State v. Glaspey , 184 Or. App. 170 ( 2002 )

BREWER, J.

Defendant appeals from his convictions and sentences on two counts of fourth-degree assault. ORS 163.160. He asserts that the trial court erred in failing to enter a single conviction on the two counts and, further, in sentencing him separately on each conviction. We affirm.

Although fourth-degree assault generally is a misdemeanor offense, it is a Class C felony if “[t]he assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim.” ORS 163.160(3)(c). The offenses for which defendant was convicted arose from an episode in which he assaulted his wife in the presence of their two minor sons. He was charged by indictment with separate offenses arising from that conduct, with each count alleging that the assault was witnessed by a different child.

Defendant pleaded no contest to both counts and, at sentencing, argued that the offenses “merge for sentencing purposes.” The trial court rejected his argument and sentenced defendant separately on each count. On appeal, defendant makes two arguments: (1) the charges constituted a single offense; and (2) in any event, they were not separately punishable.

Before addressing the merits of defendant’s arguments, we consider the state’s initial response that they were not properly preserved. At sentencing, defendant’s attorney argued only that defendant’s convictions merged for sentencing purposes but did not contend that only a single conviction was permitted. Because the two issues are analytically distinct, see State v. Barnum, 333 Or 297, 302-03, 39 P3d 178 (2002), the latter argument is not preserved merely by making the former. Therefore, we ordinarily would decline to consider defendant’s contention that he could be convicted of only one offense. However, defendant’s arguments on appeal are progressive, in the sense that his convictions could be separately punished only if separate convictions were properly entered in the first place. Thus, our analysis would be incomplete if we failed to consider, albeit briefly, whether separate convictions were authorized.

We conclude that they were. Defendant could have been convicted of fourth-degree assault as a felony under ORS 163.160(3) on the separate bases that either of the children witnessed defendant’s conduct. If the trial court had entered a conviction on only one count of fourth-degree felony assault and had dismissed the other, and if defendant’s appeal resulted in a reversal, for insufficient evidence, of the count that was selected to serve as the basis for conviction, defendant would be entitled, albeit inappropriately, to a judgment of acquittal. Because defendant violated ORS 163.160(3) by engaging in the prohibited conduct in the presence of two children, he properly was charged and convicted of two counts of fourth-degree felony assault. See Barnum, 333 Or at 302-03 (applying principle to multiple burglary convictions); see also State v. Barrett, 331 Or 27, 36-37, 10 P3d 901 (2000) (applying principle to multiple aggravated murder convictions).

Accordingly, we turn to defendant’s argument that, under ORS 161.067(2), only one sentence was authorized for the two convictions. ORS 161.067(2) 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.” (Emphasis added.) Defendant’s premise is that there was a single victim of his conduct, his wife, because ORS 163.160(3) describes only the person against whom an assault is directly committed as “the victim,” remitting any children present to the status of “witnesses.” From that premise, defendant reasons that the trial court was not authorized to impose separate sentences on his convictions under ORS 161.067(2).¹ The state responds that each of the children also was a victim of defendant’s conduct and, accordingly, ORS 161.067(2) authorized separate punishments.

Whether the children were “victims” for purposes of ORS 163.160(3) and, thus, ORS 161.067(2), presents a problem of statutory construction, which we resolve using the template set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). We first consider ORS 163.160, which provides:

“(1) A person commits the crime of assault in the fourth degree if the person:

“(a) Intentionally, knowingly or recklessly causes physical injury to another; or

“(b) With criminal negligence causes physical injury to another by means of a deadly weapon.

“(2) Assault in the fourth degree is a Class A misdemeanor.

“(3) Notwithstanding subsection (2) of this section, assault in the fourth degree is a Class C felony if the person commits the crime of assault in the fourth degree and:

“(a) The person has previously been convicted of assaulting the same victim;

“(b) The person has previously been convicted at least three times under this section or under equivalent laws of another jurisdiction and all of the assaults involved domestic violence, as defined in ORS 135.230; or

“(c) The assault is committed in the immediate presence of, or is witnessed by, the person’s or the victim’s minor child or stepchild or a minor child residing within the household of the person or victim.

