Richard A. KINMON, Appellant,
STATE of Alaska, Appellee.
from the District Court, Fourth Judicial District, Delta
Junction, Matthew C. Christian, Judge. Trial Court No.
Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant.
C. Peterson, Assistant Attorney General, Office of Special
Prosecutions, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Allard, Chief Judge, Harbison, Judge, and Coats, Senior
Judge writing for the Court.
Richard A. Kinmon, a licensed big game guide, was convicted
of eleven misdemeanor offenses for his conduct during big
game hunts he guided in 2009 and 2011. Some of Kinmons
convictions were based on allegations that he allowed his
clients to take game without "previously
purchasing" a big game tag as required by AS
16.05.340(a)(15). Kinmon was also convicted for falsely
reporting that the tags had been "previously
purchas[ed]" by the clients.
trial, a dispute arose regarding the meaning of the statutory
term "previously purchas[ed]." The State argued
that the term "purchase" was unambiguous and that
it required the client to pay money for the big game tag
before the game was taken. Kinmon argued that the term could
reasonably be understood as encompassing the delivery of the
big game tag with a promise to pay in the future, after the
game was taken. The trial court resolved this dispute in
favor of the State, but the court did not instruct the jury
on the definition of "previously purchased" and it
allowed both sides to argue their definitions to the jury.
appeal, Kinmon argues that the term "previously
purchased" is ambiguous, and that the statutory term is
unconstitutionally vague because it fails to give fair notice
to the guide of what is required. Kinmon also argues that the
trial court committed plain error by giving the jury a
"mistake of law" instruction that he argues shifted
the burden to him to prove that he did not knowingly violate
the law. For the reasons explained here, we conclude that
Kinmon is entitled to a retrial on four of his convictions.
The pertinent hunting regulations
the offenses at issue in this case, Kinmon was a licensed big
game guide in Alaska. He was also a licensed big game tag
vendor, meaning he was authorized to sell big game tags in
the field to nonresident hunters.
Alaska, big game guides are regulated by the Big Game
Commercial Services Board. After any guided, outfitted, or
transported big game hunt, the guide must submit a hunt
record to the Board. All nonresident hunters must purchase
a hunting license. Nonresident hunters who hunt big game also
must purchase a specific big game tag for the animal they are
hunting. This is a metal locking tag that must
be affixed to the animal right after it is
killed. The number on the tag corresponds with
a big game tag record form that must be filled out and signed
by the hunter.
hunters who hunt moose and sheep must, in addition, submit
forms to the Department of Fish and Game. The Department uses
these forms to keep track of the number of hunters, the
number of moose and sheep killed, and where they were
killed. This paperwork comes in a packet and
includes (1) a harvest overlay, (2) a harvest report, and (3)
a harvest ticket. The harvest
overlay is submitted to Fish and Game before the hunt. After
the hunt, successful or not, the harvest report and the
harvest ticket must be filled out and mailed to Fish and
Game. The harvest ticket number and big game tag also must be
recorded on the hunt record that guides are required to
submit to the Big Game Commercial Services Board.
Convictions in which "previously purchas[ed]"
is at issue
was convicted of five counts of tampering with a public
record in the second degree under AS 11.56.820(a)(1), five
counts of committing or aiding in the commission of a
violation of a big game statute or regulation under AS
08.54.720(a)(8)(A), and one count of failing to report a
violation of a big game law under AS 08.54.720(a)(1).
of these eleven convictions involved allegations that
Kinmons clients had taken big game without "previously
purchasing" big game tags. However, Kinmons defenses to
these charges were not uniform.
first four charges (Counts I-IV) related to a guided sheep
hunt in 2009 with a nonresident hunter, John Maser. Kinmon
was convicted of four misdemeanor offenses related to Masers
sheep hunt: knowingly guiding Maser on a hunt for Dall sheep
without a valid (i.e., previously purchased)
nonresident sheep tag and/or harvest ticket (Count III);
knowingly failing to report this illegal hunt to the
Department of Public Safety as required (Count IV);
and two counts of tampering with a public record in the
second degree for falsifying Masers hunt and tag records to
indicate that Maser had a valid (i.e., previously
purchased) tag at the time he killed the sheep (Counts
appeal, Kinmon argues that these four convictions hinged on
the disputed meaning of "previously purchas[ed]."
But the record does not support this. Unlike the clients from
the other hunts, Maser testified that he did not fill out any
paperwork for the sheep hunt (or pay for the sheep tag) until
after he killed the sheep. Maser did not recall
precisely when he filled out the paperwork for the sheep tag
but he testified that it was after he killed the sheep. He
also testified that Kinmon told him he would not have to pay
for a sheep tag unless the hunt was successful. Maser further
testified that, at Kinmons direction, he backdated the form
to September 15, two days before the sheep kill. Maser also
testified that he backdated the check he gave Kinmon for the
sheep tag to September 15, at Kinmons
contradicted Masers sequence of events in his own trial
testimony. Kinmon testified that the dates on the sheep tag
and the check were correct; that Maser filled out the
paperwork to procure the sheep tag in the field on September
15 and gave Kinmon a check for the tag later that same day.
Kinmon also testified that Maser picked up the sheep harvest
ticket and associated paperwork at Fred Meyer before
the hunt, on September 12, and that Maser must have made a
mistake when he dated the forms September 15.
jury was thus faced with a choice between Masers testimony
that he did not fill out any of the required paperwork or pay
for the sheep tag before hunting and Kinmons testimony that
Maser completed all the appropriate paperwork and paid for
the tag before the hunt. Therefore, even if the district
court had construed "purchase" to include filling
out the paperwork to procure a tag with a promise to pay
later, this would have had no effect on the jurys verdict on
these counts. Accordingly, we find Kinmons
argument regarding the purportedly ambiguous meaning of
"previously purchas[ed]" moot as to his convictions