State v. Bordeaux ( 2022 )

60
Argued and submitted April 29, affirmed December 7, 2022, petition for review
denied May 4, 2023 (371 Or 60)
STATE OF OREGON,
Plaintiff-Respondent,
v.
PERRY ANANTH KANURY BORDEAUX,
aka Perry Ananth Kanury,
Defendant-Appellant.
Lincoln County Circuit Court
18CR52778; A172965
522 P3d 900
Defendant appeals from a judgment of conviction for unlawfully taking food
fish from a marine reserve, ORS 509.006. In his first and second assignments of
error, defendant argues that the trial court plainly erred in failing to sua sponte
grant a demurrer or a motion in arrest of judgment. Next, defendant assigns
error to the trial court’s denial of his motion for judgment of acquittal, arguing
that the state failed to present sufficient evidence that he had “fished” in the
marine reserve under ORS 509.006. Additionally, defendant argues that in con-
victing him of a misdemeanor, the court erred in applying a criminal negligence
culpable mental state. Finally, in his fifth assignment of error, defendant argues
that the trial court erred in precluding a witness from offering an expert opinion
on whether the topography of the marine reserve could have affected the move-
ment of defendant’s crab pots. Held: First, the Court of Appeals rejected defen-
dant’s first two assignments of error because any error was not plain. Second,
the court affirmed the trial court’s denial of the motion for judgment of acquittal
and concluded that defendant failed to preserve the culpable mental state issue.
Lastly, with respect to defendant’s fifth assignment of error, the court concluded
that any evidentiary error was harmless.
Affirmed.
Thomas O. Branford, Judge.
Francis C. Gieringer argued the cause for appellant. Also
on the briefs was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services.
Colm Moore argued the cause for respondent. Also on
the briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
JOYCE, J.
Affirmed.
Cite as 323 Or App 60 (2022) 61
JOYCE, J.
Defendant appeals from a judgment of conviction
for unlawfully taking food fish from a marine reserve, ORS
509.006. On appeal, in his first and second assignments of
error, defendant argues that the trial court plainly erred in
failing to sua sponte grant a demurrer or a motion in arrest
of judgment. We conclude that any error was not plain and
thus, we reject those claims of error without further discus-
sion. Next, defendant assigns error to the trial court’s denial
of his motion for judgment of acquittal (MJOA), arguing
that he was entitled to an MJOA because the state failed
to present sufficient evidence that he had “fished” in the
marine reserve under the correct construction of the stat-
ute. Additionally, defendant argues that in convicting him of
a misdemeanor, the court should have applied a “knowing”
mental state, but failed to do so. We reject defendant’s con-
struction of the term “fish for” in the statute and conclude
that defendant failed to preserve the culpable mental state
issue that he raises on appeal. Finally, in his fifth assign-
ment of error, defendant argues that the trial court erred
in precluding a witness from offering an expert opinion on
whether the topography of the Otter Rock Marine Reserve
could have affected the movement of defendant’s crab pots.
We conclude that any error was harmless. Therefore, we
affirm.
BACKGROUND
In June 2018, on two separate occasions, a person
who lives in Otter Rock saw defendant’s commercial fishing
vessel in the marine reserve area, although the person did
not observe anyone on the vessel deploy or pull any kind of
fishing gear from the reserve. The person called the Marine
Science Center to alert the center to his observations.
In early July, Oregon State Police (OSP) troopers
located a north-to-south line of nine crab pots belonging to
defendant, three of which were inside the marine reserve.
Specifically, those three pots were located within 18 yards,
75 yards, and 165 yards of the reserve’s boundary. An OSP
trooper pulled the two pots that were farthest into the
reserve and found that they contained bait and crabs. The
trooper did not see signs of cannibalism, which indicated
62 State v. Bordeaux
that the crabs had not been in the pot longer than 14 days.
She subsequently looked up the “vessel monitoring system”
(VMS) data of defendant’s vessel. VMS records a vessel’s
location every half hour and defendant’s vessel’s data indi-
cated that it was “in the area” of the reserve on May 17,
June 8, and June 29.
