State v. Bevil

Under ORS 163.205(1)(b)(D), the first-degree criminal mistreatment statute makes it a Class C felony for any person who has assumed the care of an elderly person to take the elderly person’s money or property for any use or purpose not in the due care and lawful execution of the person’s responsibility.

Defendant appealed his judgment of conviction for first-degree criminal mistreatment, assigning error to the trial court's interpretation of ORS 163.205(1)(b)(D). Defendant argued that the legislature did not intend to create a strict-liability crime when money or property is voluntarily gifted to a caretaker for a purpose outside the scope of his or her duties. Under ORS 163.205(1)(b)(D), the first-degree criminal mistreatment statute makes it a Class C felony for any person who has assumed the care of an elderly person to take the elderly person’s money or property for any use or purpose not in the due care and lawful execution of the person’s responsibility. It was not the legislature’s intent for the statute to sweep as broadly as to prohibit any taking of money for any purpose outside of caretaking duties regardless of consent. The legislature was sensitive to the ability of a competent person to give consent for spending money and the word “take” does not intrude on the freedom of choice. A person does not “take” property when the property was gifted with the voluntary consent of its owner. “Takes” refers the circumstances in which a caretaker takes into his possession the property of an elderly or dependent person without that person’s voluntary consent. Reversed and remanded.