Opinion
No. 40547-4-II.
Filed: July 19, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 09-1-00188-2, F. Mark McCauley, J., entered April 5, 2010.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Armstrong and Johanson, JJ.
Jason A. Stoken appeals his conviction for second degree unlawful hunting of big game (count 1) and first degree hunting while license revoked or suspended (count 3). Stoken argues that (1) jury instructions two and six omitted an essential element of the crime of first degree hunting while license revoked or suspended (count 3), (2) evidence was insufficient to support count 1 and count 3, (3) the State failed to prove that Stoken was not performing authorized fish and wildlife duties, and (4) the trial court violated his constitutional rights by not ensuring jury unanimity on count 1 because it was a multiple acts case. Finding no error, we affirm.
FACTS
The State charged Stoken with one count of second degree unlawful hunting of big game (count 1) and two counts of first degree hunting while license revoked or suspended (counts 2 and 3). The State alleged that (1) on April 22, 2008, Stoken hunted, took, or possessed big game, to wit: a blacktail deer, out of season, contrary to RCW 77.15.410 (count 1); (2) in 2007, Stoken hunted, took, or possessed big game, to wit: a 6x7 elk, without a license, contrary to RCW 77.15.670 (count 2); and (3) in 2006, Stoken hunted, took, or possessed big game, to wit: a 5x5 elk without a license, contrary to RCW 77.15.670 (count 3).
The 62nd legislature, during its 2011 regular session, passed amendments to RCW 77.15.410. The 2011 amended statute's effective date is July 22, 2011. Any changes to the statute are not pertinent to this opinion. See H.B. 1340, 62nd Leg., Reg. Sess. (Wash. 2011); Laws of 2011, ch. 133, sec. 1.
These numbers refer to the number of points on the right and left antler, respectively.
Stoken's brother testified that by counting the "eyeguards," — the points on a buck's antlers that are immediately above the bases and before the first fork in the antlers — the same elk could be referred to as a 5x6. Report of Proceedings at 226.
At trial, Kimberly Brigden, Stoken's sometime girlfriend, testified that she met Stoken in 2005. According to Brigden, during the time that she knew Stoken, there was never a time when he stopped hunting. She testified that, in 2006, she saw Stoken with two or three dead animals. She specifically saw him cutting up elk meat. She testified that Stoken lived at his mother's house at 43 Tuffree Road in Humptulips. The only time that she saw Stoken wrap meat at his mother's house, he put the meat in the freezer on the back porch.
Also, in April 2008, Brigden saw Stoken butcher a blacktail deer near a river in Grays Harbor County. She observed Stoken wrap and pack the meat and leave with it in his backpack. Brigden did not see Stoken shoot the deer but heard a gunshot and knew Stoken was in possession of a gun at the time. Brigden reported Stoken's actions to the game warden and provided the authorities with the meat that Stoken had given her after the hunt.
Brigden provided two statements to Washington Department of Fish and Wildlife (Department) Enforcement Officer Brian Alexander. At trial, Alexander read both statements into the record. Brigden's first statement from April 25 stated:
. . . On 4/17/08 around 6 p.m. I was with Jason Stoken on the gravel bar on the east fork of the Humptulips River. Jason and I had an argument and he grabbed his .22 rifle with scope and tripod and went up the riverbank. He was gone about 10 minutes when I heard three shots. A few minutes later he came back and told me he shot a deer. He grabbed his knife and garbage bags and a day pack. I told him I wanted to go so we walked back up the river. He carried me across the river to the other side. We walked for only a moment or two and the deer was laying dead. Jason drug it to the base of the tree and boned out the meat, leaving the carcass, head, guts, et cetera, behind. He buried them under some ferns at the base of the tree. He put the meat into bags and placed them into his day pack. He packed all of it and me back across the river. He placed the meat on his shirt, one of his, near the river by our camp to cool. He said it would be okay for three days. The next day, 4/18/08, he packed up all of his stuff including the meat and left. Jason left one large p[iece] behind. I put it [i]n my cooler. I have not seen or talked to him since. I gave the meat to Officer Alexander and showed him the shirt also.
Report of Proceedings (RP) at 176-77. In her May 1 statement, Brigden stated:
. . . On 5/1/08 I met with [Department] officers Brian Alexander[,] Mark James[,] . . . Jerry Zimmerman[,] and Brad Rhoden at their office in Montesano. I was asked to look at some items they had to see if I could identify them. I looked at a blue Yamaha Raptor quad that I recognized as belonging to Jason Stoken. It was the same Raptor quad [Stoken drove] when he left the river bar on the 18th. He had the deer meat, the gun and the rest of his stuff with him.
