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March 12, 2026 Get Citation Alerts Download PDF Add Note

State v. Monaco

Oregon Supreme Court

• Citations: 375 Or. 1
• Docket Number: S071665
• Judges: Bushong

• Disposition: The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

• Opinion

• Authorities (52)

• Cited By (0)

• Summaries (0)

• Similar Cases (7.8K)

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Disposition

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

Combined Opinion

No. 13 March 12, 2026 1

IN THE SUPREME COURT OF THE
STATE OF OREGON

STATE OF OREGON,
Respondent on Review,
v.
RYAN THOMAS MONACO,
Petitioner on Review.
(CC 17CR48942) (CA A177164) (SC S071665)

En Banc
On review from the Court of Appeals.*
Argued and submitted September 5, 2025.
Neil F. Byl, Deputy Public Defender, Oregon Public
Defense Commission, Salem, argued the cause and filed the
brief for petitioner on review. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section.
Erica L. Herb, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Dan Rayfield, Attorney General, and
Benjamin Gutman, Solicitor General.
BUSHONG, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
DeHoog, J., concurred and filed an opinion.

---

• Appeal from Multnomah County Circuit Court, Michael A. Greenlick, Judge. 336 Or App 684, 561 P3d 650 (2024). 2 State v. Monaco Cite as 375 Or 1 (2026) 3

BUSHONG, J.
This criminal case requires us to decide two issues
relating to defendant’s convictions on two counts of felony
murder. The first issue is whether the trial court erred in
declining to suppress statements that defendant made
during a police interrogation after he was arrested for set-
ting fire to his estranged girlfriend’s apartment, killing her
two roommates. The second issue is whether Oregon’s felo-
ny-murder statute, ORS 163.115(1)(b), as applied to defen-
dant violates the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. The Court of
Appeals concluded that defendant’s statements were volun-
tary and thus admissible, and that the felony-murder stat-
ute did not violate defendant’s right to due process. State v.
Monaco, 336 Or App 684, 561 P3d 650 (2024). We allowed
review and now affirm on both issues.
As we will explain, our case law regarding the first
issue establishes that the ultimate question for the court
is, in the totality of the circumstances, whether defendant
confessed voluntarily, or his free will was overborne by
improper threats or inducements by the police. State v. Jackson,
364 Or 1, 430 P3d 1067 (2018). We agree with the Court of
Appeals that the trial court did not err in concluding that
the state met its burden of establishing that defendant’s free
will was not overborne; rather, he confessed voluntarily. On
the second issue, we conclude that the felony-murder stat-
ute, ORS 163.115(1)(b), as interpreted in State v. Blair, 348
Or 72, 228 P3d 564 (2010), did not violate defendant’s consti-
tutional right to due process.
I. FACTS AND PROCEEDINGS BELOW
The facts that are relevant to our review are those
related to the trial court’s denial of defendant’s motion to
suppress. We review a trial court’s ruling on a motion to
suppress for errors of law. State v. Ehly, 317 Or 66, 75, 854
P2d 421 (1993). Whether a confession was voluntary is a
question of law. Jackson, 364 Or at 21. In reviewing that
question for legal error, we are bound by the trial court’s fac-
tual findings if there is constitutionally adequate evidence to
support them, and we “presume that the facts were decided
4 State v. Monaco

in a manner consistent with the court’s ultimate conclusion”
if the trial court did not make express findings. Ehly, 317 Or
at 75. We summarize the facts from the trial court record in
accordance with that standard.
A. Historical Facts
Defendant began dating TM in 2013, and they
lived together in an apartment at various times from 2013
to 2017. Their relationship was volatile. In April 2017, TM
sought and obtained a restraining order, alleging that defen-
dant had assaulted her. Nevertheless, TM continued to see
defendant and she frequently invited him to the apartment
despite the restraining order. TM lived in the apartment
with two roommates, J and T.
On July 22, 2017, defendant and TM went to a bar
together and they got into an argument. Defendant even-
tually drove TM home, and he entered her apartment to
use the bathroom. Fearing that their encounter was going
to “get ugly,” TM left while defendant was in the bathroom
and returned later that night to see whether defendant was
still at the apartment. As she drove into the parking lot,
defendant rear-ended her car with his car. TM drove away,
but defendant followed and struck her car multiple times
as they drove on the freeway. TM eventually slammed on
her brakes, and defendant kept driving. TM called 9-1-1 to
report the incident and drove to her sister’s house.
Defendant returned to TM’s apartment and repeat-
edly called and texted TM, begging her to return to the
apartment. During one of those calls, he told TM that he
was going to drench her couch in gasoline and light it on fire.
He told TM that he would videocall her so that she could
watch him pour the gasoline. A short while later, defendant
called TM and told her that he was “really sorry,” that he
had “really fucked up,” and that he was going to take his
own life. A couple of minutes later, TM received a text mes-
sage from her other sister stating that TM’s apartment was
on fire. Surveillance footage from a neighboring property
captured video images of defendant leaving TM’s apartment
as the fire erupted.
Cite as 375 Or 1 (2026) 5

The fire spread quickly. TM’s roommates, J and T,
had been asleep in an upstairs bedroom at the time; they
died in the fire, along with a dog and three snakes. An arson
investigator determined that the fire had started in the liv-
ing room after someone had poured accelerant on the couch.
The police arrested defendant following a brief pursuit three
days after the fire. After the arrest, defendant was taken to
the hospital for medical treatment. He was released from
the hospital around 1:00 a.m. and taken to jail, where he
spent the night.
B. The Interrogation
Around noon the following day, Detectives Michaels
and Luiz took defendant to an interrogation room at the
jail. Michaels advised defendant of his Miranda rights, and
defendant stated that he understood his rights and agreed
to speak with her. The interrogation lasted about four hours.
Michaels began by asking defendant biographical
questions before inquiring about his relationship with TM
and the reason that she had obtained a restraining order
that excluded him from the apartment that they had pre-
viously shared. Defendant acknowledged that he had a vol-
atile relationship with TM but denied that he had ever hit
her. Defendant stated that, despite the restraining order,
TM had invited him to the apartment nearly every day.
Michaels then asked defendant about the events of
the day and night leading up to the fire. Defendant said that
he and TM had gone to a bar, they had an argument, and he
had driven her home around 1:30 a.m. Defendant claimed
that he left the apartment at about 2:00 a.m. and spent
the rest of the night hanging out with his cousin Larry.
Defendant stated that he had learned about the fire when
a neighbor called him between 4:00 a.m. and 5 a.m. He sug-
gested that TM or one of her roommates could have started
the fire.
Michaels then suggested that they take a break and
offered to get defendant water or anything else he needed.
When she returned to the interview room, Micheals told
defendant that she had looked at TM’s phone and could tell
from his calls and text messages that he had remained in
6 State v. Monaco

the apartment until about 3:20 a.m., and that a neighbor’s
security camera had shown him leaving the apartment
when the fire started. Michaels then asked defendant to
tell her what “really happened,” stating that she knew that
defendant had threatened to soak TM’s couch in gasoline.
Defendant responded by stating that he did not remember
starting the fire.
Michaels then told defendant that it would “ease”
his pain if he took responsibility and that this was his oppor-
tunity to help TM and the victims’ families. She indicated
that people often feel better when “they own up to stuff.”
Defendant responded that TM had started the fire. Michaels
said that TM “wasn’t there” and that they had “pinged” her
phone and knew that she was not at the apartment when
the fire started. Michaels asked defendant what “made him
do this,” and defendant responded that nothing would make
him do this. He then asked for some water.
Michaels left the interrogation room, returning with
a glass of water for defendant. Michaels then outlined some
of the evidence showing that defendant had started the fire
and told him that the victims’ families deserved to know
what had happened. Defendant began to cry and stated that
he was trying to remember what had happened.
At that point, Michaels suggested that they take a
break and told defendant that she had to fill out some paper-
work. She stated that this would give defendant a chance to
“think a little bit” about what he wanted to say, considering
the evidence showing that he had started the fire. Luiz then
interjected and said that the evidence would show what had
happened, and that “everybody” was going to see whether
defendant was being honest or dishonest. Luiz told defen-
dant that this was “his opportunity to be honest”; that a
judge, jury, prosecutor, and the victims’ families would know
if he was being honest; and that no one would believe him if
he said he did not remember starting the fire.
Michaels then told defendant that the detectives
were going to “fill out paperwork” and that it was going to
“take a little while.” She told defendant that, if he wanted
to talk to them while they filled out the paperwork, he could
Cite as 375 Or 1 (2026) 7

let them know. She told defendant to think more about his
“story” and told him that, regardless, he was going to jail
“on charges related to this.” Defendant asked, “What’s going
to happen today?” Michaels responded that, after she filled
out the paperwork, he would be booked into jail. She told
defendant that this was his “opportunity” to tell them what
had happened, and that she wanted him to “sit for a while.”
The detectives and defendant then left the interrogation
room.
About 15 minutes later, defendant and the detec-
tives returned to the interrogation room. Michaels had
papers in her hands and told defendant that she was filling
out a custody report with his biographical information and
information about the charges. She did not tell him what
those charges were. Luiz then asked defendant if he had
thought about this while he was in his cell and stated:
“Here it is. Right? We are filling out the paperwork, bro.
This is it. This is it. The last time that we are going to
talk. The last time you have an opportunity to tell us what
happened. * * * Once we are done here, you are going to jail.
And we are not going to be able to talk any more. You have
this opportunity. This one right here.”
Luiz tapped his finger on the table as he made those
comments.
Defendant then asked if he could call his kids’ mom.
Michaels responded that they could “arrange that in a lit-
tle bit.” Defendant then stated that there was “something
wrong with him,” that he did not want to waste their time,
and that he was sorry, but he did not do it.
At that point in the interrogation, Michaels told
defendant that they knew what had happened, and that he
was facing charges of arson and “agg murder.” She asked
defendant if he knew what “agg murder” was. Defendant
responded that he did not, and Michaels said that “agg mur-
der happens when you intentionally do things like this.” She
told defendant that they had not told him about all the evi-
dence that they had, but that they had told him the parts
that he needed to know so that he could understand that
“we know it’s you.” Michaels then stated that there was
8 State v. Monaco

