Opinion
Court of Appeals No. A-8901.
November 23, 2005.
Appeal from the District Court, Fourth Judicial District, Aniak, Margaret L. Murphy, Magistrate, and Dale O. Curda, Judge. Trial Court No. 4AK-02-180 CR.
Myron Angstam, Angstam Law Office, Bethel, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ronald T. Peltola was convicted of several fish and game offenses related to guiding an illegal moose hunt in the fall of 2000. Peltola argues that the district court abused its discretion by refusing to change venue from Aniak, near where the hunt occurred, to Bethel. He also argues that the court should have dismissed his case because he was prejudiced by the State's long delay in charging him with these offenses. Lastly, he argues that there was insufficient evidence to convict him of guiding without a license because the State did not prove that he received any compensation for his guiding services. Because we find no merit to Peltola's claims, we affirm his convictions.
Facts and proceedings
The Alaska State Troopers received several complaints that Peltola, who was not a licensed big game guide, was booking moose hunts in Alaska out of his bar in Michigan. For help in investigating these tips, Trooper Matthew Dobson called Lieutenant Jeff Pendergraff of the Michigan State Police.
At Dobson's request, Pendergraff contacted Peltola at his Michigan bar, the Alaska Connection. Peltola confirmed that he booked moose hunts in Alaska. Peltola also described the services he provided on his hunts. He said for $1500 he would fly Pendergraff from Bethel to his hunting camp on Pike Lake, provide food and lodging at the camp, locate a moose and drive it toward Pendergraff, and fly Pendergraff back to Bethel. Peltola told Pendergraff he had a high success rate on his hunts and that there were hunters in Michigan who returned to his camp every year. Peltola told Pendergraff that he could reserve a hunt with a $500 deposit. After consulting with Trooper Dobson, Pendergraff booked a hunt for September 2000.
On September 14, 2000, Peltola met Pendergraff in Bethel and flew him out to his hunting camp. There were several other people at the camp whom Peltola described as his "helpers." The following day, Peltola and his helpers (James Berlin, Kenny Watson, Robert Venes, and Louis Kinegak) took Pendergraff hunting in Peltola's boat. Within minutes the party spotted a black bear. Peltola yelled "bear," swung the boat toward the bear, and told everyone to shoot. The bear was wounded and eventually killed and transported back to camp.
The hunting party then pulled up onto the shore, where Peltola told Pendergraff to wait while the others went into the woods, found a bedded moose, and drove it toward Pendergraff. Peltola stayed in his boat. Pendergraff heard the boat motor start up and, when he looked in Peltola's direction, saw a bull moose and several cows swimming. Peltola used the boat to herd the bull moose toward Pendergraff. When the bull moose was about fifteen to twenty yards away, Peltola told Pendergraff to shoot the moose, which he did. Pendergraff helped to load the moose onto the boat, and it was butchered for him back at camp.
As the group headed back to camp, they saw another bear. Peltola turned the boat around, headed toward the bear, shot it, and loaded it on the boat.
The next day, Pendergraff was flown back to Bethel, where Pendergraff paid Peltola's son the $1000 he still owed for the hunt. Pendergraff testified that he spoke by phone with Peltola, who sounded intoxicated and told Pendergraff he owed him another $1000. Pendergraff did not pay Peltola any more money.
Based on this conduct, the State charged Peltola with guiding without a license, two counts of unlawfully shooting a black bear from a boat under power, unlawfully herding or molesting a bull moose with a motor-driven boat, and unlawfully possessing and transporting illegally taken big game. Trial was scheduled in Aniak, the community nearest to Peltola's hunting camp that had adequate facilities for a six-person jury trial, and, thus, the presumptive trial site under Criminal Rule 18.
AS 08.54.720(a)(9).
5 Alaska Administrative Code (AAC) 92.080(4).
Before trial, Peltola filed a motion to change venue from the presumptive trial site in Aniak to Bethel, arguing that trial in Aniak would put him to unnecessary expense and would be inconvenient for the witnesses who lived in Bethel and Anchorage. Peltola also moved to dismiss the case, arguing that his due process rights had been violated because the State had waited unreasonably long (some twenty-eight months) to charge him with these offenses, and that he had been prejudiced by this delay because a key defense witness (Robert Venes) died before trial. District Court Magistrate Margaret L. Murphy denied both motions.
At the close of the State's case, Peltola moved for a judgment of acquittal on the charge of guiding without a license, arguing that the State had not presented sufficient evidence that he was compensated for his guiding services (a necessary element of that offense). At the close of his case, Peltola renewed his motion to dismiss the case based on pre-accusation delay. Superior Court Judge Dale O. Curda, sitting in the district court, denied the motions. The jury then convicted Peltola of all charges.
