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State v. Crow

Court of Appeals of Oregon

September 12, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
KANDI LUCILE CROW, aka Kandi L. Crow, Defendant-Appellant.

          Submitted February 28, 2018

          Josephine County Circuit Court 15CR22393 Thomas M. Hull, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Vanessa Areli, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for 13 counts of unlawful possession of an animal by a person previously convicted of second-degree animal neglect. ORS 167.332(1)(a). Defendant argues that the trial court erred by failing to merge a number of the guilty verdicts for unlawful possession of an animal "because the public is the single collective victim of defendant's violation of ORS 167.332(1)(a) for purposes of merger."

         Held:

         The Court of Appeals concluded that legislature's purpose in enacting the provisions of ORS 167.332(1) (a) was to protect individual animals from suffering. Because the legislature intended each unlawfully possessed animal to be separate victim, the trial court did not err when it entered 13 separate convictions for unlawful possession of an animal.

         Affirmed.

         [294 Or.App. 89] TOOKEY, J.

         This criminal case requires us to determine whether 11 miniature horses, multiple cats, and a dog are separate victims for purposes of merger. Defendant appeals a judgment of conviction for 13 counts of unlawful possession of an animal by a person previously convicted of second-degree animal neglect. ORS 167.332(1)(a).[1] On appeal, defendant raises seven assignments of error. We reject defendant's first assignment of error without further written discussion. In a combined argument pursuant to ORAP 5.45(6), defendant contends in her second through seventh assignments of error that the trial court erred by failing to merge a number of the guilty verdicts for unlawful possession of an animal "because the public is the single collective victim of defendant's violation of ORS 167.332(1)(a) for purposes of merger." We disagree; the legislature's purpose in enacting the provisions of ORS 167.332(1)(a), which prevent a person with convictions for crimes against animals from possessing animals, was to protect individual animals from suffering. And because we conclude that each unlawfully possessed animal is a separate victim, the trial court did not err when it entered 13 separate convictions for unlawful possession of an animal. Accordingly, we affirm.

         A lengthy recitation of the facts of this case will not benefit the bench, the bar, or the public. Within the five years preceding this case, defendant was convicted of multiple counts of second-degree animal neglect involving dogs and miniature horses. Later, following an investigation, defendant was indicted for unlawfully possessing 11 miniature horses, "multiple cats," and a dog. The trial court found defendant guilty of 13 counts of unlawful possession of an animal by a person previously convicted of second-degree animal neglect. At sentencing, defendant argued that the trial court should merge those guilty verdicts because [294 Or.App. 90] animals are not separate victims for purposes of ORS 167.332(1)(a). The trial court rejected defendant's merger argument and entered 13 separate convictions for unlawful possession of an animal.

         On appeal, defendant reprises her argument that "the public is the single collective victim of defendant's violation of ORS 167.332(1)(a)" and, hence, the trial court erred when it entered 13 separate convictions for unlawful possession of an animal. Defendant contends that the unlawful possession of multiple animals under ORS 167.332(1)(a) is analogous to the unlawful possession of multiple firearms by a felon under ORS 166.270. See State v. Torres, 249 Or.App. 571, 578, 277 P.3d 641, rev den, 352 Or. 378 (2012) (because "the legislature acted within its proper authority to restrict the possession of arms by members of a group whose conduct demonstrates an identifiable threat to public safety," the "public is a single collective 'victim' of a violation of ORS 166.270 for purposes of merger" (emphasis in original)).

         Not surprisingly, the state responds that defendant "does not grapple with the fact that animals, unlike firearms, are living beings that can be the victims of crime." The state also argues that "the legislature intended for each animal unlawfully possessed to be considered a separate victim of the crime, justifying separate convictions."[2]

         ORS 161.067(2) provides, in part, "[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." To determine "whether a crime involves 'two or more victims' within the meaning of ORS 161.067(2)," we interpret "the substantive statute defining the relevant crime" by "examin[ing] the text of the pertinent statute in context, and then, to the extent that we find it helpful, we consider legislative history proffered by the parties." State v. Hamilton,348 Or. 371, 376-77, 233 P.3d 432 (2010); see also State v. Moncada,241 Or.App. 202, 212, 250 P.3d 31 (2011), rev den,351 Or. 545 (2012) ("Where the statute defining a crime does [294 Or.App. 91] not expressly identify *** who qualifies as a 'victim,' the court examines the statute to identify the gravamen of the crime and determine * * * whom the legislature intended to directly protect by way of the criminal proscription.")- Thus, "[t]he issue before us is one of statutory construction, which we resolve by applying the familiar principles set out in PGE v. ...


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