Kinmon v. State

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          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 writing for the Court.

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          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)(15). 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

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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

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argument regarding the purportedly ambiguous meaning of "previously purchas[ed]" moot as to his convictions ...