evidence that accelerant was used not only on the couch, but
also “going up the stairs,” and that showed “intentionality.”
Michaels then asked defendant, “Did you intention-
ally do something so that [the roommates] couldn’t get out?”
She told defendant, “[T]hat’s what we are looking at right
now.” Michaels stated that defendant “seemed surprised” by
her statement that accelerant had been found on the stairs,
and she asked him why. Defendant responded that he “just
thought it was poured all over the couch.” Michaels asked
why he thought that. Defendant responded that he had
learned from his sister that the couch was where the fire
had started. Michaels then said, “I think you know because
that’s where you started it. And you would know that it
wasn’t up the stairs.”
Michaels then stated that she was “trying to fig-
ure out” whether defendant had started the fire intending
to kill the roommates, or whether he had started the fire “to
give [TM] a message.” She stated that there were “different
aspects” to each of those scenarios, and that they carried
“different amounts of * * *.” She did not finish the sentence;
defendant interrupted and said, “I know.” Michaels then said
that they knew that defendant was in the apartment and
that they were asking questions to learn his “motivation.”
Defendant then responded that he did not want to
hurt anyone. Michaels asked, “then what did happen, Ryan?”
Defendant paused, and then asked again if he could call his
kids’ mom. Michaels said that he could call her as soon as
they were “done here,” and stated that “I need you to talk to
me first, please.” Defendant paused and said, “Let me try to
figure it out.” Michaels responded, “Okay.” Defendant then
stated, “I didn’t mean for any of this to happen.” Michaels
responded, “I believe that.” Defendant asked whether he
was going to “go away for life for this.” Michaels responded
that “different amounts of time” go with “different things”
and that she would not know the answer until she heard the
“full story.”
At that point, defendant asked if he could talk to
Michaels alone. Luiz left the room. Defendant then told
Michaels that he had poured gasoline on TM’s couch, but
Cite as 375 Or 1 (2026) 9

that he did not pour any on the stairs or intend to start the
fire. He said that he did not remember lighting the gasoline
and stated that the fumes must have accidentally ignited
when he tried to light a cigarette. Michaels told defendant
that that was not possible. As the interrogation concluded,
defendant continued to claim that he did not intentionally
light the couch on fire.
C. Trial Court Proceedings
Defendant was indicted and charged with numerous
crimes relating to the fire, including two counts of second-
degree murder based on felony murder. He filed a demurrer
to the felony-murder counts, contending that the felony-mur-
der statute, ORS 163.115(1)(b), violated his federal right to
due process. Specifically, defendant contended that the stat-
ute required a factfinder to conclusively presume a culpable
mental state as to the causation of death, and that such a
presumption violated the Due Process Clause. Alternatively,
defendant contended that Oregon’s felony-murder statute
created a strict liability offense that violated due process by
dispensing with a culpable mental state regarding causation
of death. The trial court denied the demurrer.
Defendant also filed a pretrial motion to suppress
the statements that he had made to Michaels and Luiz
during the interrogation, contending that his statements
were not voluntary. Michaels testified at the hearing on the
motion to suppress, and a video of the interrogation was
shown to the court. The trial court denied the motion to sup-
press, concluding that defendant’s statements were volun-
tary. The trial court made factual findings regarding defen-
dant’s condition at the time of the interrogation, the nature
of the interrogation, and Michaels’s demeanor at the time.
Specifically, the trial court found that defendant
was “struggling” and “upset” at times during the interview,
but that he showed no signs of intoxication; the hospital had
found nothing physically wrong with him; defendant had
the opportunity to sleep the night before the interrogation;
and he did not appear to be suffering psychologically more
than expected when being interrogated about a fire where
two people had died. The court also found that Michaels was
10 State v. Monaco

calm, patient, and empathetic throughout the interrogation,
and that she had never “really turned up the heat at all.” In
addition, the court noted that the detectives had accommo-
dated defendant’s requests for breaks or water, and that the
fact that defendant had asked to speak to Michaels alone
demonstrated to the trial court that he was comfortable
speaking with her.
The case proceeded to trial, and defendant was
convicted of numerous counts, including the two felony-
murder counts. Defendant appealed, and the Court of Appeals
affirmed the convictions, concluding that the trial court did
not err in denying defendant’s motion to suppress and in
denying the demurrer to the felony-murder counts. Monaco,
336 Or App at 686. We allowed review on both issues.
II. DISCUSSION
As noted above, we review the denial of defendant’s
motion to suppress for legal error, and we also review the
denial of his demurrer to the two felony-murder counts for
legal error. See State v. Fanus, 336 Or 63, 67-74, 79 P3d 847
(2003) (applying principle in affirming denial of demurrer
challenging constitutionality of aggravated murder sentenc-
ing statutes). We begin with the motion to suppress.
A. Motion to Suppress Defendant’s Statements
Defendant contends that the statements he made
were not voluntary, requiring their suppression under ORS
136.425; Article I, section 12, of the Oregon Constitution;
and the Fifth and Fourteenth Amendments to the United
States Constitution. Applying our traditional approach, we
first address defendant’s arguments under the Oregon stat-
ute and constitution before addressing the federal constitu-
tional claim. See State v. Babson, 355 Or 383, 432-33, 326
P3d 559 (2014) (describing the “first things first” approach).
ORS 136.425(1) provides that “[a] confession or
admission of a defendant, whether in the course of judicial
proceedings or otherwise, cannot be given in evidence against
the defendant when it was made under the influence of fear
or produced by threats.” The purpose of the statute is “to
exclude potentially false—and thus unreliable—confessions
Cite as 375 Or 1 (2026) 11

from evidence.” State v. Powell, 352 Or 210, 222, 282 P3d
845 (2012). Article I, section 12, of the Oregon Constitution,
provides in, part, that “[n]o person shall * * * be compelled
in any criminal prosecution to testify against himself.” The
purpose of the constitutional provision is “[t]o protect a per-
son’s right against compelled self-incrimination.” State v.
Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006).
In addition to serving different purposes, we have
determined that, unlike the constitutional provision, the
statute is not limited “to confessions induced by and made
to state actors.” Powell, 352 Or at 222-23. That distinction
between the statute and Article I, section 12, makes no dif-
ference in this case, and this court has recognized that both
provisions “embody the common-law rule that confessions
made by a defendant in custody that were ‘induced by the
influence of hope or fear, applied by a public officer having
the prisoner in his charge,’ are inadmissible against the
defendant.” Jackson, 364 Or at 21 (quoting Powell, 352 Or at
218).
The state has the burden of proving, by a prepon-
derance of the evidence, that a confession was voluntary.
Powell, 352 Or at 225-26. The voluntariness of an admis-
sion or confession “depends on whether or not, in the totality
of the circumstances, a defendant’s free will was overborne
and his or her capacity for self-determination was critically
impaired.” Jackson, 364 Or at 21. Giving Miranda-type
warnings at the outset of an interrogation is a relevant fac-
tor, but it “is not a guarantee that statements made after
the warnings are voluntary.” Id.
Defendant contends that the trial court erred in
concluding that the state met its burden here, because the
detectives “conveyed an implied promise of leniency” by sug-
gesting that defendant would be less culpable and would
receive more lenient treatment if he confessed to starting
the fire without intending to kill anyone. Defendant con-
tends that, like the detectives in Jackson, the detectives in
this case employed an interrogation method that is gener-
ally known as the “Reid technique.” See Jackson, 364 Or
at 28-29 (describing the “Reid technique” as a method that
“involves isolating a suspect in a small room to increase
12 State v. Monaco

anxiety; confronting the suspect with accusations of guilt
and emphasizing the strength of the evidence against the
suspect; offering sympathy and justifications or rational-
izations to allow the suspect to minimize the crime; and
encouraging the suspect to see confession as a means of
terminating the interview” (citing S. Kassin et al, Police
Induced Confessions: Risk Factors and Recommendations,
34 Law & Hum Behav 3, 6 (2010))).
According to defendant, the detectives in this case,
following the “Reid technique,” employed “maximization
tactics” by confronting defendant with evidence that tended
to show that he intentionally killed the upstairs roommates
by setting fire to the couch and staircase, followed by “min-
imization tactics” by implying that defendant would receive
the benefit of lesser charges if he confessed to starting the
fire without intending to kill anyone. We agree that the
detectives appear to have generally utilized the “Reid tech-
nique” and employed maximization and minimization tac-
tics during the interrogation. However, Jackson expressly
rejected the defendant’s suggestion “that the use of the Reid
technique or other strategies to obtain information from a
suspect is necessarily coercive or will always require the
exclusion of inculpatory statements.” 364 Or at 31. Rather,
the question a trial court must decide “is not whether a par-
ticular interrogation method was used, but whether, consid-
ering the totality of the circumstances, the suspect’s will
was overborne.” Id.
Our analysis of that issue in Jackson is instructive.
There, we observed that this court “has long recognized”
that confessions made because of impermissible induce-
ments consisting of “suggestions of leniency” are not reliable.
Id. at 22. That is because confessions “ ‘rendered under cir-
cumstances in which the confessor perceives that he or she
may receive some benefit or avoid some detriment by con-
fessing, regardless of the truth or falsity of the confession,’ ”
are unreliable. Id. at 23 (quoting Powell, 352 Or at 222). On
the other hand, our cases have drawn “a distinction between
permissible ‘mere adjuration’ and ‘adjuration accompanied
by inducement.’ ” Id. at 24 (quoting State v. Linn, 179 Or 499,
510, 173 P2d 305 (1946)). A permissible “mere adjuration”
Cite as 375 Or 1 (2026) 13

occurs, for example, “where defendants [have] been told,
as a general matter, that it would be better if they told the
truth, or that they would feel better if they told the truth[.]”
Id. By contrast, an impermissible inducement “is one that
conveys to a defendant the idea of a threat or promise.” Id.
Applying those principles in Jackson, we concluded
that the detectives’ statements in that case that involved
two basic themes—relieving the defendant’s conscience and
easing the suffering of the victims’ families—were generally
permissible as “mere adjurations.” Id. at 25. But we further
concluded that statements “concerning the legal ramifica-
tions of [the] defendant’s failure to confess” and statements
“about how the interrogation itself would proceed” were
potentially coercive. Id.
In the first category of potentially coercive state-
ments, we noted that the detectives’ statements in Jackson
moved “from the fairly benign to the more legally signifi-
cant.” Id. The “fairly benign” statements included those sug-
gesting that it “would * * * [be] best for everybody” if the
defendant confessed and that they were trying to “help”
the defendant by encouraging him to confess. Id. But other
statements regarding the consequences of a failure to con-
fess were more legally significant. That included statements
implying that the defendant might become a suspect in other
murders if he did not confess; that the jury would hear “irre-
futable” evidence of the defendant’s guilt and would “react
badly” if he did not confess; that the detectives, the victims’
families, and the jury would view the defendant as a “mon-
ster” if he did not confess; and that the detectives would do
everything they could to ensure that he received a harsh
sentence. Id.
In the second potentially coercive category—state-
ments about how the interrogation itself would proceed—the
detectives in Jackson had stated that they were giving the
defendant “his only significant chance to confess” because
anything he said later would sound as though he were “cook-
ing a story.” Id. In addition, the detectives said that they were
prepared to continue the interrogation “all day” and into a
second day, if necessary; that they were “working together”
with defendant; and that “he would not be permitted to talk
14 State v. Monaco

