RICHARD A. KINMON, Appellant,
STATE OF ALASKA, Appellee.
from the District Court, Fourth Judicial District, Delta
Junction, Matthew C. Christian, Judge. Trial Court No.
Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the
C. Peterson, Assistant Attorney General, Office of Special
Prosecutions, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Coats,
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 Kinmon's 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)(l 5). 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.
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
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
Kinmon's clients had taken big game without
"previously purchasing" big game tags. However,
Kinmon's 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
Maser's 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
and two counts of tampering with a public record in the
second degree for falsifying Maser's hunt and tag records
to indicate that Maser had a valid (i. e.,
previously purchased) tag at the time he killed the sheep
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 Kinmon's 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 Kinmon's
contradicted Maser's 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 Maser's
testimony that he did not fill out any of the required
paperwork or pay for the sheep tag before hunting and
Kinmon's 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 jury's verdict on these
counts. Accordingly, we find Kinmon's
argument regarding the purportedly ambiguous meaning of
"previously purchas[ed]" moot as to his convictions
for Counts I-IV.
not necessarily the case with the other convictions, however.
Counts V-VII related to a grizzly bear hunt that Kinmon
guided in 2011 for nonresident hunter Joseph Hahn. Kinmon was
convicted of one count of knowingly aiding Hahn in taking a
brown bear without a valid (i.e., previously
purchased) nonresident big game tag (Count VII) and two
counts of tampering with a public record in the second degree
for knowingly falsifying Hahn's big game hunt and tag
records to indicate that Hahn had a valid (i.e.,
previously purchased) big game tag at the time he hunted the
bear (Counts V and VI).
facts underlying Harm's convictions were undisputed: Hahn
testified that he waited to buy his bear tag until he was in
the field, at Kinmon's recommendation, so that he would
not have to pay for the bear hunt if there was no sign of
bear in the area. Kinmon and Hahn both testified that Hahn
filled out the paperwork to procure his bear tag prior to
hunting the bear and that Hahn paid for the tag some days
later, after the hunt was completed. Kinmon's related
convictions for tampering with a public record were based on
his reporting in Hahn's hunt and tag records that Hahn
had purchased his bear tag before the hunt, at the time he
filled out the paperwork for the tag, even though Hahn had
not yet paid for the tag. Because these facts were
undisputed, all three convictions potentially hinged on a
legal conclusion that a "purchase" did not occur
until Hahn paid for the bear tag.
same is true with regard to Count XI, which related to
Kinmon's guided moose hunt with Shelley Ailts in 2011.
Kinmon was convicted of knowingly aiding Ailts in taking a
moose without a valid (i.e., previously purchased)
nonresident big game tag in that hunt (Count
XI). The facts underlying this conviction
were also undisputed: Shelley Ailts went along on the hunt
primarily to accompany her husband, but with the
understanding that she could buy a moose tag and do her own
hunt if there was time. Kinmon and Shelley Ailts both
testified that she filled out the paperwork to procure her
moose tag in the field before she hunted the moose. Shelley
Ailts's husband testified, uncontradicted, that he did
not pay Kinmon for his wife's moose tag until after the
hunt was over. Thus, this conviction also potentially hinged
on a legal conclusion that a "purchase" did not
occur until Shelley Ailts paid for the moose tag.
the issue was litigated below
the State presented its case, Kinmon moved to dismiss all the
counts against him, arguing that the State "has failed
to show even that a crime has been committed in some of these
. . . [t]here's been no showing that failing to get
payment right at the time you get the tags is a crime."
To support this argument, Kinmon made an offer of proof that
Anthony Lee, a longtime master guide, would testify based on
his informal inquiries that it was standard practice among
big game guides to issue tags before collecting money for the
court ruled outside the jury's presence that the commonly
understood meaning of "previously purchasing" is to
buy the goods ahead of time (in context, it is clear that the
court meant by this that a "purchase" did not take
place until money changed hands). The court excluded under
Evidence Rule 403 Lee's proposed testimony on his
informal study of the standard practice among guides, to
which the defense attorney responded:
This is a situation in which to my knowledge this is a first
impression of what the law is, what purchase means, and to
have a person charged with something that the court has
suddenly declared "this is how it's illegal" is
not real fair justice either. So I would suggest that the
court dismiss [the case].
court denied Kinmon's motion to dismiss.
did not offer a jury instruction defining "previously
purchasing" and no definition was provided to the jury.
The parties instead argued their dueling interpretations of
the legal meaning of "previously purchasing" to the
jury. The prosecutor argued in closing:
Previously purchasing, you all know what previously
purchasing means. It doesn't mean to have an agreement to
at some point maybe pay for it. ... That isn't the law.
The law is it has to be previously purchased before taking
the animal. That's the law.
defense attorney countered:
The statute - counsel had his magic lantern show up here and
counsel had purchased, you got to purchase your tag ahead of
time. Doesn't say you have to pay for it, does it? Seems
to me if you're going to prosecute somebody you ought to
have in there what does it mean, what does purchase mean. Did
you purchase your house, have you paid for it, no, might
still be making payments on it, but you haven't
purchased, you haven't paid for your house. How about a
car, you buy a car. I don't know what they do here, but
down in Anchorage no money down, no payments for six months.
You drive out of the lot with the car, have you purchased
that car, yeah, have you paid for it, no. In Alaska and the
United States we pay for things ahead of time and sometimes
we pay for things down the trail. . . . [T]hey built this
case on a definition on an interpretation of what the statute
says and it doesn't say "paid for," it says
The trial court provided no guidance to the jury regarding
how this legal term should be defined.
the term "previously purchas[ed]" ambiguous?
statute is ambiguous if its meaning "is unresolvably
confused or ambiguous after it has been subjected to legal
analysis [through] study of the statute's wording,
examination of its legislative history, and reference to
other relevant statutes and case law[.]" If a statute
is unresolvably ambiguous following this analysis, the rule
of lenity requires that it be construed in the
general rule, "[u]nless words have acquired a peculiar
meaning, by virtue of statutory definition or judicial
construction, they are to be construed in accordance with
their common usage." In ruling that a
"purchase" did not take place under AS
16.05.340(a)(l5) until money changed hands, the district
court relied on a version of Black's Law Dictionary that
defined "purchase" as "the act or instance of
buying." In its brief, the State points to a version of
Webster's Dictionary that defines "purchase" to
mean "to obtain by paying money or its equivalent."