State v. Stockert , 303 Or. App. 314 ( 2020 )

314
Argued and submitted February 13, 2019, affirmed April 1, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
GREGGORY HOWARD STOCKERT,
Defendant-Appellant.
Tillamook County Circuit Court
16CR65974; A165118
464 P3d 151
Defendant appeals from a judgment of conviction for hunting with an artifi-
cial light, ORS 498.142, and hunting deer during prohibited hours, ORS 496.992.
Defendant assigns error to the trial court’s denial of his motions for judgment
of acquittal on both counts. The central issue in this case is whether a person is
hunting by attempting to take wildlife, as required under those statutes, when
they shoot at a decoy believing it to be wildlife. Held: To hunt, under Oregon
law, includes acts intended to kill, capture, or pursue wildlife, whether success-
ful or not. A person in the woods is hunting when they are engaged in scouting,
tracking, pursuing, and killing or capturing of wildlife. That they are ultimately
unsuccessful in those efforts does not render them not hunting. Therefore, one
has hunted, and attempted to take wildlife, if they shoot at a decoy, believing it to
be wildlife. There is no evidence that the Oregon legislature sought to displace or
alter that understanding or to alter the wildlife laws to penalize only successful
unlawful hunting.
Affirmed.
Mari Garric Trevino, Judge.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
JAMES, J.
Affirmed.
Cite as 303 Or App 314 (2020) 315
JAMES, J.
In the early morning hours of October 1, 2016,
defendant shot at what he thought was a deer. It wasn’t. It
was a decoy set up by troopers from Oregon Department of
Fish and Wildlife (ODF&W) in a sting operation. Ultimately,
that act resulted in the state charging defendant with four
crimes: hunting with an artificial light, ORS 498.142,1
(Count 1); hunting wildlife from a motor vehicle, ORS
498.136, (Count 2); hunting deer during prohibited hours,
ORS 496.992,2 (Count 3); and attempt to take a wildlife
decoy, ORS 496.996,3 (Count 4).4 The court dismissed Count 2,
and a jury convicted defendant on all remaining counts.
Defendant now appeals that judgment of conviction, assign-
ing error to the trial court’s denial of his motions for judg-
ment of acquittal as to the two hunting counts. We affirm.
1
ORS 498.142 provides: “(1) Except as provided in subsection (2) of this sec-
tion, no person shall hunt wildlife with the aid of any artificial light.”
2
Defendant was charged with hunting during prohibited hours, described
in OAR 635-065-0730 as being “unlawful to hunt any game mammals from one-
half hour after sunset to one-half hour before sunrise.” OAR 635-065-0730 is
an agency “rule adopted pursuant to the wildlife laws” and enshrined in ORS
496.992, which provides: “(1) Except as otherwise provided by this section or
other law, a violation of any provision of the wildlife laws, or any rule adopted
pursuant to the wildlife laws, is a Class A misdemeanor if the offense is commit-
ted with a culpable mental state.”
3
ORS 496.996 provides:
“(1) A person commits the crime of unlawful taking of wildlife if:
“(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) As used in this section, ‘wildlife decoy’ means any simulation or rep-
lication of wildlife, in whole or in part, used by law enforcement officials for
purposes of enforcing state wildlife laws.”
4
At the heart of this case are the words “hunt,” “take,” “wildlife,” and
“attempt.” Although “attempt” is not itself defined within the wildlife code, the
words “hunt,” “take,” and “wildlife” are defined under ORS 496.004:
“(10) ‘Hunt’ means to take or attempt to take any wildlife by means
involving the use of a weapon or with the assistance of any mammal or bird.
“* * * * *
“(16) ‘Take’ means to kill or obtain possession or control of any wildlife.
“* * * * *
“(19) ‘Wildlife’ means fish, shellfish, amphibians and reptiles, feral swine
as defined by State Department of Agriculture rule, wild birds as defined by
commission rule and other wild mammals as defined commission rule.”
316 State v. Stockert
On appeal of a denial of a motion for judgment of
acquittal, we construe all facts in favor of the state. State v.