to his family” until they had “worked through” these issues.
Id. at 25-26. Taken together, we viewed those statements
as “potentially problematic” because they “conveyed to [the]
defendant that he ‘may receive some benefit or avoid some
detriment by confessing, regardless of the truth or falsity of
the confession.’ ” Id. at 27 (quoting Powell, 352 Or at 222).
We ultimately agreed with the trial court that
Jackson was “a close case.” Id. at 31. On the one hand, the
detectives “were skilled, and they may have succeeded in
convincing [the] defendant to voluntarily tell them what
happened, to the best of his memory.” Id. at 31-32. In that
regard, we noted that the detectives “did not make any
promise of immunity” and had explained that the defendant
would be charged with murder no matter what he said. Id.
at 32. In addition, they had informed the defendant of his
right to remain silent and to consult with counsel; they had
permitted the defendant to take breaks upon request and
were not consistently “hostile”; and “[f]or the most part,” the
detectives “appealed to [the] defendant’s better nature and
encouraged him to help the families of the victims.” Id.
On the other hand, we noted that the defendant in
Jackson had been diagnosed with schizophrenia; that he
had experienced delusions in the past; that he took medi-
cation for depression; and that he had significant memory
problems and physical disabilities. Id. In addition, the detec-
tives had isolated the defendant; did not allow him to call
his family until they had “worked through” things; and con-
tinued to question him for a significant length of time. Id.
The detectives also told him that it would be best for him to
confess because that might eliminate him as a suspect in
additional crimes and would give him more control over how
the case would proceed; they also said that they would do
their best to ensure that he received the maximum possible
sentence if he did not confess. Id. We indicated that none of
those factors, “[v]iewed independently,” would be dispositive,
but “together they indicate that the detectives’ methods and
inducements may have persuaded [the] defendant to tell the
detectives what they wanted to hear, whether or not that
was the truth.” Id. Ultimately, considering the totality of the
circumstances, we agreed with the trial court that the state
Cite as 375 Or 1 (2026) 15

had not met its burden of establishing that the defendant’s
admissions were voluntary. Id.
Applying those principles here, we note that the
interrogation that detectives Michaels and Luiz conducted is
similar in some ways to the interrogation that the detectives
conducted in Jackson. The detectives here informed defen-
dant of his right to remain silent and to consult with counsel;
they did not make any express promise of leniency; and they
were not overtly hostile during the interrogation. Michaels
was calm, patient, and empathetic during the interrogation,
as the trial court found. For the most part, the detectives
appealed to defendant’s conscience and the effect his con-
fession would have on the victims’ families. They told defen-
dant that he was going to jail on charges related to the fire
regardless of what he said. On the other hand, the detectives
indicated that defendant was potentially facing aggravated
murder charges, that it would be better for defendant if he
confessed, and that the judge and jury “would know” if he
had told the truth. In addition, they conveyed to defendant a
sense of urgency, telling him that this was his “opportunity”
to tell the truth, and that he needed to do so before they
finished filling out the paperwork on his case. Luiz became
more insistent toward the end of the interrogation. And the
detectives declined to allow defendant to call his children’s
mother until they finished the interrogation.
As in Jackson, none of those factors, in isolation,
is dispositive. We hold that the trial court did not err in
concluding, under the totality of the circumstances, that
defendant’s statements were voluntary. Although the inter-
rogation here was like the interrogation in Jackson in some
respects, it was different enough to support a different
conclusion.
Unlike the interrogation in Jackson, the detectives
here did not state that defendant would be considered a sus-
pect in other crimes if he did not confess. The interroga-
tion took place after defendant had an opportunity for a full
night’s rest; he showed no signs of intoxication or impair-
ment; the interrogation lasted four hours and was con-
ducted in the middle of the day; and the detectives did not
threaten to keep interrogating defendant “all day” and into
16 State v. Monaco

a second day, as the detectives in Jackson had threatened.
And although defendant had required medical attention the
night before the interrogation and stated at one point that
“something” was wrong with him, unlike the defendant in
Jackson, defendant does not have a history of significant
mental illness, memory problems, and physical disabilities.
Finally, defendant was comfortable speaking to Michaels
alone and maintained at the end of the interrogation that
he did not remember starting the fire, indicating that he
did not just tell the detectives what they wanted to hear. All
things considered, we conclude that the trial court did not
err in determining that the preponderance of the evidence
supports the conclusion that defendant’s statements during
the interrogation were voluntary, and that his will was not
overborne by any implied threats or promises of leniency.
We reach the same conclusion on defendant’s con-
tention that his statements should have been suppressed
under the Fifth and Fourteenth Amendments to the United
States Constitution. As under the Oregon Constitution, the
state must prove voluntariness by a preponderance of the
evidence. Lego v. Twomey, 404 US 477, 489, 92 S Ct 619, 30
L Ed 2d 618 (1972). Under the United States Constitution,
we must examine the totality of the circumstances to deter-
mine whether a confession was made “freely, voluntarily,
and without compulsion or inducement of any sort.” Haynes
v. Washington, 373 US 503, 513, 83 S Ct 1336, 10 L Ed 513
(1963) (citation and internal quotation marks omitted). For
the reasons stated above in connection with our state con-
stitutional analysis, we conclude that the trial court did not
err in declining to suppress defendant’s statements under
the United States Constitution.
B. Due Process Challenge to Felony-Murder Convictions
As stated, defendant contends that the application
of the felony-murder statute, ORS 163.115(1)(b), in this case
violates the Due Process Clause. Specifically, defendant con-
tends that the statute either required a factfinder to conclu-
sively presume that defendant acted with a culpable mental
state as to causing death or creates a strict liability offense
for felony murder. In either case, according to defendant, the
statute violates the Due Process Clause. See Nelson E. Roth
Cite as 375 Or 1 (2026) 17

& Scott E. Sundby, The Felony-Murder Rule: A Doctrine at
Constitutional Crossroads, 70 Cornell L Rev 446, 449 (1985)
(suggesting that courts must either characterize the felo-
ny-murder rule as a conclusive presumption or as a strict
liability offense and contending that the rule violates due
process either way).
Defendant first contends that ORS 163.115(1)(b)
gives rise to a conclusive presumption and that such a pre-
sumption violates due process under Sandstrom v. Montana,
442 US 510, 99 S Ct 2450, 61 L Ed 2d 39 (1979). The defen-
dant in Sandstrom was convicted of deliberate homicide for
“purposely or knowingly” causing the death of the victim.
442 US at 512. The defendant admitted killing the vic-
tim, but he contended that he did not do so “purposely or
knowingly.” Id. The issue before the United States Supreme
Court was whether instructing the jury that the law “pre-
sumes that a person intends the ordinary consequences of
his voluntary acts” violated the Fourteenth Amendment’s
requirement that the state must prove every element of a
criminal offense beyond a reasonable doubt. Id. at 513. The
Court held that the instruction violated the defendant’s
right to due process. Id. at 525. The problem with such an
instruction, the Court explained, was that the jury “could
reasonably have concluded that they were directed to find
against [the] defendant on the element of intent.” Id. at 523.
As a result, the state was not required to prove beyond a
reasonable doubt “every fact necessary to constitute the
crime” charged. Id. Thus, the Supreme Court held that the
jury may have interpreted the instruction “as constituting
either a burden-shifting presumption[,] * * * or a conclusive
presumption[,]” and that “either interpretation would have
deprived [the] defendant of his right to the due process of
law[.]” Id. at 524.
Under Sandstrom, a statute that results in a burden-
shifting or conclusive presumption as to a material element
of the offense violates due process. Defendant contends
that ORS 163.115(1)(b) is such a statute, because it gives
rise to a conclusive presumption of a culpable mental state
as to causing death. According to defendant, Oregon’s felo-
ny-murder statute gives rise to that conclusive presumption,
18 State v. Monaco

because (1) felony murder is criminal homicide under Oregon
law; (2) ORS 163.005(1) defines “criminal homicide” as
“intentionally, knowingly, recklessly or with criminal neg-
ligence caus[ing] the death of another human being”; and
(3) this court concluded in Blair, 348 Or 72, that felony mur-
der in Oregon does not require proof of a separate culpable
mental state as to causing death despite ORS 163.005(1).
We agree that, under Blair, felony murder does not
require proof of a separate culpable mental state as to caus-
ing death, notwithstanding ORS 163.005(1). But that does
not mean that a separate culpable mental state as to caus-
ing death is a required element of felony murder that is con-
clusively presumed in Oregon. Instead, as Blair concludes,
the only culpable mental state required for felony murder
in Oregon is established as a matter of law when the state
proves the culpable mental state required for the predicate
felony. Because there is no separate culpable mental state
required for causing death on a felony-murder charge, the
law does not conclusively presume any element that the
state is required to prove.
The state charged the defendant in Blair with fel-
ony murder and other crimes. 348 Or at 74. Before trial,
the defendant demurred to the felony-murder charge, con-
tending that, “because felony murder is a form of criminal
homicide, the state was required to allege in the indictment
one of the mental states described in ORS 163.005(1)[.]” Id.
at 74. The trial court overruled the demurrer. Id. at 74-75.
At trial, the defendant requested jury instructions that
would have required the state to prove that he “had caused
the victim’s death knowingly, recklessly, or with criminal
negligence as one of the elements of felony murder.” Id. at
75. The trial court refused to give those instructions, and a
jury convicted the defendant of felony murder. Id. The Court
of Appeals affirmed that conviction. Id. We allowed review
to determine whether the definition of criminal homicide in
ORS 163.005(1) applies to felony murder, as codified in ORS
163.115(1)(b), “in such a way that felony murder in Oregon
requires the state to allege and prove that a defendant acted
with a mental state in causing the victim’s death distinct
Cite as 375 Or 1 (2026) 19

