author: HADLOCK, P. J.

text:
    Jill WARREN, Petitioner, v. WASHINGTON COUNTY and Venture Properties, Inc., Respondents.
    A169547
    Court of Appeals of Oregon.
    Argued and submitted January 29, 2019. March 20, 2019
    Kenneth P. Dobson argued the cause and filed the brief for petitioner.
    No appearance for respondent Washington County.
    No appearance for respondent Venture Properties, Inc.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Respondent Venture Properties applied for approval of a six-lot subdivision on land located in Washington County. A county hearings officer approved the application and petitioner Warren appealed that opinion to the Land Use Board of Appeals (LUBA). LUBA rejected each of petitioner's challenges to the order and petitioner now seeks judicial review. Neither Venture Properties nor respondent Washington County has filed a brief in this court. For the reasons set out below, we affirm.

The pertinent facts are set out in LUBA's order. Venture Properties applied for approval of a six-lot subdivision on a 2.8-acre parcel of land. A stream called Ash Creek runs through the parcel and approximately half of the parcel is included on a map of Significant Natural Resources (SNR) that is part of the county's program for meeting Statewide Planning Goal 5. The subdivision application proposed setting aside 58 percent of the property from development, including "the Ash Creek floodplain and associated wetlands and vegetated corridors." The application proposed "enhancement plantings" in a corridor adjacent to Ash Creek as required by regulations of Clean Water Services (CWS), the regional sewerage agency in that area. A county hearings officer approved the application with conditions, and LUBA affirmed the county's decision.

Petitioner's challenges to the LUBA order all relate to whether Washington County could apply certain provisions of its community development code (CDC) to prevent or restrict the proposed subdivision. To provide context for petitioner's arguments and LUBA's rationale for rejecting them, we set out the pertinent statutory provisions-in particular, ORS 197.307(4) -before discussing petitioner's arguments in detail. However, we note at the outset that at least some of petitioner's arguments are premised on an assumption that part of the 2.8-acre property at issue may not qualify as "buildable land" as that term is defined in ORS 197.295(1). That is a fact that LUBA also appears to have assumed for purposes of resolving petitioner's challenges to the subdivision approval and, accordingly, we do so, too.

The extent to which the county's CDC provisions could apply to the subdivision application is controlled in part by ORS 197.307, which is sometimes referred to as one of Oregon's "needed housing statutes." See, e.g. , Warren v. Washington County , --- Or. LUBA ----, ---- (LUBA No. 2018-089, Nov. 14, 2018) (slip op. at 6) ("The statutes that are set out at ORS 197.295 to 197.314 are commonly referred to as the Needed Housing Statutes."). The statute addresses, as "a matter of statewide concern," the "availability of affordable, decent, safe and sanitary housing opportunities for persons of lower, middle and fixed income, including housing for farmworkers." In various ways, the provisions of ORS 197.307 govern the circumstances under which local governments may apply standards, conditions, and procedures that have the effect of regulating or restricting the development of housing. The legislature amended several of the needed housing statutes in 2017. See Or. Laws 2017, ch. 745.

Petitioner's arguments focus on the requirements of ORS 197.307(4). Before it was amended in 2017, ORS 197.307(4) provided that local governments generally could restrict development of "needed housing" on "buildable land" only through application of regulations and procedures that were "clear and objective":

"Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of needed housing on buildable land described in subsection (3) of this section. The standards, conditions and procedures may not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay."

ORS 197.307(4) (2015). By its terms, the "clear and objective" standard imposed by ORS 197.307(4) then applied only to development of needed housing on buildable land. The statute did not prevent local governments from applying standards, conditions, and procedures that were not clear and objective to regulate housing development on other types of land.

As amended in 2017, ORS 197.307(4) now provides:

"Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. The standards, conditions and procedures:
"(a) May include, but are not limited to, one or more provisions regulating the density or height of a development.
"(b) May not have the effect, either in themselves or cumulatively, of discouraging needed housing through unreasonable cost or delay."

Thus, ORS 197.307(4) no longer refers to "buildable land," and, by its terms, provides that local government can regulate the development of housing only through clear and objective standards, conditions, and procedures.

