State v. Hackett

                                      360

    Argued and submitted January 29; reversed and remanded for entry of
   judgment omitting the “due in 30 days” requirement, otherwise affirmed
  October 27, 2021; petition for review denied February 24, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   MICHAEL DEAN HACKETT,
                     aka Michael D. Hackett,
                      Defendant-Appellant.
                    Coos County Circuit Court
                      19CR02611; A170402
                                  

     Defendant appeals a judgment convicting him of, among other offenses,
second-degree animal abuse (Count 6). He contends that the trial court erred
by (1) denying his motion for judgment of acquittal (MJOA) on Count 6, because
the evidence was insufficient to show that the victim, a dog named Bosco, experienced a sufficient duration of pain; and (2) imposing fines “due in 30 days”—
in addition to a term of incarceration—without determining his ability to pay.
Held: Based on the testimony adduced at defendant’s trial, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Bosco
suffered pain that was more than “fleeting” or “momentary”; therefore, the trial
court did not err in denying defendant’s MJOA on Count 6. Additionally, the state
conceded, and the Court of Appeals agreed, that the trial court erred in imposing
defendant’s fines “due in 30 days” without determining defendant’s ability to pay.
    Reversed and remanded for entry of judgment omitting the “due in 30 days”
requirement; otherwise affirmed.



    Martin E. Stone, Judge. (Judgment)
    Megan Jacquot, Judge. (Supplemental Judgment)
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Patricia G. Rincon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
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  TOOKEY, J.
   Reversed and remanded for entry of judgment omitting
the “due in 30 days” requirement; otherwise affirmed.
362                                                           State v. Hackett

            TOOKEY, J.
        Defendant appeals a judgment convicting him of,
among other offenses, second-degree animal abuse (Count 6).
He contends that the trial court erred when it (1) denied
his motion for judgment of acquittal (MJOA) on Count 6;
(2) imposed fines “due in 30 days,” in addition to a term
of incarceration, without determining his ability to pay;
(3) ordered that he not be considered for any sentence-modification programs; and (4) instructed the jury that it
could return a nonunanimous verdict.
         We write to address only defendant’s first and second assignments of error.1 As explained below, we conclude
that the trial court did not err in denying defendant’s MJOA.
We further conclude, and the state concedes, that the trial
court erred when it ordered that defendant’s fines were “due
in 30 days” without determining his ability to pay; accordingly, we reverse and remand on that basis.
         “We review the denial of an MJOA to determine
whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, a rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Colpo, 

, 

, rev den, 

 (2020). And we “review
a claim that the sentencing court failed to comply with the
requirements of law in imposing a sentence for errors of law.”
State v. Capri, 

, 

 (2012).
                    I. FACTUAL BACKGROUND
       The relevant facts are undisputed. Defendant was
charged with second-degree animal abuse, ORS 167.315,
based on conduct involving his dog, Bosco.2 At defendant’s

    1
      As for defendant’s remaining assignments of error, we reject as unpreserved his claim regarding sentence-modification programs. Likewise, we reject
as unpreserved his claim about the nonunanimous jury instruction and do not
exercise our discretion to review it for the reasons set forth in State v. Dilallo, 

