STATE of Oregon, Petitioner on Review, v. Arnold Weldon NIX, Respondent on Review.
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, provides that, when the same conduct or criminal episode violates 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 conviction 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 Nix, 251 Or.App. 449, 283 P.3d 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 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 single conviction, explaining that
“ ‘[ORS 161.067(2) ] talks about—although violating only one statutory provision, it involves two or more victims. In this case, I agree with the defendant's position that the animals are not victims, as defined by the statute; by the ORS 161.067(2).
“ ‘ * * * I don't think that [ORS 161.067(3) ] applies because the animals are not victims under the definition 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 imposition of the jail sentence, and the state appealed.”
Nix, 251 Or.App. at 451–52, 283 P.3d 442.
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 Glaspey, 337 Or. 558, 563, 100 P.3d 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 history 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, the meaning of the term “victim” as it is used in the antimerger statute is determined by reference to the underlying substantive criminal statute that defendant violated. 251 Or.App. at 457–58, 283 P.3d 442. The court explained that the substantive 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 concluded that, although animals are usually considered the property of persons, ORS 167.325 reflects a broader public 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, 283 P.3d 442.
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 suffering.” Thus, in the state's view, the statutes evince a concern to protect more than a general public interest in animal welfare; 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 Bureau of Labor and Industries, 317 Or. 606, 610–12, 859 P.2d 1143 (1993), and State Gaines, 346 Or. 160, 171–73, 206 P.3d 1042 (2009). Our goal is to ascertain the meaning of the statute that the legislature most likely intended. Halperin Pitts, 352 Or. 482, 486, 287 P.3d 1069 (2012).
We begin with the text of the statute, in context. Oregon's anti-merger statute provides that, when a defendant 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 enactment to be given its ordinary meaning. State Murray, 340 Or. 599, 604, 136 P.3d 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 performance of a religious rite 2: someone put to death, tortured, or mulcted by another: a person subjected to oppression, deprivation, or suffering