State v. Bordeaux

Violations of ORS 509.006 do not require that the actions taken are completed or intentional, because “attempt to fish” was specifically included as part of the definition of “take.” ORS 506.006(12).

Defendant appealed his conviction of unlawful commercial fishing under ORS 509.006 (Class A misdemeanor), for “taking” food fish from a marine reserve. Defendant assigned error to the trial court's denial of his motion for judgment of acquittal (MJOA). Defendant argued that the State did not present sufficient evidence to charge him with "fishing" in the Otter Rock Marine Reserve because he had not actually landed crab onto his vessel. Additionally, Defendant assigned error to his conviction for failing to find the requisite mental state and the preclusion of a witness to offer expert opinion on the effect of the Otter Rock Marine Reserve's topography on Defendant's crab pots. These errors were rejected and considered harmless, respectively. The Court reviewed the denial of the MJOA in the light most favorable to the State to determine if a trier of fact could have found all essential elements of the crime beyond a reasonable doubt. The Court reasoned that the terms "fishing for" and "attempting to fish for" do not apply to different actions because the legislature wrote the statute "to cast a wide net" in order to avoid inadvertent omissions when defining "take." The Court held that "fishing for" includes engaging in the act of fishing, regardless of whether the person actually catches or transfers any fish from a vessel. Affirmed.