Opinion
Court of Appeals No. A-8669.
April 6, 2005.
Appeal from the District Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-02-392 CR, 3DI-03-89 CR.
Brent R. Cole and Colleen J. Moore, Marston Cole, P.C., Anchorage, for the Appellant.
John W. Wolfe, Assistant District Attorney, Dillingham, Leonard M. Linton Jr., District Attorney, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kerry D. Schmidt was convicted of seven fish and game violations related to taking two moose and one brown bear. At the time of his offenses, Schmidt possessed an Alaska resident hunting license. All but one of Schmidt's offenses — taking a brown bear during closed season in 2002 — required proof that he was not an Alaska resident, and that he was at least negligent in claiming that he was an Alaska resident.
Schmidt raises a number of challenges to these convictions. First, he argues that the definition of "take" in the fish and game statutes violates substantive due process, and that the trial court erred in instructing the jury based on that definition. Second, he argues that the trial court erred by admitting computer printouts showing that he had for years claimed an Alaska residence address on his applications for resident hunting licenses. Third, he argues that the court erred by failing to strike testimony that, in this same time period, he had provided Washington residence addresses to the Federal Aviation Administration during annual medical examinations he was required to have as a commercial pilot. Fourth, Schmidt claims that his sentence is excessive. For the following reasons, we reject these claims and affirm Schmidt's conviction and sentence.
Facts and proceedings
On September 8, 2002, while on fall game patrol near Dillingham, Alaska State Trooper Justin Rodgers landed his float plane at a hunting camp on Lake Okstukuk in Game Management Unit 17C. While talking with one of the hunters in that camp, Trooper Rodgers spotted a bear hide. At that time, the bear hunting season in Unit 17C was closed to residents and nonresidents.
One of the hunters, Kerry Schmidt, explained to Rodgers that he and his hunting partner had pursued a bear out of camp after it got into their moose meat, and that he had shot the bear when it stood up and faced him. Schmidt admitted that he did not shoot the bear in defense of life and property, and said he had an Alaska resident brown bear tag. He also said he believed he was hunting in Game Management Unit 17B, not Unit 17C, but said he did not know when the bear season opened in that area. Trooper Rodgers cited Schmidt for taking a brown bear in closed season in Unit 17C.
Several days later, Trooper Rodgers was approached by Schmidt's air taxi pilot. The pilot told Rodgers that Schmidt had paid him with Schmidt's personal check that showed a Washington address.
Trooper Rodgers began to investigate Schmidt and his residency. Rodgers learned that Schmidt was a commercial airline pilot who worked out of Anchorage but owned a home near Spokane, Washington, where his wife and five children lived. Since 1996, Schmidt had consistently reported Washington residence addresses to the Federal Aviation Administration, which regulates commercial airline pilots. In 1993 and 1994, he had also used a Washington residence address to purchase non-resident Alaska sport fishing licenses. But in 1995, Schmidt obtained an Alaska drivers license, registered to vote in Alaska, and began purchasing resident Alaska fishing and hunting licenses. Each year from 1995 through 1998, Schmidt reported an Anchorage address of 7302 Huntsman Circle on his applications for those licenses. At trial, Schmidt conceded that he had not lived at the Huntsman Circle address since about February 1995. He explained that he continued to use that address on his applications because he had no fixed address in Alaska, and because he thought he might move back to that address at some point. In 1999, Schmidt began using a post office box on his license applications. He testified that he was by that time living in his recreational vehicle whenever he was in Anchorage.
Schmidt was charged with nine fish and game offenses related to taking a brown bear in 2002, moose in 2000 and 2001, and a goat in 1999. The State dismissed the two goat counts before trial. All but one of the remaining seven offenses — taking a brown bear in closed season in 2002 — required proof that Schmidt was not an Alaska resident and that he had been at least negligent in claiming to be an Alaska resident. The three bear offenses also required the State to prove that Schmidt had not killed the bear in defense of life and property.
The jury convicted Schmidt of all seven counts. Superior Court Judge Fred Torrisi, sitting in the district court, imposed a composite sentence of 6 days to serve, $20,000 in fines, and $3,300 in restitution. Judge Torrisi placed Schmidt on probation for 6 years and also revoked his hunting license for that same period.
Schmidt appeals his conviction and sentence.
Discussion Is the statutory definition of "take" unconstitutional?
