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Richard A. Kinmon v. State of Alaska (10/4/2019) ap-2657

Richard A. Kinmon v. State of Alaska (10/4/2019) ap-2657

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                                     E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RICHARD A. KINMON,  

                                                                   Court of Appeals No. A-12645  

                                   Appellant,                    Trial Court No. 4DJ-14-00005 CR  



                           v.  

                                                                              O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                        No. 2657 - October 4, 2019  



                  Appeal f          

                             rom the District Court, Fourth Judicial District, Delta  

                  Junction, Matthew C. Christian, Judge.  



                  Appearances:        Wallace       Tetlow,     Tetlow       Christie,     LLC,  

                  Anchorage, for the Appellant.   Aaron C. Peterson, Assistant  

                                                            

                  Attorney General, Office of Special Prosecutions, Anchorage,  

                                                       

                  and Jahna Lindemuth, Attorney General, Juneau, for the Appel- 

                                                           

                  lee.  



                  Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior  

                                               

                          *  

                  Judge.   



                  Judge ALLARD, writing for the Court.  

                  Judge HARBISON, dissenting.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                    Richard A. Kinmon, a licensed big game guide, was convicted of eleven  

                                                                                                                           



misdemeanor offenses for his conduct during big game hunts he guided in 2009 and  

                                                                                                                      



2011.  Some of Kinmon's convictions were based on allegations that he allowed his  

                                                                                                                                



clients to take game without "previously purchasing" a big game tag as required by  

                                                                                                                                 



AS 16.05.340(a)(15). Kinmon was also convicted for falsely reporting that the tags had  

                                                                                                                                



been "previously purchas[ed]" by the clients.  

                                                           



                    At  trial,  a  dispute  arose  regarding  the  meaning  of  the  statutory  term  

                                                                                                                             



"previously purchas[ed]." The State argued that the term "purchase" was unambiguous  

                                                                                                                



and that it required the client to pay money for the big game tag before the game was  

                                                                                                                               



taken.  Kinmon argued that the term could reasonably be understood as encompassing  

                                                                                                               



the delivery of the big game tag with a promise to pay in the future, after the game was  

                                                                                                                               



taken.  The trial court resolved this dispute in favor of the State, but the court did not  

                                                                                                                                



instruct the jury on the definition of "previously purchased" and it allowed both sides to  

                                                                                                                                  



argue their definitions to the jury.  

                                             



                    On  appeal,  Kinmon  argues  that  the  term  "previously  purchased"  is  

                                                                                                                                 



ambiguous, and that the statutory termis unconstitutionally vague because it fails to give  

                                                                                                                              



fair notice to the guide of what is required.   Kinmon also argues that the trial court  

                                                                                                                             



committed plain error by giving the jury a "mistake of law" instruction that he argues  

                                                                                                                           



shifted the burden to him to prove that he did not knowingly violate the law.  For the  

                                                                                                                                



reasons explained here, we conclude that Kinmon is entitled to a retrial on four of his  

                                                                                                                                



convictions.  



          The pertinent hunting regulations  

                                             



                    During the offenses at issue in this case, Kinmon was a licensed big game  

                                                                                                                             



guide  in  Alaska.            He  was  also  a  licensed  big  game  tag  vendor,  meaning  he  was  

                                                                                                                              



authorized to sell big game tags in the field to nonresident hunters.  

                                                                                           



                                                              - 2 -                                                         2657
  


----------------------- Page 3-----------------------

                         In Alaska, big game guides are regulated by the Big Game Commercial                                              



Services Board.                  After any guided, outfitted, or transported big game hunt, the guide                                                  



                                                                              1  

must submit a hunt record to the Board.                                                                                                                        

                                                                                   All nonresident hunters must purchase a  



                                                                                                                                                   

hunting license.  Nonresident hunters who hunt big game also must purchase a specific  



                                                                                    2  

                                                                                                                                                             

                                                                                        This is a metal locking tag that must be  

big game tag for the animal they are hunting. 



                                                                               3  

                                                                                                                                                               

affixed to the animal right after it is killed.                                   The number on the tag corresponds with a  



                                                                                                                             

big game tag record form that must be filled out and signed by the hunter.  



                                                                                                                                                     

                         Nonresident hunters who hunt moose and sheep must, in addition, submit  



                                                                                                                                                    

forms to the Department of Fish and Game.  The Department uses these forms to keep  



                                                                                                                                                         

track of the number of hunters, the number of moose and sheep killed, and where they  



       1    See AS 08.54.760, which provides:  



                   (a) The department shall collect and maintain hunt records provided by  

                                                                     

                   a registered guide-outfitter. A registered guide-outfitter shall submit to  

                   the department a hunt record for each contracted hunt within 60 days  

                                                                                

                   after the completion of the hunt.  A hunt record must include a list of  

                                                                                                                                          

                   all big game hunters who used the guiding or outfitting services of the  

                                                                                            

                   registered guide-outfitter, the number of each big game species taken,  

                                                                                                        

                   and other information required by the board.   The department shall  

                   provide forms for reporting hunt records.  



      2     Former AS 16.05.340(a)(15) (pre-2017) provided:  



                   A  nonresident  may not  take  a  big  game  animal  without  previously  

                                                        

                   purchasing a numbered, nontransferable, appropriate tag, issued under  

                   this paragraph.   The tag must be affixed to the animal immediately  

                                                                                 

                   upon capture and must remain affixed until the animal is prepared for  

                   storage,  consumed,  or  exported.                            A  tag  issued  but  not  used  for  an  

                                                                                      

                   animal may be used to satisfy the tagging requirement for an animal of  

                                                                        

                   any other species for which the tag fee is of equal or less value.  

