State v. Hogevoll

*528EDMONDS, P. J.

Defendant appeals from a judgment of conviction for exceeding the bag limit on coast bull elk, ORS 498.002,1 a Class A misdemeanor, ORS 496.992(1).2 The conviction arises from a 2005 second season coast bull elk hunt where defendant shot and killed one elk, found a second elk that was shot and killed by someone else, and took possession of both elk. The issue on appeal is whether, as a matter of law, a person who has killed and tagged a second season coast bull elk commits the crime of exceeding the bag limit on coast bull elk by taking possession of an additional second season coast bull elk that was killed by someone else. We affirm.

Defendant testified as follows. Just before daylight, defendant entered a field on his property to hunt a specific bull elk that had five-point antlers, which he had been observing for the previous three years. That elk and seven other bull elk were feeding in the field. Defendant shot the elk twice before it “collapsed and went down.” Defendant waited approximately 15 minutes before he approached the elk, put his second season coast bull elk tag on it, and gutted it.3 As defendant was walking back across the field to obtain his four-wheeled utility vehicle in order to haul the elk out of *529the field, he saw a seven-point bull elk lying dead in a ditch. Although defendant did not have another second season coast bull elk tag, he gutted the second elk, hauled it back to his residence, and gave the carcass to an acquaintance. Defendant later testified that he did not call the authorities about the second elk because he wanted the meat to go to “somebody that might enjoy it and utilize it.” A few weeks later, the Oregon State Police began an investigation that led to the charge against defendant for exceeding the bag limit on coast bull elk.

At trial, defendant requested that the trial court instruct the jury that, to exceed the bag limit on coast bull elk, a person must knowingly kill more than one elk in a single season:

“Oregon law provides that a person commits the crime of exceeding the bag limit of coast bull elk if that person knowingly kills more than one coast bull elk in one season!.]
“In this case, to establish the crime of exceeding the bag limit of coast bull elk, the state must prove beyond a reasonable doubt the following three elements:
“a. The act occurred in Lincoln County Oregon.
“b. The act occurred on or about November 22, 2005.
“c. [Defendant] knowingly killed more than one coastal bull elk in the second season for coastal bull elk.”

In a colloquy with the trial court, defense counsel asserted that a person exceeds the bag limit on coast bull elk only “by killing more than one animal”:

“These regulations are * * * clearly defined in terms of living animals, exceeding your quota by killing more than one animal. That is what a bag limit is. Any hunter knows that. They will not say for an animal they found dead on the road or dead in their field that they bagged an animal. They will say they found an animal.”

The trial court declined to give the requested instruction, “because it used the word ‘killed’ as the operative verb.” Instead, the trial court instructed the jury that a person exceeds the bag limit on coast bull elk by taking more than one elk:

*530“ ‘Take’ means to kill or obtain possession or control of any wildlife.
Hi * * *
“The second charge against [defendant] is Exceeding the Bag Limit on Coast Bull Elk.
“Oregon law provides that a person commits the crime of Exceeding the Bag Limit of Coast Bull Elk if that person knowingly takes more than one coast bull elk in one season.
“In this case, to establish this charge beyond a reasonable doubt, the State must prove * * * that the Defendant knowingly took more than one Coast elk * * * in one season ‡ ‡ ‡
“And again, the word ‘took’ * * * has the same * * * definition as the word ‘take’ that I’ve already * * * read to you.”

(Emphasis added.)

Defendant’s counsel then took exception to the foregoing instruction:

“I except on behalf of [defendant] * * * to the Court giving Special Instruction Number 1, Exceeding the Bag Limit on Coast Bull Elk as the State has presented it. In specifics, using the word ‘take’ and ‘took’ as it is put in that instruction on two occasions.
“And I’ve already articulated my reasons for * * * this objection to the Court when we were arguing about instructions. And I want to incorporate those comments on my position on how the use of the word ‘took’ and ‘take’ redefines what it means to exceed the bag limit and is contrary to what the requirements are in Oregon law as to what that term means as taken by the regulations as a whole.”

On appeal, defendant asserts two assignments of error. First, defendant assigns error to the trial court’s refusal to give defendant’s requested jury instruction. Second, defendant assigns error to the trial court’s jury instruction that, to prove the crime of exceeding the bag limit on coast bull elk, the state must prove “that the Defendant knowingly took more than one Coast elk.” Both assignments of error frame a single issue — whether, as a matter of law, a person who has killed and tagged one second season coast bull elk commits the crime of exceeding the bag limit on coast *531bull elk by taking possession of an additional second season coast bull elk that was killed by someone else. See State v. Branch, 208 Or App 286, 288, 144 P3d 1010 (2006) (“We review the trial court’s refusal to give a requested jury instruction for error of law.”); State v. Woodman, 341 Or 105, 118, 138 P3d 1 (2006) (“In determining whether it was error to give a particular instruction, we read the instructions as a whole to determine whether they state the law accurately.”).

