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State v. Ferguson

Court of Appeals of Oregon

March 5, 2014

STATE OF OREGON, Plaintiff-Appellant,
v.
ROBERT FERGUSON, aka Robert Andrew Ferguson, Defendant-Respondent

Argued and Submitted: July 29, 2013.

Multnomah County Circuit Court. 110431339. Judith H. Matarazzo, Judge.

Karla H. Ferrall, Assistant Attorney General, argued the cause for appellant. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Daniel C. Bennett, Deputy Public Defender, argued the cause for respondent. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

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

OPINION

Page 497

[261 Or.App. 499] SERCOMBE, J.

Defendant damaged a truck that belonged to his former employer, and the state charged him with first-degree criminal mischief, ORS 164.365, and harassment, ORS 166.065. After the employer acknowledged that he had received satisfaction for his injuries, defendant moved to dismiss the charges pursuant to ORS 135.703 to 135.709, which allow dismissal of criminal charges after civil compromise with " the person injured by the act constituting the crime" in certain circumstances. The trial court granted defendant's motion and entered a judgment of dismissal. The state appeals, contending that the trial court erred in dismissing the charges because the employer's insurer was a " person injured" and it did not acknowledge satisfaction for injuries it suffered by defendant's criminal actions. Because we conclude that the civil compromise statutes do not require that an insurer acknowledge satisfaction of its injuries before a trial court may allow a civil compromise, we affirm.

The facts are undisputed, except as noted. Defendant worked for a business owned by Dave Heffner. After defendant's employment ended, he " took a tire iron to" Heffner's truck. The state charged defendant with criminal mischief and harassment by an information alleging that defendant had damaged Heffner's property. Repairs to the truck cost $7,821, for which Northland Insurance (Northland) paid $6,821--the cost of the repairs minus a $1,000 deductible.[1] Heffner signed a civil compromise agreement accepting $2,500 from defendant as satisfaction of the injury incurred. Northland was not a party to that or any other civil compromise agreement with defendant. Defendant then moved to dismiss the charges under ORS 135.703 to 135.709. The trial court granted the motion and entered a judgment of dismissal. As noted, the state appeals.

[261 Or.App. 500] ORS 135.703(1) provides:

" When a defendant is charged with a crime punishable as a misdemeanor for

Page 498

which the person injured by the act constituting the crime has a remedy by civil action, the crime may be compromised, as provided in ORS 135.705[.]"

ORS 135.705(1)(a), in turn, provides:

" If the person injured acknowledges in writing, at any time before trial on an accusatory instrument for the crime, that the person has received satisfaction for the injury, the court may, in its discretion, on payment of the costs and expenses incurred, enter a judgment dismissing the accusatory instrument."

Thus, the civil compromise statutes allow courts to dismiss criminal charges if four conditions are met: (1) the defendant is charged with a crime punishable as a misdemeanor, (2) the person injured by the act constituting the crime has a remedy by civil action, (3) the person injured acknowledges in writing before trial that the person has received satisfaction for the injury, and (4) the defendant pays costs and expenses incurred. See State v. Dumond, 18 Or.App. 569, 574, 526 P.2d 459, rev'd on other grounds, 270 Ore. 854, 530 P.2d 32 (1974) (setting out the same four conditions).

The parties dispute the third condition. Defendant contends that only a direct victim of a crime is a " person injured" for purposes of the civil compromise statutes, and so in this case only Heffner was required to participate in the civil compromise. The state, on the other hand, contends that the legislature intended that " person[s] injured" include those who suffered damages indirectly as a result of a crime, and so Northland also had to participate in the civil compromise.

To determine whether an insurer who has paid a victim for damage inflicted by a criminal act is a " person injured" for purposes of the civil compromise statutes, we must construe ORS 135.703 and ORS 135.705. When construing statutes, we examine their text in context, along with any relevant legislative history, to discern the legislature's intent. State v. Gaines, 346 Ore. 160, 171-72, 206 P.3d 1042 (2009).

[261 Or.App. 501] The legislature has not defined " person injured" in the civil compromise statutes, nor has it chosen to use the arguably similar term " victim." [2] The civil compromise statutes have existed, in essentially similar form, since the time of the Deady Code. General Laws of Ore.egon, Crim Code, ch XXX, § § 315-318, pp 495-96 (Deady 1845-1864). The Deady Code referred to " the person injured by the act constituting the crime" in the precursor to ORS 135.703 and to " the party injured" in the precursor to ORS 135.705. Id. at § § 315, 316, pp 495-96. Accordingly, we attempt to discern what the legislature would have understood " person injured" or " party injured" to mean in 1864.

The Deady Code defined neither " person injured" nor " party injured," but defined " person" as follows:

" The word 'person,' includes corporations as well as natural persons; and where such word is used to designate the party whose property may be the subject of a crime, it includes this state, any other state, government or country, which may lawfully own any property in this state, and all municipal or public corporations, and private corporations, as well as individuals."

General Laws of Oregon, Crim Code, ch LIII, § 724, p 577 (Deady 1845-1864). The Deady Code also provided that " [t]he singular number includes the plural, and the plural the singular." Id. at § 725, p 577. Accordingly, 1864 statutory references to a " person" may include one or more individuals or corporations. Current statutory provisions are to the same effect. ORS 174.100(5) (" person" includes individuals, corporations, associations, firms, partnerships, limited liability companies, and joint stock companies); ORS 174.127(1) (the singular number may include the plural).

The Deady Code did not use the term " victim," but it used the terms " person injured"

Page 499

or " party injured" in both civil and criminal contexts:

" If a guardian, tenant in severalty or in common, for life or for years, of real property, commit waste thereon, any [261 Or.App. 502] person injured thereby, may maintain an action at law for damages therefor, against such guardian or tenant[.]"

General Laws of Oregon, Civ Code, ch IV, title II, § 334, pp 231-32 (Deady 1845-1864).

" When a public officer, by official misconduct or neglect of duty, shall forfeit his official undertaking or other security, or render his sureties therein liable upon such undertaking or other security, any person injured by such misconduct or neglect, who is by law entitled to the benefit of the security, may maintain an action at law thereon in his own name, against the officer ...

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