A Raptor quad is a type of all-terrain vehicle.
Officer Alexander also showed me a .22 rifle that I identified as belonging to Jason Stoken. It is the same rifle he used to shoot the deer on the 17th. I recognized the bipod and the antler butt stock. I also looked at three camouflaged packs laid out on the floor. I picked out the one named Badlands and recognized the pack that he put the deer meat in on the 17th and 18th when he left.
I also gave Officer Alexander two ivory elk teeth that Jason gave me in mid November 2007. He said it was from an elk he had recently killed. Jason had told me he had lost his hunting rights when I first met him in 2005 but he continued to hunt anyway. He hunted each archery season, early and late, with his brother Russell. They hunt down towards Mt. St. Helen's.
Stoken; his brother, Russell; and his nephew, Garrett, all share the same last name. We refer to Russell and Garrett by their first names to avoid confusion.
Since I have known Jason in 2005 he has killed at least five elk that I know of. I have seen antlers from the elk and watched him cut and package at least two of them. I also watch[ed] him butcher the deer that he shot on the 17th of April.
RP at 178-79.
Department employees Alexander, James, Greg Haw, Matt Nixon, Evan Yett, Rhoden, Cheryl Dean, and Kenneth Warheit also testified at trial. James and Alexander testified that in April 2008 they responded to a report of a poached blacktail deer in Humptulips. They recovered a concealed yearling blacktail doe carcass in a hole covered with ferns at the base of a tree. The deer appeared to have been shot but the officers did not find the bullet or casing. James testified that the small hole found in the deer was consistent with a ".22 type weapon." RP at 43. Alexander testified that deer hunting season was not open in April 2008 and that it typically starts in September. The officers took a sample from the deer carcass and placed it in a freezer for later testing.
After discovering the deer, the officers obtained a search warrant for Stoken's residence. James advised Stoken of his Miranda rights. Before the officers told Stoken the reason for the search, Stoken stated that "the fucking bitch is a liar and [Stoken] had nothing to do with killing a deer." RP at 45. Haw testified that Stoken stated, "Do not take my elk meat . . . that's how I feed my family. . . . If you take my food I will have to poach more elk." RP at 58. Nixon testified that, while the officers were searching Stoken's residence, Stoken denied knowledge of the deer and stated that the meat from his mother's freezer was old and from several relatives, including Russell. The officers recovered a bag of jerky in the kitchen, multiple bags of meat in the freezer, teeth, antlers, and a photograph of Stoken posing with a dead bull elk, which was on the dresser in his bedroom.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Russell and Garrett both testified that they hunted and killed elk between 2006 and 2007 and that they often stored their meat in Stoken's mother's freezer. Stoken's mother also testified that many people, including Garrett and Russell, stored meat in her freezer.
Yett testified that Stoken's hunting license was restricted on April 6, 2006, and released on January 2, 2008. Yett also testified that Garrett did not report any tags from 2006 through 2009 and that Russell's hunting history showed that, although he hunted elk in 2006, he reported that there was no kill.
Alexander testified that the antlers on the elk that Stoken posed with in the photograph taken from his residence matched a set of antlers seized during the officers' search of Stoken's residence. Moreover, Warheit testified that genetic testing indicated that the antlers that matched the photograph also matched some teeth and meat found at Stoken's residence, which indicated they were all from the same elk.
Dean testified that blood removed from Stoken's backpack was from an elk, not a deer. Genetic testing indicated that (1) the meat from the animal remains recovered by James and Alexander, (2) the jerky found at Stoken's residence, and (3) the meat sample from Brigden were from the same deer.
The jury found Stoken guilty of count 1, second degree unlawful hunting of big game, and count 3, first degree hunting while license suspended or revoked. Stoken appeals.
ANALYSIS
I. First Degree Hunting with License Suspended Jury Instructions
Stoken contends that jury instructions two and six were incorrect legal statements for the charge of first degree hunting with license suspended in count 3. Stoken argues that the instructions omitted an essential element of the crime and, thus, relieved the State of its burden of proof. He argues that the jury was instructed that the elements of second degree hunting while license suspended constitute[d] the offense in the first degree, thus, the State was able to obtain a first degree conviction without the burden of proving the elements of a first degree offense. This argument lacks merit.
We review an alleged error of law in jury instructions de novo. State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213 (2005). "Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law." Willis, 153 Wn.2d at 370.
