State v. Howard

ORS 166.075(2) provides: “As used in this section and ORS 166.085, ‘abuse’ means to deface, damage, defile or otherwise physically mistreat in a manner likely to outrage public sensibilities.”

Defendant appealed conviction of two counts of second-degree abuse of a corpse. Defendant assigned error to the denial of his as-applied challenge to the constitutionality of ORS 166.085. Defendant argued that the statute was unconstitutionally vague and did not provide fair warning of the prohibited conduct. The State argued that under ORS 166.085(3), which clarified the meaning of “abuse,” the statute applied to Defendant’s conduct. The Court discovered an overlooked statute that defined “abuse” for purposes of the statutory scheme, ORS 166.075(2), which provides: “As used in this section and ORS 166.085, ‘abuse’ means to deface, damage, defile or otherwise physically mistreat in a manner likely to outrage public sensibilities.” The Court found this was an issue of first impression because Defendant’s conviction was based on a “collective misunderstanding” of abuse under ORS 166.085(3) instead of 166.075(2). The Court reasoned that “properly construed” with 166.075(2), the “abuse of a corpse” statutes provide a “reasonable degree of certainty” and “fair notice” of what constitutes prohibited conduct. The Court concluded that despite misconstruction at trial, the statute was not unconstitutionally vague as applied to Defendant’s conduct. Convictions merged to one count of second-degree abuse of corpse; remanded for resentencing; otherwise affirmed.