State v. Nix

283 P.3d 442, 251 Or. App. 449, 2012 WL 3105223, 2012 Ore. App. LEXIS 947
CourtCourt of Appeals of Oregon
DecidedAugust 1, 2012
DocketCRH090155; A145386
StatusPublished
Cited by6 cases

This text of 283 P.3d 442 (State v. Nix) 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. Nix, 283 P.3d 442, 251 Or. App. 449, 2012 WL 3105223, 2012 Ore. App. LEXIS 947 (Or. Ct. App. 2012).

Opinion

BREWER, P. J.

The state appeals from a judgment merging guilty verdicts against defendant that the jury rendered on 20 counts of second-degree animal neglect, ORS 167.325, into a single conviction under ORS 161.067(2)1 The trial court concluded that defendant’s repeated violations of ORS 167.325 did not involve “two or more victims” because animals are not victims under ORS 161.067(2). Accordingly, this case presents the question of whether an animal described in ORS 167.325 is a victim for purposes of ORS 167.067(2). We conclude that it is. Accordingly, there are as many victims as there are violations of that statute in this case, and the trial court erred in merging the guilty verdicts into a single conviction.

The relevant facts are undisputed. Acting on a tip, police officers entered defendant’s farm and found dozens of emaciated animals, mostly horses and goats, and several animal carcasses in various states of decay. Defendant owned those animals. Defendant was indicted on 23 counts of first-degree animal neglect, ORS 167.330, and 70 counts of second-degree animal neglect, ORS 167.325. Each separate count identified a different animal and charged conduct by defendant toward that animal. All of the separate counts were alleged to have occurred within the same span of time. A jury convicted defendant of 20 counts of second-degree animal abuse.

At defendant’s sentencing hearing, the state asked the trial court to impose 20 separate convictions because the jury had found defendant guilty of neglecting 20 different animals. Accordingly, the state argued, the convictions “do not merge based on [ORS 161.067] (1), (2) and (3).” The trial court disagreed and merged the guilty verdicts into a single conviction, explaining that

“[ORS 161.067(2)] talks about — although violating only one statutory provision, it involves two or more victims. [452]*452In this case, I agree with the defendant’s position that the animals are not victims, as defined by the statute; by the ORS 161.067(2).
“* * * I don’t think that [ORS 161.067(3)] applies because the animals are not victims under the definition of the statute requiring that to be persons.”

Defendant was sentenced to 90 days in jail and three years of bench probation; the trial court suspended imposition of the jail sentence, and the state appealed. ORS 138.222(4)(a).2

The state renews its argument on appeal, contending that, for purposes of the second-degree animal neglect statute, ORS 167.325, an animal is a “victim” under ORS 161.067(2).3 The state relies on State v. Glaspey, 337 Or 558, 563, 100 P3d 730 (2004), where the Supreme Court explained that the term “victim” in ORS 161.067(2) draws its meaning from the underlying substantive criminal statute that the defendant violated. According to the state, a proper focus on the statute, in context, makes it clear that animals are victims of the crime of animal neglect. Defendant replies that the term “victim” in ORS 161.067(2) is limited to “persons,” relying on definitions of “victim” from a dictionary and from ORS 131.007(2) and Article I, section 44(3), of the Oregon Constitution. Defendant reasons that, because “animals are not defined as persons under Oregon law[,] * * * animals are not victims.” Defendant argues that, in Glaspey, “the Supreme Court recognized that victims are people” and “that just because some harm is suffered in a criminal offense doesn’t mean [that] the party suffering the harm is automatically a ‘victim’ for purposes of Oregon law.”

The parties’ arguments present a question of the proper interpretation of ORS 167.325. As explained below, because the meaning of the term “victim” in ORS 161.067(2) [453]*453is governed by the legislature’s intent with regard to the underlying substantive criminal statute, our goal is to determine the intended meaning of ORS 167.325 by examining its text in context along with relevant legislative history and, if necessary, other aids to construction. State v. Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009). Because we are obligated to ascertain the proper construction of a legislative enactment, we are not confined in our analysis to the meanings that the parties proffer. Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).

ORS 167.325(1) provides:

“A person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal in such person’s custody or control.”

“Animal” is defined by ORS 167.310(1) as “any nonhuman mammal, bird, reptile, amphibian or fish.” “Minimum care” is defined by ORS 167.310

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Related

State v. Nix
334 P.3d 437 (Oregon Supreme Court, 2014)
State v. Newcomb
324 P.3d 557 (Court of Appeals of Oregon, 2014)
State v. Fessenden
310 P.3d 1163 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
283 P.3d 442, 251 Or. App. 449, 2012 WL 3105223, 2012 Ore. App. LEXIS 947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nix-orctapp-2012.