Docket No. 26624.
Filed: July 11, 2001.
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Stephen W. Drescher, District Judge. Hon. James A.
Order of the district court, on appeal from the magistrate's dismissal of criminal prosecution, affirmed.
Hon. Alan G. Lance, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for appellant.
Wiebe Fouser, Canyon County Public Defender; Thomas A. Sullivan, Deputy Public Defender, Caldwell, for respondent.
The state appeals from the district court's appellate decision affirming the magistrate's dismissal of a misdemeanor criminal prosecution. For the reasons stated below, we affirm.
In 1996, Frank Maidwell obtained a permit to hunt for an antlerless elk. In November 1996, an Idaho Fish and Game officer began an investigation of Maidwell after receiving information from several individuals that Maidwell had shot and killed a fully antlered bull elk, thereby exceeding the scope of his permit. Maidwell informed the officer that he had killed an elk on October 26, 1996, but had discarded the antlers. The officer and Maidwell visited a meat packing plant where the officer was able to examine the legs of the elk in question. The officer seized bones from the leg of the elk and sent them to the United States Fish and Wildlife Forensics Lab for testing. Approximately six months later, on May 3, 1997, the lab results were reported to the Idaho Department of Fish and Game which confirmed that the bones belonged to a bull elk that was between two and four years old. However, no charges were filed against Maidwell at that time.
An anterless elk is defined as either a cow or a male elk with antlers less than six inches.
In January 1998, the officer received information alleging that Maidwell was still in possession of the antlers from the bull elk shot in October 1996. On January 23, 1998, pursuant to a warrant, the officer searched Maidwell's garage and discovered a rack of elk antlers containing seven points and six points. The officer seized the antlers. Again, no charges were brought against Maidwell. On December 17, 1998, Maidwell was charged with unlawful possession of wildlife. I.C. §§ 36-502(b), 36-1101(a).
Maidwell filed a motion to dismiss the case on the grounds that the prosecution was barred by the applicable two-year statute of limitations set forth in I.C. § 36-1406. Following a hearing, the magistrate granted Maidwell's motion. The state appealed to the district court, which affirmed the magistrate's dismissal. The state again appeals.
On appeal, the state argues that the magistrate erred in dismissing the case on the grounds that the statute of limitations for a prosecution of unlawful possession of wildlife had run prior to the date on which the state filed its criminal complaint against Maidwell. On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App. 1993). The applicability of a statute of limitations to an action under a given set of facts is a question of law over which we exercise free review. State v. O'Neill, 118 Idaho 244, 245, 796 P.2d 121, 122 (1990).
The offense with which Maidwell was charged is defined in I.C. § 36-502(b) as follows:
Unlawful Possession. No person shall have in his possession any wildlife or parts thereof protected by the provisions of this title and the taking or killing of which is unlawful.
Idaho Code Section 36-202(m) defines "possession" as "both actual and constructive possession, and any control of the object or objects referred to." In addition, I.C. § 36-202(h) defines "take" as to "hunt, pursue, catch, capture, shoot, fish, seine, trap, kill, or possess or any attempt to so do." Therefore, to "take" includes the term to "possess." The applicable statute of limitations for a prosecution under I.C. § 36-502(b), based on the facts of this case, is set forth in I.C. § 36-1406. Idaho Code Section 36-1406 provides, in pertinent part:
The two-year statute of limitations set forth under I.C. § 36-1406 only applies to the unlawful possession of big game animals, caribou, or grizzly bears. Because elk fall within the group of animals classified as "big game animals," the statute of limitations contained in I.C. § 36-1406 is applicable in this case.
Notwithstanding any other provision of law, a prosecution for misdemeanors under the provisions of this title must be commenced by the issuance of a citation or filing of a complaint within two (2) years after its commission for any of the following offenses: (a) Unlawfully taking or possessing any big game animal, caribou, or grizzly bear.
