State v. Dickerson ( 2015 )

822 March 12, 2015 No. 8
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
LAWRENCE BEN ALLEN DICKERSON,
Petitioner on Review.
(CC MI092911; CA A147467; SC S062108)
En Banc
On review from the Court of Appeals*
Argued and submitted October 9, 2014, at La Grande
High School, La Grande, Oregon.
Erik Blumenthal, 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.
Stephanie L. Striffler, Senior Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent
on review. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
BALDWIN, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
Defendant moved for a judgment of acquittal on the count of second-degree
criminal mischief, arguing that the state failed to prove that he had intention-
ally damaged “property of another,” as that phrase is used in ORS 164.354.
Specifically, he argued that wild deer do not become property until reduced to
possession. The trial court denied defendant’s motion, a jury convicted defendant
of second-degree criminal mischief and other crimes, and the Court of Appeals
affirmed. Held: Wild deer are “property of another,” for purposes of ORS 164.354.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
________________
*  Appeal from Deschutes County Circuit Court, Barbara Haslinger, Judge.
260 Or App 80, 317 P3d 902 (2013).
Cite as 356 Or 822 (2015) 823
BALDWIN, J.
Oregon’s criminal mischief statute, ORS 164.354,
prohibits persons from intentionally damaging “property
of another.” The issue in this case is whether wild deer
are “property of another” for purposes of that statute.
Defendant was convicted of second-degree criminal mis-
chief, ORS 164.354, after aiding and abetting his son to
shoot two state-owned deer decoys that they believed to be
deer. Defendant appealed his criminal mischief conviction,
arguing that the trial court had erred in denying his motion
for judgment of acquittal because wild deer do not become
property until reduced to physical possession. The Court of
Appeals affirmed defendant’s conviction. State v. Dickerson,
260 Or App 80, 317 P3d 902 (2013). We granted review to
determine whether wild deer are “property of another,” as
that phrase is used in ORS 164.354. For the reasons that
follow, we affirm.
In reviewing a denial of a motion for judgment of
acquittal, we describe the relevant facts and all reasonable
inferences that may be drawn from those facts in the light
most favorable to the state. State v. Walker, 356 Or 4, 6, 333
P3d 316 (2014). As part of an operation to test compliance
with hunting laws, two state troopers set up a pair of deer
decoys near the side of a highway. More than half of an hour
past sunset and therefore past legal hunting hours, defen-
dant and his son were driving home in defendant’s truck
after a day of hunting. When defendant’s son saw the two
decoys, he told his father to stop the truck. Defendant angled
his truck toward the decoys and stopped. Defendant’s son
got out of the truck and, using defendant’s rifles, fired two
shots at the decoys, damaging both of them. The troopers
observed the conduct and stopped defendant and his son.
Defendant’s son admitted that he had fired both shots, and
defendant admitted that he owned the rifles that his son
had used.
As a result of that incident, the state charged defen-
dant with attempting to take a wildlife decoy, ORS 496.9961
1
ORS 496.996(1) provides that a person commits the crime of unlawful tak-
ing of wildlife if:
824 State v. Dickerson
and ORS 161.405;2 use of unlawful hunting methods,
ORS 498.002;3 and second-degree criminal mischief, ORS
164.354.4 On the criminal mischief count, the information
originally charged defendant with “unlawfully and inten-
tionally damag[ing] a wildlife decoy[,] the property of The
State of Oregon, by shooting the decoy in the head, the said
defendant having no right to do so nor reasonable grounds
to believe that the defendant has such right.” (Emphasis
added.) 5 At trial, the state pursued the theory that defen-
dant had aided and abetted his son in shooting two deer
decoys that belonged to the state and that defendant and his
son had believed to be actual deer.
After the state had presented its evidence, defen-
dant moved for a judgment of acquittal on all counts. On the
criminal mischief count, defendant argued that no reason-
able trier of fact could find that he had intended to damage
a wildlife decoy. The court suggested that the state amend
the charge to strike the references to the decoys, stating,
“[Y]ou can strike what the property is, all that matters
is that it’s something belonging to the State of Oregon, I
think.” Defendant responded that, even if the charge were
so amended, the state had failed to prove that wild deer are
“property of another” for purposes of the intent element of
the criminal mischief statute. Specifically, he argued that
wild deer may become property only after being reduced to
physical possession. The state countered that all wildlife
is the property of the sovereign and therefore is “property
“(a)  The person discharges a firearm or other hunting device, traps, or
acts toward a wildlife decoy in any manner consistent with an unlawful tak-
ing of wildlife; and
“(b)  The wildlife decoy is under the control of law enforcement officials.”