from any mental state required to prove the underlying fel-
ony.” Id. at 75.
In resolving that question, we first noted that,
before the Criminal Code revisions in 1971, this court had
“consistently incorporated an ‘implied malice’ rule into fel-
ony murder, that is, felony murder contains no distinct or
independent mens rea requirement in relation to the cause
of death of the victim.” Id. at 78 (citing State of Oregon v.
Brown, 7 Or 186, 198, 204 (1879); State v. Branch, 244 Or 97,
100, 415 P2d 766 (1966); State v. Dorland, 161 Or 403, 404,
89 P2d 595 (1939)). Thus, when the legislature adopted ORS
163.005 and ORS 163.115 in 1971,
“the felony murder rule, as construed and applied by this
court, long had operated to impose responsibility for homi-
cides that occur during the commission or attempted com-
mission of a felony, without the separate and additional
requirement that the defendant acted with a mens rea in
causing the death of another person.”
Id. (emphasis added). And we further noted that this court,
in cases decided after those statutes were adopted in 1971,
had “continued to treat felony murder as requiring no dis-
tinct or independent mens rea with respect to the cause of
the victim’s death.” Id. (citing State v. Link, 346 Or 187, 205,
208 P3d 936 (2009); State v. Zweigart, 344 Or 619, 626, 188
P3d 242 (2008), cert den, 558 US 829 (2009); State v. Quinn,
290 Or 383, 405 n 8, 623 P2d 630 (1981), overruled on other
grounds by State v. Hall, 339 Or 7, 115 P3d 908 (2005)). We
saw nothing in the statutes to indicate “that the legislature
intended to change that long-standing rule.” Id. at 79. And
we noted that “much [of] the legislative history suggests
that the legislature intended to adhere to it.” Id. at 80.
In summary, we determined in Blair that the text,
context—including this court’s case law—and the legislative
history of the felony-murder statutes “compel the conclusion
that the legislature intended to continue the implied mal-
ice rule.” Id. And as we noted in Blair, that “implied malice
rule” does not require a “distinct or independent mens rea
requirement in relation to the cause of death of the victim.”
Id. at 78. Accordingly, we concluded without further expla-
nation that
20 State v. Monaco

“(1) under ORS 163.005(1), ‘criminal homicide’ requires
that a defendant act with a culpable mens rea with respect
to causing the victim’s death; (2) under ORS 163.005(2),
‘criminal homicide’ includes ‘murder,’ and (3) under ORS
163.115(1)(b), requisite culpable mens rea is established, as
a matter of law, by the defendant’s commission or attempted
commission of the predicate felony.”
Id. at 80 (emphasis added).1 Thus, the trial court “properly
overruled [the] defendant’s demurrer and properly refused
to give [the] defendant’s requested jury instruction.” Id.
Defendant does not contend that Blair was wrongly
decided, nor are we otherwise persuaded at this time to
revisit that opinion, so we adhere to its holding.2 We did not
conclude in Blair that a culpable mental state as to causing
death was conclusively presumed for felony murder. Rather,
we concluded that a separate culpable mental state as to
causing death was not required, and that the only culpable
mental state required for felony murder could be established
by proof that the defendant committed the predicate felony
with its requisite mental state.3 And as we will explain, we
1
In concluding that a separate culpable mental state with respect to causing
the victim’s death was not required for felony murder in Oregon, the Blair court
acknowledged that ORS 163.005(1) required a culpable mental state with respect
to causing the victim’s death for “criminal homicide,” including “murder.” The
court’s reading of that statute in conjunction with ORS 163.115(1)(b) meant that
any required culpable mental state for causing death was established as a matter
of law by proof of the culpable mental state for the predicate felony, and that a sep-
arate culpable mental state as to causing death was not required. The concurring
opinion disagrees, stating that “the most sensible way” to read Blair’s conclusion
is that the term “culpable mens rea” in point (3) refers to ORS 163.005(1) and (2),
not to the statute that immediately precedes that phrase, ORS 163.115(1)(b). 375
Or at 30 (DeHoog, J., concurring). Although the Blair opinion states its conclusion
without further explanation, as noted, the concurrence’s reading of that conclusion
cannot be “the most sensible way” to read it, because that reading violates the doc-
trine of the last antecedent, a “long-recognized grammatical principle” ordinarily
used in interpreting statutes. State v. Webb, 324 Or 380, 386, 927 P2d 79 (1996).
Under that principle, “[r]eferential and qualifying words and phrases, where no
contrary intention appears, refer solely to the last antecedent.” Id. (citation and
internal quotation marks omitted). Thus, a phrase “usually is construed to apply
to the provision or clause immediately preceding it.” Id.
2
Because there was no due process issue asserted in Blair, the court did not
address whether its reading of the felony-murder statutes effectively resulted in a
conclusive presumption for purposes of the Due Process Clause.
3
The concurring opinion states that a culpable mental state as to causing death
is an element of felony murder, but that it is an element that the state is not required
to prove. 375 Or at 38 (DeHoog, J., concurring). Our Criminal Code defines crimes in
terms of the elements that the state must prove at trial. The Uniform Criminal Jury
Cite as 375 Or 1 (2026) 21

conclude in this case that Oregon’s felony-murder statute, as
interpreted in Blair, does not violate due process.
Sandstrom is not to the contrary, and no other
United States Supreme Court case has addressed the issue.4
The defendant in Sandstrom was charged with deliberate
homicide, not felony murder, so the United States Supreme
Court did not decide in that case whether a state’s felo-
ny-murder statute constituted a burden-shifting or conclu-
sive presumption that violated due process. But the high-
est courts in other states have addressed the issue. Those
courts have consistently determined that state felony-mur-
der statutes that, like Oregon’s law, do not require proof of
a separate culpable mental state as to causing death, do not
result in a conclusive presumption that violates due process.
For example, in State v. Patterson, 311 Kan 59,
61-62, 455 P3d 792, 795 (2020), the defendant contended that
his felony-murder conviction violated due process because
Kansas law “requires an intent-to-kill element for homicide”
that is eliminated for felony murder because “that intent is
conclusively presumed based only on the jury’s finding [that]
the defendant was participating in an inherently dangerous
Instructions are all written in terms of the elements that the state must prove for
each offense. See, e.g., UCrJI 1305 (listing the elements that “the state must prove
beyond a reasonable doubt” to establish the crime of second-degree felony murder).
The concurring opinion does not explain how something can be a required element
of an offense if the state is not required to prove it.
4
The state contends that felony-murder statutes are “beyond constitutional
challenge” under Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 L Ed 2d 973
(1978). We disagree. The defendant in Lockett drove the getaway car in a robbery-
murder. 438 US at 590-51. She was convicted of aggravated murder and sen-
tenced to death. Id. at 597. The main issue before the Supreme Court was the
constitutionality of the death sentence, but the Court also addressed—albeit brief-
ly—a due process challenge to her conviction. The defendant contended that the
Ohio Supreme Court’s interpretation of the “complicity provision” of Ohio’s aggra-
vated murder statute “was so unexpected that it deprived her of fair warning of the
crime with which she was charged” in violation of the Due Process Clause. Id. The
Supreme Court disagreed, concluding that the Ohio Supreme Court’s opinion “shows
clearly” that the construction given the statute was consistent with prior Ohio law
and the statute’s legislative history. Id.
The Court then stated, in the context of addressing the defendant’s constitu-
tional challenge to the death sentence, that “States have authority to make aiders
and abettors equally responsible, * * * or to enact felony-murder statutes” and that
such a proposition “is beyond constitutional challenge.” Id. at 602 (emphasis added).
That statement was in a section of the opinion that was joined by only four justices,
and it did not amount to a holding that state felony-murder statutes are beyond
constitutional challenge. Id. at 589, 602.
22 State v. Monaco

felony.” The Kansas Supreme Court disagreed, holding
that the Kansas felony-murder statute “does not operate as
an unconstitutional, conclusive presumption that invades
the jury’s province.” Id. at 67, 455 P3d at 798. The court
explained that, under Kansas law, “intent to kill is not an
element of felony murder” and that the statute “expressly
requires proof that the defendant engaged in dangerous,
felonious conduct and that a death occurred as a result of
that conduct.” Id. at 67, 455 P3d at 798.5 The court concluded
that, “[b]y codifying participation in the felony as a statu-
tory alternative for the intent and premeditation otherwise
required for a first-degree murder conviction, the statute
imposes a rule of law. It does not remove from the jury’s con-
sideration an intent element required by a criminal statute.”
Id.
In State v. Burkhart, 325 Mont 27, 103 P3d 1037
(2004), the Montana Supreme Court distinguished the trans-
fer of felonious intent under Montana’s felony-murder statute
from the type of conclusive presumption that the Supreme
Court disapproved in Sandstrom. The court first noted that,
under the Montana statute, the defendant’s “purpose and
knowledge to commit felony-murder was presumed when he
assaulted [the victim] * * * causing [the victim’s] death.” 325
Mont at 40-41, 103 P3d at 1046.6 But, the court explained,
such a presumption “is not analogous to that derided in
5
The Kansas felony-murder statute addressed in Patterson provided that “[m]
urder in the first degree is the killing of a human being committed: (1) intentionally,
and with premeditation; or (2) in the commission of, attempt to commit, or flight
from any inherently dangerous felony.” Kan Stat Ann § 21-5402(a). The Kansas
statute does not include a definitional provision for “murder” or “homicide” that
imports a general term like “criminal homicide” into its definition of murder com-
parable to ORS 163.005(1). The Patterson court noted that the Kansas Supreme
Court had “long recognized” that, in felony-murder cases, “ ‘the elements of malice,
deliberation, and premeditation which are required for murder in the first degree are
deemed to be supplied by felonious conduct alone if a homicide results.’ ” 311 Kan at
63, 455 P3d at 796 (quoting State v. Hobbs, 248 Kan 342, 345-46, 807 P2d 120, 124
(1991), overruled on other grounds by State v. Berry, 292 Kan 493, 254 P3d 1276
(2011)).
6
The Montana felony-murder statute addressed in Burkhart provided that a
person “commits the offense of deliberate homicide” if the person
“attempts to commit, commits, or is legally accountable for the attempt or
commission of * * * assault with a weapon * * * or any other forcible felony
and in the course of the forcible felony or flight thereafter, the person or any
person legally accountable for the crime causes the death of another human
being.”
Cite as 375 Or 1 (2026) 23

