State v. Holloway

• Decision Date: 13 December 1995
• Citation: 138 Or.App. 260,908 P.2d 324
• Parties: STATE of Oregon, Respondent, v. Roland Clark HOLLOWAY, Appellant. 93-03-1851-C; CA A82735.
• Court: Oregon Court of Appeals

Page 324

908 P.2d 324

138 Or.App. 260

STATE of Oregon, Respondent, v. Roland Clark HOLLOWAY, Appellant.

93-03-1851-C; CA A82735.

Court of Appeals of Oregon.

Argued and Submitted May 23, 1995.

Decided Dec. 13, 1995.

Dan Maloney, Deputy Public Defender, argued the cause, for appellant. With him on the brief was Sally L. Avera, Public Defender.

David B. Thompson, Assistant Attorney General, argued the cause, for respondent. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Robert B. Rocklin, Assistant Attorney General.

Before WARREN, P.J., and LANDAU and LEESON, JJ.

LANDAU, Judge.

Defendant appeals his conviction for manufacture of a controlled substance and possession of a controlled substance. He assigns error to the enhancement of his sentence for a commercial drug offense under ORS 475.996 on the basis of his use of "public lands" in the commission of his crimes. We affirm.

The property at issue, consisting of approximately 17,000 acres of land and 56 buildings and other facilities, originally belonged to the United States. In 1971, the United States entered into an agreement of sale with Pacific University, by which certain property "particularly described and enumerated in Exhibit 'A' " was sold to the University. Exhibit "A" listed a number of buildings and related items of personal property and did not include any underlying land. As to the land itself, the United States granted a "long term use permit" for the land on which the buildings were located. The United States reserved a right of entry and use of the land during an emergency and agreed to compensate Pacific University for the fair rental value of its use during an emergency.

In 1988, Pacific University sold its interest in the buildings to the Great Basin Society, a private organization engaged in education and research. Defendant is the facility manager for the Great Basin Society. He grew marijuana in one of the shop buildings owned by the Society. Local sheriff's officers executed a search warrant at the shop building and discovered defendant's marijuana. Defendant does not contest the validity of the search. Defendant was charged with manufacture and possession of a controlled substance, ORS 475.992(1)(a) and (4)(a), and he pleaded guilty to both charges.

At sentencing, the state argued that defendant's manufacture of marijuana was a commercial drug offense and that he is subject to sentencing enhancement on that basis. Among the factors on which the state relied in asserting the commercial nature of the offense was that defendant used "public lands" in the commission of his crime. ORS 475.996(1)(b)(I). Neither party argues about any other factors.

The trial court found that defendant had used public lands in growing marijuana, because the building in which he grew the marijuana, although privately owned, was situated on land owned by the United States. Defendant's sole assignment of error on appeal is that the trial court incorrectly concluded that he had used public lands in the growing of his marijuana. We review defendant's assignment for errors of law. See State v. Johnson, 116 Or.App. 252, 255, 841 P.2d 643 (1992).

Defendant asserts two arguments in support of his assignment. First, he argues that the trial court erred in concluding that he had used public land in the commission of his crime, because the land itself had been sold to Pacific University, and no longer belongs to the United States. Second, he argues that even if the land still belongs to the United States, the building in which the crime was committed does not, and that constitutes a sufficient restraint on the alienability of the underlying land to deprive it of any "public" character. In support of his argument, defendant relies on dictionary definitions of "public lands" to mean:

"The general public domain; unappropriated lands; lands belonging to the United States and which are subject to sale or other disposal under general laws, and not reserved or held back for any special governmental or public purpose."

Black's Law Dictionary 1393 (4th ed 1951); see also Ballentine's Law Dictionary 1022 (3d ed 1969). We note that defendant is not arguing that, because his grow operation took place in a building--as opposed to out of doors--he did not use public land. His argument is that the private ownership of the building changed the federal government's interest in the underlying land so as to deprive it of its public nature.