Riley, 365 Or 44, 46, 443 P3d 610 (2019). We state the follow-
ing facts in accordance with that standard.
Around 6:00 a.m., on October 1, 2016, an unknown
individual was driving on the highway and stopped his
vehicle to shoot at a decoy deer that was set up by ODF&W
Troopers Miller and Galusha. The unknown individual then
drove away. Miller and Galusha had set up a wildlife decoy
operation alongside Highway 6 near Tillamook and were
hiding and watching to see if anyone shot at the decoy in a
manner that violated hunting regulations. When the troop-
ers saw the unknown individual stop his vehicle and shoot
at the decoy before sunrise, Galusha drove after that person
while Miller went to inspect the decoy for damage.
As Miller was inspecting the decoy he saw defen-
dant’s headlights approach towards the decoy. Miller turned
off his flashlight and ran through the woods to escape defen-
dant’s firing line in case he shot at the decoy. Defendant
stopped about 80 feet away from the decoy, pointed his head-
lights in the general direction of the decoy, and shot at the
decoy with a .30-06 rifle. It was about 6:15 a.m. when Miller
saw defendant shoot the decoy. The sunrise was at 7:15 a.m.
in Tillamook that day; hunters are allowed to hunt within
30 minutes of sunrise. OAR 635-065-0730.
Miller turned on his flashlight, identified him-
self, and began recording his interaction with defendant
as he walked towards the vehicle. Defendant said, “So
I’m screwed, huh?” and “I don’t get to hunt; huh?” Miller
explained to defendant, “I was up there. I saw you stopped.
What were you—were you kinda thinking it was—were you
wondering if it—you know, because it wasn’t moving or that
it was” and defendant responded, “a dummy.” Defendant
continued, “I thought it’s got to be a dummy. Can’t be real.”
Defendant explained, “I’m actually a very ethical hunter.
I’ve never killed an animal in the dark ever. I just thought it
was close enough. I wasn’t sure exactly what time daylight
was. And, you know, I drove past and my headlights were on
it.” Defendant repeated, “I knew it was a damn dummy.”
Cite as 303 Or App 314 (2020) 317
At trial, defendant moved for judgment of acquittal
on multiple grounds as to both the hunting and the decoy
charges. The trial court ruled on defendant’s motion for
judgment of acquittal as to his multiple charges:
“THE COURT: So, if he thought it was a deer, then it’s
a crime. If he knew it was [the decoy], then perhaps it’s not
a crime.
“And then it comes down to, is there any evidence that
he thought it was a deer? And I think there is.
“[DEFENDANT’S COUNSEL]: Okay.
“THE COURT: So I’ll deny the motion.”
On appeal, defendant challenges his conviction on
the hunting charges only, Counts 1 and 3, arguing that the
only wildlife statute that applied to his conduct was the
statute specific to shooting a decoy. In particular, defendant
argues that the trial court erred in denying his motion for
judgment of acquittal, because the state failed to prove that
when defendant shot at the decoy deer he was “hunting,”
which is defined as taking, or attempting to take, “wildlife.”
According to defendant, all parties are in agreement that
defendant did not take wildlife. Therefore, the central issue
for defendant is whether a person attempts to take wild-
life when she shoots at a decoy believing it to be wildlife.
Defendant argues that construing the statute to encompass
shooting at a decoy as an attempt to take “wildlife” would
make the legislature’s inclusion of the term wildlife in both
the unlawful-hunting and definitional statutes redundant.
Under this construction, defendant argues, this would obvi-
ate the need for the separate statute that prohibits shooting
at a decoy in a manner violating hunting regulations if the
person were shooting at wildlife.
