State v. Wilder

                                      618

       Argued and submitted December 10, 2019, affirmed July 29, 2020


                       STATE OF OREGON
                       Plaintiff-Respondent,
                                 v.
                     LARRY JAMES WILDER,
                       Defendant-Appellant.
                    Yamhill County Circuit Court
                       17CR76353; A167948
                                  

     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 496.992. 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. Held: Defendant
failed to prove that the charges arose from the same criminal episode under
any of the relevant tests. The record supports the conclusion that the charges
were neither cross-related, nor predicated on conduct directed towards a single
criminal objective, nor based on possession of contraband alone. The separate
prosecutions were permissible. Accordingly, the trial court did not err in denying
defendant’s motion.
    Affirmed.



    Ladd J. Wiles, Judge.
   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 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.
    Affirmed.
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          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, 

,

 (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, 

, 

 (2010) (citing Ball v.
Gladden, 

, 

 (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.

   1
     In relevant part, ORS 131.515 provides:
       “Except as provided in ORS 131.525 and 131.535:
       “(1) No person shall be prosecuted twice for the same offense.
       “(2) No person shall be separately prosecuted for two or more offenses
   based upon the same criminal episode, if the several offenses are reasonably
   known to the appropriate prosecutor at the time of commencement of the first
   prosecution and establish proper venue in a single court.”
620                                               State v. Wilder

         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
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   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.
622                                               State v. Wilder

      “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, 

.
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.
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                     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,

, 

 (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
examining whether the two charges arose out of the same
“act or transaction,” that is, whether they are “cross-related.” 

. We determine whether the charges are
“ ‘so closely linked in time, place and circumstance that a
complete account of one charge cannot be related without
relating details of the other charge.’ ” 

 (quoting State v.
Boyd, 

, 

 (1975)). “ ‘We construe
this test of interrelated events as necessitating joinder only
where the facts of each charge can be explained adequately
only by drawing upon the facts of the other charge.’ ” Potter,

 (quoting Boyd, 

). “ ‘[I]f a complete account of one charge necessarily includes details of
the other charge, the charges must be joined to avoid a later
double jeopardy defense to further prosecution.’ ” 

 (quoting Boyd, 

).
        The test may be simply stated: Charges are cross-related where details of one charge comprise a necessary
    2
      The other elements of a former jeopardy claim, that the prosecutor knew of
both offenses when the first prosecution commenced, and that venue was proper
in a single court, are not at issue in the current case. See ORS 131.515(2) (elements of a former jeopardy claim).
624                                           State v. Wilder

component of another. But illustrations still help. For
instance, we previously concluded that ORS 131.515(2)
required joinder for the charges of pointing a firearm at
another and felon in possession of a firearm arising from
the same domestic disturbance. State v. Gardner, 

, 

 (1985). We reasoned that, in order
for the defendant to have pointed the firearm, he necessarily
had to possess it, and that possession of the firearm, in turn,
formed the foundation for the felon in possession charge.

 The prosecutor attempted to delineate the charges by
asserting that the felon-in-possession charge was based
on the subsequent discovery of the firearm in defendant’s
vehicle, but we concluded that the charges were nonetheless
“so closely linked in time, place, and circumstance that a
complete account of one charge cannot be related without
relating details of the other.” 

, 596 n 2. We held
that pointing and possessing the gun were “so inextricably
interrelated” that ORS 131.515(2) required joinder of the
charges. 

.
         In contrast, we determined that the claims were not
cross-related in Potter, 

, where an adequate
account of one charge did not necessarily entail details of
the other. That case involved a defendant against whom the
victim had obtained a restraining order. 

. On the
day of the charged events, the defendant approached the
victim at a park. 

 That evening, the defendant appeared
again outside the house of the victim’s friend. 

. The
two argued. 

 At some point, when the victim attempted to
leave, the defendant grabbed her by her throat and threw her
against a porch post. 

