S057014, Opinion — State v. Hogevoll

104
Argued and submitted November 3, 2009, decision of Court of Appeals and
judgment of circuit court affirmed April 1, 2010
STATE OF OREGON,
Respondent on Review,
v.
BENSON L. HOGEVOLL,
Petitioner on Review.
(CC 055715; CA A134536; SC 8057014)
228 P3d 569

Cite as 348 Or
CJS, Game § 10.
En Banc
On review from the Court of Appeals.*
Jesse Wm. Barton, Salem, argued the cause and filed the
brief for petitioner on review.
Denise G. Fjordbeck, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* Appeal from the Lincoln County Circuit Court, Michael J. Gillespie, Judge.
223 Or App 526. 196 P3d 1008 (2008).

106
GILLE'ITE, J.
This criminal case arose out of a 2005 second-season
coast bull elk hunt. Defendant shot and hauled from the field
an elk for which he had a tag, but he also took possession of a
second elk for which he did not have a tag, which someone
also had shot and killed. Defendant was charged by a
"Uniform 	Fish/Wildlife 	Citation 	and 	Complaint" 	with
"exceeding bag limit on coast bull elk." At defendant's trial,
the trial court refused to give a special instruction that defen-
dant requested, which would have told the jury that, to be
guilty of"exceeding [the] bag limit," defendant would have to
be found to have personally and knowingly killed both elk.
The trial court instead gave an instruction, to which defen-
dant excepted, to the effect that, to find defendant guilty of
"exceeding the bag limit," the jury must find that he "took"
more than one elk. The jury found defendant guilty. He
appealed his conviction, arguing that the trial court had
erred in both respects. A divided Court of Appeals affirmed.
State u. Hogeuoll, 223 Or App 526, 196 P3d 1008 (2008). We
allowed defendant's petition for review and now affirm.
Because this is a case involving jury instructions, we
state the facts in the light most favorable to defendant. See
State u. Oliphant, 347 Or 175, 178, 218 P3d 1281 (2009)
(court views evidence in light most favorable to establish-
ment of facts necessary to require giving requested instruc-
tion). Defendant was hunting on his own property for a
second-season coast bull elk. He wished to shoot a particular
elk with five-point antlers that was grazing in a field with a
number of other elk. Defendant fired at the chosen elk twice
before it collapsed. After waiting for some time, defendant
approached the elk, put his tag on it, and gutted it, which
took about half an hour. On the way to retrieving his vehicle
to haul the elk out of the field, defendant saw a bull elk with
seven-point antlers lying dead in a ditch. Defendant testified,
"I figured at the time that I screwed up, that I somehow shot
that elk, that seven-point."
Defendant did not have a second elk tag. He never-
theless hauled the seven-point elk to his residence and then
gave it to a neighbor who had a valid elk tag. Defendant
explained to the neighbor that he thought that he had shot

Cite as 348 Or 104 	107
through the five-point elk and into the seven-point elk, and
that he was giving the elk away because he wanted to con-
tinue hunting. Defendant later retrieved the five-point bull
elk, dressed it, and refrigerated it.
The matter came to the attention of the state police,
which investigated. Defendant initially told the investigator
that he believed that he had shot the five-point elk twice, but
that one of the bullets had passed through, striking the
seven-point elk. Defendant acknowledged that he should
have tagged just one elk and called the state police about the
second one. Defendant also stated to the investigator that he
did not call the authorities because he wanted the meat to go
to "somebody that might enjoy it and utilize it." A few days
later, defendant changed his theory about what had hap-
pened and told the investigator that he did not know how the
second elk was killed.1 As noted, the state, by a Uniform Fish/
Wildlife Citation and Complaint, charged defendant with
exceeding the bag limit on coast bull elk (former OAR 635-
065-0001 (2005)). 2
At trial, defendant requested a jury instruction that,
to exceed the bag limit, a person must knowingly kill more
than one elk in a single season. 3 The trial court declined to
give the requested instruction and, instead, instructed the
1 The change of mind may have been prompted by the neighbor who received
the seven-point elk opining to defendant that the location of the bullet holes cast
doubt on defendant's responsibility for killing the seven-point elk.
2 Defendant acknowledges that former OAR 635-065-0001(2) (2005) incorpo-
rated by reference the 2005 Oregon Big Game Regulations, making a violation of
the 2005 Big Game Regulations also a violation of former OAR 635-065-0001.
Defendant further acknowledges that, by virtue of the provisions of ORS
496.992(1), such a violation becomes a Class A misdemeanor.
" Defendant requested the following instruction:
"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 sec-
ond season for coastal bull elk."

