State v. Hval

• Decision Date: 09 May 2001
• Citation: 25 P.3d 958,174 Or. App. 164
• Parties: STATE of Oregon, Respondent, v. Eric Rodney HVAL, Appellant.
• Court: Oregon Court of Appeals

25 P.3d 958

174 Or. App. 164

STATE of Oregon, Respondent, v. Eric Rodney HVAL, Appellant.

Z448855; A101650.

Court of Appeals of Oregon.

Argued and Submitted January 21, 1999.

Decided May 9, 2001.

Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and LINDER, Judge.

LINDER, J.

Defendant appeals from a judgment of conviction for failure to perform the duties of a driver when property is damaged, an offense commonly termed "hit and run." ORS 811.700(1)(a). He assigns error to the trial court's denial of his motion for judgment of acquittal and to the court's order under ORS 811.706 requiring him to pay $500 compensation to the victim as a condition of probation. We affirm.

The relevant facts are not disputed. Janell Suell was driving her car through a Portland intersection when it was struck on the left side by a car driven by defendant. Defendant got out of his car and walked away without providing any information to Suell. Some time later, while Suell and police officers were still at the scene, defendant returned and identified himself to the officers as the driver of the car that struck Suell's. A police officer at the accident scene cited defendant for "hit and run" under ORS 811.700(1)(a), which makes it a criminal offense to leave the scene of a vehicular accident involving property damage to another vehicle without performing certain duties, such as providing identifying information to the owner of the damaged property.

Damage to Suell's car totaled approximately $5,000, and her car had to be towed from the scene. According to the police officer who cited defendant, Suell had "no visible injuries" at that time. In fact, however, she later was diagnosed as suffering from a "cervical lumbar sprain" caused by the collision and was treated for that injury. At trial, after the state's closing argument, defendant moved for a judgment of acquittal, arguing that a person is not guilty of "hit and run" under ORS 811.700(1)(a) if the collision causes personal injury in addition to property damage. The trial court denied the motion, and the jury found defendant guilty. The trial court sentenced defendant to two years' bench probation and, based on the amount of the insurance deductible Suell had paid toward the cost of repairing her car, ordered that defendant pay "restitution" to Suell in the amount of $500 pursuant to ORS 811.706.

Defendant's first assignment of error challenges the trial court's denial of his motion for judgment of acquittal. Defendant's argument is premised on the text of ORS 811.700(1)(a), which provides:

"A person commits the offense of failure to perform the duties of a driver when property is damaged if the person is the driver of any vehicle and the person does not perform duties required under any of the following:

"(a) If the person is the driver of any vehicle involved in an accident that results only in damage to a vehicle that is driven or attended by any other person the person must perform [the enumerated duties]."

(Emphasis added.) Violation of that provision is a Class A misdemeanor. ORS 811.700(2). Defendant contrasts the misdemeanor "hit and run" offense with the felony "hit and run" offense under ORS 811.705, which states, in part:

"(1) A person commits the offense of failure to perform the duties of a driver to injured persons if the person is the driver of any vehicle involved in an accident that results in injury or death to any person and does not [perform all of the enumerated duties]."

See also ORS 811.705(2) (making a violation of subsection (1) a Class C felony). Defendant takes the position that, when an accident causes personal injury in addition to property damage, a driver's failure to perform specified duties can be a violation only of the felony "hit and run" statute because the fact of the personal injury takes the circumstances outside the scope of the misdemeanor "hit and run" statute. According to defendant, either he was guilty of felony "hit and run" or he was not guilty of any offense at all, and the trial court, therefore, should have granted his motion for judgment of acquittal.

Our analysis of the statute's meaning begins with text and context. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Faithful to that methodology, the parties focus their arguments first on the meaning of the word "only" as it is used in ORS 811.700(1)(a). Defendant contends that "only" means "being one * * * of which there exist no others" or "alone." In defendant's view, a charge under ORS 811.700 is limited to cases in which there is only property damage as specified by the statute, without other damage or injury. The state responds that the plain meaning of the word "only" includes, among other definitions, "at the very least." In the state's view, a charge under ORS 811.700 requires that there be at least property damage of the kind specified but not such property damage alone.

