State v. Dickerson

822 March 12, 2015 No. 8

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

LAWRENCE BEN ALLEN DICKERSON,

Petitioner on Review.

(CC MI092911; CA A147467; SC S062108)

En Banc

On review from the Court of Appeals*

Argued and submitted October 9, 2014, at La Grande

High School, La Grande, Oregon.

Erik Blumenthal, Deputy Public Defender, Salem, argued

the cause and filed the brief for petitioner on review. With

him on the brief was Peter Gartlan, Chief Defender, Office

of Public Defense Services.

Stephanie L. Striffler, Senior Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent

on review. With her on the brief were Ellen F. Rosenblum,

Attorney General, and Anna M. Joyce, Solicitor General.

BALDWIN, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

Defendant moved for a judgment of acquittal on the count of second-degree

criminal mischief, arguing that the state failed to prove that he had intention-

ally damaged “property of another,” as that phrase is used in ORS 164.354.

Specifically, he argued that wild deer do not become property until reduced to

possession. The trial court denied defendant’s motion, a jury convicted defendant

of second-degree criminal mischief and other crimes, and the Court of Appeals

affirmed. Held: Wild deer are “property of another,” for purposes of ORS 164.354.

The decision of the Court of Appeals and the judgment of the circuit court

are affirmed.

________________

*  Appeal from Deschutes County Circuit Court, Barbara Haslinger, Judge.

260 Or App 80, 317 P3d 902 (2013).

Cite as 356 Or 822 (2015) 823

BALDWIN, J.

Oregon’s criminal mischief statute, ORS 164.354,

prohibits persons from intentionally damaging “property

of another.” The issue in this case is whether wild deer

are “property of another” for purposes of that statute.

Defendant was convicted of second-degree criminal mis-

chief, ORS 164.354, after aiding and abetting his son to

shoot two state-owned deer decoys that they believed to be

deer. Defendant appealed his criminal mischief conviction,

arguing that the trial court had erred in denying his motion

for judgment of acquittal because wild deer do not become

property until reduced to physical possession. The Court of

Appeals affirmed defendant’s conviction. State v. Dickerson,

260 Or App 80, 317 P3d 902 (2013). We granted review to

determine whether wild deer are “property of another,” as

that phrase is used in ORS 164.354. For the reasons that

follow, we affirm.

In reviewing a denial of a motion for judgment of

acquittal, we describe the relevant facts and all reasonable

inferences that may be drawn from those facts in the light

most favorable to the state. State v. Walker, 356 Or 4, 6, 333

P3d 316 (2014). As part of an operation to test compliance

with hunting laws, two state troopers set up a pair of deer

decoys near the side of a highway. More than half of an hour

past sunset and therefore past legal hunting hours, defen-

dant and his son were driving home in defendant’s truck

after a day of hunting. When defendant’s son saw the two

decoys, he told his father to stop the truck. Defendant angled

his truck toward the decoys and stopped. Defendant’s son

got out of the truck and, using defendant’s rifles, fired two

shots at the decoys, damaging both of them. The troopers

observed the conduct and stopped defendant and his son.

Defendant’s son admitted that he had fired both shots, and

defendant admitted that he owned the rifles that his son

had used.

As a result of that incident, the state charged defen-

dant with attempting to take a wildlife decoy, ORS 496.9961

1

ORS 496.996(1) provides that a person commits the crime of unlawful tak-

ing of wildlife if:

824 State v. Dickerson

and ORS 161.405;2 use of unlawful hunting methods,

ORS 498.002;3 and second-degree criminal mischief, ORS

164.354.4 On the criminal mischief count, the information

originally charged defendant with “unlawfully and inten-

tionally damag[ing] a wildlife decoy[,] the property of The

State of Oregon, by shooting the decoy in the head, the said

defendant having no right to do so nor reasonable grounds

to believe that the defendant has such right.” (Emphasis

added.) 5 At trial, the state pursued the theory that defen-

dant had aided and abetted his son in shooting two deer

decoys that belonged to the state and that defendant and his

son had believed to be actual deer.