108 	State v. Hogevoll
jury that a person exceeds the bag limit on coast bull elk by
taking more than one elk. 4 Defendant excepted to that
instruction. As noted, the jury ultimately found defendant
guilty, and defendant appealed, assigning error both to the
trial court's refusal to give the jury instruction requested by
defendant and to the court's instruction to the jury that
defined the crime using "to take" as the operative verb. 5 Also
as noted, a divided Court of Appeals affirmed. Hogeuoll, 223
Or App 526.
"In determining whether it was error to give a partic-
ular instruction, we read the instructions as a whole to deter-
mine 	whether they 	state 	the 	law 	accurately." State 	u.
Woodman, 341 Or 105, 118, 138 P3d 1 (2006). Defendant dis-
putes neither that he took from the field and processed
two elk, nor that he possessed only one elk tag when he did
so. Defendant asserts, however, that, under Oregon law, one
does not commit the crime of exceeding the bag limit for coast
second-season elk unless one knowingly kills more elk than
the law and regulations authorize; by contrast, he asserts,
merely taking possession o{ an already dead animal does not
violate the rule under which he was prosecuted.
Defendant correctly points out that neither former
OAR 635-065-0001 (2005), 6 nor the 2005 Oregon Big Game
4 The trial court instructed the jury:
~ 'Take' means to kill or obtain possession or control of any wildlife.
"* * * * *
"The* * 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 	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."
Defendant did not (and does not) assign error to the form or content of the
charging instrument-in this case, the Oregon Uniform Fish/Wildlife Citation and
Complaint. It follows that the only issues before this court concern the jury instruc-
tions, whether given or refused.
"Former OAR 635-065-0001(2) (2005) provided:
"OAR chapter 635, division 065 incorporates, by reference, the require-
ments for hunting game mammals set out in the document entitled '[2005]

Cite as 348Or104 	109
Regulations that are incorporated by reference in that rule,
expressly define the phrase "bag limit." Defendant argues
that the phrase is ambiguous and that its meaning is best
understood by considering the definition of a "tag."
Defendant's reasoning, as we understand it, is this:
A "tag" is required to hunt elk legally. See OAR 635-045-
0002(68) (tag is document authorizing "taking" of designated
kind of mammal at specified time and place); OAR 635-065-
0015( 1) (any person hunting game mammals, for which tag is
required, must have on his or her person valid tag for dates,
area, 	and species being hunted); OAR 635-045-0002(68)
(defining "tag" as document authorizing taking of designated
kind of mammal at specified time and place); and OAR
635-065-0015(5)(c) (person may possess only one valid coast
second-season elk tag). Defendant then reasons that, because
all the references to "tags" for elk are related to hunting
with a weapon, 7 only those animals that are killed by a
hunter may be counted toward the bag limit. We are not
persuaded.
In construing an administrative rule, we apply the
same analytical framework that applies to the construction of
statutes. See Osborn v. PSRB, 325 Or 135, 145-46, 934 P2d
391 (1997) (citing PGE v. Bureau of Labor and Industries,
317 Or 606, 610, 859 P2d 1143 (1993)). At the first level of
analysis, we examine the text and context of the rule to
discern the intent of the 	agency. Marshall's 	Towing v.
Department of State Police, 339 Or 54, 62, 116 P3d 873
Oregon Big Game Regnlations,' into Oregon Administrative Rules. Therefore,
persons must consult the '[2005] Oregon Big Game Regnlations' in addition
to OAR chapter 635, to determine all applicable requirements for game
mammals."
7 See, e.g., OAR 635-065-0015(1) ("any person hunting game mammals for
which a tag is required must have on their person a valid tag for dates, area and
species being hunted"); see also 2005 Big Game Regulations at 13 ("No person shall:
Hunt with a centerfire * * * rifle without a valid, unused * * * elk tag for that time
period and area on that person during* * *coast bull elk seasons; 	* *; [t]he 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***."); id. at 74 (''You may only
huut one of the elk seasons listed on this page. Make sure you purchase or redeem
the correct tag for the season you want to hunt prior to the earliest hunt date."); id.
at 76 ("It is unlawful to hunt with a centerfire * * *rifle without a valid, unused elk
tag*** during*** [c]oast bull elk centerfire firearm seasons.").

