S056904, Opinion — State v. Tate

318
Argued and submitted September 15, decision of Court of Appeals and judgment
of circuit court affirmed November 19, 2009
STATE OF OREGON,
Respondent on Review,
u.
JEREMY EUGENE TATE,
Petitioner on Review.
(CC 0600065CR; CA A134222; SC S056904)
220 P3d 1176
En Banc
On review from the Court of Appeals.*
* Appeal from Wasco County Circuit Court, John V. Kelly, Judge. 223 Or App
636, 196 P3d 1033 (2008).

Cite as 347 Or 318 (2009) 	319
Marc Brown, Deputy Public Defender, Salem, argued the
cause and filed the brief for petitioner on review. With him on
the brief was Peter Gartlan, Chief Defender, Office of Public
Defense Services, Salem.
Tiffany Keast, Assistant Attorney General, argued the
cause and filed the brief for respondent on review. With her
on the brief were John R. Kroger, Attorney General, and
Jerome Lidz, Solicitor General.
BALMER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

State v. Tate
BALMER,J.
The issue in this criminal case is the proper interpre-
tation of the term "corrections officer" as used in ORS
163.208(1),1 which defines the crime of "assaulting a public
safety officer" to include an assault on a "corrections officer."
Defendant 	assaulted 	a 	uniformed 	guard 	and 	employee
of 	Northern 	Oregon 	Regional 	Correctional 	Facilities
(NORCOR), a correctional facility formed pursuant to an
intergovernmental agreement between several counties and
located in Wasco County. Defendant was charged under ORS
163.208(1), and he responded by arguing that the person
whom he assaulted was not a "corrections officer" as that
term is used in the statute. Defendant argued that the court
should apply the definition of "corrections officer" provided in
ORS 181.610(5), which requires, among other things, that
the individual be a member of a "law enforcement unit."2
Because the state had not produced evidence that the victim
1 ORS 163.208(1) provides:
"A person commits the crime of assaulting a public safety officer if the per-
son intentionally or knowingly causes physical injury to the other person,
knowing the other person to be a peace officer, corrections officer, youth correc-
tion officer, parole and probation officer, animal control officer, firefighter or
staff member, and while the other person is acting in the course of official
duty."
2 ORS 181.610(5) provides:
'' 'Corrections officer' means an officer or member of a law enforcement unit
who is employed full-time thereby and is charged with and primarily performs
the duty of custody, control or supervision of individuals convicted of or
arrested for a criminal offense and confined in a place of incarceration or deten-
tion other than a place used exclusively for incarceration or detention of
juveniles."
(Emphasis added.) ORS 181.610(12), in turn, defines "law enforcement unit":
"(a) 'Law enforcement unit' means a police force or organization of the
state, a city, port, school district, mass transit district, county, county service
district authorized to provide law enforcement services under ORS 451.010,
Indian reservation, Criminal Justice Division of the Department of Justice, the
Department of Corrections, the Oregon State Lottery Commission or common
carrier railroad whose primary duty, as prescribed by law, ordinance or direc-
tive, is any one or more of the following:
~'* * * * *
"(B) The custody, control or supervision of individuals convicted of or
arrested for a criminal offense and confined to a place ofincarceration or deten-
tion other than a place used exclusively for incarceration or detention of
juveniles[.]
''(b) 'Law enforcement unit' also means:

Cite as 347 Or 318 	321
was a 	member of a 	"law enforcement unit," defendant
argued, the victim did not qualify as a "corrections officer"
under ORS 163.208(1). The trial court concluded that the
statute required the state to prove only that the victim was a
person charged with the care and custody of incarcerated
individuals and that membership in a law enforcement unit
was not necessary to qualify as a "corrections officer" under
the statute. Defendant appealed, and the Court of Appeals
affirmed. State v. Tate, 223 Or App 636, 196 P3d 1033 (2008).
We allowed review and now affirm.
Defendant, an inmate housed at NORCOR, was sit-
ting outside his cell playing cards. The victim, a uniformed
guard, was supervising inmates who were performing a linen
exchange. Another inmate approached the victim and com-
plained that the inmates in his cell block were "being discrim-
inated against." The victim responded that the inmate should
contact his attorney. Defendant overheard the conversation
and responded that "another way" to solve the inmate's prob-
lem would be to "[k]ill the officers, kill the judges, and kill the
cops." Feeling threatened, the victim ordered defendant to
return to his cell immediately. Defendant refused, remaining
in his seat; the victim approached defendant from behind and
put his 	hand 	on defendant's 	shoulder. 	Defendant spun
around quickly and stood up in what the victim described as
a "threatening manner." The victim grabbed defendant's
shirt, and, at the same time, defendant grabbed the victim's
shirt. The two somehow ended up under a table, and defen-
dant began "punching and kicking" the victim. Soon after,
other officers arrived and subdued defendant.
Based on that incident, the state charged defendant
with assaulting a public safety officer-specifically, a "correc-
tions officer"-under ORS 163.208(1). Before trial, defendant
argued that the jury should be instructed that the term "cor-
rections officer" has the meaning given to that term in ORS
181.610(5), which requires, among other things, that the
individual be a member of a "law enforcement unit," a term
"(A) A police force or organization of a private entity with a population of
more than 1,000 residents in an unincorporated area whose employees are
commissioned by a county sheriff; and
"(BJ A district attorney's office."

