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State v. Dickerson

Supreme Court of Oregon, En Banc

March 12, 2015

STATE OF OREGON, Respondent on Review,
v.
LAWRENCE BEN ALLEN DICKERSON, Petitioner on Review

Argued and Submitted, at La Grande High School, La Grande, Oregon October 9, 2014.

On review from the Court of Appeals.[*] CC MI092911; CA A147467. State v. Dickerson, 260 Or.App. 80, 317 P.3d 902 (2013)

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.

OPINION

Page 448

[356 Or. 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 mischief, 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 P.3d 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 P.3d 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, defendant and his son were driving home in defendant's truck after a day of hunting. When defendant's

Page 449

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 defendant with attempting to take a wildlife decoy, ORS 496.996[1] [356 Or. 824] 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 intentionally 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 defendant 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, defendant moved for a judgment of acquittal on all counts. On the criminal mischief count, defendant argued that no reasonable 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 [356 Or. 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 conviction, and the Court of Appeals affirmed.[8]Dicker ...


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