State v. Nix ( 2014 )

No. 50 August 7, 2014 777
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
ARNOLD WELDON NIX,
Respondent on Review.
(CC CRH090155; CA A145386; SC S060875)
On review from the Court of Appeals.*
Argued and submitted September 17, 2013.
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.**
LANDAU, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded for entry of separate convictions on each guilty
verdict for a violation of ORS 167.325 and for resentencing.
____________
**  Appeal from Umatilla County Circuit Court, Jeffrey M. Wallace, Judge.
251 Or App 449, 283 P3d 442 (2012).
**  Brewer, J., did not participate in the consideration or decision of this case.
778 State Nix
Defendant was found guilty and convicted of 20 counts of second-degree
animal neglect. ORS 167.325 (2009). The trial court merged those convictions
into a single conviction after determining that animals are not “victims” under
Oregon’s anti-merger statute, ORS 161.067(2). The state appealed and the Court
of Appeals reversed, reasoning that animals can be considered “victims” of ani-
mal neglect for purposes of the anti-merger statute. Held: The ordinary meaning
of the word “victim” as it is used in ORS 161.067(2) can include both human and
non-human animals. This court’s cases construing the term “victim” as it is used
in that statute hold that, in fact, the meaning of the term is not to be found in
an analysis of ORS 161.067(2) itself, but rather, it derives from the underlying
substantive criminal statute that defendant has been found to have violated. A
person violates ORS 167.325 by failing to provide minimum care to “an animal.”
It is the animal itself that “suffers harm that is an element of the offense,” and
therefore, it is the animal that is considered the “victim” of second-degree animal
neglect for purposes of the anti-merger statute.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded for entry of separate convictions on
each guilty verdict for a violation of ORS 167.325 and for resentencing.
Cite as 355 Or 777 (2014) 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, pro-
vides that, when the same conduct or criminal episode vio-
lates 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 convic-
tion 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 v. Nix,
251 Or App 449, 283 P3d 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
1
ORS 167.325 was amended in 2013. Or Laws 2013, ch 719. The new law
includes findings that “[a]nimals are sentient beings capable of experiencing
pain, stress and fear” and that “[a]nimals should be cared for in ways that min-
imize pain, stress, fear and suffering.” Id. § 1. It also increases the penalty for
second-degree animal neglect if, among other things, “the offense was part of a
criminal episode involving 11 or more animals.” Id. § 4(3)(b). The amendments
do not apply to this case, and we refer to the 2009 version of the law—the law
that applied when defendant committed the offenses—throughout this opinion.
We also express no opinion about the effect of the 2013 amendments on the issue
presented in this case.
780 State Nix
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 sin-
gle conviction, explaining that
“  ‘[ORS 161.067(2)] talks about—although violating
only one statutory provision, it involves two or more vic-
tims. In this case, I agree with the defendant’s position
that the animals are not victims, as defined by the stat-
ute; by the ORS 161.067(2).
“  *  I don’t think that [ORS 161.067(3) ] applies
‘*  *
because the animals are not victims under the defini-
tion 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 imposi-
tion 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 v. Glaspey, 337
Or 558, 563, 100 P3d 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 his-
tory 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. 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,
Cite as 355 Or 777 (2014) 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 substan-
tive 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 con-
cluded that, although animals are usually considered the
property of persons, ORS 167.325 reflects a broader pub-
lic 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 suffer-
ing.” Thus, in the state’s view, the statutes evince a concern
to protect more than a general public interest in animal wel-
fare; 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 v. Bureau of Labor and Industries, 317 Or 606,
610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or
782 State Nix
160, 171–73, 206 P3d 1042 (2009). Our goal is to ascertain
the meaning of the statute that the legislature most likely
intended. Halperin v. Pitts, 352 Or 482, 486, 287 P3d 1069
(2012).
We begin with the text of the statute, in context.
Oregon’s anti-merger statute provides that, when a defen-
dant 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 enact-
ment to be given its ordinary meaning. State v. Murray, 340
Or 599, 604, 136 P3d 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 perfor-
mance of a religious rite 2 : someone put to death, tortured,
or mulcted by another : a person subjected to oppression,
deprivation, or suffering
3 : someone who
suffers death, loss, or injury in an undertaking of his own
4 : someone tricked,
duped, or subjected to hardship : someone badly used or
taken advantage of
“syn PREY, QUARRY: VICTIM applies to anyone who suf-
fers either as a result of ruthless design or incidentally or
accidentally * * *.”