, 

 (2020).
    2
      The record indicates that the state’s witnesses testified about two separate incidents, approximately 30 minutes apart, both of which involved defendant
allegedly abusing Bosco. Because the second-degree animal abuse charge (Count 6)
was based only on the second incident, we focus on the facts relevant to that
incident.
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jury trial, the evidence relevant to that conduct came primarily from two eyewitnesses for the state: a mother, who
lives in a house “on the corner of a major highway,” where
the conduct at issue occurred; and her daughter, who was
visiting her mother when that conduct occurred.
         The daughter testified that she was in town for a
hair appointment and stopped to visit her mother. She was in
the kitchen with her mother when she “heard a dog yike”—a
sound she described as a dog communicating “ ‘help,’ or ‘I’m
in pain,’ or ‘ouch.’ ” She “thought a dog got hit right by the
road,” because she had heard a similar “yike” on a previous
occasion when a dog “got hit by a car.” Curious, she exited the
house, descended a flight of stairs, and walked through the
backyard toward the highway. There, she saw “a bicycle and
[defendant] and a dog” along the highway. The dog, Bosco,
was “yiking and whimpering” and “laying in submission,”
while defendant “was kicking the dog” “very hard.” Briefly
returning to the house, she retrieved her mobile phone and
told her mother to “call the police.”
         Back outside, she again saw defendant “just going
to town and beating the dog.” Initially, the kicking was
“[b]ad enough [that she] didn’t know if the dog was gonna
even live,” though eventually, the kicking “wasn’t as bad.”
She also saw defendant throwing rocks at Bosco, who at
that point was lying on the side of the highway. Defendant
then noticed the daughter and began “yelling profanity and
telling us to mind our own F-ing business,” just as officers
arrived on the scene. After the incident, the daughter visited Bosco, who had been taken to the Coos County Animal
Shelter. Bosco was “walking okay” and “getting in better
health” but had a “permanent scar where the collar was.”
         The mother testified that, on the day of the incident,
she and her daughter “were in the kitchen talking and [they]
heard all kinds of commotion and went outside to see what
it was.” Following her daughter outside, she had just walked
down the stairs when she heard her daughter shout, “Call
911,” and, “This guy is gonna kill his dog.” She then “saw
the bicycle, [defendant], and the dog in the middle of the
road.” Defendant was “hang[ing] onto the bicycle handle for
leverage, and the dog was on its back … yiking”—which
364                                              State v. Hackett

sounded “like a scream, a howl”—and defendant was “kicking his dog, severely.” She testified that defendant’s kicking
“wasn’t just a slight little smack on the head. It was severe.
Or I wouldn’t be shaking like this.” As soon as the mother
saw defendant kicking Bosco, she “turned around to call 911
because [she] didn’t want to see any more.”
        After the state rested, defendant moved for a judgment of acquittal on the second-degree animal abuse charge
(Count 6), arguing that the state’s evidence was insufficient
to show that Bosco had suffered “substantial pain.” The trial
court disagreed and denied defendant’s MJOA, explaining,
   “So you have this dog that is yelping … on its back and is
   being kicked repeatedly. And, so, can one infer from that
   that there was substantial pain to the dog[?] Yes. I think
   that one can infer that the dog suffered substantial pain.
       “And the dog, you know, … the dog can’t testify. Yet,
   at the same time, you can take the other evidence around
   here as to how the dog reacted to what was happening to it.
   And the dog was in pain, it sounds like. And it sounds like
   it was pretty substantial, and it lasted for quite a while. At
   least, from the point of view of the [mother and daughter]
   of what they were witnessing there.
      “…
       “… But resting on the [daughter’s testimony] alone,
   what the evidence is, is she thought that the animal was
   crying out in pain to such a degree that it had been hit
   by a car. And then you have evidence of [the mother] …
   and based upon her demeanor and the way that she testified, she saw something or another and heard something
   or another that was … serious and that obviously was
   traumatic to her. And based upon that, I think that one can
   infer that the animal suffered substantial pain.
      “…
      “[I]s it the strongest piece of evidence? Would it have
   been stronger if they had gone and shaved the whole dog
   and looked for evidence of bruising? Yeah. But they didn’t
   shave the dog. And, but what they did do is they brought
   in a bunch of witnesses who testified to the severity of the
   [defendant’s] dog’s pain. So, and the dog can only communicate with us via yelping and yipping and barking. So I don’t
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     know how else a dog tells us that it’s in pain, other than
     what it was doing in this instance.
        “So I’m denying [the MJOA].”
         After the parties rested, the jury returned a guilty
verdict for second-degree animal abuse, and defendant was
subsequently sentenced.3 At the sentencing hearing, the
court orally imposed $1,200 in fines, but it neither addressed
defendant’s ability to pay nor stated when those fines were
due. After the sentencing hearing, the court issued a written judgment, which included a provision that the $1,200 in
fines were “due in 30 days.”
         On appeal, defendant first contends that the trial
court erred when it denied his MJOA as to second-degree
animal abuse (Count 6). Defendant also contends that the
trial court erred when it imposed fines “due in 30 days”
without determining defendant’s ability to pay those fines.
We address each contention in turn, and for the reasons
explained below, we conclude that the trial court did not err
in denying defendant’s MJOA but did err in ordering that
defendant’s fines were “due in 30 days.”
                             II. ANALYSIS
A.    Second-Degree Animal Abuse & Defendant’s MJOA
         Defendant contends that the trial court erred when
it denied his MJOA as to second-degree animal abuse,
because “the evidence does not permit a rational inference
that Bosco experienced substantial pain.” The state responds
that the trial court did not err in denying the MJOA, because
the testimony from the mother and daughter “would permit
a rational factfinder to conclude that Bosco suffered pain
that was more than fleeting or momentary.”
        In making those arguments, both parties acknowledge that the appellate courts of this state have yet to
address the meaning of “substantial pain” in the context of
    3
      The judgment of conviction in defendant’s case included aggravated harassment, ORS 166.070 (Count 1); resisting arrest, ORS 162.315 (Count 2); interfering
with a peace officer, ORS 162.247 (Count 3); second-degree disorderly conduct,
ORS 166.025 (Counts 4 and 5); and second-degree animal abuse, ORS 167.315
(Count 6).
366                                            State v. Hackett

