State v. Mayorga
| Decision Date | 05 February 2003 |
| Citation | 186 Or. App. 175,62 P.3d 818 |
| Parties | STATE of Oregon, Respondent, v. Norma Lilia Garcia MAYORGA, Appellant. |
| Court | Oregon Court of Appeals |
Rebecca Duncan, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.
Julie A. Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
Defendant appeals a judgment of conviction for two counts of first-degree possession of a forged instrument. ORS 165.022. She argues that the forged documents that she possessed are not the sort of documents that support a conviction for first-degree forgery. She also argues that, even if they do, the two convictions should be merged. We affirm, writing to address only the sufficiency of the evidence as to the convictions.
The relevant facts are not in dispute. Defendant was found in possession of a forged resident alien card and a forged social security card. She was charged with two counts of first-degree possession of a forged instrument under ORS 165.022, which provides that a person commits that crime "if, knowing it to be forged and with intent to utter same, the person possesses a forged instrument of the kind specified in ORS 165.013." The forged instruments specified in ORS 165.013(1) are:
At trial, defendant moved for a judgment of acquittal, arguing that the two forged documents that she possessed are not included in the list of forged instruments specified in ORS 165.013(1). The trial court denied the motion, concluding that the resident alien and social security cards are "other document[s] that do[ ] or may evidence, create, transfer, alter, terminate or otherwise affect a legal right, interest, obligation or status" within the meaning of ORS 165.013(1)(d).
On appeal, defendant again asserts that the forged resident alien and social security cards are not included in the list of forged instruments specified in ORS 165.013(1). According to defendant, the trial court erred in concluding that the documents are "other documents" that evidence a legal right, interest, obligation, or status under ORS 165.013(1)(d). She reasons that, under the interpretive principle of ejusdem generis, the "other documents" to which the statute refers are implicitly limited to "other commercial documents" because the preceding provisions of the subsection in which the phrase appears all pertain to documents evidencing commercial transactions.
The state argues that defendant misreads the statute, which already specifically refers to "other commercial instrument[s]" and lists, in addition to that category, "other document[s]" that evidence a "legal right, interest, obligation or status." Thus, the state argues, the final "other documents" clause is not limited to those pertaining to purely commercial transactions. We agree with the state.
In disposing of the parties' arguments, we attempt to determine, as a matter of law, the intended meaning of the relevant provisions of the statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). We begin with the text of the statute in its context, applying rules of textual construction that we presume the legislature employed in enacting the provision at issue. Id.
As we have noted, ORS 165.013(1)(d) provides that among the forged instruments that may be the basis for a first-degree forgery possession charge are:
"A check for $750 or more, a credit card purchase slip for $750 or more, or a combination of checks and credit card purchase slips that, in the aggregate, total $750 or more, or any other commercial instrument or other document that does or may evidence, create, transfer, alter, terminate or otherwise affect a legal right, interest, obligation or status[.]"
Thus, by its terms, the statute includes five different categories of instruments:
(3) A "combination of checks and credit card purchase slips" that total $750 or more;
(4) Any "other commercial instrument"; or
(5) Any "other document that does or may evidence, create, transfer, alter, terminate or otherwise affect a legal right, interest, obligation or status."
Of particular importance is the fact that the legislature separately identified "other commercial instrument" as a category of forged instruments that is included in ORS 165.013(1)(d). Following that category is an additional category, namely, any "other document that does or may evidence * * * a legal right, interest, obligation or status." The only sensible reading of the wording is "other" than the documents that already have been described, namely, other than a commercial instrument. Any other reading of the statute—in particular, a reading that would construe "other document" to mean "other commercial document," as defendant suggests—would run afoul of at least two fundamental rules of textual construction.
First, it would violate ORS 174.010, which declares that the function of the court in interpreting a statute is "not to insert what has been omitted, or to omit what has been inserted." To read the statute as defendant suggests effectively deletes the word "other" from the phrase "other document" and then effectively inserts the word "commercial" where the legislature has chosen not to include it. We are not at liberty to revise the legislature's handiwork in that fashion. See, e.g., State v. Rogers, 330 Or. 282, 290, 4 P.3d 1261 (2000) ().
Second, it would violate the rule that, wherever possible, we must interpret statutes so as to give effect to all provisions, leaving none to be meaningless surplusage. Bolt v. Influence, Inc., 333 Or. 572, 581, 43 P.3d 425 (2002) (); EQC v. City of Coos Bay, 171 Or.App. 106, 110, 14 P.3d 649 (2000) (). In this case, if "other document" actually means "other commercial document," then the immediately preceding phrase, "any other commercial instrument," becomes completely meaningless.1
Prior versions of the statute, and their judicial construction, confirm what the current text so strongly suggests. See Owens v. Maass, 323 Or. 430, 435, 918 P.2d 808 (1996) (). The phrase "any other commercial instrument or other document that does or may evidence * * * a legal right, interest, obligation or status" originally was enacted in 1971 as part of what is now ORS 165.013(1)(c), so that the original subsection read:
"A deed, will, codicil, contract, assignment, commercial instrument or other document which does or may evidence, create, transfer, alter, terminate, or otherwise affect a legal right, interest, obligation or status[.]"
Or. Laws 1971, ch. 743, § 153(1)(c).
The Oregon courts interpreted the "other document" reference to apply to more than commercial instruments. In State v. Jackson, 35 Or.App. 741, 746, 582 P.2d 837 (1978), rev. den., 285 Or. 195 (1979), for example, we held that a forged savings passbook was an "other document" that evidenced a legal right under ORS 165.013(1)(c) (1977). Similarly, in In re Kirkman, 313 Or. 181, 184, 830 P.2d 206 (1992), the Supreme Court concluded that a forged dissolution judgment is, among other things, a forged "document which does or may evidence * * * a legal right * * * or status."2
In 1993, the legislature amended the statute to include the first portion of what is now ORS 165.013(1)(d), pertaining to checks and credit card purchase slips. Or. Laws 1993, ch. 680, § 25. In the process, the legislature moved the phrase that begins with "commercial instrument or other document" so that it now follows the reference to the checks and credit card purchase slips. Id. The wording of the "commercial instrument or other document" clause that previously had been construed by the Oregon courts remained unchanged.
Defendant insists that, although the legislature did not change the wording of the clause, by moving it to a new section that now begins with a reference to specific commercial instruments, the legislature apparently intended to alter its meaning. Specifically, defendant argues that, because the clause now follows such a list of specific commercial instruments, the interpretive principle of ejusdem generis requires that— notwithstanding what the courts may have said the wording once meant—we now must give it a commercial "gloss."
We reject defendant's reliance on the principle of ejusdem generis. The principle has been explained in the following terms:
"[W]hen the legislature chooses to state both a general standard and a list of specifics, the specifics do more than place their particular subjects beyond...
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