been engaged to defendant.
Chasteen was dining with defendant and his father in April
1995 when the television news reported the Oklahoma City
bombing. She testified that both defendant and Bruce were
“jubilant” about the bombing; that Bruce cheered the bomb-
ing and pumped his fist; that Bruce declared that the bomb-
ing “needed to happen” “[t]o teach the government a lesson”
because of the government’s role in earlier events at Ruby
Ridge, Idaho, and Waco, Texas; and that defendant “defi-
nitely agreed” with Bruce’s excitement about the bombing.45

     2.  Relevancy under the Oregon Evidence Code

	       We turn to defendant’s challenges to the testimony
to which he did object—that is, the testimony of Laughlin,
Warner, Wood, and Chasteen—beginning with defendant’s
relevancy argument under OEC 401, followed by his related
argument under the First and Fourteenth Amendments.46
	45
       The state introduced testimony from additional witnesses, whose testi-
mony is not at issue on review, also to the effect that defendant spoke to them
about governmental and law enforcement overreaching, and that, while in jail
awaiting trial, defendant had referred to law enforcement on the scene of the
bombing as “[s]tupid fucking pigs [who] got what they deserved.”
	46
       Defendant’s four assignments of error raising both relevancy and First
Amendment issues categorize the evidence at issue as relating to defendant’s
views on four topics—minorities, women, police, and government generally. We
do not consider the particular topics of “minorities” and “women.” Regarding
minorities, defendant made derogatory racial comments about a then-presiden-
tial candidate and also made the comment about “illegal immigrants * * * break-
ing the law.” In reviewing the record as a whole, those comments can be viewed as
part and parcel of the general evidence relating to defendant’s anti-establishment
sentiments, and we view them accordingly. We reach a similar conclusion about
negative comments that defendant made about a female presidential candidate.
	    Otherwise, McLaughlin also testified about a negative comment that defen-
dant had made about women generally, which was different in character from his
other statements that described his anti-establishment views. After reviewing
the record, we conclude that—even assuming, as defendant asserts, that the trial
court erred in overruling his relevancy objection to that testimony—any error
in that regard was harmless. (Defendant did not object to that evidence on First
Amendment grounds.) We therefore do not discuss that aspect of McLaughlin’s
testimony any further.
	    On review, defendant also cites the “unfair prejudice” rule, OEC 403, but he
does not make any particular argument about prejudice. Similarly, he asserts
without argument that admission of the “political beliefs” evidence violated his
right to a fair trial. We do not consider those sources of law, neither of which
defendant relied on at trial.
450	                            State v. Turnidge (S059155)

	        OEC 401 defines “relevant evidence” as “evidence
having any tendency to make the existence of any fact that
is of consequence to the determination of the action more
probable or less probable than it would be without the evi-
dence.” Relevant evidence is admissible, except as other-
wise provided by the Oregon Evidence Code, Oregon stat-
ute, case law, or state or federal constitutional provisions.
OEC 402. Defendant asserts that evidence of his political
beliefs and views toward law enforcement was not relevant
under OEC 401 to prove that he intentionally caused the
deaths of Captain Tennant and Trooper Hakim. Defendant
specifically argues that, although the state is generally
permitted to introduce evidence of motive to prove its case,
the state failed to sufficiently demonstrate in this case why
his political beliefs made it more likely that he committed
the charged crimes. The state responds that the evidence
showed defendant’s animus toward law enforcement, thus
serving to prove that, in participating in building and plant-
ing the bomb, defendant acted with intent to kill or harm
law enforcement officers.
	         OEC 401 requires a “rational relationship” between
the evidence offered “and the substantive issues properly
provable in the case.” State v. Guzek, 322 Or 245, 251, 906 P2d
272 (1995). As defendant frames it, the question is whether
a sufficient logical connection exists between the evidence of
his anti-establishment, anti-law enforcement views and the
state’s asserted motive for the crimes. We agree that some
sort of logical connection is required. Contrary to defendant’s
position, however, to establish relevancy, the state need not
affirmatively prove “why” defendant’s political beliefs made
it more likely that he committed the crimes. Instead, the
required connection can be inferred when the nature of the
evidence at issue, evaluated in light of the circumstances
of the crime, makes the inference a logical one. See State v.
Hampton, 317 Or 251, 258, 855 P2d 621 (1993) (citing State
v. Rose, 311 Or 274, 283 & n 7, 810 P2d 839 (1991) (motive
is relevant circumstantial fact that makes it more proba-
ble that defendant committed the crime; when evidence of
motive is admitted, it must be considered with other evi-
dence surrounding commission of crime and given weight
jury deems proper)).
Cite as 359 Or 364 (2016)	451

	         Several of our cases illustrate that general proposi-
tion and its limits. State v. Flett, 234 Or 124, 380 P2d 634
(1963), is an example of the state’s evidence of logical rele-
vancy falling short—that is, no connection could be logically
inferred between the evidence and the defendant’s motive or
intent. In Flett, the defendant was accused of killing her hus-
band, and she argued at trial that his death had occurred
during a violent fight. The state introduced evidence that
the defendant had told a neighbor several months before
that she had had a one-time affair. This court assumed that
the state permissibly could use evidence of marital infidel-
ity (particularly, recently occurring infidelity) “in a proper
case,” because it might have “some slight probative value,”
such as proving motive, particularly where ill will toward
the deceased spouse might be an issue. Id. at 126-27. The
court stated, however, that “the connection between isolated
acts of marital infidelity and the purposeful slaying of a
spouse is extremely tenuous in any case.” Id. at 127. Turning
to the record, the court observed that the defendant and the
victim regularly had quarreled and drunk excessively, and
“no evidence [tended to show] that the hostility, if any, of one
spouse toward the other had anything to do with marital
fidelity.” Id. at 127-28. Given those circumstances, the court
concluded that the trial court abused its discretion in admit-
ting the evidence, which “had nothing to do with the issues
the jury was called upon to decide.” Id. at 128. In noting
further that the state had attempted to “blacken the defen-
dant’s character by proof of collateral misconduct having so
little to do with the crime as to be virtually irrelevant,” the
court commented that the evidence was improper “unless
the state is prepared to show some substantial connecting
link between the two acts.” Id.
	       In contrast to Flett, this court in State v. Hayward,
327 Or 397, 963 P2d 667 (1998), and State v. Brumwell, 350
Or 93, 105, 249 P3d 965 (2011), cert den, 565 US ___, 132
S Ct 1028 (2012), determined that a connection between
contested evidence and the defendants’ motives and intent
could be logically inferred, given the nature of the evidence
as evaluated in light of the circumstances of the charged
crimes. Those defendants together with other codefen-
dants, some of whom considered themselves satanists, had
452	                           State v. Turnidge (S059155)

committed a brutal robbery and murder. During Hayward’s
guilt phase and Brumwell’s penalty phase trials, the state
introduced evidence of their satanic beliefs and interests in
death metal music to prove motive and intent. In both cases,
this court concluded that the circumstances of the crimes—
specifically including the defendants’ desire to commit mur-
der, not just robbery; to carve satanic symbols in the vic-
tims; to pay homage to a death metal band member; and to
leave other blood evidence of satanism at the scene—were
connected to the defendants’ satanic beliefs and interest.
Because of that relationship, the court determined that the
challenged evidence was sufficiently connected to motive
and intent to be relevant under OEC 401, and was not
merely coincidental with the crime. Hayward, 327 Or at 407;
Brumwell, 350 Or at 105-07.
	        Here, as in the cases just summarized, the ques-
tion is whether a connection between the disputed evi-
dence of defendant’s anti-government views—offered by
witnesses Laughlin, Warner, Wood, and Chasteen—and
the state’s theory about defendant’s motive can be logically
inferred. The state asserts that the evidence was relevant
to prove defendant’s animus toward law enforcement offi-
cers, which in turn demonstrated a motive from which the
jury reasonably could infer defendant’s intent to engage in
actions aimed at killing or harming officers. On review of
the record, and evaluating the contested evidence in light of
the circumstances of the crimes, we agree with the state. As
described earlier—and as we discuss later in added detail—
the state presented evidence from which the jury could find
that defendant, together with Bruce, committed the follow-
ing acts, which led to the deaths of Captain Tennant and
Trooper Hakim, and the critical injuries to Chief Russell:
Defendant purchased component parts for a highly explo-
sive bomb; he built such a bomb; he planted the bomb at
West Coast Bank; and he called and issued the threats to
Wells Fargo Bank and West Coast Bank, thereby drawing
law enforcement to the scene to search for suspicious pack-
ages. At trial, defendant disputed not just whether he took
those actions at all; he also disputed whether, even if he
took them, he did so with the intent to cause death or injury
to anyone. The evidence of defendant’s anti-establishment
Cite as 359 Or 364 (2016)	453

views and, more particularly, his negative views toward law
enforcement, were logically relevant to the state’s theory
that defendant took those actions intending to kill others,
including law enforcement. In essence, the fact that defen-
dant held vehement anti-government, anti-establishment,
and anti-law enforcement views supplied evidence of his
motive for his participation in the ultimate explosion that
killed and injured law enforcement officers. The inference
that defendant’s actions were motivated by his beliefs was
a logical one on this record. See State v. Lewis, 352 Or 626,
635, 290 P3d 288 (2012) (threshold for relevance under OEC
401 is low). Because it was, the trial court did not err in
admitting the testimony as relevant under OEC 401.
     3.  First Amendment
	        Defendant relatedly argues that, even if the evi-
dence was relevant and admissible under OEC 401, admit-
ting evidence of his political beliefs violated his free expres-
sion rights under the First and Fourteenth Amendments.47
He relies on Dawson v. Delaware, 503 US 159, 167, 112 S Ct
1093, 117 L Ed 2d 309 (1992), in which the Supreme Court
held that a trial court had erred in admitting evidence of the
defendant’s involvement in the Aryan Brotherhood during
the penalty phase of a capital trial, when the prosecution
had not demonstrated a connection between that evidence
and any issue in the penalty phase.48 In defendant’s view,
this case provides a more extreme example of a constitu-
tional violation than Dawson, because the evidence at issue
was offered during the guilt phase to prove defendant’s
motive to commit the charged crimes, which is not itself an
element of those crimes. Defendant further repeats his ear-
lier argument—which we rejected above—that the state did
not sufficiently show any connection between the disputed
evidence and the charged crimes.
	47
       The First Amendment to the United States Constitution provides
that “Congress shall make no law * * * abridging the freedom of speech[.]”
It applies to the states through the Due Process Clause of the Fourteenth
Amendment. Presley v. Georgia, 558 US 209, 211-12, 130 S Ct 721, 175 L Ed
2d 675 (2010).
	48
        The victim in Dawson had been white, and the murder had been carried
out in the course of a robbery that the defendant allegedly committed after escap-
ing from prison. 503 US at 160-61, 166.
454	                            State v. Turnidge (S059155)

	        Defendant is correct that, in Dawson, evidence
of “mere abstract beliefs” that a jury might find “morally
reprehensible” is not admissible in the penalty phase of a
capital case; the beliefs must have some connection to an
issue in the proceeding. Id. at 167. In so holding, however,
the Supreme Court explained that evidence of a defendant’s
beliefs may be admitted if it is relevant to an issue before
the jury. In that regard, the proponent of the disputed evi-
dence must establish a sufficient factual connection between
a defendant’s beliefs and the circumstances of the crime to
make those beliefs probative of some issue in the case. Id.
Otherwise, the disputed evidence is inadmissible, because
it “ha[s] no bearing on the issue being tried.” Id. at 168; see
also State v. Moore, 324 Or 396, 419-23, 927 P2d 1073 (1996)
(explaining and applying Dawson in case involving penalty-
phase evidence of defendant’s belief in white supremacy;
evidence of defendant’s specific beliefs and related conduct
admissible because probative of future dangerousness,
which was at issue).
	        Unlike in Dawson, the state’s collective proof in this
case showed why defendant’s anti-government views and
hostile attitude toward law enforcement were relevant to
the issues being tried during the guilt phase. In seeking to
prove that defendant intentionally committed the charged
crimes—which involved building and placing a highly explo-
sive bomb outside a bank, with law enforcement drawn to
the scene as a result of a threatening phone call—the state
sought to prove that defendant was motivated by his anti-
establishment views and his negative attitudes toward
law enforcement. Because the disputed evidence was logi-
cally connected to, and thus relevant to, an issue at trial,
its admission did not violate the First and Fourteenth
Amendments. Dawson, 503 US at 168.
B.  Motion for Judgment of Acquittal, Proof of “Intent,”
    “Causation,” and “Personally” Elements; Related Jury
    Instructions (Assignment Nos. 119-137)
    1.  Additional procedural facts, statutory provisions,
        and parties’ general arguments on review
	       At the close of the state’s case, defendant moved
for judgment of acquittal. As pertinent to the issues that
Cite as 359 Or 364 (2016)	455

defendant raises before this court, defendant’s motion
focused on the sufficiency of the state’s evidence to prove
that he acted intentionally, as required by the charges
of aggravated murder, attempted aggravated murder,
assault (counts 1 through 15), and conspiracy to commit
aggravated murder (count 18). Defendant also disputed
whether the evidence was sufficient to prove that his acts
caused the victims’ deaths and injuries (all counts except
count 18, conspiracy). Finally, defendant argued that the
evidence did not show that he “personally” caused the vic-
tims’ deaths, as required by the aggravated felony mur-
der charges (counts 7 through 10). The trial court denied
defendant’s motion; later, at the close of all the evidence,
defendant made his motion again, and the court again
denied it. Defendant now challenges that ruling, renewing
his challenges to the sufficiency of the evidence as to intent,
causation, and his personal involvement in the charged
crimes. Relatedly, he also challenges the trial court’s fail-
ure to give certain jury instructions that reflected his
position on the legal meaning of the intent and causation
elements.
	        The standard by which we review a denial of a
motion for judgment of acquittal is a familiar one. In testing
whether the record is sufficient to support a jury’s verdict,
we view the evidence in the light most favorable to the state,
drawing all reasonable inferences and credibility choices in
the state’s favor. State v. Lupoli, 348 Or 346, 366, 234 P3d
117 (2010); Cunningham, 320 Or at 63. Frequently, however,
a defendant’s motion for judgment of acquittal also frames
threshold disputes over whether some fact is an element of
a charged crime or the legal meaning of an element (issues
that often are framed as well by the defendant’s requested
jury instructions). When legal disputes are encompassed
in the arguments for and against a motion for judgment
of acquittal, we resolve them as we would any other legal
question—that is, we determine and announce the correct
rules of law that apply. Cf. State v. Gonzalez-Valenzuela, 358
Or 451, 456, 365 P3d 116 (2015) (parties’ dispute over ade-
quacy of evidence involved disagreement over meaning of
statutory terms, which court resolved as legal issue of stat-
utory construction).
456	                                      State v. Turnidge (S059155)

