State v. Parker

• Decision Date: 08 August 1985
• Docket Number: No. 83-192CR,83-192CR
• Citation: 299 Or. 534,704 P.2d 1144
• Parties: STATE of Oregon, Respondent on Review, v. Leonard Ray PARKER, Petitioner on Review. TC; CA A29923; SC S31289.
• Court: Oregon Supreme Court

Page 1144

704 P.2d 1144

299 Or. 534

STATE of Oregon, Respondent on Review, v. Leonard Ray PARKER, Petitioner on Review.

TC No. 83-192CR; CA A29923; SC S31289.

Supreme Court of Oregon.

Argued and Submitted March 7, 1985.

Decided Aug. 8, 1985.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on briefs was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

In Banc.

LENT, Justice.

The question presented is whether a motor vehicle driver who intentionally collides with another's vehicle has had an "accident" within the meaning of ORS 483.602.

ORS 483.602 provides:

"(1) The driver of any vehicle involved in an accident which results in injury or death to any person or causes damage to a vehicle which is driven or attended by any person, immediately shall stop such vehicle at the scene of the accident, or as close thereto as possible, and shall remain at the scene of the accident until the driver has fulfilled the requirements of subsection (2) of this section. Every such stop shall be made without obstructing traffic more than is necessary.

"(2) The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to any such vehicle shall:

"(a) Give to the other driver or surviving passenger, or any person not a passenger injured as a result of such accident, the name, address and the registration number of the vehicle which the driver is driving, and the name and address of any other occupants of such vehicle.

"(b) Upon request and if available, exhibit and give the number of the operator's or chauffeur's license of the driver to the persons injured, or to the occupant of or person attending any vehicle damaged.

"(c) Render to any person injured in such accident reasonable assistance, including the conveying or the making of arrangements for the conveying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such conveying is requested by any injured person.

"(3) Any witness to the accident shall furnish to the driver or occupant of such vehicles, or injured person, the true name and address of the witness.

"(4)(a) A driver involved in an accident which results in injury or death to any other person and who fails to perform the duties required under subsection (1) of this section commits a Class C felony.

"(b) A driver involved in an accident which results only in damage to a vehicle which is driven or attended by any other person and who fails to perform the duties required under subsection (1) of this section commits a Class A misdemeanor.

"(c) A witness to an accident who fails to perform the duties required under subsection (3) of this section commits a Class B traffic infraction."

Defendant was indicted on three counts, the first for criminal mischief in the first degree, ORS 164.365; ¹ the second for menacing, ORS 163.190; ² and the third for failure to perform the duties of a driver involved in an accident, ORS 483.602. The third count alleged that the violation of ORS 483.602 arose out of the same act and transaction alleged in the first two counts, in which it was charged that defendant intentionally used his motor vehicle to damage another person's vehicle.

Defendant orally demurred to the third count "on the ground that it doesn't state a crime." ³ From the bench the trial judge stated:

"The Court is saying that Count III fails to state a cause of action because it alleges an intentional collision, and then seeks to apply the statute which pertains to an accident."

Thereafter, the court entered a written order sustaining the demurrer "on the grounds and for the reason that the facts stated in said Count do not constitute an offense."

The state appealed. The Court of Appeals reversed and remanded the case for trial, holding that the term "accident" in ORS 483.602 includes both intentional and unintentional vehicular collisions. ⁴ State v. Parker, 70 Or.App. 397, 402, 689 P.2d 1035, 1038 (1984).

We allowed review to consider the issue posed at the outset of this opinion and because the first interpretation of a statute is involved. Before we reach this issue, however, we must resolve a preliminary question whether the state can appeal from an order sustaining a demurrer to one count of a multi-count accusatory instrument.

ORS 138.060(1) provides that "[t]he state may take an appeal from the circuit court or the district court to the Court of Appeals from: (1) An order made prior to trial dismissing or setting aside the accusatory instrument."