The state responds that the trial court ruled cor-
rectly, arguing that an attempt to take wildlife includes
shooting at a decoy. The state acknowledges that “attempt
to take” is not defined in the wildlife statutes but argues
that the word “attempt” in ORS 496.004(10) refers to the
inchoate crime of attempt defined in the criminal code by
ORS 161.405(1). This means, according to the state, that the
fact that defendant shot at a decoy and not a live animal
318 State v. Stockert
does not defeat his prosecution for his attempt to take wild-
life. That is because ORS 161.425 provides that impossibil-
ity is not a defense to the crime of attempt: “In a prosecution
for attempt, it is no defense that it was impossible to com-
mit the crime which was the object of the attempt where
the conduct engaged in by the actor would be a crime if the
circumstances were as the actor believed them to be.” As
authority for its argument that the word “attempt” in ORS
496.004(10) refers to the inchoate crime of attempt, the state
points to State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den,
307 Or 77 (1988), in which we employed the criminal code
definition of the inchoate crime of attempt to define the word
“attempted” in ORS 475.005(8), which defines “delivery” for
purposes of Oregon’s Controlled Substances Act, to be “the
actual, constructive, or attempted transfer” of a controlled
substance. See Boyd, 92 Or App at 54.
Defendant too urges us to consider the law of the
inchoate crime of attempt, but argues that we should look
to the statutory scheme existing in 1913, the time at which
the wildlife statutes at issue were originally enacted. Those
statutes, defendant argues, required the state to prove that
the defendant would have completed the offenses but for
something having interrupted or frustrated the effort.”
The parties’ arguments on appeal present a straight-
forward issue of statutory interpretation, specifically, whether
the legislature intended that the presence of a live animal
was necessary for the purposes of attempting to take wild-
life within the meaning of ORS 496.004(10). Accordingly, we
resolve the issue through our customary statutory interpre-
tive model as articulated in PGE v. Bureau of Labor and
Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), as mod-
ified by State v. Gaines, 346 Or 160, 170-72, 206 P3d 1042
(2009), examining the language of the pertinent statutes in
context and, where necessary, we consider legislative his-
tory and other aids to construction.
Beginning with the text, to “hunt” is defined by ORS
496.004(10) as “to take or attempt to take any wildlife by
means involving the use of a weapon or with the assistance
of any mammal or bird.” (Emphasis added.) “Wildlife,” in
turn, is defined as “fish, shellfish, amphibians and reptiles,
Cite as 303 Or App 314 (2020) 319
feral swine[,] * * * wild birds * * * and other wild mammals
* * *.” ORS 496.004(19). However, ORS 496.004 does not
define “attempt.”
The state is generally correct that we may look to
the criminal code for contextual definitions for offenses not
found in the criminal code. ORS 161.035(2) provides:
“Except as otherwise expressly provided, or unless the
context requires otherwise, the provisions of chapter 743,
Oregon Laws 1971, shall govern the construction of and
punishment for any offense defined outside chapter 743,
Oregon Laws 1971, and committed after January 1, 1972,
as well as the construction and application of any defense
to a prosecution for such an offense.”
However, as that statute states, a criminal code defi-
nition does not control if context requires otherwise.
Notwithstanding our approach to the construction of the
Controlled Substances Act in Boyd—an approach that does
not comport with the statutory construction methodology
we would be required to apply were we confronted with the
case today—we reject the parties’ contentions that the word
“attempt” in ORS 496.004(10) refers to the inchoate crime of
attempt.
It is apparent from the context of the word that the
legislature’s intent was to define a completed crime that can
be committed by conduct that is, in essence, a process. That
is, as we further explain, the context demonstrates that the
legislature intended to use the word “attempt” in its ordi-
nary sense to capture what it means to engage in the pro-
cess of hunting, rather than in its legal sense of defining
inchoate crime. See, e.g., United States v. Havis, 929 F3d
317, 319 (6th Cir 2019) (Sutton, J., concurring in denial of en
banc reconsideration) (differentiating between laws using
the word “attempt” in its ordinary sense and laws that refer
to the inchoate crime of attempt).
