No. 50 August 7, 2014 777

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

ARNOLD WELDON NIX,

Respondent on Review.

(CC CRH090155; CA A145386; SC S060875)

On review from the Court of Appeals.*

Argued and submitted September 17, 2013.

David J. Celuch, argued the cause and filed the brief for 

petitioner on review.

Jamie K. Contreras, Assistant Attorney General, argued 

the cause and filed the brief for respondent on review.

Before Balmer, Chief Justice, and Kistler, Walters, 

Linder, Landau, and Baldwin, Justices.**

LANDAU, J.

The decision of the Court of Appeals is affirmed. The 

judgment of the circuit court is reversed, and the case is 

remanded for entry of separate convictions on each guilty 

verdict for a violation of ORS 167.325 and for resentencing.

____________

** Appeal from Umatilla County Circuit Court, Jeffrey M. Wallace, Judge. 

251 Or App 449, 283 P3d 442 (2012).

** Brewer, J., did not participate in the consideration or decision of this case.
778 State Nix

Defendant was found guilty and convicted of 20 counts of second-degree 

animal neglect. ORS 167.325 (2009). The trial court merged those convictions 

into a single conviction after determining that animals are not “victims” under 

Oregon’s anti-merger statute, ORS 161.067(2). The state appealed and the Court 

of Appeals reversed, reasoning that animals can be considered “victims” of animal neglect for purposes of the anti-merger statute. Held: The ordinary meaning 

of the word “victim” as it is used in ORS 161.067(2) can include both human and 

non-human animals. This court’s cases construing the term “victim” as it is used 

in that statute hold that, in fact, the meaning of the term is not to be found in 

an analysis of ORS 161.067(2) itself, but rather, it derives from the underlying 

substantive criminal statute that defendant has been found to have violated. A 

person violates ORS 167.325 by failing to provide minimum care to “an animal.” 

It is the animal itself that “suffers harm that is an element of the offense,” and 

therefore, it is the animal that is considered the “victim” of second-degree animal 

neglect for purposes of the anti-merger statute.

The decision of the Court of Appeals is affirmed. The judgment of the circuit 

court is reversed, and the case is remanded for entry of separate convictions on 

each guilty verdict for a violation of ORS 167.325 and for resentencing.
Cite as 355 Or 777 (2014) 779

LANDAU, J.

In this criminal case, defendant was found guilty 

of 20 counts of second-degree animal neglect. ORS 167.325 

(2009).1

 Oregon’s “anti-merger” statute, ORS 161.067, provides that, when the same conduct or criminal episode violates only one statute, but involves more than one “victim,” 

there are “as many separately punishable offenses as there 

are victims.” The issue in this case is whether defendant is 

guilty of 20 separately punishable offenses, which turns on 

the question whether animals are “victims” for the purposes 

of the anti-merger statute. The trial court concluded that, 

because only people can be victims within the meaning of 

that statute, defendant had committed only one punishable 

offense. The court merged the 20 counts into a single conviction for second-degree animal neglect. On appeal, the Court 

of Appeals concluded that animals can be victims within 

the meaning of the anti-merger statute and, accordingly, 

reversed and remanded for entry of a judgment of conviction 

on each of the 20 counts and for resentencing. State v. Nix, 

251 Or App 449, 283 P3d 442 (2012). We agree with the 

Court of Appeals and affirm.

The undisputed facts are aptly summarized by the 

Court of Appeals:

“Acting on a tip, police officers entered defendant’s farm 

and found dozens of emaciated animals, mostly horses 

and goats, and several animal carcasses in various states 

of decay. Defendant owned those animals. Defendant was 

indicted on 23 counts of first-degree animal neglect, ORS 

167.330, and 70 counts of second-degree animal neglect, 

ORS 167.325. Each separate count identified a different 

animal and charged conduct by defendant toward that 

animal. All of the separate counts were alleged to have 

1 ORS 167.325 was amended in 2013. Or Laws 2013, ch 719. The new law 

includes findings that “[a]nimals are sentient beings capable of experiencing 

pain, stress and fear” and that “[a]nimals should be cared for in ways that minimize pain, stress, fear and suffering.” Id. § 1. It also increases the penalty for 

second-degree animal neglect if, among other things, “the offense was part of a 

criminal episode involving 11 or more animals.” Id. § 4(3)(b). The amendments 

do not apply to this case, and we refer to the 2009 version of the law—the law 

that applied when defendant committed the offenses—throughout this opinion. 

We also express no opinion about the effect of the 2013 amendments on the issue 

presented in this case.
780 State Nix

occurred within the same span of time. A jury convicted 

defendant of 20 counts of second-degree animal [neglect].

“At defendant’s sentencing hearing, the state asked the 

trial court to impose 20 separate convictions because the 

jury had found defendant guilty of neglecting 20 different 

animals. Accordingly, the state argued, the convictions ‘do 

not merge based on [ORS 161.067](1), (2) and (3).’ The trial 

court disagreed and merged the guilty verdicts into a single conviction, explaining that

“‘[ORS 161.067(2)] talks about—although violating 

only one statutory provision, it involves two or more victims. In this case, I agree with the defendant’s position 

that the animals are not victims, as defined by the statute; by the ORS 161.067(2).

“‘* * * I don’t think that [ORS 161.067(3) ] applies 

because the animals are not victims under the definition of the statute requiring that to be persons.’

“Defendant was sentenced to 90 days in jail and three 

years of bench probation; the trial court suspended imposition of the jail sentence, and the state appealed.”