The state subsequently charged defendant with
unlawful commercial fishing, a Class A misdemeanor, alleg-
ing that defendant “unlawfully and with criminal negligence
commercially fished inside the Otter Rock Marine Reserve in
violation of ORS 509.006 and the 2018 Oregon Commercial
Fishing Regulations.” ORS 509.006 provides that “[i]t is
unlawful to take, possess, buy, sell or otherwise handle any
food fish in or from any waters of this state, during times,
in a manner or by means of the fishing gear prohibited by
law.”1 As particularly relevant here, “ ‘take’ means fish for,
hunt, pursue, catch, capture or kill or attempt to fish for,
hunt, pursue, catch, capture or kill.” ORS 506.006(12). And
with limited exceptions not applicable here, the Oregon
commercial fishing regulations prohibit any taking, “includ-
ing fishing or hunting, of any fish or wildlife species” at all
times within the Otter Rock Marine Reserve. OAR 635-012-
0050(1). ORS 506.991(1) further provides that “violation of
any provision of the commercial fishing laws * * * is a Class A
misdemeanor if the offense is committed with a culpable
mental state.”
During a bench trial, at the close of the state’s case,
defendant moved for a judgment of acquittal, arguing that
the state needed to prove that defendant actually “pulled”
crab from the pots but had failed to do so. The trial court
denied his MJOA. It reasoned that the definition of the word
“take” in ORS 506.006 included “attempt[ing] to fish” and
thus the state did not need to adduce evidence that defen-
dant actually “pulled” any crab from the marine reserve.
After the court denied his MJOA, defendant pre-
sented evidence to support his theory that he had set his
1
“Food fish” includes crabs. See ORS 509.001 (applying definitions of ORS
506.011 to chapter 509); ORS 506.011(5) (defining “food fish” as any animal over
which the State Fish and Wildlife Commission (SFWC) has jurisdiction pursuant
to ORS 506.036); ORS 506.036(1) (establishing jurisdiction of SFWC over “shell-
fish”); ORS 506.011(7) (“shellfish” includes crab).
Cite as 323 Or App 60 (2022) 63
crab pots outside of the reserve and some natural forces had
then moved the pots into the restricted area. Specifically,
defendant testified that he had set his crab pots north of the
marine reserve. He stated that had he known his pot was
inside the reserve, he would have contacted the OSP to find
out how to proceed. Leonard Vancurler, a long-time commer-
cial fisherman, who was also the owner of defendant’s ves-
sel, testified that strong wind from the north during sum-
mertime, swells, and other factors can move crab pots south
into the reserve zone.
The state introduced evidence showing that it was
unlikely that natural forces moved defendant’s pots into the
reserve, which the court found more credible than defen-
dant’s testimony. There had been no major weather systems
in June or July that were capable of moving the pots sig-
nificantly along the ocean floor. A state trooper stated that
the furthest he had seen crab pots blown into the reserve by
wind or ocean currents was by 50 feet and “it does not hap-
pen often.” Another trooper testified that when the troopers
first found defendant’s pots, they were “spaced pretty uni-
formly apart.” She noted that nothing indicated that those
pots had been blown into the reserve because even if there
had been weather capable of moving the heavy crab pots, it
was unlikely that all of the pots on a line would move north
to south in a uniform manner. The witness who observed
defendant’s vessel in the reserve took pictures, showing
that defendant’s wife was on the vessel while it was in the
reserve, holding a bait jar in her hand. Defendant’s wife tes-
tified that she was filling bait jars for later use.
During closing argument, defendant argued that
without evidence that defendant “pull[ed] fish from the
pots,” the only viable theory of the state’s case would be that
defendant violated the law “by intentionally attempting
to take food fish from the marine reserve by placing pots
within those, the reserve.” Defendant outlined the state’s
evidence, urging the court to find that defendant did not
“intentionally attempt[ ] to remove food fish or crab from
the marine reserve by placing his pots within the reserve.”