The elements of the crime of exceeding the bag limit on coast bull elk are established by an interplay of statutes, administrative rules, and a document titled Oregon Big Game Regulations that is incorporated into those administrative rules. As stated above, ORS 498.002(1) prohibits a person from taking any wildlife in violation of the wildlife laws or administrative rules:

“Wildlife is the property of the state. No person shall angle for, take, hunt, trap or possess, or assist another in angling for, taking, hunting, trapping or possessing any wildlife in violation of the wildlife laws or of any rule promulgated pursuant thereto.”

ORS 496.004(16) defines “take” to mean “to kill or obtain possession or control of any wildlife.” Also, the Oregon legislature in ORS 496.138(2) delegated to the Oregon Fish and Wildlife Commission (the commission) the authority to promulgate wildlife regulations.4 Pursuant to the authority granted in ORS 496.138, the commission adopted former OAR 635-065-0001 (Jan 1, 2005), which incorporates Oregon Big Game Regulations into the Oregon Administrative Rules.5 The 2005 version of Oregon Big Game *532Regulations, in turn, provides that the “Bag Limit” for the “GENERAL COAST 2nd SEASON” is “[o]ne bull elk with visible antler[.]” Oregon Big Game Regulations 75 (2005).6

On appeal, defendant contends that, “to exceed the ‘bag limit’ on coast bull elk, a hunter must knowingly shoot and kill a number of elk that exceeds the number of coast bull elk tags that he may possess during a single season, i.e., one.” The state responds that “[d]efendant’s construction is not an accurate statement of the law because ‘bag,’ though not defined in the administrative rules or Big Game Regulations, is not ambiguous on its face and is used consistently throughout the administrative rules to denote the number of animals a person may take.” (Emphasis in original.) The parties’ contentions frame a question of statutory and administrative rule interpretation.

In construing an administrative rule, we apply the same analytical framework that applies to the construction of statutes. PGE v. Bureau of Labor and Industries, 317 Or 606, 612 n 4, 859 P2d 1143 (1993); Stanley v. DMV, 193 Or App 202, 205, 89 P3d 1186 (2004). At the first level of analysis, we examine the text and context of the statute or the rule to discern the legislature’s intent or the intent of agency to whom regulation has been delegated by the legislature. PGE, 317 Or at 611-12. Terms of common usage within the text of a statute or a rule are to be given their plain, natural, and ordinary meaning unless specifically defined by statute or rule. State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006) (“Absent a special definition, we ordinarily would resort to dictionary definitions, assuming that the legislature meant to use a word of common usage in its ordinary sense.”).

In support of his contention that the crime of exceeding the bag limit requires that a person kill more than one elk, defendant cites a number of administrative rules that *533show that, to legally take a 2005 second season coast bull elk, a person must hunt it with a centerfire rifle while possessing a 2005 “Coast Elk 2nd Season” tag.7 Accordingly, defendant posits, “Because a hunter’s Taag limit’ corresponds to the number of‘tags’ he may validly possess, a hunter exceeds the bag limit [only] by killing a greater number of game than he has valid tags.” The dissent agrees. It interprets the “bag limit” hunting regulation “as a regulation of hunting live animals, and not as a limit on possession of a found dead animal.” 223 Or App at 542 (Sercombe, J., dissenting).

We are unpersuaded by defendant’s reasoning because it ignores the import of the legislature’s definition of the word “take” for purposes of big game hunting regulations. To “take” a game animal means “to kill or obtain possession or control of any wildlife.” ORS 496.004(16). The administrative regulations governing this case track that definition. Former OAR 635-045-0002(57) (Jan 1,2004) defines the word “possession” for purposes of the statute as exercising “physical possession or to otherwise exercise dominion or control over any wildlife or parts thereof, and any person who counsels, aids or assists another person holding such wildlife is deemed equally in possession.” In other words, the legislature intended that a person “takes” a game animal under ORS 498.002(1) by either killing the animal, or by obtaining possession of it or parts of it, or by controlling the whole or parts of it through means other than by killing it.