	        Defendant’s contentions here involve both the fac-
tual adequacy of the evidence, as well as certain legal con-
tentions about the nature of the elements that the state
had to prove. We separately analyze, as do the parties,
the sufficiency of proof on each of the three elements that
were the focus of defendant’s motion: intentional men-
tal state, causation, and personal involvement. Before
doing so, however, we briefly review the homicide statutes
involved.49
	        Under Oregon’s Criminal Code, there are four
basic levels of homicide offenses. In ascending order in
terms of the seriousness of the offense and the severity of
the penalty, those levels are criminally negligent homi-
cide (ORS 163.145), manslaughter (first and second degree,
ORS 163.118 and ORS 163.125 respectively), murder (ORS
163.115), and aggravated murder (ORS 163.095). Criminal
homicide is the “baseline” offense—it provides the founda-
tion on which the other homicide offenses build.
	         Beginning with that baseline, a person commits
criminal homicide when, without justification or excuse,
the person “causes” the death of another human being
with any of four mental states—intentionally, knowingly,
recklessly, or with criminal negligence. ORS 163.005(1). If
criminal homicide is committed with criminal negligence,
the offense is criminally negligent homicide. ORS 163.145.
If it is committed recklessly, the offense elevates to man-
slaughter in either the first or second degree.50 If crimi-
	49
        As we have noted, defendant’s motion was directed to the assault and con-
spiracy as well as aggravated murder counts. On direct review, defendant’s brief
mentions those counts as well, but his argument focuses almost exclusively on
the aggravated murder counts. We likewise focus our discussion on those counts,
recognizing that our analysis as to both intent and causation similarly resolves
defendant’s challenges to the assault and conspiracy charges.
	50
        See ORS 163.118(1)(a) (criminal homicide constitutes first-degree man-
slaughter when committed “recklessly under circumstances manifesting extreme
indifference to the value of human life”); ORS 163.125 (criminal homicide consti-
tutes second-degree manslaughter when committed “recklessly”). Manslaughter
can also be committed with other mental states under limited circumstances not
relevant here. See, e.g., ORS 163.118(1)(b) (criminal homicide constitutes second-
degree manslaughter when a person intentionally causes or aids another in com-
mitting suicide); ORS 163.125(1)(d) (criminal homicide constitutes first-degree
manslaughter when a person with criminal negligence operates a motor vehicle
while under the influence of intoxicants).
Cite as 359 Or 364 (2016)	457

nal homicide is committed intentionally, the offense ele-
vates to murder. ORS 163.115(1)(a) (so-called “intentional
murder”). Criminal homicide can elevate to murder in
other ways as well, ones that do not require an intentional
mental state. As relevant here, a person also commits
murder by committing criminal homicide (that is, causing
death) in the course of committing, attempting to commit,
or during immediate flight from the commission of certain
specified felony crimes. ORS 163.115(1)(b) (so-called “fel-
ony murder”). Among the felonies that can give rise to fel-
ony murder are, again as relevant to this case, first-degree
robbery and first-degree criminal mischief by means of an
explosive. ORS 163.115(1)(b)(B), (G).51
	       Finally, murder elevates to aggravated murder
when a person commits intentional murder under specified
circumstances. Those circumstances include three that
were the basis for six of the aggravated murder charges
in this case: the murder of more than one victim in the
same criminal episode, ORS 163.095(1)(d) (counts 1 and 2);
the murder of a police officer when related to performance
of the officer’s official duties in the justice system, ORS

	51
        ORS 163.115 provides, in part:
    	    “(1)  [With exceptions that do not apply here], criminal homicide consti-
    tutes murder:
    	    “(a)  When it is committed intentionally * * *; [or]
    	    “(b)  When it is committed by a person, acting either alone or with one or
    more persons, who commits or attempts to commit any of the following crimes
    and in the course of and in furtherance of the crime the person is committing
    or attempting to commit * * *, the person, or another participant if there be
    any, causes the death of a person other than one of the participants:
    	    “* * * * *
    	 “(B)  Criminal mischief in the first degree by means of an explosive as
    defined in ORS 164.365; [or]
    	    “* * * * *
    	    “(G)  Robbery in the first degree as defined in ORS 164.415;
    	    “* * * * *.”
See also ORS 164.055(2)(b) (defining “explosive” as “a chemical compound, mix-
ture or device that is commonly used or intended for the purpose of producing
a chemical reaction resulting in a substantially instantaneous release of gas
and heat”). The state did not charge defendant with either first-degree criminal
mischief or first-degree robbery; instead, it charged defendant with aggravated
felony murder under ORS 163.095(2)(d), based on commission of those two under-
lying felonies.
458	                                      State v. Turnidge (S059155)

163.095(2)(a)(A) (counts 3 and 4); and murder committed
by means of an explosive, ORS 163.095(2)(c) (counts 5 and
6). Also, as alleged in the four remaining aggravated mur-
der charges in this case (counts 7 through 10), felony mur-
der elevates to aggravated murder (so-called “aggravated
felony murder”) if the defendant “personally and intention-
ally committed the homicide” that resulted in the course of
the felony. ORS 163.095(2)(d).52
	        Thus, two of the elements that were the focus
of defendant’s motion for judgment of acquittal—intent
and causation—are common to all 10 aggravated murder
charges on which defendant was convicted. The third—
whether defendant “personally” caused the deaths—is an
element in only four of the 10 that alleged aggravated felony
murder. Although defendant makes discrete arguments as
to each of those proof requirements, his arguments share
a common factual theme. For each, defendant emphasizes
that the state offered no evidence from which a jury could
find that he performed an act that directly triggered the det-
onation of the bomb. Rather, the evidence established that
the bomb detonated as a result of some other force that could
not be definitively determined. According to defendant, the
evidence most strongly pointed to Trooper Hakim’s own

	52
       ORS 163.095 provides, in part:
   	 “* * * ‘[A]ggravated murder’ means murder as defined in ORS 163.115
   which is committed under, or accompanied by, any of the following
   circumstances:
   	    “(1)  * * *
   	    “* * * * *
   	    “(d)  There was more than one murder victim in the same criminal epi-
   sode as defined in ORS 131.505.
   	    “* * * * *
   	    “(2)(a)  The victim was one of the following and the murder was related to
   the performance of the victim’s official duties in the justice system:
   	    “(A)  A police officer as defined in ORS 181A.355;
   	    “* * * * *
   	 “(c) The defendant committed murder by means of an explosive as
   defined in ORS 164.055.
   	    “(d)  Notwithstanding ORS 163.115 (1)(b), the defendant personally and
   intentionally committed the homicide under the circumstances set forth in
   ORS 163.115 (1)(b).
   	    “* * * * *”
Cite as 359 Or 364 (2016)	459

actions in handling the bomb, which defendant asserted
below involved negligence or recklessness on Hakim’s part.
Alternatively, but less likely in defendant’s view, in light
of the state’s evidence at trial, a stray radio signal of some
kind may have triggered the bomb’s detonation. Either way,
however, the important point from defendant’s perspective
is that the record provides no basis to find that defendant
engaged in an act that triggered the bomb to detonate, and
the state does not assert otherwise.
	       Relying on that lack of evidence, and in combina-
tion with certain legal arguments as to the nature of the
elements that the state had to prove, defendant contends
that, as a matter of law, (1) the state established at most
that defendant acted recklessly, not intentionally; (2) some
superseding factor (such as a stray signal or the victims’
own negligence or recklessness) detonated the bomb and
that factor, not defendant’s conduct, “caused” the victims’
deaths; and (3) defendant therefore likewise did not “person-
ally” commit the homicides, as the aggravated felony mur-
der counts required. We take up each of those arguments
in turn, together with defendant’s related legal arguments
about the elements and his proposed jury instructions.
    2.  Proof of intent, analysis
	         As just described, common to all the aggravated
murder charges against defendant was the allegation that
defendant acted “intentionally” in causing the victims’
deaths. In support of his motion for judgment of acquittal,
defendant urged that, to satisfy the intent element, the
state had to prove that he acted with a conscious objective
to kill the “specific people” that he allegedly killed (Captain
Tennant and Trooper Hakim). Defendant further main-
tained that the state’s evidence was insufficient for a rea-
sonable jury to find that he “intended to kill * * * anyone,
let alone a particular human being.” Defendant therefore
reasoned that, even if the state did not have to prove that
defendant had a specific victim in mind and, instead, had
to prove only a more general intent to kill, the evidence
did not establish even that general intent. Rather, accord-
ing to defendant, the state’s evidence at most permitted
the jury to find that defendant had acted with a reckless
460	                                       State v. Turnidge (S059155)

mental state, as required for the lesser offense of man-
slaughter. Defendant renews those arguments on review
to this court.
	        We begin by examining the mental state of “inten-
tionally” in the context of the homicide statutes. In Oregon,
criminal liability generally requires the commission of an
act that is combined with a culpable mental state. State
v. Rutley, 343 Or 368, 373, 171 P3d 361 (2007). For most
Oregon criminal offenses, the culpable mental state is either
intentionally, knowingly, recklessly, or criminally negligent.
See generally State v. Crosby, 342 Or 419, 427-28, 154 P3d
97 (2007) (discussing general mental state requirements of
Oregon criminal statutes). Each of those mental states is
expressly defined by statute. See ORS 161.085(7)-(10) (set-
ting out definitions). And each definition requires the men-
tal state to be directed, depending on the definition, towards
either conduct, a result, or a circumstance, depending on the
elements of the substantive offense involved. Crosby, 342 Or
at 428. Under the definition of “intentionally,” what must be
intended is either a result or conduct, as described in the
substantive offense:
    	 “ ‘Intentionally’ or ‘with intent,’ when used with respect
    to a result or to conduct described by a statute defining an
    offense, means that a person acts with a conscious objective
    to cause the result or to engage in the conduct so described.”
ORS 161.085(7). The mental state of recklessly, by contrast,
attaches to a result or a circumstance described by the sub-
stantive offense, but not to conduct:
    	 “ ‘Recklessly,’ when used with respect to a result or to
    a circumstance described by a statute defining an offense,
    means that a person is aware of and consciously disregards
    a substantial and unjustifiable risk that the result will
    occur or that the circumstance exists.”
ORS 161.085(9).53 To determine, then, what the mental
state element actually requires of the state’s proof for any

	53
        Those definitions apply to Oregon’s homicide offenses. See Crosby, 342 Or
at 429 (applying definition of “recklessly” in ORS 161.085(9) to criminal homi-
cide); State v. Wille, 317 Or 487, 494, 858 P2d 128 (1993) (because statutes defin-
ing criminal homicide and murder do not separately define “intentionally,” gen-
eral definition in ORS 161.085(7) applies).
Cite as 359 Or 364 (2016)	461

particular charge, the starting point is to identify the result,
conduct, or circumstance “described” by the statute setting
out the elements of the offense. State v. Simonov, 358 Or 531,
541, 368 P3d 11 (2016).
	         For criminal homicide, which (again) is the base-
line for murder and aggravated murder, the mental state
element “ha[s] as its object ‘causing the death’ ” of another
human being. Crosby, 342 Or at 433-34; see also State v.
Woodman, 341 Or 105, 118-19, 138 P3d 1 (2006) (for inten-
tional murder, intent applies to “causing the death” of the
victim). Death is a “result” for purposes of the mental state
elements. Crosby, 342 Or at 430-31. Thus, a person commits
criminal homicide “intentionally” if the person acts “with a
conscious objective” that his or her actions would result in
the death of another human being or otherwise engages in
conduct “intended to cause the death of another.” Woodman,
341 Or at 119. A person commits criminal homicide “reck-
lessly,” by contrast, if the person was “aware of and con-
sciously disregard[ed] a substantial and unjustifiable risk of
causing * * * death.” Crosby, 342 Or at 431 (internal quota-
tion marks omitted).54
	         As a threshold matter, we reject defendant’s posi-
tion that the intent required for murder and aggravated
murder generally is an intent to cause the death of a spe-
cifically identified person. The plain text of the statutes
does not support defendant’s position. Criminal homicide is
committed when, with any of the four accompanying mental
states, a person causes the death of “another human being.”
ORS 163.005(1). The words that the legislature chose do
not suggest that a defendant’s actions must target a par-
ticular, identifiable person. They lead to the exact opposite
conclusion—as long as a defendant intends the death of

	54
       “Death” readily qualifies as a result within the meaning of the various
mental state definitions of ORS 161.085, as Crosby expressly held, 342 Or at
430-31, and Woodman earlier assumed, see 341 Or at 119 (intent for homi-
cide requires conscious objective that actions will “result” in death). Whether
“causes death” is conduct as well as a result is less clear. The distinction may be
of more academic than practical significance, however, at least in this context.
See Crosby, 342 Or at 434 (in Woodman, it made no difference whether “causing
death” is result or conduct, so court did not decide that question); cf. ORS 131.235
(for purposes of jurisdiction, both death and conduct that causes death is result).
462	                                       State v. Turnidge (S059155)

“another” human being, that is enough. The identity of the
person does not matter.55
	        In context, that conclusion is all the stronger.
Criminal homicide consists of causing the death of “another
human being” regardless of the culpable mental state with
which it is committed—for example, regardless whether the
person acts with criminal negligence or intentionally. If the
victim’s specific identity is an aspect of the described result,
it would be an element for all levels of homicide, not just
intentional homicide. That would mean, for example, that
a person would commit criminally negligent homicide only
if the person failed to be aware of a substantial and unjus-
tifiable risk of causing the death of a specifically identifi-
able person. See ORS 161.085(10) (defining criminal neg-
ligence). That added element would eliminate many if not
most circumstances in which criminally negligent homicide
typically arises. See, e.g., Lewis, 352 Or 626 (distracted and
inattentive driver of commercial semi-truck, who diverted
eyes from road ahead for extended length of time and failed
to see truck stopped in turn lane, collided with truck, killing
its driver). The same would be true for second-degree man-
slaughter, which requires a reckless mental state. See, e.g.,
State v. Moore/Coen, 349 Or 371, 245 P3d 101 (2010), cert
den, 563 US 996 (2011) (driver, who had prior DUII convic-
tions, guilty of reckless manslaughter where he drove intox-
icated and hit another vehicle, killing other driver). And any
number of intentionally committed homicides could not be
prosecuted as any form of unlawful homicide, let alone as
intentional or aggravated murder.56 Defendant’s proposed
reading of the statute is simply too strained.
	55
       Perhaps because the meaning of “another human being” is so straight-
forward for most purposes, it received little attention when ORS 163.005 was
enacted as part of the 1971 Oregon Criminal Code. The Commentary to the code
merely explains that a “human being” means “one who has been born and was
alive at the time of the criminal act,” which was intended to preclude the criminal
homicide statute from applying to lawful abortions. Commentary to Criminal
Law Revision Commission Proposed Oregon Criminal Code, Final Draft and
Report § 87, 84 (July 1970). Nothing in the legislative history suggests that the
phrase required proof of a specific victim’s identity.
	56
        For example, a mass killing in a public venue where the killer has no idea
who will be present not only would not be intentional murder, it would not be
criminal homicide at all. The same would be true of targeted but random killings,
such as when a sniper shoots and kills the driver of a car on the freeway, picking
the victim arbitrarily.
Cite as 359 Or 364 (2016)	463