Cite as 355 Or 777 (2014) 783
Webster’s Third New Int’l Dictionary 2550 (unabridged ed
1983).2
In that light, it can be seen that defendant’s conten-
tion 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 “vic-
tim” 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
2
Other dictionaries offer similar definitions. The Oxford dictionary, for
example, defines “victim” as, among other things, “[a] living creature killed and
offered as a sacrifice” and “[o]ne who is reduced or destined to suffer under some
oppressive or destructive agency” and includes as an example of the latter sense
a literary quotation that refers to an animal as a victim: “We . . . even went to the
length of fixing upon one useless, toothless old fellow [sc a dog] as a victim to our
appetites, in case of extremity.” XIX Oxford English Dictionary 607 (2d ed 1989)
(alternation in original; internal quotation marks and citation omitted). See also
The American Heritage Dictionary 1990 (3d ed 1992) (“One who is harmed or
killed by another *  * A living creature slain and offered as a sacrifice”). The
*
definition of “one,” it should be noted, is not limited to human beings. See, e.g.,
Webster’s at 1575 (“a single unit or entire being or thing”); X Oxford at 805 (“[a]
person or being whose identity is left undefined”).
3
The idea of animals being regarded as “victims” is not a new one. Animals
as Offenders and Victims, 21 Alb LJ 265, 266 (1880) (recounting the history of
animal welfare laws in Europe and noting that eventually legislation prohibited
cruelty to animals “not out of regard to the owner, but in mercy to the creature
itself”). In a related vein, there are records of legal proceedings being brought
against animals as named parties to legal proceedings as early as the Middle
Ages in Europe and as recently as the twentieth century in this country, which
reflect that animals often have been treated, as least for some purposes, as per-
sons. See generally Jen Girgen, The Historical and Contemporary Prosecution
and Punishment of Animals, 9 Animal L 97 (2003) (recounting criminal prose-
cutions of pigs, cows, bulls, horses, mules, oxen, goats, sheep, and dogs, among
others, dating at least from the thirteenth century); see also Edward P. Evans,
The Criminal Prosecution and Capital Punishment of Animals (1987); Paul Schiff
Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in
the Prosecution of Animals and Inanimate Objects, 69 NYU L Rev 288 (1994).
784 State Nix
Economy: With Some of Their Applications to Social
Philosophy 579 (1864). Rachel Carson complained of cru-
elty 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.
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 some-
thing 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 “victim” will depend
on the underlying substantive statute that the defendant
violated.
The legislative history sheds no light on the matter.
The wording of ORS 161.067(2) can be traced to 1985, when
Senate Bill 257 was introduced at the request of the Oregon
Department of Justice on behalf of the Oregon District
Attorneys Association. The bill was intended
“to address two related problems which have caused crimi-
nal law practitioners and the courts consternation for quite
some time. The first issue is how many judgments of con-
viction a court may enter when a criminal defendant has,
during an episode, violated several statutes, injured several
Cite as 355 Or 777 (2014) 785
victims or violated the same statute against the same vic-
tim several times. The second issue concerns the question
of when a court may sentence a defendant convicted of mul-
tiple crimes to consecutive sentences.”
Staff Measure Analysis, Senate Judiciary Committee, SB
257, 1985. Up to that time, no statute existed to guide the
courts about how to enter judgments when a single criminal
episode might provide grounds for multiple convictions and
sentences. See generally State v.Cloutier, 286 Or 579, 582-85,
596 P2d 1278 (1971) (noting incomplete legislative direc-
tion regarding possible “multiple consequences” of a “single
criminal act”). SB 257 was proposed to provide the courts
that needed direction. State v. Crotsley, 308 Or 272, 276-78,
779 P2d 600 (1989) (discussing legislative history of for-
mer ORS 161.062). The House voted in favor an amended
version of SB 257, which the legislature ultimately adopted
and codified at former ORS 161.062(2). Id. As enacted, the
new law provided in part that, “when the same conduct
or criminal episode violates only one statutory provision,
but involves two or more victims, there are as many sepa-
rately punishable offenses as there are victims.” Or Laws
1985, ch 722, § 4(2). Nothing in the legislative history men-
tions any concern with the definition of the word “victim,”
however.