That 2017 version of ORS 197.307(4) applies to Venture Properties' subdivision application. In rejecting petitioner's arguments that certain CDC provisions should prevent the subdivision from going forward, LUBA ruled, as pertinent here: (1) ORS 197.307(4) prohibits Washington County "from applying any standards, conditions and procedures that are not clear and objective to [Venture Properties'] application to develop a six-lot residential subdivision, without regard to whether [Venture Properties'] property is 'buildable land' "; (2) aspects of CDC 422-3.3, which generally prohibits new or expanded alteration of vegetation in a riparian corridor, except in specified circumstances, and CDC 422-3.4, which relates to enhancements of degraded riparian corridors, are not "clear and objective"; and (3) substantial evidence supports the county hearing officer's determination that a part of the property near Ash Creek is "degraded" for purposes of those CDC provisions. On judicial review, petitioner challenges each of those aspects of LUBA's decision.

We begin our analysis by addressing petitioner's overarching challenge to the LUBA decision, which is premised on petitioner's contention that the 2017 amendments to ORS 197.307(4) did not have the effect of extending the "clear and objective" requirement to housing development on land that is not buildable land. Rather, according to petitioner, the "clear and objective" requirement in ORS 197.307(4)"still only appl[ies] to 'buildable land.' "

To assess petitioner's statutory construction argument, we examine the text and context of ORS 197.307(4) as amended in 2017 and, to the extent it appears useful, the legislative history. TriMet v. Amalgamated Transit Union Local 757 , 362 Or. 484, 493, 412 P.3d 162 (2018). We begin with the statute's text, which "is the most persuasive evidence of the legislature's intent." Id. Again, the pertinent part of the amended statute provides:

"Except as provided in subsection (6) of this section, a local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing. * * *"

ORS 197.307(4).

Nothing in the wording of that provision suggests that the requirement that local governments regulate housing development only through "clear and objective" standards applies only to housing development on "buildable land." To the contrary, ORS 197.307(4) plainly states that the "clear and objective" requirement applies broadly to local governments' application of standards, conditions, and procedures "regulating the development of housing" generally, including "needed housing." Reading that provision to apply only to housing that is developed on buildable land would impermissibly insert a limitation on the provision's scope, in violation of ORS 174.010 (in construing a statute, a court should "ascertain and declare what is * * * contained therein" and should not "insert what has been omitted").

Consideration of context, including the previous version of ORS 197.307(4), does not change our view of the provision's meaning. See State v. Spainhower , 251 Or. App. 25, 28, 283 P.3d 361 (2012) (context "includes prior versions of the statute"). The 2017 legislature expressly deleted the reference to "buildable land" from ORS 197.307(4), supporting our view that subsection (4) no longer relates only to development that occurs on that category of land. Or. Laws 2017, ch. 745, § 5. Moreover, other aspects of the 2017 legislation also reflect an intention to promote certain housing development. For example, the legislation includes provisions that, under specified circumstances, impose relatively short timelines for processing applications for development of affordable multifamily housing, prohibit counties from reducing the density associated with certain proposed housing developments, redefine "needed housing" to expressly address "affordab[ility] to households within the county with a variety of incomes," require certain municipalities to allow accessory dwelling units, and permit places of worship to use their real property to provide affordable housing. Or. Laws 2017, ch. 745, §§ 1, 2, 3, 4, 6, 7, 8. Each of those provisions may be viewed as promoting housing development-a goal that is consistent with making the "clear and objective" standard in ORS 197.307(4) applicable to housing development generally, not only to development of housing on "buildable land."

Nonetheless, in arguing that context supports her interpretation of ORS 197.307(4), petitioner points to other statutory provisions that retain references to "buildable land," particularly ORS 197.307(3), which states (as it did before the 2017 legislation):

"When a need has been shown for housing within an urban growth boundary at particular price ranges and rent levels, needed housing shall be permitted in one or more zoning districts or in zones described by some comprehensive plans as overlay zones with sufficient buildable land to satisfy that need."