2
ORS 161.405 provides, in part, “A person is guilty of an attempt to commit
a crime when the person intentionally engages in conduct which constitutes a
substantial step toward commission of the crime.” ORS 161.405(1).
3
ORS 498.002 provides, in part, “No person shall * * * hunt * * * or assist
another in * * * hunting * * * any wildlife in violation of the wildlife laws or of any
rule promulgated pursuant thereto.” ORS 498.002(1).
4
ORS 164.354 provides, in part, that a person commits the crime of second-
degree criminal mischief if, “[h]aving no right to do so nor reasonable ground to
believe that the person has such right, the person intentionally damages prop-
erty of another[.]” ORS 164.354(1)(b).
5
The state also charged defendant with spotlighting from a motor vehicle,
ORS 498.146, but that charge was dismissed before trial.
Cite as 356 Or 822 (2015) 825
of another.” The trial court denied defendant’s motion for
judgment of acquittal. The state later moved to amend
the information to strike the references to the decoys, and
the court granted the motion, over defendant’s objection.
Thus, the amended information charged defendant with
second-degree criminal mischief on the ground that he had
“unlawfully and intentionally damage[d] property of The
State of Oregon, the said defendant having no right to do
so nor reasonable grounds to believe that the defendant has
such right.”6 A jury thereafter found defendant guilty of all
charges.7
Defendant appealed his criminal mischief convic-
tion, and the Court of Appeals affirmed.8 Dickerson, 260
Or App at 81. In considering whether the state had proved
that defendant acted with intent to damage the “property
of another,” the court examined the text, context, and legis-
lative history of ORS 164.305(2), which defines the phrase
“property of another” for purposes of the criminal mis-
chief statute. Dickerson, 260 Or App at 83 (citing State v.
Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009)). The court
noted that, under a prior version of ORS 164.305(2), the
legislature had defined “property of another” as “property
in which anyone other than the actor has a possessory or
proprietary interest.” Id. at 85 (citing Or Laws 1971, ch 743,
§ 141) (emphasis added). However, the legislature amended
that statutory definition in 1977. Id. (citing Or Laws 1977,
ch 640, § 1). Thus, the current version of ORS 164.305(2)
provides:
“ ‘Property of another’ means property in which anyone
other than the actor has a legal or equitable interest that
6
Defendant did not challenge that amendment on appeal.
7
Defendant did not appeal his conviction for attempting to take a wildlife
decoy, ORS 496.996 and ORS 161.405, or for using unlawful hunting methods,
ORS 498.002.
8
Defendant’s conviction was based on the fact that his son had intended
to damage wild deer but instead damaged a wildlife decoy. Defendant did not
challenge the criminal mischief conviction on the basis that no wild deer were
damaged. See Wayne R. LaFave, 1 Substantial Criminal Law § 5.2(c), 348-50 (2d
ed 2003) (discussing disparity between intended and actual result). As noted,
defendant’s only argument on appeal was that wild deer are not the property of
the state for purposes of the intent element of the crime. See Dickerson, 260 Or
App at 83 n 4.
826 State v. Dickerson
the actor has no right to defeat or impair, even though the
actor may also have such an interest in the property.”
(Emphasis added.) Tracing the historical development of the
state’s interest in wildlife to determine whether it is a “legal
or equitable interest,” the court concluded that the state
has a “sovereign interest” in wildlife. 260 Or App at 84-85.
The court then considered the definitions of “legal interest”
and “equitable interest” in Black’s Law Dictionary, and con-
cluded that “the state’s sovereign interest in wild deer falls
within the broad definition of ‘legal interest.’ ” Id. at 86.
We allowed defendant’s petition for review to resolve
the question whether wild deer are “property of another,” as
that phrase is used in Oregon’s criminal mischief statute.