                                                                                                  



      3     Id.  



                                                                            -  3 -                                                                     2657
  


----------------------- Page 4-----------------------

                                                  4  

were killed.                                           This paperwork comes in a packet and includes (1) a harvest overlay, (2)                                                                                                                                                                                                                                     



a harvest report, and (3) a harvest ticket.                                                                                                                                    The harvest overlay is submitted to Fish and  



Game before the hunt.                                                                                 After the hunt, successful or not, the harvest report and the                                                                                                                                                                                                



harvest ticket must be filled out and mailed to Fish and Game. The harvest ticket number                                                                                                                                                                                                                                                         



and big game tag also must be recorded on the hunt record that guides are required to                                                                                                                                                                                                                                                                                   



submit to the Big Game Commercial Services Board.                                                                                                                                                     



                             Convictions in which "previously purchas[ed]" is at issue                                                                                                                                                                           



                                                         Kinmon was convicted of five counts of tampering with a public record in                                                                                                                                                                                                                                        



the second degree under AS 11.56.820(a)(1), five counts of committing or aiding in the                                                                                                                                                                                                                                                                              



commission   of   a   violation   of   a   big   game   statute   or   regulation   under   AS   08.54.- 



720(a)(8)(A), and one count of failing to report a violation of a big game law under                                                                                                                                                                                                                                                                    



AS 08.54.720(a)(1).   



                                                         Eightoftheseeleven                                                                     convictionsinvolvedallegationsthatKinmon'sclients                                                                                                                                                     



had   taken   big   game   without   "previously   purchasing"   big   game   tags.     However,  



Kinmon's defenses to these charges were not uniform.                                                                                                                                               



                                                         The first four charges (Counts I-IV) related to a guided sheep hunt in 2009                                                                                                                                                                                                                        



with a nonresident hunter, John Maser.                                                                                                                                      Kinmon was convicted of four misdemeanor                                                                                                   



offenses related to Maser's sheep hunt:                                                                                                                                       knowingly guiding Maser on a hunt for Dall                                                                                                                                      



sheep without a valid (                                                                      i.e., previously purchased) nonresident sheep tag and/or harvest                                                                                                                                                                                     



              4             See 5 AAC 92.010(h), which provides:  



                                           For moose and sheep, a person may not hunt moose or sheep, except in  

                                                                                                                                                                                            

                                           a permit hunt or for moose in the Gates of the Arctic National Park,  

                                                                                                                                                                                                                              

                                           unless the person has in possession a harvest ticket for the species and  

                                           has obtained a harvest report (issued with the harvest ticket).  



                                                                                                                                                                               - 4 -                                                                                                                                                                       2657
  


----------------------- Page 5-----------------------

                               5  

ticket (Count III);              knowingly failing to report this illegal hunt to the Department of                                         



                                                             6  

Public Safety as required (Count IV);                                                                                                

                                                               and two counts of tampering with a public record  



                                                                                                                                     

in the second degree for falsifying Maser's hunt and tag records to indicate that Maser  



                                                                                                                                              7  

                                                                                                                                                 

                                                                                                                                       

had a valid (i.e., previously purchased) tag at the time he killed the sheep (Counts I-II). 



                      On  appeal,  Kinmon  argues  that  these  four  convictions  hinged  on  the  

                                                                                                                                          



disputed meaning of "previously purchas[ed]."  But the record does not support this.  

                                                                                                                                                 



Unlike the clients from the other hunts, Maser testified that he did not fill out any  

                                                                                                                                         



paperwork for the sheep hunt (or pay for the sheep tag) until after he killed the sheep.  

                                                                                                                                                 



Maser did not recall precisely when he filled out the paperwork for the sheep tag but he  

                                                                                                                                            



testified that it was after he killed the sheep.  He also testified that Kinmon told him he  

                                                                                                                                            



would not have to pay for a sheep tag unless the hunt was successful.  Maser further  

                                                                                                                                    



testified that, at Kinmon's direction, he backdated the form to September 15, two days  

                                                                                                                                        



before the sheep kill.  Maser also testified that he backdated the check he gave Kinmon  

                                                                                                                                  

for the sheep tag to September 15, at Kinmon's direction.8  

                                                                                



                                                                                                                               

                      Kinmoncontradicted Maser's sequenceofevents inhisowntrialtestimony.  



                                                                                                                                     

Kinmon testified that the dates on the sheep tag and the check were correct; that Maser  



                                                                                                                                        

filled out the paperwork to procure the sheep tag in the field on September 15 and gave  



                                                                                                                                     

Kinmon a check for the tag later that same day. Kinmon also testified that Maser picked  



                                                                                                                                            

up the sheep harvest ticket and associated paperwork at Fred Meyer before the hunt, on  



      5    AS 08.54.720(a)(8)(A).  



      6    AS 08.54.720(a)(1).  



      7    AS 11.56.820(a)(1).  



      8    This testimony  was partially  corroborated by  the investigating trooper, who said the  



harvest ticket overlay number previous to Maser's was issued to another hunter on September  

16.  The trooper conceded that it was possible the harvest tickets were issued out of order.  



                                                                    - 5 -                                                              2657
  


----------------------- Page 6-----------------------

September 12, and that Maser must have made a mistake when he dated the forms                                                           

September 15.           9  



                                                                                                                                               

                       The jury was thus faced with a choice between Maser's testimony that he  



                                                                                                                                             

did not fill out any of the required paperwork or pay for the sheep tag before hunting and  



                                                                                                                                              

Kinmon's testimony that Maser completed all theappropriatepaperwork and paid for the  



                                                                                                                                               

tag before the hunt.  Therefore, even if the district court had construed "purchase" to  



                                                                                                                                        

include filling out the paperwork to procure a tag with a promise to pay later, this would  



                                                                                                      10  

                                                                                                                                           

have  had  no  effect  on  the  jury's  verdict  on  these  counts.                                         Accordingly,  we  find  



                                                                                                                              

Kinmon's  argument  regarding  the  purportedly  ambiguous  meaning  of  "previously  



                                                                                        

purchas[ed]" moot as to his convictions for Counts I-IV.  