	        We conclude, therefore, that the state satisfies its
burden to show that a criminal homicide was intention-
ally committed if it proves—as the state sought to prove
in this case—that the defendant had the conscious objec-
tive of causing the death of any or all persons in harm’s
way. In other words, the intent element common to mur-
der and aggravated murder is satisfied if the defendant
intends, in an undifferentiated way, to cause the death of
one or more other human beings; the defendant does not
have to know the identity of his victims or target them
based on identity.57
	         We turn to defendant’s remaining argument—that,
on this record, the evidence at most supported a finding
that defendant acted recklessly, not intentionally. For the
“intent” element of the various counts of aggravated murder,
the trial court advised the jury that a person acts intention-
ally if that person “acts with a conscious objective to cause
a particular result,” which, in the context of the aggravated
murder charges, meant that the person “acts with a con-
scious objective to cause the death of another human being.”
Defendant did not at trial, and does not on review, take issue
with that instruction. Defendant argues only that the evi-
dence that the state produced was inadequate, as a matter
of law, to permit a reasonable jury to find that he acted with
that conscious objective.
	        The crux of defendant’s challenge to the factual suf-
ficiency of the evidence is that, because the state presented
	57
        Defendant relatedly argues that the state could not rely on the doctrine
of “transferred intent” in this case, urging that the doctrine was abolished with
the adoption of Oregon’s current homicide statutes. That doctrine arose at com-
mon law to address the situation where A engages in conduct intended to kill B,
and instead kills C, an “unintended” victim. See State v. Grayson, 126 Or 560,
568, 270 P 404 (1928) (explaining doctrine). Defendant similarly argued to the
trial court that the doctrine of transferred intent had been abolished under the
current homicide statutes, noting that he was raising the point only because he
thought that the state might rely on the doctrine to prove its case. The state’s
theory and proof, however, was not that defendant intended to kill one or more
specific individuals, and that the individuals actually killed in the blast were
“unintended” or mistaken victims to whom defendant’s intent should transfer.
Rather, the state’s theory and proof were that defendant intended to kill anyone
and everyone in harm’s way. This case therefore does not present a circumstance
in which the transferred intent doctrine traditionally has applied, and so we need
not determine whether the doctrine is either a necessary or viable one for the
state to pursue in an appropriate case.
464	                                     State v. Turnidge (S059155)

no evidence that defendant had performed an act that caused
the bomb to detonate, or that he otherwise acted with cer-
tainty that it would detonate, the jury could not reasonably
infer that defendant—even if it found that he played a role in
making and planting the bomb—had the conscious objective
of causing anyone’s death. Defendant asserts that, cast in the
light most favorable to the state, the state proved that defen-
dant had financial problems, made statements to others about
wanting to rob a bank, and had previously called in a bomb
threat to a bank. On the basis of that evidence, defendant
concedes on review that the record contains evidence from
which the jury could find that he intended to commit robbery.
And defendant further concedes that there was at least some
evidence—his purchase of the TracFones and airtime cards,
his welding experience and knowledge about explosives, and
the threatening call to Wells Fargo Bank at a time when he
was near Woodburn—sufficient to show that he committed
attempted robbery. But, defendant emphasizes,
   “[t]here was no evidence that defendant directed the explo-
   sion in this case: there was no evidence that he lit a fuse;
   pulled a trigger; ordered someone to pull a trigger; or set up
   the device in such a way that it would inevitably trigger.”

	        As a result, in defendant’s view, the state’s evidence
and its theory of guilt invited the jury to infer an intent to
kill from the fact that defendant, in the course of a robbery
attempt, planted a “dangerous weapon” in a public place
and then “abandoned” it there, even if it might not inevita-
bly explode. Without evidence that defendant triggered the
bomb’s detonation or planned for events to play out exactly
as they did, defendant insists that the jury could not find
that his actions were “consciously directed at causing the
explosion and deaths.”58 At most, in defendant’s view, the
state proved that he acted recklessly by leaving a dangerous
instrumentality in a public place, indifferent to the risk that
leaving it there posed.
	58
       Specifically, defendant argues that the state had to demonstrate that
“defendant planned on leaving a device at the bank, planned that a bomb techni-
cian would respond and incorrectly identify the bomb as a hoax device, planned
that the bomb technician or someone would take the device inside a public build-
ing, and planned or known with certainty that the device would be triggered by
either someone hitting it or a random radio frequency setting it off.”
Cite as 359 Or 364 (2016)	465

	        Defendant’s argument offers one view of the record
that a factfinder could take, but not the only view. The jury
was not compelled on this record to conclude that this was
an aborted robbery attempt and nothing more—one in
which defendant, acting together with Bruce, merely “aban-
doned” a dangerous bomb in a public place, indifferent to the
risk that it posed to human life. Rather, consistently with
the state’s theory of the case, the jury reasonably could infer
from the circumstances as a whole that defendant’s “con-
scious objective” throughout was to cause death, an objective
that he achieved.
	        We have already recited the evidence in detail at the
outset of our opinion. But by way of summary, and viewed
most favorably to the state, the jury reasonably could have
found the following. First and most essentially, defendant,
together with Bruce, designed, built, planted, and left the
bomb at West Coast Bank. As to the nature of the bomb, it
was sophisticated and complex. It contained—in a concealed
area—three to five pounds of a dangerous high explosive
that was readily capable of causing devastation and death.
The explosive was set high in the structure of the bomb,
so that, upright on the ground as it was placed outside the
bank, the blast would go farther and with more force than
if the explosive were directly on the ground. Because the
explosive was encased in a metal box—with additional thick
pieces of metal and steel inside—on detonation, the metal
structure and internal metal and steel would blast apart
into ragged fragments that would be violently projected
into any nearby person, object, or building. In designing
and building the bomb, defendant, together with Bruce, had
ensured their own safety while handling it, by installing an
external safe-arm switch that first had to be flipped for the
bomb to be armed and ready for detonation. In short, by its
inherent nature, the bomb was dangerous to handle, even
for someone who knew what it was and how it was designed,
and the bomb had a single purpose: Massive destruction.
	        Equally significantly, the evidence permitted the
jury to find that the bomb, although designed to be deadly,
was also designed to appear to be fake—a hoax device, safe
for handling. With its purposefully green-painted exterior
466	                             State v. Turnidge (S059155)

and its purposeful placement among the bushes outside
West Coast Bank, visible in the daylight, it could pass as a
landscaping or other utility box. It required close examina-
tion to determine that it was not something ordinary and
harmless. But even on close examination, its critical, deadly
components were concealed inside. A battery and wires
were visible, but the explosive material was not. Instead,
the explosive was hidden in a way that made it appear that
there was none.
	         The jury could further find that, once the bomb
was planted outside West Coast Bank, defendant then
called Wells Fargo Bank, issuing direct threats and explicit
instructions to bank employees, intending to draw law
enforcement to both banks. And the jury could infer that
responding law enforcement played directly into defendant’s
hands. That is, defendant, with his distrust and dislike of
government, wanted law enforcement officers to do exactly
what they did—conclude that the bomb was a hoax and
attempt to process it as a nonexplosive device. Meanwhile,
though, the safe-arm switch was not protecting them, as the
jury could have found that it did while defendant and Bruce
handled it. In all, the jury could find from the evidence that
defendant had laid a trap for law enforcement officers and
others, and had done so successfully.
	         That was an ample basis on which the jury could
reasonably infer that defendant, in planning, building, and
planting the bomb, acted with the “conscious objective” of
causing the death of one or more other human beings. See
generally State v. Allison, 325 Or 585, 590 n 5, 941 P2d 1017
(1997) (mental state may—and often must—be inferred from
evidence of acts taken and surrounding circumstances); Rose,
311 Or at 282 (intent rarely susceptible to direct proof). To be
sure, if the evidence had been that defendant had “lit a fuse;
pulled a trigger; [or] ordered someone to pull a trigger” that
detonated the bomb, the inference that defendant intended
to cause death would be all the stronger. But the fact that
the state could have had a stronger case—one that might
have all but eliminated any competing inference that defen-
dant might want the jury to draw—does not mean that the
state’s proof was not sufficient to defeat defendant’s motion
for judgment of acquittal. From the evidence of the bomb’s
Cite as 359 Or 364 (2016)	467

sophisticated design and construction, together with its
strategic, destructive placement and the threatening phone
call to the bank, the jury could find that defendant acted
with the conscious objective to kill one or many people. And,
contrary to defendant’s argument, the jury’s ability to draw
inferences to support that finding did not depend on evidence
that defendant had “set up the device in such a way that it
would inevitably trigger.” A person can act with a conscious
objective of causing death without certainty or even likeli-
hood of succeeding. Aggravated murder, for the completed
crime, requires only that the defendant act with that intent
and in fact succeed. That possibility that success was not
guaranteed, or even that it was a long-shot, would not negate
the conscious objective with which the defendant acted.
	         Finally, defendant makes much of the prosecutor’s
statement in closing argument to the jury that it “doesn’t
matter” whether defendant or some other force had trig-
gered the bomb’s detonation, focusing instead on defendant’s
acts in building the bomb and planting it in a public place.
Relying on a limited excerpt from the prosecutor’s closing,
defendant urges that the prosecutor invited the jury to find
defendant guilty of aggravated murder based merely on
defendant having engaged in intentional conduct that “reck-
lessly resulted” in a death. (Emphasis in original.)
	         In testing the evidence for sufficiency, we review
the evidence, not the parties’ arguments, to determine what
facts a reasonable jury could find. Even so, defendant’s
characterization of the prosecutor’s argument does not
accurately portray it. The prosecutor emphasized the facts
that we have summarized above (along with others, and all
in greater detail), told the jury that the trial court would
instruct them that “intentionally” requires that a person
act “with a conscious objective to cause a particular result,”
and repeatedly urged the jury to conclude from the circum-
stances as a whole that defendant and Bruce designed the
bomb to kill and to kill more than one person, intended it to
explode, and planted it at the bank with the plan and intent
to kill. The prosecutor argued to the jury that, for defen-
dant (and Bruce), the explosion was, in their minds, “their
big McVeigh moment.” The only part of the plan that went
awry, he continued, was that the bomb was taken inside the
468	                                      State v. Turnidge (S059155)

near-empty bank, where the blast—by being significantly
contained—killed and injured far fewer people than defen-
dant (and Bruce) had planned for and intended. In response
to defendant’s argument to the jury that, because the state
had not proved that defendant had detonated the bomb, the
jury should not infer that he intended to kill anyone, the
prosecutor urged: “You know how you build a bomb you don’t
want to go off? It’s easy. You don’t build a real bomb.” In
short, the prosecutor did not misdirect the jury’s consider-
ation of the evidence or urge the jury to convict defendant for
having engaged in his actions with reckless indifference to
the risk the bomb posed to human life. Instead, the prose-
cutor, relying on logical inferences from the evidence, urged
the jury to infer that defendant and Bruce acted with the
conscious objective to cause the death of others.
	         To summarize, defendant was not entitled to a
judgment of acquittal on the theory that the state, to sat-
isfy the “intentionally” element of the various aggravated
murder charges, had to prove that defendant intended to
kill Captain Tennant and Trooper Hakim specifically, as
opposed to intending to kill whomever was in harm’s way
of their lethal bomb.59 Neither was defendant entitled to a
judgment of acquittal on the theory that, as a matter of law,
the evidence supported his guilt only on a theory that he
acted recklessly, not intentionally, so that he was guilty of
at most manslaughter. The trial court therefore did not err
in denying defendant’s motion for judgment of acquittal on
the ground that the state failed to prove intent under ORS
163.005(1) (criminal homicide), ORS 163.115(1)(a) (murder),
and ORS 163.095(2)(d) (aggravated felony murder).
     3.  Proof of causation, analysis
	         Defendant’s second ground for his motion for judg-
ment of acquittal was that the state failed to prove that
defendant engaged in conduct that had “cause[d]” the death
of another, as required for the aggravated murder charges
(as well as several of the lesser charges). In support of his
	59
       Because we reject defendant’s legal position in that regard, we likewise
conclude that he was not entitled to have the jury instructed that, for purposes
of proving all counts in which intent was an element, the “identity of the victim
is a material element” and the state was required to “prove that the defendant
intended to kill the specific person killed[.]”
Cite as 359 Or 364 (2016)	469

motion, defendant argued that the causation element for
intentional and aggravated murder requires evidence of
both factual and “legal” cause, and the court must decide
legal cause based on “policy factors which are relevant to
the determination of criminal responsibility.” (Internal quo-
tation marks omitted.) Building on that premise, defendant
asserted that, even if the jury found that he had planted
the bomb outside West Coast Bank, or had aided Bruce in
doing so, “that action did not cause any deaths.” The deaths
did not occur until the bomb detonated, which, according
to defendant, was due to law enforcement’s “unforesee-
able reckless conduct in, first, determining the * * * bomb
was a ‘hoax device,’ and then in the unforeseeably reckless
manner” in which in the bomb was handled until it deto-
nated. That asserted recklessness, defendant contended,
was “independent of the placement of [the] bomb,” with the
result that defendant’s conduct—even if the jury found that
he had placed the bomb—was not the “legal” cause of the
victims’ deaths. Defendant therefore urged that he was not
criminally responsible for aggravated murder.
	        On review to this court, defendant essentially
renews the arguments that he made to the trial court.
In response, the state takes issue with defendant’s prem-
ise that the “cause” element of Oregon’s homicide statutes
encompasses “legal cause” as well as factual cause. In the
state’s view, defendant incorrectly focuses on only the “final
act” when, instead, principles of causation operate to hold
him responsible for setting in motion a “chain of events” that
was intended to cause and did cause death.
	        The parties’ arguments thus frame two princi-
pal questions. The first is whether, to “cause” the death of
another human being under the criminal homicide statute,
the legislature intended the causal element to encompass
the concept of “legal” or “proximate” cause, as well as actual
cause (or factual cause or cause-in-fact). The second ques-
tion arises only if we conclude that the answer to the first is
“yes.” Then, the question is: What is the test for proximate
or legal cause in this context, and did the state’s evidence
fail to satisfy it as a matter of law, entitling defendant to
a judgment of acquittal on most of the charges, including
all the aggravated murder charges? After determining the
470	                                       State v. Turnidge (S059155)

meaning of “cause” in this context, we then assess whether
the state’s evidence was legally sufficient to prove that defen-
dant’s intentional actions were a cause of the victims’ deaths.
To provide context for our analysis, we begin with a brief
overview of the traditional approach to proof of causation in
the law. We then turn to Oregon’s homicide statutes and the
causation element in particular.
	        “The law has long considered causation a hybrid con-
cept, consisting of two constituent parts: actual cause and
legal cause [also termed proximate cause].” Burrage v. U.S.,
571 US ___, 134 S Ct 881, 887, 187 L Ed 2d 715 (2014) (citing
H. Hart & A. Honore, Causation in the Law 104 (1959)).60
Actual cause is simple cause-in-fact—that is, one thing hap-
pened and, because it did, something else happened. To say
that a person “caused” harm to another expresses, at least
for most purposes in the law, the idea that, “but for” a per-
son’s act or conduct, the harm would not have happened:
    “[The “but for” rule of causation] may be stated as follows:
    The defendant’s conduct is a cause of the event if the event
    would not have occurred but for that conduct; conversely,
    the defendant’s conduct is not a cause of the event, if the
    event would have occurred without it.”