Schmidt was convicted of three offenses related to unlawfully taking a brown bear in 2002: taking a brown bear by hunting in a closed season, taking a brown bear without a registered guide, and taking a brown bear without locking tags. Schmidt argues that the statutory definition of "take" is unconstitutional, and that the court therefore erred by instructing the jury in accordance with that definition.
5 AAC 85.001 ("Game may not be taken by hunting except as specifically provided in this chapter."); 5 AAC 85.020 (establishing hunting seasons and bag limits for brown bear).
AS 16.05.407(a) ("It is unlawful for a nonresident to hunt, pursue, or take brown bear, grizzly bear, mountain goat, or sheep in this state, unless personally accompanied by" a registered guide).
AS 16.05.340(a)(15) ("A nonresident may not take a big game animal without previously purchasing . . . [an] appropriate tag"); AS 16.05.340(a)(15)(B).
For purposes of Title 16, "hunting" is defined as "the taking of game under AS 16.05 — AS 16.40 and the regulations adopted under those chapters." "Take" is defined as "taking, pursuing, hunting, fishing, trapping, or in any manner disturbing, capturing, or killing or attempting to take, pursue, hunt, fish, trap, or in any manner capture or kill fish or game."
AS 16.05.940(21).
AS 16.05.940(34).
Schmidt challenges this definition as unconstitutionally overbroad. He argues that the definition is so broad that a person could be convicted of unlawfully taking a bear by following it to take a photograph. What Schmidt is really arguing is that the definition of "take" violates due process — that the legislature has exceeded its lawmaking powers and penalized constitutionally protected conduct. We conclude that this claim fails under the facts of Schmidt's case.
See Petersen v. State, 930 P.2d 414, 428 (Alaska App. 1996).
As Schmidt acknowledges, when this type of due process challenge is brought against a statute that punishes conduct rather than speech, "'the possibility of difficult or borderline cases will not invalidate [the] statute' if there is a 'hard core of cases to which . . . the statute unquestionably applies.'" Schmidt was convicted of pursuing a bear and shooting at it in a closed season for reasons other than defense of life and property. At trial, Schmidt did not dispute that he had pursued the bear after it had taken his moose meat. Nor did Schmidt dispute that he shot at the bear. The only disputed issues were whether the shooting was in defense of life and property (the jury concluded that it was not) and whether Schmidt or his hunting partner killed the bear (the jury had no reason to resolve this issue). At trial, Schmidt testified that he "shot at the bear." And, when asked if he shot at the bear, he said: "Yes, I did." When asked if he actually hit the bear, he testified: "My feeling was I hit the bear." Schmidt cannot reasonably claim that pursuing a bear and shooting at it for reasons other than defense of life or property is constitutionally protected conduct that the legislature has no authority to regulate. Thus, even assuming for purposes of argument that the statutory definition of "take" presents constitutional issues at its periphery, Schmidt's conduct cannot reasonably be characterized as constitutionally protected.
Id. at 429 (quoting Stock v. State, 526 P.2d 3, 9 (Alaska 1974)).
Did the court abuse its discretion by admitting computer printouts of Schmidt's hunting and fishing license records?
Schmidt argues that the court erred by admitting printouts from a state computer database of his applications for Alaska hunting and fishing licenses. He argues that the printouts were not admissible under the public records exception to the hearsay rule — Evidence Rule 803(8) — because the State offered no evidence that the printouts were the product of the state Department of Fish and Game's regularly conducted and recorded activities, or that they were compiled pursuant to some legal duty.
Alaska Evidence Rule 803(8)(a) provides that the following records are not excluded by the hearsay rule, even though the declarant is available as a witness:
To the extent not otherwise provided in (b) of this subdivision, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.
We agree that the computer printouts were hearsay because they were offered to prove the content of other documents — Schmidt's original hunting and fishing applications. But we need not decide whether the State laid an adequate foundation for the admission of these printouts under the public records exception to the hearsay rule because Schmidt cured any deficiency in this foundation when he testified at trial. The State offered the printouts to show that Schmidt had purchased resident fishing and hunting licenses in the years reported on the printouts, and that he had misrepresented his residence when he did so — first, reporting an address where he no longer lived, and, later, a post office box. On cross-examination, Schmidt did not dispute that he had purchased licenses in those years, or that he had provided the addresses on the printouts.