 The defendant was subsequently
indicted on three counts of assault, as well as contempt of
court for disobeying the restraining order “by having personal contact” with the victim. 

 In an effort to keep the
defendant in custody, the state prosecuted him for contempt
before the trial on the assaults. 

.
         Following that conviction, the defendant moved to
dismiss the assault charges on former jeopardy grounds.

. The trial court granted his motion. 

 The state
appealed, arguing, in relevant part, that the contempt was
not a part of the same criminal episode as the assaults. 

. Although we ultimately affirmed, we concluded that the
Cite as 

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claims were not cross-related, because a complete account
of either charge would not necessarily require details of
the other. Id. at 84. The state could have shown defendant
violated the court order by proving that the defendant
approached the victim at the park or by arguing with the
victim on the porch. Id. at 85. Conversely, the state could
have proved the assault without mentioning the park or initial contact at the residence. Id. We observed, “Although it
might provide helpful context, it was not necessary for the
state to prove the existence of the restraining order in prosecuting the assault charges against defendant.” Id. Because
the charges were not “necessarily cross-related,” and because
“it was possible for the state to prove” each offense without
facts of the other, the case did not implicate former jeopardy
under the first test. Id. at 84 (emphases in original).
         Similarly, we conclude that the charges were not
necessarily cross-related in this case. A complete account
of the unlawful hunting charge did not necessarily include
details of the felon in possession of a firearm. Defendant
shot a deer out-of-season with a rifle. The shotgun played no
part in that crime. By defendant’s own account, he brought
the shotgun for a purpose other than deer hunting; he
brought it to hunt birds in the event that they would see
any. Defendant did not bring the shotgun when he left the
van to hunt deer. He stowed it in the van, and that is where
it remained the entire time. Likewise, the state could prove
that defendant was a felon in possession of a firearm without relating details of the conduct constituting unlawful
hunting, his using a rifle to shoot a deer. Twitchell pulled
the van over on suspicion of trespass. He observed the shotgun, which defendant admitted to owning. Although the
report of trespass, which provided probable cause for that
stop, indicated that the men had been hunting, the state did
not necessarily need to present evidence of defendant actually shooting a deer to prove that defendant possessed the
shotgun.
         Defendant urges us to conclude that the charges
are cross-related because his having been hunting tended
to show that he possessed a firearm, and vice versa. He contends that he would need to inquire into surrounding facts
of the hunting incident to mount a defense to the possession
626                                                          State v. Wilder

charge, and that the court relied on the fact that he took
his guns to go hunting to find that he possessed a firearm
that was operational.3 However, charges need not be joined
“simply because factual details of one charge are admissible at trial on the other charge.” Id. (emphasis in original);
see also State v. Nguyen, 

, 

, rev den, 

 (1989) (same). Although defendant’s
hunting might “provide helpful context,” it “was not necessary” for the state to prove the elements of felon in possession. Potter, 

. Because “it was possible for
the state to prove” felon in possession of a firearm without
relating details of shooting a deer off-season, the claims are
not cross-related. 

 (emphasis in original).
         We recognize that Gardner would be significant
here had the possession charge involved the same firearm
as defendant used to hunt deer, the rifle.4 That alternative
prospect, akin to Gardner, would have involved an offense
that necessarily involved the firearm that the defendant
soon after possessed in a vehicle. In the case at hand, however, defendant’s possession charge involved a different
weapon. Consequently, neither charge required facts of the
other, and the charges are not cross-related.
B. Same-Criminal-Objective Test
         The second test for former jeopardy is the “same
criminal objective” test. Dulfu, 

. It focuses
on the statutory definition of a “single criminal episode.” It
asks whether the charges involve “continuous and uninterrupted conduct that establishes at least one offense and is
so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal
objective,” ORS 131.505(4). 

