State v. Jones

331 Or. App. 651

• Court: Court of Appeals of Oregon
• Decided: March 27, 2024
• Docket: A178811
• Status: Unpublished

Opinion

No. 201 March 27, 2024 651

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent, v. JOEL CHARLES JONES, JR., Defendant-Appellant. Curry County Circuit Court 21CR56446; A178811

Cynthia Lynnae Beaman, Judge. Submitted February 26, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Silberman, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge. POWERS, J. Affirmed. 652 State v. Jones

POWERS, J. Defendant was convicted of unlawful taking of wildlife (Count 1), ORS 496.996, hunting during prohibited hours (Count 2), ORS 498.002, hunting without a big game tag (Count 3), ORS 497.075, and hunting without a resident hunting license (Count 4), ORS 497.075, after being caught in an Oregon State Police decoy operation near Gold Beach. On appeal, defendant raises two assignments of error chal- lenging the denial of his suppression motion and the denial of his motion for judgment of acquittal on Counts 2, 3, and 4. For the following reasons, we affirm. Because the parties are aware of the underlying factual and procedural history, we do not provide a recita- tion of those details for this nonprecedential memorandum opinion. In the first assignment, defendant contends that the trial court erred in denying his motion to suppress his statements. Before the trial court, defendant made an oral motion to suppress evidence during closing argument, spe- cifically asserting that he was under “constructive custody” and that, as a result, he should have been given Miranda warnings. On appeal, however, defendant argues that Miranda warnings were required because he was in com- pelling circumstances. The state contends that defendant’s argument is unpreserved and that, in any event, the argu- ment fails on the merits. It is well settled that the purposes of the preserva- tion requirement are (1) to apprise the trial court of a party’s position such that the court can consider and rule on the par- ty’s contention, (2) to ensure fairness to the opposing party by avoiding surprise and allowing that party to address all issues raised, and (3) to foster full development of the record. State v. Roberts, 291 Or App 124, 130, 418 P3d 41 (2018). Here, defendant failed to file a timely written motion prior to trial, and that deprived the state and court of the oppor- tunity to address the specific legal issues and develop the record before the evidence was admitted. See ORS 133.673 (“Objections to use in evidence of things seized in violation of [ORS 133.525] shall be made by a motion to suppress which Nonprecedential Memo Op: 331 Or App 651 (2024) 653

shall be heard * * * in advance of trial.”); ORS 133.535 (list- ing property and persons subject to search and seizure); see also UTCR 4.060(1)(a) (providing that a motion to suppress “[m]ust cite any constitutional provision, statute, rule, case, or other authority upon which it is based”); UTCR 4.060(1)(b) (providing that a motion to suppress “[m]ust include in the motion document the moving party’s brief, which must suffi- ciently apprise the court and the adverse party of the argu- ments relied upon”). Additionally, defendant’s argument on appeal regarding “compelling circumstances” is substan- tively different than the one he made before the trial court regarding “constructive custody.” Compare State v. Roble- Baker, 340 Or 631, 640-43, 136 P3d 22 (2006) (describing factors and considerations that create “compelling circum- stances”), with State v. Thomas, 229 Or App 453, 457-60, 211 P3d 979 (2009) (considering circumstances sufficient to place a defendant in “constructive custody”). Accordingly, because defendant’s argument is unpreserved and he does not ask for plain-error review, we do not disturb the trial court’s ruling on the suppression motion. In the second assignment of error, defendant argues that the trial court erroneously denied his motion for judg- ment of acquittal on Counts 2, 3, and 4 because the evidence was insufficient to conclude that he attempted to “hunt” “wildlife” as those terms are defined in the statutory frame- work. See ORS 496.004(10) (defining “Hunt” as “to take or attempt to take any wildlife by means involving the use of a weapon or with the assistance of any mammal or bird”); ORS 496.004(19) (defining “Wildlife” to include “wild mam- mals” as defined by rule). Defendant argues that shooting at a decoy that he believed to be a deer is not an attempt to take “wildlife.” Defendant acknowledges that we have pre- viously rejected the same argument in State v. Stockert, 303 Or App 314, 323, 464 P3d 151, rev den, 376 Or 76 (2020) (con- cluding that the defendant attempted to take wildlife when he shot at a decoy that he believed to be a deer). Nonetheless, he asks that we overrule that decision as plainly wrong. We have reviewed defendant’s argument and are unpersuaded. See State v. Civil, 283 Or App 395, 406, 416, 388 P3d 1185 (2017) (explaining that overruling a prior decision requires a party to establish that the decision was plainly wrong, a 654 State v. Jones

“rigorous standard grounded in presumptive fidelity to stare decisis”). Accordingly, given our decision in Stockert, we con- clude that the trial court did not err in denying defendant’s motion for judgment of acquittal. Affirmed.