In State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), defendants were indicted in a two-count indictment. The circuit court sustained a demurrer to one count, ruling that the facts alleged did not state a crime. After examining the legislative history of demurrers in criminal cases, we noted that when the Court of Appeals took jurisdiction of the Robertson case it "extended its earlier decision in STATE V. THOMAS ". 293 OR. AT 407, 649 P.2D AT 573.⁵ We also noted that in Thomas the Court of Appeals had voiced some doubt whether the 1971 amendments to ORS 138.060 allowed the state to appeal from orders sustaining demurrers but not dismissing the instruments, yet it had found that the addition of the words "setting aside" in 1973 covered this type of order. 293 Or. at 407, 649 P.2d at 573. We refused to disturb the Court of Appeals' decision that it could properly take jurisdiction over such an order because the amendments to ORS 138.060 were intended "to broaden the state's ability to appeal orders that invalidate accusatory instruments." 293 Or. at 407, 649 P.2d at 573.

In the present case, the state has appealed from an order sustaining defendant's demurrer to one count of a three-count indictment. Procedurally, there is no difference between the situation presented here and that in the Robertson case. As in Robertson, the order sustaining defendant's demurrer "invalidates" that portion of the accusatory instrument. Because the order sets aside one count of the accusatory instrument, jurisdiction is proper.

On the merits, defendant's position is that the plain meaning interpretation of the word "accident" does not include an intentional act. Defendant cites Black's Law Dictionary 14 (5th ed 1979) which defines "accident" as

" * * * [A] fortuitous circumstance, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens; an unusual, fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence; an unusual or unexpected result attending the operation or performance of a usual or necessary act or event; chance or contingency, fortune, mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something happening by chance; something unforeseen, unexpected, unusual, extraordinary or phenomenal, taking place not according to the usual course of things or events, out of the range of ordinary calculations; that which exists or occurs abnormally, or an uncommon occurrence. * * * "

Further, defendant asserts the court should follow the decision in State v. Liuafi, 1 Haw.App. 625, 623 P.2d 1271 (1981), where the Hawaii Court of Appeals held the plain meaning of the word "accident," when taken into consideration with the purpose of Hawaii's "hit and run" statute, Hawaii Rev Stat § 291C-12 (1976), ⁶ does not include the intentional attempt to murder someone with a vehicle. Liuafi, 1 Haw.App. at 643, 623 P.2d at 1282. Liuafi was charged with and convicted of attempted murder and failure to give aid when he intentionally ran over a person. Liuafi claimed as error the trial court's failure to instruct the jury that the two offenses required inconsistent findings of fact and, as a result, under Hawaii statutes he could not be convicted of both offenses. 1 Haw.App. at 643, 623 P.2d at 1282. The court concluded that under Hawaii's criminal code, Hawaii Rev Stat § 701-109(1)(c) (1976), ⁷ Liuafi "could not be convicted of both attempted murder and of violation of HRS § 291C-12." (Emphasis added.) 1 Haw.App. at 643, 623 P.2d at 1282. Referring again to Hawaii Rev Stat § 701-109(1) (1976), the court said, however, that it wasn't error to charge Liuafi with both offenses. 1 Haw.App. at n. 7, 623 P.2d at n. 7. As required by Hawaii Rev Stat § 701-104 (1976) (principles of construction), the court construed the word "accident" in its usual sense, and took into consideration the context in which it is used as well as the statute's purpose.

In making its decision in this case, the Court of Appeals concluded there was "nothing in the statute [ORS 483.602] to suggest a concern that the cause of the occurrence--whether it be the result of a purely fortuitous event, simple or criminal negligence, or intentional conduct--should have any bearing on its application." 70 Or.App. at 402, 689 P.2d at 1038. We agree.

When construing a statute, "the intention of the legislature is to be pursued if possible * * *." ORS 174.020. To do so, the court may examine the language used, the statutory objective, and other evidence of the intended meaning. Curly's Dairy, Inc. v. State Dept. of Agriculture, 244 Or. 15, 21, 415 P.2d 740, 743 (1966).

"The entire statute should be examined, including its preamble. State ex rel. Peterson v. Woodruff, 179 Or 640, 173 P2d 961."

244 Or. at 21, 415 P.2d at 743.

"The starting point in every case involving a determination of legislative intent is the language of the statute itself. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 US 322, 330 [98 S.Ct. 2370, 2375, ...