State v. Wilder

305 Or.App. 618

471 P.3d 798

STATE of Oregon Plaintiff-Respondent,

v.Larry James WILDER, Defendant-Appellant.

A167948

Court of Appeals of Oregon.

Argued and submitted December 10, 2019.

July 29, 2020

Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jennifer S. Lloyd, Salem, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Daniel Norris, Assistant Attorney General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeVORE, P. J.

Defendant appeals a judgment of conviction for felon in possession of a firearm, ORS 166.270, which followed a separate prosecution for unlawful hunting, ORS 496.002 and ORS 496.992. Defendant assigns error to the trial court's denial of his motion to dismiss the possession charge on the basis that the former jeopardy statute, ORS 131.515(2), required the state to bring the charges together.¹ We conclude that the charges did not arise from the same criminal episodes under any of the relevant tests. Because separate prosecutions were permissible, the trial court did not err in denying defendant's motion. We affirm.

I. BACKGROUND

In reviewing a motion to dismiss under ORS 131.515, we examine the trial court's legal conclusions for errors of law, and we defer to its factual findings to the extent that the record supports them. State v. Fore , 185 Or. App. 712, 716, 62 P.3d 400 (2003). Where the court has not made particular factual findings on an issue and the evidence supports more than one decision, we presume that the court decided the facts in a manner consistent with its decision. State v. Potter , 236 Or. App. 74, 82, 234 P.3d 1073 (2010) (citing Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968) ).

The relevant facts are undisputed. On November 4, 2017, defendant wanted to go hunting. He enlisted his son to drive him in a van to the countryside of Yamhill County. Defendant brought two guns, a rifle and a shotgun. Sometime that day, they parked the van. Defendant took the rifle with him and left the shotgun behind in the van. He shot a deer, which ran onto adjacent private land, where he and his son pursued it. The daughter of the property owner reported the pair to law enforcement for criminal trespass.

Yamhill County Sheriff Deputy Twitchell responded to the scene. When he arrived, he learned from dispatch that defendant and his son had returned to their van nearby and were in an altercation with the property owner and her daughter. Twitchell drove about 100 yards in that direction. He spotted the van oncoming. He quickly turned the patrol vehicle around and initiated a traffic stop.

During the stop, Twitchell ran a criminal history check and learned that defendant had felony convictions from the 1990s. Twitchell observed a shotgun and a rifle in the van's cargo area. Defendant admitted that he shot the deer with the rifle, which he borrowed from a friend. Twitchell did not regularly deal with hunting violations, so he called for the assistance of an Oregon State Fish and Wildlife trooper. The trooper cited defendant for hunting out of season, and Twitchell placed defendant under arrest for felon in possession of a firearm.

On November 27, 2017, the state charged defendant by information for unlawfully hunting deer during a closed season, ORS 498.002 and ORS 498.992. On November 30, 2017, a grand jury returned an indictment for felon in possession of a firearm, ORS 166.270. Neither charging instrument described the weapons involved.

In March 2018, defendant pleaded guilty to the unlawful hunting charge, admitting that he had been "hunting deer during a closed season." The trial court warned defendant that his admission could be used against him in the subsequent trial for felon in possession of a firearm. Defendant indicated that he understood, and he entered the guilty plea. As context for sentencing, the state described defendant's conduct as follows:

"This occurred in early November. The sheriff's office called OSP into an area for the defendant's shooting a deer and then went on private property without permission. Defendant said he shot the deer. It ran onto other private property. They got permission to get it. But then, later, the homeowner came back, and he was hunting with his son. There ended up being some sort of altercation about the deer. Ultimately, though, it was determined that his tag was expired. It had expired the day before. When trooper asked him about it, he said he thought it had ended today.

However, the season had closed on the third. This was on the fourth. Additionally, he was separately charged with being a felon in possession of a firearm. And that would be based on his criminal history."