Both parties' views find support in dictionary definitions. As used in ORS 811.700(1)(a), "only" is an adverb modifying the verb "results in." So used, the word can mean "exclusively," which would support the conclusion that defendant urges.² On the other hand, as the state argues, "only" when used as an adverb also can mean "at the very least." See Webster's Third New Int'l Dictionary, 1577 (unabridged ed 1993) (defining the adverb "only" in part as "exclusively, solely" and "at the very least"). Isolating the subsection in which "only" appears in the statute, the word plausibly could take on either of those meanings.³

That fact alone, however, does not render the statute ambiguous. The question remains whether both meanings are plausible in the context of the statutory scheme as a whole. As we explained in Steele v. Employment Department, 143 Or.App. 105, 113-14, 923 P.2d 1252 (1996), aff'd 328 Or. 292, 974 P.2d 207 (1999):

"[M]any of the words in our language have several meanings or shades of meaning. However, it does not follow from the fact that there are several variations of how a word is defined in the dictionary that all of the variations are pertinent whenever the word is used, or that each variation is an arguably plausible description of what the word means as it is used in a particular statute. The subject and purpose of the statute, together with the statutory language that surrounds the word in question, narrow the array of definitional choices that dictionaries alone afford and go far in identifying the intended meaning of the word as used in the statute."

See also To v. State Farm Mutual Ins., 319 Or. 93, 99, 873 P.2d 1072 (1994).

The context of the disputed word in this case reveals ORS 811.700 to be one of several statutes describing the duties that a motor vehicle driver must perform when involved in an accident. The legislature has organized the offenses by type of damage or injury and the accompanying penalty. ORS 811.700 identifies a driver's duties when an accident results in property damage and makes the offense a Class A misdemeanor. ORS 811.705 defines a driver's duties for an accident that results in injury or death to a person and makes the offense a Class C felony. Finally, ORS 811.710 describes a driver's duties when the driver knowingly strikes and injures a domestic animal and makes the offense a Class B traffic infraction.

The statutes have parallel structures. Subsection (1) of the property damage statute describes that offense as one committed "when property is damaged if the person * * * does not perform [the] duties required" as specified in the statute's further subsections. ORS 811.700(1). Similarly, subsection (1) of the personal injury statute describes that offense as one committed "if the person is the driver of any vehicle involved in an accident that results in injury or death to any person and does not do all" of the duties enumerated in the statute. ORS 811.705(1). Finally, the animal injury provision describes that offense as one committed "when an animal is injured if the person knowingly strikes and injures a domestic animal and the person does not do all" of the duties specified in the statute's subsections. ORS 811.710(1).

None of the quoted portions of the cited provisions includes the word "only" or any other language suggesting that the various "hit and run" provisions address mutually exclusive circumstances. That is, none of the provisions requires or textually contemplates that a driver's obligation to perform the enumerated duties is limited to circumstances in which an accident involves one, rather than one or more, of the duty-triggering types of damage or injury. Indeed, as a matter of common sense and experience, accidents frequently involve multiple kinds of damage. For example, a driver of a vehicle might swerve left to avoid a dog but nevertheless hit both the dog and an oncoming car. Under defendant's proposed interpretation of the property damage statute, the swerving driver would be free to leave the scene without exchanging any information with the other driver. Instead, the driver's only obligations would run to the dog and its owner. By contrast, if the driver swerved into the other lane and missed the dog but collided with the other car, the driver would owe the other driver the full set of duties identified by the statute. That outcome frustrates rather than serves the statutory goal of deterring drivers from fleeing an accident scene without performing required duties, and thereby escaping financial responsibility for damage they have caused. See State v. Martin, 298 Or. 264, 268, 691 P.2d 908 (1984) (describing the policy served by the predecessor statutes). Nothing in the discrete provisions of...