Neither party disputes that Maidwell shot and killed the elk on October 26, 1996, or that Maidwell was in possession of the antlers from that date until January 23, 1998, when the officer seized the antlers from Maidwell's garage. Furthermore, we will assume for purposes of this opinion that Maidwell's possession of the antlers constituted an unlawful possession of wildlife or wildlife parts in violation of I.C. § 36-502(b). Idaho Code Section 36-1406 states that the applicable two-year statute of limitations begins to run when the crime of unlawful possession of wildlife is committed. Thus, our inquiry is limited to determining at what point in time Maidwell committed the crime of unlawful possession of wildlife.
In this case, the magistrate found that Maidwell committed the crime on October 26, 1996, the date on which Maidwell unlawfully took possession of the elk. Thus, the magistrate ruled that the statute of limitations began to run on that date and expired two years later on October 26, 1998. The magistrate found that the state did not file its complaint until December 17, 1998, a date that fell outside of the statutory two-year period. Therefore, the magistrate dismissed the case on the grounds that the state's prosecution of Maidwell was barred by the statute of limitations.
No explanation appears in the record for the state's failure to bring charges in May 1997 when the lab test results were received or after January 1998 upon seizure of the antlers, either of which would have rendered the statute of limitations issue irrelevant.
The state argues that, based on the language of I.C. § 36-502(b), the crime of unlawful possession of wildlife is committed any time a person has in his or her possession unlawfully taken wildlife or wildlife parts. Thus, the state asserts that the applicable two-year statute of limitations did not begin to run until January 23, 1998, the date on which Maidwell's possession of the antlers ceased. Therefore, the state contends that its criminal complaint was properly filed within the statutory two-year period.
In support of this assertion, the state relies on United States v. Winnie, 97 F.3d 975 (7th Cir. 1996). In Winnie, the defendant participated in an African Safari during which a cheetah was shot and killed. After returning to the United States in 1981, the defendant mounted and displayed the cheetah's skin and skull on his basement wall. Eleven years later, in 1992, federal and state wildlife agents seized the cheetah and charged the defendant with unlawfully possessing illegally traded wildlife in violation of the Endangered Species Act. The defendant argued that the prosecution was barred by the applicable five-year statute of limitations.
However, the Seventh Circuit Court of Appeals held that the statute of limitations did not begin to run until the defendant's possession of the cheetah had ceased. Id. at 976. The Seventh Circuit Court of Appeals concluded:
Winnie admits continued possession of the cheetah from 1981 to 1992. His contention that the offense was "committed" in 1981 when he first took possession of the animal is contrary to the plain language of the statute, part of which makes it a crime "to possess" protected wildlife. Winnie's analysis would require a conclusion that the crime defined by Congress was "to take possession of" illegally traded wildlife, which Winnie did in 1981, rather than "to possess" wildlife, which he did through 1992. Congress did not define the crime that way. The statute of limitations thus did not begin to run until Winnie ceased possessing the cheetah. It was only then that he stopped violating the law.
The Idaho Supreme Court, however, has declined to extend the statute of limitations in connection with prosecution for other possession offenses as they relate to when possession begins. See State v. Barnes, 124 Idaho 379, 859 P.2d 1387 (1993). In Barnes, the Idaho Supreme Court held that grand theft by possession of stolen property in violation of I.C. § 18-2403(4) was not a "continuing offense" extending until the stolen property was seized by law enforcement officers. Instead, the Idaho Supreme Court concluded that the theft was committed at the time that the defendant came into possession of the stolen property with the knowledge that such property was stolen and with the intent to deprive the owner thereof. Barnes, 124 Idaho at 380, 859 P.2d at 1388. Because the defendant came into possession of the stolen property with the requisite knowledge and intent in 1987, but was not charged with the offense until 1991, the Idaho Supreme Court concluded that the statutory three-year period had expired. Thus, the Idaho Supreme Court ruled that the state's prosecution was barred by the statute of limitations.
We acknowledge that a majority of other courts have held that theft by possession is a continuing offense for purposes of the statute of limitations and that Barnes is a minority position. See Possession of Stolen Property as Continuing Offense, 24 A.L.R. 5th 132 (1994).
