State v. Wood, s. C83-06-33043
| Decision Date | 21 November 1984 |
| Docket Number | Nos. C83-06-33043,s. C83-06-33043 |
| Parties | STATE of Oregon, Respondent, v. Richard E. WOOD, Appellant. STATE of Oregon, Respondent, v. GREEN'S SEAFOODS, INC., Appellant. ; CA A32257; C83-06-33040; CA A32258. |
| Court | Oregon Court of Appeals |
Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem.
Dennis V. Griffiths, Portland, argued the cause and filed the brief for appellants.
Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.
This is a consolidated appeal by defendants Wood and Green's Seafoods, Inc. (Green's), following convictions for the felony crime of buying and possessing food fish (salmon) unlawfully caught during a closed season. ORS 509.011(2)(a); ORS 506.991(3). Defendants assign error to the denial of motions to dismiss the indictments 1 and to the admission at trial of rebuttal evidence that Wood had bought illegal sturgeon roe on other occasions. We affirm.
Wood is the president and manager of Green's, a wholesale fish dealer in Portland. Defendants became the target of a state police undercover investigation of purchases and sales of salmon caught out of season. In the spring of 1983, Cooke, an undercover police officer posing as a licensed fish wholesaler, sold them illegally caught salmon. Defendants were indicted for violating ORS 509.011(2)(a):
We first consider defendants' four assignments of error that concern the denial of the motions to dismiss. Defendants first argue that the fish lost "the taint of their unlawful status" when they were obtained by the police. Police officers are required to seize "[a]ll fish taken by or in the possession of any person in violation of the commercial fishing laws." ORS 506.690(1). ORS 506.690(2) provides in part:
"Any fish seized under the provisions of subsection (1) of this section may be disposed of, sold, preserved or used for food purposes, under the rules of the commission, to prevent loss or spoilage * * *."
OAR 635-02-030 sets forth the requirements for sale or other disposition. 2
Defendants argue that, because the statutes and the rule provide for the sale of illegally caught fish, the sale to defendants cannot be a crime. Alternatively, defendants argue that illegally caught fish are analogous to "stolen" property. That is, once the fish were obtained by the police they were no longer "illegal" and defendants may only be convicted of an attempt to commit a crime. See State v. Niehuser, 21 Or.App. 33, 533 P.2d 834 (1975). We are not persuaded. The salmon sold to defendants were illegally caught. Defendant Wood knew that the salmon were illegally caught when he bought them. The fact that the state may sell illegal fish to prevent loss or spoilage does not alter the character of the fish to make them "legally caught." Defendants cannot benefit from the fact that the state has authority to sell fish under the circumstances described by ORS 506.690(2) and OAR 635-02-030.
Defendants next contend that they are the victims of "deliberate invidious discrimination prohibited under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution." The basis of that claim is that Pacific Seafood, another fish wholesaler, was sold quantities of illegal fish but was not prosecuted. At the start of the undercover operation, the police had arranged with Pacific Seafood to purchase an anticipated overflow of illegal fish.
Enforcement of a law which is not discriminatory on its face may violate the Equal Protection Clause when it is applied pursuant to a de facto improper classification. Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1072, 30 L.Ed. 220 (1885); City of Eugene v. Crooks, 55 Or.App. 351, 637 P.2d 1350 (1981), rev den 292 Or. 722, 644 P.2d 1131 (1982). To establish their claim of discriminatory enforcement, defendants attempt to show that a similarly situated purchaser of illegal fish was not prosecuted. Pacific Seafood, unlike defendants, purchased illegal fish pursuant to an agreement with the police that they would act as a lawful clearing house for surplus fish. The record shows that there was a host of potential fish buyers. Defendants were not singled out for prosecution. At trial, Cooke testified that Green's was not the only commercial wholesaler targeted:
Cooke then testified that "[t]he only wholesale dealer that accepted the fish in the metropolitan area in Portland--these particular fish, in the spring of '83--was Green's Seafoods." Defendants have failed to establish the discriminatory enforcement of a penal statute.
In their third assignment, defendants argue that ORS 509.011 is unconstitutionally vague. Their argument is not that the statute is unclear, but, rather, that the penalty provision is not found in the statute itself or in the ORS chapter where the statute appears. The penalty for violating ORS 509.011 is found in ORS 506.991(3), which provides:
"Violation of any provision of ORS 509.011 which occurs more than 12 hours prior to or more than 12 hours subsequent to a season established under ORS 506.129 by the commission for the lawful taking of food fish when the total value of the food fish is $200 or more is a Class C felony."
There is no requirement, constitutional or otherwise, that penalty provisions for specific statutes must be found within the statutes themselves or in the same ORS chapter. The index prefacing chapter 509 contains a specific cross-reference to the penalty provision of ORS 506.991. The vagueness challenge lacks merit.
Defendants' final assignment in connection with the motions to dismiss is that the state's investigation was carried out unlawfully in two respects: the manner in which it disposed of the illegal fish that it had acquired and the use of the funds from the sale of fish. 3 Assuming, arguendo, that the state violated certain administrative procedures in conducting its undercover operation, such illegality is immaterial to the defendants' guilt unless the conduct violated some protected right of the defendant or the conduct reached a "demonstrable level of outrageousness." Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The fact that the police did not solicit bids when they sold the excess salmon to Pacific Seafoods, or that Cooke put money from the sale of the fish in an investigation account, instead of depositing the money with the State Treasurer, does not violate a protected right of defendants, nor does such conduct rise to the level of outrageousness sufficient to shield defendants from prosecution.
Defendants' final assignment of error concerns the admission of the rebuttal testimony of Cooke that defendant had bought illegal sturgeon roe on two occasions. At trial, Regan, an employe of Green's, was called as a defense witness. He testified on direct examination:
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