State v. Damofle

¶1dissenting.

¶2Because I disagree with the majority’s interpretation of ORS 163.200(1) and the ultimate result of the case, I dissent.

¶3The majority holds that the statute is not unconstitutionally vague and that it does not require actual harm to occur before it is violated. 89 Or App at 624. In my opinion, the statute is vague and the majority’s reading of the statute is contrary to established principles of statutory interpretation.

¶4The majority focuses on the interpretation of “physical care” and concludes that that term is not vague. It is the term “adequate” which renders the statute unconstitutionally vague. The statutory standard “adequate physical care” is so subjective as to provide a judge or jury no guidance whatsoever *627in determining whether a defendant’s conduct has violated it. It is impossible to enumerate all of the conditions that may exist from time to time in every household, however humble or affluent, that a jury might consider to be unsanitary or dangerous. For example, a jury might consider the existence of unwashed dishes in a kitchen sink to be unsanitary or believe that a parent owning a swimming pool is criminally liable because the pool poses a potential for harm regardless of whether the children were supervised and unharmed. If the statute is read as the majority reads it, the presence of unsanitary or dangerous conditions without more might subject a person to criminal prosecution. In any event, the statute criminalizes the “withholding of necessary and adequate … physical care[.]” In other words, it punishes the inadequacy of the care. That defendants may have “surrounded their children with alligators” but they were nevertheless healthy and uninjured is at least as consistent with adequate care as with the lack of it.

¶5A criminal statute attacked as vague can sometimes be saved by a judicial interpretation. State v. Robertson, 293 Or 402, 411, 649 P2d 569 (1982). The term in question should be construed together with the other statutory terms. Withholding necessary and adequate food or medical attention, which is also punishable under the statute, ordinarily results in injury to the protected persons. To assure consistent interpretation of all the statutory terms, withholding physical care, to be criminally punishable, must also result in some injury to the victim.

¶6Moreover, it is obvious from a comparison of particular offenses against persons in ORS chapter 163, that when the legislature has intended to punish the mere creation of the risk of physical injury, it has expressly so provided. The child neglect statute, ORS 163.545, for example, makes a person criminally liable for neglecting a child for a period of time “as may be likely to endanger the health or welfare of such child.” A person is liable for recklessly endangering another under ORS 163.195 when the person creates “a substantial risk of serious physical injury.” ORS 163.197 defines “hazing” as subjecting a person to “bodily danger or physical harm or a likelihood of bodily danger or physical harm.”

¶7*628The construction of statutes relating to the same subject should be consistent. The legislature has, in other contexts, prohibited directly the creation of a risk of physical injury when it has intended to create criminal liability for that conduct. It follows that here the legislature did not intend to impose liability for mistreatment in the absence of an injurious result.

¶8I would hold that the evidence of unsanitary or dangerous conditions found on the day of arrest was insufficient by itself to convict defendants of criminal mistreatment under ORS 163.200(1).1