Sandstrom.” Id. at 42, 103 P3d at 1047. That is because the
presumption created by the felony-murder statute “does not
operate to shift a burden from the state to the defendant,
but rather substitutes proof of the mental state necessary to
commit a homicide with proof of the mental state required
to commit the underlying felony.” Id. at 42, 103 P3d at 1047
(brackets omitted). Thus, the court concluded, “because the
felony-murder rule does not in fact raise a presumption of
the existence of an element of the crime, it does not violate
the [D]ue [P]rocess [C]lause.” Id. at 42, 103 P3d at 1047.
In State v. Wanrow, 91 Wash 2d 301, 588 P2d 1320
(1978), superseded by statute, 1975 Wash Sess Laws 863, as
recognized in In re Personal Restraint of Andress, 147 Wash
2d 602, 56 P3d 981 (2002), the Washington Supreme Court
addressed a due process challenge to the prior version of
Washington’s felony-murder statute.7 The court noted that,
under the Washington statute, where a willful assault
resulted in death, a prosecutor can allege and prove felony
murder “and not have to show intent to kill.” 91 Wash 2d
at 307, 588 P2d at 1323. The defendant argued that the
felony-murder statute violates due process because it “con-
clusively presumes the existence of an intent to kill from the
existence of the malicious felonious intent,” thereby shifting
the burden to the defendant “to prove the lack of intent to
kill[.]” Id. at 311, 588 P2d at 1325. The Washington Supreme
Court disagreed, explaining that “intent to kill is not an
element of second-degree felony-murder” under Washington
law. Id. Instead, “[t]he intent necessary to prove the felony-
murder is the intent necessary to prove the underlying
felony.” Id. The court agreed with other state and federal
courts that had “rejected the argument that the felony-
murder rule presumes the existence of an intent to kill,
or any other intent necessary for the crime of murder,
Mont Code Ann § 45-5-102(1)(b). In addition to felony murder, a person could com-
mit “deliberate homicide” under the Montana statute by “purposely or knowingly
caus[ing] the death of another human being.” Id. § 45-5-102(1)(a).
7
Like the Montana statute addressed in Burkhart, the Washington statute
addressed in Wanrow provided that the killing of a human being, unless it is excus-
able or justifiable, is murder in the second degree when it is “(1) [c]ommitted with
a design to effect the death of the person killed or of another, but without premedi-
tation; or (2) [w]hen perpetrated by a person engaged in the commission of, or in an
attempt to commit, or in withdrawing from the scene of, a felony[.]” Former Wash
Rev Code § 9.48.040 (1974), repealed by 1975 Wash Sess Laws 863).
24 State v. Monaco

in violation of the [D]ue [P]rocess [C]lause.” Id. (collecting
cases).

Every other court to address the issue has reached
the same conclusion. See, e.g., Mares v. State, 939 P2d 724,
730-31 (Wyo 1997); State v. Herrera, 176 Ariz 21, 30-31, 859
P2d 131, 140-41 (1993); Commonwealth v. Rawls, 328 Pa
Super 469, 473-74, 477 A2d 540, 543 (1984); People v. Dillon,
34 Cal 3d 441, 450, 668 P2d 697, 700, 194 Cal Rptr 390, 393
(1983), superseded by statute, 2018 Cal Stat ch 1015, as rec-
ognized in, People v. Sifuentes, 83 Cal App 5th 217, 290 Cal
Rptr 3d 320 (2022); Brown v. State, 448 NE2d 10, 15 (Ind
1983); State v. Oliver, 341 NW2d 744, 747-48 (Iowa 1983);
Commonwealth v. Moran, 387 Mass 644, 649-50, 442 NE2d
399, 402-03 (1982); State ex rel. Peacher v. Sencindiver, 160
W Va 314, 316-17, 233 SE2d 425, 426-27 (1977); State v.
Swift, 290 NC 383, 407-08, 226 SE2d 652, 668-69 (1976);
Gore v. Leeke, 261 SC 308, 315-16, 199 SE2d 755, 757-58
(1973).8 Defendant cites no authority holding otherwise.

Oregon’s felony-murder statute, as we interpreted it
in Blair, is comparable to the statutes that were upheld in
Patterson, Burkhart, Wanrow, and other cases, in that none
of those statutes required a separate culpable mental state
as to causing death as an element of felony murder. Rather,
the culpable mental state for the underlying felony is the
only required culpable mental state under the felony-mur-
der statutes in Oregon and other states. The supreme courts
in other states have concluded that those statutes do not
violate due process. We agree with those decisions.

The culpable mental state required for felony mur-
der under ORS 163.115(1)(b) is not conclusively presumed.
The state still must prove, beyond a reasonable doubt,
the culpable mental state required for defendant’s com-
mission of the underlying offense, in this case, first-degree
8
The Ninth Circuit reached the same conclusion in People of Territory of Guam
v. Root, 524 F2d 195, 196 (9th Cir 1975) (holding that “[n]othing in the United States
Constitution deprives legislatures of the power to impose upon those who kill their
victims in the course of inherently dangerous felonies the same sanctions they choose
for those who kill their victims after meditation sufficient to satisfy the jurisdiction’s
definition of first-degree murder”).
Cite as 375 Or 1 (2026) 25

arson. That required the state to prove that defendant
intentionally amaged the apartment by starting a fire, ORS
164.325(1)(a), that resulted in the death of two people. Under
Blair, proof of that culpable mental state is enough, as a mat-
ter of law, to establish the culpable mental state required for
felony murder under ORS 163.115(1)(b).
In other words, like the felony-murder statutes
upheld in other states, ORS 163.115(1)(b) substitutes proof
of the mental state necessary to prove the underlying felony
for proof of acting with a culpable mental state in causing
death, as is ordinarily required to prove a criminal homi-
cide. That substitution does not conclusively presume an ele-
ment of the offense or shift the burden of proof as to an ele-
ment, because acting with a culpable mental state to cause
death is not an element of the offense of felony murder in
Oregon. Thus, we agree with every other case to squarely
address the issue and conclude that Oregon’s felony-murder
statute does not conclusively presume a material element of
the offense in violation of the Due Process Clause.
As noted, defendant contends that, if ORS 163.115
(1)(b) does not give rise to an impermissible conclusive pre-
sumption, then dispensing with proof that defendant acted
with a culpable mental state in causing the death of TM’s
roommates makes felony murder under ORS 163.115(1)(b) a
strict liability offense that violates the Due Process Clause.
The Court of Appeals concluded that, because a felony mur-
der under ORS 163.115(1)(b), as interpreted in Blair, did not
require the state to allege or prove that defendant acted
with a culpable mental state as to causing death, felony
murder in Oregon “is a strict liability offense.” Monaco, 336
Or App at 703.9 But, the Court of Appeals was “unpersuaded
that, by mere virtue of being a strict liability offense, felony
murder under ORS 163.115(3) violates federal due process.”
Id. at 705.
9
The Court of Appeals noted that one of the drafters of the 1971 Oregon Criminal
Code had described the new felony-murder statute as creating “strict liability” for
death caused in the commission of a qualifying felony. Monaco, 336 Or App at 703 n 2
(citing Tape Recording, Criminal Law Revision Commission, Subcommittee No. 2,
Nov 14, 1969, Tape 87, Side 1 (statement of Professor George M. Platt, University of
Oregon School of Law)); see also Model Penal Code § 210.2 cmt 6 (ALI, Commentaries
1985) (stating that the “classic formulation” of the felony-murder rule “operated to
impose liability for murder based on * * * strict liability”).
26 State v. Monaco

As noted, ORS 163.115(1)(b) dispenses with proof of a
culpable mental state as to causing death. In that respect, we
could characterize felony murder as a strict liability offense,
as the Court of Appeals did, at least in part. But if a strict
liability offense is an offense that does not require a culpable
mental state at all, then felony murder is not entirely a strict
liability offense. That is because proof of a culpable mental
state—the mental state required for the predicate felony—is
still required. In any event, the issue is not whether we label
or characterize felony murder as a strict liability offense,
but whether the offense as defined by the statute violates the
Due Process Clause. See State v. Rainey, 298 Or 459, 464-
65, 693 P2d 635 (1985) (noting that, in the case of presump-
tions, “it is not the label given * * * but the effect upon the
burden of proof that is significant”). And, as noted, every
case to address a due process challenge to a state’s felony-
murder statute has concluded that the offense, as defined by
statutes that are indistinguishable from Oregon’s, does not
violate due process. Defendant acknowledges that no case
has expressly held that a felony-murder statute violates due
process because it results in strict liability, but he contends
that the United States Supreme Court and the New Mexico
Supreme Court have “suggested” that that might be the case.
Defendant contends that the United States Supreme
Court made that suggestion in Rehaif v. United States, 588
US 225, 139 S Ct 2191, 204 L Ed 2d 594 (2019); United States
v. United States Gypsum Co., 438 US 422, 98 S Ct 2864, 57
L Ed 2d 854 (1978); and Morrissette v. United States, 342 US
246, 72 S Ct 240, 96 L Ed 288 (1952). But defendant reads
too much into those cases.
In Rehaif, the Court held that, to convict a defen-
dant for “knowingly” violating a statute that prohibited
certain categories of individuals from possessing a firearm,
the government must prove both that the defendant knew
that he engaged in the prohibited conduct—possessing a
firearm—and that he fell within one of the categories listed
in the statute. 588 US at 227. The Court explained that it
is “the defendant’s status, and not his conduct alone, that
makes the difference.” Id. at 232 (emphasis in original).10
10
The defendant’s status in Rehaif was that he was an alien “illegally or unlaw-
fully in the United States.” 588 US at 227 (internal quotation marks omitted). After
Cite as 375 Or 1 (2026) 27

“Without knowledge of that status, the defendant may well
lack the intent needed to make his behavior wrongful.” Id.
The Court then noted that it has “sometimes
declined to read a scienter requirement into criminal stat-
utes.” Id. But the Court went on, it has “typically declined
to apply the presumption in favor of scienter in cases involv-
ing statutory provisions that form part of a ‘regulatory’ or
‘public welfare’ program and carry only minor penalties.”
Id. Because the firearms statute at issue carried a potential
penalty of 10 years in prison, the Court concluded that “this
exception to the presumption in favor of scienter does not
apply.” Id. Thus, the Court declined to apply an exception to
that usual presumption as a matter of statutory interpreta-
tion, not because such a limitation was required by the Due
Process Clause. See id.
The issue in United States Gypsum that is relevant
here was “whether intent is an element of a criminal anti-
trust offense[.]” 438 US at 426. The Court observed that “an
effect on prices, without more, will not support a criminal
conviction under the Sherman [Antitrust] Act” and thus held
that a “defendant’s state of mind or intent is an element of a
criminal antitrust offense which must be established by evi-
dence and inferences drawn therefrom and cannot be taken
from the trier of fact through reliance on a legal presumption
of wrongful intent from proof of an effect on prices.” Id. at
435. The Court disapproved of a jury instruction that stated
otherwise, explaining that it was “unwilling to construe the
Sherman Act as mandating a regime of strict-liability crim-
inal offenses.” Id. at 436. The Court indicated that, “while
strict-liability offenses are not unknown to the criminal law
and do not invariably offend constitutional requirements,” it
did not construe the Sherman Act to be such an offense. Id.
at 437-38.
In reaching that conclusion as a matter of statu-
tory interpretation, the Court indicated that its holding in
Morissette “can be fairly read as establishing, at least with
regard to crimes having their origin in the common law, an