The state argued that “simply deploying gear into the Otter
Rock Marine Reserve [ ] is illegal” and that the state had
64 State v. Bordeaux
proved beyond a reasonable doubt that defendant did that
with criminal negligence, in violation of ORS 509.006.
The trial court found defendant guilty of fishing
in the reserve. It explained that unlike the meaning of
“attempt” for purposes of inchoate crimes, see ORS 161.405(1),
“attempt,” as used in “attempt to fish for” in ORS 509.006,
has its ordinary meaning—it means engaging in the process
of fishing. Consequently, the court held, the legislature’s use
of “attempt” in the statute should not be read to require an
intentional mental state. The court then concluded that the
evidence showed that regardless of how the pots ended up in
the reserve, defendant had fished for crab with at least crim-
inal negligence—the culpable mental state alleged in the
charging instrument—by failing to remove his pots from
the reserve even though he knew they were in the reserve.
That is, the court found that, regardless of whether defen-
dant intentionally placed the pots in the reserve, he came
to realize that they were in the reserve and chose to leave
them there. The court entered a judgment of conviction, and
defendant now appeals.2
MOTION FOR JUDGMENT OF ACQUITTAL
On appeal, defendant first challenges the trial
court’s denial of his motion for judgment of acquittal. As he
did below, he argues that the state failed to present suffi-
cient evidence that he had unlawfully fished in a marine
reserve, as prohibited by ORS 509.006.3
We review the denial of a motion for judgment of
acquittal to “determine whether, after viewing the facts and
all reasonable inferences in the light most favorable to the
state, a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” State v.
Colpo, 305 Or App 690, 691, 472 P3d 277, rev den, 367 Or
290 (2020). In addition, when arguments for and against a
2
The trial court originally entered a judgment of conviction under ORS
498.002 (without mention of ORS 509.006). After oral arguments on appeal, the
parties filed a joint motion to correct the judgment and the trial court entered an
amended judgment convicting defendant of violating ORS 509.006.
3
The state argues that defendant failed to preserve his arguments on the
legal sufficiency of the state’s evidence. Upon reviewing the record, we conclude
that defendant adequately preserved the error for appellate review.
Cite as 323 Or App 60 (2022) 65
MJOA involve disagreement over the proper construction of
the applicable statutes, we resolve them as a matter of law.
See State v. Dickey, 315 Or App 501, 505, 500 P3d 688 (2021).
Here, we conclude that the trial court correctly denied defen-
dant’s MJOA on the sufficiency of evidence that defendant
“fished” as contemplated by ORS 509.006.
On appeal, in challenging the sufficiency of the
state’s evidence, defendant asserts that it was insufficient
for the state to show that he attempted to catch crab because
the statutory definition of the term “fish for” requires the
state to prove that defendant actually “landed” crab from
the marine reserve. “Land,” as a term of art used in the
commercial fishing laws, means “to begin transfer of food
fish from a vessel.” OAR 635-005-0240(22)(a). Thus, accord-
ing to defendant, the state was required—and failed—to
prove that defendant actually caught crab and began trans-
ferring that crab from the vessel.
The legal issue at the core of defendant’s MJOA
requires us to construe the meaning of “fish for” as defined
in ORS 506.006(12). Our goal is to ascertain the enacting
legislature’s intent by examining the disputed provision’s
text and context, as well as any helpful legislative history
of which we are aware. State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009). Text and context “must be given pri-
mary weight in the analysis,” as “[o]nly the text of a statute
receives the consideration and approval of a majority of the
members of the legislature.” Id. at 171.
As noted above, the state charged defendant with
unlawfully fishing in the Otter Rock Marine Reserve.
Fishing is one manner of taking. To “take,” in turn, is
defined by ORS 506.006(12) as to “fish for, hunt, pursue,
catch, capture or kill or attempt to fish for, hunt, pursue,
catch, capture or kill.” Defendant argues that because the
state charged defendant with “fishing,” it could not rely on
the part of the definition of “take” that includes “attempted
to fish for.” The state does not argue to the contrary. But
even assuming that defendant is correct that the state could
not rely on the term “attempt to fish for,” we nonetheless
conclude that to “fish for,” as used in ORS 506.006(12), does
not require the person to catch food fish.
