State v. Stamper
| Citation | 106 P.3d 172,197 Or. App. 413 |
| Parties | STATE of Oregon, Respondent, v. Chris Allen STAMPER, Appellant. |
| Decision Date | 09 February 2005 |
| Court | Court of Appeals of Oregon |
Donato B. Masaoy, Portland, argued the cause and filed the brief for appellant.
Laura S. Anderson, 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 BREWER, Chief Judge, and ARMSTRONG, Judge.
ORS 163.425 provides that a person commits the crime of sexual abuse in the second degree "when that person subjects another person to sexual intercourse * * * and the victim does not consent thereto." At issue in this case is the meaning of the phrase "and the victim does not consent thereto." It is a question of first impression and a difficult one at that. Defendant argues that the statute requires the state to prove that the victim did not actually consent and that the trial court erred in concluding otherwise. The state argues that it is sufficient that there is proof that the victim was under the age of 18 and therefore incapable of consenting, regardless of whether the victim actually consented. Both arguments are plausible; neither is free of problems. But, after carefully considering the text of the statute in its context, its legislative history, and relevant principles of statutory construction, we conclude that the state's reading is more likely the one that the legislature intended. We therefore affirm.
The relevant facts are not in dispute. Defendant, an adult, engaged in sexual intercourse with his niece, who was 16 and 17 years old during the relevant time. He was indicted on five counts of sexual abuse in the second degree. The indictment alleged in part that defendant "did unlawfully and knowingly subject [the victim] to sexual intercourse, [the victim] not consenting thereto."
Defendant demurred to the indictment on the ground that it did not state a crime and was not sufficiently definite and certain. He argued that ORS 163.425 does not apply to consensual intercourse with a person under 18 years of age, that conviction based solely on the age of the victim violates Article I, section 20, of the Oregon Constitution, and that the indictment failed to allege that the victim was under the age of 18. The trial court disallowed the demurrer.
Defendant then waived jury trial and was tried on stipulated facts on one count of sexual abuse in the second degree. Defendant and the state stipulated that he was 29 and 30 years old during the time he engaged in sexual intercourse with his niece and that his niece was 16 and 17 during that time. The parties did not stipulate to any facts concerning whether the victim actually consented to the sexual intercourse. Defendant moved for a judgment of acquittal, arguing that, in the absence of evidence that the victim did not actually consent, the stipulated facts were legally insufficient. The trial court denied the motion and found defendant guilty on the ground that, the victim being under 18 at the time of the offense, she was incapable of consent.
On appeal, defendant advances a number of assignments of error, one of which is that the trial court erred in denying his motion for a judgment of acquittal.
In reviewing the trial court's denial of a motion for a judgment of acquittal, we examine the evidence in the light most favorable to the state to determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). When the dispositive issue involves the meaning of applicable statutes, we review the court's ruling as a matter of law. State v. Rodarte, 178 Or.App. 173, 176, 35 P.3d 1116 (2001).
Defendant argues that ORS 163.425 unambiguously means what it says: An element of the offense of sexual abuse in the second degree is that "the victim does not consent" to sexual intercourse. According to defendant, that the statute requires proof of actual lack of consent is confirmed explicitly by the legislative history, which shows that legislators considering the bill that became ORS 163.425 understood the statute to require proof of actual lack of consent and not merely incapacity to consent.
The state also argues that the statute unambiguously means what it says, that is, that proof that "the victim does not consent" to sexual intercourse may be established by evidence that the victim is too young to consent as a matter of law. According to the state, other provisions of the criminal code plainly provide that victims under the age of 18 are incapable of consenting to a sexual act. The state acknowledges that portions of the legislative history support defendant's reading of the statute. The state, however, insists that defendant's reading directly conflicts with other portions of the criminal code and therefore is untenable.
We resolve the parties' dispute regarding the meaning of ORS 163.425 according to the interpretive method set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). In accordance with that method, we attempt to ascertain the intended meaning of the statute first by reference to its text in context. Id.; State v. McCoin, 193 Or.App. 623, 626, 91 P.3d 760 (2004). In our examination of the text in context, we assume that the legislature intended the words of the statute to carry their ordinary meanings unless the phrasing of the statute suggests that the legislature intended different meanings to apply. PGE, 317 Or. at 611, 859 P.2d 1143; see also State v. Ausmus, 336 Or. 493, 504, 85 P.3d 864 (2004)
. If, after examining the text in context, we conclude that the statute is capable of multiple constructions that are not "wholly implausible," we examine the legislative history and, if necessary, other aids to construction. Owens v. MVD, 319 Or. 259, 268, 875 P.2d 463 (1994) ().
As we noted at the outset of this opinion, ORS 163.425 provides that a person commits the crime of sexual abuse in the second degree if that person subjects another person to sexual intercourse "and the victim does not consent thereto." Ordinarily, "to consent" means to give express agreement. See Webster's Third New Int'l Dictionary 482 (unabridged ed. 2002) (defining the verb "consent" as "to express a willingness (as to accept a proposition or carry out a particular action): give assent or approval: agree"). That definition of the term certainly is consistent with defendant's contention that the statute requires proof that the victim expressed an unwillingness to engage in sexual intercourse. Of course, resort to a dictionary definition does not establish that the legislature intended that definition to apply; to determine that, we must examine the context in which the legislature used the term. State v. Holloway, 138 Or.App. 260, 265, 908 P.2d 324 (1995).
The immediate context is the phrase or sentence in which the term appears. ORS 163.425 employs the phrase "and the victim does not consent thereto." Nothing in that phrase, or the sentence in which it appears, or for that matter in the entire section in which the sentence appears, mentions incapacity to consent. The statute merely refers to the necessity of proving a lack of "consent."
The broader context of a statute also includes other statutes in pari materia, that is, on the same subject, the rationale being that, in the absence of evidence to the contrary, it is safe for us to assume that the legislature employs the same terms consistently throughout related statutes. State v. Carr, 319 Or. 408, 412-13, 877 P.2d 1192 (1994). One such statute in this case is ORS 163.415, which sets out the elements of the related crime of sexual abuse in the third degree:
By its terms, ORS 163.415 requires proof that the victim either "did not consent" to the sexual contact or"is incapable of consent" because of his or her age. That disjunctive phrasing suggests that the legislature regarded actual lack of consent to be something distinct from incapacity to consent. If the phrase "does not consent" includes incapacity to consent, the reference to incapacity to consent by reason of the victim's age would be surplusage. As a general rule, we assume that the legislature did not intend any portion of its enactments to be meaningless surplusage. ORS 174.010; Bolt v. Influence, Inc., 333 Or. 572, 581, 43 P.3d 425 (2002).
The disjunctive phrasing of ORS 163.415 also seems significant when it is contrasted with the phrasing of ORS 163.425, which refers only to proof that the victim "did not consent" and which omits any reference to the incapacity to consent phrasing that appears in ORS 163.415. That difference in phrasing recalls another general rule, which is that, when the legislature includes a provision in one section of a statute but omits the provision in another section of the same statute, we assume that the omission was intentional. Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 321 Or. 21, 31, 892 P.2d 1002 (1995).
Other related statutes, however, suggest that determining the intended meaning of ORS 163.425 is not as easy as invoking a few rules of construction. One such related statute is ORS 163.315, which provides:
Certainly, sexual intercourse is a "sexual...
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