State v. Berry

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: DEHOOG, P. J.
• Citation: State v. Berry, 293 Or App 717, 429 P.3d 1011 (Or. App. 2018)
• Decision Date: 06 September 2018
• Docket Number: A160133
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Dallas Robert BERRY, aka Dallas Berry, Sr., Defendant-Appellant.

293 Or.App. 717

429 P.3d 1011

STATE of Oregon, Plaintiff-Respondent,

v.Dallas Robert BERRY, aka Dallas Berry, Sr., Defendant-Appellant.

A160133

Court of Appeals of Oregon.

Submitted February 21, 2017.

September 6, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

DEHOOG, P. J.

Defendant 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:

" ‘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 of *** 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 that, 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 , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

As noted, the text of ORS 163.205(2)(b) provides:

" ‘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."

We begin with the type of dependence at issue, which is "to provide for the person's physical needs." The statute does not define "provide" or "needs." When the legislature has not defined statutory terms, "we look to the dictionary to determine their ordinary meaning." State v. Baker-Krofft , 348 Or. 655, 661, 239 P.3d 226 (2010). As used here, "provide" may be defined as "to supply what is needed for sustenance or support." Webster's Third New Int'l Dictionary 1827 (unabridged ed. 2002). Next, "needs," as in "physical needs," refers to a person's material, bodily requirements: "a want of something requisite, desirable, or useful[;] *** a physiological *** requirement for the maintenance of the homeostasis of an organism." Webster's at 1512 (defining "need"). Turning to "dependent upon another," the relevant definitions of dependent are "unable to exist, sustain oneself, or act suitably *** without the assistance or direction of another," and "lacking the necessary means of support and receiving aid from others." Webster's at 604.³ Finally, the person's dependence must be "because of either age or a physical or mental disability," which would exclude, for example, a healthy adult who chooses to remain dependent on others.

The bare text of the statute gives rise to several ambiguities. First, to "provide for the person's physical needs" could refer to supplying the goods and services necessary for a person's physical well-being; alternatively, it could refer to physically assisting a person with meeting those needs, such as by feeding or clothing the person. Second, "dependent" could refer to a person who actually relies upon another to provide for his or her physical needs or, instead, to a person who is incapable of providing for his or her own needs. And third, the phrase "because of * * * age," as applied to a minor, could incorporate any combination of the physical, legal, or practical obstacles that would prevent a young person from providing for the person's own physical needs.

We turn next to statutory context, which includes the changes over time to the statute at issue. See Kohring v. Ballard , 355 Or. 297, 307-08, 325 P.3d 717 (2014). In examining those changes, we also recount the related legislative history, bearing in mind that statutory text and context "must be given primary weight in the analysis." Gaines , 346 Or. at 171, 206 P.3d 1042.

As originally enacted, ORS 163.205 prohibited only what is now found in paragraph (1)(a): "withhold[ing] necessary and adequate food, physical care or medical attention." Or. Laws 1973, ch. 627, § 3. The statute was meant to address "nursing home abuse and to protect the residents of those facilities." Baker-Krofft , 348 Or. at 664, 239 P.3d 226 (citing Minutes, Special Committee on Aging, Apr. 9, 1973, at 1). Legislators were aware, however, that the wording of the bill applied to more than just the elderly; Senator Carson explained on the Senate floor that the committee had heard testimony about "some of the practices in some of the homes for the aged, or, in fact, where any citizen of Oregon may be housed." Id. at 665, 239 P.3d 226 (quoting Tape Recording, Senate Floor, SB 780, June 29, 1973, Tape 32, Side 1 (statement of Senator Wallace P. Carson) ).

In 1981, the legislature added the prohibition at issue in the present case: causing "physical injury or injuries to the dependent person." Or. Laws 1981, ch. 486, § 1. According to both the bill's sponsor, Representative Springer, and the member of the Oregon District Attorneys Association (ODAA) who helped draft the bill, John Bradley, the amendment's purpose was to "enhance protection by the criminal justice system of peopl...