66 State v. Bordeaux
Because the verb “fish” is not a defined term in the
commercial fishing laws, we first consider the term’s “plain,
natural, and ordinary” meaning. State v. McNally, 361 Or
314, 321, 392 P3d 721 (2017) (internal quotation marks
omitted). Defendant acknowledges that under its ordinary
definition, “fish” means “1 a (1) : to attempt to catch fish by
any means or for any purpose.” Webster’s Third New Int’l
Dictionary 858 (unabridged ed 2002). Under that definition,
fishing occurs when a person engages in the process of try-
ing to catch fish. That they are ultimately unsuccessful in
those efforts of catching fish does not render the person not
“fishing.” See State v. Stockert, 303 Or App 314, 321, 464 P3d
151, rev den, 367 Or 76 (2020) (explaining that a person is
“hunting” when they are engaged in the hunt and the fact
that “they are ultimately unsuccessful in those efforts does
not render them not ‘hunting’ ”).
We acknowledge that to construe “fish for” as includ-
ing engaging in the act of fishing, regardless of whether the
person actually catches fish, could render the “attempt to
fish for” part of the statute somewhat redundant. We none-
theless are unpersuaded that “fish for” in the statute has
a different meaning than the ordinary one because of that
risk of redundancy. The Supreme Court has observed that
“the fact that a proposed interpretation of a statute creates
some measure of redundancy is not, by itself, necessarily
fatal. Redundancy in communication is a fact of life and of
law.” State v. Cloutier, 351 Or 68, 97, 261 P3d 1234 (2011);
see also Riley Hill General Contractor v. Tandy Corp., 303 Or
390, 397, 737 P2d 595 (1987) (noting that legal terminology
often employs synonyms, “sometimes for clarity, sometimes
for emphasis”). Indeed, in addition to “fish for” and “attempt
to fish for,” the legislature included other redundancies,
such as the terms “catch” and “capture” in the definition of
“take.” It is apparent from the text and context of the stat-
ute that the legislature intended to cast a wide net to avoid
any inadvertent omission when defining “take” in the com-
mercial fishing laws.
In arguing to the contrary, defendant contends that
rather than relying on the ordinary definition of “fish[,]” we
should interpret “fish” to require actually “landing” crab
because that is what the statutory definition of the term
Cite as 323 Or App 60 (2022) 67
“angling” requires. Under ORS 506.006(1), “angling” means
“fishing for personal use with one line attached to a pole
held in hand while landing the fish, or with a hand-operated
line without rod or reel * * *.” (Emphasis added.) “For fish-
eries where food fish were taken by use of a vessel, ‘land,
landed or landing’ means to begin transfer of food fish from
a vessel. Once transfer begins, all food fish on board the
vessel are counted as part of that landing[.]” OAR 635-005-
0240(22)(a). According to defendant, because angling is an
act ordinarily associated with a specific type of fishing, and
angling associates the act of fishing with landing a fish,
the definition of “fish for” in ORS 506.006(12) requires “the
landing of food fish” by catching and initiating transfer of
fish from a fishing vessel.
We disagree. Defendant’s proposed interpretation
fails because under ORS 506.006(1), “angling” is defined as
“fishing for personal use” only. See also ORS 509.025 (“It is
unlawful to sell within this state, or transport out of this
state for the purpose of sale, food fish taken from any waters
of this state by means of angling.”). Here, it is undisputed
that defendant is a commercial fisherman and that he set
the crab pots for commercial purposes. Additionally, the
use of the word “or” as a coordinating conjunction in ORS
506.006(1) signals that holding a pole in hand while landing
is only one method of angling; another way of angling is fish-
ing “with a hand-operated line without rod or reel.” It is thus
not apparent from the text that even angling necessarily
requires the act of landing a fish.