The following year, a “crime victims’ bill of rights”
was adopted by initiative as Ballot Measure 10 (1986). The
measure recognized the rights of crime victims at trial, at
sentencing, and after sentencing. For example, Measure 10
amended ORS chapter 136 to require the trial court to take
the victim into account in setting a trial date; it amended
ORS 40.385 to provide that trial courts are not authorized
to exclude victims from the court; it amended ORS 136.060
to require the trial court to take into consideration the
crime victim’s interest in determining whether to try jointly
charged defendants together; it amended ORS chapter 137
to recognize a crime victim’s right to appear at sentencing; it
amended ORS 137.101 to require courts to liberally construe
restitution statutes in favor of victims; it amended ORS
144.120 to require the Parole Board to attempt to notify
the crime victim in advance of any parole hearings and to
recognize a right of the victim to appear at such hearings;
786 State Nix
and it amended ORS 144.260 to require the Parole Board to
provide the victim advance notice of any release decision. Or
Laws 1987, ch 2.
Significantly for our purposes, Measure 10 also
added the anti-merger provision to ORS chapter 161 that
is now ORS 161.067(2): “When the same conduct or crimi-
nal episode, though violating only one statutory provision[,]
involves two or more victims, there are as many separately
punishable offenses as there are victims.” Id. § 13. That pro-
vision is nearly identical to what the legislature had just
enacted the year before as former ORS 161.062(2). In fact,
the source of the wording of the ballot measure provision
was SB 257 (1985). Crotsley, 308 Or at 276 n 3 (noting that
both ORS 161.062 and ORS 161.067 “derived from a com-
mon source”).4
Ordinarily, when legislation has been essentially
reenacted with no material change, we assume—in the
absence of evidence to the contrary—that no change in
meaning was intended. See, e.g., Carter v. US National
Bank, 304 Or 538, 544, 747 P2d 980 (1987) (“[t]here is no
indication that the legislature intended any substantive
change when it repealed former ORS 17.605 and reenacted
it as ORCP 64A”), overruled on other grounds by Assoc. Unit
Owners of Timbercrest Condo. v. Warren, 352 Or 583, 288
P3d 958 (2012); Kingery v. Dept. of Revenue, 276 Or 241,
247, 554 P2d 471 (1976) (“[t]here is no evidence that the leg-
islature intended any change in its prior statutory direction
* * * by its substitution of the words ‘true cash value’ for the
words ‘full and true value’ when it reenacted” the statute).
In this case, nothing in that history of Measure 10 suggests
that the duplicate provision was intended to have a meaning
different from what the legislature had just enacted.
4
As this court explained in Crotsley, 308 Or at 276, the same anti-merger
statute, in effect, “was enacted twice,” first by the legislature and second by ini-
tiative. Both provisions remained in the Oregon Revised Statutes for the next
13 years, during which time courts referred to the two statutes as being essen-
tially interchangeable. In 1999, the legislature repealed former ORS 161.062, Or
Laws 1999, ch 136, § 1, on the recommendation of the Oregon Law Commission,
which explained that the enactment of ORS 161.067, with its nearly identi-
cal wording, had rendered the older statute obsolete. Tape Recording, Senate
Committee on Judiciary, HB 2277, Feb 1, 1999, Tape 20, Side A (Statement of
Rep. Lane Shetterly).
Cite as 355 Or 777 (2014) 787
To be sure, other provisions of Measure 10 appear
to assume that “victim” refers to persons. After all, provi-
sions relating to the rights of victims to appear in court, to
obtain restitution, and to be heard at sentencing and Parole
Board hearings would be difficult to apply were “victims”
to include non-human animals. The measure itself provides
a definition of “victim” as “the person or persons who have
suffered financial, social, psychological or physical harm
as a result of a crime.” Or Laws 1987, ch 2, § 17 (emphasis
added.)
But that definition expressly applies only to certain
provisions in the measure, specifically, those that amended
“ORS 40.385 and * * * ORS Chapters 136, 137, and 144.” Id.
The definition of “victim” as a person does not apply to the
anti-merger statute. Consequently, just as with former ORS
161.062(2), the otherwise undefined reference to “victim”
in ORS 161.067(2) must draw its meaning from some other
source.
Two of this court’s decisions interpreting ORS
161.067(2) hold precisely that. The first is Glaspey. In that
case, the defendant was found guilty of two counts of fel-
ony assault in the fourth degree, based on the fact that he
had assaulted his wife in the presence of his two children.
337 Or at 560. Under ORS 163.160(3), the offense of fourth-
degree assault, ordinarily a misdemeanor, is categorized a
Class C felony if it is committed in the presence of, among
other things, “the victim’s minor child.” The state argued
that, because minor children who witness assaults suffer a
variety of harms, each of the two children who witnessed
defendant assaulting his wife were “victims,” thus justifying
separate convictions under ORS 161.067(2).
