State v. Glaspey

• Decision Date: 18 November 2004
• Citation: 337 Or. 558,100 P.3d 730
• Parties: STATE of Oregon, Respondent on Review, v. James Lewis GLASPEY, Petitioner on Review.
• Court: Oregon Supreme Court

100 P.3d 730

337 Or. 558

STATE of Oregon, Respondent on Review, v. James Lewis GLASPEY, Petitioner on Review.

(CC 00FE0217AB; CA A112752; SC S50105).

Supreme Court of Oregon.

Argued and Submitted September 8, 2004.

Decided November 18, 2004.

Rankin Johnson IV, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Peter A. Ozanne, Executive Director, Office of Public Defense Services, and Peter Gartlan, Chief Defender.

Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ, and BALMER, Justices.¹

GILLETTE, J.

In this criminal action, defendant seeks review of a Court of Appeals decision affirming his convictions on two counts of felony assault in the fourth degree. Defendant contends that the conduct and circumstances underpinning the convictions cannot support two separate felony convictions. We agree with defendant and, accordingly, reverse the decision of the Court of Appeals.

Defendant was charged with two counts of fourth-degree assault, ORS 163.160, based on a single incident of "caus[ing] physical injury" to a single person-his wife.² Fourth-degree assault ordinarily is a Class A misdemeanor. ORS 163.160(2). However, the legislature has categorized fourth-degree assault as a Class C felony if the offense is committed under certain specified circumstances, including when

"[t]he assault is committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child or stepchild or a minor child residing within the household of the person or the victim."

ORS 163.160(3).

In the present case, the couple's two children witnessed defendant's assault on his wife. That fact prompted the district attorney to charge defendant with two counts of felony fourth-degree assault on the theory that each of the two child witnesses was a victim of the crime and that defendant had committed a separate felony offense with respect to each child. That theory relies on ORS 161.067(2), which provides:

"When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims."

Defendant did not object to the indictment on any ground and, in fact, pleaded no contest to both charges. However, at sentencing, defendant argued that the two counts must "merge for sentencing purposes." The trial court overruled that objection, entered both convictions, and imposed two separate but concurrent sentences.

Defendant appealed, assigning error to the trial court's decision to enter two convictions for a single assault. Defendant argued, in particular, that the two child witnesses were not "victims," either for purposes of the crime that ORS 163.160(3)(c) defines or for purposes of ORS 161.067(2). A majority of the Court of Appeals disagreed, finding evidence in the text and context of those two statutes that the legislature intended

"that children who witness a domestic assault be considered victims for purposes of determining whether the defendant may be separately punished for each conviction arising from the assault."

State v. Glaspey, 184 Or.App. 170, 180, 55 P.3d 562 (2002).³ We allowed defendant's petition for review.

Before this court, defendant contends that the Court of Appeals misconstrued the legislative intent behind ORS 163.160 and ORS 161.067(2). Defendant argues that, at least for purposes of determining whether a defendant may be convicted of multiple offenses of fourth-degree assault under ORS 163.160(3)(c) based on a single act of assault against a single person, the only "victim" is the direct victim, i.e., the person who is physically injured. The merits of defendant's argument resolve into a single question of statutory construction—whether an assault like the one in the present case involves "two or more victims" within the meaning of ORS 161.067(2). That question reduces even further to the following question: Who qualifies as a "victim" in the relevant statutory scheme?⁴

The parties focus their analyses in that regard on different statutes. Defendant contends that the focus must be on determining whether the legislature intended to include the child witnesses described in ORS 163.160(3)(c) as victims of the crime that that statute defines. That is so, defendant argues, because the term "victims" in ORS 161.067(2) does not itself create a separate and distinct class of victims of crime. Instead, defendant asserts, the statute necessarily refers to the class of persons who are victims for purposes of the substantive statute defining the relevant crime. In that regard, defendant contends that it is clear that the only victim of the crime that ORS 163.160(3)(c) defines (and, thus, the only victim for purposes of ORS 161.067(2) in this context) is the person whom the defendant directly and physically harmed.

