Richard A. Kinmon v. State of Alaska ( 2019 )

NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD A. KINMON,
Court of Appeals No. A-12645
Appellant, Trial Court No. 4DJ-14-00005 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2657 — October 4, 2019
Appeal from the District Court, Fourth Judicial District, Delta
Junction, Matthew C. Christian, Judge.
Appearances: 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 Appel­
lee.
Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior
Judge.*
Judge ALLARD, writing for the Court.
Judge HARBISON, dissenting.
*
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
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.
–2– 2657
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
1
See AS 08.54.760, which provides:
(a) The department shall collect and maintain hunt records provided by
a registered guide-outfitter. A registered guide-outfitter shall submit to
the department a hunt record for each contracted hunt within 60 days
after the completion of the hunt. A hunt record must include a list of
all big game hunters who used the guiding or outfitting services of the
registered guide-outfitter, the number of each big game species taken,
and other information required by the board. The department shall
provide forms for reporting hunt records.
2
Former AS 16.05.340(a)(15) (pre-2017) provided:
A nonresident may not take a big game animal without previously
purchasing a numbered, nontransferable, appropriate tag, issued under
this paragraph. The tag must be affixed to the animal immediately
upon capture and must remain affixed until the animal is prepared for
storage, consumed, or exported. A tag issued but not used for an
animal may be used to satisfy the tagging requirement for an animal of
any other species for which the tag fee is of equal or less value.
3
Id.
–3– 2657
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
4
See 5 AAC 92.010(h), which provides:
For moose and sheep, a person may not hunt moose or sheep, except in
a permit hunt or for moose in the Gates of the Arctic National Park,
unless the person has in possession a harvest ticket for the species and
has obtained a harvest report (issued with the harvest ticket).
–4– 2657
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
5
AS 08.54.720(a)(8)(A).
6
AS 08.54.720(a)(1).
7
AS 11.56.820(a)(1).
8
This testimony was partially corroborated by the investigating trooper, who said the
harvest ticket overlay number previous to Maser’s was issued to another hunter on September
16. The trooper conceded that it was possible the harvest tickets were issued out of order.
–5– 2657
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
9
Kinmon’s testimony was corroborated by an employee of Kinmon’s at the time, who
testified that he was with Maser when he obtained the sheep harvest ticket on September 12.
10
The jury had the option of basing Kinmon’s convictions on alternative conduct —
aiding Maser in violating 5 AAC 92.010(h) by hunting sheep without a harvest ticket in his
possession — but there is no way to know which violation(s) the jury found. The jury was
instructed that it had to be unanimous as to which statute or regulation was violated.
11
AS 08.54.720(a)(8)(A).
12
AS 11.56.820(a)(1).
–6– 2657
The facts underlying Hahn’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.
13
AS 08.54.720(a)(8)(A).
–7– 2657
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
–8– 2657
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
14
Anchorage v. Brooks, 397 P.3d 346, 349 (Alaska App. 2017) (alterations in original)
(emphasis omitted) (quoting DeNardo v. State, 819 P.2d 903, 908 (Alaska App. 1991).
15
DeNardo, 819 P.2d at 907.
–9– 2657
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)(15) 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.” Kinmon argues that
neither of these definitions necessarily require that a purchase involve simultaneous
payment.
Kinmon also points to a California Fish and Game statute that defines
“purchase” to include “an offer to buy, purchase, barter, exchange, or trade.”17 A New
Jersey statute governing the sale or purchase of wildlife also defines “sell or purchase”
more broadly, to mean “to sell or offer for sale, possess for sale, purchase or agree to
purchase, receive compensation, barter or offer to barter, trade or offer to trade, or
transfer or offer to transfer, or conspire for any of those purposes.”18 In contrast, a
Florida statute governing the purchase and delivery of firearms defines “purchase”
16
State v. Debenham Electric Supply Co., 612 P.2d 1001, 1002 (Alaska 1980) (citing
Lynch v. McCann, 478 P.2d 835, 837 (Alaska 1970)); see also AS 01.10.040 (“Words and
phrases shall be construed according to the rules of grammar and according to their common
and approved usage. Technical words and phrases and those that have acquired a peculiar
and appropriate meaning, whether by legislative definition or otherwise, shall be construed
according to the peculiar and appropriate meaning.”).
17
Cal. Fish & Game Code §§ 68, 24 (West 1985).
18
N.J. Stat. Ann. § 23:4-27(g) (West 2016).
