[DV_listserv] Appeals Case

[Domestic Violence issues]

HOMICIDE-MURDER BY ABUSE: In a prosecution for murder by abuse under
ORS 163.115(1)(c), the term "physical disability," for purposes of the definition of
"dependent person" in ORS 163.205(2)(b), need not be a permanent disability; the only
requirement is that the disability rendered the person "dependent on another" for some
period of time.
State v. Fitzhugh, 260 Or App __, __ P3d __ (December 26, 2013) (Clatsop)
(AAIC Jamie Contreras). Defendant was charged with murder by abuse of a "dependent
person," ORS 163.115(1)(c), and the case was tried on stipulated facts. The facts showed that he
brutally assaulted the victim, ,his girlfriend with whom he lived, causing her severe injuries that
left her entirely dependent on him for her basic needs for at least two days; his neglect of her
ultimately resulted in her death. He argued that those facts did not prove, as a matter of law, that
the victim had a "physical disability," within the meaning of the definition of "dependent
person" in ORS 163.205(2)(b), at the time of her death. He argued that the victim was not a
dependent person within the meaning of the law, based on his claim that the legislature
contemplated that "physical disability" refer only to disabilities that are permanent. The trial
court (Judge Philip Nelson) denied defendant's motion for judgment of acquittal, and found him
guilty.
Held: Affirmed (Hadlock, J.). The trial court correctly denied the motion for judgment of
acquittal. [1] "The term 'physical disability is not limited to disabilities that are permanent or
enduring. Rather, the only temporal constraint in the definition of 'dependent person' is in the
requirement that the person's mental or physical disability have rendered the person 'dependent
upon another' for some period of time." [2] "In this case, a factfinder could infer from the
stipulated facts that the victim had a physical disability that left her completely reliant on
defendant for a period of at least two days before she died. Such a finding would establish that
the victim was a 'dependent person' during that period of time."
http://www.publications.ojd.state.or.us/docs/A149719.pdf

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