In sum, the text and context of ORS 506.006 make
clear that the term “fish for” includes engaging in the act of
fishing, regardless of whether the person actually catches or
transfers any fish from a vessel. Thus framed, the evidence
that defendant left his baited crab pots in the marine reserve
without retrieving them and that the OSP troopers actually
found crabs trapped in defendant’s pots when they located
them, viewed in the light most favorable to the state, would
allow a rational factfinder to find that defendant “fished for”
crab in the reserve as that term is used in ORS 509.006.
We therefore conclude that the trial court did not err in
denying defendant’s MJOA based on the sufficiency of the
evidence.
68 State v. Bordeaux
THE REQUISITE CULPABLE MENTAL STATE
We understand defendant’s fourth assignment of
error to be that the court erred in rejecting his argument
that it had to apply a culpable mental state of “intention-
ally” to find him guilty and, further, erred in subsequently
applying the charged mental state of criminal negligence.4
On appeal, defendant argues that, under ORS 509.006,
“taking” food fish is “a conduct element, which, at minimum,
requires a knowing mental state.” The state responds that
defendant’s claim of error is not preserved. We agree.
During closing argument, defendant argued that
without evidence that defendant “pull[ed] fish from the pots,”
the only viable theory of the state’s case was that defendant
violated the law “by intentionally attempting to take food
fish from the marine reserve by placing pots within * * * the
reserve.” In defendant’s view, the requirement for a culpa-
ble mental state of “intentionally” arose from the fact that
the state had not proved that he had actually pulled crab
from his pots in the reserve; thus, in his view, the state’s
theory could be only that he had attempted to take crab.
In support of that view, he cited a case involving inchoate
attempt crimes under ORS 161.405(1) and, based on that
case, argued that “it defies logic for a person to accidentally
attempt to do something.” Defendant then outlined his view
of the state’s evidence, urging the court to find that defen-
dant did not “intentionally attempt[ ] to remove food fish or
crab from the marine reserve by placing his pots within the
reserve.”
The trial court rejected that argument. The court
agreed with defendant that an inchoate crime of attempt
requires an intentional mental state under ORS 161.405.
4
Defendant’s assignment of error states that the trial court “erred when
it entered a conviction” for unlawful taking. That assignment of error does not
identify a “legal, procedural, factual, or other ruling” by the trial court. ORAP
5.45(3). In the context of defendant’s argument in support of his claim of error, we
understand defendant to be challenging the trial court’s application of the culpa-
ble mental state, which is akin to challenging the trial court’s self-instruction.
See State v. Colby, 295 Or App 246, 252, 433 P3d 447 (2018) (“[I]t is not uncommon
for a court to receive proposed instructions from the parties during the course
of a bench trial and to instruct itself on the correct version of the law, thereby
creating a record that allows us to review whether the court applied the correct
principles of law in reaching its verdict.”).
Cite as 323 Or App 60 (2022) 69
Under that statute, an attempt to commit a crime occurs
when a person “intentionally engages in conduct which con-
stitutes a substantial step toward commission of the crime.”
ORS 161.405.
But as the court correctly observed, the word
“attempt [in a statute] doesn’t always mean what’s defined
in [ORS] 161.405.” Here, the court noted, ORS 509.006
defines the criminal conduct itself to include attempted acts:
To “take,” for purposes of ORS 509.006, is defined to include
“attempt to fish.” ORS 506.006(12) (“ ‘[T]ake’ means fish for,
hunt, pursue, catch, capture or kill or attempt to fish for, hunt,
pursue, catch, capture or kill.”). Unlike an inchoate attempt
crime under ORS 161.405, which requires the culpable men-
tal state of “intentionally,” a crime whose prohibited conduct
is defined in terms of an attempt to do something does not
necessarily require the culpable mental state of intention-
ally. See, e.g., State v. Rapp, 306 Or App 265, 274-75, 473 P3d
1126, rev den, 367 Or 291 (2020) (distinguishing between a
charge of an attempt to commit an act that, if completed,
would be a statutorily defined crime and that would require
proof that the defendant undertook that attempt intention-
ally, i.e., an inchoate crime under ORS 161.405, and stat-
utes that define a crime in terms of an attempted act and
that do not necessarily require an intentional mental state);
Stockert, 303 Or App at 318-19 (where “hunt” is defined by
ORS 496.004(10) as “to take or attempt to take any wildlife,”
attempt has its “ordinary sense to capture what it means
to engage in the process of hunting, rather than in its legal
sense of defining [an] inchoate crime”).
