State v. Barton

• Decision Date: 03 June 2020
• Docket Number: A166775
• Citation: 468 P.3d 510,304 Or.App. 481
• Parties: STATE of Oregon, Plaintiff-Respondent, v. David John BARTON, Defendant-Appellant.
• Court: Oregon Court of Appeals

304 Or.App. 481

468 P.3d 510

STATE of Oregon, Plaintiff-Respondent,

v.David John BARTON, Defendant-Appellant.

A166775

Court of Appeals of Oregon.

Argued and submitted June 20, 2019.

June 3, 2020

Sara F. Werboff, 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.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Defendant appeals a judgment of conviction for two counts each of taking and possessing two different buck deer in violation of the wildlife laws: one buck in 2016 (Counts 1 and 7) and one buck in 2015 (Counts 3 and 8). See ORS 498.002(1) ("No person shall angle for, take, hunt, trap or possess, or assist another in angling for, taking, hunting, trapping or possessing any wildlife in violation of the wildlife laws or of any rule promulgated pursuant thereto."); ORS 496.992(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 committed with a culpable mental state.").

On appeal, defendant raises three assignments of error, the first of which we reject without further discussion. With regard to defendant's second and third assignments of error, defendant contends that the trial court erred when it concluded that the taking counts (Counts 7 and 8) did not merge with the possession counts (Counts 1 and 3). Specifically, defendant contends that the trial court erred when it ruled that ORS 161.067 precluded merger of Count 1 with Count 7 for the 2016 buck and merger of Count 3 with Count 8 for the 2015 buck. For the reasons that follow, we agree with defendant, and conclude that the trial court erred when it ruled that ORS 161.067 precluded merger of Counts 1 and 7 and Counts 3 and 8. Accordingly, we reverse and remand Counts 1 and 7 for entry of conviction for one count of unlawfully taking wildlife, and we reverse and remand Counts 3 and 8 for entry of conviction for one count of unlawfully taking wildlife.

I. BACKGROUND

"We review the sentencing court's determination of whether to merge verdicts for errors of law," and "we state the facts underlying that ruling in the light most favorable to the state; that is, in the light most favorable to the trial court's conclusion that merger was not required." State v. Oldham , 301 Or. App. 82, 83, 455 P.3d 975 (2019) (internal quotation marks and citations omitted). The following summary of historical facts is based on the testimony of the state's main witness, Trooper Andrews, and the exhibits entered into evidence by the state; defendant did not present any evidence.

A. Historical Facts

The investigation into defendant began on November 25, 2015, when Trooper Andrews of the Oregon State Police's Fish and Wildlife Division noticed some of defendant's Facebook posts on a black tail deer hunting page. Defendant posted a picture of a "four by four" buck deer "with a very unique antler configuration" and a comment that read, "snuck in on this odd fella[,] * * * [h]e's still got some velvet on him."¹ Based on his training and experience, Andrews knew that "[d]uring the rifle season it would be very rare" for a buck to still have velvet on its antlers. Andrews continued to investigate defendant's Facebook profile and was able to identify defendant. Andrews also observed posts detailing defendant's hunting efforts with his wife during the 2015 deer hunting season. On October 7, 2015, defendant's wife had posted a picture of defendant in camouflage holding a scoped rifle to her Facebook profile and defendant commented, "gonna skin me a buck and throw it in my truck * * * [a]nd girl, you're in luck because my lyrics don't suck."

Andrews's investigation into defendant's Facebook profile uncovered numerous photographs of black tail deer. On October 31, 2016, defendant posted a photograph of himself to his Facebook profile holding two freshly severed deer legs and "what appear[ed] to be some blood wiped on his face." Based on his training and experience, Andrews knew that "there are people in the hunting community that, after a fresh kill, take the blood of their animal and * * * smear it on their face." Accordingly, Andrews "believe[d] that it was a picture * * * taken relatively soon after the animal was taken." On November 11, 2016, defendant posted a photograph of a "four by six" buck skull that was hung up on a pressure treated post. Andrews believed that the deer had been killed "a couple of weeks" before the picture was taken, because of the muscle, pink tissue, and cartilage on the skull.

