State v. Milburn

134 P.3d 969, 205 Or. App. 205, 2006 Ore. App. LEXIS 519
CourtCourt of Appeals of Oregon
DecidedApril 26, 2006
Docket03-6220; A123203
StatusPublished
Cited by3 cases

This text of 134 P.3d 969 (State v. Milburn) 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. Milburn, 134 P.3d 969, 205 Or. App. 205, 2006 Ore. App. LEXIS 519 (Or. Ct. App. 2006).

Opinions

HASELTON, P. J.

Defendant, who was convicted of misdemeanor angling while revoked, ORS 497.441; ORS 496.992, appeals, assigning error to the trial court’s denial of his motion for judgment of acquittal. Defendant contends that, by fishing on “free fishing weekend,” ORS 497.079, he was not “engaging] in the activity for which [an angling] license * * * is required.” ORS 497.441. We agree and, consequently, reverse.

The material facts are undisputed. Sometime in December 2002, defendant was fishing and was cited for keeping a “foul hooked” fish.1 Accordingly, on January 2, 2003, defendant’s “angling privileges” were revoked pursuant to ORS 497.415(6).2 The revocation order prohibited defendant from holding or obtaining an angling license for 24 months. As such, defendant could not apply for another angling license until January 2, 2005.

In June 2003, Oregon State Police Trooper Craig Coggins received several complaints that defendant was planning to fish at Hebo Lake in Tillamook County over the weekend of June 7 and 8, which the Oregon Department of Fish and Wildlife had designated as a “free fishing weekend” pursuant to ORS 497.0793 and OAR [208]*208635-011-0102.4 Coggins set up surveillance at the lake, and, on June 7, he filmed defendant fishing with his grandniece.

The next day, Coggins and his partner confronted defendant at his campsite on the lake. They told defendant that they had evidence of him fishing in violation of his previous revocation. Defendant admitted to fishing on June 7; however, he explained to the officers that he had believed that he was allowed to fish that day because a license is not required on “free fishing weekend.” Nevertheless, Coggins issued defendant a citation for misdemeanor angling while revoked. ORS 497.441. That statute, which we address in detail below, provides:

“No person who has had a license, tag or permit revoked * * * shall engage in the activity for which the license, tag or permit is required:
Ci* * * * *
“(2) During the period for which the person is prohibited by law from applying for or obtaining another such license, tag or permit.”

See also ORS 496.992 (providing that “violation of any provision of the wildlife laws * * * is a Class A misdemeanor when the offense is committed with a culpable mental state”).

At defendant’s trial, the state presented evidence establishing the facts just recounted. After the state completed its case-in-chief, defendant moved for a judgment of acquittal. Specifically, defendant argued, in part, that (1) ORS 497.441 prohibits a person who has had a license, tag, or permit revoked from engaging “in the activity for [209]*209which the license, tag or permit is required”; (2) a license is not required to fish on “free fishing weekend”; and, consequently, (3) although, defendant had, in fact, fished on June 7, that conduct was not a violation of the “angling while revoked” statute.

The court denied defendant’s motion, concluding:

“[I]t looks to me like the only way that I can read those two statutes so that one of them doesn’t eliminate the other one — which is something I’m required not to do when I do statutory interpretation — is to say that because 497.441 is not one of the exemptions listed in 497.079, there was no intention for the legislature to allow those people who were suspended or had their privileges revoked to fish on open fishing day. So that’s my conclusion.
“It seems to me that that’s the whole point of the game statute which is that those people who violate the law should not be allowed to engage in the activity.”

The court subsequently convicted defendant.

On appeal, defendant reiterates his fundamental argument to the trial court, viz., that the “activity” in which he engaged, fishing on “free fishing weekend,” is not prohibited by ORS 497.441 because that is not an “activity for which [a] license * * * is required.” The state responds that the pertinent, referent “activity” for purposes of ORS 497.441 is any fishing and that, because a license is required for fishing, and defendant’s angling privileges had been previously revoked, his conduct violated ORS 497.441. Accordingly, like the trial court, we must resolve a discrete issue of statutory construction: What is the proper relationship between ORS 497.441 and the “free fishing weekend” statute, ORS 497.079?

We begin with ORS 497.441. We do so not only because ORS 497.441 was the basis of defendant’s conviction, but also because, given that ORS 497.079 was enacted eight years after ORS 497.441, Or Laws 1981, ch 86, § 2; Or Laws 1989, ch 344, § 2, the former can serve as context for the latter, but not vice versa. See, e.g., State v. Ford, 188 Or App 424, 428 n 3, 72 P3d 93 (2003).

As noted, ORS 497.441 prohibits a person who has had a license, tag, or permit revoked from engaging in “the [210]*210activity for which the license, tag or permit is required [.]” In determining the scope and content of that critical phrase, we first consider the text of the statute in context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). If, after we engage in that inquiry, the statute remains ambiguous, we look to the statute’s legislative history and, finally, to certain “third-level” maxims of statutory construction. Id.

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Related

Dixon v. Board of Parole & Post-Prison Supervision
306 P.3d 716 (Court of Appeals of Oregon, 2013)
Larsen v. Board of Parole
138 P.3d 16 (Court of Appeals of Oregon, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
134 P.3d 969, 205 Or. App. 205, 2006 Ore. App. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-milburn-orctapp-2006.