Nix, 251 Or App at 451-52.

The state appealed, assigning error to the trial 

court’s merger of the 20 counts of second-degree animal 

neglect. The state argued that, under State v. Glaspey, 337 

Or 558, 563, 100 P3d 730 (2004), the term “victim” in the 

anti-merger statute draws its meaning from the underlying 

substantive criminal statute that defendant violated. In this 

case, the state argued, the text, context, and legislative history of the second-degree animal neglect statute make clear 

that the legislature intended the neglected animals as the 

victims of the offense.

Defendant argued that the ordinary meaning of the 

term “victim” does not include non-humans. Animals, he 

argued, are treated by Oregon law as the property of their 

owners. In defendant’s view, because no statute expressly 

defines the word to include animals, only persons can be 

victims under the anti-merger statute.

The Court of Appeals reversed. In brief, the court 

reasoned that, following this court’s instruction in Glaspey, 
Cite as 355 Or 777 (2014) 781

the meaning of the term “victim” as it is used in the antimerger statute is determined by reference to the underlying 

substantive criminal statute that defendant violated. 251 

Or App at 457-58. The court explained that the substantive criminal statute at issue in this case, ORS 167.325, 

evinces a legislative concern with the well-being of animals. 

Reviewing the text and history of the statute, the court concluded that, although animals are usually considered the 

property of persons, ORS 167.325 reflects a broader public interest in “protect[ing] individual animals as sentient 

beings” by ensuring that such animals receive minimum 

care and are not abused or neglected. Id. at 460-61.

On review before this court, defendant renews his 

argument that “the ordinary meaning of the word ‘victim’ 

means a ‘person,’” not an animal. According to defendant, 

“[a]nimals are defined as property under Oregon law,” and 

“[t]here is no statute that allows property to be seen as a 

victim” of a criminal offense. In defendant’s view, the victim 

of an animal neglect case is either the public at large or the 

owner of the animal.

The state responds that the ordinary meaning of 

the word “victim” is not as narrow as defendant contends 

and that, to the contrary, it commonly is used to refer both to 

animals and to human beings. Moreover, because individual 

animals directly suffer the harm that is central to the crime 

of animal neglect, as set out in ORS 167.325, they are the 

“victims” of that crime. According to the state, the text and 

history of the statute make clear that the legislature was 

concerned with the capacity of animals to suffer abuse and 

neglect. Indeed, the state argues, the legislature expressly 

structured the animal neglect statutes “such that the degree 

of the crime corresponds to the extent of the animal’s suffering.” Thus, in the state’s view, the statutes evince a concern 

to protect more than a general public interest in animal welfare; rather, those statutes reflect the legislature’s intention 

to protect individual animals from suffering.

The issue before us is one of statutory construction, 

which we resolve by applying the familiar principles set 

out in PGE v. Bureau of Labor and Industries, 317 Or 606, 

610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 
782 State Nix

160, 171–73, 206 P3d 1042 (2009). Our goal is to ascertain 

the meaning of the statute that the legislature most likely 

intended. Halperin v. Pitts, 352 Or 482, 486, 287 P3d 1069 

(2012).

We begin with the text of the statute, in context. 

Oregon’s anti-merger statute provides that, when a defendant is found guilty of committing multiple crimes during a 

single criminal episode, those guilty verdicts “merge” into a 

single conviction, unless they are subject to one of a series of 

exceptions. One of those exceptions is ORS 161.067(2), which 

provides that, “[w]hen the same conduct or criminal episode, 

though violating only one statutory provision[,] involves two 

or more victims, there are as many separately punishable 

offenses as there are victims.” At issue in this case is the 

meaning of the word “victims” as it is used in that statute.

In the absence of evidence to the contrary, we assume 

that the legislature intended that the wording of an enactment to be given its ordinary meaning. State v. Murray, 340 

Or 599, 604, 136 P3d 10 (2006). The ordinary meaning of 

the word “victim” reflected in a dictionary of common usage 

is:

“1 : a living being sacrificed to some deity or in the performance of a religious rite 2 : someone put to death, tortured, 

or mulcted by another : a person subjected to oppression, 

deprivation, or suffering <a ~ of war> <a ~ of intolerance> 

<fell a ~ to prohibition era gangsters> 3 : someone who 

suffers death, loss, or injury in an undertaking of his own 

<became a ~ of his own ambition> 4 : someone tricked, 

duped, or subjected to hardship : someone badly used or 

taken advantage of <felt himself the ~ of his brother’s 

shrewdness—W.F. Davis> <little boys, as well as adolescent girls, became the willing ~s of sailors and marines—

R.M. Lovett>

“syn PREY, QUARRY: VICTIM applies to anyone who suffers either as a result of ruthless design or incidentally or 

accidentally <the victim sacrificed on these occasions is a 

hen, or several hens—J.G. Frazer> <was the girl born to be 

a victim; to be always disliked and crushed as if she were 

too fine for this world—Joseph Conrad> <lest such a policy 

precipitate a hot war of which western Europe would be the 

victim—Quincy Wright> ***.”
Cite as 355 Or 777 (2014) 783

Webster’s Third New Int’l Dictionary 2550 (unabridged ed 

1983).2

In that light, it can be seen that defendant’s contention that the “plain meaning” of the word “victim” refers only 

to persons, and not to animals, is predicated on a selective 

reading of the dictionary definitions. The first sense listed in 

the definition, for example, refers broadly to “a living being,” 

