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State v. Nix

Supreme Court of Oregon

August 7, 2014

STATE OF OREGON, Petitioner on Review,
ARNOLD WELDON NIX, Respondent on Review

Argued and Submitted September 17, 2013,

On review from the Court of Appeals, CC CRH090155; CA A145386.  [*]

David J. Celuch, argued the cause and filed the brief for petitioner on review.

Jamie K. Contreras, Assistant Attorney General, argued the cause and filed the brief for respondent on review.

Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices.[**]


Page 438

[355 Or. 779] LANDAU, J.

In this criminal case, defendant was found guilty of 20 counts of second-degree animal neglect. ORS 167.325 (2009).[1] Oregon's " anti-merger" statute, ORS 161.067, provides that, when the same conduct or criminal episode violates only one statute, but involves more than one " victim," there are " as many separately punishable offenses as there are victims." The issue in this case is whether defendant is guilty of 20 separately punishable offenses, which turns on the question whether animals are " victims" for the purposes of the anti-merger statute. The trial court concluded that, because only people can be victims within the meaning of that statute, defendant had committed only one punishable offense. The court merged the 20 counts into a single conviction for second-degree animal neglect. On appeal, the Court of Appeals concluded that animals can be victims within the meaning of the anti-merger statute and, accordingly, reversed and remanded for entry of a judgment of conviction on each of the 20 counts and for resentencing. State Nix, 251 Or.App. 449, 283 P.3d 442 (2012). We agree with the Court of Appeals and affirm.

The undisputed facts are aptly summarized by the Court of Appeals:

" Acting on a tip, police officers entered defendant's farm and found dozens of emaciated animals, mostly horses and goats, and several animal carcasses in various states of decay. Defendant owned those animals. Defendant was indicted on 23 counts of first-degree animal neglect, ORS 167.330, and 70 counts of second-degree animal neglect, ORS 167.325. Each separate count identified a different animal and charged conduct by defendant toward that animal. All of the separate counts were alleged to have [355 Or. 780] occurred within the same span of time. A jury convicted defendant of 20 counts of second-degree animal [neglect].
" At defendant's sentencing hearing, the state asked the trial court to impose 20 separate convictions because the jury had found defendant guilty of neglecting 20 different animals. Accordingly, the state argued, the convictions 'do not merge based on [ORS 161.067] (1), (2) and (3).' The trial court disagreed and merged the guilty verdicts into a single conviction, explaining that

" '[ORS 161.067(2)] talks about--although violating only one statutory provision, it involves two or more victims. In this case, I agree with the defendant's position that the animals are not victims, as defined by the statute; by the ORS 161.067(2).

" '*** I don't think that [ORS 161.067(3) ] applies because the animals are not victims under the definition of the statute requiring that to be persons.'

" Defendant was sentenced to 90 days in jail and three years of bench probation; the trial court suspended imposition of the jail sentence, and the state appealed."

Nix, 251 Or.App. at 451-52.

The state appealed, assigning error to the trial court's merger of the 20 counts of second-degree animal neglect. The state argued that, under State Glaspey, 337 Or. 558, 563, 100 P.3d 730 (2004), the term " victim" in the anti-merger statute draws its meaning from the underlying substantive criminal statute that defendant violated. In this case, the state argued, the text, context, and legislative history of the second-degree animal neglect statute make clear that the legislature intended the neglected animals as the victims of the offense.

Defendant argued that the ordinary meaning of the term " victim" does not include non-humans. Animals, he argued, are treated by Oregon law as the property of their owners.

Page 439

In defendant's view, because no statute expressly defines the word to include animals, only persons can be victims under the anti-merger statute.

The Court of Appeals reversed. In brief, the court reasoned that, following this court's instruction in Glaspey, [355 Or. 781] the meaning of the term " victim" as it is used in the anti-merger statute is determined by reference to the underlying substantive criminal statute that defendant violated. 251 Or.App. at 457-58. The court explained that the substantive criminal statute at issue in this case, ORS 167.325, evinces a legislative concern with the well-being of animals. Reviewing the text and history of the statute, the court concluded that, although animals are usually considered the property of persons, ORS 167.325 reflects a broader public interest in " protect[ing] individual animals as sentient beings" by ensuring that such animals receive minimum care and are not abused or neglected. Id. at 460-61.

On review before this court, defendant renews his argument that " the ordinary meaning of the word 'victim' means a 'person,'" not an animal. According to defendant, " [a]nimals are defined as property under Oregon law," and " [t]here is no statute that allows property to be seen as a victim" of a criminal offense. In defendant's view, the victim of an animal neglect case is either the public at large or the owner of the animal.