W. Page Keeton, Prosser and Keeton on The Law of Torts § 41,
265-68 (5th ed 1984) (Prosser & Keeton); 61 accord Joshi v.
	60
        Black’s Law Dictionary 265-66 (10th ed 2014), provides a long list of syn-
onyms for “cause,” including “legal cause,” which is defined by cross-reference
to “proximate cause.” The effort to shift the terminology to “legal” cause and
away from “proximate” cause was led by the original Restatement of Torts and
continued through the Restatement (Second) of Torts. The Restatement has now
abandoned both terms in favor of straightforwardly identifying the principles
that should limit the “scope of liability” for conduct that causes harm in fact,
rather than treating the issue as one of causation at all. See Restatement (Third)
of Torts: Physical and Emotional Harm § 26 comment a and Reporter’s Note com-
ment a (2010) (for 75 years, Restatement embraced “legal cause” terminology for
traditional concept of “proximate cause,” but “legal cause” has not been widely
used in practice, and neither term is illuminating).
	61
       As Professor Keeton further explains, “but for” as a rule for factual
causation is not the only rule that the law applies, because it provides an inad-
equate test of cause-in-fact in those circumstances in which “two causes con-
cur to bring about an event, and either one of them, operating alone would have
been sufficient to cause the identical result[.]” Prosser & Keeton, Torts § 41, 266.
In that situation, a person’s conduct is considered a factual cause of the harm
as long as it was “a substantial factor in bringing it about.” Id.; see also Joshi
v. Providence Health System, 342 Or 152, 161-62, 149 P3d 1164 (2006) (citing
Cite as 359 Or 364 (2016)	471

Providence Health System, 342 Or 152, 161, 149 P3d 1164
(2006) (citing passage with approval); see also Wayne R.
LaFave, 1 Substantive Criminal Law § 6.4(b), 467 (2d ed
2003) (to same effect, in criminal context). Conduct can be a
cause-in-fact of harm without being the only cause of harm;
it can concur or combine with other factual causes, as well.
For example, one person’s conduct may occur early in the
chain of causation and, depending on the circumstances,
may be a “but for” cause by resulting in a series of forces
or events that follow to cause the injury, each of which is
also a link in the causal chain without which the injury
would not have resulted. See, e.g., Palsgraf v. Long Island
R.R. Co., 248 NY 339, 162 NE 99 (1928) (railroad employee
cause-in-fact of plaintiff’s injury by causing passenger to
drop fireworks package, which exploded; explosion caused
scales some distance away to fall; scales fell on and injured
plaintiff).

	         Legal or proximate cause, in contrast, expresses a
policy judgment as to whether conduct that factually caused
harm should result in liability or responsibility. The idea
generally is that some conduct, although an actual cause of
harm, nevertheless should not result in liability or respon-
sibility for that harm. “[T]o say that one event was a proxi-
mate cause of another means that it was not just any cause,
but one with a sufficient connection to the result.” Paroline
v. U.S., ___ US ___, 134 S Ct 1710, 1719, 188 L Ed 2d 714
(2014) (emphasis added). Proximate cause doctrine has been
a product of incremental common-law development, with the
courts announcing and modifying the appropriate limits of
liability over time. And although the doctrine has developed
principally in the area of civil tort law and negligence in
particular, in theory it extends to the analysis of causation
for crimes that require “not merely conduct but also a speci-
fied result of conduct.” LaFave, 1 Substantive Criminal Law

statement with approval; observing that, in Oregon, both “but for” and “substan-
tial factor” tests apply). The two tests, in all but rare circumstances, usually lead
to the same conclusion. Joshi, 342 Or at 162. We do not dwell on the “substantial
factor” test, because the circumstances of this case fit those appropriate for a
“but for” analysis and defendant does not dispute that the evidence permitted the
jury to find that he built and planted the bomb, which as explained later below,
satisfies “but for” causation.
472	                                       State v. Turnidge (S059155)

§ 6.4 at 464.62 There, too, the causal connection between the
conduct and the result “requires something more than mere
coincidence as to time and place,” id. § 6.4(a) at 466, and
requires instead “a sufficient causal connection between the
defendant’s conduct and the result of his conduct,” id. § 6.4(a)
at 467 (emphasis added). Beyond those general observa-
tions, however, the concept of proximate cause “defies easy
summary.” Paroline, ___ US at ___, 134 S Ct at 1719. “There
is perhaps nothing in the entire field of law which has called
forth more disagreement, or upon which the opinions are
in such a welter of confusion.” Prosser & Keeton, Torts § 41
at 263; see also United States v. Matusiewicz, No CR 13-83,
2015 WL 9305641 at *2 (D Del Dec 21, 2015) (even though
“much ink has been spilled on the topic of proximate cause,
the concept remains a convoluted one”).
	         That backdrop brings us to the interpretative issue
before us: Did the legislature intend the “causation” ele-
ment in the criminal homicide statute (“causes the death
of another,” ORS 163.005(1)), to mean only actual cause
(i.e., cause-in-fact)? Or, instead, did the legislature also
intend that word to encompass the concept of proximate
or legal causation, leaving it to the courts to announce the
policy limits on criminal responsibility that will apply? In
resolving that interpretative issue, the slate that we write
on is not blank. This court’s decisions in State v. Murray,
	62
        Long-standing observations by other scholars point out that civil law tort
principles of causation are an uneasy fit in the criminal law context, due in part
to the different policy objectives of tort and criminal law. See, e.g., Paul K. Ryu,
Causation in Criminal Law, 106 U Pa L Rev 773, 773, 803 (1958) (discussion
of causation has received “scant attention” in area of criminal law, as opposed
to civil tort law; in criminal law field, courts have not applied a uniform law
of causation, and principles should not necessarily track civil law principles,
because the policy objectives of tort and criminal law are not the same); James
Angell McLaughlin, Proximate Cause, 39 Harv L Rev 149, 151 & n 12 (1925) (pro-
ceeding, for purposes of discussing proximate cause doctrine, on “the theory that
the same principles of causation obtain in torts and crimes,” but declaring that to
be “a bold assumption which may be challenged”).
	    One difficulty with extending the common-law doctrine of proximate cause
in the criminal law context is that criminal offenses, unlike torts, usually are
defined by statute. Thus, the inquiry in the criminal law area is one of legis-
lative intent. Interpreting general causation elements of statutory schemes to
encompass “proximate cause” concepts raises its own set of issues. See Sandra F.
Sperino, Statutory Proximate Cause, 88 Notre Dame L Rev 1199, 1232-43 (2013)
(discussing range of problems posed by implying proximate cause concepts into
statutory terms of general causation).
Cite as 359 Or 364 (2016)	473

343 Or 48, 162 P3d 255 (2007), and State v. Petersen, 270
Or 166, 526 P2d 1008 (1974), are all but on point. At first
blush, however, they suggest different answers. We there-
fore examine those cases in some detail, starting with
Petersen.
	In Petersen, the defendant and a friend agreed to
participate in a “drag race” on a public street. Each had a
passenger in his vehicle. In the course of the race, the two
approached an intersection at high speed. The defendant,
who was in the lead, slowed and stopped; his friend did not.
As his friend passed the defendant and went through the
intersection at high speed, a truck crossing the intersec-
tion collided with the friend’s car, killing both the friend
and the friend’s passenger. Id. at 167 (describing some fac-
tual details and incorporating those set forth in Court of
Appeals opinion); State v. Petersen, 17 Or App 478, 484-86,
522 P2d 912 (1974) (setting out facts in full). The defen-
dant in Petersen was charged with and convicted of second-
degree manslaughter by having recklessly “cause[d] the
death of another human being.” ORS 163.125(1)(a); ORS
163.005(1).
	         The issue in Petersen was whether the defendant
was entitled to a judgment of acquittal on the theory that
his participation in the drug race was not the “legal cause”
of the two deaths. Petersen, 17 Or App at 489. On appeal
to the Court of Appeals, the defendant drew from civil tort
concepts of proximate cause, intervening cause, and foresee-
ability of harm to argue that his friend’s recklessness had
been a “supervening cause” of the deaths and, more gener-
ally, that his friend’s and the passenger’s voluntary partici-
pation in the reckless activity of drag racing should relieve
him of criminal liability for their deaths. Id. at 489-90. The
majority rejected his position, concluding that the “words of
the statutes are inclusive” and provided for “no exception,”
so that, as long as the defendant’s conduct was a cause-in-
fact of the deaths (which the majority concluded that it was),
criminal liability attached. Id. at 490-91.
	         Chief Judge Schwab dissented. In his view, the con-
cept of “legal causation”—which he described as not an issue
of causation at all, but one of criminal responsibility for
474	                           State v. Turnidge (S059155)

conduct that is a factual cause of harm—was proper to con-
sider under the manslaughter statute. Id. at 495 (Schwab,
C. J., dissenting). And, moreover, legal causation was “ulti-
mately a policy question,” one traditionally committed to
the courts, that posed the question “whether we are willing
to hold a defendant responsible for a prohibited result.” Id.
at 495, 498. On the facts in Petersen, Chief Judge Schwab
would have declined to hold the defendant criminally liable
for the deaths of coparticipants in the high-risk activity of
drag racing. Id. at 498.
	       Petersen then came to this court on review, and
the court resolved the case summarily. It adopted Chief
Judge Schwab’s dissent “as the opinion of this court,” with-
out elaboration. The court merely characterized the dissent
as “expressing the opinion that ORS 163.125 should not be
interpreted to extend to those cases in which the victim is a
knowing and voluntary participant in the course of reckless
conduct.” Petersen, 270 Or at 167-68.
	        More than 30 years later, in Murray, 343 Or 48,
this court revisited the meaning of “causes” for purposes
of the Criminal Code. Murray involved a prosecution for
third-degree assault, which had, as an element, “[r]eck-
lessly causes serious physical injury to another.” ORS
163.165. The defendant owned a business that modified
cars for racing, and the victim was his employee. The
victim voluntarily accompanied the defendant on a “test-
drive” of a modified racing car, as he had done in the past.
In testing the car, the defendant drove it at more than
90 miles per hour in a residential area with a maximum
speed limit of 35 miles per hour. Defendant lost control
and crashed, and the victim was severely injured. Murray,
343 Or at 50. The issue presented was the same as in
Petersen: Whether, given the evidence that the victim had
been a knowing participant in the reckless activity, the
state’s evidence failed, as a matter of law, to establish
“legal causation” on which to base a conviction. Murray,
343 Or at 50-51.
	        Unlike in Petersen, however, this court approached
the issue in Murray as one of statutory interpretation. Using
its interpretative methodology from PGE, 317 Or at 610-12,
Cite as 359 Or 364 (2016)	475

the court examined the word “cause” in the third-degree
assault statute and observed:
    “The word ‘cause’ is not defined in the criminal statutes.
    It is, however, a word of common usage, which we presume
    the legislature intended to be given its plain, natural, and
    ordinary meaning. * * * The dictionary defines the verb
    ‘cause’ as follows: ‘1: to serve as a cause or occasion of: bring
    into existence: MAKE (careless driving * * * accidents) * * *
    2: to effect by command, authority or force.’ Webster’s Third
    New Int’l Dictionary 356 (unabridged ed 2002).”
Murray, 343 Or at 52. The court further observed that
the third-degree assault statute does not express any
limit on criminal responsibility based on the victim’s role
or mental state, or otherwise “carve out an exception for
harm done to willing participants in the conduct.” Id. at
52. From the text of the statute, the court concluded that a
person “causes” serious physical injury to another, within
the meaning of the third-degree assault statute, if the
person “brings about, makes, or effects by force the seri-
ous injury of another person with a dangerous weapon,
no matter the role of the other person in the reckless con-
duct.” Id.
	        The court in Murray did not ignore the holding
in Petersen. Although Petersen had involved a charge
under the manslaughter, not the assault, statute, the
court viewed Petersen as authoritative on the meaning
of the word “cause” in the context of a criminal offense
that has, as a statutory element, conduct that causes a
result described in the statute. Murray, 343 Or at 55. And
although Petersen had been grounded in policy consid-
erations and had not followed anything akin to the lat-
er-announced PGE approach to statutory interpretation,
the court considered itself “bound” to follow Petersen as
a matter of stare decisis, because the legislature had not
changed the statute at issue in that case in response to the
court’s holding. Murray, 343 Or at 55.63 It therefore turned
	63
        Murray appeared to follow what is termed the “rule of prior interpreta-
tion,” which in its strict form gives unyielding binding force to this court’s prior
interpretation of a statute, subject only to later revision of the statute by the
legislature. See Farmers Ins. Co. v. Mowry, 350 Or 686, 695-97, 261 P3d 1 (2011)
(discussing rule). In Farmers, this court disavowed that rule. Id. We now use the
476	                                       State v. Turnidge (S059155)

to Petersen as context relevant to the meaning of the term
“cause.” Murray, 343 Or at 52.
	       After describing the facts in Petersen and Chief
Judge Schwab’s dissent, the court in Murray sharpened
the focus to “what was actually before the court in Petersen
and what the court actually held there.” Id. at 55. The court
observed:
    “In Petersen, the defendant’s conduct—even if it was
    reckless—did not cause the victim’s death; the defendant’s
    contribution was limited to participation in the speed con-
    test. The victim was killed when a different person—the
    driver of the car in which the victim was riding—recklessly
    chose to speed into a busy intersection.”
Id. Likewise, the court pointed out, various examples that
Chief Judge Schwab had given in his dissenting opinion—
in which he similarly would have concluded that there
was no “legal causation”—also were not ones “in which a
potential defendant, by his or her own conduct other than
mere participation in the risky activity, caused a victim’s
death.”64 Id. at 55-56. The court therefore read Petersen—
based on Chief Judge Schwab’s dissent and this court’s
adoption of it—as standing for only the proposition that
“the mere fact that two people both participate in reckless
conduct at the same time and place does not mean that
one of the participants necessarily brings about, makes,
or effects by force a harm to the other participant”; for a
defendant’s actions to cause that harm “requires some-
thing more.” Id. at 56. What Petersen did not hold, the
court emphasized, was that someone whose conduct did
in fact “bring about, make, or effect by force an injury to
or the death of another” could escape criminal liability
for that conduct on the basis that the victim voluntarily

same prudential stare decisis considerations that we use for constitutional and
common-law precedents in deciding when to adhere to a prior authoritative inter-
pretation of a statute. Id. at 697-98.
	64
       As illustrations of the legal limits that he would place on the criminal
responsibility of persons who mutually and recklessly participate in a risky activ-
ity, Chief Judge Schwab cited a game of Russian roulette where one participant
shoots and kills himself; an automobile race at a race track where one racer is
involved in a fatal crash; and dangerous recreational activities such as skydiving,
deep sea diving, and ocean fishing in inclement weather. Petersen, 17 Or App at
496-97 (Schwab, C. J., dissenting).
Cite as 359 Or 364 (2016)	477

had placed himself or herself in a position to be injured or
killed. Murray, 343 Or at 56.
	         In essence, this court in Murray concluded that what
was missing in Petersen was evidence of actual causation.
Mutual participation in a risky activity may mean that the
participants’ reckless conduct coincides in “time and place”
with the harm, but that is not enough to be a cause-in-fact
of an injury—that is, conduct that “brings about, makes, or
effects by force” that injury. Id. Turning to the facts before
it, the court in Murray observed that “it is undisputed that,
in that sense, [the] defendant caused [the victim’s] serious
physical injuries; he stipulated that he was driving reck-
lessly and that his reckless driving led directly to the crash
that injured [the victim].” Id. Because the defendant’s reck-
less conduct of driving and crashing the car at 90 miles
per hour was a factual cause of the victim’s injuries, the
defendant was guilty of third-degree assault, regardless of
whether the victim’s own recklessness was also a cause.
	After Murray, no room remains to argue that
“cause,” as used in this statutory context, requires legal or
proximate causation, as well as causation-in-fact. In that
respect, Murray did not mark a departure in the role of prox-
imate or legal cause in Oregon case law, but instead fell into
line with both long-standing and evolving precedents.
	         In Oregon criminal cases specifically, proximate
cause doctrine—as a concept distinct from factual causation
that limits responsibility for otherwise culpable conduct that
is a cause-in-fact of harm—has not played an appreciable
role in the analysis of criminal responsibility. In particular,
this court has never held that it has the authority or respon-
sibility to invoke common-law proximate cause principles to
relieve a defendant of criminal responsibility for culpable
conduct that in fact caused harm as proscribed by a crimi-
nal statute. Our cases instead suggest the opposite. See gen-
erally State v. Ramos, 358 Or 581, 595, ___ P3d ___ (2016)
(legislature determines criminal responsibility based on
proscribed conduct and mental state); State v. Boag, 154 Or
354, 359-60, 59 P2d 396 (1936) (trial court properly refused
to instruct jury that intoxicated driving must be without
due care to be “proximate cause” of accident, where conduct
478	                                       State v. Turnidge (S059155)