110 	State v.
(2005). As is true with respect to a statute, terms of common
usage within the text of a rule generally should be given their
plain, natural, and ordinary meaning unless specifically
defined or used in some other way. See State u. Murray, 340
Or 599, 604, 136 P3d 10 (2006) ("Absent a special definition,
we ordinarily would resort to dictionary definitions, assum-
ing that the legislature meant to use a word of common usage
in its ordinary sense."). With that process in mind, we turn to
the term at issue.
As noted, no rule defines the phrase "bag limit,"
although its actual definition in the context of this case is not
subject to serious question. The 2005 Oregon Big Game
Regulations provided, at 75, that the "bag limit" for the hunt
in which defendant was engaged was "one bull elk with visi-
ble antler." Footnote one directs the reader to look to the pre-
ceding page, 74, to find the pertinent "bag limit definitions."
Text within a box on that preceding page contains the follow-
ing statement:
"ELK BAG LIMIT DEFINITIONS:
"* * * * *
"Bull elk 	Bull elk with at least one visible antler."
The foregoing suggests that the phrase "bag limit" is
simply a shorthand way of referring to the number of animals
that lawfully may be taken by a hunter during a particular
hunting season. Dictionary definitions support that under-
standing. Webster's Third New Int'l Dictionary 162 (una-
bridged ed 2002), defines "bag limit" as "the maximum num-
ber of fish or game animals permitted by law to be taken by
one person in a given period." As a noun, "bag" is defined, in
part, as:
"4 : something that is bagged: as * * * b : a quantity of game
taken during a particular hunt or during a particular
period usu. by one person 'the - included an elephant, and a
magnificent male tiger>; often : the amount of game permit-
ted (as by law) to be taken by one hunter <he got his - early
and was home before lunch> c : something likened to the bag
taken by a hunter or fisherman esp. in being won, captured,
seized or otherwise taken by personal effort[.]"

Cite as 348 Or 104 (2010) 	111
Id. As a verb, "bag'' is defined, in part, as
Id.
"3 a : to take (animals) as game: to kill or capture (game)
<he bagged a fine IO-point buck> b : to get possession of esp.
by strategy or stealth."
As is apparent from those dictionary definitions, the
plain understanding of"bag limit" does not confine that con-
cept to animals killed by a hunter, but also includes animals
otherwise taken by a hunter during an authorized hunt. And,
in contrast to the absence of a definition of "bag limit," an
Oregon statute does expressly define the term "take." That
term means "to kill or obtain possession or control of any
wildlife." ORS 496.004(16) (emphasis added).
A number of other statutory provisions provide fur-
ther context-assuming more were needed-for ascertaining
the meaning of "bag limit." Most importantly, ORS 498.002
declares wildlife to be the property of the state and prohibits
"taking" or "possessing" any wildlife in violation of the wild-
life laws or regulations. 8 ORS 496.162 sets forth the criteria
for the State Fish and Wildlife Commission's determination
of the number of elk that may be "taken" annually-a num-
ber that translates into the number of tags that can be
issued. The statute also expressly utilizes the term "hunting"
as only one of the methods by which elk may be "taken.''9
Finally, ORS 497.075 prohibits "taking" game without a valid
8 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 promul-
gated pursuant thereto."
9 ORS 496.162 provides, in part:
"(1} After investigation of the supply and condition of wildlife, the State
Fish and Wildlife Commission, at appropriate times each year, shall by rule:
"(a) Prescribe the times, places and manner in which wildlife may be
taken by angling, hunting, trapping or other method and the amounts of each of
those wildlife species that may be taken and possessed.
"* * * * *
"( 4) In carrying out the provisions of this section, before prescribing the
numbers of deer and elk to be taken** *."
(Emphasis added.)