                                                                                                                                                    

                       This  is  not  necessarily  the  case  with  the  other  convictions,  however.  



                                                                                                                               

Counts V-VII related to a grizzly bear hunt that Kinmon guided in 2011 for nonresident  



                                                                                                                                               

hunter Joseph Hahn.  Kinmon was convicted of one count of knowingly aiding Hahn in  



                                                                                                                                         

taking a brown bear without a valid (i.e., previously purchased) nonresident big game  



                          11  

                                                                                                                                        

tag (Count VII)               and two counts of tampering with a public record in the second degree  



                                                                                                                                             

for knowingly falsifying Hahn's big game hunt and tag records to indicate that Hahn had  



                                                                                                                                     

a valid (i.e., previously purchased) big game tag at the time he hunted the bear (Counts  



                   12  

            

V and VI). 



      9    Kinmon's testimony was corroborated by an employee of Kinmon's at the time, who               



testified that he was with Maser when he obtained the sheep harvest ticket on September 12.  



      10  

                                                        

           The jury had the option of basing Kinmon's convictions on alternative conduct -  

                                                                            

aiding Maser in violating 5 AAC 92.010(h) by hunting sheep without a harvest ticket in his  

                                                                                                                                            

possession - but there is no way to know which violation(s) the jury found.  The jury was  

instructed that it had to be unanimous as to which statute or regulation was violated.  



      11   AS 08.54.720(a)(8)(A).  



      12   AS 11.56.820(a)(1).  



                                                                     -  6 -                                                              2657
  


----------------------- Page 7-----------------------

                                                    The facts underlying Hahn's convictions were undisputed:                                                                                                                                                                         Hahn testified   



that he waited to buy his bear tag until he was in the field, at Kinmon's recommendation,                                                                                                                                                                                 



 so that he would not have to pay for the bear hunt if there was no sign of bear in the area.                                                                                                                                                                                                                             



Kinmon and Hahn both testified that Hahn filled out the paperwork to procure his bear                                                                                                                                                                                                                                       



tag prior to hunting the bear and that Hahn paid for the tag some days later, after the hunt                                                                                                                                                                                                                                



was completed.                                                Kinmon's related convictions for tampering with a public record were                                                                                                                                                                                        



based on his reporting in Hahn's hunt and tag records that Hahn had purchased his bear                                                                                                                                                                                                                                      



tag before the hunt, at the time he filled out the paperwork for the tag, even though Hahn                                                                                                                                                                                                                              



had not yet paid for the tag.                                                                              Because these facts were undisputed, all three convictions                                                                                                                           



potentially hinged on a legal conclusion that a "purchase" did not occur until Hahn paid                                                                                                                                                                                                                                    



for the bear tag.                             



                                                    The same is true with regard to Count XI, which related to Kinmon's                                                                                                                                                                              



guided moose hunt with Shelley Ailts in 2011.                                                                                                                                            Kinmon was convicted of knowingly                                                                         



aiding Ailts in taking a moose without a valid (                                                                                                                                       i.e., previously purchased) nonresident  



                                                                                                                                                13  

big game tag in that hunt (Count XI).                                                                                                                                                                                                                                                                                        

                                                                                                                                                           The facts underlying this conviction were also  



                                                                                                                                                                                                                                                                                                          

undisputed:  Shelley Ailts went along on the hunt primarily to accompany her husband,  



                                                                                                                                                                                                                                                                                                                         

but with the understanding that she could buy a moose tag and do her own hunt if there  



                                                                                                                                                                                                                                                                                                                                     

was time.  Kinmon and Shelley Ailts both testified that she filled out the paperwork to  



                                                                                                                                                                                                                                                                                                             

procure her moose tag in the field before she hunted the moose. Shelley Ailts's husband  



                                                                                                                                                                                                                                                                                                                           

testified, uncontradicted, that he did not pay Kinmon for his wife's moose tag until after  



                                                                                                                                                                                                                                                                                                   

the hunt was over.  Thus, this conviction also potentially hinged on a legal conclusion  



                                                                                                                                                                                                                                                                             

that a "purchase" did not occur until Shelley Ailts paid for the moose tag.  



              13          AS 08.54.720(a)(8)(A).  



                                                                                                                                                              -  7 -                                                                                                                                                     2657
  


----------------------- Page 8-----------------------

          How the issue was litigated below  

                                                      



                    After the State presented its case, Kinmon moved to dismiss all the counts  

                                                                                                                           



against him, arguing that the State "has failed to show even that a crime has been  

                                                                                                                             



committed in some of these . . . [t]here's been no showing that failing to get payment  

                                                                                                                        



right at the time you get the tags is a crime."  To support this argument, Kinmon made  

                                                                                                                             



an offer of proof that Anthony Lee, a longtime master guide, would testify based on his  

                                                                                                                                



informal inquiries that it was standard practice among big game guides to issue tags  

                                                                                                                              



before collecting money for the tags.  