As a threshold matter, however, the state argues that we
need not reach that issue. Rather, the state contends that,
regardless whether wild deer are property of the state, a
rational trier of fact still could have found the essential ele-
ments of criminal mischief beyond a reasonable doubt. See
State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998) (providing
standard for reviewing sufficiency of the evidence). In that
regard, the state offers two alternative bases to affirm the
judgment. In particular, the state argues that a rational trier
of fact could have found that it proved the intent element of
the crime by proving either that (1) defendant intended to
shoot at two deer decoys; or (2) defendant intended to shoot
at wild deer that did not belong to him and that he believed
that he had no right to damage. In effect, the state requests
this court to exercise its discretion to affirm the judgment
on an alternative basis under the “right for the wrong rea-
son” doctrine. See Outdoor Media Dimensions Inc. v. State of
Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (as matter of
discretion, reviewing court may affirm ruling of lower court
on an alternative basis if facts support alternative basis,
alternative view of evidence is consistent with trial court’s
ruling, and record would not have developed in materially
different way had prevailing party raised alternative basis
below).
The state’s first argument—that defendant intended
to shoot at decoys that were property of the state—relies on
a different factual theory from that pursued by the state
Cite as 356 Or 822 (2015) 827
at trial. At trial, the state consistently argued that defen-
dant and his son had shot at two deer decoys that they had
believed to be actual deer. For example, when defendant
moved for a judgment of acquittal on the count of attempt-
ing to take a wildlife decoy, he insisted that the state was
required to prove that defendant knew that the decoys were
decoys, not live deer. The trial court disagreed, reasoning
that requiring the state to so prove would be “an absurd
way to interpret [that] statute.” In moving for a judgment of
acquittal on the count of use of unlawful hunting methods,
defendant argued that he could not have hunted deer out-
side the prescribed hours because no deer had actually been
present. The prosecutor responded, “[T]hey’re hunting deer.
I mean, that’s the circumstantial evidence in this case.”
(Emphasis added.) During closing argument, the prosecutor
argued that the evidence showed that defendant had posi-
tioned his “vehicle to get the light on the decoy, to allow [his
son] to hunt after hours and shoot what they believe are deer.”
(Emphasis added.) On review, the state does not point to
any evidence in the record that would support its alternative
theory that defendant and his son intended to shoot decoys
rather than live deer. Instead, the state speculates that a
“trier of fact could conclude that defendant and his son, frus-
trated after a fruitless day of hunting, shot at the decoys just
for the sake of shooting * * * or even that they determined
to engage in some target practice.” Because we conclude
that the facts in the record do not support the state’s first
alternative basis for affirmance, and further that the record
might have developed differently had the state raised that
theory below, we decline to exercise our discretion to affirm
the judgment on that basis.
We likewise decline to affirm based on the state’s
second argument—that a reasonable trier of fact could
have found that defendant intended to shoot wild deer that
did not belong to him and that he believed that he had no
right to damage. The state argues that whether wild deer
are property of the state is irrelevant because the state was
not required to prove whose property defendant intended
to damage. Rather, the state contends that, “[r]egardless
of what exactly defendant believed he was shooting, and
regardless of who as an abstract legal matter owns the
828 State v. Dickerson
thing that defendant believed he was shooting, the evidence
sufficed to support an inference that defendant intention-
ally shot something that he knew was not his, and that he
believed he had no right to shoot.”
We disagree that that evidence is sufficient to sup-
port a conviction for second-degree criminal mischief on
that basis. Under ORS 164.354(1)(b), a person commits
second-degree criminal mischief if, “[h]aving no right to do
so nor reasonable ground to believe that the person has such
right, the person intentionally damages property of another.”
(Emphasis added.) To the extent that the state argues that
the jury needed to find only that defendant had aided and
abetted his son in shooting at deer that his son believed that
he did not have a right to shoot, the state reads out of the
statute the requirement that defendant shot at “property
of another”—a phrase that has a specific, statutorily pre-
scribed meaning. To the extent that the state argues that
the jury needed to find only that defendant intentionally
had shot at deer that he believed did not belong to him, the
state’s argument begs the question of whether wild deer are
“property of another.” Defendant’s central argument is that
wild deer are not the property of anyone until reduced to
capture. For that reason, we find it necessary to resolve the
issue whether wild deer are the property of another for pur-
poses of the criminal mischief statute. Thus, we decline the
state’s invitation to affirm the judgment below on an alter-
native basis. See Outdoor Media Dimensions Inc., 331 Or
at 659-60 (appellate court may, in its discretion, affirm on
alternate grounds).