animal victims. As a result, both parties rely on case law
interpreting “substantial pain” in the context of human
victims. Such reliance is not unreasonable, yet we have an
independent “obligation to determine the proper meaning of
statutes, regardless of the correctness of the parties’ arguments.” Lovinger v. Lane County, 

, 

, rev den, 

 (2006). Accordingly, we begin by
construing the phrase “substantial pain” as it pertains to
second-degree animal abuse, ORS 167.315. In so doing, we
apply the familiar principles set out in State v. Gaines, 

, 

 (2009) (examining statutory
text, context, and legislative history to discern legislature’s
intent).
      1.   The Meaning of “Substantial Pain”
          We begin with the relevant text and context, including other provisions of the same statute or related statutes,
prior versions of the statute, and case law interpreting the
same statutory wording. Wal-Mart Stores, Inc. v. City of
Central Point, 

, 

 (2006) (“[C]ontext
includes other provisions of the same statute or related statutes … as well as prior opinions of this court interpreting
the same statutory wording.”); Pete’s Mountain Homeowners
v. Ore. Water Resources, 

, 

(2010) (“Consideration of prior versions of a statute certainly
is appropriate as part of a statute’s context.”).
           The text of ORS 167.315 provides:
   “(1) A person commits the crime of animal abuse in the
   second degree if, except as otherwise authorized by law, the
   person intentionally, knowingly or recklessly causes physical injury to an animal.”
(Emphasis added.) In turn, ORS 167.310(10) defines “physical injury” as “physical trauma, impairment of physical condition or substantial pain.” (Emphasis added.)
         Until 2001, ORS 167.310 provided that “ ‘[p]hysical
injury’ has the meaning provided in ORS 161.015.” ORS
167.310(5) (1999), amended by Or Laws 2001, ch 926, § 7.
Then, as now, ORS 161.015 provided that “physical injury”
meant “impairment of physical condition or substantial
pain.” (Emphasis added.) We have previously explained that,
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as used in ORS chapter 161, “substantial pain” refers to pain
that is “ample or considerable, and not fleeting or inconsequential,” and it “refers both to the degree and the duration
of pain subjectively experienced by a victim.” State v. Long,

, 

 (2017) (citations and
internal quotation marks omitted). Thus, prior to 2001, “substantial pain” had the same meaning in the animal context
as it did in the human context—i.e., pain that is “ample” or
“considerable,” and not “fleeting” or “inconsequential.”
         In 2001, the legislature amended ORS 167.310,
which defines “physical injury.” But “[t]he fact that the legislature altered the wording of a statute does not always
mean that it intended to alter the substantive effect of the
statute.” Pete’s Mountain Homeowners, 

.
Indeed, the 2001 amendments indicate a legislative intent
to retain the same meaning of “substantial pain.” The definition of “physical injury” in ORS 167.310, aside from adding the words “physical trauma,” uses verbatim the same
definition of “physical pain” provided in ORS 161.015—i.e.,
“impairment of physical condition or substantial pain.” That
context supports our understanding that, even after the 2001
amendments to ORS 167.310, the legislature intended that
“substantial pain” would continue to have the same meaning in the animal abuse context as it does in the human
context.
         Legislative history further supports that understanding. The textual changes to the definition of “physical injury” in ORS 167.310 were among the amendments
proposed in Senate Bill (SB) 230 (2001). As explained by
Stephan Otto—a member of the workgroup that drafted SB
230—“this bill mainly fixes some of the problems with the
definitions, so that law enforcement can adequately enforce
these existing laws.” Audio Recording, Senate Committee
on Judiciary, SB 230, Feb 15, 2001, at 1:12:40 (comments
of Stephan Otto, Animal Legal Defense Fund). “One such
problem,” Mr. Otto explained, “is that the current definition
of ‘physical injury’ suffered by an animal borrows the same
definition used for ‘physical injury’ of a person. … [And]
difficulty for prosecutors arises because animals, unlike
people, can never voice the severity and duration of the pain
they suffer.” Testimony, Senate Committee on Judiciary,
368                                                    State v. Hackett