The Idaho Supreme Court's decision in Barnes relied on the language of the particular statute at issue. Idaho Code Section 18-2403(4) provides that a person commits theft when he or she "knowingly . . . possesses . . . stolen property, knowing the property to have been stolen by another or under such circumstances as would reasonably induce him [or her] to believe that the property was stolen, and (a) intends to deprive the owner permanently of the use or benefit of the property." Thus, I.C. § 18-2403(4) delineates knowledge and intent as elements of the crime and indicates that a person commits theft by possession when possession of the stolen property is accompanied by these two additional elements. The facts in Barnes showed that the defendant had the requisite possession, knowledge and intent, and thus committed the crime no later than 1987. The applicable statute of limitations in that case, I.C. § 19-402(1), stated that the three-year statutory period began to run when the crime was committed. Thus, the Idaho Supreme Court held that whatever "merits such a continuing offense rule might have, we must reject the district court's analysis simply because the legislature did not create such a rule in enacting and amending the statute." Barnes, 124 Idaho at 380, 859 P.2d at 1388.
Idaho Code Section 19-402(1) has since been amended to provide for a statutory period of five years.
We conclude that the instant case is virtually indistinguishable from Barnes. Similar to the statute addressed in Barnes, I.C. § 36-502(b) requires that the person "have in his possession any wildlife or parts thereof protected by the provisions of this title and the taking or killing of which is unlawful." (Emphasis added.). The word "possess" is commonly defined as "to have in one's actual and physical control; to have the exclusive detention and control of; to have and hold as property." BLACK'S LAW DICTIONARY, 1162 (6th ed. 1990). Because we conclude that the word "possesses" is interchangeable with the phrase "having in one's possession," we discern no meaningful distinction between I.C. § 18-2403(4) and I.C. § 36-502(b), based on the legislature's decision to include the word "possesses" rather than the phrase "having in his possession." As previously noted, to "take" includes to "possess" in the definitional section of I.C. § 36-502(b). In addition, the state concedes that, although not explicitly contained in the language of the statute, "knowledge" that the wildlife was unlawfully taken is a necessary element for a conviction under I.C. § 36-502(b). Thus, similar to theft by possession, a person commits the crime of unlawful possession of wildlife only when possession of the wildlife is accompanied by the additional element of knowledge. Furthermore, the applicable statute of limitations in this case, I.C. § 36-1406, states that the two-year statutory period begins to run when the crime is "committed." Reviewing the statutes addressed in Barnes and those discussed here, we must conclude that the reasoning utilized in Barnes is controlling to the facts of the instant case.
We recognize that the Idaho Supreme Court has emphasized the state's compelling interest in the management and conservation of its natural resources, including wildlife, and the legislature's perception that fish and game violations are matters of grave public concern. See State v. Medley, 127 Idaho 182, 186, 898 P.2d 1093, 1097 (1995). However, in light of the Idaho Supreme Court's decision in Barnes, we are constrained to hold that the crime of unlawful possession of wildlife is not a continuing offense for purposes of the statute of limitations. Thus, the crime of unlawful possession of wildlife is committed at the time that a person comes into possession of wildlife with the knowledge that such wildlife was unlawfully taken. In this case, Maidwell committed the crime of unlawful possession of wildlife on October 26, 1996, the date on which he knowingly shot and killed a fully antlered bull elk thereby exceeding the scope of his permit. Therefore, the applicable two-year statute of limitations under I.C. § 36-1406 ran on October 26, 1998, prior to the date on which the state filed its complaint.
For the reasons stated above, we hold that the state failed to file its complaint within the statutory two-year period. Accordingly, we conclude that the magistrate's dismissal of the state's prosecution of Maidwell on the grounds that it was barred by the statute of limitations was proper.
We hold that the magistrate correctly dismissed the state's prosecution of Maidwell on the grounds that the statute of limitations had run. Therefore, the order of the district court upholding the magistrate's dismissal is affirmed.
Chief Judge SCHWARTZMAN and Judge Pro Tem MCLAUGHLIN, CONCUR.