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State v. Fitzhugh

Court of Appeals of Oregon

December 26, 2013

STATE OF OREGON, Plaintiff-Respondent,

Argued and submitted on September 24, 2013.

Clatsop County Circuit Court 101231 Philip L. Nelson, Judge.

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


Defendant appeals his conviction for murder by abuse, ORS 163.115(1)(c).[1] One of the charged elements of that crime is that the victim have been a "dependent person, " defined as "a person who because of either age or a physical or mental disability is dependent upon another to provide for the person's physical needs." ORS 163.205(2)(b). At issue in this appeal is whether the victim had a "physical * * * disability" as that term is used in ORS 163.205(2)(b). In the trial court, defendant stipulated to the following facts: he assaulted the victim (his girlfriend); the injuries that he inflicted left her incapacitated for several days and ultimately caused her death; he did not seek medical care for her until shortly before she died; and, had she received medical care sooner, she might have lived. Nonetheless, defendant contends that the victim did not have a "physical disability" because, he argues, that term is limited to sustained or permanent conditions and does not include what he characterizes as a "transitory injury that makes a person temporarily reliant on another for help in performing the functions of daily life." (Emphasis added.) Accordingly, defendant argues, he was entitled to a judgment of acquittal on the charge of murder by abuse.

As explained below, we conclude that the term "physical disability" is not limited to disabilities that are permanent or enduring. Rather, the only temporal constraint to be found in the definition of "dependent person" is in the requirement that the person's mental or physical disability have rendered the person "dependent upon another" for some period of time. In this case, a factfinder could infer from the stipulated facts that the victim had a physical disability that left her completely reliant on defendant for a period of at least two days before she died. Such a finding would establish that the victim was a "dependent person" during that period of time. Accordingly, defendant was not entitled to a judgment of acquittal, and we affirm.

As noted, the facts are not in dispute.[2] Defendant and the victim lived together in Astoria. Between April and July 2010, the victim sought medical attention several times for injuries consistent with domestic violence, giving explanations that the examining doctors found unconvincing. At the last of those medical visits, on July 23, the victim received a prescription for Vicodin but did not immediately have the prescription filled.

On the morning of July 25, 2010, a neighbor, Kidwell, heard a commotion at the apartment in which defendant and the victim lived, and he knocked on the apartment door. Defendant told him through the closed door that everything was all right. Kidwell heard the victim making a "gurgling" sound. Later in the day, defendant called Kidwell and told him that he had discovered that the victim had been having an affair and that he had hurt her "really bad." Defendant told Kidwell that he had taken the victim to the hospital and that she was currently in bed at home. Defendant had not actually taken the victim to the hospital.

The next day, defendant went to Kidwell's apartment and talked to Kidwell and his girlfriend, Harris. Defendant repeated what he had told Kidwell the day before and added that the police had handcuffed him at the hospital but could not arrest him because the victim told them that she had been injured in a "four-wheeler accident on the beach." Harris went with defendant to see the victim, who was lying on her bed. According to Harris, the victim's entire face, into her hairline, was black with bruises, as well as her ear and around her neck. Her face was so swollen that one eye was completely shut and her nose "almost came out to the edges of her eyes." The victim's other eye was "glossy" and "jumping all over, " and the victim could not focus. She told Harris, "Everything is okay." Her voice was rough and raspy, and Harris could hear a gurgling sound coming from her. In addition, the victim "smelled like she hadn't showered in a while" and had greasy hair. Harris, who had worked in nursing homes for the last 17 years, was very concerned about the victim, but, because defendant had told her and Kidwell that he had taken the victim to the hospital and that the police had been involved, they did not report the victim's condition to anyone.

Two days later, on July 28, defendant noticed that the victim's speech had started to become slurred. He told Kidwell and Harris that he had seen a doctor "walking around" the neighborhood, knew that the person was a doctor because he "had a doctor's bag, " and asked him to see the victim, which, according to defendant, the doctor did. In the investigation that followed the victim's death, no evidence corroborating defendant's story was found.

The next day, defendant and the victim went to their bank and then to a pharmacy, where the victim filled the prescription for Vicodin that she had received on July 23. Later, they went to the management office of their apartment complex to pay the rent. The victim walked slowly with her hands in front of her as if she was having trouble balancing.

On July 30, two Coast Guardsmen helped defendant jumpstart the victim's car. The victim looked sick and remained in the passenger seat the entire time, but she was smoking a cigarette. Defendant told the Coast Guardsmen that the victim was a patient at the hospital and that he ...

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