After the state had presented its evidence, defen-

dant moved for a judgment of acquittal on all counts. On the

criminal mischief count, defendant argued that no reason-

able trier of fact could find that he had intended to damage

a wildlife decoy. The court suggested that the state amend

the charge to strike the references to the decoys, stating,

“[Y]ou can strike what the property is, all that matters

is that it’s something belonging to the State of Oregon, I

think.” Defendant responded that, even if the charge were

so amended, the state had failed to prove that wild deer are

“property of another” for purposes of the intent element of

the criminal mischief statute. Specifically, he argued that

wild deer may become property only after being reduced to

physical possession. The state countered that all wildlife

is the property of the sovereign and therefore is “property

“(a)  The person discharges a firearm or other hunting device, traps, or

acts toward a wildlife decoy in any manner consistent with an unlawful tak-

ing of wildlife; and

“(b)  The wildlife decoy is under the control of law enforcement officials.”

2

ORS 161.405 provides, in part, “A person is guilty of an attempt to commit

a crime when the person intentionally engages in conduct which constitutes a

substantial step toward commission of the crime.” ORS 161.405(1).

3

ORS 498.002 provides, in part, “No person shall * * * hunt * * * or assist

another in * * * hunting * * * any wildlife in violation of the wildlife laws or of any

rule promulgated pursuant thereto.” ORS 498.002(1).

4

ORS 164.354 provides, in part, that a person commits the crime of second-

degree criminal mischief if, “[h]aving no right to do so nor reasonable ground to

believe that the person has such right, the person intentionally damages prop-

erty of another[.]” ORS 164.354(1)(b).

5

The state also charged defendant with spotlighting from a motor vehicle,

ORS 498.146, but that charge was dismissed before trial.

Cite as 356 Or 822 (2015) 825

of another.” The trial court denied defendant’s motion for

judgment of acquittal. The state later moved to amend

the information to strike the references to the decoys, and

the court granted the motion, over defendant’s objection.

Thus, the amended information charged defendant with

second-degree criminal mischief on the ground that he had

“unlawfully and intentionally damage[d] property of The

State of Oregon, the said defendant having no right to do

so nor reasonable grounds to believe that the defendant has

such right.”6 A jury thereafter found defendant guilty of all

charges.7

Defendant appealed his criminal mischief convic-

tion, and the Court of Appeals affirmed.8 Dickerson, 260

Or App at 81. In considering whether the state had proved

that defendant acted with intent to damage the “property

of another,” the court examined the text, context, and legis-

lative history of ORS 164.305(2), which defines the phrase

“property of another” for purposes of the criminal mis-

chief statute. Dickerson, 260 Or App at 83 (citing State v.

Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009)). The court

noted that, under a prior version of ORS 164.305(2), the

legislature had defined “property of another” as “property

in which anyone other than the actor has a possessory or

proprietary interest.” Id. at 85 (citing Or Laws 1971, ch 743,

§ 141) (emphasis added). However, the legislature amended

that statutory definition in 1977. Id. (citing Or Laws 1977,

ch 640, § 1). Thus, the current version of ORS 164.305(2)

provides:

“ ‘Property of another’ means property in which anyone

other than the actor has a legal or equitable interest that

6

Defendant did not challenge that amendment on appeal.

7

Defendant did not appeal his conviction for attempting to take a wildlife

decoy, ORS 496.996 and ORS 161.405, or for using unlawful hunting methods,

ORS 498.002.

8

Defendant’s conviction was based on the fact that his son had intended

to damage wild deer but instead damaged a wildlife decoy. Defendant did not

challenge the criminal mischief conviction on the basis that no wild deer were

damaged. See Wayne R. LaFave, 1 Substantial Criminal Law § 5.2(c), 348-50 (2d

ed 2003) (discussing disparity between intended and actual result). As noted,

defendant’s only argument on appeal was that wild deer are not the property of

the state for purposes of the intent element of the crime. See Dickerson, 260 Or

App at 83 n 4.

826 State v. Dickerson

the actor has no right to defeat or impair, even though the

actor may also have such an interest in the property.”

(Emphasis added.) Tracing the historical development of the

state’s interest in wildlife to determine whether it is a “legal

or equitable interest,” the court concluded that the state

has a “sovereign interest” in wildlife. 260 Or App at 84-85.

The court then considered the definitions of “legal interest”

and “equitable interest” in Black’s Law Dictionary, and con-

cluded that “the state’s sovereign interest in wild deer falls

within the broad definition of ‘legal interest.’ ” Id. at 86.

We allowed defendant’s petition for review to resolve

the question whether wild deer are “property of another,” as

that phrase is used in Oregon’s criminal mischief statute.