                                                  



                    The court ruled outside the jury's presence that the commonly understood  

                                                                                                                    



meaning of "previously purchasing" is to buy the goods ahead of time (in context, it is  

                                                                                                                                  



clear that the court meant by this that a "purchase" did not take place until money  

                                                                                                                          



changed hands). Thecourt excluded under Evidence Rule403Lee'sproposed testimony  

                                                                                                                      



on his informal study of the standard practice among guides, to which the defense  

                                                                                                                         



attorney responded:  

               



                    This is a situation in which to my knowledge this is a first  

                                                                                                          

                    impression of what the law is, what purchase means, and to  

                                                                                                       

                    have a person charged  with something  that the court  has  

                                                                                                           

                    suddenly declared "this is how it's illegal" is not real fair  

                                                                                                           

                    justice either.  So I would suggest that the court dismiss [the  

                                                                                                           

                    case].  



The court denied Kinmon's motion to dismiss.  

                                                            



                    Kinmon did not offer a jury instruction defining "previously purchasing"  

                                                                                                                  



and no definition was provided to the jury.  The parties instead argued their dueling  

                                                                                                                         



interpretations  of  the  legal  meaning  of  "previously  purchasing"  to  the  jury.                                        The  

                                                                                                                              



prosecutor argued in closing:  

                                 



                    Previously   purchasing,   you   all   know   what   previously  

                                                                                               

                    purchasing means.  It doesn't mean to have an agreement to  

                                                                                                              

                    at some point maybe pay for it.  . . .  That isn't the law.  The  

                                                                                                           



                                                              -  8 -                                                        2657
  


----------------------- Page 9-----------------------

                                                                    law is it has to be previously purchased before taking the                                                                                                                                                                                             

                                                                    animal.   That's the law.                                                                       



The defense attorney countered:                                                                             



                                                                    The statute - counsel had his magic lantern show up here                                                                                                                                                                                                                              

                                                                    and counsel had purchased, you got to purchase your tag                                                                                                                                                                                                                                    

                                                                    ahead of time.                                                            Doesn't say you have to pay for it, does it?                                                                                                                                                                         

                                                                    Seems to me if you're going to prosecute somebody you                                                                                                                                                                                                                                   

                                                                    ought to have in there what does it mean, what does purchase                                                                                                                                                                                                    

                                                                   mean. Did you purchase your house, have you paid for it, no,                                                                                                                                                                                                                                   

                                                                   might   still   be   making  payments   on   it,   but   you   haven't  

                                                                   purchased, you haven't paid for your house.                                                                                                                                                                                            How about a                                                     

                                                                    car, you buy a car. I don't know what they do here, but down                                                                                                                                                                                                                     

                                                                    in Anchorage no money down, no payments for six months.                                                                                                                                                                                                             

                                                                   You drive out of the lot with the car, have you purchased that                                                                                                                                                                                                                             

                                                                    car, yeah, have you paid for it, no.                                                                                                                                         In Alaska and the United                                                                     

                                                                    States we pay for things ahead of time and sometimes we pay                                                                                                                                                                                                                                

                                                                    for things down the trail.                                                                                                          . . .        [T]hey built this case on a                                                                                                                         

                                                                    definition on an interpretation of what the statute says and it                                                                                                                                                                                                                                       

                                                                    doesn't say "paid for," it says "purchased."                                                                                                           



                                                                    The trial court provided no guidance to the jury regarding how this legal                                                                                                                                                                                                                                                                              



term should be defined.                                                      



                                 Is the term "previously purchas[ed]" ambiguous?                                                                                                                                                  



                                                                   A   statute   is   ambiguous   if   its   meaning   "is   unresolvably   confused   or  



ambiguous after it has been subjected to legal analysis [through] study of the statute's                                                                                                                                                                                                                                                                                                                  



wording, examination of its legislative history, and reference to other relevant statutes                                                                                                            

                                                                                 14  If a statute is unresolvably ambiguous following this analysis, the rule  

and case law[.]"                                                                                                                                                                                                                                                                                                                                                                                                                 

of lenity requires that it be construed in the defendant's favor.15  

                                                                                                                                                                                                                                                                                          



                  14             Anchorage v. Brooks , 397 P.3d 346, 349 (Alaska App. 2017) (alterations in original)  



(emphasis omitted) (quoting DeNardo v. State , 819 P.2d 903, 908 (Alaska App. 1991).  



                  15             DeNardo, 819 P.2d at 907.  



                                                                                                                                                                                                               -  9 -                                                                                                                                                                                                     2657
  


----------------------- Page 10-----------------------

                       As a general rule,"[u]nless words have acquired a peculiar meaning, by                                                     



virtue   of   statutory   definition   or   judicial   construction,   they   are   to   be   construed   in  



                                                                    16  

accordance with their common usage."                                                                                                         

                                                                        In ruling that a "purchase" did not take place  



                                                                                                                                                    

under AS 16.05.340(a)(15) until money changed hands, the district court relied on a  



                                                                                                                                                   

version of Black's Law Dictionary that defined "purchase" as "the act or instance of  



                                                                                                                                          

buying."  In its brief, the State points to a version of Webster's Dictionary that defines  



                                                                                                                                                

"purchase" to mean "to obtain by paying money or its equivalent."  Kinmon argues that  



                                                                                                                               

neither of these definitions necessarily require that a purchase involve simultaneous  



payment.  



                                                                                                                                 

                       Kinmon also points to a California Fish and Game statute that defines  



                                                                                                                                     17  

                                                                                                                                              

"purchase" to include "an offer to buy, purchase, barter, exchange, or trade."                                                           A New  



                                                                                                                                     

Jersey statute governing the sale or purchase of wildlife also defines "sell or purchase"  



                                                                                                                                                   

more broadly, to mean "to sell or offer for sale, possess for sale, purchase or agree to  



                                                                                                                                                  

purchase, receive compensation, barter or offer to barter, trade or offer to trade, or  



                                                                                                                         18  

                                                                                                                                                    

transfer or offer to transfer, or conspire for any of those purposes."                                                        In contrast, a  



                                                                                                                                   

Florida statute governing the purchase and delivery  of firearms defines "purchase"  



      16    State v. Debenham Electric Supply Co., 612 P.2d 1001, 1002 (Alaska 1980) (citing  



Lynch v. McCann , 478 P.2d 835, 837 (Alaska 1970)); see also AS 01.10.040 ("Words and  

                                                                                     

phrases shall be construed according to the rules of grammar and according to their common  

                                     

and approved usage.  Technical words and phrases and those that have acquired a peculiar  

                                                               

and appropriate meaning, whether by legislative definition or otherwise, shall be construed  

according to the peculiar and appropriate meaning.").  