not solely to human beings. And the synonymy gives as an 

example of the word “victim” the sacrifice of animals. The 

ordinary meaning of the word “victim,” then, is capable of 

referring either to human beings, animals, or both.3

Illustrative examples of the plain meaning of “victim” to refer to animals are not difficult to locate. Especially 

in the context of animal cruelty, it is common to refer to 

animals as “victims.” As far back as the mid-nineteenth 

century, John Stuart Mill referred to the “unfortunate 

slaves and victims of the most brutal part of mankind; the 

lower animals.” John Stuart Mill, 2 Principles of Political 

2 Other dictionaries offer similar definitions. The Oxford dictionary, for 

example, defines “victim” as, among other things, “[a] living creature killed and 

offered as a sacrifice” and “[o]ne who is reduced or destined to suffer under some 

oppressive or destructive agency” and includes as an example of the latter sense 

a literary quotation that refers to an animal as a victim: “We . . . even went to the 

length of fixing upon one useless, toothless old fellow [sc a dog] as a victim to our 

appetites, in case of extremity.” XIX Oxford English Dictionary 607 (2d ed 1989) 

(alternation in original; internal quotation marks and citation omitted). See also 

The American Heritage Dictionary 1990 (3d ed 1992) (“One who is harmed or 

killed by another * * * A living creature slain and offered as a sacrifice”). The 

definition of “one,” it should be noted, is not limited to human beings. See, e.g., 

Webster’s at 1575 (“a single unit or entire being or thing”); X Oxford at 805 (“[a] 

person or being whose identity is left undefined”).

3 The idea of animals being regarded as “victims” is not a new one. Animals 

as Offenders and Victims, 21 Alb LJ 265, 266 (1880) (recounting the history of 

animal welfare laws in Europe and noting that eventually legislation prohibited 

cruelty to animals “not out of regard to the owner, but in mercy to the creature 

itself”). In a related vein, there are records of legal proceedings being brought 

against animals as named parties to legal proceedings as early as the Middle 

Ages in Europe and as recently as the twentieth century in this country, which 

reflect that animals often have been treated, as least for some purposes, as persons. See generally Jen Girgen, The Historical and Contemporary Prosecution 

and Punishment of Animals, 9 Animal L 97 (2003) (recounting criminal prosecutions of pigs, cows, bulls, horses, mules, oxen, goats, sheep, and dogs, among 

others, dating at least from the thirteenth century); see also Edward P. Evans, 

The Criminal Prosecution and Capital Punishment of Animals (1987); Paul Schiff 

Berman, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in 

the Prosecution of Animals and Inanimate Objects, 69 NYU L Rev 288 (1994).
784 State Nix

Economy: With Some of Their Applications to Social 

Philosophy 579 (1864). Rachel Carson complained of cruelty to all, “whether its victim is human or animal.” Letter 

from Rachel Carson to Oxford University Press, (undated) 

(on file with Yale University Library). A headline from an 

early New York Times article referred to “Animal Victims 

of Railroad Trains.” N Y Times, Oct 11, 1914, at 77. A more 

recent article from 1982 on a series of hunting photographs 

from India mentioned pictures of “animal victims.” Images 

of India, N Y Times, April 25, 1982. A 1992 article from the 

Chicago Tribune similarly is headlined, “Pair Heading to 

Bosnia to Aid Animal Victims of War.” Chi Trib, Oct 6, 1992. 

Closer to home, an article in the Oregon State Bar Bulletin 

reported that, “[t]he Oregon Legislature has repeatedly and 

consistently articulated a strong public policy favoring the 

aggressive prosecution of animal cruelty cases by enacting 

statutes requiring police officers to make arrests in cases 

of animal abuse and to pay for and provide care to victim 

animals.” Full-Time Prosecutor to Litigate Animal Cruelty 

Cases Statewide, Or State Bar Bulletin, May 2013.

Having established the common, ordinary meaning 

of the term “victim,” the question is whether anything in the 

statute at issue suggests that the legislature meant something different. Certainly nothing in the wording of ORS 

161.067(2) suggests that the word “victim” cannot refer to 

animals. If anything, the phrasing of the statute—which 

refers to the violation of another statutory provision—

suggests that the meaning of the word “victim” will depend 

on the underlying substantive statute that the defendant 

violated.

The legislative history sheds no light on the matter. 

The wording of ORS 161.067(2) can be traced to 1985, when 

Senate Bill 257 was introduced at the request of the Oregon 

Department of Justice on behalf of the Oregon District 

Attorneys Association. The bill was intended

“to address two related problems which have caused criminal law practitioners and the courts consternation for quite 

some time. The first issue is how many judgments of conviction a court may enter when a criminal defendant has, 

during an episode, violated several statutes, injured several 
Cite as 355 Or 777 (2014) 785

victims or violated the same statute against the same victim several times. The second issue concerns the question 

of when a court may sentence a defendant convicted of multiple crimes to consecutive sentences.”

Staff Measure Analysis, Senate Judiciary Committee, SB 

257, 1985. Up to that time, no statute existed to guide the 

courts about how to enter judgments when a single criminal 

episode might provide grounds for multiple convictions and 

sentences. See generally State v.Cloutier, 286 Or 579, 582-85,

596 P2d 1278 (1971) (noting incomplete legislative direction regarding possible “multiple consequences” of a “single 

criminal act”). SB 257 was proposed to provide the courts 

that needed direction. State v. Crotsley, 308 Or 272, 276-78,

779 P2d 600 (1989) (discussing legislative history of former ORS 161.062). The House voted in favor an amended 

version of SB 257, which the legislature ultimately adopted 

and codified at former ORS 161.062(2). Id. As enacted, the 

new law provided in part that, “when the same conduct 

or criminal episode violates only one statutory provision, 

but involves two or more victims, there are as many separately punishable offenses as there are victims.” Or Laws 

1985, ch 722, § 4(2). Nothing in the legislative history mentions any concern with the definition of the word “victim,” 

however.