We turn now to the question presented on review—
whether wild deer are “property of another” for purposes of
the criminal mischief statute. The state argues that wild
deer are the property of the state and, thus, “property of
another” as that phrase is used in ORS 164.354(1)(b).
Defendant agrees that the state has a sovereign interest in
wild animals but argues that a sovereign interest is regu-
latory, not proprietary, in nature. He further argues that
the legislature intended the phrase “property of another,”
as used in the criminal mischief statute, to refer to more
common types of property interests, rather than an interest
held by the state by virtue of its sovereignty.
Cite as 356 Or 822 (2015) 829
Because defendant’s argument presents an issue
of statutory interpretation, we consider the statute’s text,
context, and any relevant legislative history to discern the
meaning of “property of another” as intended by the legisla-
ture when it defined that term in ORS 164.305(2) and incor-
porated it as an element of the crime of criminal mischief in
ORS 164.354(1)(b). Gaines, 346 Or at 171-73. We begin with
the text of the statutes at issue.
A person commits the crime of second-degree criminal
mischief if, “[h]aving no right to do so nor reasonable ground
to believe that the person has such right, the person inten-
tionally damages property of another.” ORS 164.354(1)(b).
“Property of another” means “property in which anyone
other than the actor has a legal or equitable interest that
the actor has no right to defeat or impair, even though the
actor may also have such an interest in the property.” ORS
164.305(2).
The legislature did not define the terms “legal
interest” or “equitable interest” as used in ORS 164.305(2).
When the legislature does not provide a definition of a stat-
utory term, we ordinarily look to the plain meaning of the
statute’s text to determine what particular terms mean.
Comcast Corp. v. Dept. of Rev., 356 Or 282, 295, 337 P3d
768 (2014). Because “legal interest” and “equitable interest”
are legal terms, however, we give those terms their estab-
lished legal meanings, consulting legal dictionaries as an
aid in determining those meanings. See id. at 296 (noting
that, “when a term is a legal one, we look to its ‘established
legal meaning’ as revealed by, for starters at least, legal dic-
tionaries”); Ann Sacks Tile and Stone, Inc. v. Dept. of Rev.,
352 Or 380, 386, 287 P3d 1062 (2012) (“When the words
in a statute have a well-defined legal meaning, we use that
meaning in interpreting the statute.”). At the time that the
legislature enacted the current version of ORS 164.305(2),
Black’s Law Dictionary defined an “interest” in property
as “a right to have the advantage accruing from anything;
any right in the nature of property, but less than title; a
partial or undivided right; a title to a share.” Black’s Law
Dictionary 950 (4th ed 1968). “Legal” was defined as “[p]roper
or sufficient to be recognized by the law; cognizable in the
830 State v. Dickerson
courts; competent or adequate to fulfill the requirements of
the law.” Id. at 1038. “Equitable” was defined as “[e]xist-
ing in equity; available or sustainable only in equity, or only
upon the rules and principles of equity.” Id. at 632. Although
those dictionary definitions provide some guidance, they do
not clearly identify the bounds of what constitutes a legal or
equitable interest for purposes of determining whether the
state’s sovereign interest in wildlife fits within those bounds.
However, the enactment history of ORS 164.305(2)
is instructive. See State v. Ziska / Garza, 355 Or 799, 806,
334 P3d 964 (2014) (contextual analysis of statute may
include prior versions of the statute). When ORS 164.305(2)
was originally enacted in 1971, it defined “property of
another” as “property in which anyone other than the actor
has a possessory or proprietary interest.” Or Laws 1971,
ch 743, § 141(2). In 1977, the legislature amended the stat-
ute, removing the phrase “possessory or proprietary inter-
est” and replacing it with the much broader phrase “legal
or equitable interest that the actor has no right to defeat or
impair, even though the actor may also have such an inter-
est in the property.” Or Laws 1977, ch 640, § 1(2).