While “attempt” is not defined, the wildlife statutes
do define “take” as “to kill or obtain possession or control of
any wildlife.” ORS 496.004(16). Accordingly, the “attempt”
contemplated by ORS 496.004(10) is the attempted killing
of wildlife, or an attempted act of exerting control over the
wildlife, reducing it from ferae naturae—“property of the
320 State v. Stockert
state” pursuant to ORS 498.0025 —to an object now prop-
erty of the hunter. See, e.g., State ex rel Visser v. State Fish
& Game Comm’n, 150 Mont 525, 531, 437 P2d 373 (1968)
(“When one hunter reduces the animal from its wild state
another hunter may not legally possess it. If the person who
reduces the animal from the wild state does so in compli-
ance with the law he gains ownership of it.”).
The statute’s construction tracks the common defi-
nition of hunting. Webster’s Third New Int’l Dictionary 1103
(unabridged ed 2002) defines to “hunt” as:
“1 a : to follow or search for (game or prey) for the purpose
and with the means of capturing or killing : pursue (game
or prey) for food or in sport
“<hunt buffalo>
“<wolves hunt large prey only in packs>
“especially : to pursue with weapons and often with trained
animals
“b : to use or manage in the search for game
“<hunt a pack of dogs>[.]”
This understanding of what constitutes hunting is
largely historically unchanged in Oregon. At least as far
back as the early 1920s Oregon statutes defined hunting in
a similar vein as today:
“The words ‘hunt’ and ‘hunting’ include pursuing, shooting
at, killing or capturing any wild animals or wild birds and
lesser acts, such as disturbing, harrying, worrying, molest-
ing, taking or using a gun, dog or like method, commonly
employed to take such wild animals or wild birds, whether
this results in taking or not, and includes every attempt
to take, and every act of assistance of any other person to
take or attempting to take such animal or bird, and any
person who counsels, aids or assists in any violation of any
of the provisions of this act, or knowingly shares in any of
the proceeds of said violations by receiving or possessing
any wild animals or wild birds, shall be deemed to have
5
Wild animals, though property of the state, are held in trust for the benefit
of all; the state’s interest is not proprietary or possessory. State v. Dickerson, 260
Or App 80, 84-85, 317 P3d 902 (2013), aff’d, 356 Or 822, 345 P3d 447 (2015).
Cite as 303 Or App 314 (2020) 321
incurred the penalties provided in this act against such
person guilty of such violation.”
Or Laws 1921, ch 153, § 2(e).
From the text and context, we therefore interpret
“to hunt” to include acts intended to kill, capture, or pursue
wildlife, whether successful or not. Put simply, a person is
“hunting” when they are engaged in the hunt—the scout-
ing, tracking, pursuing, and killing or capturing of wildlife.
That they are ultimately unsuccessful in those efforts does
not render them not “hunting.” The presence of actual wild-
life is only relevant to the outcome of the hunt, not the hunt-
er’s intent. Accordingly, when a person discharges a firearm
at what he believes to be a deer, the person has attempted to
take wildlife, even though the target was a stump, a shadow,
or a decoy.
Defendant argues that such a construction of the
statute renders the decoy statute superfluous, defeating the
intent of the Oregon legislature in enacting that law. We dis-
agree. First, nothing prevents the legislature from enacting
multiple statutory provisions penalizing the same act. State
v. Ofodrinwa, 353 Or 507, 520, 300 P3d 154 (2013) (“nothing
prevents the legislature from enacting duplicative or over-
lapping statutes”); State v. Merrill, 303 Or App 107, 463 P3d
540 (2020).6 Similarly, the enactment of a new statute on
a subject does not automatically displace previous statutes
governing the same conduct.
“It is a universal rule that a later act does not by implication
repeal a former, touching the same subject-matter, where
there is no repugnancy between them, and both can be sus-
tained and enforced. Repeals by implication are not favor-
ites of the law, and if it is not perfectly manifest, either by
repugnancy which cannot be reconciled, or by some other
means clearly showing the intent of the lawmakers to abro-
gate the former statute, both must be held to be operative.”
Messick v. Duby, 86 Or 366, 369-70, 168 P 628 (1917).