322 	State v. Tate
defined by ORS 181.610(12). Defendant further argued that
NORCOR, as "a consortium or a partnership of county gov-
ernments," was not a law enforcement unit as defined by
ORS 181.610(12) and, as a result, that the victim was not a
corrections officer. To support that argument, defendant
offered two documents to demonstrate the corporate status of
NORCOR. 3 The court concluded that the state need not dem-
onstrate that the victim was a member of a law enforcement
unit to demonstrate that he was a corrections officer under
ORS 163.208(1). It therefore excluded defendant's exhibits as
irrelevant.
The following day, the parties again discussed the
jury instructions with the court. The state had submitted, as
part of its requested jury instructions, Uniform Criminal
Jury Instruction 1400, which defines corrections officer as
outlined in ORS 181.610(5) and includes the requirement
that the individual be a member of a law enforcement unit.
Defendant did not object to that instruction, but requested
that the court also include an instruction defining law
enforcement unit. Ultimately, the court gave the state's prof-
fered instruction, stating, "I don't think Jury Instruction
1400 is a correct statement of the law, but it's been requested
by both sides, so I'll give it." The court refused, however, to
provide an additional instruction defining law enforcement
unit.
At the close of the state's case, defendant moved for a
judgment of acquittal, again arguing that only a member of a
law enforcement unit can qualify as a corrections officer
under ORS 163.208(1). Because the state had not demon-
strated that NORCOR was a law enforcement unit, defen-
dant argued, it had not proved one of the elements of the
crime-that the victim was a corrections officer. The trial
court again concluded that an individual need not be a mem-
ber of a law enforcement unit to qualify as a corrections offi-
cer under ORS 163.208(1). It therefore denied defendant's
motion.
Specifically, defendant offered the certified assumed business name registra-
tion that NORCOR had filed with the Secretary of State and a warranty deed
that had transferred property from a private company to NORCOR, an "Oregon
Intergovernmental Corrections Entity."

Cite as 347 Or 318 	323
Defendant appealed, assigning error to the trial
court's denial of his motion for judgment of acquittal, to its
exclusion of his proffered evidence regarding NORCOR, and
to its refusal to give a jury instruction defining law enforce-
ment unit. The Court of Appeals affirmed, concluding that all
three assignments of error presented a single issue: the
proper interpretation of the term "corrections officer" as used
in ORS 163.208(1). The court relied on its previous decision
in Haynes v. State of Oregon, 121 Or App 395, 854 P2d 949
(1993), where the court had held that a juvenile parole officer
was not a corrections officer for purposes of ORS 163.208(1).
In Haynes, the court examined the text and context of ORS
163.208 and concluded that, for purposes of that statute, a
"corrections officer" is "a person who primarily performs the
duty of supervising or controlling an individual who is con-
fined in a place of incarceration or detention." Id. at 400
(emphasis omitted). Applying that definition to this case, the
Court of Appeals concluded that there was sufficient evi-
dence from which the jury could find that the victim here was
a corrections officer. Tate, 223 Or App at 643. Defendant peti-
tioned for review, and we allowed review to determine the
meaning of corrections officer as used in ORS 163.208(1).
On review, defendant renews his argument that this
court should look to ORS 181.610(5) for the meaning of the
term "corrections officer" in ORS 163.208(1), that the victim
in this case therefore could be a corrections officer only if he
was a member of a law enforcement unit, and that the state
failed to prove that NORCOR was a law enforcement unit, as
defined by ORS 181.610(12). 4 The state responds that the
Court of Appeals correctly held that Haynes provides the rel-
evant definition and that the victim qualified as a corrections
officer under that definition. The state further argues that,
even if ORS 181.610(5) provides the relevant definition, the
victim here qualified as a corrections officer.
As previously noted, ORS 163.208(1), the statute
under which defendant was convicted, provides:
4 Defendant makes no argument that the victim was an employee of a private
entity or that NORCOR was a business or other private corporation, rather than a
government entity.