. Several factors may

     3
       That a firearm be functional is not a required element. ORS 166.210
provides that a firearm “means a weapon, by whatever name known, which is
designed to expel a projectile by the action of power.” That definition formerly
included a requirement that the weapon be “readily capable of use as a weapon,”
ORS 166.210 (2007), amended by Or Laws 2009, ch 610, § 4, i.e., “operable,” State
v. Sumpter, 

, 

 (2009).
     4
       Twitchell’s probable cause statement indicates that he arrested defendant
for felon in possession of a firearm based on the rifle, and it makes no mention of
the shotgun. However, defendant does not argue that that has any legal significance, and the state ultimately prosecuted the charge based on the shotgun.
Cite as 

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bear on that question, including: (1) whether the conduct
comprising the offenses is continuous and uninterrupted,
(2) the extent to which it is temporally and spatially linked,
and (3) whether it is designed to serve a single criminal
objective. Potter, 

. Where the record supports the inference that the offenses involved separate acts,
the mere fact that evidence is found at the same time and
place does not mean the offenses involved continuous and
uninterrupted conduct or a single criminal objective. Welsh
v. Taylor, 

, 

, rev den, 

 (2017).
         “[O]ur analysis of whether conduct is directed to
the accomplishment of a single criminal objective is an
objective determination.” 

 at 394 (citing Commentary
to Criminal Law Revision Commission Proposed Oregon
Criminal Procedure Code, Final Draft and Report § 26, 17
(Nov 1972) (internal quotation marks omitted)). “In determining a defendant’s ‘criminal objective,’ our focus is on the
‘singleness’ of a defendant’s criminal objective based on the
defendant’s criminal conduct.” Id. at 394 (quoting State v.
Cloutier, 

, 

 (1979)). A “critical
factor in treating criminal conduct as a unitary event is not
the coincidence of time, place, and circumstance, but the
resulting inference that the conduct is directed to the accomplishment of a single criminal objective.” 

 (emphases in
original; ellipses and internal quotation marks omitted).
The state cannot parse criminal objectives too finely, such
as by distinguishing between various motivations behind a
particular course of conduct. State v. Witherspoon, 

, 

 (2012). At the same time, it
can divide objectives by immediate goals, as opposed to overarching and distant ones. Welsh, 

.
         Our analysis in Witherspoon is illustrative. That
case involved an incident of domestic abuse that spanned
several hours, in which the defendant shook the victim in
their living room, pulled a knife out of a drawer in their
kitchen, and threw the victim against a bookshelf in their
child’s room. The state charged defendant with fourthdegree assault and menacing. Witherspoon, 

. We concluded that the charges arose from a single
criminal episode. We observed that the charges involved
628                                           State v. Wilder

continuous and uninterrupted conduct, linked by the victim
attempting to flee the abuse by running from one room to the
next, and the defendant pursuing her, thwarting her escape,
and resuming the abuse. 

. We determined that
the record contained no evidence to show an interruption.

 We also noted that the charges shared a common criminal objective of harassing and injuring the victim through
physical and emotional abuse; although, over the course of
the night, the defendant was reacting to different alleged
actions by the victim—failing to wake him, leaving a window open, searching his office, committing marital infidelity, engaging in illegal drug use, and attempting to leave the
house with their child—we cautioned against “improperly
pars[ing] defendant’s criminal objective.” 

. We concluded that, because the charges arose from continuous and
uninterrupted conduct that was joined in time, place, and
circumstances and that shared a common criminal objective, it would have violated double jeopardy principles to
prosecute the defendant separately for them. 

.

         In Welsh, we distinguished Witherspoon and reached
the opposite result. In that case, police, while executing
two warrants, discovered in the petitioner’s residence large
quantities of heroin in separate backpacks, methamphetamine, scales, packaging materials, detailed drug records,
$3,000 in cash, and six firearms. 

. The
petitioner told police that he had been selling methamphetamine, and that he had received the firearms as collateral
or trade for drugs. 

 The petitioner was indicted for several offenses, and, pursuant to negotiations, pleaded guilty
to two drug-delivery offenses, one based on methamphetamine and the other on heroin, as well as three counts of
felon in possession of a firearm. 