This court rejected that argument. The court
explained that, regardless of whether the children might
have been “victims” in some sense, what counts for the
purposes of ORS 161.067(2) is whether they were victims
under the substantive criminal statute that the defendant
violated:
“When the statute speaks of criminal conduct that ‘vio-
late[s] only one statutory provision,’ it necessarily refers to,
and depends upon, some statute other than itself. That is,
788 State Nix
it refers to the substantive criminal laws that define par-
ticular criminal offenses. It follows that the statutory ref-
erence to ‘victims’ in the phrase ‘[w]hen the same conduct
* * * involves two or more victims’ also must refer to victims
within the meaning of the substantive statute that defines
the relevant crime.”
Id. at 563. The court then turned its attention to “whether
the child witnesses described in ORS 163.160(3)(c) are vic-
tims of the crimes that that statute defines.” Id. The court
noted that, ordinarily, a “victim” is one “who suffers harm
that is an element of the offense.” Id. at 565. The underly-
ing substantive statute may use the term “victim,” but, even
then, that is regarded as “context” for the purposes of deter-
mining the controlling question of legislative intent. Id. at
566. In that particular case, the court explained, the word-
ing of the statute in context compelled the conclusion that
the legislature considered the “victim” to be the person who
is physically assaulted, not the children. Id. at 565.
The second case is State v. Hamilton, 348 Or 371,
233 P3d 432 (2010). In that case, the defendant was found
guilty of seven counts of first- and second-degree robbery,
based on an incident in which the defendant robbed a bar at
gunpoint in the presence of the owner, two employees, and
four customers. Id. at 373-74. The defendant argued that
the multiple robbery counts should have merged into a sin-
gle conviction, because he committed only a single robbery
against the bar owner. Id. The state argued that each of the
witnesses to the robbery was a victim and, as a result, sep-
arate convictions were appropriate under ORS 161.067(2).
Hamilton, 348 Or at 376.
This court agreed with the state. Citing Glaspey,
the court began by stating that, “[i]n analyzing whether a
crime involves ‘two or more victims’ within the meaning of
ORS 161.067(2), this court determines who qualifies as a
‘victim’ by interpreting the substantive statute defining the
relevant crime.” Hamilton, 348 Or at 376. Turning to the
text, context, and legislative history of the robbery statutes,
the court concluded that the “victim” of a robbery includes
any person against whom a defendant uses or threatens vio-
lence in the course of committing a theft, not only the owner
of the property. Id. at 377-79.
Cite as 355 Or 777 (2014) 789
To summarize our analysis so far: The ordinary
meaning of the word “victim” as it is used in ORS 161.067(2)
can include both human and non-human animals, and noth-
ing in the text, context, or legislative history of the stat-
ute necessarily precludes an animal from being regarded
as such. This court’s cases construing the term “victim” as
it is used in that statute hold that, in fact, the meaning of
the term is not to be found in an analysis of ORS 161.067(2)
itself, but rather, it derives from the underlying substan-
tive criminal statute that defendant has been found to have
violated.
Whether each of the animals that defendant
neglected was a “victim” for the purposes of the anti-merger
statute, then, depends on whether the legislature regarded
them as such for the purposes of the substantive offense of
second-degree animal neglect. More particularly, it depends
on “who suffers harm that is an element of the offense.”
Glaspey, 337 Or at 565. We turn to that issue.
ORS 167.325 (2009) provides:
“A person commits the crime of animal neglect in the sec-
ond degree if, except as otherwise authorized by law, the
person intentionally, knowingly, recklessly or with crimi-
nal negligence fails to provide minimum care for an animal
in such person’s custody or control.”
An “animal” means “any nonhuman mammal, bird, reptile,
amphibian or fish.” ORS 167.310(1) (2009). “Minimum care”
refers to “care sufficient to preserve the health and well-being
of an animal and, except for emergencies or circumstances
beyond the reasonable control of the owner, includes, but is
not limited to,” such requirements as food, water, shelter,
and reasonably necessary veterinary care. ORS 167.310(7)
(2009). For domesticated animals, “minimum care” also
includes access to adequate shelter, continuous access to an
area that is adequate for “exercise necessary for the health
of the animal,” being kept at a “temperature suitable for the
animal,” and being “[k]ept reasonably clean and free from
excess waste or other contaminants that could affect the
animal’s health.” Id.The phrasing of the offense reveals that the leg-
islature’s focus was the treatment of individual animals,
790 State Nix
not harm to the public generally or harm to the owners of
the animals. The offense is committed by failing to provide
required care to “an animal,” regardless of who owns it. The
required care includes the minimum necessary “to preserve
the health and well-being” of that animal. It is the indi-
vidual animal that “suffers harm that is an element of the
offense.” Glaspey, 337 Or at 565.