See A.R.E. 801 ("Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); A.R.E. 802 ("Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Alaska Supreme Court, or by enactment of the Alaska Legislature.").
The printouts also showed discrepancies in the number of years of Alaska residency Schmidt claimed. For instance, the printouts showed that he had reported four years of residency on his 1997 hunting license application, but eight years and eight months of residency on his 1998 application. Because of concern that these discrepancies might result from typographical errors by the person entering the data into the state's database, the court barred the State from arguing to the jury that Schmidt had inconsistently reported his years of residency.
On appeal, Schmidt argues that the court's remedy was inadequate and untimely because Trooper Rodgers had already testified about the years of residency Schmidt had reported on his license applications, and because the jury was never cautioned to disregard this evidence. But Schmidt did not move to exclude the printouts based on these inaccuracies until after Trooper Rodgers had testified. Moreover, when the court barred the State from arguing that there were inconsistencies in the years of residency Schmidt had reported, Schmidt did not object that this remedy was inadequate, or ask the court to caution the jury about Rodgers's earlier testimony. Schmidt thus waived any objection on those grounds to admission of the computer printouts.
Schmidt also argues that the printouts should have been excluded because they were investigative reports of law enforcement, and because inaccuracies in the printouts undermined their reliability. Evidence Rule 803(8)(b)(i) exempts from the public records exception "investigative reports by police and other law enforcement personnel" because those records are potentially biased and thus unreliable. Evidence Rule 803(8)(b)(v) exempts more generally "any matter as to which the sources of information or other circumstances indicate lack of trustworthiness."
See Commentary to A.R.E. 803(8), at 613 (Main ed. 2004-2005).
Schmidt was the original source of the information on the printouts of his license application history, and he testified that the printouts were accurate for the purposes for which they were offered; he therefore cannot argue that this evidence should have been excluded as unreliable under Rule 803(8)(b)(v). And although the State relied on the printouts to prosecute Schmidt, they were not investigative reports prepared by law enforcement, but data compiled by the Department of Fish and Game from Schmidt's own hunting and fishing license applications. Any nexus between those data compilations and Schmidt's later prosecution for fish and game violations is far too attenuated to warrant exclusion of the records as investigative reports. We thus conclude that the district court did not abuse its discretion by refusing to exclude the printouts on these grounds.
See State v. Huggins, 659 P.2d 613, 616 (Alaska App. 1982).
Last, Schmidt argues that the printouts of his license application history from 1993 through 1998 should have been excluded because he was charged with fish and game offenses that occurred in 2000, 2001, and 2002, and his residency status prior to 1999 was thus not at issue. He claims that the earlier printouts were impermissible propensity evidence, irrelevant, and more prejudicial than probative.
After reviewing the record, we conclude that the trial judge did not abuse his discretion by admitting this evidence. The printouts showed that from 1993 through 1998, Schmidt reported on his hunting and fishing license applications either an out-ofstate address or an Alaska address where he was not actually living. That evidence was relevant to show that Schmidt did not reside in Alaska during those years, that he knew he was misrepresenting his residence when he committed his offenses, and that this conduct was part of a scheme or plan to fraudulently obtain resident hunting licenses. The jury was instructed on the precise years that Schmidt's residency was at issue, and Schmidt has advanced no basis for finding that the evidence of his earlier misrepresentations confused the jury as to the elements of his offenses, or led the jury to convict him on an improper basis.
See 1 John W. Strong, McCormick on Evidence § 197, at 695-97 (5th ed. 1999) (noting that evidence of prior frauds or misrepresentations are often admitted as proof of knowledge, intent, or common scheme or plan); see also Hicklin v. Orbeck, 565 P.2d 159, 171 (Alaska 1977), rev'd on other grounds, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) (citing 9 J. Wigmore, Evidence § 2530 (3d ed. 1940); C. McCormick, Evidence § 294 at 695-96 (2d ed. 1972) (noting that statements of intent as to domicile are evidence of domicile at a later time)).
Did the court err by refusing to strike evidence that Schmidt had reported a Washington residence address to the Federal Aviation Administration?
Schmidt argues that the court erred by refusing to strike testimony by Larry Peterson, a safety inspector for the Federal Aviation Administration (FAA), that Schmidt had reported Washington residence addresses to the FAA during the same years that he was claiming he was an Alaska resident for purposes of obtaining Alaska resident hunting licenses. (The FAA requires airline pilots to provide a current address, and to notify the FAA of any changes in that address.) Schmidt argues that this information was protected from disclosure by state and federal privacy law, that it was inadmissible hearsay, and that it was irrelevant.