learning that defendant had been shooting at a firing range, the government pros-
ecuted him for “possessing firearms as an alien unlawfully in the United States,” in
violation of federal law. Id. at 228.
28 State v. Monaco

interpretative presumption that mens rea is required.” Id. at
437.
Thus, Rehaif, United States Gypsum, and Morissette
support the conclusion that some culpable mental state
would be presumed as a matter of statutory interpretation
for crimes that originated in the common law. But the Court
did not address what culpable mental state would be pre-
sumed, nor did it suggest that the culpable mental state that
is typically required for felony murder—the culpable men-
tal state for the underlying felony—makes felony murder a
strict liability offense that violates the Due Process Clause.
Reading such a suggestion into those cases would be
inconsistent with how the United States Supreme Court has
generally addressed due process limitations on other state
criminal statutes. For example, in Patterson v. New York, 432
US 197, 198, 97 S Ct 2319, 53 L Ed 2d 281 (1977), the Court
rejected a due process challenge to a New York statute that
allocated to a defendant charged with murder the burden
of proving that the defendant’s conduct was the result of an
extreme emotional disturbance. In reaching that conclusion,
the Court noted that “preventing and dealing with crime is
much more the business of the States than it is of the Federal
Government[.]” Id. at 201. As a result, the Court stated that it
“should not lightly construe the Constitution so as to intrude
upon the administration of justice by the individual States.”
Id. Normally, the Court explained, it is within the power of
a state “to regulate procedures under which its [criminal]
laws are carried out, including the burden of producing evi-
dence and the burden of persuasion[.]” Id. (citation and inter-
nal quotation marks omitted). Thus, the Court concluded, a
state’s “decision in this regard is not subject to proscription
under the Due Process Clause unless it offends some princi-
ple of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.” Id. (emphasis added;
citation and internal quotation marks omitted).11
11
That does not mean that the Due Process Clause provides no constraints at
all on state legislatures. See State v. Burrow, 293 Or 691, 708, 653 P2d 226 (1982)
(Linde, J., dissenting) (cautioning that Patterson “is far from holding that legisla-
tures are wholly free to transfer burdens to prove facts on which a defendant’s guilt
will actually depend by manipulating ‘elements’ of the statutory definition of the
crime”).
Cite as 375 Or 1 (2026) 29

Given how firmly entrenched the felony-murder
rule is in Oregon and the common law, we cannot conclude
that the felony-murder rule is so contrary to a fundamental
principle of justice that it must be proscribed by the Due
Process Clause in this context. See Blair, 348 Or at 77-78
(noting that the felony-murder rule “was first codified in
Oregon in 1864” and that the rule “long had operated to
impose responsibility for homicides that occur during the
commission of a felony, without the separate and additional
requirement that the defendant acted with a mens rea in
causing the death of another person”); Burkhart, 325 Mont
at 37-38, 103 P3d at 1044 (tracing the common law felony-
murder rule to a sixteenth-century case, Mansell & Herbert’s
Case, 2 Dyer 128b; 73 Eng Rep 279 (KB 1558); Roth and
Sundby, 70 Cornell L Rev at 449 (noting that some com-
mentators trace the rule to a different sixteenth-century
case, while others trace it to “a ‘blunder’ by Lord Coke,” and
concluding that the “origins of the felony-murder rule are
disputed”).12 Thus, even if we were to characterize Oregon’s
felony-murder statute as defining a strict liability offense at
least in part, that does not mean that the statute violates
the Due Process Clause.
That is consistent with our observation that the
United States Supreme Court, “in applying the federal con-
stitution, has generally refused to interfere with the histor-
ical state power to create strict liability offenses.” State v.
Buttrey, 293 Or 575, 587, 651 P2d 1055 (1982) (citing Powell
v. Texas, 392 US 514, 536, 88 S Ct 2145, 20 L Ed 1254 (1968)
(plurality opinion), and other cases). That is because state
legislatures “have always been allowed wide freedom to
determine the extent to which moral culpability should be a
prerequisite to conviction of a crime.” Powell, 392 US at 545
(Black, J., concurring).
Defendant points out that the New Mexico Supreme
Court construed that state’s felony-murder statute to
12
Another commentator described the origins of the common-law felony-
murder rule as a “myth,” concluding that “Americans did not receive any felony
murder rules from England, for the simple reason that there was no common-law
felony-murder rule at the time of the American Revolution.” Guyora Binder, The
Origins of American Felony Murder Rules, 57 Stan L Rev 59, 63 (2004). England
abolished its felony-murder rule by statute in 1957. Homicide Act 1957, 6 Eliz 2 c 11,
§ 1 (Gr Brit).
30 State v. Monaco

require proof of intent to kill, stating that such a construc-
tion “removes the statute from [a] threat of unconstitution-
ality.” State v. Ortega, 112 NM 554, 563, 817 P2d 1196, 1205
(1991), abrogated on other grounds as recognized by Kersey
v. Hatch, 148 NM 381, 237 P3d 683 (2010). The holding in
Ortega was that New Mexico’s felony-murder statute,
“requiring as it does both causation attributable to the
defendant * * * and an intent to kill (or to do an act greatly
dangerous to the lives of others or with knowledge that the
act creates a strong probability of death or great bodily
harm), is a valid exercise of the legislature’s authority to
prescribe serious punishment for killings committed with
the requisite criminal intent and that occur during the com-
mission or attempted commission of a first degree or other
inherently dangerous felony.”
112 NM at 566, 817 P2d at 1208 (emphasis added). That
interpretation of the New Mexico statute thus avoided a
“threat of unconstitutionality,” but the New Mexico Supreme
Court did not hold that the statute would violate the Due
Process Clause without it. Id. at 563, 817 P2d at 1205.
In summary, defendant cites no case holding that
a state felony-murder statute that is comparable to ORS
163.115(1)(b) violates the Due Process Clause. We agree
with the courts in every other state that have addressed the
issue: Felony-murder statutes that are indistinguishable
from ORS 163.115(1)(b) do not conclusively presume a mate-
rial element of the offense or shift the burden of proof to the
defendant in violation of a defendant’s right to due process.
Treating ORS 163.115(1)(b) as imposing strict liability in
part does not establish a due process violation in this case.
We acknowledge that the felony-murder rule has
been widely criticized by many scholars and jurists. See
Roth and Sundby, 70 Cornell L Rev at 446 (summarizing
the criticisms and noting that “[f]ew legal doctrines have
been as maligned and yet have shown as great a resiliency
as the felony-murder rule”); Binder, 57 Stan L Rev at 60
(stating that liability for felony murder “is one of the most
persistently and widely criticized features of American
criminal law”). The felony-murder rule has been criticized
for having a disparate racial impact, see Perry Moriearty,
Cite as 375 Or 1 (2026) 31

Kat Albrecht, & Caitlin Glass, Race, Racial Bias, and
Imputed Liability Murder, 51 Fordham Urb L J 675 (2024);
G. Ben Cohen, Justin D. Levinson, & Koichi Hioki, Racial
Bias, Accomplice Liability, and The Felony Murder Rule: A
National Empirical Study, 101 Denv L Rev 65 (2024), and
for its application to deaths caused directly by the police,
see Maria T. Kolar, Felony Murder Liability for Homicides
by Police: Too Unfair & Too Much to Bear, 113 J Crim L &
Criminology 241 (2023).
We need not address those criticisms in this case.
Today’s decision is limited to the rule’s application to defen-
dant’s felony murder convictions.13 In affirming those con-
victions, we need not and do not suggest that every applica-
tion of the rule will comply with due process.
III. CONCLUSION
We conclude that the trial court did not err in
(1) declining to suppress statements that defendant made
during the interrogation by detectives Michaels and Luiz;
and (2) denying defendant’s demurrer to the felony-murder
counts.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
DeHOOG, J., concurring.
In this case, defendant entered the apartment
he had previously shared with his former girlfriend, TM,
and, in an apparently alcohol-fueled fit of despair and rage,
doused TM’s couch with gasoline and threatened to set
it on fire if TM did not return. When TM did not return,
defendant—who had good reason to know that at least one
of TM’s two roommates and several of TM’s pets might be
in the apartment—lit the gasoline-drenched couch and left
13
As Roth and Sundby point out, requiring proof of culpability for causing
death “may not change the result in many cases” because, if a defendant “under-
takes a dangerous felony, he probably has exhibited the extreme recklessness or
malice aforethought necessary for a conviction of murder.” 70 Cornell L Rev at 491.
Defendant in this case intentionally doused a couch in gasoline and started a fire
in his ex-girlfriend’s apartment around 3:20 a.m., knowing that she had two room-
mates who would likely be asleep in the apartment at the time. Those facts would
support the conclusion that defendant recklessly caused the death of two people
sufficient to support convictions for criminal homicide as defined in ORS 163.005(1).
32 State v. Monaco

the apartment, closing the door behind him as an inferno
erupted, ultimately consuming the apartment and causing
the deaths of two people and four pets. Based upon the testi-
mony of TM and other witnesses, text messages that defen-
dant had sent before and after the fire broke out, video evi-
dence of defendant leaving TM’s apartment, and rambling
admissions that defendant made during a police interroga-
tion, the state prosecuted defendant for numerous offenses,
including three counts of arson, four counts of intentional
murder, and the “felony murder” charges at issue on appeal.
Following a bench trial, the court found defendant guilty
of most of the charged offenses or lesser-included versions
of them, including four counts of felony murder and four
counts of first-degree manslaughter, with two counts of each
offense relating to each of TM’s two roommates.1
Based upon that reprehensible conduct and the
evidence of it in the record, there can be little doubt as to
defendant’s guilt of the charges on which the trial court
found him guilty. Nor, in my view, is there any question
as to whether defendant’s custodial statements were vol-
untarily made, and I fully agree with the majority opin-
ion’s analysis and conclusion regarding that issue. Where
I part ways with that opinion, however, is in the majority’s
approach to defendant’s challenge to his felony-murder
convictions, and particularly its disposition of defendant’s
argument premised on this court’s opinion in State v. Blair,
348 Or 72, 228 P3d 564 (2010) (Blair II), which held that the
felony-murder statute, ORS 163.115(1)(b), does not require
the state to allege and prove that a person acted with a cul-
pable mental state with regard to that offense’s causation-
of-death element.
As I will explain, I do not believe that the majority’s
view—that, contrary to defendant’s contention, Blair II does
1
In rendering its verdicts, the trial court declined to explain the basis for
its findings as to each count, noting that, like a jury completing a verdict form, a
trial court sitting as factfinder in a trial is under no obligation to explain its deci-
sion. However, given the statutory definition of first-degree manslaughter and
the evidence presented at defendant’s trial, it appears that the court found either
that defendant had acted recklessly under circumstances manifesting extreme
indifference to the value of human life, or that he had intentionally caused the
deaths of TM’s roommates while under the influence of extreme emotional distur-
bance. ORS 163.118(1)(a), (b).
Cite as 375 Or 1 (2026) 33

