State v. Browning
386 P.3d 192
Or. Ct. App.2016Background
- Defendant was charged with 14 counts of first-degree criminal mistreatment for withdrawing funds from accounts of his elderly mother and mother‑in‑law, each of whom had given him power of attorney. He repaid some funds and claimed the withdrawals were loans.
- ORS 163.205(1)(b)(D) makes it first‑degree criminal mistreatment to “hide,” “take,” or “appropriate” an elderly person’s money or property for a use not in the due and lawful execution of the caregiver’s responsibility.
- The state moved in limine seeking a ruling that “take” and “appropriate” cover both temporary and permanent deprivations; the trial court granted the motion.
- Defendant entered conditional guilty pleas reserving the right to appeal the statutory interpretation ruling.
- The court framed the dispositive question as whether, under ORS 163.205(1)(b)(D), “take” requires an intent to permanently deprive the owner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "take" in ORS 163.205(1)(b)(D) requires intent to permanently deprive | State: "take" covers temporary or permanent exercises of control; no permanent‑deprivation requirement | Defendant: "take/appropriate" requires permanent deprivation like theft statutes | Court: "take" includes exercising dominion or control for use (temporary or permanent); no permanent‑deprivation requirement |
| Whether theft‑statute precedent (ORS 164.015/164.005) imports a permanence requirement into criminal mistreatment | State: differences in statutory text and culpable mental state mean theft’s permanence rule does not carry over | Defendant: theft interpretation of "take" (and permanence) should apply to mistreatment statute | Court: theft’s permanence requirement arises from its specific mens rea and statutory definitions (ORS 164.005); mistreatment statute omits that language, so court will not insert permanence requirement |
Key Cases Cited
- State v. Serrano, 346 Or. 311, 210 P.3d 892 (2009) (standard of review for statutory interpretation)
- PGE v. Bureau of Labor & Indus., 317 Or. 606, 859 P.2d 1143 (1993) (text and context are primary guides to legislative intent)
- State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009) (use text, context, and legislative history in statutory construction)
- State v. Spears, 223 Or. App. 675, 196 P.3d 1037 (2008) (interpreting "take" in theft context as securing dominion and control)
- Church v. Woods, 190 Or. App. 112, 77 P.3d 1150 (2003) (defining "take" in financial‑abuse civil statute to include arranging for possession or use)
- State v. Klein, 352 Or. 302, 283 P.3d 350 (2012) (related‑statutes/contextual analysis)
- State v. Pusztai, 269 Or. App. 893, 348 P.3d 241 (2015) (differences in statutory text inform differing mens rea requirements)
- State v. Christine, 193 Or. App. 800, 93 P.3d 82 (2004) (discussion of legislative definitions distinguishing temporary vs permanent deprivation)
- State v. Bevil, 280 Or. App. 92, 376 P.3d 294 (2016) (legislative history and statutory breadth in elder‑abuse context)