RCW 77.15.670, the statute codifying the crime of hunting while license suspended, states:
(1) A person is guilty of violating a suspension of department privileges in the second degree if the person engages in any activity that is licensed by the department and the person's privileges to engage in that activity were revoked or suspended by any court or the [D]epartment.
(2) A person is guilty of violating a suspension of [D]epartment privileges in the first degree if the person commits the act described by subsection (1) of this section and:
(a) The suspension of privileges that was violated was a permanent suspension;
(b) The person takes or possesses more than two hundred fifty dollars' worth of unlawfully taken food fish, wildlife, game fish, seaweed, or shellfish; or
(c) The violation involves the hunting, taking, or possession of fish or wildlife classified as endangered or threatened or big game.
Jury instruction two stated:
The defendant has been charged by Information with the crime of Unlawful Hunting of Big Game in the Second Degree (Count 1) and Hunting While License Revoked in the First Degree (Counts 2 and 3).
A person commits the crime of Unlawful Hunting of Big Game in the Second Degree when he knowingly hunts or takes big game during a closed season.
A person commits the crime of Hunting While License Revoked in the First Degree when he knowingly hunts, takes or possess[es] big game, at a time when his privilege to engage in that activity was revoked or suspended.
A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.
Clerk's Papers (CP) at 20. Additionally, jury instruction six stated:
To convict the defendant, Jason A. Stoken, of the crime of Hunting While License Revoked in the First Degree, as charged in Count [3] of the Information, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or between January 1, 2006 and December 31, 2006, the defendant knowingly hunted, took or possessed big game, to wit: a 5x5 Elk,
(2) At the time of the hunting, taking or possessing the defendant's privilege to hunt big game was revoked or suspended;
(3) That these events occurred in the State of Washington.
If you find from the evidence that each of the elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to the crime of Hunting While License Revoked in the First Degree.
CP at 21.
Here, jury instruction two and six instructed the jury that to convict Stoken of first degree hunting while his license was suspended, it had to find that his license was revoked and that, while his license was revoked, he knowingly hunted, took, or possessed big game, as required by RCW 77.15.670. Both jury instructions two and six included the requirement that the jury find Stoken was hunting "big game." CP at 20, 21. Because the jury instructions properly instructed the jury on the elements of the crime of first degree hunting while license revoked or suspended, Stoken's argument fails.
RCW 77.08.030 includes elk and blacktail deer in its definition of "big game." Stoken does not argue that elk and blacktail deer are not "big game" under chapter 77.08 RCW.
II. Sufficiency of the Evidence
Stoken also challenges the sufficiency of the evidence supporting both convictions. He challenges the first degree hunting with license suspended conviction, arguing that "the State proved no more than second degree hunting with license suspended" because it "offered no evidence that Stoken's suspension was permanent," "[t]here was no evidence of a dollar value of wildlife taken or possessed[,] and there was no evidence that wildlife taken was endangered or threatened." Br. of Appellant at 11-12. But Stoken incorrectly interprets RCW 77.15.670. Stoken also argues that the State presented insufficient evidence to support his second degree unlawful hunting of big game conviction, arguing that the State "failed to provide the jury with the facts needed in order to conclude that the[] animal killed on April 22, 2008, was out-of-season." Br. of Appellant at 14. These arguments also fail.
A. Standard of Review
"A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "When reviewing a challenge to the sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). "In determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Additionally, we "defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
B. Evidence Supporting Conviction for First Degree Hunting with License Suspended
RCW 77.15.670(2) requires that, in addition to the acts described in RCW 77.15.670(1), the person is guilty of first degree hunting with license suspended if
(a) The suspension of privileges that was violated was a permanent suspension;
(b) The person takes or possesses more than two hundred fifty dollars' worth of unlawfully taken food fish, wildlife, game fish, seaweed, or shellfish; or
(c) The violation involves the hunting, taking, or possession of fish or wildlife classified as endangered or threatened or big game.
(Emphasis added.)
Here, the evidence showed that Stoken was hunting, taking, or possessing big game without a hunting license. The State did not need to prove that Stoken's license suspension was permanent, the dollar value of the unlawfully taken game, or that the game was endangered or threatened. The State only needed to demonstrate that the elk was "big game" under RCW 77.15.670(2)(c). Moreover, Stoken has not argued that the State failed to demonstrate that the elk was big game. Because the State demonstrated Stoken was unlawfully hunting elk, and elk is big game, we hold that Stoken's argument fails.
C. Evidence Supporting Conviction for Second Degree Unlawful Hunting of Big Game
Stoken characterizes Alexander's testimony about whether the deer was killed during hunting season as a legal opinion and alleges that there was no factual basis provided that supports the jury's verdict of guilt. Again, we disagree.