Schmidt raised no hearsay or relevancy objections to Peterson's testimony in district court, and he has not alleged plain error. Consequently, he has waived these claims. In any event, the claims have no merit. In his testimony, Schmidt did not dispute that he had provided Washington residence addresses to the FAA, and he explained why he had done so, curing any doubts about the reliability of that evidence. Moreover, for the reasons explained above, evidence that Schmidt had reported a Washington residence address to the FAA every year since 1996 was relevant to show his intent and knowledge regarding his residence, and to show a plan or scheme to misrepresent his residence to obtain resident hunting licenses.
See A.R.E. 103(a)(1), (d).
Schmidt next argues that the evidence that he reported Washington residence addresses to the FAA was protected from disclosure under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), and under the privacy clause of the Alaska Constitution. Schmidt did not preserve these challenges. At trial, Schmidt moved to suppress Peterson's testimony that Schmidt's medical records showed a Washington residence address, arguing that his medical records were private under "federal law." The court asked Schmidt if he had any authority to strike Peterson's testimony or any record. When Schmidt said that he did not, the court invited him to present argument the following day. However, Schmidt never renewed his objection or offered any authority for suppressing this evidence.
Pub.L. No. 104-191; 42 U.S.C. § 1320d-6 (2003); 45 CFR §§ 160, 164.
Alaska Const. art I, § 22.
Nor has Schmidt shown plain error. HIPAA provides that "covered entities" must follow specific procedures before disclosing "protected health information," including demographic information, in judicial proceedings. "Covered entities" are defined as a health plan, a health care clearinghouse, or a health care provider that transmits health information in electronic form in connection with certain health-care related financial or administrative transactions. Schmidt has not established that the FAA is a "covered entity." And even if it were, Schmidt has cited no authority for his claim that suppression of the evidence would be the appropriate remedy for a HIPAA violation.
45 C.F.R. § 160.103.
See Winfrey v. State, 78 P.3d 725, 729 (Alaska App. 2003); Nathan v. Anchorage, 955 P.2d 528, 533 (Alaska App. 1998).
Schmidt also has not shown that the trial court plainly erred by failing to suppress this evidence under the privacy clause of the Alaska Constitution. Schmidt complains only about admission of the Washington residence addresses he reported to the FAA; he does not assert that the addresses were revealed in connection with any private medical information. As we have previously observed, as a general rule a person does not have a reasonable expectation of privacy that society is prepared to recognize in his or her name and address. Is Schmidt's sentence excessive?
State v. Chryst, 793 P.2d 538, 542 (Alaska App. 1990).
Schmidt was convicted of seven fish and game offenses, all of them class A misdemeanors. The court sentenced him to 120 days in jail with 114 days suspended — 6 days to serve — and imposed $20,000 in fines and $3,300 in restitution. Schmidt's hunting license was revoked for 6 years and he was placed on probation for 6 years.
At the sentencing hearing, Trooper Rodgers testified about the license fees and matching federal funds the state had lost because Schmidt had purchased resident, rather than nonresident, fishing and hunting licenses. Rodgers also testified about other fish and game offenses Schmidt had committed that the State had not charged, including killing moose in 1995 and 1996 with a resident license; killing a brown bear with a resident license in 1997; and killing a mountain goat with a resident license in 1999. In 1998, Schmidt obtained resident hunting tags but did not submit a report as required on whether he had harvested any animals. Schmidt did not dispute these assertions.
Based on this testimony, the State argued that it had lost $38,320 because Schmidt had falsely claimed residency on his hunting and fishing licenses for eight years. The State estimated that the loss was closer to $60,000 when Alaska business interests were considered (nonresidents are required to hire registered guides for some hunts, which the State said could run $10,000 for a bear hunt). The State argued that Schmidt's offenses were committed knowingly, and for substantial pecuniary gain. It asked the court to impose a 30-day prison term and a $5,000 fine for each of the seven counts, $3,300 in restitution, and probation and loss of hunting and fishing privileges for 8 years.
Judge Torrisi found that Schmidt's offenses were "clearly negligent and arguably more than that given the equivocation on the various forms." He agreed with the jury's conclusion that the bear had not been killed in defense of life and property. He also found it "fairly clear" that Schmidt's residence was Washington. In imposing sentence, he emphasized the Chaney factors of deterrence and community condemnation.