      17    Cal. Fish & Game Code  68, 24 (West 1985).  



      18    N.J. Stat. Ann.  23:4-27(g) (West 2016).  



                                                                      -  10 -                                                                2657
  


----------------------- Page 11-----------------------

narrowly, as the district court did in this case, to mean "the transfer of money or other                        

valuable consideration to the retailer."                                19  



                                                                                                                                           

                         The  State  argues  that  the  policy  behind  the  "previously  purchasing"  



                                                                                                                                                               

requirement is to ensure that hunters pay for the privilege of hunting regardless of  



                                                                                                                                                              

whether the hunt is successful.   But it is not clear that this policy interest would be  



                                                                                                                                                            

undermined by allowing a hunter to obtain a tag before the hunt with a promise to pay  



                                                                                                                                                             

at the close of the hunt.  Joseph Hahn testified that he believed he purchased the tag  



                                                                                                                                                            

when he filled out the paperwork to procure the tag, and he did not directly testify that  



                                                                                                                         

he thought he would not have to pay for the tag if the hunt was unsuccessful (Kinmon  



                                                                                                                                                             

did testify that he told Hahn he would cover the cost of the tag if Hahn did not kill the  



                                                                                                                                                

bear).         Shelley  Ailts  was  not  asked  this  question  directly,  but  the  trial  testimony  



                                                                                                                                                          

suggested that she also believed she was in effect purchasing the tag at the time she filled  



                                                                                                                                                             

out the paperwork to procure the tag. Kinmon testified, without contradiction, that a big  



                                                                                                                                                       

game tag record is a three-part carbon form, and "[w]hen one of these forms gets signed  



                                                                                                                                                       

that tag is obligated and either myself or the hunter's going to pay for it." He said license  



                                                                                                                                                                

vendors are required to account for every tag number in a monthly report submitted to  



                    20  

regulators.                                                                                                                                               

                         He also said that "sometimes you issue many, many tags, you might issue  



                                                                                                                                                           

a license, two or three tags . . . and it's set up to accommodate guides in the field so they  



                                                                                                                                                                  

could take one check at the end of the hunt to cover all additional expenses that the . . .  



                                                                                                                                                                 

client incurs."   Under this view, filling out the paperwork for a tag or tags during a  



                                                                                                                                                               

guided hunt is like running a tab at a bar; the expectation is that the client will pay for all  



                                                                                                                                     

the costs associated with the hunt, including the tags, at the end of the hunt.  



       19    Fla. Stat. Ann.  790.0655(1)(a) (West 2018).  



      20     See  AS 16.05.390(f) (requiring license vendors to transmit tag proceeds and reports  



"by the last day of the month following the month in which the licenses, permits, and tags                                           

are sold, unless an alternative reporting schedule has been established by contract").  



                                                                            -  11 -                                                                      2657
  


----------------------- Page 12-----------------------

                        To support his claim that the term "purchase" is ambiguous and should be                                                         



construed in his favor, Kinmon points to this Court's decision in                                                           State v. Chun             , an   



                                21  

unpublished case.                                                                                                                         

                                     In Chun, the State charged the defendant with violating a regulation  



                                                                                                                                                        

that made it illegal to buy bear parts.  The defendant purchased the bear parts over the  



                                                                                                                                                    

phone from a man in Idaho, and she argued, relying on the Uniform Commercial Code  



                                                                                                                                                      

(UCC), that the Alaska regulation did not apply to her conduct because the purchase took  



                           22  

                                                                                                                                                   

place in Idaho.                 The district court agreed and dismissed the charge, ruling that, under  



                                                                                                                                                        

the UCC, title passed to Chun at the time the Idaho seller placed the bear parts in the  

mail.23  



                                                                                                                                                        

                        This Court concluded that reasonable arguments could be made that the  



                                                                                                                                                   

purchase took place in Alaska, either when the contract was formed (when Chun orally  



                                                                                                                                                   

accepted the Idaho man's offer) or when the transaction was completed (when Chun  



                                                                      24  

                                                                                                                                                 

received the bear parts in Anchorage).                                     Nevertheless, this Court affirmed the district  



                                                                                                 

court's decision dismissing the charge.  After noting that the State had not offered any  



                                                                                                                                                        

definition of "purchase" that clearly favored a different result, and that the State had not  



                                                                                                                                                       

argued on policy grounds that "purchase" should be interpreted more broadly in the  



                                                                                                                                        

context of the game regulation at issue, this Court concluded that there was a "substantial  



                                                                                                                                          

and unresolvable ambiguity in existing law as to whether Chun performed a 'purchase'  



      21    State v. Chun, 1992 WL 12153276 (Alaska App. Oct. 7, 1992) (unpublished).
  



      22    Id. at *1.
  



      23    Id. at *1-2.
  



      24    Id. at *1-3.
  



                                                                         -  12 -                                                                    2657
  


----------------------- Page 13-----------------------

                                       25  

within Alaska."                             This Court therefore applied the rule of lenity and construed the term                                                                                         

in Chun's favor.                         26  



                                                                                                                                                                                                             