proscribed by statute was act of driving intoxicated, regard-
less of exercise of due care).65
	        Nor is there any basis to conclude that proxi-
mate cause concepts were introduced into the criminal
law with the 1971 adoption of Oregon’s revised Criminal
Code, which enacted the current criminal homicide statu-
tory provisions, including the “causes” wording. The 1971
revised criminal homicide provisions were based princi-
pally on those of the Model Penal Code. See Commentary
to Criminal Law Revision Commission Proposed Oregon
Criminal Code, Final Draft and Report § 88, 86 (July
1970) (so stating); see also Model Penal Code, §§ 210.1-
210.4 (Proposed Official Draft 1962) (setting out homicide
offenses). Thus, under both the Model Penal Code and
Oregon’s 1971 revised code, criminal homicide—the base-
line offense for the elevated homicide offenses—is defined
as “caus[ing] the death of another human being” with
	65
       In older criminal cases, this court has sometimes mentioned the term
“proximate cause.” It has done so most frequently in the context of the former
negligent vehicular homicide and homicide manslaughter statutes, which, for a
time, expressly referred to “proximate result” and “proximate cause.” See former
ORS 163.090 (1953), repealed by Or Laws 1957, ch 396, § 1 (negligent vehicular
homicide committed “[w]hen the death of any person ensues within one year as
the proximate result of injuries caused” by negligently operating vehicle); former
ORS 163.040(2) (1953), repealed by Or Laws 1971, ch 743, § 432 (manslaughter
committed when person “in the commission of any unlawful act, or a lawful act
without due caution or circumspection, involuntarily kills another” but not where
“the proximate cause of such killing is an act or omission defined as [negligent
vehicular homicide]”). Many of those older cases quoted one or the other of those
offenses, but involved no issue of the meaning of “proximate” as used in those
statutes. See, e.g., State of Oregon v. Wojahn, 204 Or 84, 88, 282 P2d 675 (1955)
(quoting manslaughter statute). Other cases involved some discussion of “proxi-
mate” causation on the facts before the court, either under those or other offenses
involving negligent conduct. Those few cases—which appear to have viewed the
legislature as having incorporated civil negligence concepts into the statute—
uniformly held that a defendant is not relieved of criminal responsibility for neg-
ligently inflicted harm as long as the defendant’s conduct was a cause of injury,
regardless of whether someone else’s conduct was a concurrent or contributing
cause. See, e.g., Berry and Walker, 204 Or at 80-81 (negligent vehicular homicide;
defendant criminally responsible even if negligence of another is a concurrent
cause); see also State of Oregon v. Dewey, 206 Or 496, 539-40, 292 P2d 799 (1956)
(Tooze, J., dissenting) (negligent vehicular homicide; “It takes but one negligent
act, if it be the proximate cause, to constitute the crime [of negligent vehicular
homicide]; but just as it is in civil actions for damages based upon negligence,
several acts [of negligence] may be alleged, and the proof of one or more is suffi-
cient.”); State v. Newberg et al., 129 Or 564, 573, 278 P 568 (1929) (manslaughter;
same principles of law apply as in civil negligence action; fact that negligent act
of deceased contributed as cause-in-fact to bring about death “does not defeat the
prosecution” or provide defense).
Cite as 359 Or 364 (2016)	479

any of several specified mental states. Model Penal Code
§ 210.1; ORS 163.005(1). Oregon did not, however, adopt a
companion section of the Model Penal Code, Section 2.03,
which specifically defines when conduct is the “cause” of
a result. Under that section, factual “but for” causation
is required; the section also limits criminal responsibil-
ity based on factors that reflect the types of policy-based
considerations traditionally dealt with under the rubric
of proximate cause.66 The drafters of Oregon’s revised
Criminal Code not only declined to adopt Section 2.03,
they included no similar provision either defining the term
“cause” or limiting criminal responsibility based on prox-
imate or legal cause types of considerations. Oregon was
not alone in making that choice; the majority of jurisdic-
tions that adopted or considered revised codes modeled on
the Model Penal Code likewise rejected Section 2.03 and
omitted any provision analogous to it. See American Law
Institute, Model Penal Code and Commentaries, § 2.03,
comment 5 at 265 (1985) (describing majority approach).67
	        As importantly, when Oregon’s revised Criminal
Code was drafted and enacted, this court, in the area of
civil tort law, had abolished not only the terms but also
the concept, of “proximate” and “legal” cause. See Lasley v.
Combined Transport, Inc., 351 Or 1, 6-7, 261 P3d 1215 (2011)
(citing cases for proposition).68 Thus, for decades, “cause” in
	66
        See generally American Law Institute, Model Penal Code and Commentaries,
§ 2.03, explanatory note at 254 (1985) (factual causation required, but not itself
sufficient; liability for conduct that factually causes result subject to specified
additional requirements or limitations); comment 1 at 255 (discussing effort to
deal with circumstances “currently dealt with as issues of ‘proximate causation’ ”
and that present “enormous difficulty (especially in homicide) because of the
obscurity of that concept”).
	67
        The Commentary to Oregon’s 1971 Criminal Code revision does not men-
tion Section 2.03 of the Model Penal Code and provides no insight into why the
drafters did not incorporate it.
	68
        The demise of the proximate or legal cause doctrine in Oregon traces to
Justice O’Connell’s lengthy concurrence in Dewey v. A. F. Klaveness & Co., 233 Or
515, 539, 379 P2d 560 (1963), where he observed:
    “[T]he law of causation under existing practice is so ill-defined and confused
    that it offers little or no aid either to the courts or to the juries in the solution
    of the problems of liability * * *. The principal source of confusion is the treat-
    ment of causation, both as a factual concept, i.e., as to whether defendant’s
    conduct is physically connected with the injury, and as a liability concept, i.e.,
    as to whether, under the circumstances, the defendant should be held liable
    for the injury he caused.”
480	                                         State v. Turnidge (S059155)

Oregon has been understood to mean factual causation only,
not a hybrid of factual and proximate cause:
    “Causation in Oregon law refers to causation in fact, that
    is to say, whether someone examining the event with-
    out regard to legal consequences would conclude that the
    allegedly faulty conduct or condition in fact played a role in
    its occurrence.”
Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 606, 642 P2d
624 (1982) (so holding and citing cases; emphasis added).
The legislature adopted Oregon’s 1971 revised Criminal
Code against the backdrop of that general common-law
development. Consequently, in interpreting the meaning of
the term “cause” for purposes of Oregon’s homicide offenses,
even if we were to assume that “the legislature intended its
legal meaning,” rather than common and ordinary meaning,
as we did in Murray, the meaning would be the same: Cause
means cause-in-fact.69 See Joshi, 342 Or at 158 (so holding
in civil wrongful death action; statutory element of causing
death of another requires only causation in fact).

(Emphasis in original.) Justice O’Connell urged that “causation” should be under-
stood to be “a pure question of fact,” one that “calls for no judgment as to whether
[the] defendant is to be held liable for what he factually caused.” Id. at 540. The
majority of the court was not ready to so quickly make that shift in the court’s
common law doctrine. Id. at 518. But the court called the doctrine into question in
a series of cases that followed in the next few years. See, e.g., Babler Bros. v. Pac.
Intermountain, 244 Or 459, 463, 415 P2d 735 (1966) (describing proximate cause
as “an opaque way” of limiting legal consequences for conduct that causes harm,
one that sheds little light in difficult cases, and results in courts “hiding the
ball”). And the doctrine was dealt its final blow in Stewart v. Jefferson Plywood
Co., 255 Or 603, 606-07, 469 P2d 783 (1970) (discarding rubric of proximate or
legal cause), one year before the legislature enacted the revised 1971 Oregon
Criminal Code.
	69
         That conclusion is bolstered by the fact that the legislature knows how to
use the term “proximate cause,” when that is what it means, and it has done so
in a small handful of statutes. See ORS 74.4020(2) (bank liable only for damages
“proximately caused” by wrongful dishonor of negotiable item); ORS 468A.030
(persons violating air pollution standards not liable for condition “as to which any
negligence or willful misconduct on the part of such person was not the proximate
cause”); ORS 653.285 (employer liable for breach of statutory duty to reasonably
safeguard employee’s trade equipment if breach is “proximate cause” of damage
to or theft of equipment); ORS 477.993 (violation of specified statutes relating to
protection of forests and vegetation from fires punishable as misdemeanor offense
if violation “proximately cause[s]” human injury, loss of human life, or property
damage of $10,000 or more); see also former ORS 163.040(2) (1953) (former man-
slaughter statute expressly provided that provisions did not apply “where the
proximate cause” of death was “an act or omission defined as negligent homicide
in [former] ORS 163.090 [(1953)].”).
Cite as 359 Or 364 (2016)	481

	        Consequently, we adhere to our holding in Murray,
which in turn clarified the holding in Petersen and reaffirmed
it as clarified. Under Murray and Petersen, and consistently
with our precedents more generally, the term “cause,” when
used in a statute that attaches liability or responsibility for
conduct that causes a result, means cause-in-fact. It does
not also mean the now-discredited—under Oregon law at
least—concepts of proximate or legal cause.70 Rather, the
only inquiry to be made by the jury, or by a court testing the
evidence for sufficiency to go to the jury, is whether there is
evidence from which the conduct alleged could be found to
be a factual cause of injury.
	        As to whether the jury in this case reasonably could
find defendant’s conduct to have been a cause-in-fact of
Captain Tennant’s and Trooper Hakim’s deaths, defendant
did not at trial, and does not on review, argue that the evi-
dence in this case was insufficient as a matter of law. Nor
would such an argument have merit. The chain of causation
in this case was simple and direct. Viewed in the light most
favorable to the state, a reasonable jury could have found that
defendant, together with Bruce, designed, built, and planted
a highly lethal bomb outside a bank; he then made sure that
bank employees would know that they were in danger, so that
law enforcement would respond. The trap was thus laid. The
bomb exploded; two victims died from the blast; two more
were injured, but survived; and one of those survivors suffered
permanent disability from his injuries. The test of causation
for most circumstances is whether, “but for” the defendant’s
conduct, the event would not have occurred. Joshi, 342 Or at
161 (discussing test; explaining that it fits all but unusual
circumstances). Here, had defendant not designed, built,
and planted the bomb at the bank, there would have been no
explosion, and no one would have died or been injured. The
state’s evidence of defendant’s role in building and planting
the bomb, as well as placing the life-threatening call, provided

	70
        At least some courts have approached the issue based on the fact that their
common-law case law continues to view causation as a hybrid concept of both
actual and proximate causation. See, e.g., People v. Schaefer, 473 Mich 418, 435-
36, 703 NW2d 774, 784-85 (2005) (in context of statute criminalizing causing
death of another by driving vehicle while intoxicated, legislature presumed to
use term “cause” intending unique, technical legal meaning, which includes prox-
imate causation as well as “but for” causation).
482	                            State v. Turnidge (S059155)

an ample basis for the jury to find that defendant’s conduct
was a cause-in-fact of those devastating results. Defendant’s
role did not have to be the last link in the chain, or the only
one, for the jury to make that determination.
	        For those reasons, defendant was not entitled to
a judgment of acquittal on the aggravated murder counts
on the theory that the state was required to prove that his
conduct was both a legal as well as factual cause of death.
Because the evidence was sufficient to show that defen-
dant’s conduct was a cause-in-fact of Captain Tennant’s and
Trooper Hakim’s deaths, the trial court properly denied
defendant’s motion for judgment of acquittal.
    4.  Jury instructions on causation, analysis
	        After the trial court denied defendant’s motion
for judgment of acquittal on the “legal causation” ground,
and before the case was submitted to the jury, defendant
requested jury instructions that would have directed the
jury to resolve the causation element on proximate or legal
cause types of theories. Those instructions approached
causation ultimately as a relative concept, one that turned
on the degree to which defendant’s conduct was the factual
cause of harm, as compared to any other contributing factor
that the jury might determine was also a cause-in-fact of the
harm.
	        To that end, defendant’s proposed instructions
were a mix of theories and concepts, including concepts
of “substantial factor,” “superseding cause,” “intervening
cause,” “reckless conduct of a third party,” “proximate
cause,” and the reasonable foreseeability of the result.
Several proffered instructions would have told the jury
that, to “constitute aggravated murder” or “intentional
homicide,” or otherwise to find that a death or injury
was “intentionally caused” by the defendant, “[t]he bur-
den rests on the state to prove that the defendant’s con-
duct was the proximate cause of the death or injuries.”
(Emphasis added.) One instruction would have advised
the jury that it was a “defense to homicide” if the death
was caused by an “independent intervening act or omis-
sion of the deceased” that defendant “could not reasonably
have anticipated as likely to happen.” Another, rather than
Cite as 359 Or 364 (2016)	483

cast the issue as a defense, would have told the jury that,
for aggravated murder specifically, defendant’s conduct
could not be considered “a proximate cause of the death” if
“a proximate cause of the death” was a “new independent
intervening act of the deceased” that defendant “should
not reasonably have anticipated as likely to happen[.]”
Yet other proffered instructions would have directed the
jury to find defendant “not guilty” of the charges requir-
ing “intentional conduct” if it found that Trooper Hakim’s
“reckless conduct” was a “superseding cause” of the explo-
sion and deaths.
	        Each of defendant’s variously worded proposed
instructions injected concepts into the assessment of “cause”
that did not belong there. As we have concluded, the “causes”
element of criminal homicide, which in turn is an element of
intentional murder and aggravated murder requires proof
of a factual causation only; “proximate cause” is not part
of the analysis. Neither does factual causation depend on
a comparison of a defendant’s causal role with that of the
victim or some third party. As Murray held, a defendant’s
conduct “causes” a result if it brings about, makes, or effects
by force that result, “no matter the role” of another person
and regardless of other person’s reckless participation. 343
Or at 52, 56; see also State v. Newberg et al., 129 Or 564, 573-
75, 278 P 568 (1929) (for crimes, like torts, third person’s
concurrent or contributory causal conduct does not relieve
defendant of responsibility for causing harm).
	        The same is true of the concepts of “foreseeability”
that defendant’s proposed instructions would have injected
into the analysis—that is, whether defendant should have
reasonably anticipated an intervening cause, such as
Trooper Hakim’s efforts to dismantle the bomb. As with the
proximate cause and comparative cause aspects of defen-
dant’s proposed instructions, foreseeability is not a concept
of causation. Causation is “an assessment of whether a par-
ticular act or omission in fact resulted in the particular harm
that a plaintiff suffered—it turns on what retrospectively did
happen.” Towe v. Sacagawea, Inc., 357 Or 74, 87, 347 P3d 766
(2015) (emphasis in original; internal quotation marks omit-
ted). Foreseeability, on the other hand, is “a prediction of the
risk that an act or omission will result in a particular kind
484	                                       State v. Turnidge (S059155)

of harm—it turns on what prospectively might happen.” Id.
(same). The concept of foreseeability has potential relevance
to crimes (as well as civil torts) that have recklessness or
negligence as a mental state, both of which turn on a prospec-
tive risk assessment.71 But defendant requested his special
“causation” instructions only in the context of the charges
of intentionally committed conduct—intentional aggravated
murder in particular. Whatever the propriety of a special
instruction on foreseeability for a crime that has reckless-
ness or negligence as a mental state—an issue not before us
here—foreseeability has no place in assessing, first, factual
causation, and second, responsibility for the intended conse-
quences of a defendant’s act. Cf. American Fed. Teachers v.
Oregon Taxpayers United, 345 Or 1, 16-17, 189 P3d 9 (2008)
(for ORICO violation, person who intends consequences of
act is liable for act, regardless of how remote or attenuated
those consequences); Restatement (Third) of Torts § 5 (“An
actor who intentionally causes physical harm is subject to
liability for that harm.”), § 33 (“An actor who intentionally
causes harm is subject to liability for that harm even if it
was unlikely to occur.”).72