See State v. Chaney, 477 P.2d 441, 443 (Alaska 1970).
Schmidt argues that $20,000 in fines is unconstitutionally excessive given that he was convicted of only negligent conduct. He cites no cases on point, but argues that large criminal fines, like punitive damages in civil cases, should only be imposed for outrageous, malicious, or reckless conduct. He asserts that negligence is equivalent to inadvertence, and argues that no purpose of deterrence or criminal administration is served by imposing a large fine for inadvertent conduct.
Schmidt's claim might have some merit if he had been convicted of a strict liability offense. We have previously observed that it could violate due process to impose substantial fines for violation of an offense without proof of any culpable mental state. But once a person has been convicted of an offense requiring proof of a culpable mental state, including civil negligence, factors other than culpability govern the amount of the fine. As long as the fine is within constitutional limits, "the offender's ability to pay and the need to deter, not relative culpability, should determine the amount of a fine." Schmidt has not asserted that the court failed to consider his ability to pay $20,000 in fines. And, as discussed below, he has not shown that the court was mistaken in finding that such fines were justified to deter Schmidt and others from similar offenses.
Constantine v. State, 739 P.2d 188, 190 (Alaska App. 1987); Beran v. State, 705 P.2d 1280, 1292 (Alaska App. 1985) (Bryner, C.J., concurring) and at 1293 (Coats, J., concurring).
Wilson v. State, 756 P.2d 307, 313 (Alaska App. 1988).
See State v. Hazelwood, 946 P.2d 875, 884 (Alaska 1997) ("the [civil] negligence standard is constitutionally permissible [in criminal cases] because it approximates what the due process guarantee aims at: an assurance that criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter.").
Schmidt argues that the fines that Judge Torrisi imposed exceed the limits imposed by the Eighth Amendment of the U.S. Constitution and its state equivalent, article I, section 12 of the Alaska Constitution. The Eighth Amendment prohibits "extreme sentences that are 'grossly disproportionate' to the crime." The Alaska Constitution similarly forbids punishments that are "so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice."
McNabb v. State, 860 P.2d 1294, 1298 (Alaska App. 1993) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836 (1991)).
Id. at 1298 (quoting Thomas v. State, 566 P.2d 630, 635 (Alaska 1977); Green v. State, 390 P.2d 433, 435 (Alaska 1964)).
We easily conclude that the fines imposed are not unconstitutionally disproportionate to Schmidt's offenses. Judge Torrisi found that Schmidt's crimes in this case were "clearly negligent and arguably more than that." The court reasonably could have found that Schmidt had committed other fish and game offenses for which he was never penalized; Trooper Rodgers testified that, in addition to the bear and two moose at issue in this case, Schmidt had since 1995 unlawfully taken a brown bear, two moose, and a mountain goat. The court also reasonably could have found that Schmidt would have spent more than $20,000 over the years if he had hunted legally — that is, if he had purchased nonresident hunting licenses and tags and hired registered guides when required by statute to do so — and that fines of $20,000 were necessary to deter him and others from similar offenses. We further note that since Schmidt committed his offenses, the legislature has increased the fine authorized for each of his offenses from $5,000 to $10,000. Given these circumstances, we conclude that fines of $20,000 are not so disproportionate to Schmidt's offenses as to be completely arbitrary and shocking to the sense of justice.
See AS 12.55.035(b)(5); ch. 131, §§ 1, 2, SLA 2002 (increasing fines effective October 3, 2002).
Schmidt also argues that the court erred in imposing maximum fines of $5,000 for each of his offenses because they were not worst offenses and he was not a worst offender. But a worst offender finding is required to justify a maximum term of imprisonment, not a maximum fine. As this court explained when it rejected a similar claim in Ashton v. State:
737 P.2d 1365 (Alaska App. 1987).
It is true that a maximum prison sentence should not be imposed unless the defendant can be properly termed a worst offender. State v. Wortham, 537 P.2d 117, 120 (Alaska 1975). However, different rules govern the imposition of fines, which are essentially calculated on the basis of ability to pay. See, e.g., AS 12.55.035. A maximum fine does not necessarily indicate that the defendant is a "worst offender."
Id. at 1366 n. 1.
