State v. Ness

774 N.W.2d 254

2009 ND 182

STATE of North Dakota, Plaintiff and Appellee, v. Thomas Paul NESS, Defendant and Appellant.

No. 20090046.

Supreme Court of North Dakota.

October 15, 2009.

Bryan David Denham, Bismarck, N.D., for plaintiff and appellee.

Paul Henry Myerchin, Bismarck, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Thomas Ness appeals from a district court order deferring imposition of sentence, entered after a jury found him guilty of failing to immediately tag a white-tailed doe. We conclude Ness does not have standing to argue the Governor's deer hunting proclamation is unconstitutionally vague, there is sufficient evidence to support Ness's conviction, the district court did not err in refusing to give Ness's requested jury instructions, Ness's confrontation rights were not violated, and the court did not abuse its discretion in refusing to grant Ness's motion for a mistrial. We affirm.

I

[¶ 2] Ness is a licensed deer hunter and outfitter. Ness received two doe tags and one gratis tag for the 2007 deer gun hunting season. The gratis tag allowed Ness to shoot either an antlered or antlerless deer on his property during the deer hunting season. Sometime during the deer hunting season Ness lost the two doe tags. On either November 16, 2007, or November 17, 2007, Ness called Jackie Lundstrom, a game warden with the Game and Fish Department, to ask about getting replacement tags for the two lost doe tags, but Lundstrom was unavailable and Ness left a message.

[¶ 3] On November 18, 2007, Ness went hunting on his property and killed a white-tailed doe. Ness brought the deer back to his house and began sawing its legs off in his driveway. Lundstrom arrived at Ness's residence while he was cutting up the deer. Ness told Lundstrom he called her because he wanted replacement tags for the two lost doe tags. Lundstrom saw the deer laying in the driveway and noted it was not tagged. Lundstrom directed Ness to tag the deer with his gratis tag and he complied.

[¶ 4] Lundstrom issued Ness a citation charging him with failing to immediately tag a white-tailed doe after it was killed in violation of the Governor's 2007-2008 deer hunting proclamation, a class B misdemeanor under N.D.C.C. § 20.1-08-01. During the jury trial, Lundstrom testified and on cross-examination Ness asked her about hypothetical hunting situations and whether a hunter in those circumstances would be violating the tagging requirement. Ness also attempted to use photographs of other hunters he found on a website to question Lundstrom about whether the hunters pictured had violated the tagging requirement, but the district court refused to allow Ness to use the photographs. Ness requested excuse and mistake or innocence jury instructions, but the court denied Ness's request. During jury deliberations, a juror wrote the court a note informing the court his employer may have a prior business relationship with Ness. Ness moved for a mistrial based upon the juror's disclosure, but the court denied his motion. The jury found Ness guilty.

II

[¶ 5] Ness argues the district court erred in failing to dismiss the citation because the tagging requirement in the Governor's 2007-2008 deer hunting proclamation is unconstitutionally vague. He contends the Governor should have been called to testify about the meaning of "immediately" in the tagging requirement because the meaning is unclear and subjective, which could result in arbitrary and discriminatory enforcement.

[¶ 6] The Governor's deer hunting proclamation has the force of law, and a violation of a provision of the proclamation is a class B misdemeanor unless a noncriminal penalty is provided in the proclamation. N.D.C.C. § 20.1-08-01. Whether a law is unconstitutional is a question of law, which is fully reviewable on appeal. State v. Holbach, 2009 ND 37, ¶ 23, 763 N.W.2d 761. A law is not unconstitutionally vague if: (1) the law creates minimum guidelines for the reasonable police officer, judge, or jury charged with enforcing the law, and (2) the law provides a reasonable person with adequate and fair warning of the prohibited conduct. State v. Brown, 2009 ND 150, ¶ 33, 771 N.W.2d 267. A law is "not unconstitutionally vague `if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.'" Holbach, at ¶ 24 (quoting In re Disciplinary Action Against McGuire, 2004 ND 171, ¶ 19, 685 N.W.2d 748). "To have standing to raise a vagueness challenge, a litigant must almost always demonstrate that the statute in question is vague as applied to his own conduct, without regard to its potentially vague application in other circumstances." State v. Tibor, 373 N.W.2d 877, 880 (N.D.1985).