– 10 – 2657
narrowly, as the district court did in this case, to mean “the transfer of money or other
valuable consideration to the retailer.”19
The State argues that the policy behind the “previously purchasing”
requirement is to ensure that hunters pay for the privilege of hunting regardless of
whether the hunt is successful. But it is not clear that this policy interest would be
undermined by allowing a hunter to obtain a tag before the hunt with a promise to pay
at the close of the hunt. Joseph Hahn testified that he believed he purchased the tag
when he filled out the paperwork to procure the tag, and he did not directly testify that
he thought he would not have to pay for the tag if the hunt was unsuccessful (Kinmon
did testify that he told Hahn he would cover the cost of the tag if Hahn did not kill the
bear). Shelley Ailts was not asked this question directly, but the trial testimony
suggested that she also believed she was in effect purchasing the tag at the time she filled
out the paperwork to procure the tag. Kinmon testified, without contradiction, that a big
game tag record is a three-part carbon form, and “[w]hen one of these forms gets signed
that tag is obligated and either myself or the hunter’s going to pay for it.” He said license
vendors are required to account for every tag number in a monthly report submitted to
regulators.20 He also said that “sometimes you issue many, many tags, you might issue
a license, two or three tags . . . and it’s set up to accommodate guides in the field so they
could take one check at the end of the hunt to cover all additional expenses that the . . .
client incurs.” Under this view, filling out the paperwork for a tag or tags during a
guided hunt is like running a tab at a bar; the expectation is that the client will pay for all
the costs associated with the hunt, including the tags, at the end of the hunt.
19
Fla. Stat. Ann. § 790.0655(1)(a) (West 2018).
20
See AS 16.05.390(f) (requiring license vendors to transmit tag proceeds and reports
“by the last day of the month following the month in which the licenses, permits, and tags
are sold, unless an alternative reporting schedule has been established by contract”).
– 11 – 2657
To support his claim that the term “purchase” is ambiguous and should be
construed in his favor, Kinmon points to this Court’s decision in State v. Chun, an
unpublished case.21 In Chun, the State charged the defendant with violating a regulation
that made it illegal to buy bear parts. The defendant purchased the bear parts over the
phone from a man in Idaho, and she argued, relying on the Uniform Commercial Code
(UCC), that the Alaska regulation did not apply to her conduct because the purchase took
place in Idaho.22 The district court agreed and dismissed the charge, ruling that, under
the UCC, title passed to Chun at the time the Idaho seller placed the bear parts in the
mail.23
This Court concluded that reasonable arguments could be made that the
purchase took place in Alaska, either when the contract was formed (when Chun orally
accepted the Idaho man’s offer) or when the transaction was completed (when Chun
received the bear parts in Anchorage).24 Nevertheless, this Court affirmed the district
court’s decision dismissing the charge. After noting that the State had not offered any
definition of “purchase” that clearly favored a different result, and that the State had not
argued on policy grounds that “purchase” should be interpreted more broadly in the
context of the game regulation at issue, this Court concluded that there was a “substantial
and unresolvable ambiguity in existing law as to whether Chun performed a ‘purchase’
21
State v. Chun, 1992 WL 12153276 (Alaska App. Oct. 7, 1992) (unpublished).
22
Id. at *1.
23
Id. at *1-2.
24
Id. at *1-3.
– 12 – 2657
within Alaska.”25 This Court therefore applied the rule of lenity and construed the term
in Chun’s favor.26
Chun provides no direct guidance on the definition of “purchase” in this
case but it does underscore the potential complexity of determining when a purchase
takes place in the absence of statutory guidance. We agree with Kinmon that “previously
purchas[ed]” could reasonably be construed to encompass the delivery of goods with a
binding promise to pay in the near future. However, it is not clear that such binding
promises to pay were made in this case. As already noted, the testimony on this issue
was sparse and potentially subject to varying interpretations by the jury. The jury also
did not receive a clear instruction of what “previously purchas[ed]” meant in this context,
and the jury was not instructed that this term could include filling out the tag paperwork,
receiving the tag, and making a binding promise to pay for the tag after the hunt was
over.
Instead, both sides were allowed to offer their own legal definitions of the
term “previously purchas[ed].” This was error. The district court had a duty to resolve
this question of statutory interpretation and to instruct the jury on the proper legal
definition of this term.27 Because that instruction did not occur, we conclude that
25
Id. at *2-3.
26
Id. at *3.
27
Roth v. State, 329 P.3d 1023, 1026 (Alaska App. 2014) (“[T]he jury need[s] to know
whether to follow the prosecutor’s suggested interpretation of the statute, or the defense
attorney’s competing interpretation of the statute, or some other interpretation.”); Eaklor v.