 The trial court imposed
two consecutive sentences of 45 months’ imprisonment for
each drug crime. 

. It then sentenced the petitioner
to 30 months’ imprisonment for each firearm charge, to be
served concurrently with one another but consecutively with
the drug-crime sentences. 

        The question eventually came before us whether
the petitioner’s convictions involved the same criminal
episode, such that the sentences could not be imposed
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consecutively.5 Id. at 393-94. The petitioner argued against
a narrow construction of a single criminal episode, contending that his conduct involved the one criminal objective of running a drug-dealing enterprise. Id. at 395. He
claimed that separating the criminal objectives for each
crime constituted improper parsing under Witherspoon.
Id. at 395, 399. The petitioner noted that the police discovered the evidence on the same date at the same location,
and that his conduct was continuous and uninterrupted.
Id. at 395.

         We disagreed with that analysis. We explained
that, where the record contains evidence that the offenses
involved separate acts, the mere fact that evidence is found
at the same time and place does not mean that the offenses
involved continuous and uninterrupted conduct. Id. at
397-99. For that proposition, we relied on two cases: State
v. Collins, 

, 

 (1990),
overruled on other grounds by State v. Torres, 

, 

 (2012), in which we held that two counts
of unlawful possession of firearm, based on two handguns,
placed under the driver and passenger seats of a car, respectively, were not directed at a single criminal objective, as
“the handguns were two separate objects, and there was
evidence, such as placement of the guns in different parts of
the pickup, that they were concealed by separate acts”; and
State v. Padilla, 

, 

 (1993), in
which we concluded that, “[f]inding more than one weapon in
a single location is not the equivalent of offenses committed
in a continuous and uninterrupted course of conduct,” where
the evidence indicated that the defendant had allowed his
nephews to use the firearms separately. We noted the evidence that the drugs and firearms were placed in different

    5
       We explained how the issue arose in the sentencing context:
          “Under OAR 213-012-0020(2)(a)(B), when a trial court imposes consecutive sentences, it must ‘shift to column I’ on the criminal history scale for
     all sentences that the court imposes consecutively to its sentence for the ‘primary offense.’ The shift-to-I rule applies only when consecutive sentences are
     imposed for crimes that arise from a ‘single criminal episode.’ In determining
     whether the shift-to-I rule applies, we rely on the statutory definition of ‘criminal episode’ that governs our double jeopardy analysis, ORS 131.505(4).”
Id. at 393 (footnote and some citations omitted).
630                                           State v. Wilder

locations throughout the residence, that the firearms were
collateral or trade in drug transactions, and that the petitioner had multiple buyers and sellers. Welsh, 

. That record supported the finding that the offenses
involved separate acts and that the petitioner’s conduct was
not “continuous and uninterrupted” and “so joined in time,
place, and circumstances” as to constitute a single criminal
episode.” 

          We also concluded that the record supported the
finding that the petitioner’s conduct was aimed toward the
accomplishment of multiple criminal objectives. 

 We reasoned that, although the “petitioner may have formed a distant or overriding goal to ‘engage in a drug-dealing enterprise,’ ” the record supported the “determination that his
delivery of each controlled substance and his possession of
the firearms were in pursuit of more immediate and separate criminal objectives.” 

. We explained, “To conclude otherwise would permit a defendant to convert any
number of deliveries over a given period of time to a single
criminal episode merely by forming an intent to ‘engage in
a drug-dealing enterprise’ in advance,” which “would not
make sense.” 

 (internal quotation marks omitted). We
concluded that the petitioner’s “generalized argument that
we have viewed the term ‘criminal episode’ more broadly in
cases such as Witherspoon” failed to show that “those cases
would dictate a different result.” 

.

          Returning to the case at hand, we note that defendant argues that both charges arose from a continuous and
uninterrupted course of conduct. He emphasizes, in particular, that his possession of the firearm was a continuing
offense. He claims that very little time or space divided the
two offenses. Finally, defendant contends, his hunting and
possession of the shotgun served a single greater objective of
facilitating a father-son hunting trip.

