State v. Hogevoll

196 P.3d 1008, 223 Or. App. 526, 2008 Ore. App. LEXIS 1653
CourtCourt of Appeals of Oregon
DecidedNovember 5, 2008
Docket055715; A134536
StatusPublished
Cited by4 cases

This text of 196 P.3d 1008 (State v. Hogevoll) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hogevoll, 196 P.3d 1008, 223 Or. App. 526, 2008 Ore. App. LEXIS 1653 (Or. Ct. App. 2008).

Opinions

[528]*528EDMONDS, P. J.

Defendant appeals from a judgment of conviction for exceeding the bag limit on coast bull elk, ORS 498.002,1 a Class A misdemeanor, ORS 496.992(1).2 The conviction arises from a 2005 second season coast bull elk hunt where defendant shot and killed one elk, found a second elk that was shot and killed by someone else, and took possession of both elk. The issue on appeal is whether, as a matter of law, a person who has killed and tagged a second season coast bull elk commits the crime of exceeding the bag limit on coast bull elk by taking possession of an additional second season coast bull elk that was killed by someone else. We affirm.

Defendant testified as follows. Just before daylight, defendant entered a field on his property to hunt a specific bull elk that had five-point antlers, which he had been observing for the previous three years. That elk and seven other bull elk were feeding in the field. Defendant shot the elk twice before it “collapsed and went down.” Defendant waited approximately 15 minutes before he approached the elk, put his second season coast bull elk tag on it, and gutted it.3 As defendant was walking back across the field to obtain his four-wheeled utility vehicle in order to haul the elk out of [529]*529the field, he saw a seven-point bull elk lying dead in a ditch. Although defendant did not have another second season coast bull elk tag, he gutted the second elk, hauled it back to his residence, and gave the carcass to an acquaintance. Defendant later testified that he did not call the authorities about the second elk because he wanted the meat to go to “somebody that might enjoy it and utilize it.” A few weeks later, the Oregon State Police began an investigation that led to the charge against defendant for exceeding the bag limit on coast bull elk.

At trial, defendant requested that the trial court instruct the jury that, to exceed the bag limit on coast bull elk, a person must knowingly kill more than one elk in a single season:

“Oregon law provides that a person commits the crime of exceeding the bag limit of coast bull elk if that person knowingly kills more than one coast bull elk in one season!.]
“In this case, to establish the crime of exceeding the bag limit of coast bull elk, the state must prove beyond a reasonable doubt the following three elements:
“a. The act occurred in Lincoln County Oregon.
“b. The act occurred on or about November 22, 2005.
“c. [Defendant] knowingly killed more than one coastal bull elk in the second season for coastal bull elk.”

In a colloquy with the trial court, defense counsel asserted that a person exceeds the bag limit on coast bull elk only “by killing more than one animal”:

“These regulations are * * * clearly defined in terms of living animals, exceeding your quota by killing more than one animal. That is what a bag limit is. Any hunter knows that. They will not say for an animal they found dead on the road or dead in their field that they bagged an animal. They will say they found an animal.”

The trial court declined to give the requested instruction, “because it used the word ‘killed’ as the operative verb.” Instead, the trial court instructed the jury that a person exceeds the bag limit on coast bull elk by taking more than one elk:

[530]*530“ ‘Take’ means to kill or obtain possession or control of any wildlife.
Hi * * *
“The second charge against [defendant] is Exceeding the Bag Limit on Coast Bull Elk.
“Oregon law provides that a person commits the crime of Exceeding the Bag Limit of Coast Bull Elk if that person knowingly takes more than one coast bull elk in one season.
“In this case, to establish this charge beyond a reasonable doubt, the State must prove * * * that the Defendant knowingly took more than one Coast elk * * * in one season ‡ ‡ ‡
“And again, the word ‘took’ * * * has the same * * * definition as the word ‘take’ that I’ve already * * * read to you.”

(Emphasis added.)

Defendant’s counsel then took exception to the foregoing instruction:

“I except on behalf of [defendant] * * * to the Court giving Special Instruction Number 1, Exceeding the Bag Limit on Coast Bull Elk as the State has presented it. In specifics, using the word ‘take’ and ‘took’ as it is put in that instruction on two occasions.
“And I’ve already articulated my reasons for * * * this objection to the Court when we were arguing about instructions. And I want to incorporate those comments on my position on how the use of the word ‘took’ and ‘take’ redefines what it means to exceed the bag limit and is contrary to what the requirements are in Oregon law as to what that term means as taken by the regulations as a whole.”

On appeal, defendant asserts two assignments of error. First, defendant assigns error to the trial court’s refusal to give defendant’s requested jury instruction. Second, defendant assigns error to the trial court’s jury instruction that, to prove the crime of exceeding the bag limit on coast bull elk, the state must prove “that the Defendant knowingly took more than one Coast elk.” Both assignments of error frame a single issue — whether, as a matter of law, a person who has killed and tagged one second season coast bull elk commits the crime of exceeding the bag limit on coast [531]*531bull elk by taking possession of an additional second season coast bull elk that was killed by someone else. See State v. Branch, 208 Or App 286, 288, 144 P3d 1010 (2006) (“We review the trial court’s refusal to give a requested jury instruction for error of law.”); State v. Woodman, 341 Or 105, 118, 138 P3d 1 (2006) (“In determining whether it was error to give a particular instruction, we read the instructions as a whole to determine whether they state the law accurately.”).

The elements of the crime of exceeding the bag limit on coast bull elk are established by an interplay of statutes, administrative rules, and a document titled Oregon Big Game Regulations that is incorporated into those administrative rules. As stated above, ORS 498.002(1) prohibits a person from taking any wildlife in violation of the wildlife laws or administrative rules:

“Wildlife is the property of the state. 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 496.004

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Related

State v. Mankiller
344 Or. App. 327 (Court of Appeals of Oregon, 2025)
State v. HOGEVOLL
228 P.3d 569 (Oregon Supreme Court, 2010)
State v. Hogevoll
196 P.3d 1008 (Court of Appeals of Oregon, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
196 P.3d 1008, 223 Or. App. 526, 2008 Ore. App. LEXIS 1653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hogevoll-orctapp-2008.