Schmidt also argues that it was fundamentally unfair to fine him $20,000 when the defendant in Graybill v. State, who had a lengthier history of fish and game violations, was fined only $14,000 with $3,000 suspended. What Schmidt neglects to mention is that, in addition to that fine, Graybill received a 7-year sentence with 5½ years suspended and had his hunting license revoked for 42 years. Moreover, as noted above, deterrence and ability to pay, not relative culpability, are the factors that courts consider in imposing criminal fines, and Schmidt has not addressed those factors. Schmidt has not shown that the disparity between his and Graybill's fines is so irrational as to be unjustifiable.
672 P.2d 138 (Alaska App. 1983) ( Graybill I), rev'd in part, 695 P.2d 725 (Alaska 1985) ( Graybill II).
Id. at 139-40.
Id.; Graybill II, 695 P.2d at 731 (reversing Graybill I in part and affirming Graybill's sentence).
See Burleson v. State, 543 P.2d 1195, 1202 (Alaska 1975).
Schmidt argues in passing that the court erred by imposing his fines to compensate the State for money it lost due to Schmidt's misconduct. Schmidt did not raise this objection at sentencing; nor has he pointed to anything in the record demonstrating that Judge Torrisi imposed the fines for this purpose. Indeed, the court's sentencing remarks suggest that it imposed the fines to express the community's condemnation and to deter Schmidt and others from future offenses. In any event, as the State points out, courts are required to consider "the restoration of the victim and the community" in imposing sentence.
AS 12.55.005(7).
Schmidt also claims that the court erred in making the $5,000 fine imposed for count I (taking a brown bear in closed season) consecutive to the fines imposed for counts II and III (taking a bear without a registered guide and without locking tags, respectively). Schmidt argues that all three offenses arose from the same act and objective of shooting a bear, and serve the same social interest in preserving and managing game.
Schmidt argues that former AS 12.55.025 required Judge Torrisi to impose the fines for these three bear offenses concurrently. But subsections (e) and (g) of that statute, which express the legislature's intent with respect to consecutive and concurrent sentencing, by their plain terms only address sentences of imprisonment.
These subsections have since been repealed and replaced with AS 12.55.127. See Ch. 125, § 7, SLA 2004.
In any event, even assuming former AS 12.55.025(e) and (g) govern the imposition of fines, Schmidt's claim would fail. Former subsection (e) expresses the legislative preference for consecutive terms of imprisonment. Former subsection (g) gives courts discretion to impose prison terms concurrently for two or more crimes if those crimes violate similar interests, are part of a single, continuous episode, or if "there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or type of property right offended, or the persons offended." Judge Torrisi was not clearly mistaken in finding that the offense of taking a brown bear out of season was sufficiently distinct from the offenses of taking a brown bear without a registered guide and without a locking tag to warrant a consecutive fine for that offense. Schmidt's objective and conduct in failing to hire a guide or to purchase a nonresident tag were distinct from his objective and conduct in shooting the bear in closed season after it had taken his moose meat. Moreover, while all three offenses serve the state's interest in managing and conserving Alaska's brown bear population, the guide and tag requirements also serve other interests. For instance, the requirement that out-of-state hunters hire a qualified, registered guide serves the state's interest in hunter safety, and the requirement that a nonresident spend $500 to purchase a brown bear locking tag (compared with $25 for a resident) serves the state's interest in raising revenue. Furthermore, count I would have been a crime regardless of whether Schmidt had been an Alaska resident, while counts II and III required proof that he was not a resident and was negligent in claiming that he was. For these reasons, even if former AS 12.55.025(e) and (g) govern criminal fines, the court was not clearly mistaken in imposing the $5,000 fine for count I consecutively with the fines for counts II and III. Conclusion
Former AS 12.55.025(e) (2002); Jones v. State, 744 P.2d 410, 411 (Alaska App. 1987).
See State v. Andrews, 707 P.2d 900, 908 (Alaska App. 1985); Griffith v. State, 675 P.2d 662, 664 (Alaska App. 1984), overruled on other grounds by Andrews, 707 P.2d 900.
See AS 16.05.340(15)(B).
Cf. Buckwalter v. State, 23 P.3d 81, 88 (Alaska App. 2001) (affirming trial court's imposition of consecutive sentence because multiple convictions violated distinct societal interests).
Schmidt's convictions and sentence are AFFIRMED.