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FILED: March 23, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

SCOTT RUSSELL KUPERUS, II,

Defendant-Appellant.

Marion County Circuit Court
08C41055
A139824

Susan M. Tripp, Judge.

Argued and submitted on August 26, 2010.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Rene C. Holmes, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Nakamoto, Judge.*

NAKAMOTO, J.

Conviction for first-degree assault reversed; remanded for resentencing; otherwise affirmed.

*Nakamoto, J., vice Landau, J., pro tempore.

NAKAMOTO, J.

Defendant was convicted of first-degree assault, ORS 163.185, and second-degree assault, ORS 163.175, based on an incident in which he bit off a portion of the victim's ear. He appeals, contending that the trial court erred in denying his motion for judgment of acquittal on each offense. First, defendant argues that he could not be convicted for first-degree assault, because defendant's teeth are not considered a "dangerous weapon." Second, defendant argues that there was insufficient evidence to support his conviction for second-degree assault, because he did not cause the victim "serious physical injury." We reverse as to the first-degree assault conviction, and affirm as to the conviction for second-degree assault.

"When the facts are not in dispute, we review the denial of a motion for a judgment of acquittal as a question of law." State v. Nollen, 196 Or App 141, 144, 100 P3d 788 (2004) (citation omitted). If the parties dispute the elements of a crime, we usually first determine what, precisely, the legislature intended to require the state to prove. State v. Lockamy, 227 Or App 108, 113, 204 P3d 822 (2009); see also State v. Jones, 223 Or App 611, 616, 196 P3d 97 (2008), rev den, 345 Or 618 (2009) ("[W]e first address * * * question[s] of statutory interpretation, which we review for errors of law.").

The relevant facts are not in dispute. During a physical altercation, defendant bit off a portion of the victim's left ear. The victim lost the soft outer edge of his ear below the cartilage portion of the helix (the curved top of the outer ear) and above the earlobe. A scar is visible where the missing portion of the ear should be, and the victim requires a prosthetic device for his ear.

Defendant was charged with first-degree assault and second-degree assault. At his bench trial, at the close of the state's case, defendant moved for a judgment of acquittal on both charges. Defendant argued that teeth are not a dangerous weapon, a required element of first-degree assault, and that there was insufficient evidence to prove second-degree assault, because the victim did not suffer a serious physical injury. The trial court denied the motions, found defendant guilty on both charges, and merged the two convictions. On appeal, defendant renews his arguments.

We first address defendant's challenge to his conviction of first-degree assault under ORS 163.185. In interpreting a statute, the court's task is to discern the intent of the legislature. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). We first look at the text and context of the statute, and we will consider legislative history if it appears useful to the court's analysis. State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009).

Assault and related offenses are codified at ORS 163.160 to 163.213. The elements of first-degree assault are contained in ORS 163.185, which provides, in part:

"(1) A person commits the crime of assault in the first degree if the person:

"(a) Intentionally causes serious physical injury to another by means of a deadly or dangerous weapon[.]"

A "dangerous weapon" is defined in ORS 161.015(1) as

"any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury."

Thus, to prove first-degree assault "by means of a * * * dangerous weapon," the state must establish that the object used was a "weapon, device, instrument, material or substance," and that "under the circumstances in which it is used, * * * [it] is readily capable of causing death or serious physical injury." ORS 161.015(1).

The trial court in this case focused on the issue of whether defendant's teeth could readily cause serious injury by biting. The court concluded that teeth, under these circumstances, are a dangerous weapon, but failed to specify whether teeth are a "weapon, device, instrument, material or substance." On appeal, defendant argues that his teeth do not qualify as a "dangerous weapon" under ORS 163.185(1) because they are not a "weapon, device, instrument, material or substance" as those terms are used in ORS 161.015(1).

Absent a legislative definition, the court ordinarily presumes that the legislature intended terms to have their plain, natural, and ordinary meaning. PGE, 317 Or at 611. The plain meaning of the terms used in ORS 161.015(1) suggest something external to the human body and thus would not encompass defendant's own teeth. The dictionary defines "weapon" as an "instrument of offensive or defensive combat: something to fight with[.]" Webster's Third New Int'l Dictionary 2589 (unabridged ed 2002). (1) An "instrument" is defined as a "UTENSIL, IMPLEMENT," Webster's at 1172, implying a tool separate from the human body. The other terms used in ORS 161.015(1) similarly connote a thing or object different from a body part. The dictionary defines "device" as "a piece of equipment or a mechanism designed to serve a special purpose or perform a special function[.]" Webster's at 618. "Material" is defined as "the basic matter (as metal, wood, plastic, fiber) from which the whole or the greater part of something physical (as a machine, tool, building, fabric) is made * * * the finished stuff of which something physical (as an article of clothing) is made[.]" Webster's at 1392. Finally, "substance" means a "material from which something is made and to which it owes its characteristic qualities[,] * * * a distinguishable kind of physical matter[.]" Webster's at 2279.

Thus, the plain meaning of the terms used to define "dangerous weapon" in ORS 161.015(1) suggests that the legislature did not intend a defendant's own teeth to be considered as a "dangerous weapon," because teeth are not external to the human body.

The context of the first-degree assault statute and the legislative history of the revision of the assault-related offenses also support such a construction of the statute. In 1971, the legislature revised the assault offenses and enacted ORS 161.015 as part of a comprehensive revision to the Criminal Code by the Criminal Law Revision Commission (the commission). See Or Laws 1971, ch 743,