A bench trial for the felon in possession of a firearm charge followed in May 2018. Defendant moved for dismissal on former jeopardy grounds, claiming that the charge involved the same criminal episode as the wildlife violation. He argued that his possession of the firearm was necessary to, and therefore inseparable from, his unlawfully hunting. The state countered that the offenses involved distinct criminal episodes, as defendant had completed the crime of unlawful hunting when he shot the deer, and some time elapsed before the traffic stop in which he admitted to possessing the guns. Further, the state argued, although defendant shot the deer with a rifle, he also possessed a shotgun, which could, without mention of hunting, comprise the possession offense. The court took the issue under advisement, and the trial proceeded.

The state called Twitchell to testify to the facts recited above. On cross-examination, he testified that the report of trespass included information that the men were hunting and likely had guns. Defendant testified that the shotgun was a family heirloom, passed down from his father, which he intended to give to his son. He claimed that they brought it along for bird hunting, but no opportunity to shoot birds arose, and it stayed in the van at all times.

In closing, the state argued, in part,

"[Defendant] not only admitted that the firearms were his and belonged to him, but the sole purpose of having his son come pick him up was to go hunting and he admits that the firearms belonged to him. So certainly, he was in custody, possession, or control over those weapons."

At the conclusion of the trial, the court found defendant guilty. It explained:

"I think [defendant] clearly had the right to exercise control over the shotguns and the rifle. The shotgun, in particular, was, even he testified that, well, his intention was to give it to his son later on so it's his gun.

"There's a good question there about its operability. ***

"And in this instance, I think I can fairly infer from the reason the gun was in the car to begin with, according to the Defense, an acknowledgement to the deputy in testimony here today was to shoot birds or to go on a hunting. So by all appearances, it's a functional firearm and that's why it's retained, that's why it's brought on his trip, that's why it's going to be handed down.

"So, I find beyond a reasonable doubt that the elements are satisfied for a finding of guilt on the charge of being a felon in possession of a firearm."

In a subsequent hearing, the trial court ruled on defendant's former jeopardy motion. It determined that, because "the hunting charge preceded the traffic stop wherein the shotgun was found, and the shotgun is a different gun than that which was used in the hunting case," a "complete account of the felon in possession of a firearm charge would not necessarily include details of the unlawful hunting charge." The court concluded that no former jeopardy violation occurred and denied defendant's motion to dismiss on those grounds.

Defendant appeals that ruling, arguing that the state violated ORS 131.515(2) by impermissibly forcing him to answer twice for the same conduct in the separate successive prosecutions. Defendant bears the burden of proving that former jeopardy claim. Potter , 236 Or. App. at 81, 234 P.3d 1073. He offers multiple theories to do so. First, he argues that charges are cross-related, noting that his unlawful hunting could be—and, in fact, was—raised in the possession trial, showing that prosecuting of one charge required litigating details of the other. Second, he contends that the hunting and possession charges were part of the same criminal episode because the possession was continuous and uninterrupted, closely linked in time and place to the hunting, and directed at the same greater criminal objective of a father-son hunting trip. Third, defendant asserts that, because the firearm offense was predicated on possession of contraband, the state was required to show that it was "wholly unrelated" to the hunting violation to "tease apart" the charges. We address each argument in turn.

II. FORMER JEOPARDY

Under Oregon statute, "[n]o person shall be separately prosecuted for two or more offenses based upon the same criminal episode." ORS 131.515(2).² The Oregon Supreme Court has articulated three tests for determining when, for the purposes of that statute, a prosecution for one charge will bar later prosecution of another charge: (1) whether the charges are "cross-related," (2) whether the charges arise from conduct involving the "same criminal objective," or (3) whether the charges involve possession of contraband at the same time and place. State v. Dulfu , 363 Or. 647, 655, 669-70, 426 P.3d 641 (2018). Defendant's theories for reversal track those three tests. As we explain below, none of the tests, when applied here, supports a conclusion that the offenses were based upon the same criminal episode under ORS 131.515(2).

A. Cross-Related Test

The first test for whether the prosecution of one charge will bar the prosecution of another charge entails...