Whether hunting season was open when the blacktail deer was shot on April 22, 2008, is a question of fact. James and Alexander testified that in April 2008, after responding to Brigden's tip, they recovered a concealed yearling blacktail doe carcass that appeared to have been shot. Alexander also testified that deer hunting season was not open in April 2008. Moreover, Brigden testified that she saw Stoken butcher the blacktail deer in April 2008.
We hold that the State presented sufficient evidence that on April 22, 2008, deer hunting season was not open and Stoken unlawfully hunted a blacktail deer out of season. Here, "after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Hosier, 157 Wn.2d at 8.
III. Fish and Wildlife Duties as Affirmative Defense
Next, Stoken argues that "the State failed to allege or prove the essential statutory element that Stoken was not performing authorized fish and wildlife duties." Br. of Appellant at 12 (capitalization omitted). Stoken asserts that because "RCW 77.15.010 provides that a person is exempt from the provisions of Chapter 77.15 RCW if he or she is an officer, employee, or agent of the [D]epartment lawfully acting in the course of authorized duties [and that] this [wa]s an additional element the State must prove beyond a reasonable doubt." Br. of Appellant at 12. Moreover, Stoken argues that "[t]he failure to instruct the jury on this element requires reversal of both convictions." Br. of Appellant at 13.
Stoken did not raise the exemption as an affirmative defense to the charges and he provides no authority requiring the State to prove that Stoken was not performing authorized fish and wildlife duties as an element of either crime. RAP 10.3(a)(6), (b) (The parties' briefs should provide "argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record."); see also Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) ("Passing treatment of an issue or lack of reasoned arguments is insufficient to merit judicial consideration.").
In State v. McCullum, 98 Wn.2d 484, 490, 656 P.2d 1064 (1983), our Supreme Court addressed the issue of whether the State bore the burden of proof on the absence of a defense. In doing so, the court employed the following analysis: (1) whether statutes reflect a legislative intent to treat absence of a defense as one of the elements included in the definition of the crime and (2) whether the defense negated one or more elements of the offense which the State must prove beyond a reasonable doubt. McCullum, 98 Wn.2d at 490. Stoken has not argued nor provided legal authority regarding the legislative intent of chapter 77.15 RCW or whether RCW 77.15.010 negates an element of either crime. See RAP 10.3(a)(6), (b).
We recently addressed a similar argument in the context of illegal firearms possession in State v. Carter, 161 Wn. App. 532, 540-42, ___ P.3d ___ (2011). There, we held that an exemption in the unlawful firearms statute was an affirmative defense to the unlawful possession of a firearm offense that the defendant had the burden of establishing, rather than an offense element that the State was required to prove. Carter, 161 Wn. App. at 542. We reasoned that the exemption's placement "in a separate subsection rather than including it in the definition of the offense . . . clearly suggest[ed] a legislative intent to create an affirmative defense rather than an element of the offense." Carter, 161 Wn. App. at 542.
We further stated that the exemption was an affirmative defense because "the existence of a federal [firearm] license and the nature of the work [the defendant] performed under that license were `immediately within' [the defendant]'s knowledge." Carter, 161 Wn. App. at 542 (quoting State v. Moses, 79 Wn.2d 104, 110, 483 P.2d 832 (1971)). "`It is generally held in criminal cases that, if the facts of an affirmative defense lie immediately within the knowledge of the defendant, the onus probandi, under the principle of `balancing of convenience,' should be his.`" Carter, 161 Wn. App. at 541 (quoting Moses, 79 Wn.2d at 110).
Here, RCW 77.15.010, the exemption for fish and wildlife employees, is found in a separate chapter section than both RCW 77.15.410 (unlawful hunting of big game) and RCW 77.15.670 (hunting while license revoked or suspended), indicating the exemption is an affirmative defense, not an element of either offense. And whether Stoken was performing authorized duties as an officer, employee, or agent of the Department was "immediately within" Stoken's knowledge, further indicating that the exemption was an affirmative defense. Moses, 79 Wn.2d at 110; see Carter, 161 Wn. App. at 542.
Finally, in Carter, we discussed that the exemption did not negate an element of the charged crime, suggesting that it was not an offense element. Carter, 161 Wn. App. at 542. Similarly, here, whether Stoken was a Department employee performing official duties when the criminal activity occurred does not negate an element of either charged crime and, thus, further suggests that the exemption is not an element of the offense. See Carter, 161 Wn. App. at 542.