not effectively hold that the felony-murder statute provides
for a conclusive presumption—can be reconciled with Blair II
itself. Further, that erroneous understanding is legally sig-
nificant because it permits the majority to rely on a body
of case law from other jurisdictions that, in my view, does
not address the issue that defendant raises under Blair II.
Ultimately, however, I conclude that the error has no practical
significance. That is, although I believe that the trial court
may well have erred in denying defendant’s demurrer to the
felony-murder charges (and that the majority may therefore
have erred in rejecting defendant’s underlying argument), I
would conclude that any error was harmless beyond a reason-
able doubt. That is, had the trial court allowed defendant’s
demurrer or otherwise required the state to prove a culpable
mental state with respect to causing the victims’ deaths, it is
beyond reasonable doubt that the state would have done so
and that the trial court would have found defendant guilty
of felony murder under those alternative circumstances.
Thus, although I do not agree with the majority’s rationale,
I respectfully concur in its ultimate disposition upholding
defendant’s felony-murder convictions.
I will begin with defendant’s reliance on Blair II
before turning to how, in my view, the majority opinion mis-
reads that decision and thus sidesteps the crux of defendant’s
argument. As the majority explains, defendant contends
that the trial court erred in denying his demurrer to the
felony-murder charges, because ORS 163.115(1)(b)—as con-
strued in Blair II—violates the Due Process Clause. 375 Or
at 16-17. He argues that, if he understands Blair II correctly,
then the felony-murder statute establishes an impermissible
conclusive presumption. See Sandstrom v. Montana, 442 US
510, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (because jurors could
reasonably view instruction that the law “presumes that a
person intends the ordinary consequences of his voluntary
acts” as directing them to find against the defendant on the
element of intent, that instruction impermissibly relieved
the state of its burden under the Due Process Clause to
prove every element of a criminal offense beyond a reason-
able doubt).2
2
Defendant alternatively argues that, if the felony-murder statute does not
result in a conclusive presumption, then it creates an impermissible strict-liability
34 State v. Monaco

The majority opinion acknowledges that, “[u]nder
Sandstrom, a statute that results in a burden-shifting or
conclusive presumption as to a material element of the
offense violates due process.” 375 Or at 17. The majority also
recognizes that, under ORS 163.115(1)(b), felony murder is
a form of criminal homicide, and that “criminal homicide”
is defined by ORS 163.005(1) as “intentionally, knowingly,
recklessly or with criminal negligence caus[ing] the death
of another human being.” Id. at 17-18. Finally, the major-
ity agrees with defendant that, notwithstanding ORS
163.005(1), the felony-murder statute, as construed in Blair II,
“does not require proof of a separate culpable mental state
as to causing death[.]” Id. at 18. The majority rejects, how-
ever, defendant’s understanding that, under Blair II, felony
murder includes—as a required element—a culpable men-
tal state with regard to causing death, albeit one that the
state does not have to separately allege and prove. Id.
In rejecting defendant’s understanding of Blair II,
the majority reads into that opinion a holding that, not only
is the state not required to prove a separate culpable mental
state as to the causation of death, see id. (so stating), but,
further, there is no culpable mental state requirement in
that regard, see id. (stating that “there is no separate cul-
pable mental state required for causing death on a felony-
murder charge”) With that premise read into Blair II, the
majority’s conclusion in this case readily follows: Because the
felony-murder statute does not require that a defendant act
with a culpable mental state with regard to causing death,
“the law does not conclusively presume any element that the
state is required to prove.” Id.3

crime by failing to require proof of a culpable mental state as to causation of
death. Because I agree with defendant’s understanding of Blair II and, thus, tend
to agree that the felony-murder statute creates an unconstitutional conclusive
presumption, I express no opinion whether the absence of a mental state as to the
causation of death would render felony murder a strict-liability crime or whether
such a crime would violate due process.
3
Relatedly, the majority is skeptical of my reasoning, discussed below, that
Blair II recognized a culpable mental state regarding causation of death “as an ele-
ment that the state is not required to prove.” 375 Or at 20 -21 n 3. In the majority’s
view, if the state is not required to prove such a mental state, then it cannot be under-
stood to be an element. Id. Respectfully, the majority misses the point. It is exactly
because the felony-murder statute, as interpreted in Blair II, does not require the
state to prove any of the culpable mental states that ORS 163.005(1) contemplates
Cite as 375 Or 1 (2026) 35

Respectfully, however, Blair II cannot so easily be
read to dispense with any culpable mental state require-
ment with respect to causing death. Three aspects of that
decision weigh heavily against that reading. The first is
found in the text of the opinion itself. As the majority notes,
id. at 20, Blair II loosely wraps up its analysis with the fol-
lowing series of pronouncements:
“(1) under ORS 163.005(1), ‘criminal homicide’ requires
that a defendant act with a culpable mens rea with respect
to causing the victim’s death; (2) under ORS 163.005(2),
‘criminal homicide’ includes ‘murder,’ and (3) under ORS
163.115(1)(b), requisite culpable mens rea is established, as
a matter of law, by the defendant’s commission or attempted
commission of the predicate felony.”
348 Or at 80.4
Although the intended connection between those
three enumerated points is not clear, it is certainly diffi-
cult to reconcile the first two points—stating that “crimi-
nal homicide” requires a culpable mental state with regard
to causing a victim’s death and that “criminal homicide”
includes “murder”—with the conclusion that the majority
attributes to the third point—that, for purposes of felony
murder, “there is no separate culpable mental state” as to
causation of death, 375 Or at 18. That is, it would make lit-
tle sense for the court in Blair II to emphasize that ORS
163.005(1) establishes a mental state requirement for crim-
inal homicide and that criminal homicide includes murder
if the court’s ultimate point were that, for “felony murder,”
no such culpable mental state is required. If that were, in
fact, the court’s intended takeaway, it is far more likely that
it would have said something closer to, “unlike ‘ordinary’
murder, a form of ‘criminal homicide’ to which the mental
state requirements set forth in ORS 163.005(1) apply, no
that defendant argues that the statute creates a conclusive presumption. Thus, to
reason that such a mental state cannot be an element simply begs the question.
4
I recognize that the accepted translation of the Latin term “mens rea” is
“guilty mind.” See, e.g., Black’s Law Dictionary 1178 (12th ed 2004) (“Law Latin
‘guilty mind’ The state of mind that the prosecution, to secure a conviction,
must prove that a defendant had when committing a crime[.]”). Thus, referring,
as we did in Blair II, to a “culpable mens rea” would appear to be redundant.
Except in quoted references to other sources, this concurrence equates mens rea
with “culpable mental state.”
36 State v. Monaco

such mental state is required for felony murder.” But, sig-
nificantly, the court did not say that. Instead, after empha-
sizing the first two points, which together establish that
“murder” requires that a defendant act with a culpable
mental state with respect to causing death, the court said
that, “under ORS 163.115(1)(b), [i.e., felony murder, the] req-
uisite culpable mens rea is established, as a matter of law,
by the defendant’s commission or attempted commission of
the predicate felony.” In my view, the most sensible way to
read that statement is to understand the court’s reference
to “[the] requisite culpable mens rea” as referring to the
culpable mental state that ORS 163.005(1) and (2) collec-
tively require for murder, including “felony murder” under
ORS 163.115(1)(b). Yet here, the majority seems to reach the
opposite conclusion from that text, wholly disconnecting the
third point in the series from the two that precede it.5
The second aspect of Blair II that weighs against
the majority’s understanding is that, in that opinion, this
court expressly agreed with the Court of Appeals decision
it was reviewing, State v. Blair, 230 Or App 36, 214 P3d 47
(2009) (Blair I). See Blair II, 348 Or at 80 (expressing agree-
ment). And in Blair I, the Court of Appeals did several nota-
ble things. First, after recounting the historical application
of the felony-murder rule in Oregon, that court concluded
that, at least prior to the enactment of ORS 163.115(1) in
1971 as part of the new Oregon Criminal Code, the legisla-
ture and this court had long recognized the “implied mal-
ice” rule, under which the state could obtain a conviction
for felony murder “without the necessity of proving the rela-
tionship between the homicide and the defendant’s state of
mind.” Blair I, 230 Or App at 46 (“Rather, the defendant’s

5
To be clear, the majority does seem to recognize in a footnote that, by juxta-
posing the definitional requirements of ORS 163.005 with the court’s citation to
the substantive “felony murder” statute, ORS 163.115(1)(b), Blair II can be read
to recognize a requirement of a culpable mental state as to causing death even for
felony murder, but just one that is established as a matter of law by proof of the
underlying felony (and, presumably, its own mental state requirement). 375 Or at
20 n 1. But the majority goes on to observe that, in Blair II, the court did not have
reason to explore whether the mechanism that it described for establishing “any
[such] culpable mental state requirement” resulted in a conclusive presumption
implicating due-process concerns. Id. That’s true, but it does not explain why
closer examination of that possibility is not warranted here, where the issue is
squarely presented.
Cite as 375 Or 1 (2026) 37

commission of or attempt to commit the predicate felony
established as a matter of law the requisite mens rea with
respect to the causation of the victim’s death.”). See also
Blair II, 348 Or at 77-80 (recounting that history).
Next, the Court of Appeals recognized that, in
1971, the legislature had adopted “ORS 163.005, the general
‘criminal homicide’ statute, which had no direct antecedent
in Oregon homicide laws[.]” Id. at 48. And although that
court found no evidence in the 1971 legislative history to
indicate an intent to change the “implied malice” rule, id.
at 46 (“Rather, the legislative history reveals the opposite.”),
the court recognized the need to reconcile its understand-
ing of ORS 163.115(1)(b) with ORS 163.005(1)’s provision of
a minimum culpable mental state for criminal homicide, id.
at 47.
And last, the Court of Appeals did reconcile those
competing ideas. First, it acknowledged the requirement
that the defendant act with a culpable mental state with
respect to causing the victim’s death, and then it stated—in
terms that this court subsequently echoed in Blair II—that,
under the felony-murder statute, the requisite mental state
is established as a matter of law:
“[T]he two provisions can, and must, be harmonized in such
a way that (1) under ORS 163.005(1), all types of ‘criminal
homicide’ require that a defendant act with a culpable
mens rea with respect to causing the victim’s death; and
(2) for that particular subspecies of criminal homicide that
is ‘felony murder,’ the requisite culpable mens rea pertain-
ing to the death is established, as a matter of law, by the
defendant’s commission or attempted commission of the
predicate felony.”
230 Or App at 55-56 (emphases added; footnotes omitted).
Thus, rather than stating that, under the felony-murder
statute, there is no requirement that a defendant act with
a culpable mental state with regard to causing a death, the
Court of Appeals expressly recognized that, by virtue of
ORS 163.005(1), there is such a requirement, just one that
is established as a matter of law rather than alleged and
proved as part of the state’s case.
38 State v. Monaco