	71
         See ORS 161.085(9) (“recklessly” is being “aware of and consciously disre-
gard[ing]” risk; must be “gross deviation from the standard of care that a reason-
able person would observe”); ORS 161.085(10) (“criminal negligence” is failure to
be “aware of a substantial and unjustifiable risk”; must be “gross deviation from
the standard of care that a reasonable person would observe”); Stewart, 255 Or
at 609 (liability limited to “foreseeable” consequences of conduct for civil torts
given definition of negligence, which assigns fault to conduct only when injury
was reasonably likely to occur and therefore should have been anticipated).
	72
        The Restatement (Third) of Torts § 33 takes the position that “risk” does
not provide the appropriate limiting principle on responsibility for an intentional
civil tort. Comment a at 562. The Restatement provides an example that serves
to illustrate our point here:
     “Mike, who suffered from manic depression, was injured while walking
     through a high-school parking lot by a bomb that exploded. The homemade
     bomb was placed there by Dick and Anna with the intent that it explode and
     harm those in the vicinity. A year after he was injured by the bomb, Mike
     committed suicide. The administrator of Mike’s estate sues Dick and Anna
     within the applicable limitations period. Damages for Mike’s death may be
     found by the factfinder to be within the scope of Dick’s and Anna’s liability
     for their intentional conduct. However, before Dick and Anna may be found
     liable for Mike’s death, the factfinder must determine that the injury from
     the bomb was a factual cause of Mike’s suicide.”
Id. § 33, comment e at 565. The problem posed by that example is one of cause-
in-fact only, not one of liability or responsibility for harm intended and actually
caused, no matter how unlikely the manner in which the intended harm occurs.
Cite as 359 Or 364 (2016)	485

	       For all those reasons, the trial court properly
refused to give defendant’s requested special instructions
on causation.
      5.  Proof of personally committing homicide, analysis
	        The final prong of defendant’s motion for judgment
of acquittal took issue, as earlier described, with whether
the state’s proof satisfied the “personally” element required
for aggravated felony murder (counts 7 through 10). As
explained earlier, felony murder is committed when a defen-
dant or an accomplice, if any, causes the death of another
person in the course of committing certain enumerated fel-
ony crimes. ORS 163.115(1)(b).73 Felony murder is elevated
to aggravated felony murder under ORS 163.095(2)(d) by
the added element of “personally and intentionally” commit-
ting the homicide in the course of committing the felony. As
we have discussed, the element of “intentionally” causing
death is an element of all 10 aggravated murder charges in
this case, including aggravated felony murder. The require-
ment of “personally” committing the homicide, however, is
distinct to aggravated felony murder. Relying again on the
lack of evidence that he engaged in an act that triggered the
bomb to detonate, defendant argues (as he did in challenging
the adequacy of the evidence on intent and causation) that
a reasonable jury could not find on this record that defen-
dant’s conduct satisfied the element of “personally” causing
the deaths.
	       On that aspect of defendant’s argument, the par-
ties do not dispute the applicable law.74 Both parties rely
extensively on this court’s decision in State v. Link, 346 Or
187, 208 P3d 936 (2009), which considered the meaning of
“personally” in the context of aggravated felony murder.
	73
       ORS 163.115(1)(b) also states that the death may be caused during the
attempted commission of a felony or “during the immediate flight therefrom,”
but those elements are not issue here. Our discussion below accordingly does not
mention them.
	74
        Unlike the intent and causation elements, defendant did not request any
special instruction on the meaning of “personally.” The trial court instructed the
jury in the words of the aggravated felony murder statute, advising the jury sim-
ply that, as an element of the counts charging felony aggravated murder, one of
the elements was that the person “personally and intentionally causes” the death
of a person in the course of and in furtherance of committing the charged felony.
486	                           State v. Turnidge (S059155)

Because Link is central to the parties’ arguments and
instructive to our analysis here, we begin with our decision
in that case.
	In Link, the defendant and several accomplices
planned to steal a car belonging to the victim, who was the
mother of one of the accomplices. The defendant told the
other accomplices that they would have to kill the victim to
prevent her from reporting their theft. The group devised
several ways to carry out the murder and then waited for
the victim to arrive home. Two accomplices hid inside with
broken wine bottles; defendant waited outside. When the
victim arrived home and went inside, the accomplices inside
struck her several times. She attempted to flee. The defen-
dant, who saw her run out the back door, told the others that
she looked “really bad” and one of them needed to shoot her.
One of the defendant’s accomplices then shot and killed the
victim. 346 Or at 190-91.
	        At issue in Link was whether the trial court had
erred in denying the defendant’s motion for judgment of
acquittal, based on the state’s purported failure to prove
that he “personally” had committed the homicide in the
course of committing first-degree robbery, as aggravated
felony murder (ORS 163.095(2)(d)) requires. As part of its
analysis, the court examined the function of the “person-
ally” requirement in elevating felony murder to “aggra-
vated” murder. Felony murder, the court explained, gives
rise to responsibility for a criminal homicide committed
in the course of committing an enumerated felony as to a
defendant who participated in that felony, “even though
the defendant did not participate in the murder, cause the
death, or intend that the death occur.” 346 Or at 205 (dis-
cussing ORS 163.115(1)(b)). If, in the course of participat-
ing in the felony, the defendant also plays an intentional
role in causing the criminal homicide, then the defendant
commits both intentional murder and felony murder. Id. at
205 (discussing ORS 163.115(1)(a)).
	        What elevates the crime to aggravated felony mur-
der is the “even more stringent” requirement that a defen-
dant “personally” as well as intentionally play a causal
role in the death of another person. Id. at 206 (discussing
Cite as 359 Or 364 (2016)	487

ORS 163.095(2)(d)). “The distinction between the crimes
is [therefore] the nature of the defendant’s participation
in the homicide.” Id.; see also State v. Cohen, 289 Or 525,
529-30, 614 P2d 1156 (1980) (demonstrating that “person-
ally” element elevates felony murder to aggravated felony
murder).75 Turning to that “personally” element, the court
in Link summarized the analysis from an earlier decision,
Nefstad, 309 Or 523, in which a defendant and a codefen-
dant had been accused of killing a victim by jointly stabbing
him. The defendant in Nefstad argued that the state had not
produced any evidence that he, rather than his codefendant,
had inflicted the fatal wound. He therefore urged that, “as
a matter of law, stabbing a victim without delivering the
death blow[,] or pinioning the victim so that the death blow
can be struck, does not constitute personally committing a
homicide.” 309 Or at 543. This court disagreed, explaining:
“To state [that] contention is to refute it. Joining in the stab-
bing of a dying victim or restraining the victim so that he
cannot avoid the fatal knife thrusts constitutes ‘personally’
committing the homicide.” Id.; see also Link, 346 Or at 207
(summarizing and quoting Nefstad).
	         The court in Link understood Nefstad to stand for
two propositions: First, for aggravated felony murder, the
defendant must participate in the murder itself, not just the
underlying felony; and second, physically assisting another
person in committing the murder—such as by restraining
the victim so that the other can deal the fatal blow—is suf-
ficient to satisfy the “personally” requirement. Link, 346 Or
at 208. This court in Link had “no quarrel with either con-
clusion, but neither answer[ed]” the question that the court
faced on the facts before it: “[G]iven that [the] defendant did
not perform the act of homicide himself, nor physically act
to restrain the victim so that she could not avoid being shot,
was his participation in the murder sufficient to establish
that he committed the murder personally?” Id. The court
rejected the state’s argument that a defendant “personally”
commits the homicide if he or she has an “actual role in
causing death.” Having an actual role in causing death is
	75
       In 1981, after this court decided Cohen, 289 Or 525, the legislature added
to ORS 163.095(2)(d) the additional element—intentionally—that distinguishes
aggravated felony murder from felony murder. Or Laws 1981, ch 873, § 1.
488	                                     State v. Turnidge (S059155)

required for the lesser crimes of homicide, felony murder,
and intentional murder. Id. at 208-09.76
	        The court in Link therefore explored in greater
depth the meaning of the word “personally.” As a matter
of its common and ordinary meaning, the court concluded
that, in the context of aggravated felony murder, “an indi-
vidual ‘personally * * * commit[s]’ murder when he or she
does or performs the act in question, the act of homicide, in
a personal manner.” Id. at 210 (internal quotation marks
omitted). In turn, a homicidal act is done or performed in a
personal manner if a defendant “performs it in person with-
out the intervention of another,” or performs it “direct from
[the defendant] to [the victim],” or, simply, performs the act
“himself or herself.” Id. (brackets in original; internal quo-
tation marks omitted).
	       The court in Link also examined the legislative
history of the aggravated murder statute generally, ORS
163.095, which the legislature enacted in 1977 as part of
House Bill (HB) 2011. That history at one point specifically
discussed the “personally” element for aggravated felony
murder, with a witness explaining why it had been added:
   “ ‘The insertion of the word “personal[ly]” * * * was made to
   get at the person who deliberately committed murder in the
   course of a felony but not any of the other individuals who
   may have participated in the course of the felony. (Whether
   it be robbery or theft or whatever.) What is meant * * * is
   that the person must have pulled the trigger or used the
   knife or what have you, himself * * *.’ ”
Link, 346 Or at 210 (quoting Nefstad, 309 Or at 540 n 8
(quoting Minutes, Senate Judiciary Committee, HB 2011,
May 31, 1977, at 3 (statement of Edward Sullivan, chairman
of Governor’s Task Force on Corrections))).
	       This court in Link ultimately concluded that, “from
the structure of the murder statutes, and from the wording
and legislative history of the aggravated murder statute,” to
	76
        Our resolution of defendant’s “causation” argument in this case confirms
that observation. As we have held, to “cause” death means to have an actual role
in bringing about the death of another. Thus, to say that someone had an “actual
role in causing death” is the same as saying that he or she caused death, which
adds nothing to the baseline offense of criminal homicide.
Cite as 359 Or 364 (2016)	489

prove aggravated felony murder, “the state must prove that
a defendant performed the physical act of homicide himself
or herself.” 346 Or at 210. The court clarified:
   “That does not mean that the defendant must have acted
   alone or that the act of homicide need be a solitary physical
   act, or limited to the final fatal act. As in Nefstad, people
   acting together each may ‘personally * * * commit[ ]’ the
   physical act of homicide. And, as in Nefstad, it may take a
   confluence of physical acts to effectuate the act of homicide.”
Id. at 210-11.
	       On the record in Link, the court concluded that
a jury could not find the “personally” element of aggra-
vated murder satisfied. The court reasoned that “the act of
homicide was one act—the act of shooting—committed by
one person—[the defendant’s accomplice].” Id. at 211. The
defendant had not shot the victim himself and had not been
physically present when his accomplice shot the victim. And
although the defendant had encouraged and even directed
the shooting, the evidence fell short of establishing that
the defendant’s accomplice was “so completely within [the]
defendant’s control” as to be the equivalent of “an instru-
ment to accomplish [the] defendant’s purpose.” Id. The court
therefore did not decide whether a defendant’s control over
another person who commits the only homicidal act involved
could satisfy the “personally” element. It was enough to con-
clude that, on the record before it, that circumstance was
not presented. Id. at 211-12.
	       In this case, in contending that the state’s evidence
was not sufficient to prove that he “personally” committed
the homicides, defendant emphasizes the lack of evidence
that he committed an act that triggered the bomb’s det-
onation or otherwise had the ability to control any other
possible triggering event (such as a third party’s handling
of the bomb or a stray radio signal). Defendant therefore
urges that he did not, and legally could not have, “person-
ally” caused the bomb to explode. The state, in response,
focuses on the physical acts that a jury could find that
defendant did take—including designing, building, and
planting the bomb outside the bank. Those actions, in
the state’s view, were enough to satisfy the “personally”
490	                              State v. Turnidge (S059155)

element, so that the issue was properly submitted to the
jury for its resolution.
	         We agree with the state. This is not a case, as Link
was, in which there is only “one homicidal act.” Instead, the
state’s evidence showed that the homicidal conduct here was
cumulative in nature and composed of sequential acts. The
homicidal conduct began with the design and construction
of the bomb and continued with its placement outside West
Coast Bank, under circumstances in which, the jury rea-
sonably could infer, defendant had armed it and left it in
a lethal state, poised to kill as intended. Defendant then
took the further step of calling in the threat to Wells Fargo
Bank, which drew attention, and law enforcement, to the
bomb. This court emphasized in Link that, to commit the
murder personally, the “act of homicide” need not be “a soli-
tary physical act, or limited to the final fatal act.” Id. at 210.
The “act of homicide” in this case, unlike the act in Link, did
not consist of the solitary act of one person shooting at and
killing another. Instead, it consisted of a sequence of subsid-
iary, skilled, and purposeful actions required to construct a
sophisticated and lethal bomb that, through its appearance
as a hoax, served as a trap. It was more akin to the example
in Nefstad, where one person holds another, while someone
else deals the fatal blow. Here, though, the jury could find
that, instead of physically holding a victim down, defendant
lured the murder victims into dealing with something that,
through defendant’s own physical conduct, was disguised
to look benign when in fact it was armed and deadly. And
instead of cooperating with, goading, or commanding an
independent accomplice into dealing the fatal blow, as hap-
pened in Link, defendant, with Bruce, designed the bomb
in such a way that any number of other forces could deto-
nate it, rendering someone else his unknowing and innocent
agent for what was just the “final fatal act” in the homicidal
sequence of actions. 346 Or at 210.
	       By way of analogy, had defendant and Bruce
designed, built, and planted an armed landmine under
the ground outside the bank, then called in a bomb threat
designed to prompt law enforcement officials or others to
inadvertently step on the landmine while looking for a bomb,
Cite as 359 Or 364 (2016)	491

we would have no difficulty concluding that, even though
the final fatal detonation required someone to step on the
bomb, defendant’s actions up to that point would satisfy the
“personally” element of the aggravated murder statute. So,
too, here. The evidence permitted the jury to find that defen-
dant, with Bruce, physically engaged in conduct that was an
integral part of the homicidal act, even if defendant did not
himself perform the final fatal step of that composite homi-
cidal act.
	        The state’s evidence was therefore sufficient to sub-
mit to the jury the question whether defendant “personally”
played a causal role in the victims’ deaths, as required for
the four charges of aggravated felony murder. The trial
court did not err in denying defendant’s motion for judgment
of acquittal on that ground.
C.  Jury Instructions and Verdict Form, “Acquittal-First”
    (Assignment Nos. 147-148)
    1.  Additional procedural facts and defendant’s argu-
        ment on review
	       Defendant next argues that, with respect to the
ten aggravated murder charges, as well as the two assault
charges, the trial court erred by giving the jury a so-called
“acquittal-first” jury instruction based on ORS 136.460(2),
which provides:
   	 “The jury shall first consider the charged offense. Only
   if the jury finds the defendant not guilty of the charged
   offense may the jury consider a lesser included offense. If
   there is more than one lesser included offense, the jury shall
   consider the lesser included offenses in order of seriousness.
   The jury may consider a less serious lesser included offense
   only after finding the defendant not guilty of any more seri-
   ous lesser included offenses.”
On counts 1 through 6 (intentional murder committed
under certain aggravating circumstances), the trial court
separately advised the jury on each count that the charged
crime of aggravated murder had “lesser included offenses
of the crimes of manslaughter in the first degree and man-
slaughter in the second degree,” and explained the elements
of those offenses. The court then instructed the jury:
492	                                       State v. Turnidge (S059155)

