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Filed: November 10, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON Respondent on Review, v. DAVID LEE SWANSON, Petitioner on Review. (CC 071371M; CA A140575; SC S059135) On review from the Court of Appeals.* Argued and submitted September 20, 2011. Jedediah Peterson, Deputy Public Defender, Officer of Public Defense Services, Salem, argued the cause for petitioner on review. With him on the brief was Peter Gartlan, Chief Defender. Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before, De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.** LINDER, J. The decision of the Court of Appeals and the judgment of the circuit court are affirmed. *Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 237 Or App 508, 240 P3d 63 (2010). **Landau, J., did not participate in the consideration or decision of this case.

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LINDER, J. In this case, defendant was charged with reckless driving, which is a misdemeanor.1 In his ensuing jury trial, defendant asked the trial court to instruct the jury on the elements of careless driving, which is a traffic violation, arguing that it is a lesser-included offense of reckless driving.2 The trial court declined to give defendant's requested instructions. On appeal, the Court of Appeals affirmed. State v. Swanson, 237 Or App 508, 240 P3d 63 (2010). The Court of Appeals reasoned that violations and crimes are distinctive categories of offenses and, under ORS 136.465, juries are authorized to consider only lesser-included crimes, not lesser-included violations, of a charged crime. Id. at 511. That understanding of the legislature's intent was reinforced, the court concluded, by substantial procedural differences between violation proceedings and criminal proceedings, including the requirement that violations be "tried to the court sitting without jury." ORS 153.076(1); see Swanson, 237 Or App at 513 (so stating). We allowed defendant's petition for review. As we will explain, we agree that ORS 136.465 does not extend to lesser-included violations and is, instead, limited to lesser-included criminal offenses. We therefore affirm.

See ORS 811.140 (setting out elements of reckless driving and providing for punishment as a Class A misdemeanor). See ORS 811.135 (setting out elements of careless driving; designating offense as either a Class A or Class B traffic violation, depending on the circumstances of the offense; authorizing a sentence that includes a fine, but not authorizing a term of imprisonment).
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ORS 136.465 provides: "In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in that with which the defendant is charged in the accusatory instrument or of an attempt to commit such crime." (Emphasis added.) As the italicized text emphasizes, the statute expressly refers to any "crime" the commission of which is necessarily included in the charged crime. The term "crime" is not defined in the statute itself, or in any statute that specifically crossreferences ORS 136.465. It is defined, however, elsewhere in the criminal code. In particular, ORS 161.515 provides: "A crime is an offense for which a sentence of imprisonment is authorized." ORS 161.515. The term "offense," in turn, is defined as "either a crime, as described in ORS 161.515, or a violation, as described in ORS 153.008." ORS 161.505. Under ORS 153.008,3 an offense is a violation if, inter alia, it

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ORS 153.008 provides:

"(1) Except as provided in subsection (2) of this section, an offense is a violation if any of the following apply: "(a) The offense is designated as a violation in the statute defining the offense. "(b) The statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The statute may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment. "(c) The offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of

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is designated as such or is punishable by a fine but not by a term of imprisonment. Thus, under those statutes, "violations" and "crimes" are distinct types of "offenses," distinguished principally by the fact that crimes are punishable by imprisonment and violations are not. Because they are distinct types of offenses, the fact that a statute uses the term "crime" (as does ORS 136.465) and not the term "violation" would seem at first blush to compel a conclusion that the legislature intended the statute to reach crimes but not violations. In the context of ORS 136.465, that would mean that a crime that is lesser-included offenses of a crime with which a defendant is charged may be submitted to a jury, but a lesser-included violation may not, as the Court of Appeals concluded. Swanson, 237 Or App at 511. Defendant concedes that, if those definitions of "violation" and "crime" apply, then ORS 136.645 did not permit the jury to consider a charge of careless driving

imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment. "(d) The prosecuting attorney has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.566. "(e) The court has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.568. "(2) Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime." The parties agree, and ORS 811.435 establishes, that careless driving is a "violation." The question that remains is whether a "violation" is within the meaning of the term "crime," as it is used in ORS 136.465.

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in this case. He takes issue, however, with the conclusion that those definitions apply. Defendant's argument resolves into two propositions: (1) when ORS 136.465 was originally enacted, the term "crime" included offenses that were punishable only by fines and would therefore be denominated today as a "violation;" and (2) that the original scope of ORS 136.465 has remained the same, and has been unaffected by more recently enacted definitions of the term "crime" that apply to other statutes in the criminal code. In interpreting a statute, the court's goal is to determine the legislature's intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1041 (2009). In doing that, we look to the intent of the legislature that enacted the statute, and we also consider any later amendments or statutory changes that were intended by the legislature to modify or otherwise alter the meaning of the original terms of the statute. See, e.g., Holcomb v. Sunderland, 321 Or 99, 105, 894 P2d 457 (1995) (proper inquiry in interpreting statute focuses on what the legislature intended at the time of enactment); see also Mastriano v. Board of Parole, 342 Or 684, 696, 159 P3d 1151 (2007) (examining post-enactment legislative changes to statute and statutory context to determine whether they reflected a legislative intent to alter the meaning of statute as originally enacted). As we will explain, we are not persuaded that ORS 136.465, as originally enacted, would have applied to what qualifies as a violation under our current criminal code. In all events, as we will further explain, we are satisfied that later comprehensive changes to the criminal code were intended to, and did, alter the meaning of the term "crime," as it is used in statutes throughout the code, including ORS 136.465, to exclude violations. We begin with defendant's first proposition -- that, as originally enacted, 4

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ORS 136.465 applied to offenses that, because they were punishable only by a fine, would today be designated as "violations." As defendant correctly observes, our state's original "lesser-included offense" statute was part of the 1864 Deady Code and was essentially identical in its wording to ORS 136.465. In particular, the Deady Code statute permitted a jury to consider any lesser-included "crime" of the offense with which the defendant was charged.4 At that time, "crimes" were either "felonies" or "misdemeanors," and the two categories of crimes were distinguished solely by how they were punished. A "felony" was a crime that was punishable by death or imprisonment, and "[e]very other crime [was] a misdemeanor." General Laws of Oregon, Crim Code, ch I,

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