The following year, a “crime victims’ bill of rights” 

was adopted by initiative as Ballot Measure 10 (1986). The 

measure recognized the rights of crime victims at trial, at 

sentencing, and after sentencing. For example, Measure 10 

amended ORS chapter 136 to require the trial court to take 

the victim into account in setting a trial date; it amended 

ORS 40.385 to provide that trial courts are not authorized 

to exclude victims from the court; it amended ORS 136.060 

to require the trial court to take into consideration the 

crime victim’s interest in determining whether to try jointly 

charged defendants together; it amended ORS chapter 137 

to recognize a crime victim’s right to appear at sentencing; it 

amended ORS 137.101 to require courts to liberally construe 

restitution statutes in favor of victims; it amended ORS 

144.120 to require the Parole Board to attempt to notify 

the crime victim in advance of any parole hearings and to 

recognize a right of the victim to appear at such hearings; 
786 State Nix

and it amended ORS 144.260 to require the Parole Board to 

provide the victim advance notice of any release decision. Or 

Laws 1987, ch 2.

Significantly for our purposes, Measure 10 also 

added the anti-merger provision to ORS chapter 161 that 

is now ORS 161.067(2): “When the same conduct or criminal episode, though violating only one statutory provision[,] 

involves two or more victims, there are as many separately 

punishable offenses as there are victims.” Id. § 13. That provision is nearly identical to what the legislature had just 

enacted the year before as former ORS 161.062(2). In fact, 

the source of the wording of the ballot measure provision 

was SB 257 (1985). Crotsley, 308 Or at 276 n 3 (noting that 

both ORS 161.062 and ORS 161.067 “derived from a common source”).4

Ordinarily, when legislation has been essentially

reenacted with no material change, we assume—in the 

absence of evidence to the contrary—that no change in 

meaning was intended. See, e.g., Carter v. US National 

Bank, 304 Or 538, 544, 747 P2d 980 (1987) (“[t]here is no 

indication that the legislature intended any substantive 

change when it repealed former ORS 17.605 and reenacted 

it as ORCP 64A”), overruled on other grounds by Assoc. Unit 

Owners of Timbercrest Condo. v. Warren, 352 Or 583, 288 

P3d 958 (2012); Kingery v. Dept. of Revenue, 276 Or 241, 

247, 554 P2d 471 (1976) (“[t]here is no evidence that the legislature intended any change in its prior statutory direction 

*** by its substitution of the words ‘true cash value’ for the 

words ‘full and true value’ when it reenacted” the statute). 

In this case, nothing in that history of Measure 10 suggests 

that the duplicate provision was intended to have a meaning 

different from what the legislature had just enacted.

4 As this court explained in Crotsley, 308 Or at 276, the same anti-merger 

statute, in effect, “was enacted twice,” first by the legislature and second by initiative. Both provisions remained in the Oregon Revised Statutes for the next

13 years, during which time courts referred to the two statutes as being essentially interchangeable. In 1999, the legislature repealed former ORS 161.062, Or 

Laws 1999, ch 136, § 1, on the recommendation of the Oregon Law Commission, 

which explained that the enactment of ORS 161.067, with its nearly identical wording, had rendered the older statute obsolete. Tape Recording, Senate 

Committee on Judiciary, HB 2277, Feb 1, 1999, Tape 20, Side A (Statement of 

Rep. Lane Shetterly).
Cite as 355 Or 777 (2014) 787

To be sure, other provisions of Measure 10 appear 

to assume that “victim” refers to persons. After all, provisions relating to the rights of victims to appear in court, to 

obtain restitution, and to be heard at sentencing and Parole 

Board hearings would be difficult to apply were “victims” 

to include non-human animals. The measure itself provides 

a definition of “victim” as “the person or persons who have 

suffered financial, social, psychological or physical harm 

as a result of a crime.” Or Laws 1987, ch 2, § 17 (emphasis 

added.)

But that definition expressly applies only to certain 

provisions in the measure, specifically, those that amended 

“ORS 40.385 and * ** ORS Chapters 136, 137, and 144.” Id.

The definition of “victim” as a person does not apply to the 

anti-merger statute. Consequently, just as with former ORS 

161.062(2), the otherwise undefined reference to “victim” 

in ORS 161.067(2) must draw its meaning from some other 

source.

Two of this court’s decisions interpreting ORS 

161.067(2) hold precisely that. The first is Glaspey. In that 

case, the defendant was found guilty of two counts of felony assault in the fourth degree, based on the fact that he 

had assaulted his wife in the presence of his two children. 

337 Or at 560. Under ORS 163.160(3), the offense of fourthdegree assault, ordinarily a misdemeanor, is categorized a 

Class C felony if it is committed in the presence of, among 

other things, “the victim’s minor child.” The state argued 

that, because minor children who witness assaults suffer a 

variety of harms, each of the two children who witnessed 

defendant assaulting his wife were “victims,” thus justifying 

separate convictions under ORS 161.067(2).

