State v. Schwarz, 050035CR.
| Decision Date | 13 May 2009 |
| Docket Number | 050035CR.,A132505. |
| Citation | 228 Or. App. 273,208 P.3d 971 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Debra Angeline SCHWARZ, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Andrew S. Chilton argued the cause for appellant. On the brief were Patrick M. Ebbett and Chilton, Ebbett & Galli, LLC.
Katherine H. Waldo, Senior Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Samuel A. Kubernick, Assistant Attorney General.
Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CRAMER, Judge pro tempore.
Defendant was convicted of one count of criminal mistreatment in the first degree, ORS 163.205, after she brought her elderly husband to the courthouse when she appeared for sentencing on a probation violation and then left him there. Defendant sought a judgment of acquittal, asserting that the state had failed to establish that she "deserted" her husband with the intent to "abandon" him because there was no evidence that she intended to forsake him permanently. The trial court denied the motion, and defendant appeals. We affirm.
In reviewing the trial court's ruling, we state the facts, which are largely undisputed, in the light most favorable to the state, State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990), for the purpose of determining whether the evidence is sufficient to allow a rational trier of fact to find the elements of the crime beyond a reasonable doubt, State v. Allison, 325 Or. 585, 588, 941 P.2d 1017 (1997).
Defendant, who lives in Texas, received a traffic citation while traveling through Lake County, Oregon. Apparently unhappy with the citation, she mailed her payment of the fine in an envelope containing feces. Based on that incident, she was later cited for, and convicted of, obstructing governmental administration, second-degree criminal mischief, and disorderly conduct. She was sentenced to a term of probation. Defendant, while on another trip to Oregon, violated the terms of her probation, was cited for the violation, and ordered to appear in court.
Defendant, who is in her 40s, was married to an 84-year-old man who suffers from dementia and incontinence. Defendant knew that she would likely be sentenced to jail time for her probation violation. Hoping that her husband's presence in the courtroom might influence the judge's decision on sentencing, she arranged for her Texas neighbor to send the victim to Oregon by bus. After a three-day bus ride from Texas, defendant's husband arrived in Lake County, but he had no idea why he had been sent to Oregon or that he would be attending a court hearing.
On the date of the hearing, defendant and her husband came to the courthouse in their pickup truck. At the start of the hearing, defendant told the court that her husband had no money and could not drive, and that he had his medication with him, along with four sets of clothes and one bag of adult diapers. Defendant informed the court that, if she received jail time, "somebody is going to have to take care of [her husband], and he's not going to a nursing home."
The prosecutor recommended jail time for defendant, but offered to delay the start of defendant's incarceration so that she could arrange for her husband's care. Defendant declined and told the court that she did not "give a rat's ass" whether the court sentenced her to 180 days in jail, but that, if she went to jail, the court or the county would have to take care of her husband. The court revoked defendant's probation and sentenced her to 180 days in jail. Deputy Sheriff Pore took defendant into custody.
After taking defendant to the jail, Pore returned to the courtroom and spoke with defendant's husband, who was distraught and confused and did not know what to do. It was clear to Pore that the husband could not take care of himself. Pore arranged for the husband to spend the night in a hospital and, over the next two days, attempted to make arrangements for his care. When Pore asked defendant what he should do with her husband, defendant replied that he could tell her husband to wait for her in their pickup truck.
The day after she was taken into custody, defendant continued to refuse to assist Pore in arranging for her husband's care, and Pore warned her that, if she remained unhelpful, he would arrest her for criminal mistreatment. She suggested that the judge could take care of her husband, who she said needed only to remain alive for seven more years, until her motor home was paid for. Ultimately, without any help from defendant, Pore arranged to return defendant's husband to Texas by bus, where a neighbor would care for him. (He died a few months later.)
After those events, a grand jury charged defendant with criminal mistreatment in the first degree under ORS 163.205(1)(b)(B), which provides, in part:
The state's theory was that, by bringing the victim to the courthouse, knowing that she would likely be taken into custody, and by refusing to accept the prosecutor's offer to delay her incarceration or to assist Pore in arranging for the victim's care, defendant intentionally deserted her husband with an intent to abandon him.
On appeal, defendant contends that she did not "desert" her husband. In her view, the state proved only that she left him against her will in the custody of authorities who she knew—and even insisted—would take care of him. Further, she contends, her conduct evinces no intention to abandon her husband in the sense required by the statute "any more than a mother who is picked up on a warrant in her home deserts her children when she is taken off to jail." The state argues that, taking the evidence in the light most favorable to the state, the evidence is legally sufficient to show that defendant deserted her husband with the intent to abandon him.
The issue presented is one of statutory construction. Our goal in determining whether defendant deserted the victim within the meaning of ORS 163.205 is to ascertain the meaning most likely intended by the legislature, by examining its text in context and giving words of common usage their plain, natural, and ordinary meaning, unless context makes clear that a different meaning was intended. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611-12, 859 P.2d 1143 (1993). The terms "desert" and "abandon" are not defined in ORS 163.205, and there are no cases interpreting them as they are used in that statute. We therefore refer to dictionary definitions for assistance in determining the ordinary meaning of the relevant terms. State v. Holloway, 138 Or.App. 260, 265, 908 P.2d 324 (1995).
We begin with the meaning of the verb "desert." Webster's Third New Int'l Dictionary 610 (unabridged ed. 2002), lists a number of different definitions for the verb in its transitive form, the form in which it is used in the statute, including "1: to withdraw from or leave permanently or less often temporarily (as a place): quit * * * * * * b: to leave behind or give up (as a person) * * * 4: to drop away or escape from (a person) usu. causing a distinct sense of loss or discomfiture: leave in a lurch: FORSAKE[.]" Defendant emphasizes the first-listed definition, deriving from it the contention that "to desert" encompasses a notion of permanency. Defendant apparently presumes that the first definition listed in the dictionary is the primary definition. Webster's, however, does not list its definitions in order of preference; rather, it lists its definitions in order of historical usage. Webster's at 17a, note 12.5; Friends of Columbia Gorge v. Columbia River, 218 Or.App. 232, 245 n. 2, 179 P.3d 706, rev. allowed, 345 Or. 94, 189 P.3d 749 (2008). Deciding which among competing dictionary definitions applies to a given statute is not a matter of listed order, but a matter of how the word at issue is used in context. State v. Stamper, 197 Or.App. 413, 417, 106 P.3d 172, rev. den., 339 Or. 230, 119 P.3d 790 (2005).
In this case, the first definition appears to us to be inapplicable, because it expressly pertains to desertion of a place, not a person. In contrast, the other two definitions that we have quoted relate to the desertion of a person, which seems more pertinent to the use of the term in the statute. Neither of those definitions necessarily includes an element of permanence in the act of deserting.
In context, the second of those two definitions appears to be the closest to the usage of the term in ORS 163.205. It seems unlikely that the...
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State v. Bernhardt
...multiple definitions for a relevant term.” State v. Gonzalez–Valenzuela, 358 Or. 451, 461, 365 P.3d 116 (2015) ; State v. Schwarz, 228 Or.App. 273, 278, 208 P.3d 971 (2009) (“Deciding which among competing dictionary definitions applies to a given statute is not a matter of listed order, bu......