Submitted on April 25, 2013.
Deschutes County Circuit Court,
No. MI092911 Barbara Haslinger, Judge.
Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Stephanie L. Striffler, Senior Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Duncan, Judge, and Nakamoto, Judge.
In this criminal case, defendant appeals his conviction for second-degree criminal mischief, ORS 164.354,  arguing that the state failed to prove that he intentionally damaged the "property of another, " ORS 164.305(2). Defendant was charged with damaging the property of the state, and he was convicted based on evidence that he aided and abetted his son in shooting two state-owned deer decoys, which they believed were wild deer. Defendant argues that wild deer are not the property of the state; in defendant's view, wild deer are not the property of any person or entity. Defendant further argues that, because he and his son believed that the decoys were wild deer, the state failed to prove that they intentionally damaged the property of the state. As explained below, we conclude that, for the purposes of the criminal-mischief statute, wild deer are the property of the state. Therefore, we affirm.
We begin with the facts, which we state in the light most favorable to the state. State v. McDonnell, 313 Or 478, 480, 837 P.2d 941 (1992). At approximately 7:45 p.m. on October 7, 2009, defendant was driving home in his truck with his son after deer hunting. Because it was more than one half of an hour past sunset, it was too late in the day to legally hunt deer.
State police officers had placed two deer decoys near a road to test public compliance with hunting laws. When defendant came upon the decoys, he stopped his truck and turned it toward the decoys. Defendant's son got out of the truck and fired two shots, using two different rifles. An officer stationed near the decoys approached defendant and his son and ordered them to stay where they were, but they drove away. The officer radioed a second officer stationed further down the road, and that officer stopped defendant's truck. Defendant's son admitted firing the two shots, and defendant admitted that he owned the rifles that his son had fired.
The state charged defendant with attempting to take a wildlife decoy, ORS 496.996 and ORS 161.405, use of unlawful hunting methods, ORS 498.002, and second-degree criminal mischief, ORS 164.354. The count alleging second-degree criminal mischief charged defendant with "unlawfully and intentionally damag[ing] a wildlife decoy the property of The State of Oregon, by shooting the decoy in the head[.]" (Emphases added.) At trial, the state moved to strike the references to the wildlife decoy. The trial court granted the motion, over defendant's objection. Prior to allowing the amendment, the trial court stated, "[Y]ou can strike what the property is, all that matters is that it's something belonging to the State of Oregon[.]" Defendant has not challenged the amendment on appeal.
After the state presented its evidence, defendant moved for judgment of acquittal on all three counts. Regarding the second-degree criminal mischief count, defendant argued that the state failed to prove that he had intended to take the "property of another, " as required by ORS 164.354, because, in his view, wild deer become property only when they are reduced to physical possession. In response, the state argued that wild deer are the property of the state because wild animals that have not been reduced to physical possession are the property of the sovereign. The trial court denied defendant's motion, and the jury found defendant guilty of all three counts. This appeal followed.
On appeal, defendant challenges only his second-degree criminal mischief conviction, renewing his argument that wild deer are not the property of the state.Defendant's argument presents a question of statutory interpretation. Accordingly, we begin our analysis by examining the text, context, and legislative history of the relevant statutes. See State v. Gaines, 346 Or 160, 171-73, 206 P.3d 1042 (2009) (describing methodology).
ORS 164.354 defines the crime of second-degree criminal mischief. It provides, in pertinent part, that a person commits that crime, "if * * * having no right to do so nor reasonable ground to believe that the person has such right, the person intentionally damages property of another[.]" ORS 164.354(1)(b) (emphasis added). "Property of another" is a statutory term of art specific to the state's criminal mischief and arson statutes. It is defined by ORS 164.305(2), which provides, "'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." (Emphasis added.) Thus, to prove that a defendant has committed second-degree criminal mischief, the state must prove, among other things, that the defendant intentionally damaged property in which someone else had a legal or equitable interest that the defendant had no right to defeat or impair. Neither the term "legal interest" nor "equitable interest" is defined by statute.
Defendant does not dispute that the state has an interest in wild deer; he acknowledges that the state has a sovereign interest in wild deer, but argues that a sovereign interest is not a "legal or equitable" interest for the purposes of the definition of "property of another" in ORS 164.305(2). In defendant's view, legal or equitable interests are limited to proprietary and possessory interests, and the ...