[¶ 7] The Governor's 2007-2008 deer hunting proclamation includes a tagging requirement for deer hunting, and provides:

IMMEDIATELY after an animal has been killed, the hunter must indicate the date of kill by cutting out the appropriate month and day from the tag provided with the license and attach it to the base of the antler on antlered deer or in a slit in the ear on antlerless deer as illustrated on the tag backing to prevent its removal. The tag, placed immediately upon the antler or slit in ear, shall remain with the antlers or head until March 31, 2008.

The word "immediately" is not specifically defined in the proclamation.

[¶ 8] When we interpret a statute words are given their plain, ordinary, and commonly understood meaning, unless specifically defined by statute or a contrary intention plainly appears. In re Estate of Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842. A court may use extrinsic aids to interpret a statute if the language is ambiguous. State v. Wetzel, 2008 ND 186, ¶ 4, 756 N.W.2d 775. We construe statutes to avoid constitutional infirmities. Elken, at ¶ 7. The term "immediately" should be given its plain, ordinary, and commonly understood meaning to interpret the tagging requirement in the Governor's proclamation.

[¶ 9] Ness contends the proclamation is unconstitutionally vague on its face and not as applied to his conduct. Ness lost two doe tags but had possession of a gratis tag. He went hunting on his land and killed a doe. He transported the deer to his house, and began sawing the legs off the deer in his driveway. Ness did not tag the deer before he transported it to his house or before he began cutting it up in his driveway. Using the plain, ordinary, and commonly understood meaning of "immediately," under the circumstances of this case a reasonable person would know Ness's conduct violated the tagging requirement. We conclude Ness does not have standing to argue the tagging requirement is unconstitutionally vague.

III

[¶ 10] Ness argues there was insufficient evidence for the jury to convict him because the State failed to present any relevant evidence to clarify the meaning of the immediate tagging requirement.

[¶ 11] Ness moved for dismissal under N.D.R.Crim.P. 29 at the close of the State's case-in-chief and again at the close of all evidence, preserving the sufficiency of the evidence issue for appeal. See State v. McAvoy, 2009 ND 130, ¶ 8, 767 N.W.2d 874. To grant a judgment of acquittal a court must find there is insufficient evidence to sustain a conviction. State v. Maki, 2009 ND 123, ¶ 7, 767 N.W.2d 852. On appeal, this Court reviews the evidence and all reasonable inferences in the light most favorable to the verdict, and will reverse only if no rational factfinder could have found the defendant guilty beyond a reasonable doubt. Id.

[¶ 12] Here, there was evidence Ness killed a white-tailed doe, transported the deer back to his home, and began sawing the legs off the deer before tagging it. Ness did not dispute that he shot the deer and did not tag it until after Lundstrom directed him to tag it using his gratis tag. Ness testified he knew he could not hunt off his land because it would have been a violation without one of the doe tags, but he thought he could hunt on his own land because he had a gratis tag that he could use on any deer he shot. He also testified he did not intend to use the gratis tag on this deer because he wanted to use a replacement doe tag. The court instructed the jury that it may apply matters of common knowledge and science to the facts and circumstances of the case to determine Ness's guilt, which included determining whether he immediately tagged the deer. Viewing the evidence and all reasonable inferences in the light most favorable to the verdict, we conclude there is sufficient evidence to sustain the conviction.

IV

[¶ 13] Ness argues the district court erred by failing to give his requested jury instructions. We review jury instructions as a whole to determine whether they fairly and adequately advise the jury of the applicable law. State v. Haugen, 2007 ND 195, ¶ 6, 742 N.W.2d 796. "`A defendant is entitled to a jury instruction on a defense if there is evidence that creates a reasonable doubt about an element of the charged offense.'" State v. Zajac, 2009 ND 119, ¶ 12, 767 N.W.2d 825 (quoting State v. Falconer, 2007 ND 89, ¶ 13, 732 N.W.2d 703). We view the evidence in the light most favorable to the defendant to determine whether there is sufficient evidence to support a jury instruction. Zajac, at ¶ 12. A court errs if it refuses to instruct the jury on an issue that has been adequately raised. Id. A court, however, may refuse to give an instruction that is irrelevant or inapplicable. Id.

A

[¶ 14] Ness contends he was entitled to a jury instruction for an affirmative defense of innocently or mistakenly failing to tag the doe within a reasonable time. The State argues Ness was not entitled to a jury instruction because this is a strict liability offense and an individual could not innocently or mistakenly violate the tagging requirement.

[¶ 15] Failing to immediately tag a deer is a...