Petitioner posits that, because subsection (3) of ORS 197.307 already references "buildable land," the legislature likely deleted that reference from subsection (4) simply "to avoid repetitious language." We disagree. As LUBA explained, ORS 197.307(3) relates to "estimating housing demand and land supply" and it "imposes a planning mandate on local governments" requiring them to allow needed housing in the particular areas identified in that subsection of the statute. ORS 197.307(4) addresses a different concern, limiting the standards that local governments may apply when considering an application to develop housing. For at least that reason, the reference to "buildable land" in subsection (3) does not suggest that the legislature silently intended subsection (4) to apply only to applications for housing on buildable land.

Petitioner's additional statutory construction arguments rely on the wording of an administrative rule that apparently has not yet been updated to reflect the 2017 amendment to ORS 197.307(4), the absence of a discussion of the previous "buildable land" limitation in the legislative history of that amendment, and petitioner's view that interpreting the provision according to its plain terms would lead to an absurd result. We have considered each of those arguments and conclude that they lack merit. We conclude, as did LUBA, that the "clear and objective" requirement in ORS 197.307(4) applies, as it states, to "standards, conditions and procedures regulating the development of housing, including needed housing," without regard to whether the development will occur on "buildable land."

We turn to petitioner's other challenges to the LUBA order, which focus on LUBA's determination that pertinent aspects of CDC 422-3.3 and CDC 422-3.4 are not "clear and objective" and that, consequently, the county could not apply those code provisions to the proposed development. CDC 422 includes the county standards that are designed "to permit limited and safe development in areas with significant natural resources, while providing for the identification, protection, enhancement and perpetuation" of those resources. CDC 422-1. CDC 422-3.3 sets out the standards for development in a riparian corridor. As pertinent here, that CDC provision states:

"A. No new or expanded alteration of the vegetation or terrain of the Riparian Corridor * * * shall be allowed except for the following:
"* * * * *
"(7) Where it can be demonstrated, with concurrence of the Clackamas County biologist or other applicable district biologist of the Oregon Department of Fish and Wildlife, that a riparian corridor * * * has been degraded, an enhancement of [that] area which conforms to the definition and criteria listed in Section 422-3.4 may be permitted * * *. Enhancement or alteration of a non-degraded portion of these areas is permitted when it is in conjunction with and it is needed to support the enhancement of the degraded area. * * *"

CDC 422-3.3. In turn, CDC 422-3.4 provides that "[e]nhancement of a degraded riparian corridor" that is permitted under CDC 422-3.3 A. (7) "shall meet the following" requirements, including:

"A. For the purposes of Section 422-3.3 A. (7) an enhancement is a modification, as a result of which no later than five (5) years after completion of the project, the quality and/or quantity of the natural habitats is measurably improved in terms of animal and plant species numbers, number of habitat types, and/or amount of area devoted to natural habitat."

CDC 422-3.4 (emphasis added).

As noted, LUBA determined that CDC 422-3.3 and CDC 422-3.4 could not be applied to prevent the enhancement plantings along Ash Creek because the term "measurably improved" is not "clear and objective," as ORS 197.307(4) requires. On judicial review, petitioner does not challenge that determination directly; that is, petitioner does not assert that the term "measurably improved" is clear and objective. Rather, petitioner argues that LUBA should not have applied the "clear and objective" test at all, because the term "enhancement" is merely a definition, and not a "standard[ ], condition[ ] [or] procedure[ ]" for purposes of ORS 197.307(4). We disagree. Application of CDC 422-3.3 and CDC 422-3.4 to either allow or disallow alteration of a riparian corridor through enhancement plantings in conjunction with a proposed subdivision amounts to "regulat[ion of] the development of housing, including needed housing." Further, whether such enhancement is permissible under those CDC provisions depends in part on whether the natural habitat will be "measurably improved" as a result. CDC 422-3.4. Thus, measurable improvement of natural habitat is a "condition" to allowing enhancement of a degraded riparian corridor.

Petitioner also argues on judicial review that LUBA should not have reached the question whether the term "measurably improved" is clear and objective because the general prohibition against "new or expanded alteration of the vegetation or terrain of the Riparian Corridor" in CDC 422-3.4 itself is clear and objective. Because that general prohibition is clear and objective, petitioner argues, it does not matter whether any of the exceptions to the prohibition-including the enhancement exception-also meets that requirement. Petitioner relies on the presence of a severability clause in the CDC and contends that application of that clause means that, "even if the definition of 'enhancement' in the list of exceptions is found to be unenforceable, then the otherwise clear and objective general prohibition against 'new or expanded alteration of vegetation' in the riparian SNR would still be enforceable." That is not an argument that petitioner meaningfully developed before LUBA and it is, therefore, not properly preserved for our review. See Willamette Oaks, LLC v. City of Eugene , 295 Or. App. 757, 765-66, 437 P.3d 314 (2019) (discussing preservation principles as they apply in judicial review of LUBA proceedings).