As a threshold matter, however, the state argues that we

need not reach that issue. Rather, the state contends that,

regardless whether wild deer are property of the state, a

rational trier of fact still could have found the essential ele-

ments of criminal mischief beyond a reasonable doubt. See

State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998) (providing

standard for reviewing sufficiency of the evidence). In that

regard, the state offers two alternative bases to affirm the

judgment. In particular, the state argues that a rational trier

of fact could have found that it proved the intent element of

the crime by proving either that (1) defendant intended to

shoot at two deer decoys; or (2) defendant intended to shoot

at wild deer that did not belong to him and that he believed

that he had no right to damage. In effect, the state requests

this court to exercise its discretion to affirm the judgment

on an alternative basis under the “right for the wrong rea-

son” doctrine. See Outdoor Media Dimensions Inc. v. State of

Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (as matter of

discretion, reviewing court may affirm ruling of lower court

on an alternative basis if facts support alternative basis,

alternative view of evidence is consistent with trial court’s

ruling, and record would not have developed in materially

different way had prevailing party raised alternative basis

below).

The state’s first argument—that defendant intended

to shoot at decoys that were property of the state—relies on

a different factual theory from that pursued by the state

Cite as 356 Or 822 (2015) 827

at trial. At trial, the state consistently argued that defen-

dant and his son had shot at two deer decoys that they had

believed to be actual deer. For example, when defendant

moved for a judgment of acquittal on the count of attempt-

ing to take a wildlife decoy, he insisted that the state was

required to prove that defendant knew that the decoys were

decoys, not live deer. The trial court disagreed, reasoning

that requiring the state to so prove would be “an absurd

way to interpret [that] statute.” In moving for a judgment of

acquittal on the count of use of unlawful hunting methods,

defendant argued that he could not have hunted deer out-

side the prescribed hours because no deer had actually been

present. The prosecutor responded, “[T]hey’re hunting deer.

I mean, that’s the circumstantial evidence in this case.”

(Emphasis added.) During closing argument, the prosecutor

argued that the evidence showed that defendant had posi-

tioned his “vehicle to get the light on the decoy, to allow [his

son] to hunt after hours and shoot what they believe are deer.”

(Emphasis added.) On review, the state does not point to

any evidence in the record that would support its alternative

theory that defendant and his son intended to shoot decoys

rather than live deer. Instead, the state speculates that a

“trier of fact could conclude that defendant and his son, frus-

trated after a fruitless day of hunting, shot at the decoys just

for the sake of shooting * * * or even that they determined

to engage in some target practice.” Because we conclude

that the facts in the record do not support the state’s first

alternative basis for affirmance, and further that the record

might have developed differently had the state raised that

theory below, we decline to exercise our discretion to affirm

the judgment on that basis.

We likewise decline to affirm based on the state’s

second argument—that a reasonable trier of fact could

have found that defendant intended to shoot wild deer that

did not belong to him and that he believed that he had no

right to damage. The state argues that whether wild deer

are property of the state is irrelevant because the state was

not required to prove whose property defendant intended

to damage. Rather, the state contends that, “[r]egardless

of what exactly defendant believed he was shooting, and

regardless of who as an abstract legal matter owns the

828 State v. Dickerson

thing that defendant believed he was shooting, the evidence

sufficed to support an inference that defendant intention-

ally shot something that he knew was not his, and that he

believed he had no right to shoot.”

We disagree that that evidence is sufficient to sup-

port a conviction for second-degree criminal mischief on

that basis. Under ORS 164.354(1)(b), a person commits

second-degree criminal mischief if, “[h]aving no right to do

so nor reasonable ground to believe that the person has such

right, the person intentionally damages property of another.”

(Emphasis added.) To the extent that the state argues that

the jury needed to find only that defendant had aided and

abetted his son in shooting at deer that his son believed that

he did not have a right to shoot, the state reads out of the

statute the requirement that defendant shot at “property

of another”—a phrase that has a specific, statutorily pre-

scribed meaning. To the extent that the state argues that

the jury needed to find only that defendant intentionally

had shot at deer that he believed did not belong to him, the

state’s argument begs the question of whether wild deer are

“property of another.” Defendant’s central argument is that

wild deer are not the property of anyone until reduced to

capture. For that reason, we find it necessary to resolve the

issue whether wild deer are the property of another for pur-

poses of the criminal mischief statute. Thus, we decline the

state’s invitation to affirm the judgment below on an alter-

native basis. See Outdoor Media Dimensions Inc., 331 Or

at 659-60 (appellate court may, in its discretion, affirm on

alternate grounds).