“(4) For the purposes of subsection (3) of this section, an assault is witnessed if the assault is seen or directly perceived in any other manner by the child.”

Defendant argues that the text of ORS 163.160(3) is clear and that it dictates the outcome. He asserts that, “[i]f the legislature had intended for the victim’s child to be treated as a separate victim, it could easily have said so. By referring to the victim and the victim’s child separately, the legislature put the two into separate classes.” According to defendant, “[interpreting the statute to include the child-witnesses in the class of victims requires inserting that definition into the text,” in violation of ORS 174.010.² As far as the context of ORS 163.160(3) is concerned, defendant acknowledges that the legislature has defined the term “victim” in a number of different statutory settings, but argues that each applies to listed statutory provisions and none expressly applies to ORS 163.160.

“Victim” is not defined in either ORS 163.160 or ORS 161.067, but the word’s plain meaning cuts against defendant’s argument. See PGE, 317 Or at 611 (words of common usage are to be given their plain, natural, and ordinary meaning when not otherwise defined by the legislature). A “victim,” in ordinary terms, is “a person subjected to oppression, deprivation, or suffering.” Webster’s Third New Int’l Dictionary 2550 (unabridged ed 1993). That definition — in particular, “suffering” — logically can include any child who has witnessed an assault committed by or against his or her parent.

Of course, the ordinary meaning of the term takes the analysis only so far. As defendant points out, the legislature has, in ORS 163.160(3), expressly described the immediate object of an assault as the “victim,” thereby arguably omitting persons who are indirectly harmed by an assault from that classification. However, both the purpose and the structure of ORS 163.160(3) itself are consistent with the broader, ordinary meaning of the term.

As to purpose, in order to elevate fourth-degree assault to a felony, the state is required to plead and prove as an element of the offense that a child witnessed the assault or that it was committed in the child’s immediate presence. See State v. Boots, 308 Or 371, 375, 381 n 9, 780 P2d 725 (1989) (treating each aggravating circumstance for purposes of aggravated murder statute as an element of a separate and distinct crime that must be proved to the jury beyond a reasonable doubt). If the legislature had not been concerned that children exposed to assaults by or against a parent are harmed by such conduct and, thus, are additional victims of the conduct, it would have had no reason to enhance the seriousness of the offense from a misdemeanor to felony status based on children’s witnessing of the conduct.³

The dissent disagrees. It acknowledges that the presence of a child or children is an “aggravating” factor, but it dismisses the only plausible explanation for that legislative choice. 184 Or App at 183-84 (Armstrong, J., dissenting). To justify its conclusion, the dissent uses two illustrations. The first is the example of a child who sleeps through an assault of his or her parent and, thus, might not be psychologically or emotionally harmed by the event. 184 Or App at 184 (Armstrong, J., dissenting). However, that illustration suffers from two flaws. First, it assumes, without citation to supporting authority, that an assault can be “witnessed” or committed in “the immediate presence” of an unconscious person. That assumption does not strike us as a foregone conclusion. Second, and more importantly, even assuming that defendant could have committed a felony assault by committing a misdemeanor assault in “the immediate presence” of a sleeping child, the dissent does not explain in general why the legislature would enhance the punishment for a domestic assault witnessed by a child if it did not regard the child as an additional victim. The reason for that omission is obvious: there is no plausible explanation besides the one we suggest. The dissent’s second illustration of a child who may not “feel harmed” by witnessing an assault, 184 Or App at 184 n 5 (Armstrong, J., dissenting), requires the barest response: the fact that a victim might be hardened or numbed by rationalization to the spectacle of an assault does nothing to mitigate the harm inflicted.

As to the structure of ORS 163.160(3), many statutes creating offenses against persons do not use the term “victim” at all. See, e.g., ORS 163.165 (third-degree assault); ORS 163.175 (second-degree assault); ORS 163.185 (first-degree assault). However, we would not understand those offenses as having no victim for the purpose of ORS 161.067(2). In other words, the use or nonuse of the specific term “victim” in a substantive offense statute does not control whether, and to what extent, that substantive statute is subject to the sentencing principle established in ORS 161.067(2).