Defendant acknowledges that the 1977 amendments
to ORS 164.305(2) broadened the definition of “property of
another,” but he argues that the legislature did not intend to
expand the definition beyond commonly recognized property
ownership categories. Rather, he contends that the legisla-
ture intended to broaden the definition to include only secu-
rity interests. Our review of the legislative history confirms
defendant’s contention that, when the legislature undertook
to amend the definition of “property of another”—which is
used in both the criminal mischief and the arson statutes—
it intended, at least in part, to allow for certain prosecutions
for arson. The prior definition of “property of another” did
not encompass instances where a person burned his or her
own residential or commercial property to collect insurance
proceeds. For example, even where a lender held a security
interest in a piece of property that a borrower burned, or a
husband and wife shared an equitable interest in a piece of
property that one of them burned, the state was unable, in
some instances, to prosecute the crime as arson, because
Cite as 356 Or 822 (2015) 831
those interests were not “possessory or proprietary” inter-
ests. See, e.g., Tape Recording, House Subcommittee on
Judiciary, HB 2384, Mar 15, 1977, Tape 19, Side 1 (statement
of James Ayers, State Police Arson Division) (explaining that
prosecutors would not bring charges in cases where bank
holds mortgage on piece of destroyed property, because bank
was not an owner of that property); Tape Recording, House
Committee on Judiciary, HB 2384, May 23, 1977, Tape 60,
Side 1 (statement of Gary Rusher, Legal Counsel for Oregon
Fire Chiefs Association) (describing proposed amendment to
definition of “property of another” as addressing situation
where husband and wife each have an equitable interest in
property and one of them “torches” that property).
We disagree, however, with defendant’s assertion
that the 1977 amendment to ORS 164.305(2) essentially
redefined “property of another” to mean only that property
in which a person other than the actor has a possessory, pro-
prietary, or security interest.9 Nothing in the statutory text
indicates that the legislature intended to limit the definition
of “property of another” to those three specific categories. As
this court has stated:
“The legislature may and often does choose broader lan-
guage that applies to a wider range of circumstances than
the precise problem that triggered legislative attention. * * *
When the express terms of a statute indicate such broader
coverage, it is not necessary to show that this was its con-
scious purpose. In the absence of an affirmative showing
that the narrower meaning actually was intended by the
drafters, we shall take the legislature at its word and give
[the term] its ordinary meaning.”
South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531,
724 P2d 788 (1986) (“The term ‘watercraft’ is expansive,
and its plain and ordinary meaning necessarily includes
pleasure boats.”). Here, the legislature redefined “property
of another” in broad terms to include anyone with a “legal or
equitable interest” that the defendant has no right to defeat
9
Black’s Law Dictionary defined “security” as “[p]rotection; assurance; indem-
nification. The term is usually applied to an obligation, pledge, mortgage, deposit,
lien, etc., given by a debtor in order to make sure the payment or performance of
his debt, by furnishing the creditor with a resource to be used in case of failure in
the principal obligation.” Id. at 1522 (4th ed 1968).
832 State v. Dickerson
or impair. We decline to interpret ORS 164.305(2) to include
a limitation that does not appear in its plain text. See also
Gaines, 346 Or at 172 (“[A] party seeking to overcome seem-
ingly plain and unambiguous text with legislative history
has a difficult task before it.”).
Our remaining inquiry, then, is whether the state’s
sovereign interest in wild deer fits within the broad param-
eters of the legislature’s amended definition of “property
of another.” To answer that question, we consider Oregon’s
common-law and statutory understanding of the nature of
the state’s sovereign interest in wild animals. See State v.
Pipkin, 354 Or 513, 526, 316 P3d 255 (2013) (noting that
“context includes the preexisting common law and the stat-
utory framework within which the law was enacted”) (inter-
nal quotation marks omitted).
In State v. Hume, 52 Or 1, 5-6, 95 P 808 (1908),
this court adopted the English common-law view that prop-
erty rights in wild animals lie in the sovereign.10 The court
employed, as had courts in many other states, the metaphor
of a trust to describe the state’s interest in wildlife. The
court concluded that title to animals, “so far as that claim
is capable of being asserted before possession is obtained, is
held by the state, in its sovereign capacity in trust for all its
citizens[.]” Id. at 5; see also Anthony et al. v. Veatch et al., 189
Or 462, 487, 220 P2d 493 (1950) (“ ‘The fish in the waters of
the state, and the game in its forests, belong to the people
of the state, in their sovereign capacity[.]’ ”) (quoting State v.