This court rejected that argument. The court 

explained that, regardless of whether the children might 

have been “victims” in some sense, what counts for the 

purposes of ORS 161.067(2) is whether they were victims 

under the substantive criminal statute that the defendant 

violated:

“When the statute speaks of criminal conduct that ‘violate[s] only one statutory provision,’ it necessarily refers to, 

and depends upon, some statute other than itself. That is, 
788 State Nix

it refers to the substantive criminal laws that define particular criminal offenses. It follows that the statutory reference to ‘victims’ in the phrase ‘[w]hen the same conduct 

*** involves two or more victims’ also must refer to victims 

within the meaning of the substantive statute that defines 

the relevant crime.”

Id. at 563. The court then turned its attention to “whether 

the child witnesses described in ORS 163.160(3)(c) are victims of the crimes that that statute defines.” Id. The court 

noted that, ordinarily, a “victim” is one “who suffers harm 

that is an element of the offense.” Id. at 565. The underlying substantive statute may use the term “victim,” but, even 

then, that is regarded as “context” for the purposes of determining the controlling question of legislative intent. Id. at 

566. In that particular case, the court explained, the wording of the statute in context compelled the conclusion that 

the legislature considered the “victim” to be the person who 

is physically assaulted, not the children. Id. at 565.

The second case is State v. Hamilton, 348 Or 371, 

233 P3d 432 (2010). In that case, the defendant was found 

guilty of seven counts of first- and second-degree robbery, 

based on an incident in which the defendant robbed a bar at 

gunpoint in the presence of the owner, two employees, and 

four customers. Id. at 373-74. The defendant argued that 

the multiple robbery counts should have merged into a single conviction, because he committed only a single robbery 

against the bar owner. Id. The state argued that each of the 

witnesses to the robbery was a victim and, as a result, separate convictions were appropriate under ORS 161.067(2). 

Hamilton, 348 Or at 376.

This court agreed with the state. Citing Glaspey, 

the court began by stating that, “[i]n analyzing whether a 

crime involves ‘two or more victims’ within the meaning of 

ORS 161.067(2), this court determines who qualifies as a 

‘victim’ by interpreting the substantive statute defining the 

relevant crime.” Hamilton, 348 Or at 376. Turning to the 

text, context, and legislative history of the robbery statutes, 

the court concluded that the “victim” of a robbery includes 

any person against whom a defendant uses or threatens violence in the course of committing a theft, not only the owner 

of the property. Id. at 377-79.
Cite as 355 Or 777 (2014) 789

To summarize our analysis so far: The ordinary 

meaning of the word “victim” as it is used in ORS 161.067(2) 

can include both human and non-human animals, and nothing in the text, context, or legislative history of the statute necessarily precludes an animal from being regarded 

as such. This court’s cases construing the term “victim” as 

it is used in that statute hold that, in fact, the meaning of 

the term is not to be found in an analysis of ORS 161.067(2) 

itself, but rather, it derives from the underlying substantive criminal statute that defendant has been found to have 

violated.

Whether each of the animals that defendant 

neglected was a “victim” for the purposes of the anti-merger 

statute, then, depends on whether the legislature regarded 

them as such for the purposes of the substantive offense of 

second-degree animal neglect. More particularly, it depends 

on “who suffers harm that is an element of the offense.” 

Glaspey, 337 Or at 565. We turn to that issue.

ORS 167.325 (2009) provides:

“A person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the 

person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care for an animal 

in such person’s custody or control.”

An “animal” means “any nonhuman mammal, bird, reptile, 

amphibian or fish.” ORS 167.310(1) (2009). “Minimum care” 

refers to “care sufficient to preserve the health and well-being 

of an animal and, except for emergencies or circumstances 

beyond the reasonable control of the owner, includes, but is 

not limited to,” such requirements as food, water, shelter, 

and reasonably necessary veterinary care. ORS 167.310(7) 

(2009). For domesticated animals, “minimum care” also 

includes access to adequate shelter, continuous access to an 

area that is adequate for “exercise necessary for the health 

of the animal,” being kept at a “temperature suitable for the 

animal,” and being “[k]ept reasonably clean and free from 

excess waste or other contaminants that could affect the 

animal’s health.” Id.

The phrasing of the offense reveals that the legislature’s focus was the treatment of individual animals, 
790 State Nix

not harm to the public generally or harm to the owners of 

the animals. The offense is committed by failing to provide 

required care to “an animal,” regardless of who owns it. The 

required care includes the minimum necessary “to preserve 

the health and well-being” of that animal. It is the individual animal that “suffers harm that is an element of the 

offense.” Glaspey, 337 Or at 565.

The larger context of the statutory offense confirms 

that the legislature’s focus is on the treatment of individual 

animals. Second-degree animal neglect is a component of a 

more comprehensive set of offenses concerning the care of 

animals, offenses that are structured to correspond to the 

extent of an animal’s suffering. The statutes begin with animal neglect in the second degree, which, as we have noted, 

is committed when a person fails to provide minimum 

care. When the person’s failure to provide minimum care 

“results in serious physical injury or death to the animal,” 

that person commits animal neglect in the first degree. 

ORS 167.330. When a person “intentionally, knowingly, or 

recklessly causes physical injury to an animal,” that person 

commits the offense of animal abuse in the second degree. 

ORS 167.315. And when a person intentionally, knowingly, 

or recklessly causes “serious physical injury” or “[c]ruelly 

causes the death of an animal,” that person commits animal abuse in the first degree. ORS 167.320. Finally, when 

a person “[m]aliciously kills an animal” or “[i]ntentionally 

or knowingly tortures an animal,” that person commits the 

offense of aggravated animal abuse in the first degree, a 

Class C felony. ORS 167.322.

