State v. Dufort

• Decision Date: 26 February 1992
• Citation: 111 Or.App. 515,827 P.2d 192
• Parties: STATE of Oregon, Appellant, v. William H. DUFORT, Respondent. CM90-0329; CA A65914.
• Court: Oregon Court of Appeals

Page 192

827 P.2d 192

111 Or.App. 515

STATE of Oregon, Appellant, v. William H. DUFORT, Respondent.

CM90-0329; CA A65914.

Court of Appeals of Oregon.

Submitted on Record and Brief March 11, 1991.

Decided Feb. 26, 1992.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Harrison Latto, Asst. Atty. Gen., Salem, filed the brief for appellant.

Mark D. Donahue, Corvallis, waived appearance for respondent.

Before RICHARDSON, P.J., and DEITS and DE MUNIZ, JJ.

DEITS, Judge.

The state appeals a trial court order allowing defendant's demurrer to an information charging him with sexual abuse in the second degree. ¹ ORS 163.415. The demurrer was based on the Statute of Limitations. We reverse.

On April 20, 1990, the district attorney filed an information, accusing defendant of having committed "on or about November, 1987," the crime of sexual abuse in the second degree by subjecting a person under 18 years of age to sexual contact. ORS 163.415. At the time of the alleged crime, ORS 131.125(2)(b) required that a prosecution for a misdemeanor, which this is, be commenced within two years after its commission. In 1989, that statute was renumbered ORS 131.125(3)(a) and amended to extend the limitation to four years, if the victim of the crime was under 18 years of age. Or.Laws 1989, ch. 831, § 1. The amendment became effective on October 3, 1989, approximately one month before the two-year limitation for the crime alleged here would have expired. The information was filed after the last day of the former two-year limitation, but within the new four-year period.

Defendant demurred:

"The information contains matter which, if true, is a legal bar to the action in that the action was not commenced within the limitation period prescribed by law."

The court sustained the demurrer, explaining that the limitation period in ORS 131.125 had been amended and that an appellate ruling on the applicability of the amendments was preferable to permitting the case to go to trial, if it ultimately might have to be dismissed.

The state contends that the amended statute should be applied to crimes committed before it was enacted and that such an application of the statute does not violate Article I, section 10, of the United States Constitution or Article I, section 21, of the Oregon Constitution, which prohibit ex post facto laws.

The threshold question is whether the legislature intended the new limitation period to apply to crimes committed before the effective date of the amendment. The first inquiry in determining legislative intent is to examine the language of the statute itself. Boone v. Wright, 110 Or.App. 281, 284, 822 P.2d 719 (1991). As amended in 1989, ORS 131.125(3)(a) provides:

"A prosecution for any of the following misdemeanors may be commenced within four years after the commission of the crime, if the victim, at the time of the crime, was under 18 years of age:

"(a) Sexual abuse in the second degree under ORS 163.415."

The statute does not distinguish between prosecutions for crimes committed before and after the amendment was enacted. ²

The statute was amended in response to growing public concern about the awareness of child abuse. The legislature responded to reports that molested children frequently delay disclosure of sexual abuse, that, like fraud and forgery, child abuse is a crime in which the perpetrator acts to keep it secret and unreported and that it is often repeated against another child, especially a younger sibling. Tape recording, Joint Conference Committee on HB 2431, June 28, 1989, Cassette 1, Side A at 010-045; Exhibits Q, R, S, House Judiciary's Crime and Corrections Subcommittee, February 9, 1989.

Oregon courts have not established a rule of law regarding the application of an extended Statute of Limitations in a criminal case when the legislature has not expressly addressed the question. In the civil context, the Supreme Court said:

" 'It is * * * well settled than an amendment to a statute of limitations enlarging the period of time within which an action can be brought as to pending causes of action is not retroactive legislation, and does not impair any vested right.' " Nichols v. Wilbur, 256 Or. 418, 420, 473 P.2d 1022 (1970). (Citation omitted; emphasis supplied.)

The Washington Supreme Court reached a similar conclusion in a case involving the extension of limitations in certain criminal cases where the limitations period had not already run:

"[S]tatutes of limitation are matters of legislative grace; they are a surrendering by the sovereign of its right to prosecute. Since they are measures of public policy only, and subject to the will of the Legislature as such, they may be changed or repealed in any case where the right to a dismissal has not been absolutely acquired by the completion of the running of the statutory period of limitation." State v. Hodgson, 108 Wash.2d 662, 667, 740 P.2d 848 (1987). (Citations omitted.)

As pointed out in that case, other jurisdictions that have considered the issue have also held that the extension of a limitation applies to offenses not already time barred when the new period was adopted and that such an application does not violate ex post facto prohibitions.

We conclude that it is consistent with the purpose of this legislative change, and with pertinent case authority, to conclude that the amended Statute of Limitations is not retroactive legislation and that it applies to incidents of sexual abuse that had not yet been barred under the previous statute. ³

We also conclude that the application of the extended period in this case does not violate Article I, section 10, of the United States Constitution or Article I, section 21, of the Oregon Constitution. ⁴ The ex post facto provisions in both constitutions, which are applied similarly, were written "to prevent vindictive and arbitrary criminal legislation and to provide fair notice of those acts which will subject an individual to criminal sanctions." State v. Burke, 109 Or.App. 7, 11, 818 P.2d 511 (1991), rev. den., 312 Or. 589, 824 P.2d 418 (1992). However, only certain categories of law with retrospective application are prohibited. ⁵ Collins v. Youngblood, 497 U.S. 37, ----, 110 S.Ct. 2715, 2723-24, 111 L.Ed.2d 30, 44 (1990). In State v. Gallant, 307 Or. 152, 155, 764 P.2d 920 (1988), the Supreme Court summarized those categories:

"Generally speaking, ex post facto laws punish acts that were legal at the time they occurred, change the punishment for those acts, or deprive the defendant of a defense for those acts."

An extension of a limitation does not punish acts that were legal at the time that they occurred or impose a greater punishment. The question remains whether it deprived the defendant of a defense available according to law at the time when the act was committed. However, as explained by the United States Supreme Court in Collins v. Youngblood, supra, 497 U.S. at ----, 110 S.Ct. at 2723, that category is not so broad as to include any law that takes away a defense. Rather, the term "defense"

"was linked to the prohibition on alterations in 'the legal definition of the offense' or 'the nature or amount of the punishment imposed for its commission.' "

Here, the extension does not alter the definition of the crime nor the amount or nature of the punishment. We hold that the application of the extended limitation does not involve an impermissible ex post facto application of the law and that the trial court erred in allowing defendant's demurrer.

Reversed and remanded.

1 The state appealed defendant's demurrers in two separate cases that were...