Kinmon v. State

          Appeal from the District Court, Fourth Judicial District, Delta Junction, Matthew C. Christian, Judge. Trial Court No. 4DJ-14-00005 CR

          Wallace Tetlow, Tetlow Christie, LLC, Anchorage, for the Appellant.

          Aaron 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, Senior Judge.

          OPINION

          ALLARD JUDGE ^[*]

         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 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.

         At 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.

         On 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

         During 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.

         In 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.^[1] 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.^[2] This is a metal locking tag that must be affixed to the animal right after it is killed.^[3] The number on the tag corresponds with a big game tag record form that must be filled out and signed by the hunter.

         Nonresident 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.^[4] 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

         Kinmon 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).

         Eight 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.

         The 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);^[5] knowingly failing to report this illegal hunt to the Department of Public Safety as required (Count IV);^[6] 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 (Counts I-II).^[7]

         On 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 direction.^[8]

         Kinmon 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.^[9]

         The 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.^[10] Accordingly, we find Kinmon's argument regarding the purportedly ambiguous meaning of "previously purchas[ed]" moot as to his convictions for Counts I-IV.

         This is 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)^[11] 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).^[12]

         The 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.

         The 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).^[13] 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.

         How the issue was litigated below

         After 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 tags.

         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].

         The court denied Kinmon's motion to dismiss.

         Kinmon 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.

         The 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 "purchased."

The trial court provided no guidance to the jury regarding how this legal term should be defined.

         Is the term "previously purchas[ed]" ambiguous?

         A 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[.]"^[14] If a statute is unresolvably ambiguous following this analysis, the rule of lenity requires that it be construed in the defendant's favor.^[15]

         As a 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."^[16] 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." ...