We reject petitioner's remaining arguments on judicial review without discussion.

Affirmed.

      As noted in OAR 660-015-0000(5), Statewide Planning Goal 5 relates to "Natural Resources, Scenic and Historic Areas, and Open Spaces." The administrative rules in OAR chapter 660, division 23, "establish[ ] procedures and criteria for inventorying and evaluating Goal 5 resources and for developing land use programs to conserve and protect significant Goal 5 resources." OAR 660-023-0000.

      ORS 197.295(1) defines "buildable lands" as "lands in urban and urbanizable areas that are suitable, available and necessary for residential uses." The term includes "both vacant land and developed land likely to be redeveloped." Id.
      LUBA found that the property at issue in this case is included in Metro's Buildable Lands Inventory (BLI). Petitioner does not contest that finding. LUBA also ruled that inclusion of the property in the BLI means that Metro has determined that at least some portion of the property is "buildable land" as defined in ORS 197.295(1). Petitioner does not contest that ruling. However, LUBA has not determined that the entire property is "buildable land." Rather, it held that petitioner's arguments lacked merit "without regard to whether [the] property is 'buildable land.' "

      Laws other than ORS 197.307(4) may or may not have then restricted local governments' ability to apply standards or regulations that were not "clear and objective" to lands other than buildable lands. This opinion concerns only the "clear and objective" requirement imposed by ORS 197.307(4), before and after the 2017 legislation at issue, and this opinion should not be read to express any view on the effect of other statutes on the development of housing in this state.

      Accordingly, we express no view on whether the term "measurably improved" meets the "clear and objective" standard.

      The clause on which petitioner relies is CDC 105-1, which states:
      "If any portion of this Code is for any reason held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Code."


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jose Buenaventura VINALS, Defendant-Appellant.
    A164640
    Court of Appeals of Oregon.
    Submitted January 30, 2019. March 20, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the opening and reply brief for appellant. Jose Buenaventura filed the supplemental brief pro se.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   PER CURIAM

Defendant appeals a judgment of conviction for racketeering (Count 1), and unlawful delivery of methamphetamine (Counts 3 through 11). Defendant assigns error to several aspects of his sentencing. The state concedes the error on two of those assignments. We write to address only the assignments of error on which the state concedes. Because we must remand the case for resentencing based on those errors, we do not address the remainder of defendant's assignments of error to his sentencing. Additionally, we reject without discussion defendant's assignments of error challenging his convictions.

In his second assignment of error, defendant argues that the trial court plainly erred by "improperly reconstitut[ing] defendant's criminal history score on Count 4." Defendant's criminal history score was "F" at the beginning of the case, but, once the court imposed sentence for Count 1 (racketeering) and Count 3 (delivery), the court recalculated defendant's criminal history score to "E" for Count 4. Defendant argues that that was impermissible because Count 4 occurred during the same criminal episode as Count 1, which included each of the other counts as predicate acts for that racketeering charge. See State v. Ortega-Gonsalez , 287 Or. App. 526, 536-37, 404 P.3d 1081 (2017) (racketeering conviction could not be used for purposes of calculating criminal history score on convictions that made up the predicate acts for the racketeering conviction because those crimes are part of the same criminal episode). The state concedes that the trial court plainly erred with respect to Count 4 because, under Ortega-Gonsalez , the trial court could not include the racketeering conviction in defendant's criminal history score for purposes of imposing sentence on Count 4.

Similarly, in his fourth assignment of error, defendant argues that the trial court plainly erred when it "failed to shift defendant's criminal history score to 'I' on Count 4 when imposing a consecutive sentence on that count" because it arose during the same criminal episode as Count 1. The state also concedes that the trial court plainly erred in imposing the sentence on Count 4, based on Ortega-Gonsalez .