Peltola appeals.
The court did not abuse its discretion by denying Peltola's motion to change the trial site from Aniak to Bethel
In Alvarado v. State, the Alaska Supreme Court declared that the Alaska Constitution guarantees criminal defendants the right to have their jury selected from a pool that represents "a fair cross section of the community in which the crime occurred." Criminal Rule 18 was enacted to implement the Alvarado decision. Under Rule 18(b), the presumptive trial site in a criminal case is the court location within the venue district where the crime occurred that is closest to the site of the alleged crime that has the necessary facilities for a six- or twelve-person jury trial. The presumptive trial site for Peltola's case was Aniak.
486 P.2d 891 (Alaska 1971).
Id. at 903.
John v. State, 35 P.3d 53, 55 (Alaska App. 2001) (citing Alvarado, 486 P.2d 891).
Id.
Peltola does not dispute that Aniak was the presumptive trial site under Criminal Rule 18(b). Rather, he argues that the court abused its discretion by refusing to change venue from Aniak to Bethel under AS 22.15.080(2) and (4). AS 22.15.080(2) requires a party show that "the convenience of witnesses and the ends of justice would be promoted by the change." AS 22.15.080(4) requires a defendant seeking a change of venue show that "the defendant will be put to unnecessary expense and inconvenience."
See Alaska Court System Office of the Administrative Director Administrative Bulletin No. 27 (recognizing Aniak as an approved trial site for a six-person jury).
See Newcomb v. State, 800 P.2d 935, 937 (Alaska App. 1990) (noting that the denial of a motion to change venue is reviewed for an abuse of discretion).
The supreme court has interpreted a statute that is identical in relevant respects to AS 22.15.080, but which addresses change of venue motions in superior rather than district court, as requiring the party moving for a change of venue for the convenience of the witnesses to file a detailed affidavit:
AS 22.10.040(2).
Where statutory ground (2) which states that `when the convenience of witnesses and the ends of justice would be promoted by the change' is urged, the affidavit must state the names of the witnesses and the nature of the testimony expected from each, show that their proposed testimony is admissible, relevant and material to an issue in the case as shown by the record and state the reasons why the attendance of each would be inconvenient. In urging this statutory ground, the moving party bears the burden of proving not only that the convenience of the witnesses will be promoted but also that the ends of justice will be promoted by the change since the two conditions are stated conjunctively. In the absence of unusual circumstances the convenience of the parties is not to be considered in weighing the merits of a motion for change of place of trial.
Coughlan v. Coughlan, 423 P.2d 1010, 1015 (Alaska 1967).
Coughlan v. Coughlan, 423 P.2d 1010, 1015 (Alaska 1967).
In his affidavit, Peltola listed four witnesses he expected to appear on behalf of the State and the defense; two lived in Bethel, one in Michigan, and the whereabouts of the fourth was unknown. Peltola did not describe the nature of the testimony he expected from these witnesses or show that their testimony was admissible, relevant and material. Nor did he point to any specific circumstances making travel to Aniak inconvenient for these witnesses. He argued that the ends of justice would not be served by trial in Aniak because it is a small community with limited facilities and the parties, judge, and witnesses would be forced into contact with each other. But he did not say how this contact would impede the ends of justice. (Nor, in his brief on appeal, does he assert that such contact occurred, or that it caused any injustice.) Moreover, as the State observes, before designating Aniak as a misdemeanor trial site, the court system's administrative director had to find that its facilities there were adequate to support a six-person jury trial. Given this record, we conclude that Magistrate Murphy did not abuse her discretion by denying Peltola's motion to change venue to Bethel on this ground.
See Alaska R. Crim. P. 18(c)-(d).
Peltola next argues that Magistrate Murphy should have moved the trial to Bethel based on the unnecessary expense he would bear if trial were held in Aniak. He argues that he did not have the resources to fly his potential witnesses to Aniak and lodge them there. But in district court, Peltola never asserted that he did not have the resources for trial in Aniak. And in his affidavit, he did not specify which witnesses he would have to fly and house there (none of the witnesses he listed actually testified on his behalf), or what his expenses would be. Given this record, Magistrate Murphy did not abuse her discretion by ruling that Peltola had not met his burden to show that he would bear unnecessary expense if trial were held in Aniak.
See AS 22.15.080(4).
There was sufficient evidence for the jury to convict Peltola of guiding without a license
Peltola was convicted of guiding Pendergraff without a license. Peltola admitted that he had no license. But to convict Peltola of guiding without a license, the State also had to prove that Peltola provided guiding services to Pendergraff "for compensation or with the intent or with an agreement to receive compensation." For these purposes, the Alaska Statutes define "compensation" as "payment for services including wages or other remuneration but not including reimbursement for actual expenses incurred."