We turn now to the question presented on review—

whether wild deer are “property of another” for purposes of

the criminal mischief statute. The state argues that wild

deer are the property of the state and, thus, “property of

another” as that phrase is used in ORS 164.354(1)(b).

Defendant agrees that the state has a sovereign interest in

wild animals but argues that a sovereign interest is regu-

latory, not proprietary, in nature. He further argues that

the legislature intended the phrase “property of another,”

as used in the criminal mischief statute, to refer to more

common types of property interests, rather than an interest

held by the state by virtue of its sovereignty.

Cite as 356 Or 822 (2015) 829

Because defendant’s argument presents an issue

of statutory interpretation, we consider the statute’s text,

context, and any relevant legislative history to discern the

meaning of “property of another” as intended by the legisla-

ture when it defined that term in ORS 164.305(2) and incor-

porated it as an element of the crime of criminal mischief in

ORS 164.354(1)(b). Gaines, 346 Or at 171-73. We begin with

the text of the statutes at issue.

A person commits the crime of second-degree criminal

mischief if, “[h]aving no right to do so nor reasonable ground

to believe that the person has such right, the person inten-

tionally damages property of another.” ORS 164.354(1)(b).

“Property of another” means “property in which anyone

other than the actor has a legal or equitable interest that

the actor has no right to defeat or impair, even though the

actor may also have such an interest in the property.” ORS

164.305(2).

The legislature did not define the terms “legal

interest” or “equitable interest” as used in ORS 164.305(2).

When the legislature does not provide a definition of a stat-

utory term, we ordinarily look to the plain meaning of the

statute’s text to determine what particular terms mean.

Comcast Corp. v. Dept. of Rev., 356 Or 282, 295, 337 P3d

768 (2014). Because “legal interest” and “equitable interest”

are legal terms, however, we give those terms their estab-

lished legal meanings, consulting legal dictionaries as an

aid in determining those meanings. See id. at 296 (noting

that, “when a term is a legal one, we look to its ‘established

legal meaning’ as revealed by, for starters at least, legal dic-

tionaries”); Ann Sacks Tile and Stone, Inc. v. Dept. of Rev.,

352 Or 380, 386, 287 P3d 1062 (2012) (“When the words

in a statute have a well-defined legal meaning, we use that

meaning in interpreting the statute.”). At the time that the

legislature enacted the current version of ORS 164.305(2),

Black’s Law Dictionary defined an “interest” in property

as “a right to have the advantage accruing from anything;

any right in the nature of property, but less than title; a

partial or undivided right; a title to a share.” Black’s Law

Dictionary 950 (4th ed 1968). “Legal” was defined as “[p]roper

or sufficient to be recognized by the law; cognizable in the

830 State v. Dickerson

courts; competent or adequate to fulfill the requirements of

the law.” Id. at 1038. “Equitable” was defined as “[e]xist-

ing in equity; available or sustainable only in equity, or only

upon the rules and principles of equity.” Id. at 632. Although

those dictionary definitions provide some guidance, they do

not clearly identify the bounds of what constitutes a legal or

equitable interest for purposes of determining whether the

state’s sovereign interest in wildlife fits within those bounds.

However, the enactment history of ORS 164.305(2)

is instructive. See State v. Ziska / Garza, 355 Or 799, 806,

334 P3d 964 (2014) (contextual analysis of statute may

include prior versions of the statute). When ORS 164.305(2)

was originally enacted in 1971, it defined “property of

another” as “property in which anyone other than the actor

has a possessory or proprietary interest.” Or Laws 1971,

ch 743, § 141(2). In 1977, the legislature amended the stat-

ute, removing the phrase “possessory or proprietary inter-

est” and replacing it with the much broader phrase “legal

or equitable interest that the actor has no right to defeat or

impair, even though the actor may also have such an inter-

est in the property.” Or Laws 1977, ch 640, § 1(2).