In each instance, the offense is committed against 

“an animal,” and the relative seriousness of the offense is 

gauged in accordance with the relative degree of harm to 

or suffering of that animal. If the animal suffers a lack of 

minimum care, the offense is second-degree animal neglect. 

But if the animal is subjected to torture, the offense is felony 

aggravated animal abuse. In any reasonable sense of the 

word, the “victim” of those offenses is the individual animal 

that suffers the neglect, injury, cruelty, torture, or death.

Other aspects of the larger statutory scheme similarly 

confirm the legislature’s focus on the suffering of individual
Cite as 355 Or 777 (2014) 791

animals. ORS 167.350, for example, provides that, in addition to other penalties that a court may impose for violations 

of the animal cruelty laws, the court may order the forfeiture of a defendant’s rights in the animal. ORS 167.350(1). 

The same statute provides that, if a court orders such a forfeiture, it may further order “that the rights be given over 

to an appropriate person or agency demonstrating a willingness to accept and care for the animal.” ORS 167.350(2). 

The statute also provides that a court may also require the 

owner to repay the reasonable costs incurred by any person 

or agency caring for the animal during the pendency of the 

charges. In each instance, again, the focus is on the care of 

the animal who has suffered the harm of neglect or abuse. 

ORS 167.350(3)

The legislative history of ORS 167.325, particularly in the larger context of the history of animal cruelty 

legislation, confirms what our textual analysis so strongly 

suggests. At common law, cruelty to animals did not constitute an offense. See State v. Bruner, 12 NE 103, 104 (1887) 

(“There is a well-defined difference between the offense of 

malicious or mischievous injury to property, and that of cruelty to animals. The former constituted an indictable offense 

at common law, while the latter did not.”); State v. Beekman, 

27 NJL 124, 125 (1858) (“The general rule is that no injuries 

of a private nature [including wounding an animal], unless 

they some way concern the king or affect the public, are 

indictable at common law.”).

The first animal cruelty legislation on this continent can be traced to the Puritan “Body of Liberties” from 

the Massachusetts Bay Colony, which prohibited cruelty to 

“any bruite [sic] Creature which are usuallie [sic] kept for 

man’s use.” Massachusetts Body of Liberties § 92 (Ward 

1641); Thomas G. Kelch, A Short History of (Mostly) Western 

Animal Law: Part II, 19 Animal L 347, 350 (2013) (quoting 

Body of Liberties). By its terms, the law protected the animals only as property of their owners, and even then, only 

as to commercially valuable animals that were “usuallie 

kept for man’s use.”

That view of animals as the property of their owners, 

and subject to protection only as such, is reflected in animal 
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cruelty legislation adopted by the states throughout the next 

several centuries. See generally David Favre & Vivian Tsang, 

The Development of Anti-Cruelty Laws During the 1800s,

1 Det C L Rev 1 (1993); Deborah J. Challener, Protecting Cats 

and Dogs in Order to Protect Humans: Making the Case for 

a Felony Companion Animal Statute in Mississippi, 29 Miss

C L Rev 499, 501 (2010) (“Although these laws afforded some 

protection to certain kinds of animals, their primary focus 

was not animal welfare. Instead, animal cruelty was criminalized in order to (1) protect the property rights of those 

who owned commercially valuable animals, such as cows, 

horses and oxen; and (2) prevent harm to human beings.”).

In the nineteenth through the twentieth centuries, some states began to pass anti-cruelty laws that were 

intended to deter immoral conduct; the emphasis still was 

not on protecting the animals themselves. See, e.g., Johnson 

v. District of Columbia, 30 App DC 520, 522 (DC 1908) (prevention of animal cruelty “is in the interest of peace and 

order and conducive to the morals and general welfare of 

the community”); see also Gary L. Francione, Animals, 

Property and Legal Welfarism: “Unnecessary” Suffering and 

the “Humane” Treatment of Animals, 46 Rutgers L Rev 721, 

754 (1994) (“the purpose of the statutes is to improve human 

character not to protect animals”). The 1962 Model Penal 

Code provision on animal cruelty, for example, provided:

“A person commits a petty misdemeanor if he purposely 

or recklessly:

“(1) subjects any animal to cruel mistreatment; or

“(2) subjects any animal in his custody to cruel neglect; 

or

“(3) kills or injures any animal belonging to another 

without legal privilege or consent of the owner.

“Subsections (1) and (2) shall not be deemed applicable 

to accepted veterinary practices and activities carried on 

for scientific research.”

Model Penal Code § 250.11 (1962). According to the commentary to that provision, “[c]ruelty to animals is another class 

of behavior widely penalized because of outrage to the feelings of substantial groups in the population.” Model Penal 
Cite as 355 Or 777 (2014) 793

Code and Commentaries (Tentative Draft No. 13), American 

Law Institute 40, § 250.6 (1962).