The state contends that defendant failed to preserve his first argument before the trial court. According to the state, defendant conceded that, under the 1971 agreement of sale with Pacific University, the United States retained ownership of the real estate on which the buildings conveyed were located. As to the second argument, the state argues that, as defined in Webster's Third New International Dictionary 1836 (unabridged ed 1993) and parallel definitions of the term "public lands" in the Oregon Revised Statutes, the term refers broadly to "land owned by a government," regardless of any restraints on the use or sale of the property.

We begin with defendant's argument that he did not use public land, because the land on which his marijuana was grown belonged to Pacific University and not to the United States. There is some question whether defendant conceded the point below. The point, however, is not entirely free from doubt; ¹ for the sake of argument, we assume that the matter was preserved. Nevertheless, we reject defendant's argument. The agreement of sale between the United States and Pacific University unambiguously conveys ownership only in the items listed in "Exhibit 'A,' " which contains a list of buildings and equipment, not of real property. The agreement separately conveys a "long term use permit" as to the land itself. We conclude that the trial court correctly construed the agreement and correctly concluded that the United States retained title to the land on which stood the building where defendant grew marijuana.

We turn to defendant's argument that the private ownership of the building changes the nature of the federal government's interest in the underlying land such that the land can no longer be considered "public" within the meaning of ORS 475.996(1)(b)(I). That statute provides, in part:

"(1) A violation of ORS 745.992 shall be classified as crime category 8 of the sentencing guidelines grid of the State Sentencing Guidelines Board if:

" * * * * *

"(b) The violation constitutes possession, delivery or manufacture of a controlled substance and the possession, delivery or manufacture is a commercial drug offense. A possession, delivery or manufacture is a commercial drug offense for purposes of this subsection if it is accompanied by at least three of the following factors:

" * * * * *

"(I) The offender was using public lands for the manufacture of controlled substances[.]"

The statute does not define "public lands."

To discern what the legislature intended by the use of the term, we begin with the words enacted properly read in context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). In so doing, we give words of common usage their plain, natural and ordinary meaning. Id. "Context" includes other statutes on the same subject or on related matters. State v. Carr, 319 Or. 408, 411-13, 877 P.2d 1192 (1994). If our examination of the text in context does not reveal the intentions of the legislature, we consult the legislative history as well. PGE, 317 Or. at 610-12, 859 P.2d 1143. If that inquiry does not bear fruit, then we resolve any remaining uncertainties by resorting to applicable maxims of statutory construction. Id.

Dictionaries provide a useful starting point for determining what words mean, at least in the abstract. In that sense, they suggest what the legislature could have meant by the terms it enacted. They do not, however, reveal what the legislature in fact meant in the absence of some evidence that the legislature consulted and relied on a particular definition of a particular dictionary at the time of enactment. Davidson v. Oregon Government Ethics Comm., 300 Or. 415, 420, 712 P.2d 87 (1985). Moreover, dictionaries are of limited utility in construing terms that have acquired specialized legal significance. See Brian v. Oregon Government Ethics Commission, 320 Or. 676, 682, 891 P.2d 649 (1995).

At common law, the term "public lands" referred to "unreserved and unappropriated public domain lands open to entry, settlement, and appropriation." E.g., Newhall v. Sanger, 92 U.S. 761, 762-63, 23 L.Ed. 769 (1875); see also George Coggins and Robert Glicksman, 1 Public Natural Resources Law § 1.02[e], 1-14 (1995); Ernest Baynard III, Public Land Law and Procedure §§ 1.1, 1.2, 2-3 (1986). Under that definition, land subject to any claim by a third party was not considered "public land." Baynard, Public Land Law and Procedure § 1.1 at 2. Because virtually all federal lands are now withdrawn and reserved, however, the common law definition is considered "obsolete." Coggins and Glicksman, Public Natural Resources Law § 1.02[e] at 1-15. It has, in this century, largely been superseded by statutory definitions, which generally define the term to include all land owned by the United States. Id. Most significantly, the Federal Land Policy and Management Act, 43 U.S.C. § 1702(e) (1982), defines "public lands"...