Defendant acknowledges that the 1977 amendments

to ORS 164.305(2) broadened the definition of “property of

another,” but he argues that the legislature did not intend to

expand the definition beyond commonly recognized property

ownership categories. Rather, he contends that the legisla-

ture intended to broaden the definition to include only secu-

rity interests. Our review of the legislative history confirms

defendant’s contention that, when the legislature undertook

to amend the definition of “property of another”—which is

used in both the criminal mischief and the arson statutes—

it intended, at least in part, to allow for certain prosecutions

for arson. The prior definition of “property of another” did

not encompass instances where a person burned his or her

own residential or commercial property to collect insurance

proceeds. For example, even where a lender held a security

interest in a piece of property that a borrower burned, or a

husband and wife shared an equitable interest in a piece of

property that one of them burned, the state was unable, in

some instances, to prosecute the crime as arson, because

Cite as 356 Or 822 (2015) 831

those interests were not “possessory or proprietary” inter-

ests. See, e.g., Tape Recording, House Subcommittee on

Judiciary, HB 2384, Mar 15, 1977, Tape 19, Side 1 (statement

of James Ayers, State Police Arson Division) (explaining that

prosecutors would not bring charges in cases where bank

holds mortgage on piece of destroyed property, because bank

was not an owner of that property); Tape Recording, House

Committee on Judiciary, HB 2384, May 23, 1977, Tape 60,

Side 1 (statement of Gary Rusher, Legal Counsel for Oregon

Fire Chiefs Association) (describing proposed amendment to

definition of “property of another” as addressing situation

where husband and wife each have an equitable interest in

property and one of them “torches” that property).

We disagree, however, with defendant’s assertion

that the 1977 amendment to ORS 164.305(2) essentially

redefined “property of another” to mean only that property

in which a person other than the actor has a possessory, pro-

prietary, or security interest.9 Nothing in the statutory text

indicates that the legislature intended to limit the definition

of “property of another” to those three specific categories. As

this court has stated:

“The legislature may and often does choose broader lan-

guage that applies to a wider range of circumstances than

the precise problem that triggered legislative attention. * * *

When the express terms of a statute indicate such broader

coverage, it is not necessary to show that this was its con-

scious purpose. In the absence of an affirmative showing

that the narrower meaning actually was intended by the

drafters, we shall take the legislature at its word and give

[the term] its ordinary meaning.”

South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531,

724 P2d 788 (1986) (“The term ‘watercraft’ is expansive,

and its plain and ordinary meaning necessarily includes

pleasure boats.”). Here, the legislature redefined “property

of another” in broad terms to include anyone with a “legal or

equitable interest” that the defendant has no right to defeat

9

Black’s Law Dictionary defined “security” as “[p]rotection; assurance; indem-

nification. The term is usually applied to an obligation, pledge, mortgage, deposit,

lien, etc., given by a debtor in order to make sure the payment or performance of

his debt, by furnishing the creditor with a resource to be used in case of failure in

the principal obligation.” Id. at 1522 (4th ed 1968).

832 State v. Dickerson

or impair. We decline to interpret ORS 164.305(2) to include

a limitation that does not appear in its plain text. See also

Gaines, 346 Or at 172 (“[A] party seeking to overcome seem-

ingly plain and unambiguous text with legislative history

has a difficult task before it.”).

Our remaining inquiry, then, is whether the state’s

sovereign interest in wild deer fits within the broad param-

eters of the legislature’s amended definition of “property

of another.” To answer that question, we consider Oregon’s

common-law and statutory understanding of the nature of

the state’s sovereign interest in wild animals. See State v.

Pipkin, 354 Or 513, 526, 316 P3d 255 (2013) (noting that

“context includes the preexisting common law and the stat-

utory framework within which the law was enacted”) (inter-

nal quotation marks omitted).

In State v. Hume, 52 Or 1, 5-6, 95 P 808 (1908),

this court adopted the English common-law view that prop-

erty rights in wild animals lie in the sovereign.10 The court

employed, as had courts in many other states, the metaphor

of a trust to describe the state’s interest in wildlife. The

court concluded that title to animals, “so far as that claim

is capable of being asserted before possession is obtained, is

held by the state, in its sovereign capacity in trust for all its

citizens[.]” Id. at 5; see also Anthony et al. v. Veatch et al., 189

Or 462, 487, 220 P2d 493 (1950) (“ ‘The fish in the waters of

the state, and the game in its forests, belong to the people

of the state, in their sovereign capacity[.]’ ”) (quoting State v.