We agree with and accept the state's concessions that the trial court plainly erred in imposing the sentence on Count 4, as discussed above. Additionally, we conclude that we should exercise our discretion to correct the plain error for the reasons discussed in State v. Sosa , 224 Or. App. 658, 665, 199 P.3d 346 (2008) -viz ., the gravity of the error and "whether the trial court could have imposed, or might impose on remand, the same total number of months' incarceration is not 'certain.' " Because that conclusion requires a remand for resentencing of the case, we do not address whether the trial court committed additional sentencing errors with respect to the other counts as argued by defendant.

Remanded for resentencing; otherwise affirmed.


text:
    STATE of Oregon, Plaintiff-Respondent, v. Antonio SANTIAGO-RAMIREZ, Defendant-Appellant.
    A166472
    Court of Appeals of Oregon.
    Submitted March 6, 2019. April 10, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.
   PER CURIAM

Affirmed. State v. Opitz , 273 Or. App. 745, 359 P.3d 588 (2015), rev. den. , 358 Or. 550 (2016).


text:
    TRAN v. HOME FORWARD and Blocker et al.
    A168368
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE of Utah, Respondent, v. Timothy James TRUJILLO, Petitioner.
    No. 20170615
    Supreme Court of Utah.
    Filed January 29, 2019
    Sean D. Reyes, Att'y Gen., Jeanne B. Inouye, Asst. Solic. Gen., Salt Lake City, for respondent
    Nathalie S. Skibine, Christopher Jones, Salt Lake City, for petitioner
    Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce and Justice Petersen joined.
    On Certiorari to the Utah Court of Appeals
   Chief Justice Durrant, opinion of the Court:

Introduction

¶1 Timothy James Trujillo challenges his conviction under Utah's witness retaliation statute. This statute makes it a crime to direct a threat of harm or a harmful action against a witness or a person closely associated with that witness as retaliation against that witness. It is undisputed in this case, however, that the witnesses-who were the subject of the alleged threat-were not present when Mr. Trujillo made the threat. And the State has not argued that Mr. Trujillo intended to have someone relay the threat to the witnesses, nor that it was likely to be relayed to them under the circumstances. So we must decide whether the statute criminalizes threats a person makes regarding a witness outside the witness's presence and without an intention to have the threat communicated to the witness. We conclude that it does not.

¶2 Additionally, Mr. Trujillo argues that the district court abused its discretion by admitting evidence of Mr. Trujillo's affiliation with the Familia Para Siempre gang. Because our holding regarding the witness retaliation statute moots this issue, we need not address it.

Background

¶3 Neither party disputes the facts underlying the legal issues in this case. While on patrol one evening, a police officer encountered an intoxicated minor who appeared to have been assaulted. Although there were several people nearby, the officer determined that none of them was the culprit. He cited the minor for underage drinking and left. Later that night, the officer returned to the scene after receiving a report of a man wielding a knife.

¶4 Upon his return, the officer saw two groups of people arguing. One of these groups included the minor encountered previously, the minor's brother, Mr. Trujillo, and another man. The other group consisted of three or four men who lived nearby (neighbors). The officer detained the minor and his brother and told Mr. Trujillo and the other man to leave. At this point, additional police officers arrived on the scene to act as backup, which allowed the first officer to search the scene for evidence. He found three butcher knives. Believing that these knives could possibly belong to Mr. Trujillo, the officer sent the backup officers to search for him.

¶5 The backup officers located Mr. Trujillo and the other man, but were unable to speak with them before they ran inside a nearby house. The officers followed, knocked on the door, and announced that they were police officers, but they received no response. Fearing the men might retrieve weapons, the officers kicked down the door. The officers arrested Mr. Trujillo and the other man and then confirmed their identities with the first officer. The first officer then informed Mr. Trujillo and the other man that they were being charged with aggravated assault.

¶6 At this point, Mr. Trujillo began to argue with the officers and proclaim his innocence. After Mr. Trujillo mentioned the neighbors, the officers told him that the neighbors had not been involved in the minor's assault, that they were trying to help the minor, and that Mr. Trujillo should "stay away from them." Mr. Trujillo responded by saying that "if I'm being charged with [aggravated assault]," then "my boys will be paying them a visit, [and] and it's [the officers'] fault." Mr. Trujillo repeated this several times before continuing, "Do you expect me to go to ... jail and nothing happen?"