The state contends, to the contrary, that the primary question for consideration is whether child witnesses like the ones in this case are "victims" within the meaning of ORS 161.067(2). The state asserts that the substantive definition of felony fourth-degree assault at ORS 163.160(3)(c) is relevant only if that definition conveys an affirmative legislative intent to exclude child witnesses from being considered victims for purposes of ORS 161.067(2). Applying that analysis to the statutes, the state proposes that we read the term "victim" in ORS 161.067(2) to include any person whom a criminal act harms and then further proposes that nothing in ORS 163.160(3)(c) suggests a legislative intent to exclude child witnesses, as described in the statute, from that category.

We approach those questions of statutory construction using the analytical template set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993). Under that template, we first consider the text and context of the statute, and proceed to other interpretive sources (specifically, to the statute's legislative history and, in the event that legislative history is unhelpful, to general maxims of statutory construction) only if legislature's intent is not clear at that first level. Id. at 610-12, 859 P.2d 1143.

We turn first to the statute on which the state relies, ORS 161.067(2). When we do so, we find that the specific wording of that statute does not support the state's reading. When the statute speaks of criminal conduct that "violate[s] only one statutory provision," it necessarily refers to, and depends upon, some statute other than itself. That is, it refers to the substantive criminal laws that define particular criminal offenses. It follows that the statutory reference to "victims" in the phrase "[w]hen the same conduct * * * involves two or more victims" also must refer to victims within the meaning of the substantive statute that defines the relevant crime.

Because the statute's text does not support the state's argument (and nothing about that text when considered in context alters that conclusion), we need not pursue our PGE paradigm further. We conclude that ORS 161.067(2) uses the term "victims" to describe the category of persons who are victims within the meaning of the specific substantive statute defining the relevant offense.

It follows that the proper focus of our analysis is on the substantive statute defining the crime of fourth-degree assault—ORS 163.160. Specifically, we must determine whether the child witnesses described in ORS 163.160(3)(c) are victims of the crime that that statute defines.

ORS 163.160 provides, in part:

(1) A person commits the crime of assault in the fourth degree if the person:

"(a) Intentionally, knowingly or recklessly causes physical injury to another; or

"(b) With criminal negligence causes physical injury to another by means of a deadly weapon.

"(2) Assault in the fourth degree is a Class A misdemeanor.

"(3) Notwithstanding subsection (2) of this section, assault in the fourth degree is a Class C felony if the person commits the crime of assault in the fourth degree and:

"(a) The person has previously been convicted of assaulting the same victim;

"* * * * *

"(c) The assault is committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child or stepchild or a minor child residing within the household of the person or victim.

"(4) For the purposes of subsection (3) of this section, an assault is witnessed if the assault is seen or directly perceived in any other manner by the child."

The state contends that it is only a matter of semantic convenience and is not indicative of a real legislative choice in the matter that ORS 163.160(3)(c) uses the term "victim" to refer to the assaulted person and a different term—"minor child"—to refer to a child witness. The state argues that, instead of focusing on the word "victim" as it is used in ORS 163.160(3)(c), we should focus on the fact that the ordinary, dictionary meaning of the word would include persons who suffer all varieties of harm,⁵ including the psychological harm that the children described in subsection (3)(c) likely would suffer after witnessing an assault. The state contends that child witnesses of a domestic assault may and often do suffer psychological injury from their exposure to that conduct and thus are additional victims of the crime.

We can accept the state's underlying premise, which is that the legislature could choose to utilize the broad, "ordinary" definition of the term "victim" in creating a criminal statutory scheme. But we are dealing here with a specific criminal statute that defines a particular criminal offense for purposes of prosecution, and we therefore must focus on the words that the legislature chose to use in...