Tice, 69 Wash 403, 404, 125 P 168 (1912)). This court later
affirmed that, although a “right of property,” the state’s
interest in wildlife is a sovereign—not a proprietary—
interest. See Monroe v. Withycombe, 84 Or 328, 334-35, 165
P 227 (1917) (“Fish are classified as ferae naturae, and while
in a state of freedom their ownership, so far as a right of
property can be asserted, is in the state, not as a proprietor,
but in its sovereign capacity for the benefit of and in trust for
10
Common-law principles pertaining to wildlife regulation have a rich his-
tory, dating back to ancient Rome. In England, the understanding that undomes-
ticated animals were held in common by the people gradually gave way to the
view that wild animals belonged to the King. For discussions of that historical
development in the law, see State v. Couch, 196 Or App 665, 673-77, 103 P3d 671
(2004), aff’d, 341 Or 610, 147 P3d 322 (2006), and Simpson v. Dept. of Fish and
Wildlife, 242 Or App 287, 298-300, 255 P3d 565 (2011).
Cite as 356 Or 822 (2015) 833
its people in common[.]”) (emphasis added); accord Fields v.
Wilson, 186 Or 491, 498, 207 P2d 153 (1949).11
Oregon codified the state’s property interest in wild-
life as section 39-201, Oregon Code 1930. That statute pro-
vided, in part, that wild animals “shall always and under
all circumstances be and remain the property of the state.”
Oregon Code, title XXXIX, ch II, § 39-201 (1930). That stat-
utory concept remained substantively the same until the
1973 Legislative Assembly enacted ORS 498.002—the cur-
rent statute declaring the state’s property interest in wild
animals. See Simpson v. Dept. of Fish and Wildlife, 242 Or
App 287, 300-02, 255 P3d 565 (2011) (describing statutory
history). ORS 498.002 provides, in part, “Wildlife is the
property of the state.” ORS 498.002(1). The Court of Appeals
has interpreted that statute to incorporate the common-law
understanding of the state’s property interest in wildlife—
that is, that “the state’s property interest in wildlife is sov-
ereign, not proprietary.” Simpson, 242 Or App at 304.12 We
presume that, when the legislature amended the definition
of “property of another” in 1977, it was aware of its prior
declaration that the state has a property interest in wild-
life and of the existing common law regarding the sovereign
nature of that property interest. See Moro v. State of Oregon,
354 Or 657, 665-66, 320 P3d 539 (2014) (“In interpreting
statutes, this court presumes that the legislature is aware
of existing law and this court’s interpretation of that law.”).
The dispositive issue, then, is whether the state’s
sovereign interest is a “legal or equitable interest,” such
that wild animals are “property of another” under ORS
164.305(2). Defendant argues that the state’s sovereign
11
Indeed, the United State Supreme Court has recognized that states do not
“own” wild animals in the traditional sense of ownership and that the concept of
state ownership is a legal fiction. See Toomer v. Witsell, 334 US 385, 402, 68 S Ct
1156, 92 L Ed 1460 (1948) (“The whole ownership theory, in fact, is now generally
regarded as but a fiction expressive in legal shorthand of the importance to its
people that a State have power to preserve and regulate the exploitation of an
important resource.”).
12
As the Court of Appeals noted in Simpson, 242 Or App at 302, the legisla-
tive history supports the conclusion that the legislature did not intend substan-
tively to change the nature of the state’s property interest in wildlife when it
enacted ORS 498.002. See, e.g., Minutes, Senate Committee on Agriculture and
Natural Resources, HB 2010, June 6, 1973, 2 (statement of Rep Roger Martin)
(noting that the bill was not intended “to make substantive changes”).
834 State v. Dickerson
interest enables it to exercise regulatory authority over
wildlife, but that its regulatory authority does not consti-
tute a “legal or equitable interest.” The state counters that
its interest in wildlife is broader than its authority to reg-
ulate the conduct of its citizenry with respect to wild ani-
mals. Rather, the state contends that it also holds title to
wildlife as a trustee and therefore has a legal interest in
wildlife. See Anthony et al., 189 Or at 474 (recognizing that
the state may regulate the capture of wildlife “either in the
exercise of its police power, or in its sovereign capacity in
trust for its people”). For the reasons that follow, we agree
that the state’s sovereign interest in wild animals is in the
nature of a “legal * * * interest” within the meaning of ORS
164.305(2).
First, as discussed, the legislature has declared
that “[w]ildlife is the property of the state.” ORS 498.002(1);
see also Oregon Code, title XXXIX, ch II, § 39-201 (1930)
(providing that wild animals “shall always and under all cir-
cumstances be and remain the property of the state”). That
declaration confirms that the state has a property interest
in wildlife that is recognized by law.