¶7 The State charged Mr. Trujillo with one count of retaliation against a witness, victim, or informant under the witness retaliation statute. Following his bindover on the charge, Mr. Trujillo filed a motion to quash, arguing that the State did not present sufficient evidence that he made a threat of harm. The trial court denied the motion. Later, the State filed a motion in limine , seeking to introduce evidence of Mr. Trujillo's gang affiliation because of its importance in demonstrating that his comments constituted a threat of harm. The trial court granted the motion. At trial, the State called one of the backup officers as an expert witness, and he testified as to the history of gangs in prison, gang culture generally, and Mr. Trujillo's role as a leader in the gang with which he was affiliated. The jury convicted Mr. Trujillo, and the trial court sentenced him to an indeterminate prison term not to exceed five years. He appealed to the court of appeals.

¶8 Mr. Trujillo made three arguments before the court of appeals. First, he argued that there was insufficient evidence to support a conclusion that his statements constituted a threat. Second, he argued that under the plain language of the witness retaliation statute, a threat cannot be directed against a witness unless the threat is communicated to the witness. Third, he argued that the district court abused its discretion by allowing evidence of Mr. Trujillo's gang affiliation. The court of appeals denied all three claims. Mr. Trujillo petitioned for a writ of certiorari, which we granted. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).

Standard of Review

¶9 Mr. Trujillo raises two issues before us. First, he asks us to determine whether the court of appeals erred in concluding that the witness retaliation statute criminalizes a threat that was not communicated, or intended to be communicated, to the intended target of that threat. Second, he asks us to consider whether the court of appeals erred in affirming the district court's determination that rule 403 of the Utah Rules of Evidence did not preclude evidence of Mr. Trujillo's gang affiliation. "On certiorari, we review the decision of the court of appeals for correctness." In doing so, we give no "deference to its conclusions of law."

Analysis

¶10 Mr. Trujillo argues that the court of appeals incorrectly interpreted the requirements of the witness retaliation statute. That court interpreted the statute as requiring only that a threat be made regarding the witness. Mr. Trujillo, in contrast, interprets the plain language of the statute as requiring threats to reach, or at least be intended to reach, the targeted witness. We agree with Mr. Trujillo and conclude that the witness retaliation statute only criminalizes threats that the threat-maker intended to convey to the threat-target.

¶11 Additionally, Mr. Trujillo argues that the district court abused its discretion by admitting evidence of his affiliation with the Familia Para Siempre gang. Because our holding regarding the witness retaliation statute moots this issue, we need not address it.

¶12 Mr. Trujillo argues that the plain meaning of the witness retaliation statute requires, at a minimum, that the person who makes a threat against a witness intend to communicate the threat to that witness. The State argues that the statute criminalizes the making of threats regarding a witness. We agree with Mr. Trujillo.

¶13 When interpreting a statute, "we seek to give effect to the intent of the Legislature." "To ascertain that intent, we look first to the text of the statute within its context." In doing so, we acknowledge that "while the ordinary meaning of a word is powerful evidence in understanding statutory text," our aim is to determine a word's meaning in the context of the statute as a whole.

¶14 The witness retaliation statute makes it a crime to make a threat or cause harm and to direct that threat or harmful action against a witness as retaliation or retribution:

A person is guilty of the third degree felony of retaliation against a witness, victim, or informant if, believing that an official proceeding or investigation is pending, is about to be instituted, or has been concluded, he: (a)(i) makes a threat of harm; or (ii) causes harm; and (b) directs the threat or action: (i) against a witness or an informant regarding any official proceeding, a victim of any crime, or any person closely associated with a witness, victim, or informant; and (ii) as retaliation or retribution against the witness, victim, or informant.

In other words, under the statute it is a crime (1) to make a threat of harm or cause harm and (2) direct the threat or harmful action against a witness "as retaliation or retribution," if (3) the person making the threat or causing the harm does so while "believing that an official proceeding or investigation is pending, is about to be instituted, or has been concluded."