State v. Tate
"A person commits the crime of assaulting a public
safety officer if the person intentionally or knowingly
causes physical injury to the other person, knowing the
other person to be a peace officer, corrections officer, youth
correction officer, parole and probation officer, animal con-
trol officer, firefighter or staff member, and while the other
person is acting in the course of official duty."
ORS 163.208(1) essentially elevates an assault that would
otherwise be a Class A misdemeanor, see ORS 163.160(1), (2)
(defining "[i]ntentionally, knowingly or recklessly caus[ing]
physical injury to another" as fourth-degree assault, a Class
A misdemeanor), to a Class C felony when the victim is a "cor-
rections officer" or one of the other persons described in the
statute. See ORS 163.208(2) ("Assaulting a public safety offi-
cer is a Class C felony.").
Corrections officer is not defined in ORS 163.208(1),
and we therefore first look to the plain and ordinary meaning
of the term. See State u. Briney, 345 Or 505, 511, 200 P3d 550
(2008) (court gives words of common usage their plain, ordi-
nary meaning). Although the dictionary contains no defini-
tion for "corrections officer," it defines each word separately:
an "officer" is "one charged with administering and maintain-
ing the law (as a constable, bailiff, sherim," and "correction"
is "the treatment of offenders through a program involving
penal custody, parole, and probation." Webster's Third New
Int'l Dictionary 511, 1567 (unabridged ed 2002). 5 Thus, the
dictionary defines a corrections officer as one charged with
administering and maintaining the law as it relates to penal
custody, parole, and probation.
Although the definitions in the dictionary would
include parole and probation officers within the definition of
corrections officer, we agree with the Court of Appeals that
the statutory context illustrates that the legislature did not
intend to sweep so broadly. See Tate, 223 Or App at 642 (dis-
cussing description ofrelated statutes in Haynes, 121 Or App
at 399-400). Many statutes use the term "corrections officer,"
Webster's notes that "correction" is "often used in pl[ural] <training in the
techniques of casework, probation and parole, and the general field of corrections
***>."Webster's Third New lnt'l Dictionary 511 (unabridged ed 2002) (emphasis in
original).

Cite as 347 Or 318 (2009) 	325
and the term is defined differently for use in different stat-
utes. See ORS 181.610(5); ORS 802.253(1)(b) (each defining
term differently). One consistency in the legislature's use of
the term, however, is that corrections officers control or
supervise individuals who are confined by the state in some
sort of facility. For example, ORS 181.610(5) defines correc-
tions officer as one who "primarily performs the duty of cus-
tody, control or supervision of individuals * * * confined in a
place of incarceration or detention * * *." (Emphasis added.)
Similarly, ORS 802.253(1)(b) defines a corrections officer as a
person "employed in a correctional facility * * * who primar-
ily performs the duty of custody, control or supervision of
individuals convicted of a criminal offense." "Correctional
facility," in turn, is defined as an "institution used for the con-
finement of persons convicted of a criminal offense or held by
court order." ORS 802.253(1)(a) (emphasis added). See also
ORS 166.260(1)(g) (unlawful possession of a firearm does not
apply to a "corrections officer while transporting or accom-
panying an individual convicted of or arrested for an offense
and confined in a place of incarceration or detention" (empha-
sis added)).
In other words, a corrections officer, as that term is
used in ORS 163.208(1), is not, as the dictionary states, a per-
son charged with administering and maintaining the law as
it relates to penal custody, parole, and probation; instead,
related statutes demonstrate that the legislature used the
term to describe one charged with administering and main-
taining the law as it relates to penal custody only. That intent
is further demonstrated by the fact that the legislature con-
sistently 	distinguishes 	between 	corrections 	officers 	and
parole and probation officers, rather than including parole
and probation officers within the term "corrections officer."
See, e.g., ORS 163.208(1) (assaulting a public safety officer
includes assaults on "corrections officer[s]" and "parole and
probation officer[s]").
In sum, after analyzing the plain meaning of the text
of ORS 163.208(1) and the context provided by related stat-
utes, we agree with the Court of Appeals that a corrections
officer, as that term is used in ORS 163.208(1), is one who is
charged with supervising or controlling individuals confined