                                 Chun provides no direct guidance on the definition of "purchase" in this  



                                                                                                                                                                                              

case but it does underscore the potential complexity of determining when a purchase  



                                                                                                                                                                                          

takes place in the absence of statutory guidance. We agree with Kinmon that "previously  



                                                                                                                                                                                                                    

purchas[ed]" could reasonably be construed to encompass the delivery of goods with a  



                                                                                                                                                                                                   

binding promise to pay in the near future.  However, it is not clear that such binding  



                                                        

promises to pay were made in this case.  As already noted, the testimony on this issue  



                                                                                                                                                                                                            

was sparse and potentially subject to varying interpretations by the jury.  The jury also  



                                                                                                                                                                                                   

did not receiveaclear instruction of what "previously purchas[ed]" meant in this context,  



                                                                                                                                                                                          

and the jury was not instructed that this term could include filling out the tag paperwork,  



                                                                                                                                                                                                            

receiving the tag, and making a binding promise to pay for the tag after the hunt was  



over.  



                                                                                                                                                                                                               

                                 Instead, both sides were allowed to offer their own legal definitions of the  



                                                                                                                                                                                                     

term "previously purchas[ed]."  This was error.  The district court had a duty to resolve  



                                                                                                                                                                                                         

this question of statutory interpretation and to instruct the jury on the proper legal  



                                                          27  

                                                                                                                                                                                                            

definition  of this term.                                          Because that instruction  did  not occur,  we  conclude that  



        25      Id. at *2-3.  



        26      Id. at *3.  



        27      Roth v. State, 329 P.3d 1023, 1026 (Alaska App. 2014) ("[T]he jury need[s] to know   



whether to follow the prosecutor's suggested interpretation of the statute, or the defense   

attorney's competing interpretation of the statute, or some other interpretation.");                                                                                                            Eaklor v.  

State, 153 P.3d 367, 370 (Alaska App. 2007) ("[W]hen the statutory language defining an                                                                              

element of a crime 'is susceptible of differing interpretations, only one of which is a proper                                                                                

statement of the law,' and when the defendant's guilt or innocence may turn on the jury's                                                                                    

understanding of this element, 'an instruction [on the meaning of this element] must be                                                                           

given[.]'" (quoting McKee v. State , 488 P.2d 1039, 1043 (Alaska 1971))).  



                                                                                                    -  13 -                                                                                              2657
  


----------------------- Page 14-----------------------

Kinmon is entitled to reversal of the counts related to the Joseph Hahn and Shelley Ailts  

                                                                                                                               



hunts (Counts V-VII and Count XI).  If the State chooses to retry these counts, the jury  

                                                                                                                                



should  be  instructed  that  the  delivery  of  the  tag  with  a  binding  promise  to  pay  is  

                                                                                                                           



sufficient to qualify as a "previous purchas[e]" under the statute.  Construing the statute  

                                                                                                                            



this way is in accord with the rule of lenity and ensures that licensed big game guides are  

                                                                                                                                 



on notice of the prohibited conduct.  

                                           



           Was it plain error for the trial court to instruct the jury on the affirmative  

                                                                                                           

          mistake of law defense?  

                                  



                     Kinmon's next claim is that the district court committed plain error by  

                                                                                                                                  



instructing the jury on a mistake of law defense.   He argues that the mistake of law  

                                                                                                                                



instruction violated his due process rights by shifting the burden to him to prove that his  

                                                                                                                                  



conduct was not knowing.  

                           



                     The mistake of law instruction was given to clarify a legal issue that came  

                                                                                                                              



up in the context of the State's charge that Kinmon committed second-degree tampering  

                                                                                                                      



with a public record by falsifying the hunt record he submitted for Brian Ailts's caribou  

                                                                                                                          



hunt (Count VIII).  Kinmon was not licensed to guide caribou hunts and he submitted  

                                                                                                  



a  hunt  record  for  Brian  Ailts  that  indicated  that  he  had  "outfitted"  (as  opposed  to  

                                                                                                                                  



"guided") Ailts's caribou hunt.  At trial, Ailts testified that Kinmon provided the same  

                                                                                                                              



assistance on his caribou hunt as he did on his guided moose hunt. Kinmon testified that  

                                                                                                                                



he had consulted "regulators" on the proper way to fill out the form and that he followed  

                                                                                                                        



instructions by "carrying the caribou separately" on the hunt record, even though that  

                                                                                                                                



"did  not  make  sense"  to  him  because  the  caribou  hunt  was  a  "no  compensation,  

                                                                                                               



absolutely free hunt[.]"  

                         



                                                              -  14 -                                                        2657
  


----------------------- Page 15-----------------------

                       In response to this testimony, the prosecutor asked for an instruction under                                         



                               28  

Haggren v. State.                                                                                                                                  

                                    In Haggren, this Court held that a fisherman could not rely on a  



                                                                                                                                

mistaken interpretation of the law provided by a state trooper dispatcher, or a fish and  



                                                                                                                                                 

wildlife  protection  officer  the  dispatcher  consulted,  to  defend  against  a  charge  of  



                                                   29  

                                                                                                                                            

                                                        This Court explained that even under the Model Penal  

violating a fishing regulation. 



                                                                                                                                             

Code, which contains the broadest formulation of the affirmative "mistake of law"  



               30  

                                                                                                                                       

defense,          a defendant claiming mistake of law must show that he relied on an "official  



                                                                                                                                                

interpretation of the public officer or body charged by law with responsibility for the  



                                                                                                                                      31  

                                                                                                                       

interpretation, administration or enforcement of the law defining the offense." 