Moreover, given the need for three separate personal referents in ORS 163.160(3)—the defendant, the assaulted person, and certain children who may be present—the description of the assaulted person as “the victim” likely reflects nothing more than a convenient referent for that person. It need not be understood as excluding the specified children from that categoiy. Rather, they are persons that the legislature has recognized as victims of the conduct prohibited in ORS-163.160(3).⁴

We next consider whether the children described in ORS 163.160(3) are victims for the purpose of ORS 161.067(2), that is, for purposes of separate sentencing of defendant’s convictions. The dissent is correct that it would not be logical to construe “victim” as the term is used in ORS 161.067(2) more broadly than its meaning under a statute describing an underlying substantive offense. However, where, as here, the gravamen of the elevated crime involves harm to children, the problem does not arise; children who are harmed by witnessing the assault are, in fact, victims within the contemplation of ORS 163.160(3). Moreover, nothing in ORS 161.067(2) or its surrounding context suggests an intention to restrict the definition of victim to a more limited class of persons than is specified for the underlying offense.

For example, the legislature has adopted a broad meaning of “victim” for purposes of the sentencing framework governing the imposition of restitution. In 1977, after the Supreme Court had, in State v. Stalheim, 275 Or 683, 552 P2d 829 (1976), construed the predecessor statutory scheme as entitling only immediate victims to restitution, the legislature enacted ORS 137.103, which permits recovery by indirect pecuniary victims of crimes. See State v. Dillon, 292 Or 172, 175-78, 637 P2d 602 (1981) (discussing evolution of statutory restitution scheme). ORS 137.103(4) provides that “ Tv]ictim’ means any person whom the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities[.]” Thus, defendant’s children plainly would be victims in this case for purposes of an award of restitution if they had suffered pecuniary damage — such as counseling expenses — as a consequence of defendant’s criminal conduct.

In addition, where the people, acting in their legislative capacity, have expressly defined the term “victim” for purposes of establishing “victim” rights at sentencing and in other contexts in criminal proceedings, they generally have selected the broad, ordinary meaning of the, term. ORS 131.007, which expressly applies to three entire chapters of the Criminal Code (ORS chapters 136, 137, and 144), and seven specified criminal statutes,⁵ defines “victim” to include “persons” who have suffered “social” or “psychological” harm “as a result of a crime.” That definition is consistent with the ordinary broad meaning of “victim” and, although it does not expressly apply to ORS 163.160 or ORS 161.067(2), it extends the meaning of “victim” to persons suffering the sort of harm, albeit indirect or intangible, suffered by child witnesses of assaults as provided in the former statute.⁶

By contrast, if defendant’s proposed narrow construction of the term “victim” were followed, it would produce the anomaly that defendant here could not be separately sentenced for crimes for which he could be consecutively sentenced under ORS 137.123(5)(b). That construction would violate the principle that, where possible, interacting statutes should be construed in such a manner as to give full meaning to each. ORS 174.010. The dissent’s assertion that ORS 131.007 is either (1) somehow compatible with the dissent’s view, because it does not expressly apply to ORS 161.067, 184 Or App at 187 (Armstrong, J., dissenting), or, alternatively, (2) irrelevant to our analysis, 184 Or App at 188 (Armstrong J., dissenting), altogether disregards that concern.

Next, the dissent quarrels with our reliance, in part, on the dictionary definition of “victim.” 184 Or App at 186 (Armstrong, J., dissenting). Although it does not say so, the dissent may be relying on the line of cases holding that the ordinary meaning of a word does not control where the word has taken on a well-established meaning as a legal term of art. See McIntire v. Forbes, 322 Or 426, 431, 909 P2d 846 (1996) (“Analysis of text also includes reference to well-established legal meanings for terms that the legislature has used.”). The problem is that the dissent never establishes the existence of any well-established legal meaning that is consistent with its view.