The remainder of the regulations applicable to this case are not inconsistent with the legislature’s definition of *534the word “take.” The applicable administrative regulations do not define what is meant by the words “bag limit.” However, it is apparent from the context in which the words are used that “bag limit” refers to the number of animals that may be “taken” pursuant to the definition in ORS 496.004(16), i.e., a number that corresponds to the number of tags purchased by the hunter. Thus, a “tag” is defined by the regulations as “a document authorizing the taking of a designated kind of mammal at a specified time and place.” Former OAR 635-045-0002(74) (Jan 1, 2004). It follows that the fact that, pursuant to administrative rule, a person must use a centerfire rifle to hunt and lawfully kill a bull elk does not prevent that person from violating ORS 498.002(1) by other means, such as exercising dominion or control over the animal or its parts.8

In sum, the breadth of the legislature’s definition of the word “take” defeats defendant’s interpretation that “bag limits” are restricted to animals that a hunter actually kills. We therefore conclude that the trial court did not err in refusing to give defendant’s requested jury instruction that, to prove the crime of exceeding the bag limit on coast bull elk, the state must prove that defendant killed more than one elk, or in giving the instruction that it gave.

Affirmed.

ORS 498.002(1) provides:

“Wildlife is the property of the state. No person shall angle for, take, hunt, trap or possess, or assist another in angling for, taking, hunting, trapping or possessing any wildlife in violation of the wildlife laws or of any rule promulgated pursuant thereto.”

(Emphasis added.)

ORS 496.992(1) provides:

“Except as otherwise provided by ORS 153.022 and other law, violation of any provision of the wildlife laws, or any rule promulgated pursuant thereto, is a Class A misdemeanor when the offense is committed with a culpable mental state as defined in ORS 161.085. If the defendant is sentenced to pay a fine, failure to pay the fine, or any portion thereof, shall he treated as provided in ORS 161.685.”

(Emphasis added.)

Oregon Big Game Regulations 13 (2005) provides that

“[t]he owner of a game mammal tag that kills a game mammal for which a tag is issued! 1 shall immediately remove in its entirety only the month and day of kill and attach the tag in plain sight securely to the game mammal. The tag shall be kept attached to such carcass or remain with any parts thereof so long as the same are preserved.”

ORS 496.138(2) provides:

“In accordance with the applicable provisions of ORS chapter 183, the commission shall adopt such rules and standards as it considers necessary and proper to implement the policy and objectives of ORS 496.012 and perform the functions vested by law in the commission.”

Former OAR 635-065-0001 (Jan 1, 2005) provides:

“(1) The purpose of these rules is to establish license and tag requirements, limits, areas, methods and other restrictions for hunting game mammals pursuant to ORS Chapter 496.
“(2) OAR chapter 635, division 065 incorporates, by reference, the requirements for hunting game mammals set out in the document entitled ‘2005 Oregon Big Game Regulations,’ into Oregon Administrative Rules. Therefore, persons must consult the ‘2005 Oregon Big Game Regulations’ in *532addition to OAR Chapter 635, to determine all applicable requirements for game mammals.”

Neither the statutes, administrative rules, nor the Oregon Big Game Regulations define the term “bag” as it is used in the context of “bag limit.” Although OAR 635-045-0002(13) provides “ ‘[b]ull elk’ for the purposes of a bag limit definition! ] means a male elk with at least one visible antler!,]” that subsection does not define the word “bag.”

For example, defendant cites OAR 635-065-0015(1), which provides that “[a]ny person hunting game mammals for which a tag is required must have on their person a valid tag for the dates, area and species being hunted.” (Emphasis added.) Defendant then points to the following “General Hunting Regulations” from the Oregon Big Game Regulations:

“No Person Shall ***Hunt with a centerfire or muzzleloading rifle without a valid, unused deer or elk tag for that time period and area on their person during * * * coast bull elk seasons!.]
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“The owner of a game mammal tag that kills a game mammal for which a tag is issued shall immediately remove in its entirety only the month and day of kill and attach the tag in plain sight securely to the game mammal.”

Oregon Big Game Regulations 13 (2005) (boldface in original; emphasis added).

The dissent relies on the existence of a separate rule in the 2005 Oregon Big Game Regulations that provides that “[n]o person shall possess or transport any game mammal or part thereof, which has been illegally killed, found or killed for humane reasons * * * unless they have notified and received permission from personnel of the Oregon State Police or [Oregon Department of Pish and Wildlife] prior to transporting.” 223 Or App at 541 (Sercombe, J., dissenting). But it does not follow from the existence of potentially overlapping administrative rules that the agency intended to regulate only the hunting of live animals for purposes of a “bag limit,” particularly in light of the agency’s definition of the word “possession” in former OAR 635-045-0002(57) (Jan 1,2004).