    “When you deliberate, you should first consider the charged
    offense of aggravated murder. Only if you find the defen-
    dant not guilty of the charged offense, you may consider
    the lesser included offense of manslaughter in the first
    degree. Only if you find the defendant not guilty of the
    lesser included offense of manslaughter in the first degree
    may you consider the additional lesser included offense of
    manslaughter in the second degree.”
The trial court similarly instructed the jury on counts 7
through 10 (aggravated felony murder) that, as to each count,
the charged crime had “a lesser included offense [of] the
crime of felony murder” and that, when deliberating, it should
first consider the charged offense of aggravated murder and
only consider the lesser included offense of felony murder if it
found defendant not guilty of the charged offense. The court
gave parallel instructions on the two assault charges.77 After
giving the jury those instructions, the court provided a ver-
dict form to the jury that did not require the jury to render
any verdict on the lesser-included offenses.
	        Defendant challenges the constitutionality of ORS
136.460(2), and the trial court’s jury instructions based on
that statute, under the Eighth and Fourteenth Amendments
to the United States Constitution.78 Relatedly, he contends
that the trial court erred by submitting the verdict form
that did not require the jury to reach a verdict on the lesser-
included offenses. In support of his position, defendant relies
on Beck v. Alabama, 447 US 625, 100 S Ct 2382, 65 L Ed 2d
392 (1980), in which the Supreme Court held unconstitu-
tional a state statute that precluded jurors in a death pen-
alty case from considering whether a defendant had commit-
ted any lesser-included offense.
	77
       The indictment charged defendant with committing first-degree assault
as to Chief Russell and second-degree assault as to Perkett. The trial court
instructed the jury, similarly to the instructions set out above, that each assault
charge had lesser-included offenses (second- and third-degree assault as to
the first-degree assault charge, and third- and fourth-degree assault as to the
second-degree assault charge), and that the jury must first consider the charged
offense before proceeding to consideration of the lesser-included offenses.
	78
       The Eighth Amendment provides, “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The
Eighth Amendment applies to the states through the Fourteenth Amendment.
Panetti v. Quarterman, 551 US 930, 934-35, 127 S Ct 2842, 168 L Ed 2d 662
(2007). The Fourteenth Amendment provides, in part, that no state shall “deprive
any person of life, liberty, or property, without due process of law.”
Cite as 359 Or 364 (2016)	493

    2.  Analysis
	        As context for our analysis, we begin by examining
the Oregon cases that led to the adoption of ORS 136.460,
the statute that requires a jury to acquit a defendant on
the charged offense before considering any lesser-included
offenses. The issue whether an “acquittal-first” instruction
should be given to a jury arose in a Court of Appeals case,
State v. Ogden, 35 Or App 91, 580 P2d 1049 (1978). At that
time, no statute directed the order in which a jury was to
consider charged and lesser-included offenses. Over the
defendant’s objection, the trial court in Ogden instructed the
jury to consider the lesser-included offense only if it reached
a verdict of acquittal on the charged offense. Id. at 94. The
Court of Appeals reversed the trial court, concluding, as a
matter of common law, that “it is proper for a court to instruct
[the jurors] that they are first to consider the charge in the
accusatory instrument and if they cannot agree upon a ver-
dict in that charge they are to consider the lesser included
offenses.” Id. at 98 (emphasis added). In other words, the
jury did not have to acquit the defendant before considering
the lesser-included offenses as the trial court in Ogden had
instructed; rather, it only had to be unable to reach a verdict
on the greater charge.
	        A uniform jury instruction was later devised
based on that ruling, one that this court endorsed in State
v. Allen, 301 Or 35, 717 P2d 1178 (1986). In doing so, this
court acknowledged that, until the Court of Appeals deci-
sion in Ogden, the alternative “acquittal-first” instruction
that the trial court gave in Ogden had been “the standard
instruction given in this state for over 75 years” and was
used in many other state and federal jurisdictions. Id. at
38-39. This court viewed that former long-standing instruc-
tion as having “inherent problems,” however. Id. at 39. The
court cited studies showing that jurors who initially voted
in the minority were more apt to change their votes than
majority voters were likely to be persuaded to switch to
the minority position. Relying on those studies, the court
observed that an “ ‘acquittal first’ instruction exacerbates
the risk of coerced decisions, a risk that is probably inherent
in any jury deliberation.” Id. at 40. The court concluded that
“[t]he [new uniform] instruction and the majority opinion in
494	                                       State v. Turnidge (S059155)

Ogden set forth a more ordered procedure without creating
any coercion.” Id.
	        In 1997, the legislature amended ORS 136.460 to
its present form, legislatively overruling Allen and Ogden.
Or Laws 1997, ch 511, § 1. See State v. Zolotoff, 354 Or 711,
716-17, 320 P3d 561 (2014) (tracing statute’s evolution). In
effect, “the legislature now requires that jurors follow a
procedure—acquittal of the charged offense before consid-
eration of a lesser-included offense—that Ogden and Allen
prohibited.” Id. at 716.
	        Defendant challenges the constitutionality of ORS
136.460, asserting that the “acquittal-first” procedure
that it now requires violates the Eighth Amendment and
the Due Process Clause of the Fourteenth Amendment, for
essentially the same reason that the Supreme Court invali-
dated the statute at issue in Beck, which had precluded any
consideration of the lesser-included offense. Specifically,
defendant asserts that “[t]here is no meaningful difference
between failing to instruct a jury that it may consider a
lesser-included offense and apprising the jury that a lesser-
included offense exists while instructing that jury that it
may not consider the lesser-included offense while decid-
ing between guilt and innocence on the capital charge.”
Contrary to defendant’s position, however, there is a
difference—one of constitutional significance—between the
statute that Beck invalidated and the Oregon statute that
defendant challenges here.
	        Beck involved an Alabama statute that provided
that, when a defendant is charged with the capital offense
of intentional felony murder, the jury may not be instructed
on the lesser-included offense of felony murder. “Instead, the
jury is given the choice of either convicting the defendant
of the capital crime, in which case it is required to impose
the death penalty, or acquitting him, thus allowing him
to escape all penalties for his alleged participation in the
crime.” 447 US at 628-29.79 The defendant argued, and the

	79
       The statutory scheme at issue in Beck required the jury, if it found the
defendant guilty of the capital offense, to impose a sentence of death. However,
the trial court could set aside the death penalty after considering mitigating evi-
dence. Beck, 447 US at 628-29 & n 3.
Cite as 359 Or 364 (2016)	495

Supreme Court ultimately agreed, that “in a case in which
the evidence clearly establishes the defendant’s guilt of a
serious noncapital crime such as felony murder, forcing the
jury to choose between conviction on the capital offense and
acquittal creates a danger that it will resolve any doubts in
favor of conviction.” Id. at 632.
	         The Supreme Court began its analysis by noting
that, at common law, a jury could find a defendant “guilty
of any lesser offense necessarily included in the offense
charged.” Id. at 633. The Court recognized that the common-
law rule could “be beneficial to the defendant because it
affords the jury a less drastic alternative than the choice
between conviction of the offense charged and acquittal.”
Id.; see also id. at 634 (“[p]roviding the jury with the ‘third
option’ of convicting on a lesser included offense ensures
that the jury will accord the defendant the full benefit of
the reasonable-doubt standard[.]”). The Court further noted
the near-universality of the requirement in American juris-
dictions that lesser-included instructions be given. Id. at
635-36. The Court continued:
   	 “While we have never held that a defendant is entitled
   to a lesser included offense instruction as a matter of due
   process, the nearly universal acceptance of the rule in both
   state and federal courts establishes the value to the defen-
   dant of this procedural safeguard. That safeguard would
   seem to be especially important in a case such as this. For
   when the evidence unquestionably establishes that the
   defendant is guilty of a serious, violent offense—but leaves
   some doubt with respect to an element that would justify
   conviction of a capital offense—the failure to give the jury
   the ‘third option’ of convicting on a lesser included offense
   would seem inevitably to enhance the risk of an unwar-
   ranted conviction.”
Id. at 637.
	        Defendant argues that the same concerns as those
identified in Beck—that is, the coercive pressure on the jury
and the risk of an unwarranted conviction—exist when a
jury is instructed on a lesser-included offense but told that
it must first reach a verdict on the charged offense before
considering the lesser-included offense. Just as this court
496	                                       State v. Turnidge (S059155)

observed years ago in Allen, we agree that an “acquit-
tal-first” instruction exerts some coercive pressure and cre-
ates at least some risk of a conviction that the jury would
otherwise not reach. See Allen, 301 Or at 39-40 (so stating).
But we disagree that the problem equates with the one that
the Supreme Court addressed in Beck. The Alabama stat-
ute at issue in Beck precluded the jury from considering
the lesser-included offense of felony murder. The issue did
not involve the order of deliberations and when a jury could
consider the lesser offense instead of the charged offense;
rather, the jury could not consider the lesser offense at all.
As a result, the jury was forced into an all-or-nothing deci-
sion. The jury’s only options were to convict the defendant on
the charged offense and impose the death penalty, or acquit
the defendant in full and release him. In a circumstance
where the jury was satisfied from the evidence that the
defendant committed some serious criminal offense—even
if not the charged capital offense—that all-or-nothing choice
placed the jury in a particularly difficult position, one that
ran a uniquely high risk of skewing the jury’s deliberations
in favor of guilt on the charged offense.80 The Court there-
fore stressed the importance of the “third option”—that is,
the opportunity for the jury to consider whether the defen-
dant is guilty of a lesser offense.
	        An acquittal-first instruction that directs the jury,
consistently with ORS 136.460(2), to consider the charged
offense first, and then to consider any lesser-included
offenses only if it finds the defendant not guilty of the
charged offense, does not deprive the jury of consideration of
the “third option.” Instead, consistently with the statute, the
jury remains aware of and fully instructed on the elements
of the lesser-included offense when it retires to deliberate.
See Zolotoff, 354 Or at 717 (“The legislative mandate that
the jury consider the applicable offenses in a particular order
does not affect or eliminate the underlying legislative direc-
tive that, on request, the jury also be instructed on the ele-
ments of relevant lesser-included offenses.”). In fact, as this

	80
         The facts in Beck starkly illustrated the problem. There, the defendant had
made admissions sufficient to satisfy the elements of the lesser-included offense
of felony murder. His factual defense disputed only the elements that elevated the
crime to a capital offense. Beck, 447 US at 629-30.
Cite as 359 Or 364 (2016)	497

court recognized in Zolotoff, 354 Or at 718, ORS 136.460(2)
does not preclude the jury from “contemplating the law as it
applies to lesser-included offenses when deliberating about
the charged offense.” Rather,
    “[t]here may be circumstances in which the elements of
    the charged crime are clearer when they are viewed in
    contrast with the elements of a lesser-included offense. So,
    for instance, an instruction on the elements of a lesser-
    included offense may disclose a legal distinction that is not
    otherwise patent and that would be particularly helpful to
    the jury in deciding whether the defendant is in fact guilty
    of the charged offense.”
Id. at 719.
	        Unlike the jury in Beck, the jury in this case was not
faced with having to choose between convicting defendant
of the charge crimes and acquitting him outright. When
the jury in this case retired to deliberate, it had been fully
instructed on the elements of all the lesser-included offenses
as well as the greater, charged offenses. The acquittal-first
instruction, moreover, ensured that the jury knew that
the “third option”—the consideration of the lesser-included
offenses—would come into play if the jury were not satis-
fied that the state had proved the charged crimes beyond a
reasonable doubt. The instruction directed the order of the
jury’s deliberations, requiring it to first consider and reach a
verdict on the charged crimes before considering the lesser-
included offenses. Such an instruction does not carry the
coercive force and undue risk of an unwarranted conviction
that concerned the Court in Beck.
	         Although we recognize, as in Allen, that an acquit-
tal-first instruction places some constraint on how a jury
deliberates, that constraint does not rise to the level of a vio-
lation of either the Eighth Amendment or the Due Process
Clause of the Fourteenth Amendment. The trial court there-
fore correctly gave the acquittal-first instruction as required
by ORS 136.460(2).81	

	81
        Defendant also assigns error to the jury verdict form, which set out entries
for verdicts on only the charged crimes, but he makes no separate argument
about that assignment. For the reasons state above, we conclude that the verdict
form—like the acquittal-first instruction—was proper.
498	                              State v. Turnidge (S059155)

D.  Jury Instruction, Intent as to Aggravating Circumstances
    (Assignment Nos. 150-151)
    1.  Additional procedural facts and defendant’s argu-
        ment on review
	        In addition to the special instructions discussed
earlier in connection with defendant’s arguments on intent
and causation more generally, defendant also asked the trial
court to advise the jury that,
   “[i]n those counts where the state has charged the defen-
   dant acted ‘intentionally[,]’ the state must prove beyond a
   reasonable doubt that the defendant acted with intent as to
   every material element of the charged offense.”
Defendant argued to the trial court that that proposed
instruction was necessary because, to prove aggravated
murder as charged in counts 1 through 6, the state had
to prove not only that defendant acted with an intent to
cause death, but also that defendant acted with intent as to
each “material element,” including the aggravating factors
charged in those counts. As we earlier described, counts
1 and 2 were based on the aggravating factor that there
was more than one murder victim in a single criminal epi-
sode (ORS 163.095(1)(d)); counts 3 and 4 were based on
the aggravating factor that each victim was a police offi-
cer and his murder was related to the performance of his
official duties in the justice system (ORS 163.095(2)(a)(A));
and counts 5 and 6 were based on the aggravating factor
that defendant committed murder by means of an explo-
sive (ORS 163.095(2)(c)). Defendant’s position was that the
state could not prove those theories of aggravated murder
by relying only on evidence that defendant intended to
cause death; instead, the state also had to show that defen-
dant intended more than one murder victim to die from the
explosion (counts 1 and 2); that he intended to kill police
officers in the performance of their official duties (counts 3
and 4); and that he intended an explosive to be the means of
death (counts 5 and 6). Defendant’s requested instruction,
by telling the jury generally that the state must prove intent
as to “every material element” of every charged offense, was
defendant’s way of requiring intent to attach to each aggra-
vating circumstance for all six counts.
Cite as 359 Or 364 (2016)	499

	        The trial court refused to give defendant’s proposed
instruction. On review, defendant asserts that the trial
court’s refusal was error, arguing that he was entitled to the
instruction for each of the three alleged aggravating factors
involved. The state responds in turn, likewise examining
each of the three alleged aggravating factors and urging
that defendant was not entitled to the instruction as to any
of the three.
	        In our analysis below, we examine whether, for
counts 1 and 2, the state was required to prove that defen-
dant acted with the intent to cause the death of more than
one murder victim in the same criminal episode. As we
will explain, we conclude that the aggravated murder stat-
ute did not impose that requirement.82 Because it did not,
our analysis ends there. Defendant’s proposed instruction,
which was not specific to the different alleged aggravating
factors in the six counts, would have been legally incorrect
as to counts 1 and 2; the trial court therefore properly did
not give the instruction.
      2.  Analysis
	        The parties do not dispute the essential legal prin-
ciples that guide our analysis. ORS 161.095(2) provides:
    	 “Except as provided in ORS 161.105, a person is not
    guilty of an offense unless the person acts with a culpa-
    ble mental state with respect to each material element of
    the offense that necessarily requires a culpable mental
    state.”