We hold that the exemption found in RCW 77.15.010 is an affirmative defense and not an element of either the offense of unlawful hunting of big game or hunting while license revoked or suspended and, thus, the State did not have the burden of proving it. Thus, Stoken's argument fails.
IV. Jury Unanimity on Count 1
Finally, Stoken argues that the trial court's failure to ensure jury unanimity on count 1 violated his state and federal constitutional due process rights. Stoken states that "[w]here the State alleges a single charge that could be committed in multiple ways, either the State must elect which act it is relying on as the basis for the charge or the judge must instruct the jurors that they must unanimously agree that the prosecution has proved a single act beyond a reasonable doubt." Br. of Appellant at 17-18.
We review the failure to give a multiple acts unanimity instruction for constitutional harmless error. State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009). Such an error is not harmless unless "a `rational trier of fact could find that each incident was proved beyond a reasonable doubt.`" State v. Camarillo, 115 Wn.2d 60, 65, 794 P.2d 850 (1990) (quoting State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091 (1985)).
In Washington, a jury may convict a criminal defendant only if the members of the jury unanimously conclude that the defendant committed the criminal act with which he or she was charged. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). A defendant's right to a unanimous verdict is rooted in the Sixth Amendment to the United States Constitution and in article I, section 22 of the Washington Constitution. See State v. Kitchen, 110 Wn.2d at 409. Where the evidence indicates that more than one distinct criminal act has been committed, but the defendant is charged with only one count of criminal conduct, the "jury must be unanimous as to which act or incident constitutes a particular charged count of criminal conduct." State v. Borsheim, 140 Wn. App. 357, 365, 165 P.3d 417 (2007).
The determination of whether a unanimity instruction was required turns on whether the prosecution constituted a "multiple acts case." Bobenhouse, 166 Wn.2d at 892 (emphasis omitted). A multiple acts prosecution occurs when "several acts are alleged and any one of them could constitute the crime charged." Kitchen, 110 Wn.2d at 411. For example, the prosecution for a single count of rape based on evidence of multiple, separate acts, "each of which is capable of satisfying the material facts required to prove" the charged crime, constitutes a multiple acts case. Bobenhouse, 166 Wn.2d at 894; see also Kitchen, 110 Wn.2d at 405-06, 411. Thus, in multiple acts cases, either (1) the State must elect a specific act on which it will rely for conviction or (2) the trial court must instruct the jury that it must unanimously agree that a specific criminal act has been proved beyond a reasonable doubt. Bobenhouse, 166 Wn.2d at 893; State v. Noltie, 116 Wn.2d 831, 843, 809 P.2d 190 (1991); Petrich, 101 Wn.2d at 572. The failure of the State to elect a specific act or the trial court's failure to issue a unanimity instruction in a multiple acts case "is constitutional error. `The error stems from the possibility that some jurors may have relied on one act or incident and some [jurors a different act], resulting in a lack of unanimity on all of the elements necessary for a valid conviction.`" Bobenhouse, 166 Wn.2d at 893 (alteration in original) (quoting Kitchen, 110 Wn.2d at 411).
Here, jury instruction four stated:
To convict the defendant, Jason A. Stoken, of the crime of Unlawful Hunting of Big Game in the Second Degree, as charged in Count [1] of the Information, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about April 22, 2008, the defendant knowingly hunted or took big game,
(2) At the time of the defendant's hunting or taking the season was closed to such activity, and
(3) That these events occurred in the State of Washington.
If you find from the evidence that each of the elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to the crime of Unlawful Hunting of Big Game in the Second Degree.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty as to the crime of Unlawful Hunting of Big Game in the Second Degree.
CP at 20-21.
Stoken does not explain how the State could have proved count 1 in multiple ways. It is clear that count 1 was based on Stoken's act of big game hunting out of season on April 22, 2008. Conversely, count 2 was based on his acts of hunting with a suspended or revoked hunting license between January 1, 2007, and December 31, 2007, and count 3 was based on his acts between January 1, 2006, and December 31, 2006. Moreover, each count was based on Stoken's acts of hunting different animals — count 1 involved a blacktail deer, count 2 involved a 6x7 elk, and count 3 involved a 5x5 elk. Here, as the instructions made clear, each count was based on acts that occurred during different, not overlapping, time frames and involved different animals. Thus, Stoken's count 1 conviction was not a "multiple acts case" because the State did not allege several acts that could each independently constitute the crime charged and, thus, we hold that a unanimity instruction was not required. See Bobenhouse, 166 Wn.2d at 894.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P. J. and JOHANSON, J. concur.