Other states, however, enacted legislation targeting cruelty to animals for the sake of preventing the animals themselves from suffering, not merely as property to 

be protected or as a way of improving public morality. New 

York’s 1867 animal cruelty law, adopted “for the more effectual prevention of cruelty to animals,” is often credited with 

being the first such statute. See generally Laurie Serafino, 

No Walk in the Park: Drafting Animal Cruelty Statutes to 

Resolve Double Jeopardy Concerns and Eliminate Unfettered 

Prosecutorial Discretion, 78 Tenn L Rev 1119, 1123-27 (2011) 

(discussing the historical foundation of modern anti-cruelty 

statutes); Luis E. Chiesa, Why Is It a Crime to Stomp on 

a Goldfish?—Harm, Victimhood and the Structure of AntiCruelty Offenses, 78 Miss LJ 1 (2008). The law provided 

that,

“[i]f any person shall over-drive, over-load, torture, torment, deprive of necessary sustenance, or unnecessarily 

cruelly beat, or needlessly mutilate or kill, or cause or procure to be over-driven, over-loaded, tortured, tormented 

or deprived of necessary sustenance, or to be unnecessarily or cruelly beaten, or needlessly mutilated, or killed as 

aforesaid any living creature, every such offender shall, for 

every such offense, be guilty of a misdemeanor.”

1867 Gen Stats NY, ch 375, § 1.

New York’s animal cruelty statute became a model 

for many other states, which adopted animal cruelty laws 

in the late-nineteenth and early twentieth centuries. See, 

e.g., Mass Gen L, ch 344 (1869); 1869 Ill Laws 3; NJ Rev 

Stat 64-82 (1873); 1878 NH Laws 281; 1900 Cal Stat § 597; 

14 Pa Stat § 7772 (1920); Mich Comp Laws ch 285 § 1 

(1929). Oregon was one of the states that followed the New 

York model of animal cruelty legislation. Adopted in 1885, 

Oregon’s statute provided:

“Whoever overdrives, or overloads, drives when overloaded, 

overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates, or cruelly kills, or causes 

or procures to be so overdriven or overloaded, driven when 

overloaded, overworked, tortured, tormented, deprived of 
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necessary sustenance, cruelly beaten, mutilated or cruelly killed, any animal; and whoever having the charge 

of or custody of any animal, either as owner or otherwise, 

inflicts cruelty upon the same, shall, for every such offense 

be punished by imprisonment in the county jail not exceeding sixty days, or by fine not exceeding one hundred dollars, or by both fine and imprisonment.”

Lord’s Oregon Laws § 2103 (1885). The courts recognized 

that the focus of the statute was the treatment of the animals themselves, with no mention of proof of economic loss 

to the owner or harm to the public. In State v. Goodall, 90 

Or 485, 175 P 857 (1918), for example, this court held that 

evidence that the defendant rode a horse while it had a deep 

ulcerated sore on its back and that the defendant had supplied it with insufficient food was enough to establish violation of animal cruelty statute. Id. at 488-89. In the court’s 

view, “[i]t is clear that the act of riding a horse in such condition *** constitutes the crime of ‘torturing and tormenting an animal,’ as is also the act of depriving the animal of 

necessary sustenance.” Id. at 489.

In 1971, the legislature adopted the new Oregon 

Criminal Code. In that new code, the legislature retained 

the nearly century-old animal cruelty statute, codified at 

ORS 167.860 (1971). But it added a provision based on the 

Model Penal Code (or, more precisely, based on a Michigan 

statute that was, in turn, based on the Model Penal Code). 

Criminal Law Revision Commission, Proposed Criminal 

Code, Final Draft and Report § 226 (July 1970). The new 

law, codified at ORS 167.850 (1971), provided, in part:

“(1) A person commits the crime of cruelty to animals if, except as authorized by law, he intentionally or 

recklessly:

“(a) Subjects any animal under human custody or control to cruel mistreatment; or

“(b) Subjects any animal under his custody or control 

to cruel neglect; or

“(c) Kills without legal privilege any animal under the 

custody or control of another.”

The legislature later overhauled the state’s animal 

cruelty laws in 1985 with the enactment of Senate Bill 508, 
Cite as 355 Or 777 (2014) 795

which now constitutes, with amendments not pertinent to 

this case, the state’s current animal cruelty statute. The 

staff measure summary described the bill’s purpose in the 

following terms:

“In some respects the public’s attitude regarding animals 

has undergone substantial change. Many people feel that 

animals should be given greater protection from cruel 

treatment and neglect. The traditional statutes relating to 

cruel treatment of animals are seen as inadequate in that 

they only prohibit extreme conduct and do not differentiate between abuse and neglect. This bill addresses those 

concerns.”

Staff Measure Analysis, Senate Judiciary Committee, SB 

508, Mar 14 1985, 1. Senate Bill 508 repealed both the old 

animal cruelty statute and the newer provision adopted in 

1971 and replaced them with a comprehensive set of offenses, 

ranging from animal abandonment to animal neglect in the 

first and second degrees and to animal abuse in the first 

and second degrees. The bill also established detailed criteria for determining what constitutes the “minimum care” to 

which animals are entitled. Id.

The bill was proposed by the Humane Society of 

the Willamette Valley, which had developed the proposal 

after consultation with the State Police, the Farm Bureau, 

the livestock association, and other humane societies. Tim 

Greyhavens, the Executive Director of the society, explained 

to the Senate Judiciary Committee that the purpose of the 

bill was to provide clarity about what constitutes actionable cruelty to animals and to expand the law to include an 

offense of animal abandonment. He said that current law 

was too vague about what constituted mistreatment and cruelty. Minutes, Senate Judiciary Committee, SB 508, Mar 14, 

1985, 4 (testimony of Tim Greyhavens). He explained that 

the bill was intended to separate and define specific offenses 

against animals, with the difference between those offenses 

being “the extent of the harm” to the animals. Id. at 5.