AS 08.54.720(a)(9) provides that it is unlawful for a "person without a current registered guide license to knowingly guide, advertise as a registered guide, or represent to be a registered guide[.]"
AS 08.54.790(7) provides that "`guide' means to provide, for compensation or with the intent or with an agreement to receive compensation, services, equipment, or facilities to a big game hunter in the field by a person who accompanies or is present with the big game hunter in the field either personally or through an assistant[.]"
AS 08.54.790(3).
Peltola argues that the State presented insufficient evidence for a reasonable jury to find that he guided Pendergraff "for compensation." To determine whether evidence is sufficient to support a jury's verdict, this court views the evidence and the inferences to be drawn from that evidence in the light most favorable to upholding the jury's verdict. "[T]he weight and credibility of evidence are matters for the jury to consider in reaching a verdict, not for the reviewing court to decide in ruling on the legal sufficiency of the evidence." Our question on review is thus whether a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt.
Shafer v. State, 456 P.2d 466, 469 (Alaska 1969).
Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990).
Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).
Pendergraff testified that in May 2000, at Trooper Dodson's request, he contacted Peltola at his bar in Michigan to investigate whether Peltola was offering illegal guiding services in Alaska. During that contact, Peltola agreed to arrange a moose hunt for Pendergraff for $1500. Peltola described the services he would provide for that price, including meals, lodging, air travel from Bethel to the camp and back, locating a moose, and driving the moose toward Pendergraff. Pendergraff testified that it was not his understanding after this contact that this price was his share of the actual costs of the hunt.
The jury also listened to an audio tape of a telephone conversation between Trooper Dodson and Peltola. In that conversation, Peltola said he believed he was entitled to charge hunters at his camp twenty percent above his actual costs.
At trial, James Berlin, a friend of Peltola's, testified that he paid Peltola $800 to $900 to cover his expenses for a seven-day hunt in 2000 (Pendergraff was charged $1500 for a two-day hunt in that same year). Peltola's witness, Kenny Watson, testified that he worked at the camp and that Peltola would give him spending money "if [Peltola] made any money."
There was also testimony that approximately thirty-three gallons of fuel were used to fly Pendergraff from Bethel to the camp and back. There was testimony that gas was used when hunting on Peltola's boat, and that a gallon of gas cost $2.58 in Bethel. Pendergraff described the food provided (pancakes, fish, and sandwiches). Based on this testimony, the State estimated that Peltola's actual expenses for guiding Pendergraff were no more than $500.
Viewing this evidence in the light most favorable to the State, a reasonable jury could find that Peltola received compensation for his guiding services, or, at least, that Peltola booked the hunt with the intent of receiving compensation. We therefore reject Peltola's claim that there was insufficient evidence to support his conviction for guiding without a license.
The court did not err by denying Peltola's motion to dismiss because Peltola did not show that he was prejudiced by the State's delay in bringing charges
Before trial, Peltola moved to dismiss the case, arguing that his due process rights had been violated because the State did not file charges against him until some twenty-eight months after he committed his alleged offenses. Magistrate Murphy denied the motion, ruling that Peltola had not met his twin burdens to establish that the State's delay was unreasonable and that he had been prejudiced by the delay.
At trial, after the defense rested, Peltola asked Judge Curda to reconsider this decision. Judge Curda denied the motion, affirming Magistrate Murphy's reasoning. Peltola renews his claim on appeal.
The due process clauses of the United States and Alaska Constitutions protect the accused against unreasonable pre-accusation delay. However, to prevail on such a claim, the accused must establish both the absence of a valid reason for the delay, and actual prejudice. "Because the essence of due process is basic fairness, the chief concern of the rule prohibiting unreasonable pre-accusation delay is the impact of the delay on the accused's ability to present a defense, and not on the length of the delay as such." Thus, even if the State advances no reason for the delay, the accused must establish actual prejudice. To show actual prejudice, the defendant must make "a particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case."
U.S. Const., amend. XIV, § 1; Alaska Const., art. I, § 7.
State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991) (citing United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971) and Wilson v. State, 756 P.2d 307, 310 n. 4 (Alaska App. 1988)).
Mouser, 806 P.2d at 336.
Id.
Id. at 338; Wilson, 756 P.2d at 311.
Millman v. State, 841 P.2d 190, 196 (Alaska App. 1992) (quoting Mouser, 806 P.2d at 337-38).
