State v. Pfau ( 2024 )

No. 735 October 16, 2024 515
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL JAMES PFAU,
Defendant-Appellant.
Clackamas County Circuit Court
21CR06845; A180283
Ann M. Lininger, Judge.
Submitted August 28, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
SHORR, P. J.
Affirmed.
516 State v. Pfau
SHORR, P. J.
Defendant appeals from a judgment of conviction
for second-degree trespassing, assigning error to the trial
court’s sentencing decision to revoke his hunting license for
36 months pursuant to ORS 497.415. For the following rea-
sons, we reject defendant’s assignment of error and affirm
the judgment of the trial court.
A full recitation of the facts would not benefit the
bench, the bar, or the public. Defendant was charged by
information with one count of a criminal wildlife violation,
ORS 498.002 (Count 1), and one count of criminal trespass
in the second degree, ORS 164.245 (Count 2). The informa-
tion alleged that defendant violated ORS 498.002 by assist-
ing another in hunting while intentionally trespassing. The
information further alleged that defendant violated ORS
164.245 by unlawfully and knowingly entering or remain-
ing upon property closed to the public. At trial, the jury
acquitted defendant on Count 1 but found defendant guilty
on Count 2. At the sentencing hearing, pursuant to ORS
497.415, the trial court suspended defendant’s hunting
license for 36 months. ORS 497.415 allows a court to revoke
a hunting license in limited circumstances, including, as
relevant here, when a person is convicted of a violation of
ORS 164.245, committed while the person was hunting.
Defendant asserts first that the jury’s acquittal on
the wildlife violation charge of hunting while trespassing
precluded the trial court from revoking his hunting license
under ORS 497.415. Second, defendant contends that the
state violated his right to a jury under Article I, section 11,
of the Oregon Constitution1 when it revoked his hunting
license. At a minimum, defendant contends that the trial
court plainly erred by suspending his license without a
jury determination that he was hunting. “We review a trial
court’s sentencing decision for errors of law.” State v. Banks,
246 Or App 109, 111, 265 P3d 50 (2011).
Defendant argues that the jury’s acquittal on the
wildlife charge precluded the trial court from making the
1
Article I, section 11, of the Oregon Constitution provides, in relevant part,
“In all criminal prosecutions, the accused shall have the right to public trial by
an impartial jury * * *.”
Nonprecedential Memo Op: 335 Or App 515 (2024) 517
determination that defendant was hunting, which was nec-
essary to revoke his hunting license under ORS 497.415.
We disagree. The trial court’s determination that defendant
was hunting was based on a preponderance of the evidence.
See State v. MacNab, 334 Or 469, 480, 51 P3d 1249 (2002)
(listing driver license suspensions and Oregon State Bar
suspensions as “civil sanctions”); see also Jackson County v.
Roark, 124 Or App 505, 507, 863 P2d 491 (1993), rev den,
319 Or 36, cert den, 513 US 899, 115 S Ct 255, 130 L Ed 2d
176 (1994) (concluding that the applicable burden in a civil
penalty proceeding brought under Oregon’s drug parapher-
nalia laws is proof by a preponderance of the evidence). The
trial court’s determination under that lesser standard was
not inconsistent with the jury’s decision that the state had
not proved all of the elements of the wildlife violation beyond
a reasonable doubt. See State v. Mendez, 211 Or App 311,
323, 155 P3d 54, rev den, 343 Or 160 (2007) (concluding that
different triers of fact applying different standards of proof
can “render different findings of the same fact without any
inconsistency”); see also United States v. One Assortment of
89 Firearms, 465 US 354, 362, 104 S Ct 1099, 79 L Ed 2d 361(1984) (stating that an acquittal in a “criminal action [does]
not negate the possibility that a preponderance of the evi-
dence could show” that defendant was engaged in the con-
duct at issue). The jury’s acquittal on the wildlife violation
of hunting while trespassing did not preclude the trial court
from determining that defendant was hunting for purposes
of revoking his hunting license.
Defendant argues next that he has a state consti-
tutional right to a jury determination that he was hunting
before the state may revoke his hunting license. He contends
that that argument is preserved, but in the event that we
disagree, he requests plain error review. Having reviewed
the record, we conclude that that argument is unpreserved,
as defendant did not raise before the trial court any argu-
ment regarding his right to a jury trial on that issue. See
State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) (stating
that to preserve an issue for appellate review, a party must
provide the trial court with an “objection that is specific
enough to ensure that the court can identify its alleged
error with enough clarity to permit it to consider and correct
518 State v. Pfau
the error”). Furthermore, we conclude that any error is not
plain. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381,
823 P2d 956 (1991) (stating that the error must be “obvious”
and “not reasonably in dispute”). Defendant cites no law pro-
viding the right to a jury in a hunting license revocation
proceeding, and it is not obvious that defendant has such a
right.
For the reasons discussed above, we conclude that
the trial court did not err in suspending defendant’s hunting
license.
Affirmed.