The larger context of the statutory offense confirms
that the legislature’s focus is on the treatment of individual
animals. Second-degree animal neglect is a component of a
more comprehensive set of offenses concerning the care of
animals, offenses that are structured to correspond to the
extent of an animal’s suffering. The statutes begin with ani-
mal neglect in the second degree, which, as we have noted,
is committed when a person fails to provide minimum
care. When the person’s failure to provide minimum care
“results in serious physical injury or death to the animal,”
that person commits animal neglect in the first degree.
ORS 167.330. When a person “intentionally, knowingly, or
recklessly causes physical injury to an animal,” that person
commits the offense of animal abuse in the second degree.
ORS 167.315. And when a person intentionally, knowingly,
or recklessly causes “serious physical injury” or “[c]ruelly
causes the death of an animal,” that person commits ani-
mal abuse in the first degree. ORS 167.320. Finally, when
a person “[m]aliciously kills an animal” or “[i]ntentionally
or knowingly tortures an animal,” that person commits the
offense of aggravated animal abuse in the first degree, a
Class C felony. ORS 167.322.
In each instance, the offense is committed against
“an animal,” and the relative seriousness of the offense is
gauged in accordance with the relative degree of harm to
or suffering of that animal. If the animal suffers a lack of
minimum care, the offense is second-degree animal neglect.
But if the animal is subjected to torture, the offense is felony
aggravated animal abuse. In any reasonable sense of the
word, the “victim” of those offenses is the individual animal
that suffers the neglect, injury, cruelty, torture, or death.
Other aspects of the larger statutory scheme similarly
confirm the legislature’s focus on the suffering of individual
Cite as 355 Or 777 (2014) 791
animals. ORS 167.350, for example, provides that, in addi-
tion to other penalties that a court may impose for violations
of the animal cruelty laws, the court may order the forfei-
ture of a defendant’s rights in the animal. ORS 167.350(1).
The same statute provides that, if a court orders such a for-
feiture, it may further order “that the rights be given over
to an appropriate person or agency demonstrating a will-
ingness to accept and care for the animal.” ORS 167.350(2).
The statute also provides that a court may also require the
owner to repay the reasonable costs incurred by any person
or agency caring for the animal during the pendency of the
charges. In each instance, again, the focus is on the care of
the animal who has suffered the harm of neglect or abuse.
ORS 167.350(3)
The legislative history of ORS 167.325, particu-
larly in the larger context of the history of animal cruelty
legislation, confirms what our textual analysis so strongly
suggests. At common law, cruelty to animals did not consti-
tute an offense. See State v. Bruner, 12 NE 103, 104 (1887)
(“There is a well-defined difference between the offense of
malicious or mischievous injury to property, and that of cru-
elty to animals. The former constituted an indictable offense
at common law, while the latter did not.”); State v. Beekman,
27 NJL 124, 125 (1858) (“The general rule is that no injuries
of a private nature [including wounding an animal], unless
they some way concern the king or affect the public, are
indictable at common law.”).
The first animal cruelty legislation on this conti-
nent can be traced to the Puritan “Body of Liberties” from
the Massachusetts Bay Colony, which prohibited cruelty to
“any bruite [sic] Creature which are usuallie [sic] kept for
man’s use.” Massachusetts Body of Liberties § 92 (Ward
1641); Thomas G. Kelch, A Short History of (Mostly) Western
Animal Law: Part II, 19 Animal L 347, 350 (2013) (quoting
Body of Liberties). By its terms, the law protected the ani-
mals only as property of their owners, and even then, only
as to commercially valuable animals that were “usuallie
kept for man’s use.”