Greyhavens similarly testified before the House 

Committee on Judiciary that the bill was needed because 

current law was too vague about what constitutes cruelty to animals and that the law needed to be broadened 
796 State Nix

to cover animal abandonment. Minutes, House Committee 

on Judiciary, SB 508, June 12, 1985, 18 (testimony of Tim 

Greyhavens). He offered a statement from a dozen other 

humane societies representing more than 10,000 members 

around the state urging support of the bill. “By enacting 

Senate Bill 508,” the statement declared, “you will be preventing needless suffering” and saving thousands of dollars 

related to the care of stray and abandoned pets. Statement, 

House Judiciary Committee, HB 508, June 12, 1985, Ex F, 1 

(Humane Society of the Willamette Valley).

Marion County Reserve Deputy Sheriff David 

Hemphill also testified in support of the bill. He explained 

that, as an animal cruelty investigator,

“I see dozens of cases of animal abandonment, abuse and 

neglect that I can’t take action against because of the inadequacy of our current law. Much of this law was written 

*** when there were different problems with the care of 

animals. This leaves us with a law that now contains many 

vague or archaic terms. For example, our current law prohibits many acts that happened during those times when 

animals were used primarily for work purposes, such as 

‘overloading’ or ‘overworking’ a horse or ‘works an animal 

when unfit for labor.’”

Testimony, House Judiciary Committee, HB 508, June 12, 

1985, Ex E, 1 (statement of David Hemphill). Hemphill 

explained that our highly mobile society is resulting in “an 

epidemic of animal abandonment and neglect.” Id. at 1. “If 

there were a strong law that prohibited any type of animal 

abandonment,” he argued, “many animals’ lives could be 

saved.” Id. Hemphill urged the committee to recommend 

passage of the bill “on behalf of all responsible pet owners 

and the animals as well, so that we can continue to make 

our state a better place for every living being.” Id. at 3.

The preceding history confirms that the principal 

purpose of adopting the legislation that became ORS 167.325 

was to prevent the suffering of animals. Although early animal cruelty legislation may have been directed at protecting 

animals as property of their owners or as a means of promoting public morality, Oregon’s animal cruelty laws have 

been rooted—for nearly a century—in a different legislative 
Cite as 355 Or 777 (2014) 797

tradition of protecting individual animals themselves from 

suffering. Indeed, the modern animal cruelty statute was 

designed to broaden the state’s earlier law to encompass 

abandonment, as well as neglect and abuse, and to graduate 

punishment in accordance with the severity of the harm to 

the animals.

We therefore conclude that defendant is incorrect 

that the real “victim” of the crime of second-degree animal 

neglect is either the public or the animal owner. It is true 

that, for a brief period of time—from 1971 to 1985—Oregon’s 

statutes included an additional provision that reflected the 

Model Penal Code’s concern that animal cruelty is a matter of public morality. But that provision reflected an additional layer of legislative policy on top of the longstanding 

concern with protecting animals from suffering for the sake 

of the animals themselves. In any event, that provision was 

repealed in 1985, replaced by the comprehensive scheme of 

animal cruelty laws that we have described, all of which are 

predicated on preventing the suffering of animals. Moreover, 

Glaspey makes clear that the “victim,” for the purposes of 

ORS 161.067(2), is the one that “suffers harm that is an element of the offense.” Glaspey, 337 Or at 565. Public harm 

is not an element of the offense of second-degree animal 

neglect. Harm to the individual animal is.

Nor is there in any indication that the legislature 

regarded the “victim” of animal neglect to be the owner of the 

animal. To be sure, Oregon law regards animals as the property of their owners. See generally State v. Fessenden/Dicke, 

355 Or 759, 767-69, ___ P3d ___ (2014) (so noting, citing 

relevant statutes). But it does not necessarily follow from 

that fact that owners of abused or neglected animals are 

the victims of the offense. Indeed, it would be anomalous to 

conclude that the “victim” of animal neglect is the owner of 

the animal when it is the owner who is charged with having 

committed the offense.5

 What is more, ORS 167.325 provides 

that, in the event of a conviction for animal neglect or animal cruelty, a court may order that the defendant forfeit any 

5 Of course, animal cruelty offenses may be committed by persons other than 

the owner of the animal. We do not need to address whether, in those circumstances, the owner—in addition to the animal—may be regarded as a victim of 

the offense, and we express no opinion on that issue.
798 State Nix

rights he or she had in the animal that has been neglected or 

abused—an odd consequence if the real victim of the offense 

is the animal’s owner.

In concluding that animals are “victims” for the 

purposes of ORS 161.067(2), we emphasize that our decision is not one of policy about whether animals are deserving of such treatment under the law. That is a matter for 

the legislature. Our decision is based on precedent and 

on a careful evaluation of the legislature’s intentions as 

expressed in statutory enactments. Our prior decisions hold 

that the meaning of the word “victim” for the purposes of 

ORS 161.067(2) necessarily depends on what the legislature 

intended in adopting the underlying substantive criminal 

statute that the defendant violated. In this case, the underlying substantive criminal statute, ORS 167.325, protects 

individual animals from suffering from neglect. In adopting 

that statute, the legislature regarded those animals as the 

“victims” of the offense. It necessarily follows that the trial 

court in this case erred in merging the 20 counts of seconddegree animal neglect into a single conviction.

The decision of the Court of Appeals is affirmed. 

The judgment of the circuit court is reversed, and the case 

is remanded for entry of separate convictions on each guilty 

verdict for a violation of ORS 167.325 and for resentencing.