To be sure, the dissent tries to make such a connection by relying on Stalheim. The dissent argues that “Stalheim creates a default position in Oregon law [that] ‘victim’ means ‘direct victim’ unless the legislature has clearly indicated otherwise.” 184 Or App at 187 (Armstrong, J., dissenting). That is a surprising and unsupportable assertion, given that the legislature expressly “obviated” the portion of the Stalheim decision on which the dissent relies in the next general legislative session. State v. Barkley, 315 Or 420, 435-36, 846 P2d 390 (1993). Moreover, Stalheim’s, holding is not so broad. There, the Supreme Court “narrowly” interpreted the term “aggrieved party” as used in former ORS 137.540(10) (1975), amended by Or Laws 1977, ch 380, § 2, subsection repealed by, Or Laws 1981, ch 671, § 1, to refer to the “direct victim of a crime.” Stalheim, 275 Or at 688. It does not follow from that conclusion that, to be the “victim” of a crime, a person must be the immediate object of the defendant’s conduct, especially where the statutory text and context evince a broader meaning.

Finally, the dissent’s exposition of the history of ORS 161.067, particularly its rather ironic assertion that the statute “brought simplicity” to a convoluted area of criminal law, 184 Or App at 186 (Armstrong J., dissenting), is interesting in the abstract, but it sheds no useful light on the present problem. There is nothing in the historical path leading to enactment of the statute to suggest that the legislature meant to adopt the narrow meaning of “victim” proposed by the dissent.

In combination, the ordinary meaning of “victim,” the purpose and structure of ORS 163.160(3), and the context of both ORS 163.160(3) and ORS 161.067(2), manifest a legislative intent that children who witness a domestic assault be considered victims for purposes of determining whether the defendant may be separately punished for each conviction arising from the assault. The legislature’s failure in ORS 163.160(3) to expressly describe such children as victims does not compel a different conclusion. Defendant’s conduct exposed multiple victims to harm that the legislature explicitly has recognized and condemned. The trial court did not err in sentencing defendant separately on each of his convictions.

Affirmed.

1 The parties agree, as do we, that none of the other subsections of ORS 161.067 is applicable to the present problem.

2 ORS 174.010 admonishes courts, when interpreting statutes, not to “insert what has been omitted, or to omit what has been inserted.”

3 The legislature has elsewhere criminalized conduct because children are caused to witness it. See, e.g., ORS 163.575(l)(a) (defining the crime of endangering the welfare of a minor as inducing, causing, or permitting a minor to “witness” sexual conduct or sadomasochistic abuse); see also State v. Goddard, 178 Or App 538, 540, 37 P3d 1046, rev den, 334 Or 121 (2002) (describing child who witnessed conduct proscribed by ORS 163.575 as “the victim”).

4 Assuming, for the sake of argument, that ORS 163.160(3) is ambiguous, its legislative history also supports our understanding. The 1997 legislature enacted ORS 163.160(3) as part of Senate Bill 553. On March 14, 1997, Senator Kate Brown, the bill’s sponsor, testified before the Senate Crime and Corrections Committee regarding the deleterious effects on children caused by witnessing domestic violence. Minutes, Senate Committee on Crime and Corrections, SB 553, March 14, 1997, 2 (statement of Senator Kate Brown). Other witnesses testified to the same effect, including Chris Gardner, the chair of the Children’s Justice Act Task Force, who observed that, “when children are present [there is] more than one victim to the crime.” Tape Recording, Senate Committee on Crime and Corrections, SB 553, March 14, 1997, Tape 37, Side A. In short, the legislative history leaves little doubt that the legislature intended, by enacting ORS 163.160(3), to prevent harm to children who witness domestic assaults.

5 For example, the broad definition applies to (1) the exclusion of victim witnesses at trial, ORS 40.385; (2) pretrial release criteria pertaining to victim protection, ORS 135.230(7)(a); (3) victim consultation regarding plea discussions, ORS 135.406; (4) pretrial protection of victims from certain contact and disclosures, ORS 135.970; (5) the right to appear and give a victim impact statement at sentencing, ORS 137.013; (6) aggravation in sentencing for physical assault due to victim’s age, ORS 137.085; (7) imposition of consecutive sentences because of harm to different victims arising from a single criminal episode, ORS 137.123(5)(b); and (8) miscellaneous crime victims’ rights, ORS 147.417 to 147.421.

6 Both ORS 131.007 and ORS 161.067 trace their origins to Ballot Measure 10, a o. mprehensive victims’ rights initiative passed in 1986. Section 13 of Measure 10 became ORS 161.067, and section 17 was codified at ORS 131.007; the definition of victim in ORS 131.007 is unchanged to this date.