That view of animals as the property of their owners,
and subject to protection only as such, is reflected in animal
792 State Nix
cruelty legislation adopted by the states throughout the next
several centuries. See generally David Favre & Vivian Tsang,
The Development of Anti-Cruelty Laws During the 1800s,
1 Det C L Rev 1 (1993); Deborah J. Challener, Protecting Cats
and Dogs in Order to Protect Humans: Making the Case for
a Felony Companion Animal Statute in Mississippi, 29 Miss
C L Rev 499, 501 (2010) (“Although these laws afforded some
protection to certain kinds of animals, their primary focus
was not animal welfare. Instead, animal cruelty was crim-
inalized in order to (1) protect the property rights of those
who owned commercially valuable animals, such as cows,
horses and oxen; and (2) prevent harm to human beings.”).
In the nineteenth through the twentieth centu-
ries, some states began to pass anti-cruelty laws that were
intended to deter immoral conduct; the emphasis still was
not on protecting the animals themselves. See, e.g., Johnson
v. District of Columbia, 30 App DC 520, 522 (DC 1908) (pre-
vention of animal cruelty “is in the interest of peace and
order and conducive to the morals and general welfare of
the community”); see also Gary L. Francione, Animals,
Property and Legal Welfarism: “Unnecessary” Suffering and
the “Humane” Treatment of Animals, 46 Rutgers L Rev 721,
754 (1994) (“the purpose of the statutes is to improve human
character not to protect animals”). The 1962 Model Penal
Code provision on animal cruelty, for example, provided:
“A person commits a petty misdemeanor if he purposely
or recklessly:
“(1)  subjects any animal to cruel mistreatment; or
“(2)  subjects any animal in his custody to cruel neglect;
or
“(3)  kills or injures any animal belonging to another
without legal privilege or consent of the owner.
“Subsections (1) and (2) shall not be deemed applicable
to accepted veterinary practices and activities carried on
for scientific research.”
Model Penal Code § 250.11 (1962). According to the commen-
tary to that provision, “[c]ruelty to animals is another class
of behavior widely penalized because of outrage to the feel-
ings of substantial groups in the population.” Model Penal
Cite as 355 Or 777 (2014) 793
Code and Commentaries (Tentative Draft No. 13), American
Law Institute 40, § 250.6 (1962).
Other states, however, enacted legislation target-
ing cruelty to animals for the sake of preventing the ani-
mals themselves from suffering, not merely as property to
be protected or as a way of improving public morality. New
York’s 1867 animal cruelty law, adopted “for the more effec-
tual prevention of cruelty to animals,” is often credited with
being the first such statute. See generally Laurie Serafino,
No Walk in the Park: Drafting Animal Cruelty Statutes to
Resolve Double Jeopardy Concerns and Eliminate Unfettered
Prosecutorial Discretion, 78 Tenn L Rev 1119, 1123-27 (2011)
(discussing the historical foundation of modern anti-cruelty
statutes); Luis E. Chiesa, Why Is It a Crime to Stomp on
a Goldfish?—Harm, Victimhood and the Structure of Anti-
Cruelty Offenses, 78 Miss LJ 1 (2008). The law provided
that,
“[i]f any person shall over-drive, over-load, torture, tor-
ment, deprive of necessary sustenance, or unnecessarily
cruelly beat, or needlessly mutilate or kill, or cause or pro-
cure to be over-driven, over-loaded, tortured, tormented
or deprived of necessary sustenance, or to be unnecessar-
ily or cruelly beaten, or needlessly mutilated, or killed as
aforesaid any living creature, every such offender shall, for
every such offense, be guilty of a misdemeanor.”
1867 Gen Stats NY, ch 375, § 1.
New York’s animal cruelty statute became a model
for many other states, which adopted animal cruelty laws
in the late-nineteenth and early twentieth centuries. See,
e.g., Mass Gen L, ch 344 (1869); 1869 Ill Laws 3; NJ Rev
Stat 64-82 (1873); 1878 NH Laws 281; 1900 Cal Stat § 597;
14 Pa Stat § 7772 (1920); Mich Comp Laws ch 285 § 1
(1929). Oregon was one of the states that followed the New
York model of animal cruelty legislation. Adopted in 1885,
Oregon’s statute provided:
“Whoever overdrives, or overloads, drives when overloaded,
overworks, tortures, torments, deprives of necessary sus-
tenance, cruelly beats, mutilates, or cruelly kills, or causes
or procures to be so overdriven or overloaded, driven when
overloaded, overworked, tortured, tormented, deprived of
794 State Nix
necessary sustenance, cruelly beaten, mutilated or cru-
elly killed, any animal; and whoever having the charge
of or custody of any animal, either as owner or otherwise,
inflicts cruelty upon the same, shall, for every such offense
be punished by imprisonment in the county jail not exceed-
ing sixty days, or by fine not exceeding one hundred dol-
lars, or by both fine and imprisonment.”