                                                                                                                                                

                       In accordance with the language in Haggren, the trial court instructed the  



              

jury as follows:  



                                                                                                                 

                       A mistake of law constitutes a defense only if the mistake  

                                                                                                                            

                       negates the existence of the culpable mental state required to  

                                                                                                             

                       establish a crime.  To establish mistake of law, a defendant  

                                                                                                    

                       must  show  that  he  relied  on  an  "official  interpretation"  

                                                                                                                        

                       provided by the "the public officer or body charged by law  

                                                                                                                             

                       with enforcement of the law defining the offense" meaning a  

                                                                                                                    

                       formal   interpretation   of   the   law   issued   by   the   chief  

                                                                                                                           

                       enforcement officer or agency.  This does not encompass, or  

                                                                                                                      

                       include, extemporaneous legaladviceor interpretationsgiven  

                                                                                

                       by a subordinate officer or third parties.  



                                                                                                                                              

                       Kinmon's  attorney  expressly  stated  that  he  had  no  objection  to  this  



                                                                                                                                         

instruction, and the parties did not discuss the mistake of law instruction in closing  



      28    Haggren v. State, 829 P.2d 842 (Alaska App. 1992), overruled on other grounds by  



Allen v. Anchorage , 168 P.3d 890 (Alaska App. 2007).  

                                                          



      29    Id. at 844.  



      30    Model Penal Code  2.04(3)(b) (Am. Law Inst., Proposed Official Draft 1962) cited  



      

 in Haggren, 829 P.2d at 844.  



      31    Haggren, 829 P.2d at 844.  



                                                                      -  15 -                                                               2657
  


----------------------- Page 16-----------------------

arguments.   During closing arguments, both parties argued that the jury had to find that                                                                                                                                                                                  



Kinmon acted knowingly to convict him.                                                                                                  The defense attorney explicitly argued that                                                                                        



Kinmon's "got to know knowingly that there's some violation of the law there."                                                                                                                                                                



                                           On appeal, Kinmon argues that it was error to instruct the jury on the                                                                                                                                                           



affirmative defense of mistake of law.                                                                                     Kinmon asserts, in particular, that the mistake of                                                                                                    



law instruction impermissibly shifted the                                                                                         burden of proof with regard to the "knowingly"                                                              



mens rea required for the various charged offenses.  But Kinmon did not object to the   



instruction below, and he must therefore show plain error on appeal. To show plain error                                                                                                                                                                                



of non-constitutional magnitude, Kinmon must show that (1) the error was obvious, (2)                                                                                                                                                                                         



the failure to object "was not the result of intelligent waiver or a tactical reason not to                                                                                                                                                                                      

object, (3) the error affected substantial rights, and (4) the error was prejudicial.                                                                                                                                                                             32  



                                                                                                                                                                                                                                                      

                                           We do not find plain error here.   Although we question the continued  



                                                                                                                                                                                                                                                                

validity of this formulation of the mistake of law defense (particularly when used outside  



                                                                                                                                                                                                                                                                               

the context of strict-liability crimes), the instruction was an accurate description of  



                                                                                                       33  

                                                                                                                                                                                                                                                                  

Alaska law as it currently stands.                                                                            Notably, neither party relied on the instruction during  



                                                                                                                                                                                                                                                                          

closing  arguments,  and  the  State  did  not  argue  that  it  applied  to  the  mens  rea  



                                                                                                                                                                                                                                                                               

requirements.  Instead, as the State points out, Kinmon remained free to argue that he  



                                                                                                                                                                                                                                      

made an honest mistake based upon the advice of the trooper, and that the mistake did  



                                                                                                                                                                                                                                                                         

not amount to knowingly submitting false information on a public record.   The jury  



                                                                                                                                                                                                                                                                  

likewise remained free to reject this defense, which it did for the majority of the counts  



           32        Adams v. State , 261 P.3d 758, 764 (Alaska 2011).  



           33         See Morgan v. State                                         , 943 P.2d 1208, 1212-13 (Alaska App. 1997);                                                                                                Haggren, 829 P.2d   



at 843-45.  But see  1 Wayne R. LaFave, Substantive Criminal Law  5.6(e)(3), at 559-61 (3d  

ed. 2017) (noting tension between due process requirements and Model Penal Code approach  

to mistake of law defense).  



                                                                                                                                  -  16 -                                                                                                                              2657
  


----------------------- Page 17-----------------------

except for Count X, for which the jury acquitted Kinmon.                                                                                 Thus, given the manner in                                  



which the instruction was used and the absence of any objection, we find no plain error.                                                                                                                   



                Conclusion  



                               We REVERSE the convictions for Counts V, VI, VII, and XI and remand  

                                                                                                                                                                                       



for a new trial on those counts.  In all other respects, the judgment of the district court  

                                                                                                                                                             



is AFFIRMED.  

      



                                                                                             -  17 -                                                                                        2657
  


----------------------- Page 18-----------------------

HARBISON, Judge, dissenting.             



                         I   disagree   with   the   majority's   analysis   and   conclusion   that   the   term  



"previously purchased"inAS16.05.340 is ambiguous andshould therefore beconstrued                                                                   



against the government.     



                         In determining what a statute means, "[u]nless otherwise defined, words                                        



                                                                                                                                                      1  

will be interpreted as taking their ordinary, contemporary, common meaning."                                                                             Here,  



                                                                                                                                               

the trial court correctly applied ordinary usage to discern the meaning of "previously  



                                                                             

purchased," which is not defined in the statute.  



                                                                                                                                               

                         Thetrial court concluded that thestatutoryprohibitionagainstanonresident  



                                                                                                                                       

taking a big game animal without "previously purchasing a numbered, nontransferable,  



                               2  

                                                                                                                                                            

                                 required that the nonresident complete the act of buying the tag prior  

appropriate tag" 



                                             

to the act of taking the animal.  



