468 P.3d 510
Or. Ct. App.2020Background
- Trooper Andrews investigated Barton after Facebook posts showing two different buck deer (2015 four-by-four and 2016 four-by-six) and bloodied carcass photos.
- License database check showed Barton had no hunting license or tags for 2015 or 2016; warrant executed March 19, 2017; Barton admitted taking both bucks and surrendered skulls/antlers.
- Indictment charged, for each buck, counts of possession (on the March 19, 2017 possession date) and counts of taking (on the dates in 2015 and 2016). Defendant convicted on taking and possession counts; trial court merged the two possession counts per buck but refused to merge each taking count into the corresponding possession count.
- State argued ORS 161.067(1) (different statutory provisions) and (3) (sufficient pause) precluded merger; Barton argued the acts were the same criminal episode and violated only one statutory provision, and the state failed to prove a sufficient pause.
- Court of Appeals concluded the taking and possession for each buck were part of the same criminal episode, that the conduct violated a single statutory provision, and that the state failed to prove a sufficient pause; convictions were reversed in part and remanded for entry of a single taking conviction per buck and resentencing.
Issues
| Issue | State's Argument | Barton's Argument | Held |
|---|---|---|---|
| Are taking and possession for each buck part of the same criminal episode? | Different objectives; killing and later possession are separate episodes. | Killing and possession served a single overarching objective of unlawfully acquiring wildlife; crimes are cross-related. | Same criminal episode; actions directed to one overarching criminal objective. |
| Does ORS 161.067(1) preclude merger because the acts violate two or more statutory provisions? | Taking and possession reference different OAR rules, so they violate multiple statutory provisions. | ORS 498.002(1) criminalizes angling, taking, hunting, trapping or possessing wildlife in violation of any rule; legislature intended a single crime. | ORS 161.067(1) does not preclude merger; the conduct violated one statutory provision. |
| Does ORS 161.067(3) preclude merger because there was a sufficient pause between taking and possession? | Killing and later possession are separated in time; the pause confronted defendant with a dead deer and afforded renunciation opportunity. | No evidence of a pause; taking can include immediate possession; possession is a continuing act. | No sufficient pause proved; possession could be simultaneous and continuous; ORS 161.067(3) does not preclude merger. |
Key Cases Cited
- State v. White, 341 Or 624 (statutory text indicates single crime rather than multiple provisions)
- State v. Gensitskiy, 365 Or 263 (distinguishing separate statutes from alternative ways to commit one crime)
- State v. Witherspoon, 250 Or App 316 (criminal episode defined by continuous conduct directed to a single objective)
- State v. Crotsley, 308 Or 272 (convictions must accurately portray nature and extent of conduct)
- Martinez v. Cain, 366 Or 136 (elements required under ORS 161.067 explained)