Lord’s Oregon Laws § 2103 (1885). The courts recognized
that the focus of the statute was the treatment of the ani-
mals themselves, with no mention of proof of economic loss
to the owner or harm to the public. In State v. Goodall, 90
Or 485, 175 P 857 (1918), for example, this court held that
evidence that the defendant rode a horse while it had a deep
ulcerated sore on its back and that the defendant had sup-
plied it with insufficient food was enough to establish viola-
tion of animal cruelty statute. Id. at 488-89. In the court’s
view, “[i]t is clear that the act of riding a horse in such con-
dition *  * constitutes the crime of ‘torturing and torment-
*
ing an animal,’ as is also the act of depriving the animal of
necessary sustenance.” Id. at 489.
In 1971, the legislature adopted the new Oregon
Criminal Code. In that new code, the legislature retained
the nearly century-old animal cruelty statute, codified at
ORS 167.860 (1971). But it added a provision based on the
Model Penal Code (or, more precisely, based on a Michigan
statute that was, in turn, based on the Model Penal Code).
Criminal Law Revision Commission, Proposed Criminal
Code, Final Draft and Report § 226 (July 1970). The new
law, codified at ORS 167.850 (1971), provided, in part:
“(1)  A person commits the crime of cruelty to ani-
mals if, except as authorized by law, he intentionally or
recklessly:
“(a)  Subjects any animal under human custody or con-
trol to cruel mistreatment; or
“(b)  Subjects any animal under his custody or control
to cruel neglect; or
“(c)  Kills without legal privilege any animal under the
custody or control of another.”
The legislature later overhauled the state’s animal
cruelty laws in 1985 with the enactment of Senate Bill 508,
Cite as 355 Or 777 (2014) 795
which now constitutes, with amendments not pertinent to
this case, the state’s current animal cruelty statute. The
staff measure summary described the bill’s purpose in the
following terms:
“In some respects the public’s attitude regarding animals
has undergone substantial change. Many people feel that
animals should be given greater protection from cruel
treatment and neglect. The traditional statutes relating to
cruel treatment of animals are seen as inadequate in that
they only prohibit extreme conduct and do not differenti-
ate between abuse and neglect. This bill addresses those
concerns.”
Staff Measure Analysis, Senate Judiciary Committee, SB
508, Mar 14 1985, 1. Senate Bill 508 repealed both the old
animal cruelty statute and the newer provision adopted in
1971 and replaced them with a comprehensive set of offenses,
ranging from animal abandonment to animal neglect in the
first and second degrees and to animal abuse in the first
and second degrees. The bill also established detailed crite-
ria for determining what constitutes the “minimum care” to
which animals are entitled. Id.The bill was proposed by the Humane Society of
the Willamette Valley, which had developed the proposal
after consultation with the State Police, the Farm Bureau,
the livestock association, and other humane societies. Tim
Greyhavens, the Executive Director of the society, explained
to the Senate Judiciary Committee that the purpose of the
bill was to provide clarity about what constitutes action-
able cruelty to animals and to expand the law to include an
offense of animal abandonment. He said that current law
was too vague about what constituted mistreatment and cru-
elty. Minutes, Senate Judiciary Committee, SB 508, Mar 14,
1985, 4 (testimony of Tim Greyhavens). He explained that
the bill was intended to separate and define specific offenses
against animals, with the difference between those offenses
being “the extent of the harm” to the animals. Id. at 5.
Greyhavens similarly testified before the House
Committee on Judiciary that the bill was needed because
current law was too vague about what constitutes cru-
elty to animals and that the law needed to be broadened
796 State Nix
to cover animal abandonment. Minutes, House Committee
on Judiciary, SB 508, June 12, 1985, 18 (testimony of Tim
Greyhavens). He offered a statement from a dozen other
humane societies representing more than 10,000 members
around the state urging support of the bill. “By enacting
Senate Bill 508,” the statement declared, “you will be pre-
venting needless suffering” and saving thousands of dollars
related to the care of stray and abandoned pets. Statement,
House Judiciary Committee, HB 508, June 12, 1985, Ex F, 1
(Humane Society of the Willamette Valley).