Tice, 69 Wash 403, 404, 125 P 168 (1912)). This court later

affirmed that, although a “right of property,” the state’s

interest in wildlife is a sovereign—not a proprietary—

interest. See Monroe v. Withycombe, 84 Or 328, 334-35, 165

P 227 (1917) (“Fish are classified as ferae naturae, and while

in a state of freedom their ownership, so far as a right of

property can be asserted, is in the state, not as a proprietor,

but in its sovereign capacity for the benefit of and in trust for

10

Common-law principles pertaining to wildlife regulation have a rich his-

tory, dating back to ancient Rome. In England, the understanding that undomes-

ticated animals were held in common by the people gradually gave way to the

view that wild animals belonged to the King. For discussions of that historical

development in the law, see State v. Couch, 196 Or App 665, 673-77, 103 P3d 671

(2004), aff’d, 341 Or 610, 147 P3d 322 (2006), and Simpson v. Dept. of Fish and

Wildlife, 242 Or App 287, 298-300, 255 P3d 565 (2011).

Cite as 356 Or 822 (2015) 833

its people in common[.]”) (emphasis added); accord Fields v.

Wilson, 186 Or 491, 498, 207 P2d 153 (1949).11

Oregon codified the state’s property interest in wild-

life as section 39-201, Oregon Code 1930. That statute pro-

vided, in part, that wild animals “shall always and under

all circumstances be and remain the property of the state.”

Oregon Code, title XXXIX, ch II, § 39-201 (1930). That stat-

utory concept remained substantively the same until the

1973 Legislative Assembly enacted ORS 498.002—the cur-

rent statute declaring the state’s property interest in wild

animals. See Simpson v. Dept. of Fish and Wildlife, 242 Or

App 287, 300-02, 255 P3d 565 (2011) (describing statutory

history). ORS 498.002 provides, in part, “Wildlife is the

property of the state.” ORS 498.002(1). The Court of Appeals

has interpreted that statute to incorporate the common-law

understanding of the state’s property interest in wildlife—

that is, that “the state’s property interest in wildlife is sov-

ereign, not proprietary.” Simpson, 242 Or App at 304.12 We

presume that, when the legislature amended the definition

of “property of another” in 1977, it was aware of its prior

declaration that the state has a property interest in wild-

life and of the existing common law regarding the sovereign

nature of that property interest. See Moro v. State of Oregon,

354 Or 657, 665-66, 320 P3d 539 (2014) (“In interpreting

statutes, this court presumes that the legislature is aware

of existing law and this court’s interpretation of that law.”).

The dispositive issue, then, is whether the state’s

sovereign interest is a “legal or equitable interest,” such

that wild animals are “property of another” under ORS

164.305(2). Defendant argues that the state’s sovereign

11

Indeed, the United State Supreme Court has recognized that states do not

“own” wild animals in the traditional sense of ownership and that the concept of

state ownership is a legal fiction. See Toomer v. Witsell, 334 US 385, 402, 68 S Ct

1156, 92 L Ed 1460 (1948) (“The whole ownership theory, in fact, is now generally

regarded as but a fiction expressive in legal shorthand of the importance to its

people that a State have power to preserve and regulate the exploitation of an

important resource.”).

12

As the Court of Appeals noted in Simpson, 242 Or App at 302, the legisla-

tive history supports the conclusion that the legislature did not intend substan-

tively to change the nature of the state’s property interest in wildlife when it

enacted ORS 498.002. See, e.g., Minutes, Senate Committee on Agriculture and

Natural Resources, HB 2010, June 6, 1973, 2 (statement of Rep Roger Martin)

(noting that the bill was not intended “to make substantive changes”).

834 State v. Dickerson

interest enables it to exercise regulatory authority over

wildlife, but that its regulatory authority does not consti-

tute a “legal or equitable interest.” The state counters that

its interest in wildlife is broader than its authority to reg-

ulate the conduct of its citizenry with respect to wild ani-

mals. Rather, the state contends that it also holds title to

wildlife as a trustee and therefore has a legal interest in

wildlife. See Anthony et al., 189 Or at 474 (recognizing that

the state may regulate the capture of wildlife “either in the

exercise of its police power, or in its sovereign capacity in

trust for its people”). For the reasons that follow, we agree

that the state’s sovereign interest in wild animals is in the

nature of a “legal * * * interest” within the meaning of ORS

164.305(2).

First, as discussed, the legislature has declared

that “[w]ildlife is the property of the state.” ORS 498.002(1);

see also Oregon Code, title XXXIX, ch II, § 39-201 (1930)

(providing that wild animals “shall always and under all cir-

cumstances be and remain the property of the state”). That

declaration confirms that the state has a property interest

in wildlife that is recognized by law.

