There is an interesting ruling out of Oregon where the Court of Appeals ruled that teeth cannot be treated as a dangerous weapon for the purposes of establishing a basis for first-degree assault conviction of Scott Russell Kuperus II. It is a clear case of prosecutorial over-charging and a trial judge who failed in protecting against such abusive claims.

Kuperus, 30, was charged in first-degree assault for his participation in a brawl. The prosecutors lacked a weapon to make the charge so they just cited his use of his teeth in biting off part of the ear of the victim. (“The victim lost the soft outer edge of his ear below the cartilage portion of the helix (the curved top of the outer ear) and above the earlobe.”)

However, the state law defines the first-degree assault as occurring with the use of dangerous weapon. A dangerous weapon is defined in ORS 161.015(1) as

“any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.”

That could not be more clear to anyone reading the statute. Yet, the prosecutors will not likely be disciplined for the frivolous claim or causing the appeal on such shaky ground. Moreover, the prosecutor’s superiors allowed the case to go forward. Finally, there is Marion County Circuit Court Judge Susan M. Tripp, who allowed this absurd claim to be the basis of a conviction in her courtroom. Question about the picture to the right, is it a threat for Judge Tripp to flash her dangerous weapons in seeking judicial office?

Tripp ignored the plain meaning of the provision by simply noting that teeth can cause serious injury, but so can fist or other body parts. Her view would eliminate the need for a weapon in such cases. The Court of Appeals rejected Tripp’s view:

Absent a legislative definition, the court ordinarily presumes that the legislature intended terms to have their plain, natural, and ordinary meaning. PGE, 317 Or at 611. The plain meaning of the terms used in ORS 161.015(1) suggest something external to the human body and thus would not encompass defendant’s own teeth. The dictionary defines “weapon” as an “instrument of offensive or defensive combat: something to fight with[.]” Webster’s Third New Int’l Dictionary 2589 (unabridged ed 2002).1 An “instrument” is defined as a “UTENSIL, IMPLEMENT,” Webster’s at 1172, implying a tool separate from the human body. The other terms used in ORS 161.015(1) similarly connote a thing or object different from a body part. The dictionary defines “device” as “a piece of equipment or a mechanism designed to serve a special purpose or perform a special function[.]” Webster’s at 618. “Material” is defined as “the basic matter (as metal, wood, plastic, fiber) from which the whole or the greater part of something physical (as a machine, tool, building, fabric) is made * * * the finished stuff of which something physical (as an article [*6] of clothing) is made[.]” Webster’s at 1392. Finally, “substance” means a “material from which something is made and to which it owes its characteristic qualities[,] * * * a distinguishable kind of physical matter[.]” Webster’s at 2279.

Thus, the plain meaning of the terms used to define “dangerous weapon” in ORS 161.015(1) suggests that the legislature did not intend a defendant’s own teeth to be considered as a “dangerous weapon,” because teeth are not external to the human body.

The court allowed the second degree assault conviction to stand.

Here is the opinion.

Source: OregonLive

Jonathan Turley