State, 153 P.3d 367, 370 (Alaska App. 2007) (“[W]hen the statutory language defining an
element of a crime ‘is susceptible of differing interpretations, only one of which is a proper
statement of the law,’ and when the defendant’s guilt or innocence may turn on the jury’s
understanding of this element, ‘an instruction [on the meaning of this element] must be
given[.]’” (quoting McKee v. State, 488 P.2d 1039, 1043 (Alaska 1971))).
– 13 – 2657
Kinmon is entitled to reversal of the counts related to the Joseph Hahn and Shelley Ailts
hunts (Counts V-VII and Count XI). If the State chooses to retry these counts, the jury
should be instructed that the delivery of the tag with a binding promise to pay is
sufficient to qualify as a “previous purchas[e]” under the statute. Construing the statute
this way is in accord with the rule of lenity and ensures that licensed big game guides are
on notice of the prohibited conduct.
Was it plain error for the trial court to instruct the jury on the affirmative
mistake of law defense?
Kinmon’s next claim is that the district court committed plain error by
instructing the jury on a mistake of law defense. He argues that the mistake of law
instruction violated his due process rights by shifting the burden to him to prove that his
conduct was not knowing.
The mistake of law instruction was given to clarify a legal issue that came
up in the context of the State’s charge that Kinmon committed second-degree tampering
with a public record by falsifying the hunt record he submitted for Brian Ailts’s caribou
hunt (Count VIII). Kinmon was not licensed to guide caribou hunts and he submitted
a hunt record for Brian Ailts that indicated that he had “outfitted” (as opposed to
“guided”) Ailts’s caribou hunt. At trial, Ailts testified that Kinmon provided the same
assistance on his caribou hunt as he did on his guided moose hunt. Kinmon testified that
he had consulted “regulators” on the proper way to fill out the form and that he followed
instructions by “carrying the caribou separately” on the hunt record, even though that
“did not make sense” to him because the caribou hunt was a “no compensation,
absolutely free hunt[.]”
– 14 – 2657
In response to this testimony, the prosecutor asked for an instruction under
Haggren v. State.28 In Haggren, this Court held that a fisherman could not rely on a
mistaken interpretation of the law provided by a state trooper dispatcher, or a fish and
wildlife protection officer the dispatcher consulted, to defend against a charge of
violating a fishing regulation.29 This Court explained that even under the Model Penal
Code, which contains the broadest formulation of the affirmative “mistake of law”
defense,30 a defendant claiming mistake of law must show that he relied on an “official
interpretation of the public officer or body charged by law with responsibility for the
interpretation, administration or enforcement of the law defining the offense.”31
In accordance with the language in Haggren, the trial court instructed the
jury as follows:
A mistake of law constitutes a defense only if the mistake
negates the existence of the culpable mental state required to
establish a crime. To establish mistake of law, a defendant
must show that he relied on an “official interpretation”
provided by the “the public officer or body charged by law
with enforcement of the law defining the offense” meaning a
formal interpretation of the law issued by the chief
enforcement officer or agency. This does not encompass, or
include, extemporaneous legal advice or interpretations given
by a subordinate officer or third parties.
Kinmon’s attorney expressly stated that he had no objection to this
instruction, and the parties did not discuss the mistake of law instruction in closing
28
Haggren v. State, 829 P.2d 842 (Alaska App. 1992), overruled on other grounds by
Allen v. Anchorage, 168 P.3d 890 (Alaska App. 2007).
29
Id. at 844.
30
Model Penal Code § 2.04(3)(b) (Am. Law Inst., Proposed Official Draft 1962) cited
in Haggren, 829 P.2d at 844.
31
Haggren, 829 P.2d at 844.
– 15 – 2657
arguments. During closing arguments, both parties argued that the jury had to find that
Kinmon acted knowingly to convict him. The defense attorney explicitly argued that
Kinmon’s “got to know knowingly that there’s some violation of the law there.”