The state responds that the ordinary meaning of the word " victim" is not as narrow as defendant contends and that, to the contrary, it commonly is used to refer both to animals and to human beings. Moreover, because individual animals directly suffer the harm that is central to the crime of animal neglect, as set out in ORS 167.325, they are the " victims" of that crime. According to the state, the text and history of the statute make clear that the legislature was concerned with the capacity of animals to suffer abuse and neglect. Indeed, the state argues, the legislature expressly structured the animal neglect statutes " such that the degree of the crime corresponds to the extent of the animal's suffering." Thus, in the state's view, the statutes evince a concern to protect more than a general public interest in animal welfare; rather, those statutes reflect the legislature's intention to protect individual animals from suffering.

The issue before us is one of statutory construction, which we resolve by applying the familiar principles set out in PGE Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State Gaines, 346 Or. 160, 171-73, [355 Or. 782] 206 P.3d 1042 (2009). Our goal is to ascertain the meaning of the statute that the legislature most likely intended. Halperin Pitts, 352 Or. 482, 486, 287 P.3d 1069 (2012).

We begin with the text of the statute, in context. Oregon's anti-merger statute provides that, when a defendant is found guilty of committing multiple crimes during a single criminal episode, those guilty verdicts " merge" into a single conviction, unless they are subject to one of a series of exceptions. One of those exceptions is ORS 161.067(2), which provides that, " [w]hen the same conduct or criminal episode, though violating only one statutory provision[,] involves two or more victims, there are as many separately punishable offenses as there are victims." At issue in this case is the meaning of the word " victims" as it is used in that statute.

In the absence of evidence to the contrary, we assume that the legislature intended that the wording of an enactment to be given its ordinary meaning. State Murray, 340 Or. 599, 604, 136 P.3d 10 (2006). The ordinary meaning of the word " victim" reflected in a dictionary of common usage is:

" 1 : a living being sacrificed to some deity or in the performance of a religious rite 2 : someone put to death, tortured, or mulcted by another : a person subjected to oppression, deprivation, or suffering < a ~ of war> < a ~ of intolerance> < fell a ~ to prohibition era gangsters> 3 : someone who suffers death, loss, or injury in an undertaking of his own < became a ~ of his own ambition> 4 : someone tricked, duped, or subjected to hardship : someone badly used or taken advantage of < felt himself the ~ of his brother's shrewdness--W.F. Davis> < little boys, as well as adolescent girls, became the willing ~s of sailors and marines--R.M. Lovett>

Page 440

" syn PREY, QUARRY: VICTIM applies to anyone who suffers either as a result of ruthless design or incidentally or accidentally < the victim sacrificed on these occasions is a hen, or several hens--J.G. Frazer> < was the girl born to be a victim; to be always disliked and crushed as if she were too fine for this world--Joseph Conrad> < lest such a policy precipitate a hot war of which western Europe would be the victim--Quincy Wright> * * *."

[355 Or. 783] Webster's Third New Int'l Dictionary 2550 (unabridged ed 1983).[2]

In that light, it can be seen that defendant's contention that the " plain meaning" of the word " victim" refers only to persons, and not to animals, is predicated on a selective reading of the dictionary definitions. The first sense listed in the definition, for example, refers broadly to " a living being," not solely to human beings. And the synonymy gives as an example of the word " victim" the sacrifice of animals. The ordinary meaning of the word " victim," then, is capable of referring either to human beings, animals, or both.[3]

Illustrative examples of the plain meaning of " victim" to refer to animals are not difficult to locate. Especially in the context of animal cruelty, it is common to refer to animals as " victims." As far back as the mid-nineteenth century, John Stuart Mill referred to the " unfortunate slaves and victims of the most brutal part of mankind; the lower animals." John Stuart Mill, 2 Principles of Political [355 Or. 784] Economy: With Some of Their Applications to Social Philosophy 579 (1864). Rachel Carson complained of cruelty to all, " whether its victim is human or animal." Letter from Rachel Carson to Oxford University Press, (undated) (on file with Yale University Library). A headline from an early New York Times article referred to " Animal Victims of Railroad Trains." N Y Times, Oct 11, 1914, at 77. A more recent article from 1982 on a series of hunting photographs from India mentioned pictures of " animal victims." Images of India, N Y Times, April 25, 1982. A 1992 article from the Chicago Tribune similarly is headlined, " Pair Heading to Bosnia to Aid Animal Victims of War." Chi Trib, Oct 6, 1992. Closer to home, an article in the Oregon State Bar Bulletin reported that, " [t]he Oregon Legislature has repeatedly and consistently articulated a strong public policy favoring the aggressive prosecution of animal cruelty cases by enacting statutes requiring police officers to make arrests in cases of animal abuse and to pay for and provide care to victim animals." Full-Time Prosecutor to Litigate Animal Cruelty Cases Statewide, Or State Bar Bulletin, May 2013.

Page 441

Having established the common, ordinary meaning of the term " victim," the question is whether anything in the statute at issue suggests that the legislature meant something different. Certainly nothing in the wording of ORS 161.067(2) suggests that the word " victim" cannot refer to animals. If anything, the phrasing of the statute--which refers to the violation of another statutory provision--suggests that the meaning of the word " ...

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