SB 230, Feb 15, 2001, Ex D (statement of Stephen Otto,
Animal Legal Defense Fund). To address that problem,
the legislature added “physical trauma”—“a more objective
standard” 4 —to the definition of “physical injury” in ORS
167.310, 

 but otherwise retained the existing definition
borrowed from ORS 161.015—i.e., “impairment of physical
condition or substantial pain.” That history suggests that
the 2001 amendments to the definition of “physical injury”
in ORS 167.310 were intended to expand upon the definition
of “physical injury” to better fit the animal abuse context,
not to replace the pre-2001 meaning of “substantial pain.”
         Based on that text, context, and legislative history,
we understand that “substantial pain” in the animal abuse
context has the same meaning as it does in the human context. With that meaning in mind, we next address whether
the trial court erred when it denied defendant’s MJOA.
      2. Defendant’s MJOA
          Defendant argues that the trial court erred when
it denied his MJOA, because the state’s evidence was not
sufficient to show that Bosco suffered “substantial pain.”
“[E]vidence establishing substantial pain must meet both a
degree or intensity threshold as well as a durational threshold.” Colpo, 

. Here, defendant does not
challenge the sufficiency of the evidence as to the degree of
pain; rather, defendant contends that the facts “do not permit an inference that Bosco experienced a significant duration of pain.” (Emphasis in original.) “[W]ith respect to duration, ‘substantial pain’ cannot be ‘fleeting’ and must be more
than ‘momentary.’ ” 

 at 694 (quoting State v. Guzman, 

, 

 (2016)). Thus, the narrow issue
before us is whether, viewing the facts and all reasonable
inferences in the light most favorable to the state, a rational
trier of fact could find beyond a reasonable doubt that Bosco
suffered pain that was more than “fleeting” or “momentary.”
We conclude that a rational factfinder could so find.
        That conclusion is guided by our case law regarding “substantial pain.” That case law has defined the limits

    4
      Under ORS 167.310(11), “ ‘Physical trauma’ means fractures, cuts, punctures, bruises, burns or other wounds.”
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of “substantial pain” “primarily by describing what ‘substantial pain’ is not.” Guzman, 

; see also,
e.g., State v. Johnson, 

, 

(2015), rev den, 

 (2016) (evidence that victim felt
a “sting” when the defendant slapped her was insufficient
to support a finding of substantial pain); State v. Lewis, 

, 

 (2014) (“[E]ven if a trier of
fact could infer that the hair-pulling caused the victim some
pain, there is no evidence in the record that the degree or
duration of the pain was sufficient to constitute ‘substantial
pain.’ ”); State v. Rennells, 

, 

 (2012), rev den, 

 (2013) (evidence insufficient
to show “substantial pain” where the victim experienced
bruising on her legs that lasted several days but did not testify that she had suffered any pain and, when asked by the
prosecutor whether it hurt when the defendant kicked her,
answered, “No, I was kicking him.”); Long, 

 (insufficient evidence of substantial pain where state
failed to adduce any evidence of either the quality or duration of the victim’s pain and the only evidence in the record
about pain was the victim’s testimony “squarely denying
that she experienced any pain”).
         In other cases, however, we have addressed instances
where the evidence was legally sufficient to show “substantial pain.” See, e.g., Colpo, 

 (evidence
sufficient as to both degree and duration where six-year-old
victim was punched in the stomach and experienced “90
seconds of pain rated at a seven [out of ten]”); State ex rel.
Juv. Dept. v. Greenwood, 

, 

(1991) (headache lasting approximately one hour after being
hit on head with umbrella constituted substantial pain).
         Regarding “substantial pain,” we have observed
that “in the context of an MJOA, whether the evidence was
sufficient to submit that question to the factfinder depends
upon what that evidence was.” Guzman, 

.
But in “many of our ‘substantial pain’ cases, the victim has
not testified.” 