Second, the state can obtain compensation for dam-
age done to wildlife. See, e.g., ORS 496.705 (providing that
the state “may institute suit for the recovery of damages for
the unlawful taking or killing of any of the wildlife referred
to in subsection (2) of this section that are the property of
the state”). The state’s ability to bring an action for damages
to wildlife also indicates that its property interest in wildlife
is recognized by law and that it is enforceable in courts of
law.
Finally, as explained, Oregon courts have long used
the metaphor of a trust to describe the state’s sovereign
interest in wildlife. Hume, 52 Or at 5-6; see Portland Fish
Co. v. Benson, 56 Or 147, 154, 108 P 122 (1910) (noting that
title to wild animals, “before they are captured, is in the
state in its sovereign capacity, in trust for all its citizens”).
According to the trust metaphor—sometimes referred to as
the “wildlife trust doctrine”—wildlife is the corpus of the
trust, the state is the trustee, and the public is the benefi-
ciary. See, e.g., Toomer v. Witsell, 334 US 385, 399-400, 68
Cite as 356 Or 822 (2015) 835
S Ct 1156, 92 L Ed 1460 (1948) (noting that, under the trust
theory, the state acts as a trustee, the citizens are the bene-
ficiaries, and the wildlife is the corpus); Geer v. Connecticut,
161 US 519, 534, 16 S Ct 600, 40 L Ed 793 (1896) (“[T]he
ownership of the sovereign authority is in trust for all the
people of the State, and hence by implication it is the duty
of the legislature to enact such laws as will best preserve
the subject of the trust and secure its beneficial use in
the future to the people of the State.”), overruled on other
grounds by Hughes v. Oklahoma, 441 US 322, 99 S Ct 1727,
60 L Ed 2d 250 (1979). Although the trust metaphor is an
imperfect one (for example, there is no trust instrument
that delineates the terms of the trust), the state’s powers
and duties with respect to wildlife have many of the tradi-
tional attributes of a trustee’s duties. Acting as a trustee,
the state has the authority to manage and preserve wildlife
resources and may seek compensation for damages to the
trust corpus. See, e.g., Hume, 52 Or at 5-6 (noting that, “as
an incident of the assumed ownership, the legislative assem-
bly may enact such laws as tend to protect the species from
injury by human means and from extinction by exhaustive
methods of capture”); State v. Pulos, 64 Or 92, 95, 129 P
128 (1913) (“[N]o person has an absolute property right in
game or fish while in a state of nature and at large; * * * the
taking of them is not a right, but is a privilege, which may
be restricted, prohibited, or conditioned, as the law-making
power may see fit.”).
Defendant argues that, even if the state has a legal
or equitable interest in wildlife, the legislature did not
intend for wildlife violations to be prosecuted under criminal
laws of general applicability. He asserts that the comprehen-
sive nature of Oregon’s wildlife code indicates a legislative
intent to establish an administrative framework for regu-
lating interactions between humans and wildlife. However,
defendant cites no authority for the proposition that, in the
absence of an explicit statement from the legislature, we
may interpret the wildlife code to preclude criminal prosecu-
tion for intentional damage to wildlife. Instead, the legisla-
ture has broadened the criminal mischief statute to include
damage intentionally done to any “property in which any-
one other than the actor has a legal or equitable interest,”
836 State v. Dickerson
without exception. ORS 164.305(2); ORS 164.354(1)(b). We
therefore enforce that expressed intention.
In summary, when the legislature amended ORS
164.305(2) in 1977, it broadened the definition of “prop-
erty of another.” We assume that, at the time of the 1977
amendment, the legislature was aware of its prior declara-
tion that the state has a property interest in wildlife. See
ORS 498.002(1) (so declaring). We also assume that the leg-
islature was aware of the existing common law regarding
the sovereign nature of that property interest. Because the
state, as a trustee, holds a legal interest in wildlife, we con-
clude that the state has a “legal * * * interest” in wildlife, as
that phrase is used in ORS 164.305(2). We therefore con-
clude that wild deer are “property of another,” for purposes
of ORS 164.354 (1)(b) and ORS 164.305(2), and that the trial
court did not err in denying defendant’s motion for judgment
of acquittal on the second-degree criminal mischief count.13
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
13
We note that the state need not prove under the criminal mischief statute
that the state owns the property that is damaged. Under ORS 164.354(1)(b), it is
sufficient that the state prove that the property damaged is “property of another.”