Submitted August 20, 2013
Washington County Circuit Court C111190CR. Kirsten E. Thompson, Judge.
Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.
[265 Or.App. 324] DE MUNIZ, S. J.
Defendant appeals a judgment of conviction for felony assault in the fourth degree. ORS 163.160(3). Defendant assigns two errors: (1) the trial court's denial of his motion for judgment of acquittal on the ground that the state failed to prove that defendant had been " previously convicted" of assaulting the victim, and (2) the trial court's imposition of restitution when the state failed to present any evidence regarding the victim's economic damages before sentencing. Because defendant did not preserve his argument concerning restitution, we reject that assignment of error without discussion. As to defendant's first assignment, we affirm.
The relevant facts are not in dispute. On October 31, 2010, defendant and the victim got into a dispute in which defendant pushed the victim and she hit her head on a door. As a result of that incident, defendant was charged with and pleaded guilty to assault in the fourth degree. Defendant was permitted to enter a deferred sentencing program. Later, on June 4, 2011, defendant and the victim again got into a scuffle in which defendant pushed the victim into a television, causing the victim to hurt her back and knee. As a result, defendant was charged with
felony assault in the fourth degree, in violation of ORS 163.160(3).
On appeal, defendant contends that the legislature intended the words " has previously been convicted" to mean as evidenced by a final judgment, otherwise the legislature would have included in the text the words, " verdict of guilt," " finding of guilt," or " adjudication of guilt." In response, the state asserts that the word " convicted" has two accepted meanings and that the legislature intended the word " convicted" in the statute to include a " finding of guilt" that may precede the more formal entry of a judgment of conviction.
[265 Or.App. 325] Because the issue is one of statutory construction, we employ the usual interpretive methodology, first considering the statute's text and context--including other related statutes and case law--legislative history if helpful, and maxims of construction only if necessary. See State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009), (begin with text and context, consider legislative history when helpful, and resort to maxims of statutory construction only if necessary).
ORS 163.160(3)(a) does not define the word " convicted." In Webster's Third New Int'l Dictionary 499 (unabridged ed 2002) the term conviction is defined, in relevant part, as either " the act of proving, finding, or adjudging a person guilty of an offense or crime," or " the proceeding of record by which a person is legally found guilty of any crime."
Consistent with the alternative meanings found in the dictionary, the Oregon Supreme Court has explained that the word " convicted" ...