Thus, the court concluded, even if the state’s evi-
dence proved only that defendant had attempted to fish,
defendant was incorrect that the culpable mental state of
“intentionally” applied, because the term “take” in the stat-
ute encompasses attempts to fish in their ordinary, non-
inchoate-crime sense of engaging in the process of fishing.
Defendant did not raise any further argument
about the applicable culpable mental state. As explained
above, the court held that defendant had not just attempted
to fish, but had actually fished (by leaving his baited pots
in the reserve) and, thus, had “take[n]” crab for purposes of
70 State v. Bordeaux
ORS 509.006. See ORS 506.006(12) (“ ‘Take’ means fish for
* * *.”). It found that defendant had done so with the charged
culpable mental state of criminal negligence, and, accord-
ingly, it found defendant guilty.
On appeal, defendant raises a new argument about
culpable mental states. He now argues that, under the gen-
eral methodology for determining applicable culpable men-
tal states, see, e.g., State v. Owen, 369 Or 288, 295-98, 505
P3d 953 (2022), to convict a defendant under ORS 509.006,
the state must prove that the defendant took food fish at
least “knowingly.” Thus, in his view on appeal, although the
court was not incorrect in rejecting his argument that the
state had to prove that he acted intentionally, it neverthe-
less erred in relying on the charged culpable mental state of
criminal negligence.
“We evaluate whether an issue is adequately pre-
served in light of the underlying purposes of the preser-
vation rule—‘to allow the trial court to consider a conten-
tion and correct any error, to allow the opposing party an
opportunity to respond to a contention, and to foster a full
development of the record.’ ” State v. Gray, 286 Or App 799,
806, 401 P3d 1241 (2017), rev den, 362 Or 482 (2018) (quot-
ing State v. Clemente-Perez, 357 Or 745, 752, 359 P3d 232
(2015)); see also Peeples v. Lampert, 345 Or 209, 220, 191 P3d
637 (2008) (the touchstone of the preservation requirement
is procedural fairness to the parties and trial court).
The Supreme Court has also distinguished “between
‘raising an issue at trial, identifying a source for a claimed
position, and making a particular argument.’ State v. Hitz,
307 Or 183, 188, 766 P2d 373 (1988) (emphasis in original).”
State v. McKinney/Schiffer, 369 Or 325, 332, 505 P3d 946
(2022). “Raising an issue at trial ‘ordinarily is essential,’
whereas identifying a source is less so, and making a par-
ticular argument is the least significant.” Id. (quoting Hitz,
307 Or at 188).
In this case, we conclude that defendant’s argu-
ment below did not preserve his contention on appeal. As
explained above, defendant argued—in this bench trial con-
text, he effectively proposed an instruction—that a culpable
Cite as 323 Or App 60 (2022) 71
mental state of “intentionally” was required because his
actions, if proven, would have been an inchoate crime. The
court rejected his understanding of the relevant law and,
consequently, his proposed instruction. It then instructed
itself differently, relying on the charged mental state of
criminal negligence. Defendant did not object to the crim-
inal negligence “instruction” that the court gave itself; he
did not raise any further argument that, even if the court
was correct that “intentionally” was not the correct culpable
mental state because the crime was not an inchoate one,
some culpable mental state other than criminal negligence
applied. Cf. State v. Simonov, 358 Or 531, 549, 368 P3d 11
(2016) (“ ‘Under Oregon law, there are two different types of
error respecting jury instructions: (1) error in the failure to
give a proposed jury instruction, and (2) error in the jury
instructions that were actually given.’ ” (Quoting Williams
v. Philip Morris Inc., 344 Or 45, 55, 176 P3d 1255 (2008));
id. (where the defendant had both objected to the instruc-
tion that was given, which contained an incorrect culpable
mental state, and proposed his own instructions, which con-
tained the correct culpable mental state, holding that the
trial court had erred in two different respects).