Peltola claims that he was prejudiced by the State's delay because a critical defense witness, Robert Venes, died before trial. He asserts that if the State had charged him earlier, Venes "would have been able to testify to matters that the other witnesses could not, including whether [Peltola] ran the camp as a guiding operation and the circumstances surrounding the taking of the two black bears."
At trial, the parties agreed that there was only one disputed issue related to whether Peltola had guided without a license: whether he had guided "for compensation." Peltola has not claimed that Venes had testimony relevant to this issue. In his pre-trial motion, Peltola stated that Venes "essentially ran Mr. Peltola's camp." But he declined to provide any specifics about the testimony Venes would have provided, "reserv[ing] the right to keep his defense privileged until the time of trial." In his brief on appeal, Peltola still provides no specifics as to how the loss of Venes's testimony prejudiced him with respect to this count. He has not asserted that Venes had particularized knowledge about how much Peltola charged Pendergraff for the hunt, or how much, if any, of this charge was profit as opposed to reimbursement for costs. In fact, when Venes was interviewed by the state troopers, he said he was not aware that any money had changed hands between Pendergraff and Peltola. Given this record, the district court reasonably found that, on this count, Peltola had failed to show a likelihood that the loss of Venes's testimony had a substantial adverse impact on the outcome of his case.
See id.
Peltola was also convicted of two counts of violating 5 AAC 92.080(4), which prohibits the taking of game from a motor-driven boat "unless the motor has been completely shut off and the progress from the motor's power has ceased." Peltola was convicted of these counts based on testimony that his boat was still under power when the two black bears were shot. In his affidavit, Peltola claimed that Venes, if he had lived until trial, would have testified that Peltola's boat was not under power when "a bear" was shot. But when he was interviewed by the state troopers, Venes said Peltola's boat was running when the bears were killed. Given this record, the district court did not err in rejecting Peltola's claim that the loss of Venes's testimony likely had a specific and substantial adverse impact on his verdicts on these counts.
There are some exceptions to this rule, but they are not relevant here. See 5 AAC 92.080(4)(A)-(E).
Because Peltola did not make a sufficiently particularized showing of prejudice to warrant dismissal of his case based on the State's pre-accusation delay, we need not reach Peltola's claim that the State's delay was unreasonable.
The court did not plainly err by instructing the jury in accordance with the statutory definition of "compensation"
Peltola argues that the trial court erred by instructing the jury in accordance with the statutory definition of "compensation." He argues that the court should have instructed the jury that it had to determine the actual costs of Pendergraff's hunt before deciding whether Peltola had been compensated for the hunt — that is, before deciding whether Peltola was guilty of guiding without a license because he was paid more than necessary to reimburse him for the actual costs of Pendergraff's hunt.
Peltola never asked the district court to instruct the jury that it had to calculate the actual cost of Pendergraff's hunt before deciding if he was guilty of guiding without a license. Rather, Peltola argued that any instruction the court gave the jury — whether it tracked his theory of the case, or the State's theory — would be error because the statute defining compensation was unconstitutionally vague. Because Peltola did not raise the claim he now argues in the district court, it is not preserved for appeal.
See Eliason v. State, 511 P.2d 1066, 1072 (Alaska 1973).
Peltola also has not shown plain error. Plain error exists when a jury instruction obviously creates "a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice." To convict Peltola of guiding without a license, the jury had to find that he guided "for compensation or with the intent or with an agreement to receive compensation." The jury thus was not required to find that Peltola actually profited from Pendergraff's hunt, only that Peltola intended or agreed to receive compensation.
Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992) (quoting Ollice v. Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska 1983)).
See AS 08.54.790(7).
The court instructed the jury that "compensation" meant "payment for services including wages or other remuneration but not including reimbursement for actual expenses incurred." In closing argument, the State highlighted evidence that the actual costs of Pendergraff's hunt (mainly fuel and food) were well below the $1500 he paid for the hunt. The State also pointed to evidence that Peltola told Trooper Dodson in a recorded phone conversation that he believed he was entitled to charge hunters at his camp twenty percent above cost. Peltola, for his part, argued that there were many hidden costs in running the hunting camp, and that the State had not presented enough evidence for the jury to conclude beyond a reasonable doubt that Pendergraff paid Peltola more than the actual costs of his hunt.
Given this instruction and argument, the jury, by convicting Peltola of guiding without a license, must have found beyond a reasonable doubt that he received, or intended or agreed to receive, compensation. By its plain language, that is all the statute requires. There is therefore no merit to Peltola's claim that the court plainly erred by not requiring the jury to calculate the precise costs of Pendergraff's hunt.
Conclusion
Peltola's convictions are AFFIRMED.