State v. Jones

No. 201                 March 27, 2024                       651

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               JOEL CHARLES JONES, JR.,
                   Defendant-Appellant.
                Curry County Circuit Court
                   21CR56446; A178811

   Cynthia Lynnae Beaman, Judge.
   Submitted February 26, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   POWERS, J.
   Affirmed.
652                                             State v. Jones

        POWERS, J.
         Defendant was convicted of unlawful taking of
wildlife (Count 1), ORS 496.996, hunting during prohibited
hours (Count 2), ORS 498.002, hunting without a big game
tag (Count 3), ORS 497.075, and hunting without a resident
hunting license (Count 4), ORS 497.075, after being caught
in an Oregon State Police decoy operation near Gold Beach.
On appeal, defendant raises two assignments of error challenging the denial of his suppression motion and the denial
of his motion for judgment of acquittal on Counts 2, 3, and 4.
For the following reasons, we affirm.
         Because the parties are aware of the underlying
factual and procedural history, we do not provide a recitation of those details for this nonprecedential memorandum
opinion.
          In the first assignment, defendant contends that
the trial court erred in denying his motion to suppress his
statements. Before the trial court, defendant made an oral
motion to suppress evidence during closing argument, specifically asserting that he was under “constructive custody”
and that, as a result, he should have been given Miranda
warnings. On appeal, however, defendant argues that
Miranda warnings were required because he was in compelling circumstances. The state contends that defendant’s
argument is unpreserved and that, in any event, the argument fails on the merits.
          It is well settled that the purposes of the preservation requirement are (1) to apprise the trial court of a party’s
position such that the court can consider and rule on the party’s contention, (2) to ensure fairness to the opposing party
by avoiding surprise and allowing that party to address all
issues raised, and (3) to foster full development of the record.
State v. Roberts, 

, 

 (2018).
Here, defendant failed to file a timely written motion prior
to trial, and that deprived the state and court of the opportunity to address the specific legal issues and develop the
record before the evidence was admitted. See ORS 133.673
(“Objections to use in evidence of things seized in violation of
[ORS 133.525] shall be made by a motion to suppress which
Nonprecedential Memo Op: 

 (2024)            653

shall be heard … in advance of trial.”); ORS 133.535 (listing property and persons subject to search and seizure); see
also UTCR 4.060(1)(a) (providing that a motion to suppress
“[m]ust cite any constitutional provision, statute, rule, case,
or other authority upon which it is based”); UTCR 4.060(1)(b)
(providing that a motion to suppress “[m]ust include in the
motion document the moving party’s brief, which must sufficiently apprise the court and the adverse party of the arguments relied upon”). Additionally, defendant’s argument on
appeal regarding “compelling circumstances” is substantively different than the one he made before the trial court
regarding “constructive custody.” Compare State v. Roble-Baker, 

, 

 (2006) (describing
factors and considerations that create “compelling circumstances”), with State v. Thomas, 

,

 (2009) (considering circumstances sufficient to
place a defendant in “constructive custody”). Accordingly,
because defendant’s argument is unpreserved and he does
not ask for plain-error review, we do not disturb the trial
court’s ruling on the suppression motion.
         In the second assignment of error, defendant argues
that the trial court erroneously denied his motion for judgment of acquittal on Counts 2, 3, and 4 because the evidence
was insufficient to conclude that he attempted to “hunt”
“wildlife” as those terms are defined in the statutory framework. See ORS 496.004(10) (defining “Hunt” as “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(19) (defining “Wildlife” to include “wild mammals” as defined by rule). Defendant argues that shooting
at a decoy that he believed to be a deer is not an attempt to
take “wildlife.” Defendant acknowledges that we have previously rejected the same argument in State v. Stockert, 

, 

, rev den, 

 (2020) (concluding that the defendant attempted to take wildlife when
he shot at a decoy that he believed to be a deer). Nonetheless,
he asks that we overrule that decision as plainly wrong. We
have reviewed defendant’s argument and are unpersuaded.
See State v. Civil, 

, 

(2017) (explaining that overruling a prior decision requires
a party to establish that the decision was plainly wrong, a
654                                             State v. Jones

“rigorous standard grounded in presumptive fidelity to stare
decisis”). Accordingly, given our decision in Stockert, we conclude that the trial court did not err in denying defendant’s
motion for judgment of acquittal.
        Affirmed.