Unless we consider the “issue” that defendant raised
before the trial court to be the issue of culpable mental
states in general—a proposition that recent Supreme Court
cases appear to reject, see McKinney/Schiffer, 369 Or at 333-
34 (treating defendants’ arguments as appropriate for plain
error review where the defendants had challenged the trial
courts’ instructions on culpable mental states based on the
general culpable mental state analysis but had not iden-
tified the correct culpable mental states in their proposed
instructions)—defendant’s argument on appeal presents
a distinctly different “issue” from the one that defendant
raised before the trial court. Further, the purposes of pres-
ervation have not been served; in particular, the trial court
lacked the opportunity to consider any parts of defendant’s
new argument on appeal and correct any error. Gray, 286 Or
App at 806.
Because defendant did not raise the issue before the
trial court and, consequently, the purposes of preservation
72 State v. Bordeaux
were not served, we conclude that defendant’s argument on
appeal is not preserved.5
CHALLENGE TO TRIAL COURT’S RULING ON
EXPERT TESTIMONY
After the court denied his motion for judgment of
acquittal, defendant called Vancurler, a long-time commer-
cial fisherman, to testify about how the topography of the
marine reserve could easily move crab pots. In defendant’s
view, that evidence would have supported his theory that he
set his crab pots outside of the marine reserve and that nat-
ural forces then moved them into the reserve. The trial court
allowed Vancurler to testify about commercial fishing and
the general effect of wind, swells, and other factors on the
movement of crab pots in the ocean but ruled that he could
not testify about his assessment of the movement of defen-
dant’s crab pots based on Otter Rock’s topography. The trial
court explained that because Vancurler had never fished in
that particular area, he did not “know the topography of
the ocean bottoms and what might facilitate or impair the
movement of pots, apart from the current and the wind.”
On appeal, defendant assigns error to the trial
court’s partial exclusion of Vancurler’s testimony. He argues
that Vancurler’s substantial experience as a commercial
fisherman and his ability to read the navigational charts
to assess a particular area’s topography were sufficient to
qualify him to offer an opinion on how Otter Rock’s topogra-
phy would affect the movement of defendant’s crab pots.
We conclude that even if the court erred in exclud-
ing Vancurler’s testimony about the movement of defen-
dant’s crab pots, the error was harmless. See State v. Davis,
336 Or 19, 32, 77 P3d 1111 (2003) (evidentiary errors do not
warrant reversal if there is “little likelihood that the partic-
ular error affected the verdict”).
5
In defendant’s reply brief, he asks, for the first time, that, if we conclude
that his argument is not preserved, we consider it as plain error. We generally do
not consider arguments raised for the first time in a reply brief. State v. Murga,
291 Or App 462, 468, 422 P3d 417 (2018). In any event, we would not reverse as
plain error, particularly because the evidence likely would have developed dif-
ferently had defendant raised the issue below and because it is unlikely that
application of a “knowing” mental state would have affected the outcome even on
this record.
Cite as 323 Or App 60 (2022) 73
In rendering the verdict, the trial court concluded
that defendant fished for crab in violation of ORS 509.006 by
knowingly leaving the pots in the reserve without retrieving
them. Even if Vancurler’s testimony would have shown that
defendant’s crab pots were only in the reserve because natu-
ral forces had moved them, that evidence was insignificant,
given the trial court’s reasoning about how defendant had
violated ORS 509.006. As explained, the trial court found
defendant guilty of unlawful fishing in the marine reserve
because after he knew his pots were in the reserve, he took
no action to remove them; given that line of reasoning, how
the pots ended up in the reserve was thus immaterial to the
court’s decision. Therefore, it is unlikely that any error in
excluding Vancurler’s testimony on the movement of defen-
dant’s crab pots affected the trial court’s verdict.
Affirmed.