112 	State v.
license, tag or a permit to do so. 10 Thus, the systematic use of
the expressly defined term "take," coupled with the designa-
tion of "hunting"11 as only one of the methods of "taking,"
makes it clear that the legislature did not intend to restrict
the methods by which the limits of a "bag'' can be reached to
shooting and killing alone. It follows that a person may be in
possession of more elk than permitted by the "bag limit,"
even if that person has not intentionally killed each animal.
It is sufficient that a person's "bag" exceeds the legal "limit"
and that the person is aware of how many animals he or she
possesses.
Defendant contends that such a broad construction
of the term "bag limit" would criminalize conduct that the
Commission 	intended 	to 	make 	lawful-for 	example,
possession of a found or road-killed animal with the permis-
sion of the state police. However, that contention is answered
by 	directions 	contained in the 	2005 	Oregon Big Game
Regulations. That document requires that a person finding a
dead animal notify the state police; it does not authorize the
state police to permit a private person (and still less a person
who already had shot another elk) to take possession of a car-
cass or to make a decision respecting how to dispose ofit. Id.
at 13. Had defendant notified the police on finding the second
elk, the meat would have been donated to a charity or other-
wise appropriately disposed of. See OAR 635-002-0005 (so
stating). 12 Thus, defendant's assertion (which echoes the dis-
sent in the Court of Appeals) that our construction of the
10 ORS 497.075(1) provides:
"Except as provided in subsections (2), (3) and (4) of this section, no person
shall angle for, take, hunt or trap, or assist another in angling for, taking,
hunting or trapping, any wildlife unless the person has in possession such
valid licenses, tags and permits therefore as the State Fish and Wildlife
Commission issues."
' 1 To "hunt" is to "take or attempt to take any wildlife by means involving the
use of a weapon or with the assistance of any mammal or bird." ORS 496.004(10);
OAR 635-045-0002(68).
12 OAR 635-002-0005 provides:
"Carcasses of edible wildlife, except black bear, shall be disposed of in the
following manner:
"(1) Donated to public and charitable institutions such as welfare organi-
zations, churches, and others provided the receiving agency pays all storage
and handling charges and does not sell the meat.

Cite as 348 Or 104 	113
term "bag limit" would or could lead to an absurd result-the
carcasses of edible wildlife going to waste-is not well taken.
It 	follows 	from 	the 	foregoing 	that 	defendant's
requested instruction was not a correct statement of Oregon
law. The trial court thus did not err in refusing to give it. And,
because defendant's objection to the instruction that the trial
court did give was based on the same erroneous theory, the
trial court also did not err in giving that instruction. The
Court of Appeals decision affirming the trial court in both
respects was correct.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
-----··---..-------------
"(2) Donated to persons determined to be eligible because oflow income or
medical reasons, provided the eligible person requests and accepts the carcass
as delivered, consumes the meat at his/her place of residence, and does not
offer it for sale.
"(3) Donated to wildlife rehabilitators licensed by the Department pro-
vided those rehabilitators use the meat to feed sick, injured or orphaned wild-
life and do not sell the meat.
"( 4) Donated to rendering plants, pet food manufacturers or disposed of as
specified by personnel of the Department."