        We conclude that the offenses here involved distinct
acts and objectives, such that they formed multiple criminal
episodes. As in Welsh, the evidence supports the trial court’s
finding that the offenses involved discrete acts. Defendant
acquired from separate sources the rifle that he used to
Cite as 

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shoot the deer and the shotgun that he possessed; he borrowed the former from a friend; and he inherited the latter
from his father. Defendant placed the weapons, as police
found them, in the van at different times; he stowed the
shotgun in the van before hunting; and he returned the rifle
to the van after hunting. The shooting of the deer occurred
in a location away from the van, and it involved a different weapon. Time elapsed between defendant shooting the
deer and returning to the shotgun. He pursued the deer on
neighboring land and had an altercation with the property
owner’s daughter in the interim. Those were separate acts.
As was true in Welsh, the fact that police discovered that
defendant was felon in possession of a firearm at the same
time and place as the other offense does not automatically
mean that the charges arose from a continuous and uninterrupted course of conduct.
         Indeed, the mere coincidence of time, place, and
circumstance does not, in and of itself, make the conduct
a unitary event. We must consider whether the conduct is
directed to the accomplishment of a single criminal objective. Welsh, 

. Although defendant may
have formed an overriding goal to facilitate a father-son
hunting trip, the record supports the determination that
his unlawful hunting and possession of the shotgun were in
pursuit of more immediate and separate objectives, shooting a deer and hunting birds. Defendant’s conduct did not
demonstrate the singleness of objective seen in Witherspoon.
Whereas Witherspoon involved ongoing abuse directed at one
individual, defendant’s conduct entailed disparate acts and
varying targets. In that respect, defendant’s conduct resembled that of the petitioner in Welsh, who possessed controlled
substances and firearms for the purpose of drug deals with
multiple buyers and sellers. Given that similarity, we reject
the argument, as we did before, that the state engaged in
improper parsing of objectives by separating charges of that
nature. To conclude otherwise would allow a defendant to
convert numerous wildlife violations or firearm offenses into
a single criminal episode by merely forming a broad intent
to foster family bonding through hunting. For the purposes
of the former jeopardy, a criminal objective is not abstracted
to that level of generality.
632                                             State v. Wilder

         Under the criminal objective test, the record supports the trial court’s conclusion that the charges arose from
separate criminal episodes. Defendant’s conduct entailed
discrete acts that were directed to the accomplishment of
distinct criminal objectives. Although defendant’s possession
of a firearm was a continuing offense which was discovered
along with the hunting violation, and although he possessed
the shotgun in furtherance of a broad and overarching goal
to cultivate a father-son relationship through hunting, the
conduct was not continuous and uninterrupted and so joined
in time, place, and circumstances as to be directed to the
accomplishment of a single criminal objective.
C. Possession of Contraband
         The third test for former jeopardy addresses charges
based on possession of contraband in particular. Dulfu, 

. In such cases, mere “possession of multiple items
of contraband at the same time and place constitutes a
‘single episode.’ ” 

 (citing Boyd, 

). That
is because possession charges are “not based on separate
‘relatable events,’ but rather a ‘single condition.’ ” 

 at 671
(quoting Boyd, 

). Further, the “criminal code
treats the fact of possession as a criminal act of continuing nature.” Boyd, 

. Thus, “[o]nce unlawful
possession of goods, without more, is recognized as criminal conduct, there is no reason for fragmenting the criminal conduct into as many parts as there are different items
of property, however acquired.” 

. In contrast,
where the defendant is charged with actual acts culminating in the possession, multiple prosecutions are allowable.
State v. Oliver, 

, 

 (1976).
         Unlawful possession of contraband, alone, constitutes a single criminal episode, even where it involves discovery of multiple items in one time and place. Dulfu, 

. For example, in Boyd, 

, police discovered
amphetamines and a stolen television during a search of the
defendant’s house. The state indicted the defendant separately for theft and criminal activity in drugs. 