In agreeing with the Court of Appeals’ decision in
Blair I—using, at times, nearly indistinguishable phrasing
and narrative form—this court’s decision in Blair II cannot
be viewed as holding that the felony-murder statute does not
require that a defendant act with a culpable mental state
with respect to causing death. Rather, just like the Court
of Appeals opinion it was affirming, Blair II is best under-
stood as recognizing that such a mental state is an element
of felony murder, albeit one as to which the state bears no
separate burden of proof.
Finally, the third aspect of Blair II that weighs
against reading it as the majority does is the logical predi-
cate essential to its conclusion. Specifically, before the court
in Blair II could hold that, “under ORS 163.115(1)(b), [the]
requisite culpable mens rea is established, as a matter of
law, by the defendant’s commission or attempted commission
of the predicate felony[,]” the court necessarily understood
there to be a “requisite * * * mens rea,” that is, a required cul-
pable mental state with regard to causinGg death. Blair II,
348 Or at 80; see also 375 Or at 20 n 1 (stating that Blair II’s
reading of ORS 163.005(1) “in conjunction with ORS 163.115
(1)(b) meant that any required culpable mental state for caus-
ing death was established as a matter of law by proof of the
culpable mental state for the predicate felony”) (375 Or at 20
n 1). If the felony-murder statute had no such requirement,
then there would be nothing to be established as a matter of
law.
Thus, in my view, the majority’s approach to defen-
dant’s “conclusive presumption” argument flows from a mis-
guided understanding of this court’s opinion in Blair II. And
for several reasons, that matters. The first, of course, is that,
under the principle of stare decisis, this court must adhere
to its precedents until they are overturned, and this court
cannot fulfill that obligation by proceeding from a misun-
derstanding of what its earlier cases have held.
Second, as noted above, the majority’s reading of
Blair II allows it to summarily dismiss defendant’s conten-
tion that the felony-murder statute results in an impermissi-
ble conclusive presumption. See 375 Or at 18 (“Because there
is no separate culpable mental state required for causing
Cite as 375 Or 1 (2026) 39

death on a felony-murder charge, the law does not conclu-
sively presume any element that the state is required to
prove.”). In concluding that there is no culpable mental state
requirement in that regard, the majority opinion sidesteps
the more difficult question, namely, if the felony-murder
statute does have a mental state requirement with respect
to causation of death, does a rule establishing that require-
ment “as a matter of law” result in a conclusive presumption
of the sort held to violate due process in Sandstrom? It is
not readily apparent to me why a rule that establishes an
element of an offense “as a matter of law” upon proof of a dif-
ferent element of a different offense would not be considered
a conclusive presumption, and, as noted above, my initial
inclination is to think that it would. But my point here is not
that the answer is obvious, and I acknowledge that reason-
able minds may differ as to that answer. My concern here is
that defendant’s arguments have raised that question, but
the majority’s interpretation of Blair II evades it here and
further insulates it from future consideration.

Third, and finally, the majority’s reading of Blair II
allows it to rely on case law from other jurisdictions, where
neither the statutes at issue nor the applicable decisional
law recognized, as an element of felony murder, a culpable
mental state with respect to causing the death of another.
For example, the majority opinion discusses the Kansas
Supreme Court’s decision in State v. Patterson, 311 Kan
59, 455 P3d 792 (2020), and suggests that the reasoning of
that case supports the majority’s conclusion that Oregon’s
statute does not create a conclusive presumption. 375 Or
at 21-22. But, as the majority acknowledges, “[t]he Kansas
statute does not include a definitional provision for ‘mur-
der’ or ‘homicide’ that imports a general term like ‘criminal
homicide’ into its definition of murder comparable to ORS
163.005(1).” Id. at 22 n 5.

Similarly, the majority opinion cites State v.
Burkhart, 325 Mont 27, 42, 103 P3d 1037, 1044, 1047 (2004),
a Montana Supreme Court decision that construed that
state’s felony-murder statute to “substitute proof” of the
mental state required to establish the underlying felony for
the proof that otherwise would be necessary to establish
40 State v. Monaco

“deliberate homicide” under a separate statutory provision.
375 Or at 22-23. But as in Kansas, Montana law did not
make a culpable mental state as to causing death an ele-
ment of felony murder, so that court’s decision that its stat-
ute did not create an impermissible conclusive presumption
is likewise not on point.6
The same is true regarding the other opinion
discussed at length by the majority, State v. Wanrow, 91
Wash 2d 301, 588 P2d 1320 (1978), superseded by statute,
1975 Wash Sess Laws 863, as recognized in In re Personal
Restraint of Andress, 147 Wash 2d 602, 56 P3d 981 (2002),
and, as far as I have determined, each of the cases that
the majority string-cites in favor of its conclusion that ORS
163.115(1)(b) is constitutional. See 375 Or at 23-24 ( discuss-
ing Wanrow); id. at 24 (listing other cases). As the majority
opinion acknowledges, none of the cases it relies on in con-
cluding that Oregon’s felony-murder statute is constitutional
involved statutes that had, as an element of felony murder, a
culpable mental state with respect to causing death. Id. (so
noting). Thus, because the premise underlying the major-
ity’s reliance on those cases—that Oregon’s felony-murder
statute has no such requirement—is, in my opinion, flawed,
the majority’s reliance on those cases to support its conclu-
sion that Oregon’s statute complies with the requirements of
due process is equally flawed.
As a final note regarding the majority opinion, both
it and many of the cases it cites acknowledge the potential
for the felony-murder rule to lead to disparate and harsh
results. See 375 Or at 30-31 (acknowledging wide criticism
of the rule by scholars and jurists; citing numerous schol-
arly articles and studies). Although it may not go that far
in addressing those concerns, recognizing ORS 163.005(1)’s
definition of “criminal homicide” as requiring, for purposes
of felony murder, that the state prove that a defendant acted
6
In any event, Burkhart has other limitations, as it does not appear to reflect
a careful analysis of the Sandstrom issue, and instead states somewhat summar-
ily that the Montana statute “does not operate to shift a burden from the state
to the defendant[.]” 325 Mont at 42, 103 P3d at 1047. That may be true, but that
does not necessarily mean that the statute did not unconstitutionally relieve the
state of a burden of proving an element of an offense. See Sandstrom, 442 US at
524 (holding that a statute that shifts the state’s burden of proof to the defendant
or that creates a conclusive presumption violates due process).
Cite as 375 Or 1 (2026) 41

with a culpable mental state with regard to a victim’s death
would be a small step in that direction. This court’s decision
in Blair II precludes direct application of ORS 163.005(1)
in the form of a jury instruction or otherwise, and, as the
majority has observed, the correctness of Blair II is not before
us. However, the meaning of that case is before us, and the
majority’s reading of it curtails defendant’s plausible chal-
lenge to Oregon’s felony-murder law. Given the significance
of that reading, as well as the reasons stated above for why,
in my view, that reading is erroneous, I cannot agree with
the majority’s analysis here.
That is not to say that I dissent. For one thing,
although I disagree with the majority’s reliance on Blair II
to foreclose defendant’s “conclusive presumption” argument,
the question remains whether Oregon’s felony-murder stat-
ute, as defendant reads Blair II to construe it, would indeed
violate the Due Process Clause. Although, as I have stated, it
is challenging to distinguish an element that is “established
as a matter of law” from one that is “conclusively presumed,”
especially when both concepts are triggered by proof of the
same underlying fact, my point is not that I am certain how
a proper due-process inquiry would turn out. My point is
simply that we should begin that inquiry from the correct
premise, which, in my view, the majority opinion does not do.
The other reason that I do not dissent is that, as dis-
cussed above, I view any error that the trial court may have
made in denying defendant’s demurrer to the felony-murder
counts to be harmless beyond a reasonable doubt. See State
v. Cook, 340 Or 530, 544, 135 P3d 260 (2006) (“A federal con-
stitutional error is harmless, such that the conviction will
be upheld, if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless
beyond a reasonable doubt.” (Internal quotation marks omit-
ted.)); see also ORS 131.035 (error is grounds for reversal of
criminal conviction only if it “has prejudiced the defendant
in respect to a substantial right”); State v. Davis, 336 Or 19,
28, 77 P3d 1111 (2003) (under Article VII (Amended), section
3, of the Oregon Constitution, court “must affirm a judg-
ment, despite any error committed at trial, if, after consid-
ering all the matters submitted, the court is of the opinion
42 State v. Monaco

that the judgment was such as should have been rendered in
the case” (internal quotation marks omitted)).
Here, the basis for defendant’s demurrer was that
the felony-murder counts failed to state offenses, because
they did not include allegations that he had acted with one
of the culpable mental states listed in ORS 163.005(1) with
respect to the deaths that he had caused. However, as noted
above, defendant also was tried on multiple counts of inten-
tional murder, and the trial court found him guilty of multi-
ple counts of first-degree manslaughter, including separate
counts as to each of defendant’s two human victims. First-
degree manslaughter has a mental state element of at least
recklessness under circumstances manifesting extreme
indifference to the value of human life. ORS 163.118(1). It is
inconceivable that, had the trial court granted the demur-
rer, thereby requiring the state to refile and include in its
allegations of felony murder that defendant had acted with
at least criminal negligence7 with respect to the victims’
deaths, the trial court would have failed to find defendant
guilty of felony murder as to each victim. Cf. 375 Or at 31
n 13 (noting that, if a mental state were required with
respect to causing death, the facts here would support a con-
viction for criminal homicide under a recklessness theory).
Thus, in my view, any error in this case would satisfy the
harmless beyond a reasonable doubt standard so as not to
warrant reversal. Accordingly, I respectfully concur.

7
Under ORS 163.005(1), the minimum culpable mental state for “criminal
homicide” is criminal negligence, and defendant has not argued that the state
should have been required to allege and prove any more culpable state of mind.