Opinion
A180283
10-16-2024
STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL JAMES PFAU, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Bruce A. Myers, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted August 28, 2024
Clackamas County Circuit Court 21CR06845; A180283 Ann M. Lininger, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Bruce A. Myers, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, fled the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge.
SHORR, P. J.
Defendant appeals from a judgment of conviction for second-degree trespassing, assigning error to the trial court's sentencing decision to revoke his hunting license for 36 months pursuant to ORS 497.415. For the following reasons, we reject defendant's assignment of error and affirm the judgment of the trial court.
A full recitation of the facts would not benefit the bench, the bar, or the public. Defendant was charged by information with one count of a criminal wildlife violation, ORS 498.002 (Count 1), and one count of criminal trespass in the second degree, ORS 164.245 (Count 2). The information alleged that defendant violated ORS 498.002 by assisting another in hunting while intentionally trespassing. The information further alleged that defendant violated ORS 164.245 by unlawfully and knowingly entering or remaining upon property closed to the public. At trial, the jury acquitted defendant on Count 1 but found defendant guilty on Count 2. At the sentencing hearing, pursuant to ORS 497.415, the trial court suspended defendant's hunting license for 36 months. ORS 497.415 allows a court to revoke a hunting license in limited circumstances, including, as relevant here, when a person is convicted of a violation of ORS 164.245, committed while the person was hunting.
Defendant asserts first that the jury's acquittal on the wildlife violation charge of hunting while trespassing precluded the trial court from revoking his hunting license under ORS 497.415. Second, defendant contends that the state violated his right to a jury under Article I, section 11, of the Oregon Constitution when it revoked his hunting license. At a minimum, defendant contends that the trial court plainly erred by suspending his license without a jury determination that he was hunting. "We review a trial court's sentencing decision for errors of law." State v. Banks, 246 Or.App. 109, 111, 265 P.3d 50 (2011).
Article I, section 11, of the Oregon Constitution provides, in relevant part, "In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury ***."
Defendant argues that the jury's acquittal on the wildlife charge precluded the trial court from making the determination that defendant was hunting, which was necessary to revoke his hunting license under ORS 497.415. We disagree. The trial court's determination that defendant was hunting was based on a preponderance of the evidence. See State v. MacNab, 334 Or. 469, 480, 51 P.3d 1249 (2002) (listing driver license suspensions and Oregon State Bar suspensions as "civil sanctions"); see also Jackson County v. Roark, 124 Or.App. 505, 507, 863 P.2d 491 (1993), rev den, 319 Or. 36, cert den, 513 U.S. 899, 115 S.Ct. 255, 130 L.Ed.2d 176 (1994) (concluding that the applicable burden in a civil penalty proceeding brought under Oregon's drug paraphernalia laws is proof by a preponderance of the evidence). The trial court's determination under that lesser standard was not inconsistent with the jury's decision that the state had not proved all of the elements of the wildlife violation beyond a reasonable doubt. See State v. Mendez, 211 Or.App. 311, 323, 155 P.3d 54, rev den, 343 Or. 160 (2007) (concluding that different triers of fact applying different standards of proof can "render different findings of the same fact without any inconsistency"); see also United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362,104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (stating that an acquittal in a "criminal action [does] not negate the possibility that a preponderance of the evidence could show" that defendant was engaged in the conduct at issue). The jury's acquittal on the wildlife violation of hunting while trespassing did not preclude the trial court from determining that defendant was hunting for purposes of revoking his hunting license.
Defendant argues next that he has a state constitutional right to a jury determination that he was hunting before the state may revoke his hunting license. He contends that that argument is preserved, but in the event that we disagree, he requests plain error review. Having reviewed the record, we conclude that that argument is unpreserved, as defendant did not raise before the trial court any argument regarding his right to a jury trial on that issue. See State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000) (stating that to preserve an issue for appellate review, a party must provide the trial court with an "objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error"). Furthermore, we conclude that any error is not plain. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991) (stating that the error must be "obvious" and "not reasonably in dispute"). Defendant cites no law providing the right to a jury in a hunting license revocation proceeding, and it is not obvious that defendant has such a right.
For the reasons discussed above, we conclude that the trial court did not err in suspending defendant's hunting license.
Affirmed.