¶15 The State argues that a person violates the statute if the person makes a threat of harm regarding a witness, even if the witness is not present, and the threat-maker did not intend the witness to hear it. The State does not support this argument with its own textual analysis of the statutory language. Instead, it refers us to the court of appeals' decision, which focused on the meaning of the word "against." According to the court of appeals, "against" is used in the statute to mean "in opposition or hostility to." With this definition in mind, the court of appeals concluded that the statute "is devoid of any language suggesting that the threat must be made with the intent that it reach the witness."

¶16 Mr. Trujillo, on the other hand, argues that the text of the statute requires that the threatening words reach, or at least be intended to reach, their target. In support, he points to the plain meaning of the phrase "as retaliation or retribution" to suggest that the statute criminalizes only threats that a person communicates-or, alternatively, intends to communicate-to a witness cooperating with the justice system. Because the meaning of the phrase "as retaliation or retribution" supports only Mr. Trujillo's interpretation, we conclude that the witness retaliation statute only criminalizes threats that the threat-maker intended to convey to the threat-target.

¶17 For a threat against a witness to constitute a criminal violation under the witness retaliation statute, it must be directed "as retaliation or retribution against the witness." Mr. Trujillo argues that this phrase indicates that a person does not violate the retaliation statute unless the threat reaches the witness. And, alternatively, he argues that even if the witness retaliation statute does not require that the threat reach the witness, it does require that the person making the threat intend the threat to reach the witness. Although we do not accept Mr. Trujillo's first argument, because it would render one component of the witness retaliation statute superfluous, we agree with his second argument.

¶18 Mr. Trujillo argues that the phrase "as retaliation or retribution against the witness" requires that the witness actually hear the threat. According to Mr. Trujillo, this is so because the definitions of the words "retaliation" and "retribution" both require that some type of "harm in return," "punishment," or "repayment" occur. Because there is no "harm in return," "punishment," or "repayment" when the witness is unaware of the threat, Mr. Trujillo argues, the statute necessarily requires that the witness hear the threat and therefore be harmed by it. But this argument fails because nothing in the language of the statute requires that the threat-maker successfully retaliate against the witness.

¶19 As it is currently written, the subject of the operative sentence in the witness retaliation statute is the "person" who makes the threat. And a violation of the statute occurs when the threat-maker (the subject) directs the threat against a witness "as retaliation or retribution." Importantly, "as retaliation or retribution" operates as an adverbial phrase that modifies the verb phrase "direct against." So the statute is violated where the threat-maker (the subject) directs the threat as retaliation, not necessarily where the witness (the indirect object) is retaliated against. Because it is possible for a person to direct a threat against a witness without the witness hearing the threat-and this remains possible even where the person directs the threat as a form of retaliation-the statute does not require that the witness actually hear the threat. Accordingly, Mr. Trujillo's first argument related to the meaning of the phrase "as retaliation or retribution" fails.

¶20 But Mr. Trujillo also argues that even if the witness retaliation statute does not require that the threat reach the witness, it does require that the person making the threat intend the threat to reach the witness. This is a subtle, yet important distinction. And it is a distinction that is supported by the phrase "as retaliation or retribution."

¶21 Black's Law Dictionary defines "retaliation" as "[t]he act of doing someone harm in return for actual or perceived injuries or wrongs; an instance of reprisal, requital, or revenge." And it defines "retribution" as "[p]unishment imposed for a serious offense" or "[s]omething justly deserved; repayment; reward." Both of these words suggest that the person retaliating intends the harm to actually affect the target of the retaliation or retribution.

¶22 This interpretation is further supported by the legislature's inclusion of the preposition "as" at the beginning of the phrase. By drafting the statute so that the threat-maker must make the threat as retaliation, the legislature conveyed a different meaning than it would have if it had drafted the statute to criminalize a defendant's threat of retaliation, or threat to retaliate. "As," when used as it is in the statute, means "in the capacity, character, condition, or role of." So when a person makes a threat as retaliation, the threat operates as the form of retaliation against the intended target.

¶23 And if the threat operates as the form of retaliation, then the person retaliating must intend the threat to cause harm or punish the person who is the target of the threat. This is so because "retaliation" and "retribution" mean an act of either harm or punishment done in response to another person's action, and a threat cannot be an act of harm or punishment against a person unless the threat actually reaches that person. It follows, therefore, that a person who makes a threat as retaliation must intend that the threat reach the targeted witness. Accordingly, we hold that the phrase "as retaliation or retribution" limits the scope of the "threat" prong of the witness retaliation statute to those instances where a person makes a threat and intends it to reach the targeted witness.

