State v. Lorenzo , 301 Or. App. 713 ( 2020 )

713
Submitted December 2, 2019, reversed and remanded January 15, 2020
STATE OF OREGON,
Plaintiff-Appellant,
v.
ALEX DAVID MURRAY LORENZO,
aka Alex David Murray,
Defendant-Respondent.
Clackamas County Circuit Court
18CR56002; A170384
459 P3d 268
The state appeals a trial court order dismissing the state’s information
charging defendant with attempted third-degree assault constituting domes-
tic violence. The trial court dismissed the information under ORCP 55 G after
the alleged victim disobeyed the state’s subpoena and failed to appear at trial.
Held: Although a crime victim has rights protected by the Oregon Constitution,
the victim is not a “party” to a criminal proceeding; therefore, the trial court
lacked authority under ORCP 55 G to dismiss the state’s charging instrument.
Reversed and remanded.
Susie L. Norby, Judge.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney General,
filed the brief for appellant.
No appearance for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Reversed and remanded.
714 State v. Lorenzo
DeVORE, P. J.
The state appeals a trial court order dismissing
the state’s information charging defendant with attempted
third-degree assault constituting domestic violence. ORS
161.405; ORS 163.165.1 The court dismissed the information
under ORCP 55 G after the alleged victim, who had been
subpoenaed by the state, failed to appear for trial. ORCP
55 G applies in criminal proceedings, ORS 136.600, and
provides:
“Disobedience to a subpoena or a refusal to be sworn
or to answer as a witness may be punished as contempt by
a court before whom the action is pending or by the judge
or justice issuing the subpoena. Upon hearing or trial, if
the witness is a party and disobeys a subpoena or refuses to
be sworn or to answer as a witness, such party’s complaint,
answer, or reply may be stricken.”
(Emphasis added.) The state contends that the court erred
in dismissing the information because the alleged victim
was not a party in the case. Defendant does not appear on
appeal. For the reasons explained below, we agree with the
state and, accordingly, reverse and remand.
The relevant facts are few. The state charged defen-
dant by information with attempted third-degree assault
constituting domestic violence for attempting to cause physi-
cal injury to his stepfather. At the time set for trial, the pros-
ecutor told the court that his office had received a call about
20 minutes earlier that the alleged victim—whom the state
had subpoenaed—was unable to attend trial, but that the
state was nonetheless prepared to proceed. Defendant—who
had not subpoenaed the alleged victim—asked the court to
dismiss the case or reset the trial date. He contended that
the “alleged victim[ ] needs to be here,” that “[h]e’s under
subpoena * * * and if he is actually out of state or is on his
way out of state and calls in and gives a false reason, he’s
clearly manipulating the system not wanting to be here,
and I want him here to be questioned if the State’s going
to proceed, number one.” And, “[n]umber two, * * * without
1
The legislature amended the third-degree assault statute, ORS 163.165,
effective January 1, 2020. Or Laws 2019, ch 213, § 119. Because those amend-
ments have no bearing on our analysis here, we cite that version.
Cite as 301 Or App 713 (2020) 715
him here they can’t prove * * * the fact that it’s domestic
violence.”
The court called a recess, and the court and counsel
discussed the issue further in chambers. After going back
on the record, the prosecutor asserted that the court could
not dismiss the information under ORCP 55 because the
subpoenaed witness who did not appear was not a party to
the case, and, therefore, the appropriate remedy was a “con-
tempt proceeding, as opposed to anything * * * happening
to this case, such as a dismissal.” Citing State v. Baker/Jay,
232 Or App 112, 221 P3d 749 (2009), rev den, 348 Or 280(2010), the prosecutor argued that dismissing the informa-
tion would punish the party issuing the subpoena, rather
than further the purposes of the rule—to provide a mech-
anism for courts to compel a witness to appear or punish a
witness for failure to appear. The prosecutor suggested that
the court continue the matter, “then if [defendant] wishes to
subpoena [the alleged victim] he can, and then * * * we can
deal with that at the next hearing of this trial, but everyone
will be on notice as to the likelihood that he may not appear,
and * * * [defendant’s] claims of prejudice and reliance on
the State’s subpoena won’t be a basis for not pursuing with
[or] without [the alleged victim].”
In response, defendant acknowledged that the alleged
victim in a criminal case is not “technically a party,” but
asserted that all victims are “de facto parties” based on the
“Victim’s Rights Act,” and renewed his request that the case
be dismissed.
The trial court agreed with defendant, explaining:
“When a court is presented with a contempt in its direct
presence due to disobedience of a subpoena, it has discre-
tion and authority to punish that contempt pursuant to
ORCP 55 G, which applies in criminal cases under ORS
136.600 and State v. Baker, 232 Or App 112, particularly
page 121, a 2009 case.
“* * * * *
“* * * [A] continuance in this context would penalize the
defendant, not the victim. It would effectively condone the
victim’s choice not to appear, and require the defendant
716 State v. Lorenzo
to wait months longer for a decision in his criminal case,
therefore the only form of penalty that would constitute
a penalty at all, would be a criminal penalty for the dis-
obedience. A defendant does have a constitutional right to
confront his accuser, and although it is the State that files
criminal charges, and not an individual, the constitution
recognizes victims as having an elevated status, and vests
them with considerable rights to counter balance those
people who are accused of crimes. The victim is the face of
the accuser in a criminal context.
“Today the defendant has emphasized his need to face
and question his accuser, and has requested dismissal of
the complaint to sanction the victim’s disobedience at this
subpoena. Under ORCP 55 G, disobedience to a subpoena
* * * may be punished as contempt by a court for whom the
action is pending, or by the judge or justice issuing the
subpoena.