Second, the state can obtain compensation for dam-

age done to wildlife. See, e.g., ORS 496.705 (providing that

the state “may institute suit for the recovery of damages for

the unlawful taking or killing of any of the wildlife referred

to in subsection (2) of this section that are the property of

the state”). The state’s ability to bring an action for damages

to wildlife also indicates that its property interest in wildlife

is recognized by law and that it is enforceable in courts of

law.

Finally, as explained, Oregon courts have long used

the metaphor of a trust to describe the state’s sovereign

interest in wildlife. Hume, 52 Or at 5-6; see Portland Fish

Co. v. Benson, 56 Or 147, 154, 108 P 122 (1910) (noting that

title to wild animals, “before they are captured, is in the

state in its sovereign capacity, in trust for all its citizens”).

According to the trust metaphor—sometimes referred to as

the “wildlife trust doctrine”—wildlife is the corpus of the

trust, the state is the trustee, and the public is the benefi-

ciary. See, e.g., Toomer v. Witsell, 334 US 385, 399-400, 68

Cite as 356 Or 822 (2015) 835

S Ct 1156, 92 L Ed 1460 (1948) (noting that, under the trust

theory, the state acts as a trustee, the citizens are the bene-

ficiaries, and the wildlife is the corpus); Geer v. Connecticut,

161 US 519, 534, 16 S Ct 600, 40 L Ed 793 (1896) (“[T]he

ownership of the sovereign authority is in trust for all the

people of the State, and hence by implication it is the duty

of the legislature to enact such laws as will best preserve

the subject of the trust and secure its beneficial use in

the future to the people of the State.”), overruled on other

grounds by Hughes v. Oklahoma, 441 US 322, 99 S Ct 1727,

60 L Ed 2d 250 (1979). Although the trust metaphor is an

imperfect one (for example, there is no trust instrument

that delineates the terms of the trust), the state’s powers

and duties with respect to wildlife have many of the tradi-

tional attributes of a trustee’s duties. Acting as a trustee,

the state has the authority to manage and preserve wildlife

resources and may seek compensation for damages to the

trust corpus. See, e.g., Hume, 52 Or at 5-6 (noting that, “as

an incident of the assumed ownership, the legislative assem-

bly may enact such laws as tend to protect the species from

injury by human means and from extinction by exhaustive

methods of capture”); State v. Pulos, 64 Or 92, 95, 129 P

128 (1913) (“[N]o person has an absolute property right in

game or fish while in a state of nature and at large; * * * the

taking of them is not a right, but is a privilege, which may

be restricted, prohibited, or conditioned, as the law-making

power may see fit.”).

Defendant argues that, even if the state has a legal

or equitable interest in wildlife, the legislature did not

intend for wildlife violations to be prosecuted under criminal

laws of general applicability. He asserts that the comprehen-

sive nature of Oregon’s wildlife code indicates a legislative

intent to establish an administrative framework for regu-

lating interactions between humans and wildlife. However,

defendant cites no authority for the proposition that, in the

absence of an explicit statement from the legislature, we

may interpret the wildlife code to preclude criminal prosecu-

tion for intentional damage to wildlife. Instead, the legisla-

ture has broadened the criminal mischief statute to include

damage intentionally done to any “property in which any-

one other than the actor has a legal or equitable interest,”

836 State v. Dickerson

without exception. ORS 164.305(2); ORS 164.354(1)(b). We

therefore enforce that expressed intention.

In summary, when the legislature amended ORS

164.305(2) in 1977, it broadened the definition of “prop-

erty of another.” We assume that, at the time of the 1977

amendment, the legislature was aware of its prior declara-

tion that the state has a property interest in wildlife. See

ORS 498.002(1) (so declaring). We also assume that the leg-

islature was aware of the existing common law regarding

the sovereign nature of that property interest. Because the

state, as a trustee, holds a legal interest in wildlife, we con-

clude that the state has a “legal * * * interest” in wildlife, as

that phrase is used in ORS 164.305(2). We therefore con-

clude that wild deer are “property of another,” for purposes

of ORS 164.354 (1)(b) and ORS 164.305(2), and that the trial

court did not err in denying defendant’s motion for judgment

of acquittal on the second-degree criminal mischief count.13

The decision of the Court of Appeals and the judg-

ment of the circuit court are affirmed.

13

We note that the state need not prove under the criminal mischief statute

that the state owns the property that is damaged. Under ORS 164.354(1)(b), it is

sufficient that the state prove that the property damaged is “property of another.”