As this court has observed, that statute states the general,
but “somewhat circular,” rule that a culpable mental state is
required for each material element of an offense that “nec-
essarily” requires a culpable mental state. State v. Rainoldi,
351 Or 486, 490, 268 P3d 568 (2011). Even if the material
element is one that necessarily requires a mental state,
however, another statute—ORS 161.105(1)(b)—sets out
an exception. Under that statute, “[n]otwithstanding ORS

	82
       Defendant also makes an unpreserved argument that the trial court’s
refusal to give his proposed instruction violated principles of due process. We do
not consider that unpreserved argument.
500	                                      State v. Turnidge (S059155)

161.095,” no culpable mental state is required for an ele-
ment of an offense “defined by a statute outside the Oregon
Criminal Code” when the offense “clearly indicates a leg-
islative intent to dispense with any culpable mental state
requirement for the offense or for any material element
thereof.”
	        We assume, for purposes of analysis, that ORS
163.095, the aggravated murder statute, is outside the
Oregon Criminal Code.83 Thus, to determine whether a
mental state attaches to the “more than one murder vic-
tim” aggravating circumstance at issue for in counts 1 and
2, we use a two-step analysis. We first ask whether the
aggravated murder statute “clearly indicates a legislative
intent to dispense” with a mental state requirement as to
the aggravating factor that there was “more than one mur-
der victim.” ORS 163.095(1)(d). If the answer is no, we then
ask whether the “more than one murder victim” aggravat-
ing factor is a “material element” that “necessarily requires
a culpable mental state.” See Rainoldi, 351 Or at 491 (syn-
thesizing two-step test from statutes and prior case law).
On the first question—whether the legislature intended to
dispense with a mental state—four factors guide us: (1) the
text of the statute defining the offense, including the overall
structure of the law of which it is a part; (2) the nature of
the element at issue; (3) the legislative history of the statute
that defines the offense at issue; and (4) the purpose of the
statute. Id. at 492-96. We therefore turn to an examination
of those factors. Because those factors lead to the conclusion
that no mental state applies, we do not reach the second step
of the test explained in Rainoldi.

	83
       In past cases, we have determined whether a statute is within or outside
the Oregon Criminal Code based on whether it was enacted as part of the revised
Oregon Criminal Code of 1971 or is listed in ORS 161.005, which enumerates
the statutes that may be cited as part of the Oregon Criminal Code. See, e.g.,
Rainoldi, 351 Or at 491 (so explaining). The aggravated murder statute, ORS
163.095, was not enacted until 1977, Or Laws 1977, ch 370, § 1, and is not listed
in ORS 161.005. The analysis may be more complicated for this offense than for
others, however, because aggravated murder—as we have described—incorpo-
rates into its definition the offense of murder, which in turn incorporates the
offense of criminal homicide, both of which are in the Oregon Criminal Code,
see ORS 161.005 (listing those statutes). We analyze the issue assuming that
ORS 161.105(1)(b) applies, however, because it does not, in this case, change our
conclusion.
Cite as 359 Or 364 (2016)	501

	         As a starting point, the text and the overall struc-
ture of the aggravated murder statute points strongly to a
conclusion that the legislature did, in fact, intend to dispense
with any mental state as to the enumerated aggravating
circumstances generally. ORS 163.095 begins by declaring
that “ ‘aggravated murder’ means murder as defined in ORS
163.115 which is committed under, or accompanied by, any
of the following circumstances * * *.” As pertinent here, mur-
der in turn, consists of intentionally causing the death of
another. ORS 163.115(1)(a). Textually, then, the aggravated
murder statute defines the offense as intentionally causing
the death of another when any of several enumerated “cir-
cumstances” accompanies the murder.
	        That much alone is a powerful indication that no
culpable mental state applies to the enumerated factors
generally, for two reasons. First, the legislature expressly
provided for a mental state element—intentionally—and it
specifically tied that mental state to the result of causing
death, as we have already discussed at length. Unless the
legislature similarly tied that or some other culpable mental
state to the aggravating factor elements as well (which it
did, but not for this one, as we discuss shortly), that alone
strongly points to a conclusion, at least as an initial matter,
that no mental state attaches to those other elements.
	        But a second aspect of the text, one that relates to
the “nature of the element,” leads to the same initial conclu-
sion. When the legislature makes an element an “attendant
circumstance” to the commission of an offense, as contrasted
with an aspect of the prohibited conduct, the element gen-
erally does not require proof of a mental state, unless, of
course, the legislature indicates otherwise. Rainoldi, 351 Or
at 494. For any particular element, to determine which it
is—an attendant circumstance or an aspect of the prohib-
ited conduct—this court often must examine the element
in the context of the statutory offense. See, e.g., Rutley, 343
Or at 376-77 (for offense of knowing delivery of controlled
substance within 1,000 feet of school, proximity to school
is attendant circumstance, not something that defendant
logically must know); State v. Miller, 309 Or 362, 366, 788
P2d 974 (1990) (for offense of driving intoxicated, intoxica-
tion is attendant circumstance that describes defendant’s
502	                                       State v. Turnidge (S059155)

intoxicated status; a defendant’s mental state has nothing
to do with whether that status existed). Here, however, we
do not have to read between the legislative lines. The legis-
lature expressly identified the enumerated aggravating fac-
tors in ORS 163.095 as “circumstances,” ones that “accom-
pany” the intentional murder or “under which” the murder
is otherwise committed. That choice of words by the legisla-
ture cuts strongly against implying that any culpable men-
tal state applies to that element, especially the mental state
of “intentionally.” See ORS 161.085(7) (defining intent to
apply to “result” or “conduct” described in statutory offense,
not circumstance).84

	        Our conclusion is bolstered by a closer examina-
tion of the particular aggravating circumstance on which
counts 1 and 2 were based, especially in the context of the
other aggravating circumstances enumerated in the statute.
Under ORS 163.095(1)(d), intentional murder is aggravated
murder when “[t]here was more than one murder victim in
the same criminal episode.” The passive form of that sen-
tence itself conveys, not action or conduct, but a circum-
stance attendant to the criminal episode—the circumstance
that more than one person was murdered. And the past
tense form of the verb “to be”—in was murdered—likewise
suggests a state of affairs that existed at the conclusion of
the criminal episode, not a state of mind that attached to the
defendant’s conduct during the episode.

	       In those respects, the “more than one murder vic-
tim” aggravating circumstance stands in stark contrast
to certain of the other enumerated circumstances set out

	84
       Defendant alternatively asserts that the aggravated murder statute
is within the Criminal Code; if so, the question under ORS 163.095(2) would
be whether the “more than one murder victim” aggravating factor is a “mate-
rial element” that “necessarily requires a culpable mental state,” which is the
second of two questions that we ask under Rainoldi, 351 Or at 491, and ORS
161.105(1)(b) for cases that are outside the Criminal Code. We would reach the
same answer for purposes of an intentional mental state were we to analyze the
“more than one murder victim” factor under that test. Because the legislature
expressly identified that as a “circumstance” of the crime, by force of the defini-
tion of “intent,” that mental state would not “necessarily” attach. Thus, as we
noted earlier, 359 Or at 500 n 83, our conclusion would be the same even if we
assume that aggravated murder is outside the Criminal Code, so that the two-
pronged inquiry under Rainoldi applies.
Cite as 359 Or 364 (2016)	503

in ORS 163.095. For a few, the legislature expressly pro-
vided or otherwise conveyed that a culpable mental state
attaches to the circumstance. In particular, under ORS
163.095(1)(e), murder is aggravated murder if “[t]he homi-
cide occurred in the course of or as a result of intentional
maiming or torture of the victim.” (Emphasis added.) In
ORS 163.095(2)(e), the legislature expressly added a pur-
poseful aspect to another aggravating circumstance: mur-
der is elevated to aggravated murder when the murder
was committed “in an effort to conceal the commission
of a crime, or to conceal the identity of the perpetrator of
a crime.” See also ORS 163.095(1)(a) (defendant commit-
ted murder pursuant to agreement made in exchange for
value), (1)(b) (defendant solicited another to commit mur-
der and paid or agreed to pay value in exchange). At the
least, the legislature’s choice to specify a mental state or
use wording that necessarily incorporates a mental state
as to some of the circumstances suggests that the legisla-
ture did not view the enumerated circumstances as gener-
ally requiring a culpable mental state. That fact, too, cuts
against defendant’s argument that the legislature intended
a culpable mental state to attach to the “more than one
murder victim” circumstance, despite the fact that it did
not specify any mental state.
	         Nothing in the legislative history and the overall
purpose of the statute leads us to a different conclusion. For
the “more than one murder victim” aggravating circum-
stance, the legislative history is not particularly illuminat-
ing. It reveals only that the legislature sought to separately
elevate and identify, as an aggravating circumstance, the
killing of more than one murder victim during a single
“crime spree.”85 Beyond that, the legislative history is sig-
nificant principally for what it does not show—it does not
contain any suggestion that, contrary to the plain import
of the text, the legislature intended to require proof that a
defendant have the conscious objective to kill more than one

	85
        Tape Recording, House Committee on Judiciary, HB 3262, July 9, 1981,
Tape H-81-JUD-536, Side A (legislative discussion to that general effect, in course
of evaluating and drafting various 1981 amendments to aggravated murder stat-
ute); Tape Recording, Senate Committee on Justice, Conference Committee, SB
526, Aug 1, 1981, 1:30 p.m., Tape 327, Side A (same).
504	                                       State v. Turnidge (S059155)

person during a single crime spree.86 As defendant empha-
sizes, the history also shows that the nature and purpose of
the aggravated murder statute as a whole was to enhance
the potential penalties for particularly heinous murders. See
State v. Maney, 297 Or 620, 624, 688 P2d 63 (1984) (discuss-
ing that purpose in light of legislative history from origi-
nal 1977 enactment of aggravated murder statute). But that
purpose is consistent with our conclusion. Killing two or
more murder victims in a single criminal episode is more
heinous than killing one, and that is true whether a defen-
dant has, as a conscious objective, the goal of killing multi-
ple people, or whether a defendant, during a single criminal
episode, intentionally kills one person and then, as he or
she continues the crime spree and encounters additional vic-
tims, forms the intent to kill each as he or she encounters
them.
	        For those reasons, we reject defendant’s argument
that, on counts 1 and 2, which charged aggravated murder
under ORS 163.095(1)(d), the state was required to prove
that defendant intended to kill more than one murder victim
in the same criminal episode. Instead, the state was required
to prove only that defendant intentionally caused the death
of each victim and that the other victim was murdered as
part of the same criminal episode. The trial court instructed
the jury, based on the statutory wording, to that effect.87
	86
        Worth noting, in that regard, is that it would have been a natural subject
for discussion if the legislature had so intended. A “crime spree” generally con-
notes a series of sequential and related crimes, often under circumstances that
are not entirely predictable. So, for example, a person may set out to commit
several burglaries in a single neighborhood at a time of day when he expects the
homes to be unoccupied. Instead, he encounters someone in one of the homes and
intentionally shoots and kills that occupant. Hearing the shot, a second occupant
enters that area of the house, and the burglar shoots and kills that person too,
forming the intent to kill each occupant only as he discovers them. That kind of
circumstance would seem to be precisely what the legislature did have in mind,
not what it intended to exclude, at least in the absence of any legislative history
to the contrary.
	87
       Specifically, on count 1, the trial court instructed the jury that it must
find beyond a reasonable doubt that defendant “intended to cause the death of
[Captain] Tennant, and [Trooper] Hakim, another human being, was murdered
in the same criminal episode.” Similarly, on count 2, the trial court instructed
the jury that it must find that defendant intended to cause the death of Trooper
Hakim, “and [Captain] Tennant, another human being, was murdered in the
same criminal episode.” Defendant does not challenge the instructions that the
trial court gave.
Cite as 359 Or 364 (2016)	505

Defendant’s proposed instruction, however, would have told
the jury that it must find that “defendant acted with intent
as to every material element of the charged offense,” which,
as applied to counts 1 and 2, would have required the jury
to find that defendant intended to kill more than one vic-
tim as part of the same criminal episode. Consequently, the
additional instruction that defendant requested was legally
incorrect as to counts 1 and 2.
	        As explained earlier, in addition to his arguments
directed to counts 1 and 2, defendant also argues on review
that the trial court erred in not giving his proposed instruc-
tion as to counts 3 and 4 (police officer as murder victim,
when murder related to performance of official duties), and
counts 5 and 6 (murder by means of an explosive). But defen-
dant’s proposed instruction did not separately apply to each
set of duplicate counts for each victim; instead, it would have
applied to all charges requiring proof of intent, including all
six counts of aggravated murder based on particular circum-
stances listed in ORS 163.095. Neither did he propose any
instruction that would have specifically told the jury that it
had to find that he acted intentionally with respect to each
of the particular aggravating factors on which each set of
counts was based. Consequently, we do not need to examine
either of the other two aggravating circumstances alleged in
counts 3 through 6. Because defendant’s proposed instruc-
tion was not correct as to counts 1 and 2, the trial court cor-
rectly declined to give it. See State v. Simonsen, 329 Or 288,
297, 986 P2d 566 (1999), cert den, 528 US 1090 (2000) (trial
court does not err by refusing to give jury instruction that is
not correct statement of law).
        IV.  OTHER ASSIGNMENTS OF ERROR
	        We have considered all the remaining assignments
of error raised in defendant’s brief on direct review, as well
as those raised in defendant’s supplemental pro se brief. We
conclude that those assignments are either without merit,
were not preserved and did not present issues involving plain
error, or otherwise are resolved by previous cases, such that
full discussion of them would not benefit the bench, the bar,
or the public. We therefore reject those assignments without
further discussion.
506	                           State v. Turnidge (S059155)

                    V. CONCLUSION
	        We reject all assignments of error that defendant
raises as to both pretrial rulings and the rulings during
the guilt phase of his trial for aggravated murder and other
charges. Defendant raises no assignments of error relat-
ing to the trial court’s imposition of two sentences of death
for the murders of Captain Tennant and Trooper Hakim.
Accordingly, we affirm the trial court’s judgment of convic-
tion and sentences of death.
	        The judgment of conviction and sentences of death
are affirmed.