¶24 In contrast, the State argues that this phrase "merely required the State to prove the reason [Mr. Trujillo] made the threat." In other words, the State claims that the phrase "as retaliation or retribution" includes those instances where the threat-maker makes a threat because of a desire to retaliate against the witness. Under this interpretation, the threat is not a form of retaliation; it is an expressed desire to retaliate in the future. But as we have explained above, this interpretation is contradicted by the legislature's use of the word "as," which limits the scope of the statute to those instances where the threat-maker makes the threat as a form of retaliation against the threat's target. Accordingly, the State's proposed interpretation is not supported by the plain language of the statute.

¶25 Because the phrase "as retaliation or retribution" requires, at the very least, that the threat-maker intend to communicate the threat to the threat's target, we reverse Mr. Trujillo's conviction under the witness retaliation statute.

Conclusion

¶26 The witness retaliation statute makes it a crime to direct a threat or a harmful action against a witness as retaliation or retribution. Because the phrase "as retaliation or retribution" necessarily limits the scope of the statute to those instances where a threat is made as an intended form of retaliation or retribution, we conclude that the statute criminalizes only those threats that the threat-maker intended to be communicated to the witness. Accordingly, we reverse Mr. Trujillo's conviction.

      Utah Code § 76-8-508.3.

      Although Mr. Trujillo was also charged with aggravated assault in a separate case, the charge was later dismissed.

      State v. Trujillo , 2017 UT App 116, ¶ 7, 400 P.3d 1213.

      Id. ¶ 8.

      Id. ¶ 9.

      Id. ¶ 23.

      State v. Hansen , 2002 UT 125, ¶ 25, 63 P.3d 650 (citation omitted).

      State v. Lambdin , 2017 UT 46, ¶ 11, 424 P.3d 117 (citation omitted).

      State v. Trujillo , 2017 UT App 116, ¶ 14, 400 P.3d 1213.

      State v. Rasabout , 2015 UT 72, ¶ 10, 356 P.3d 1258.

      Id.

      Id. ; see also Biedermann v. Wasatch Cty. , 2015 UT App 274, ¶ 17, 362 P.3d 287 (explaining that when a "term has more than one ordinary meaning, we interpret it 'based upon the context in which it is used' " (citation omitted) ).

      Utah Code § 76-8-508.3(2).

      Id.

      Trujillo , 2017 UT App 116, ¶ 14, 400 P.3d 1213.

      Id . (citation omitted) (internal quotation marks omitted).

      Id .

      Mr. Trujillo also argues that the plain meaning of the phrases "threat" and "directs against" supports his proposed interpretation of the statute. Because we do not find these arguments helpful to our analysis, we do not address them.

      Utah Code § 76-8-508.3(2).

      Id . § 76-8-508.3(2)(b)(ii).

      Retaliation , Black's Law Dictionary (10th ed. 2014).

      Retribution , Black's Law Dictionary (10th ed. 2014).

      See State v. Stewart , 2018 UT 24, ¶ 12, 438 P.3d 515 ("We 'presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning.' " (citation omitted) ).

      A threat of retaliation, or a threat to retaliate, would be a threat to retaliate in the future. If the person making the threat does not intend it to reach the subject of the threat, then it cannot be said that the person made the threat as retaliation.

      As, Merriam-Webster's Collegiate Dictionary (10th ed. 1998).

      See supra ¶21.

      When the witness retaliation statute is interpreted in this way, Mr. Trujillo did not make a threat as retaliation against the neighbors. He either made a threat as retaliation against the police, or he made a threat to retaliate against the neighbors in the future. Neither theory was the basis for Mr. Trujillo's conviction in this case.

      We note that the language of the statute encompasses threats directed against "a witness" as well as threats directed against "any person closely associated with a witness." Utah Code § 76-8-508.3(2). So under the statute the subject of the threat could be the witness or any person closely associated with the witness, as long as the threat is made as a form of retaliation against the witness -or in other words, was made with the intent that it reach the witness.