326 	State v. Tate
in a place of incarceration or detention. So understood, a uni-
formed guard at NORCOR would qualify.
Defendant argues that we should disregard the ordi-
nary meaning of the term "corrections officer" and apply the
definition given to that term in ORS 181.610(5). As noted,
that statute provides:
" 'Corrections officer' means an officer or member of a
law enforcement unit who is employed full-time thereby and
is charged with and primarily performs the duty of custody,
control or supervision of individuals convicted of or arrested
for a criminal offense and confined in a place of incarcera-
tion or detention other than a place used exclusively for
incarceration or detention of juveniles."
(Emphasis 	added.) 	ORS 	181.610(12) 	then 	defines 	"law
enforcement unit" as
"a police force or organization of the state, a city, port,
school district, mass transit district, county, county service
district authorized to provide law enforcement services
under ORS 451.010, Indian reservation, Criminal Justice
Division of the Department of Justice, the Department of
Corrections, the Oregon State Lottery Commission or com-
mon carrier railroad whose primary duty, as prescribed by
law, ordinance or directive, is any one or more of the
following:
"* * * * *
"{B) 	The custody, control or supervision of individuals
convicted of or arrested for a criminal offense and confined
to a place of incarceration or detention other than a place
used 	exclusively 	for 	incarceration 	or 	detention 	of
juveniles[.]"
(Emphasis added.) Defendant argues that NORCOR is not a
law enforcement unit because it is not an organization of any
of the entities identified in the statute and, in particular, that
it is not an organization of "a* * *county," ORS 181.610(12)
(emphasis added). Instead, defendant asserts, NORCOR is
an organization created by multiple county governments,
and its activities are managed by a board of directors, rather
than a single county government official. As a result, he
argues, the victim was not a member of a law enforcement

Cite as 347 Or 318 	327
unit and was thus not a corrections officer under ORS
163.208(1).
Defendant acknowledges that the definitions con-
tained in ORS 181.610, by that statute's express terms, apply
to ORS 181.610to181.712-not to ORS 163.208. He nonethe-
less argues that the statutory context demonstrates that the
legislature 	intended 	those 	definitions 	to 	apply 	to 	ORS
163.208(1) as well. Specifically, he points to the definition of
"staff member" in ORS 163.208(4)(b). ORS 163.208(1), as
noted, applies to an assault on certain identified persons,
including corrections officers, parole and probation officers,
and "staff member[s]." The statute then defines a "staff mem-
ber" as
"(A) 	A corrections officer as defined in ORS 181.610, a
youth correction officer, a Department of Corrections or
Oregon 	Youth 	Authority 	staff member 	or 	a 	person
employed pursuant to a contract with the department or
youth authority to work with, or in the vicinity of, inmates
or youth offenders; and
"(B) 	A volunteer authorized by the department, youth
authority or other entity in charge of a corrections facility to
work with, or in the vicinity of, inmates or youth offenders."
ORS 163.208(4)(b) (emphasis added).
Defendant 	concedes 	that 	he 	was 	charged 	with
assaulting a corrections officer under ORS 163.208(1), rather
than a staff member; he nonetheless argues that the defini-
tion of staff member provides context for interpreting the
term "corrections officer" as it is used earlier in the same stat-
ute. His argument is as follows: the legislature used the same
term-eorrections officer-in two different provisions of ORS
163.208; in one provision (ORS 163.208(4)(b), the definition
of staff member), 	corrections 	officer has 	the 	definition
ascribed to it in ORS 181.610; therefore, the legislature must
have intended corrections officer to have that meaning in the
other provision (ORS 163.208(1), the list of individuals that
qualify as victims, including staff members) as well.
Defendant's 	argument 	is 	flawed. 	AB 	originally
enacted, ORS 163.208(1) defined assault on a public safety
officer as an assault on a "peace officer, corrections officer or

328 	State v. Tate
firefighter." ORS 163.208(1) (1981). The statute then, as now,
contained no definition of corrections officer, nor did it pro-
vide any cross-references to any other statute defining that
term. The legislature then added the category and definition
of "staff member" to the statute in 2001. Or Laws 2001,
ch 828, § 1. Defendant concedes, and we agree, that the leg-
islature did not change the meaning of corrections officer, as
used in ORS 163.208(1), when it added the definition of staff
member; indeed, the legislature has not amended that part of
the statute since it enacted the statute in 1981. See Or Laws
1981, ch 783, § 2 (enacting statute). The terms that the leg-
islature used when it amended ORS 163.208 in 2001 provide
little to no context for understanding what the legislature
intended when it originally enacted the statute in 1981.
Because the legislature has not altered the meaning of cor-
rections officer in ORS 163.208(1) since 1981, the later-
enacted staff member provision provides little interpretive
value. See State v. Gaines, 346 Or 160, 177 n 16, 206P3d1042
(2009) ("Ordinarily, only statutes enacted simultaneously
with or before a statute at issue are pertinent context for
interpreting that statute.").
Moreover, and even if we were to assume that the
2001 amendment provides relevant context, we do not agree
with defendant that the amendment supports his interpre-
tation of corrections officer. Indeed, the legislature expressly
stated that" '[s]taff member' means * * * [a] corrections offi-
cer as defined in ORS 181.610," ORS 163.208(4)(b) (emphasis
added), but it did not similarly provide that the term "correc-
tions officer," as used in ORS 	163.208(1), should be so
defined. That indicates-if it indicates anything at all-that
the legislature did not intend corrections officer, as used in
ORS 163.208(1), to be defined by ORS 181.610. See King
Estate Winery, Inc. v. Dept. of Rev., 329 Or 414, 422, 988 P2d
369 (1999) ("[U]se of a term in one section and not in another
section of the same statute indicates a purposeful omission.").
The legislature did not use "identical terms" in two separate
provisions of ORS 163.208, as defendant argues. Instead, the
legislature 	used 	the 	term 	"corrections 	officer" 	in 	ORS
163.208(1), whereas it used the term "corrections officer as
defined in ORS 181.610" in ORS 163.208(4)(b)(A).