On appeal, Kinmon argues that it was error to instruct the jury on the
affirmative defense of mistake of law. Kinmon asserts, in particular, that the mistake of
law instruction impermissibly shifted the burden of proof with regard to the “knowingly”
mens rea required for the various charged offenses. But Kinmon did not object to the
instruction below, and he must therefore show plain error on appeal. To show plain error
of non-constitutional magnitude, Kinmon must show that (1) the error was obvious, (2)
the failure to object “was not the result of intelligent waiver or a tactical reason not to
object, (3) the error affected substantial rights, and (4) the error was prejudicial.32
We do not find plain error here. Although we question the continued
validity of this formulation of the mistake of law defense (particularly when used outside
the context of strict-liability crimes), the instruction was an accurate description of
Alaska law as it currently stands.33 Notably, neither party relied on the instruction during
closing arguments, and the State did not argue that it applied to the mens rea
requirements. Instead, as the State points out, Kinmon remained free to argue that he
made an honest mistake based upon the advice of the trooper, and that the mistake did
not amount to knowingly submitting false information on a public record. The jury
likewise remained free to reject this defense, which it did for the majority of the counts
32
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
33
See Morgan v. State, 943 P.2d 1208, 1212-13 (Alaska App. 1997); Haggren, 829 P.2d
at 843-45. But see 1 Wayne R. LaFave, Substantive Criminal Law § 5.6(e)(3), at 559-61 (3d
ed. 2017) (noting tension between due process requirements and Model Penal Code approach
to mistake of law defense).
– 16 – 2657
except for Count X, for which the jury acquitted Kinmon. Thus, given the manner in
which the instruction was used and the absence of any objection, we find no plain error.
Conclusion
We REVERSE the convictions for Counts V, VI, VII, and XI and remand
for a new trial on those counts. In all other respects, the judgment of the district court
is AFFIRMED.
– 17 – 2657
HARBISON, Judge, dissenting.
I disagree with the majority’s analysis and conclusion that the term
“previously purchased” in AS 16.05.340 is ambiguous and should therefore be construed
against the government.
In determining what a statute means, “[u]nless otherwise defined, words
will be interpreted as taking their ordinary, contemporary, common meaning.”1 Here,
the trial court correctly applied ordinary usage to discern the meaning of “previously
purchased,” which is not defined in the statute.
The trial court concluded that the statutory prohibition against a nonresident
taking a big game animal without “previously purchasing a numbered, nontransferable,
appropriate tag”2 required that the nonresident complete the act of buying the tag prior
to the act of taking the animal.
In reaching this conclusion, the trial court noted that Webster’s Dictionary
defines “previously” as “existing or happening prior to something else in time or order.”
It further noted that Black’s Law Dictionary defines “purchase” as “the act or instance
of buying.” And, as the State points out in its brief, Webster’s Dictionary similarly
defines “purchase” to mean “to obtain by paying money or its equivalent.”
I agree with the trial court that the term “previously purchased” in the
nonresident game tag statute clearly requires a nonresident to complete the act of
purchasing a tag — including paying for it — before the nonresident may take a big
game animal.
1
State v. Niedermeyer, 14 P.3d 264, 272 n.38 (Alaska 2000).
2
AS 16.05.340(a)(15).
– 18 – 2657
In an attempt to cloud the clear meaning of the term “previously
purchased,” Kinmon points to the federal securities code and California fish and game
statutes. He notes that those statutes, unlike the statute at issue here, define the term
“purchase.”
Kinmon’s argument is inapposite for several reasons. First, the other
statutes that he points to, which define the term “purchase,” are statutes aimed at
different types of conduct than that governed by AS 16.05.340. As a result, the fact that
it was necessary for those statutes to define “purchase” has no bearing on whether the
term “purchase” is ambiguous in Alaska’s statute regarding the purchase of nonresident
big game tags.
For example, Kinmon notes that in California’s fish and game statutes, the
term “purchase” includes “an offer to buy, purchase, barter, exchange, or trade.”3 But
California’s statutes do not use the term “purchase” to describe the method by which a
game tag is obtained; instead, California uses the term “procure” to refer to the method
of obtaining a game tag.4 The term “purchase” is used to govern the transfer of lawfully
and unlawfully taken fish and game, and in statutes involving fish and game licenses.5
Since the California legislature was attempting to limit the transfer of fish and game, it
makes sense that the legislature chose to provide a definition for “purchase” that is
broader than its ordinary meaning, expanding it to include offers to buy, purchase,
barter, exchange or trade.
3
Cal. Fish & Game Code §§ 68, 24 (West 1985).
4
See, e.g., Cal. Fish & Game Code §§ 4332, 4652, 4654, 4750-51 (West).
5
See, e.g., Cal. Fish & Game Code §§ 1061, 2124, 2582, 3039, 8395, 12002.3 (West).
– 19 – 2657
The majority points to a few additional state statutes defining “purchase.”
