State v. Bordeaux

323 Or.App. 60

522 P.3d 900

STATE of Oregon, Plaintiff-Respondent,

v.Perry Ananth Kanury BORDEAUX, aka Perry Ananth Kanury, Defendant-Appellant.

A172965

Court of Appeals of Oregon.

Argued and submitted April 29, 2022.

December 7, 2022

Francis C. Gieringer, Hillsboro, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Colm Moore, Portland, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

JOYCE, J.

Defendant appeals from a judgment of conviction for unlawfully taking food fish from a marine reserve, ORS 509.006. On appeal, in his first and second assignments of error, defendant argues that the trial court plainly erred in failing to sua sponte grant a demurrer or a motion in arrest of judgment. We conclude that any error was not plain and thus, we reject those claims of error without further discussion. Next, defendant assigns error to the trial court's denial of his motion for judgment of acquittal (MJOA), arguing that he was entitled to an MJOA because the state failed to present sufficient evidence that he had "fished" in the marine reserve under the correct construction of the statute. Additionally, defendant argues that in convicting him of a misdemeanor, the court should have applied a "knowing" mental state, but failed to do so. We reject defendant's construction of the term "fish for" in the statute and conclude that defendant failed to preserve the culpable mental state issue that he raises on appeal. Finally, in his fifth assignment of error, defendant argues that the trial court erred in precluding a witness from offering an expert opinion on whether the topography of the Otter Rock Marine Reserve could have affected the movement of defendant's crab pots. We conclude that any error was harmless. Therefore, we affirm.

BACKGROUND

In June 2018, on two separate occasions, a person who lives in Otter Rock saw defendant's commercial fishing vessel in the marine reserve area, although the person did not observe anyone on the vessel deploy or pull any kind of fishing gear from the reserve. The person called the Marine Science Center to alert the center to his observations.

In early July, Oregon State Police (OSP) troopers located a north-to-south line of nine crab pots belonging to defendant, three of which were inside the marine reserve. Specifically, those three pots were located within 18 yards, 75 yards, and 165 yards of the reserve's boundary. An OSP trooper pulled the two pots that were farthest into the reserve and found that they contained bait and crabs. The trooper did not see signs of cannibalism, which indicated that the crabs had not been in the pot longer than 14 days. She subsequently looked up the "vessel monitoring system" (VMS) data of defendant's vessel. VMS records a vessel's location every half hour and defendant's vessel's data indicated that it was "in the area" of the reserve on May 17, June 8, and June 29.

The state subsequently charged defendant with unlawful commercial fishing, a Class A misdemeanor, alleging that defendant "unlawfully and with criminal negligence commercially fished inside the Otter Rock Marine Reserve in violation of ORS 509.006 and the 2018 Oregon Commercial Fishing Regulations." ORS 509.006 provides that "[i]t is unlawful to take, possess, buy, sell or otherwise handle any food fish in or from any waters of this state, during times, in a manner or by means of the fishing gear prohibited by law."¹ As particularly relevant here, " ‘take’ means fish for, hunt, pursue, catch, capture or kill or attempt to fish for, hunt, pursue, catch, capture or kill." ORS 506.006(12). And with limited exceptions not applicable here, the Oregon commercial fishing regulations prohibit any taking, "including fishing or hunting, of any fish or wildlife species" at all times within the Otter Rock Marine Reserve. OAR 635-012-0050(1). ORS 506.991(1) further provides that "violation of any provision of the commercial fishing laws * * * is a Class A misdemeanor if the offense is committed with a culpable mental state."

During a bench trial, at the close of the state's case, defendant moved for a judgment of acquittal, arguing that the state needed to prove that defendant actually "pulled" crab from the pots but had failed to do so. The trial court denied his MJOA. It reasoned that the definition of the word "take" in ORS 506.006 included "attempt[ing] to fish" and thus the state did not need to adduce evidence that defendant actually "pulled" any crab from the marine reserve.