“Upon hearing or trial if the witness is a party and dis-
obeys his subpoena, or refuses to be sworn, or to answer as
a witness, that party’s complaint, answer, or reply may be
stricken.
“In the criminal context in which this applies under ORS
136.600, although the victim is not technically a party to the
case, the victim’s elevated constitutional status and inex-
tricable connection to the State’s decision to file criminal
charges, makes them the equivalent of a party in a criminal
case context.
“Complaints are not stricken as the language of ORCP 55
G invites, criminal cases are dismissed, rather than stricken,
therefore the choice of the victim to disobey the subpoena
today is properly sanctioned by dismissal of the State’s
complaint.”
(Emphases added.) The court subsequently entered an order
granting defendant’s motion to dismiss the state’s informa-
tion without prejudice, triggering this appeal.
On appeal, the state contends that, as a matter of
statutory construction, a victim is not a “party” for purposes
of ORCP 55 G, and, therefore, the court erred in concluding
that the rule authorized it to dismiss the state’s charging
instrument when the alleged victim in the case failed to com-
ply with the state’s subpoena. Moreover, the state asserts,
Cite as 301 Or App 713 (2020) 717
the trial court’s interpretation of ORCP 55 G undermines
the purposes of the rule.
We review the correctness of the trial court’s inter-
pretation of ORCP 55 G for legal error. State v. Hunt, 270
Or App 206, 210, 346 P3d 1285 (2015). As with any exercise
of statutory construction, we examine the text and context
of the rule and consider legislative history to the extent
we deem appropriate. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009) (explaining methodology); Pamplin v.
Victoria, 319 Or 429, 433, 877 P2d 1196 (1994) (rule of civil
procedure “is a statute, to which we apply the usual method
of statutory interpretation”).
The second sentence of ORCP 55 G, upon which the
trial court relied to dismiss the state’s information, provides,
“Upon hearing or trial, if the witness is a party and disobeys
a subpoena or refuses to be sworn or to answer as a witness,
such party’s complaint, answer, or reply may be stricken.”
(Emphasis added.) By its plain terms, the provision applies
only if the witness who disobeys a subpoena is a “party” to
the case. The parties to a criminal case are described in
ORS 131.025, which provides, “Except for offenses based
on municipal or county ordinance, in a criminal action the
State of Oregon is the plaintiff and the person prosecuted
is the defendant.” The statute does not include the victim of
the alleged crime as an additional plaintiff. For purposes of
ORS chapter 136 (governing criminal trials), the legislature
has separately defined “victim,” to mean,
“the person or persons who have suffered financial, social,
psychological or physical harm as a result of a crime and
includes, in the case of a homicide or abuse of corpse in any
degree, a member of the immediate family of the decedent
and, in the case of a minor victim, the legal guardian of the
minor. In no event shall the criminal defendant be consid-
ered a victim.” 2
ORS 131.007. See also State v. Pelham, 136 Or App 336,
341, 901 P2d 972 (1995), rev den, 323 Or 264 (1996) (“The
only parties to a criminal prosecution are the state and the
2
The statute provides an exception if a different definition “is otherwise spe-
cifically provided” or “the context requires otherwise”; we see no reason why that
would have any application here.
718 State v. Lorenzo
defendant. Witnesses to and even victims of criminal activ-
ity are not ‘parties.’ ” (Emphasis in original.)). Thus, text and
context indicate that a victim is not a party for purposes of
ORCP 55 G.
The trial court and defendant recognized as much.
Nonetheless, the court reasoned that “the victim’s elevated
constitutional status and inextricable connection to the
State’s decision to file criminal charges, makes them the
equivalent of a party in a criminal case context.” (Emphasis
added.) However, we find no support for that proposition. The
court is correct that, in Oregon, a crime victim has rights
protected by the constitution. See Or Const, Art I, §§ 42,
43 (enumerating those rights, including, among others, the
right to be “present at” and “informed in advance of” any
critical stage of a criminal proceeding; the right to obtain
information about the conviction, sentence, imprisonment,
criminal history, and release from custody of a criminal
defendant; the right to restitution; the right to be consulted
regarding plea negotiations involving violent felonies). None
of those constitutional rights, however, purport to make the
victim a party to the criminal action.3 Nor does the statutory
scheme enacted by the legislature to effectuate crime vic-
tims’ constitutional rights, ORS 147.500 to 147.550, indicate
the legislature’s intent that a crime victim be treated as a
party in criminal proceedings.
We also agree with the state that the trial court’s
interpretation cannot be squared with the purpose of the
rule. See Baker/Jay, 232 Or App at 121 (explaining that the
intent of the rule is to obtain the witness’s appearance or
punish a witness’s noncompliance, or both). By dismissing
the state’s information because the alleged victim failed to
appear, the court, in effect, “ratifie[d] the witness’s noncom-
pliance by permitting him to continue not to appear and, in
effect, punish[ed] the party [that is, the state] who sought
3
Both Article I, section 42, and the implementing statutes define “victim”
for those purposes similarly to ORS 131.007—that is, as “any person determined
by the prosecuting attorney or the court to have suffered direct financial, psy-
chological or physical harm as a result of a crime and, in the case of a victim
who is a minor, the legal guardian of the minor.” Or Const, Art I, § 42(6)(c); ORS
147.500(13) (similar). As with ORS 131.007, there is no indication that a victim is
also a party to a criminal proceeding.
Cite as 301 Or App 713 (2020) 719
the witness’s testimony.” Id. That is contrary to the purpose
of the rule.
In sum, ORCP 55 G does not authorize a court to
dismiss the state’s charging instrument in a criminal case
where, as here, the witness who disobeys the subpoena is not
a party, but the victim of the alleged crime. The trial court
erred in concluding otherwise.
Reversed and remanded.