45 ORAPP 245 - State v. Westside Fish Co.

JOSEPH, J.

¶1Defendant was convicted by a jury of possession by a wholesale fish dealer of fish taken for ceremonial purposes. OAR 635-41-040(3)(c).1 Defendant contends that Westside Fish Company is merely an assumed business name, not a legal entity, and so cannot be held criminally culpable under ORS 161.095(1)2 and ORS 161.015(5).3 Evidence at trial, however, disclosed that Westside Fish Company is a partnership. A partnership is a "person” within the meaning of ORS 161.015(5); therefore, it can be held criminally culpable under ORS 161.095(1).4

¶2Defendant’s other assignments of error do not merit discussion.

¶3Affirmed.

¶4 Formerly OAR 635-35-040; authority for the rule rests on ORS 506.036, 506.119 and 506.129; penalties are provided by ORS 506.991.

¶5 ORS 161.095(1):

"The minimal requirement for a criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is capable of performing.” (Emphasis supplied.)

¶6 ORS 161.015(5):

" 'Person’ means a human being and, where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.”

¶7 Defendant has not raised an issue about the proper way to charge partnership criminal liability.