6
The Oregon legislature has expressly contemplated that multiple statutes
may penalize the same act, and in those instances has not prohibited prosecu-
tion under all available statutory bases, but rather has provided a mechanism
of merger of convictions. See, e.g., ORS 161.067(1) (“When the same conduct or
criminal episode violates two or more statutory provisions and each provision
requires proof of an element that the others do not, there are as many separately
punishable offenses as there are separate statutory violations.”).
322 State v. Stockert
As we have explained, one attempts to take wild-
life if they shoot at a stump, believing it to be wildlife. Our
review of ORS 496.996—the decoy statute—shows no evi-
dence that the Oregon legislature sought to displace or alter
that understanding, or to alter the wildlife laws to penalize
only successful unlawful hunting. Further, nothing in the
history suggests that the Oregon legislature sought to alter
that understanding in the unique factual context of decoys.
ORS 496.996 started out in 1995 as House Bill (HB)
2868. Supporters of the bill before the House indicated that
shooting a decoy would be eligible for prosecution under the
general wildlife laws:
“With the purpose of the Wildlife Enforcement Decoy
Program to save wildlife by apprehending the violator
before he kills a wildlife species, the spirit and intent of the
program should be followed by prosecuting a defendant for
intentionally violating wildlife laws and not other associ-
ated law and rules.”
Audio Recording, House Committee on Natural Resources,
Subcommittee on Agriculture & Forestry, HB 2868, Mar 6,
1995, Ex N (testimony of ODF&W Division Sergeant Steven
R. Lane), https://olis.leg.state.or.us (accessed Mar 17, 2020)
(emphasis added).
That understanding continued when HB 2868 moved
from the House to the Senate and was similarly discussed
before the Senate Committee on Agriculture, Natural
Resources and Environment. Like he did before the House
committee, Sergeant Lane testified on behalf of the Oregon
State Police in support of HB 2868:
“[SERGEANT LANE]: * * * With the purpose of the
wildlife enforcement decoy to save wildlife by apprehend-
ing the violator before he kills a wildlife species, the spirit
and intent of the program should be followed by prosecut-
ing defendants for intentionally violating wildlife laws,
not for associated laws and rules. * * * The main emphasis
of the wildlife enforcement decoy is that it saves Oregon’s
wildlife resources from being taken illegally.
“* * * * *
“[SEN DWYER]: If I’m driving along and it’s in the
daytime and I spot this decoy, even though [indiscernible],
Cite as 303 Or App 314 (2020) 323
and I step off the road and shoot this animal. Am I commit-
ting a crime under this law?
“[SERGEANT LANE]: Mr. Chairman, Senator Dwyer,
no you’re not. Only if you were out of season.
“[SEN DWYER]: Alright then. So if it were out of sea-
son or at night, if I shot it from the road, it seems like I’d
be cited with, not only with those other; if I shot it from the
road under this law, what would I be cited?
“[SERGEANT LANE]: Mr. Chairman, Senator Dwyer.
Most likely, at that point, depending on the circumstances
involved, if it was for closed season you could be cited for
taking deer closed season. If it was at night time, you could
be cited for taking deer with the aid of an artificial light. If
it’s just shooting from the roadway in a daytime situation
where you’ve made a mistake and shot from the roadway
you’d be cited under criminal statute for discharging a fire-
arm from a public roadway.”
Audio Recording, Senate Committee on Agriculture,
Natural Resources and Environment, HB 2868, Apr 21,
1995, Tape 85, Side A (testimony of Senator Dwyer and
ODF&W Division Sergeant Steven R. Lane) https://olis.leg.
state.or.us (accessed Mar 19, 2020).
In sum, the legislative history of the decoy statute
does not evidence a clear intent by the lawmakers to abro-
gate the applicability of the hunting statutes to this situa-
tion. Here, defendant shot at what he believed to be a deer.
In doing so, he intended to “take wildlife,” and attempted to
take wildlife, even though the object of his act was, in fact,
a decoy. His actions therefore met the statutory definition of
hunting under ORS 496.004(10), and the trial court did not
err in denying defendant’s motion for judgment of acquittal.
Affirmed.