State v. Dugger

698 P.2d 491 (1985)

73 Or.App. 109

STATE of Oregon, Appellant, v. Glen Raymond DUGGER, Respondent.

DA 275090; CA A33056.

Court of Appeals of Oregon, In Banc.

Argued and Submitted December 21, 1984.

Resubmitted March 6, 1985.

Decided April 10, 1985.

*492 Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Cynthia Cumfer, Portland, waived appearance for respondent.

Resubmitted In Banc March 6, 1985.

RICHARDSON, Judge.

Defendant publicly exposed his genitals while he was in the Frederick & Nelson department store, and he was charged with public indecency. ORS 163.465. He entered into a civil compromise with the store's management pursuant to ORS 135.703 et seq., and the trial court dismissed the charge. The state appeals from the dismissal. We reverse.

ORS 135.703 provides:

"When a defendant is charged with a crime punishable as a misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised, as provided in ORS 135.705, except when it was committed: "(1) By or upon a peace officer while in the execution of the duties of his office; "(2) Riotously; or "(3) With an intent to commit a crime punishable only as a felony."

The state argues that public indecency is not the kind of offense to which ORS 135.703 applies, because the statute is limited to "cases in which the person injured by the act constituting the crime has a civil action remedy. Public indecency is not such a crime." The problem with the state's argument is that it does not go far enough. It is virtually unimaginable that any crime cannot produce some injury that is redressable through a civil action. Here, for example, the store could have lost business or suffered other compensable injury as a result of defendant's act. In our view, the issue is whether the statute applies to a criminal act that can produce a civilly redressable injury if that injury is not the sole consequence of the act and is incidental at most to the legislature's objective in criminalizing the act.

In State v. Yos, 71 Or. App. 57, 691 P.2d 508 (1984), decided while this appeal was pending, we held that a charge of reckless driving was properly dismissed by the trial court after the defendant had "entered into a civil compromise with the person whose auto he had struck" while driving recklessly. We explained:

"The civil compromise statute, ORS 135.703, applies to any `crime punishable as a misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action.' The statute requires three elements to invoke the compromise procedure: (1) an act, (2) that is punishable as a misdemeanor and (3) for which a person has a civil remedy. All the elements are present here: defendant drove recklessly a crime punishable as a misdemeanor and a person was injured and would have a civil remedy in tort against the driver." 71 Or. App. at 59-60, 691 P.2d 508. (Emphasis added; footnote omitted.)

*493 The problem with our reasoning in Yos begins with the emphasized language. Yos refers to a person injured by the defendant's act; the statute refers to the person injured by the act. The words "a person injured by the act" in the statutory context might indeed dictate the conclusion we reached in Yos that the civil compromise procedure is available to defendants charged with crimes of any kind, if the consequences of their conduct happen to include an injury for which a person has a remedy by civil action. However, the words "the person injured by the act" do not carry the same connotation of randomness; they indicate that there must be a discrete victim or victims in order for the act to constitute a crime.

We noted in Yos:

"While the statutory language compels this result, we wish to note our objection to it. Read together, this case and State v. Duffy[, 33 Or. App. 301, 576 P.2d 797 (1978),] now stand for the proposition that a reckless driver who misses people during his drive can be prosecuted, but one who hit someone can buy his way out. As a matter of public policy, that seems backwards. We commend the matter to the attention of the legislature." 71 Or. App. at 60, n. 4, 691 P.2d 508.

We now conclude that the language of the statute does not compel the result we reached in Yos. Even if the statutory language supports our interpretation in Yos, we now reject that interpretation, because it is not compelled and because, as the Yos footnote suggests, the interpretation produces an absurd and unreasonable result. See Johnson v. Star Machinery Co., 270 Or. 694, 704, 530 P.2d 53 (1974). Yos was wrongly decided, and we overrule it.

The defendant in Yos was not entitled to a civil compromise of the reckless driving charge, because his offense endangered every person and vehicle on the road, as well as caused actual damage to one car and driver. The defendant in this case is not entitled to avail himself of the civil compromise procedure, because other members of the public who observed or could have observed his act were as entitled as the management of the store not to be subjected to it. Both reckless driving and public indecency are acts that the legislature has criminalized to protect the public at large. The coincidence that any given person is compensably injured by the commission of those acts has no cognizable relationship to the legislature's purpose in criminalizing them or to the legislature's purpose in establishing the civil compromise procedure as an alternative to the prosecution of misdemeanors that affect only persons who have a right to civil redress.[1]

Reversed and remanded for trial.

NOTES

[1] We do not suggest that the public's abstract interest in the prosecution of crime prevents the civil compromise of misdemeanors that can do nothing more than cause actual injury to a particular person or persons.