Marion County Reserve Deputy Sheriff David
Hemphill also testified in support of the bill. He explained
that, as an animal cruelty investigator,
“I see dozens of cases of animal abandonment, abuse and
neglect that I can’t take action against because of the inad-
equacy of our current law. Much of this law was written
*  * when there were different problems with the care of
*
animals. This leaves us with a law that now contains many
vague or archaic terms. For example, our current law pro-
hibits many acts that happened during those times when
animals were used primarily for work purposes, such as
‘overloading’ or ‘overworking’ a horse or ‘works an animal
when unfit for labor.’ ”
Testimony, House Judiciary Committee, HB 508, June 12,
1985, Ex E, 1 (statement of David Hemphill). Hemphill
explained that our highly mobile society is resulting in “an
epidemic of animal abandonment and neglect.” Id. at 1. “If
there were a strong law that prohibited any type of animal
abandonment,” he argued, “many animals’ lives could be
saved.” Id. Hemphill urged the committee to recommend
passage of the bill “on behalf of all responsible pet owners
and the animals as well, so that we can continue to make
our state a better place for every living being.” Id. at 3.
The preceding history confirms that the principal
purpose of adopting the legislation that became ORS 167.325
was to prevent the suffering of animals. Although early ani-
mal cruelty legislation may have been directed at protecting
animals as property of their owners or as a means of pro-
moting public morality, Oregon’s animal cruelty laws have
been rooted—for nearly a century—in a different legislative
Cite as 355 Or 777 (2014) 797
tradition of protecting individual animals themselves from
suffering. Indeed, the modern animal cruelty statute was
designed to broaden the state’s earlier law to encompass
abandonment, as well as neglect and abuse, and to graduate
punishment in accordance with the severity of the harm to
the animals.
We therefore conclude that defendant is incorrect
that the real “victim” of the crime of second-degree animal
neglect is either the public or the animal owner. It is true
that, for a brief period of time—from 1971 to 1985—Oregon’s
statutes included an additional provision that reflected the
Model Penal Code’s concern that animal cruelty is a mat-
ter of public morality. But that provision reflected an addi-
tional layer of legislative policy on top of the longstanding
concern with protecting animals from suffering for the sake
of the animals themselves. In any event, that provision was
repealed in 1985, replaced by the comprehensive scheme of
animal cruelty laws that we have described, all of which are
predicated on preventing the suffering of animals. Moreover,
Glaspey makes clear that the “victim,” for the purposes of
ORS 161.067(2), is the one that “suffers harm that is an ele-
ment of the offense.” Glaspey, 337 Or at 565. Public harm
is not an element of the offense of second-degree animal
neglect. Harm to the individual animal is.
Nor is there in any indication that the legislature
regarded the “victim” of animal neglect to be the owner of the
animal. To be sure, Oregon law regards animals as the prop-
erty of their owners. See generally State v. Fessenden / Dicke,
355 Or 759, 767-69, ___ P3d ___ (2014) (so noting, citing
relevant statutes). But it does not necessarily follow from
that fact that owners of abused or neglected animals are
the victims of the offense. Indeed, it would be anomalous to
conclude that the “victim” of animal neglect is the owner of
the animal when it is the owner who is charged with having
committed the offense.5 What is more, ORS 167.325 provides
that, in the event of a conviction for animal neglect or ani-
mal cruelty, a court may order that the defendant forfeit any
5
Of course, animal cruelty offenses may be committed by persons other than
the owner of the animal. We do not need to address whether, in those circum-
stances, the owner—in addition to the animal—may be regarded as a victim of
the offense, and we express no opinion on that issue.
798 State Nix
rights he or she had in the animal that has been neglected or
abused—an odd consequence if the real victim of the offense
is the animal’s owner.
In concluding that animals are “victims” for the
purposes of ORS 161.067(2), we emphasize that our deci-
sion is not one of policy about whether animals are deserv-
ing of such treatment under the law. That is a matter for
the legislature. Our decision is based on precedent and
on a careful evaluation of the legislature’s intentions as
expressed in statutory enactments. Our prior decisions hold
that the meaning of the word “victim” for the purposes of
ORS 161.067(2) necessarily depends on what the legislature
intended in adopting the underlying substantive criminal
statute that the defendant violated. In this case, the under-
lying substantive criminal statute, ORS 167.325, protects
individual animals from suffering from neglect. In adopting
that statute, the legislature regarded those animals as the
“victims” of the offense. It necessarily follows that the trial
court in this case erred in merging the 20 counts of second-
degree animal neglect into a single conviction.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded for entry of separate convictions on each guilty
verdict for a violation of ORS 167.325 and for resentencing.