On November 14, 2016, defendant posted another picture of the same "four by six" buck skull with the caption, "got this heavy horned four by six during rifle season," shot it "through the back of the neck [and the bullet came] out the front[,] * * * [h]e was bedded down," I "slit his throat to seal the deal and killed [him in] late October." Based on the configuration of the antlers, Andrews believed that the buck in the picture from 2016 was a different buck than the buck in the pictures from 2015.

To further his investigation, Andrews conducted a query in the hunting license database to determine whether defendant had any deer tags for 2015, and 2016. Andrews discovered that defendant did not have any deer tags or a hunting license in 2015 or 2016 and could not lawfully take a deer in Oregon those years. Andrews found out where defendant's home was located in Douglas County, and Andrews began drafting an affidavit for a search warrant.

Andrews obtained a warrant to search defendant's home and property and executed it on March 19, 2017. Defendant was home, and Andrews read defendant the search warrant and read defendant his Miranda rights from a prepared card. Defendant confirmed that he understood his rights and agreed to talk with Andrews. Andrews showed defendant the pictures that he had copied from defendant's Facebook profile and explained to defendant that he was looking for evidence of the bucks that were depicted in the pictures.

Defendant initially denied unlawfully taking the bucks but, eventually, defendant provided Andrews with the antlers and skulls. Defendant admitted that he had unlawfully taken the "four by four" buck without a license or tag on November 1, 2015, and Andrews seized the skull and antlers of that buck. Upon further questioning, defendant also admitted that he had unlawfully taken the "four by six" buck without a license or tag on October 31, 2016, and Andrews seized the skull and antlers of that buck as well. No deer tags were attached to the skulls, and Andrews cited defendant for multiple wildlife violations.

B. Procedural History

Defendant was charged by information with eight counts of criminal wildlife violations under ORS 498.002 and ORS 496.992.² With respect to the 2016 "four by six" buck, Count 1 alleged that, on March 19, 2017, defendant unlawfully and knowingly possessed the 2016 four by six buck, and Count 2 alleged that he also violated the wildlife laws by knowingly possessing the 2016 buck without the proper tags on March 19, 2017. Count 7 alleged that, in an act constituting a common scheme or plan with Counts 1 and 2, defendant violated the wildlife laws by taking the 2016 buck without a valid hunting license or tag on October 31, 2016.

As to the 2015 "four by four" buck, Count 3 alleged that, on March 19, 2017, defendant unlawfully and knowingly possessed the 2015 buck, and Count 4 alleged that he also violated the wildlife laws by knowingly possessing the 2015 buck without the proper tags on March 19, 2017. Count 8 alleged that, in an act constituting a common scheme or plan with Counts 3 and 4, defendant violated the wildlife laws by taking the 2015 buck without a valid hunting license or tag on November 1, 2015.

In a bench trial, defendant was found guilty of unlawfully possessing a game mammal (Counts 1, 2, 3, and 4) and of unlawfully taking a game mammal (counts 7 and 8). As noted, Counts 1, 2, and 7 were related to the 2016 buck. Counts 3, 4, and 8 were related to the 2015 buck.

At sentencing, the state acknowledged that, under ORS 161.067, "Counts 1 and 2 should merge into one conviction and Counts 3 and 4 should merge into one conviction" because the two groups of charges were each based on defendant's unlawful possession of a buck on the same date.³ However, as to Counts 7 and 8, the state argued that Count 7 for taking the 2016 buck should not merge with Counts 1 and 2 for possessing the 2016 buck, and that Count 8 for taking the 2015 buck should not merge with Counts 3 and 4 for possessing the 2015 buck.

The state argued that, under ORS 161.067(1), the taking and possession counts should not merge because defendant's conduct violated two or more statutory provisions and that each provision contained an element that the other did not. The state asserted that "the legislature did not intend to define a single crime in ORS 498.002" because " ORS 498.002 references violations of the wildlife laws and rules," and, "[w]ith this reference, ORS 498.002 specifically points to the Oregon Administrative rules developed by [the Oregon Department of Fish and Wildlife]." The state noted that OAR 635-065-0765 sets forth the legal restrictions for possessing game animals, whereas OAR 635-065-0015 sets forth the legal tag requirements for hunting game, and that violations of those administrative rules require proof of different elements.

The state also argued that, under ORS 161.067(3), the unlawful taking counts (Counts 7 and 8) should not merge with the respective possession counts (Counts 1 and 3) because defendant's taking of the bucks was not part of the same criminal...