State v. Berry

429 P.3d 1011, 293 Or. App. 717
CourtCourt of Appeals of Oregon
DecidedSeptember 6, 2018
DocketA160133
StatusPublished
Cited by4 cases

This text of 429 P.3d 1011 (State v. Berry) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Berry, 429 P.3d 1011, 293 Or. App. 717 (Or. Ct. App. 2018).

Opinion

DEHOOG, P. J.

*718Defendant appeals a judgment convicting him of first-degree criminal mistreatment, ORS 163.205, and fourth-degree assault, ORS 163.160. We write only to address defendant's first assignment of error, in which he argues that the trial court erroneously instructed the jury regarding an element of first-degree criminal mistreatment. Specifically, for purposes of the state's need to prove that the victim was a "dependent person," ORS 163.205(1)(b), the court instructed the jury that "[a] minor child under the age of 18 is a dependent person." We agree that the court's instruction misstated the law and that the error was not harmless. We therefore reverse and remand defendant's conviction for first-degree criminal mistreatment, remand for resentencing, and otherwise affirm.1

The facts necessary to resolve this appeal are largely procedural and undisputed. Defendant's charges involved his 16-year-old daughter, K. At the time of the incident, K lived with defendant at defendant's mother's house and received state assistance in the form of food stamps and free school lunches; her coaches and grandfather also gave her food. Defendant was charged with committing three offenses against K, including first-degree criminal mistreatment.

As charged in this case, a person commits criminal mistreatment in the first degree if

"[t]he person, in violation of a legal duty to provide care for a dependent person or elderly person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person, intentionally or knowingly:
"(A) Causes physical injury or injuries to the dependent person or elderly person[.]"

ORS 163.205(1)(b).2 The statute defines "dependent person" as follows:

*719" 'Dependent person' means a person who because of either age or a physical or mental disability is dependent upon another to provide for the person's physical needs."

ORS 163.205(2)(b).

Although the uniform jury instruction, UCrJI 1700, tracks that statutory definition, the state requested a special jury instruction adding the language that "a child under the age of 18 is a dependent person." The state argued that any unemancipated minor necessarily qualified as a "dependent person" "because *1013of *** age." After first "grudgingly agree[ing]" with the state's proposed definition, defendant later took exception to the instruction, arguing that an "accurate statement of the law" would be "that a child under 18 may be a dependent person." (Emphasis added.) Defendant also argued that the state's instruction would "effectively satisf[y] an element of the crime by a statement of the court," thus "relieving the state of [the] burden of proof for that element."

The trial court gave the state's proposed instruction. The court acknowledged that it could "imagine situations where a child under the age of 18 is not dependent on their parent legally," but explained that there were "no facts supporting *** one of those situations here in court, so I think it's appropriate to give that instruction to the jury as a matter of law." The instruction that the court gave drew from the statutory definition of "dependent person" in ORS 163.205(2)(b), together with the state's special instruction, as follows:

"A dependent person is a person who, because of age, is dependent on another to provide for the person's physical needs. A minor child under the age of 18 is a dependent person ."

(Emphasis added.) The jury found defendant guilty of first-degree criminal mistreatment and fourth-degree assault and acquitted him on a charge of strangulation, ORS 163.187.

On appeal, defendant argues that the instruction misstated the law and allowed the jury to convict him of criminal mistreatment without itself finding that K was a "dependent person" as defined in ORS 163.205. He reasons *720that, if the legislature had intended "dependent person" to include all minors, it would have used "minor" or "person under 18 years of age," rather than "a person who because of *** age *** is dependent upon another to provide for the person's physical needs." ORS 163.205(2)(b). Defendant argues that many minors do not meet that definition, including, he posits, a 16- or 17-year old who is able, both legally and practically, to drive, earn money, live independently, "and generally be entirely responsible for his or her own physical needs." The state rejects that distinction and contends that most minors are "dependent" as a matter of law, because minors "suffer[ ] from certain legal incapacities that render [them] unable to provide for [their] needs." The state acknowledges that it might be necessary to "refine" its proposed instruction for married persons or legally emancipated minors; the state argues, however, that there was no evidence here that K was either of those things.

"In determining whether it was error to give a particular jury instruction, [we] review[ ] the instructions as a whole to determine whether they accurately state the law." State v. Serrano , 355 Or. 172, 187, 324 P.3d 1274 (2014), cert. den. , --- U.S. ----, 135 S. Ct. 2861, 192 L.Ed.2d 899 (2015). The meaning of "dependent person" in ORS 163.205 -specifically, whether all minors are presumptively "dependent"-is a question of law that requires us to discern the legislature's intended meaning by examining the statute's text, context, and pertinent legislative history. State v. Gaines

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Related

State v. Palmer
561 P.3d 116 (Court of Appeals of Oregon, 2024)
Mitchell v. State of Oregon
454 P.3d 805 (Court of Appeals of Oregon, 2019)
State v. Roberts
436 P.3d 57 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
429 P.3d 1011, 293 Or. App. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berry-orctapp-2018.