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State v. Berry

Court of Appeals of Oregon

September 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DALLAS ROBERT BERRY, aka Dallas Berry, Sr., Defendant-Appellant.

          Submitted February 21, 2017

          Multnomah County Circuit Court 14CR24914; Michael A. Greenlick, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Offce of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Conviction for first-degree criminal mistreatment reversed and remanded; remanded for resentencing; otherwise affirmed.

         Case Summary: Defendant appeals a judgment convicting him of first-degree criminal mistreatment, ORS 163.205, and fourth-degree assault, ORS 163.160. He assigns error to the trial court's jury instruction on the element of criminal mistreatment requiring that the victim be a "dependent person," ORS 163.205(1) (b), because of "either age or a physical or mental disability," ORS 163.205(2) (b). He argues that the court misstated the law when it instructed the jury that a "minor child under the age of 18 is a dependent person." Held: The trial court erred, because a minor is not categorically, because of "age," "dependent upon another to provide for the person's physical needs." ORS 163.205(2)(b). For a young person to be dependent because of "age," the person must be unable to provide for him or herself due to an age-related limitation that prevents the person from reliably meeting his or her physical needs without assistance. The error was not harmless as to the 16-year-old victim here.

         Conviction for first-degree criminal mistreatment reversed and remanded; remanded for resentencing; otherwise affirmed.

          [293 Or.App. 718] DEHOOG, P. J.

         Defendant appeals a judgment convicting him of first-degree criminal mistreatment, ORS 163.205, and fourth-degree assault, ORS 163.160. We write only to address defendant's first assignment of error, in which he argues that the trial court erroneously instructed the jury regarding an element of first-degree criminal mistreatment. Specifically, for purposes of the state's need to prove that the victim was a "dependent person," ORS 163.205(1)(b), the court instructed the jury that "[a] minor child under the age of 18 is a dependent person." We agree that the court's instruction misstated the law and that the error was not harmless. We therefore reverse and remand defendant's conviction for first-degree criminal mistreatment, remand for resentencing, and otherwise affirm.[1]

         The facts necessary to resolve this appeal are largely procedural and undisputed. Defendant's charges involved his 16-year-old daughter, K. At the time of the incident, K lived with defendant at defendant's mother's house and received state assistance in the form of food stamps and free school lunches; her coaches and grandfather also gave her food. Defendant was charged with committing three offenses against K, including first-degree criminal mistreatment.

         As charged in this case, a person commits criminal mistreatment in the first degree if

         "[t]he person, in violation of a legal duty to provide care for a dependent person or elderly person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person, intentionally or knowingly:

         "(A) Causes physical injury or injuries to the dependent person or elderly person[.]"

         ORS 163.205(1Kb).[2] The statute defines "dependent person" as follows:

[293 Or.App. 719] "'Dependent person' means 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).

         Although the uniform jury instruction, UCrJI 1700, tracks that statutory definition, the state requested a special jury instruction adding the language that "a child under the age of 18 is a dependent person." The state argued that any unemancipated minor necessarily qualified as a "dependent person" "because of * * * age." After first "grudgingly agree [ing]" with the state's proposed definition, defendant later took exception to the instruction, arguing that an "accurate statement of the law" would be "that a child under 18 may be a dependent person." (Emphasis added.) Defendant also argued that the state's instruction would "effectively satisf [y] an element of ...


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