. In such cases, “the set of reasonable
inferences that may be derived from the evidence is determinative as to whether the issue is submitted to the trier of
fact,” and “[t]he court’s role is to determine—as a matter of
law—where the sometimes faint line must be drawn between
370                                         State v. Hackett

those inferences that are reasonable and those that are too
speculative.” 

 Here, the victim, a dog named Bosco, did
not (and could not) testify about his pain. Consequently, our
analysis turns on the set of reasonable inferences that may
be derived from the evidence.
         We conclude that the evidence in this case is legally
sufficient to support a reasonable inference that Bosco suffered pain that was more than “fleeting” or “momentary.”
The testimony adduced at trial was that Bosco was “yiking
and whimpering” and “laying in submission” “on [his] back,”
while defendant “was kicking” Bosco “very hard.” The mother
testified that defendant’s kicking “wasn’t just a slight little smack on the head”; rather, defendant was “kicking his
dog severely.” Similarly, the daughter testified that defendant was “just going to town and beating the dog,” and that
defendant’s kicking was initially “[b]ad enough” that she
“didn’t know if the dog was gonna even live,” though eventually the kicking “wasn’t as bad.” The daughter also testified
that she saw defendant throwing rocks at Bosco, who was
lying on the side of the highway. That testimony about the
severe nature of the kicking and the rock throwing is alone
sufficient to support a reasonable inference that Bosco experienced pain that was more than fleeting or momentary. See
Colpo, 

 (“[T]he degree of pain felt by a victim can inform the determination of whether the pain was
fleeting or momentary.”).
        Additionally, the daughter’s testimony further supports an inference that, due to the repeated kicking and
extended nature of the incident itself, Bosco’s pain was more
than fleeting or momentary. The daughter’s account begins
with hearing Bosco “yike” while she was standing in her
mother’s kitchen. Her account continues as she leaves the
house to investigate the “yiking”; descends the stairs; sees
defendant in the road kicking Bosco; goes back up the stairs
and into the house; tells her mother to “Call 911”; retrieves
her mobile phone from inside the house; again exits the
house and descends the stairs; and returns to the scene to
find that defendant is still kicking Bosco. Although there is
no indication in the record as to the exact duration of the
incident, that testimony nevertheless supports a reasonable inference that the incident itself—and, thus, Bosco’s
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pain—persisted for an extended period of time such that it
was more than “fleeting” or “momentary.”5 See Colpo, 

 (“As long as there is evidence in the record
to establish that the pain is not ‘fleeting’ or is ‘more than
momentary,’ it becomes a question of fact for the factfinder.”).
         For the above reasons, we conclude that the evidence
was sufficient for a rational trier of fact to find beyond a reasonable doubt that Bosco suffered pain that was more than
“fleeting” or “momentary.” That is, the evidence was legally
sufficient for a jury to find that the durational threshold for
“substantial pain” was satisfied. Accordingly, the trial court
did not err in denying defendant’s MJOA.
B.   Defendant’s Fines
         Defendant next contends that the trial court erred
when it imposed, and ordered the clerk to enforce, $1,200 in
fines “due in 30 days”—in addition to a 24-month term of
incarceration—without determining defendant’s ability to
pay those fines. The state concedes, and we agree, that the
trial court erred in imposing that payment schedule without
determining defendant’s ability to pay. ORS 161.675(1) (“If a
defendant is sentenced to a term of imprisonment, any part
of the sentence that requires the payment of a sum of money
for any purpose is enforceable during the period of imprisonment if the court expressly finds that the defendant has
assets to pay all or part of the amounts ordered.”); State v.
Foos, 

, 

 (2018). On that
basis, we reverse and remand.
                         III.   CONCLUSION
        For the foregoing reasons, we conclude that the trial
court did not err in denying defendant’s MJOA. We further
conclude, and the state concedes, that the trial court erred
when it ordered that defendant’s fines were “due in 30 days.”
         Reversed and remanded for entry of judgment omitting the “due in 30 days” requirement; otherwise affirmed.

    5
      At oral argument, counsel for defendant estimated that the kicking incident lasted between 10 seconds and one minute. However, nothing in the record
dispositively supports or refutes that estimate.