But the fact that some states have chosen to define “purchase” in a manner that is
inconsistent with, and broader than, the ordinary meaning of that term does not persuade
me that Alaska’s law is unclear. This is particularly true given that Alaska’s statute
includes the word “previously” to describe when the “purchase” of the tag must occur:
the “purchase” of the tag must be “previous” to the nonresident’s taking of the animal.
This clarifies that the transaction must be complete before the animal can be taken.
Similarly, I disagree that this Court’s decision in State v. Chun suggests that
there is complexity in determining when a purchase takes place for purposes of the
statute at issue in this case: the statute governing nonresident big game tags. Chun
involved a purchase of bear parts over the phone by a person in Alaska from a person in
Idaho.6 Under those facts, the question of when and where the “purchase” took place
was ambiguous, because it was unclear under the Uniform Commercial Code where and
when title had vested in Chun.7 But the statute involved in Kinmon’s case is not subject
to such complications. There is no ambiguity to the statutory requirement in Kinmon’s
case that a nonresident hunter must “purchase” an appropriate tag before taking the
animal and must affix the tag to the animal before leaving the kill site.8 Title to the tag
must necessarily vest with the hunter prior to the taking of the animal.
On appeal, Kinmon contends that his interpretation of the statutory
language “seems to be consistent with others within Alaska’s guiding profession.” He
notes that during the trial, he offered to present the testimony of a master guide who
6
State v. Chun, 1992 WL 12153276, at *1 (Alaska App. Oct. 7, 1992) (unpublished).
7
Id. at *1-2.
8
See AS 16.05.340(a)(15).
– 20 – 2657
believed, based on informal inquiries, that it was “standard in the trade” to issue tags
before collecting money for the tags.9
But the trial court correctly determined that this testimony was more
prejudicial than probative, as it could lead to jury confusion about whether the exact
language of the law could properly be ignored. The trial court resolved the question of
statutory interpretation posed by Kinmon’s motion to dismiss by ruling that the statute
requires a nonresident hunter to pay for an appropriate tag prior to taking a big game
animal. It accordingly found that testimony regarding “an informal poll of other guides
who say they collect the money later” could lead the jury to believe that it was not
necessary for Kinmon to follow the law. This was a correct ruling.
I disagree with the majority’s assertion that the trial court’s failure to
instruct the jury on the meaning of the term “purchase” entitles Kinmon to reversal of the
convictions related to the Hahn and Ailts hunts. In fact, Kinmon does not argue on
appeal that the trial court erred in its instructions to the jury on this point.
During closing arguments, relying on the court’s ruling regarding the
meaning of the term, the prosecutor correctly told the jury that “[p]reviously purchasing
. . . doesn’t mean to have an agreement to at some point maybe pay for it.” Later, the
prosecutor did not object when Kinmon’s attorney incorrectly argued to the jury that
previously purchasing a game tag did not require paying for the tag before taking the
animal. The jury nevertheless convicted Kinmon on all relevant charges. The fact that
9
I note that the jury convicted Kinmon of falsifying the tag records relating to a sheep
taken by his client, John Maser. Maser testified that Kinmon directed him to backdate the
check he gave Kinmon for the sheep tag to a date before he killed the sheep, even though he
actually wrote the check after the hunt was over. This testimony strongly suggests that,
notwithstanding the proffer, Kinmon believed he was required to collect the payment for the
tag prior to the nonresident hunter taking the animal.
– 21 – 2657
the defense attorney made an incorrect statement of the law to the jury that was beneficial
to Kinmon does not require reversal of Kinmon’s convictions.
I believe that the majority opinion unnecessarily complicates the meaning
of an unambiguous statute. While the purchase of a car or a house may routinely involve
lengthy written contracts, financing, and liens that make a “purchase” possible without
payment in full, the purchase of a big game tag is a straightforward transaction that
involves none of these complications. When the words “previously purchased” are given
their ordinary, common meaning, the statute clearly requires that a nonresident must pay
for the big game tag before taking the animal.10 I therefore dissent.
10
I additionally note that Kinmon’s trial attorney did not challenge AS 16.05.340(a)(15)
as ambiguous or unconstitutionally vague. Rather, at the close of the State’s case, he asked
the court to dismiss the case, arguing that the State had “failed to show even that a crime has
been committed.” This was essentially a motion for judgment of acquittal. Kinmon’s lawyer
went on to argue, “There’s been no showing that failing to get payment right at the time you
get the tags is a crime.” On appeal, Kinmon construes this mid-trial remark as an argument
that the statute failed to give him notice of what conduct was prohibited. In my view, this
argument was not presented to the trial court and was not preserved for this appeal.
– 22 – 2657