Cite as 34 7 Or 318
We therefore conclude that, to obtain a conviction for
assaulting a public safety officer under ORS 163.208, the
state was not required to produce evidence that the victim
met 	the 	definition 	of corrections 	officer given 	in 	ORS
181.610(5) or that NORCOR was a law enforcement unit as
defined in ORS 181.610(12). 6 The state instead was required
to prove only that the victim was charged with supervising or
controlling individuals confined in a place of incarceration or
detention. The state introduced evidence that the victim in
this case was a government employee trained in corrections,
that he worked in a correctional facility owned and operated
by the government and designed to house people convicted of
crimes, and that one of his job duties was supervising individ-
uals housed in that facility. A reasonable jury could have con-
cluded that the victim was a corrections officer under ORS
163.208(1), and the trial court correctly denied defendant's
motion for a judgment of acquittal. 7
We now turn to defendant's remaining arguments-
that the trial court erred in excluding defendant's proffered
evidence and that the trial court erred in refusing to provide
an additional jury instruction defining the term "law enforce-
ment unit." Because the state was not required to prove that
6 Because we conclude that the state was required to prove only that the victim
was charged with supervising or controlling individuals confined in a place of
incarceration or detention, we express no opinion as to whether NORCOR is a law
enforcement unit under ORS 181.610(12).
7 We note that the jury was not properly instructed as to the definition of cor-
rections officer; the trial court instructed the jury based on the definition contained
in ORS 181.610(5), including the requirement that the individual be a member of a
law enforcement unit. The court nonetheless correctly denied defendant's motion
for judgment of acquittal by concluding, based on the proper interpretation of cor-
rections officer in ORS 163.208(1), that the state had provided sufficient evidence
to convict defendant under that statute. The trial court considers a motion for a
judgment of acquittal before the jury is instructed and before the jury reaches its
verdict; the jury instructions are not relevant to whether a motion for judgment of
acquittal was properly denied. See ORS 136.445 ("In any criminal action the defen-
dant may, after close of the state's evidence or ofall the evidence, move the court for
a judgment of acquittal. The court shall grant the motion if the evidence introduced
theretofore is such as would not support a verdict against the defendant."); State v.
King, 307 Or 332, 339, 768 P2d 391 (1989) ("In ruling on the sufficiency of the evi-
dence in a criminal case, the relevant question is whether, after viewing the evi-
dence in the light most favorable to the state, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." (Emphasis
added.)).

330 	State v. Tate
NORCOR was a law enforcement unit, the evidence regard-
ing NORCOR's corporate status was properly excluded as
irrelevant. For the same reason, the court was not required to
instruct the jury on the meaning of law enforcement unit, as
defendant requested. 8
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
8 As noted, the trial court's instruction regarding the definition of corrections
officer was incorrect. However, defendant did not argue before the trial court-nor
does he argue on appeal-that the instruction given was erroneous; he instead
requested that the court give an additional instruction defining law enforcement
unit. Because including the definition of law enforcement unit also would have
resulted in an incorrect statement of the law as to the meaning of"corrections offi-
cer" under ORS 163.208, the trial court did not err in refusing to give defendant's
requested instruction. See Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957
P2d 14 7 (1998) ("Regarding a trial court's refusal to give a requested jury instruc-
tion, 	* * there is no error if the requested instruction is not correct in all
respects."). In any event, any jury instruction error was harmless. Had the court
properly instructed the jury, it would have used a broader definition of corrections
officer. Any person who would be included in the ORS 181.610 definition of correc-
tions officer that the court gave would necessarily be included in the broader defi·
nition that we have outlined above.