After the court denied his MJOA, defendant presented evidence to support his theory that he had set his crab pots outside of the reserve and some natural forces had then moved the pots into the restricted area. Specifically, defendant testified that he had set his crab pots north of the marine reserve. He stated that had he known his pot was inside the reserve, he would have contacted the OSP to find out how to proceed. Leonard Vancurler, a long-time commercial fisherman, who was also the owner of defendant's vessel, testified that strong wind from the north during summertime, swells, and other factors can move crab pots south into the reserve zone.

The state introduced evidence showing that it was unlikely that natural forces moved defendant's pots into the reserve, which the court found more credible than defendant's testimony. There had been no major weather systems in June or July that were capable of moving the pots significantly along the ocean floor. A state trooper stated that the furthest he had seen crab pots blown into the reserve by wind or ocean currents was by 50 feet and "it does not happen often." Another trooper testified that when the troopers first found defendant's pots, they were "spaced pretty uniformly apart." She noted that nothing indicated that those pots had been blown into the reserve because even if there had been weather capable of moving the heavy crab pots, it was unlikely that all of the pots on a line would move north to south in a uniform manner. The witness who observed defendant's vessel in the reserve took pictures, showing that defendant's wife was on the vessel while it was in the reserve, holding a bait jar in her hand. Defendant's wife testified that she was filling bait jars for later use.

During closing argument, defendant argued that without evidence that defendant "pull[ed] fish from the pots," the only viable theory of the state's case would be that defendant violated the law "by intentionally attempting to take food fish from the marine reserve by placing pots within those, the reserve." Defendant outlined the state's evidence, urging the court to find that defendant did not "intentionally attempt[ ] to remove food fish or crab from the marine reserve by placing his pots within the reserve." The state argued that "simply deploying gear into the Otter Rock Marine Reserve [ ] is illegal" and that the state had proved beyond a reasonable doubt that defendant did that with criminal negligence, in violation of ORS 509.006.

The trial court found defendant guilty of fishing in the reserve. It explained that unlike the meaning of "attempt" for purposes of inchoate crimes, see ORS 161.405(1), "attempt," as used in "attempt to fish for" in ORS 509.006, has its ordinary meaning—it means engaging in the process of fishing. Consequently, the court held, the legislature's use of "attempt" in the statute should not be read to require an intentional mental state. The court then concluded that the evidence showed that regardless of how the pots ended up in the reserve, defendant had fished for crab with at least criminal negligence—the culpable mental state alleged in the charging instrument—by failing to remove his pots from the reserve even though he knew they were in the reserve. That is, the court found that, regardless of whether defendant intentionally placed the pots in the reserve, he came to realize that they were in the reserve and chose to leave them there. The court entered a judgment of conviction, and defendant now appeals.²

MOTION FOR JUDGMENT OF ACQUITTAL

On appeal, defendant first challenges the trial court's denial of his motion for judgment of acquittal. As he did below, he argues that the state failed to present sufficient evidence that he had unlawfully fished in a marine reserve, as prohibited by ORS 509.006.³

We review the denial of a motion for judgment of acquittal to "determine whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Colpo , 305 Or App 690, 691, 472 P.3d 277, rev den , 367 Or. 290, 476 P.3d 1255 (2020). In addition, when arguments for and against a MJOA involve disagreement over the proper construction of the applicable statutes, we resolve them as a matter of law. See State v. Dickey , 315 Or App 501, 505, 500 P.3d 688 (2021). Here, we conclude that the trial court correctly denied defendant's MJOA on the sufficiency of evidence that defendant "fished" as contemplated by ORS 509.006.

On appeal, in challenging the sufficiency of the state's evidence, defendant asserts that it was insufficient for the state to show that he attempted to catch crab because the statutory definition of the term "fish for" requires the state to prove that defendant actually "landed" crab from the marine reserve. "Land," as a term of art used in the commercial fishing laws, means "to begin transfer of food fish from a vessel." OAR 635-005-0240(22)(a). Thus, according to defendant, the state was required—and failed—to prove that defendant actually caught crab and began transferring that crab from the vessel.

The legal issue at the core of defendant's MJOA requires u...