 The defendant was tried for theft based solely on her having retained
and concealed the television at the time of the search.

. Following an acquittal, she moved to dismiss
Cite as 

 (2020)                              633

the drug-crime indictment on former jeopardy grounds, the
trial court granted that motion, and the state appealed. 

         The Supreme Court held that simultaneous possession of two distinct types of contraband at the same time
and place constitute a unitary act or transaction, requiring joinder of charges. Id. at 570-71. The court explained,
“[h]ad defendant been charged with the actual theft of
the television set on one occasion and the illegal drugs at
another time, it would be clear enough that the events would
be unrelated and therefore obviously not unitary.” Id. at
570. However, that was not what occurred; “the state did
not charge defendant with the acts which eventually culminated in defendant’s possession of the television set and the
drugs.” Id. Instead, the charge was “a single charge of illegal
possession of goods at one time and place.” Id. Accordingly,
the court concluded, treatment of the charges as a single
episode was proper. Id. at 571.
         Consistent with those principles, we determined, in
Oliver, that separate prosecutions were permissible where
the state prosecuted the defendant for the conduct underlying his possession of contraband. 

. Police
discovered a steer and an elk hanging side-by-side in the
defendant’s shed. 

. The defendant and an accomplice admitted to officers that they had shot the steer, put it
in their car, and then, while driving, had “come upon and hit
an elk.” 

 The two were cited, tried, and convicted of illegal
possession of elk. 

 Two months later, the state indicted
the defendant for theft of the steer. 

 The trial court dismissed that indictment on the ground of former jeopardy,
and the state appealed. 

         We concluded that the two offenses did not arise
from the same criminal episode. 

 We explained that, “if
the theft charge were based on defendant’s mere possession of the steer, i.e., its retention and concealment,” then
the “possession of the steer and the possession of the elk at
the same time and place would constitute a single condition
which, for the purposes of the Boyd test, is the equivalent
of relatable events as far as barring multiple prosecutions.”

. However, the circumstances of the case were
“entirely different” from those in Boyd., in that the charges
634                                                       State v. Wilder

shared no close link in time and place, and the “defendant
was charged with the act which culminated in his possession of the steer, i.e., theft.” 

 For that reason, prosecution
for the elk possession did not bar the prosecution for livestock theft. 

 We reversed and remanded. 

.
         We draw a similar distinction in the case at hand,
concluding that prosecution for unlawful hunting did not
preclude subsequent prosecution for felon in possession of a
firearm. Significantly, the state based the unlawful hunting
charge on defendant’s conduct, not mere possession of contraband. Defendant admitted to Twitchell that he had shot a
deer with his rifle. The state charged defendant with “hunting deer during a closed season,” and defendant pleaded
guilty to that charge. At defendant’s plea hearing, the state
described that conduct, namely, “defendant shooting a deer”
and attempting to “get it,” despite the fact that “the season
had closed.” 6 This case would more closely resemble Boyd if
the charges were predicated on defendant’s mere possession
of the deer and weapons. As in Oliver, however, the state
prosecuted defendant for the act that culminated in the
offense. For that reason, we conclude that the two offenses
did not arise from mere possession of contraband at the
same time and place.
                         III.    CONCLUSION
         We conclude that defendant failed to prove that his
offenses of unlawful hunting and felon in possession of a firearm involved conduct arising from a single criminal episode.
The record supports the conclusion that the charges were
not cross-related, predicated on conduct directed towards
a single criminal objective, or based on possession of contraband alone. The state did not violate ORS 131.515(2) in
prosecuting the charges separately, and the trial court did
not err in denying defendant’s motion to dismiss on those
grounds.
           Affirmed.


    6
      In the first prosecution, the state never specified the weapon with which
defendant unlawfully hunted. It is undisputed, however, that he shot the deer
with the rifle.