                                                                                                                                                 

                         In reaching this conclusion, the trial court noted that Webster's Dictionary  



                                                                                                                                                                       

defines "previously" as "existing or happening prior to something else in time or order."  



                                                                                                                                                      

It further noted that Black's Law Dictionary defines "purchase" as "the act or instance  



                                                                                                                                                    

of buying."  And, as the State points out in its brief, Webster's Dictionary similarly  



                                                                                                                        

defines "purchase" to mean "to obtain by paying money or its equivalent."  



                                                                                                                                                               

                         I agree with the trial court that the term "previously purchased" in the  



                                                                                                                                                                 

nonresident  game  tag  statute  clearly  requires  a  nonresident  to  complete  the  act  of  



                                                                                                                                                              

purchasing a tag - including paying for it - before the nonresident may take a big  



            

game animal.  



       1      State v. Niedermeyer, 14 P.3d 264, 272 n.38 (Alaska 2000).  



      2      AS 16.05.340(a)(15).  



                                                                             - 18 -                                                                        2657  


----------------------- Page 19-----------------------

                                 In   an   attempt   to   cloud   the   clear   meaning   of   the   term   "previously  



purchased," Kinmon points to the federal securities code and California fish and game                                                                                                                  



statutes.    He notes that those statutes, unlike the statute at issue here, define the term                                                                                                             



"purchase."  



                                 Kinmon's argument is inapposite                                                       for   several reasons.                                First,   the other   



statutes   that  he   points   to,   which   define   the   term   "purchase,"   are   statutes   aimed   at  



different types of conduct than that governed by AS 16.05.340.                                                                                             As a result, the fact that                       



it was necessary for those statutes to define "purchase" has no bearing on whether the                                                                                                                       



term "purchase" is ambiguous in Alaska's statute regarding the purchase of nonresident                                                                                                  



big game tags.           



                                 For example, Kinmon notes that in California's fish and game statutes, the                                                                                                  

term "purchase" includes "an offer to buy, purchase, barter, exchange, or trade."                                                                                                                     3  But  



                                                                                                                                                                                                                  

California's statutes do not use the term "purchase" to describe the method by which a  



                                                                                                                                                                                                  

game tag is obtained; instead, California uses the term "procure" to refer to the method  



                                                          4  

                                                                                                                                                                                                

of obtaining a game tag.                                       The term "purchase" is used to govern the transfer of lawfully  



                                                                                                                                                                                                                  5  

                                                                                                                                                                                              

and unlawfully taken fish and game, and in statutes involving fish and game licenses.   



                                                                                                                                                                                                                 

Since the California legislature was attempting to limit the transfer of fish and game, it  



                                                                                                                                                                                                                

makes sense that the legislature chose to provide a definition for "purchase" that is  



                                                                                                                                                                                                                       

broader than its ordinary meaning, expanding it to include offers to buy, purchase,  



                                                 

barter, exchange or trade.  



        3        Cal. Fish & Game Code  68, 24 (West 1985).  



        4       See, e.g., Cal. Fish & Game Code  4332, 4652, 4654, 4750-51 (West).  



        5       See, e.g., Cal. Fish & Game Code  1061, 2124, 2582, 3039, 8395, 12002.3 (West).  



                                                                                                   - 19 -                                                                                               2657  


----------------------- Page 20-----------------------

                                           The majority points to a few additional state statutes defining "purchase."                                                                                                                                                                  



But the fact that some states have chosen                                                                                                      to define "purchase" in a manner that is                                                                                        



inconsistent with, and broader than, the ordinary meaning of that term does not persuade                                                                                                                                                                 



me that Alaska's law is unclear.                                                                            This is particularly true given that Alaska's statute                                                                                               



includes the word "previously" to describe when the "purchase" of the tag must occur:                                                                                                                                                                            



the "purchase" of the tag must be "previous" to the nonresident's taking of the animal.                                                                                                                                                                                                 



This clarifies that the transaction must be complete before the animal can be taken.                                                                                                                                                                  



                                           Similarly, I disagreethatthis                                                             Court'sdecision in                                           State v. Chun                              suggests that   



there is complexity in determining when a purchase takes place for purposes of the                                                                                                                                                                                         



statute at issue in this case: the statute governing nonresident big game tags.                                                                                                                                                                                  Chun  



involved a purchase of bear parts over the phone by a person in Alaska from a person in                                                                                                                                                                                        



                     6  

                                                                                                                                                                                                                                                                    

Idaho.                     Under those facts, the question of when and where the "purchase" took place  



                                                                                                                                                                                                                                                                          

was ambiguous, because it was unclear under the Uniform Commercial Code where and  



                                                                                                7  

                                                                                                                                                                                                                                                               

                                                                                                     But the statute involved in Kinmon's case is not subject  

when title had vested in Chun. 



                                                                                                                                                                                                                                                     

to such complications.  There is no ambiguity to the statutory requirement in Kinmon's  



                                                                                                                                                                                                                                                                          

case that a nonresident hunter must "purchase" an appropriate tag before taking the  



                                                                                                                                                                                                                                 8  

                                                                                                                                                                                                                                                                           

animal and must affix the tag to the animal before leaving the kill site.                                                                                                                                                              Title to the tag  



                                                                                                                                                                                                         

must necessarily vest with the hunter prior to the taking of the animal.  



                                                                                                                                                                                                                                                       

                                           On  appeal,  Kinmon  contends  that  his  interpretation  of  the  statutory  



                                                                                                                                                                                                                                                                           

language "seems to be consistent with others within Alaska's guiding profession."  He  



                                                                                                                                                                                                                                                                       

notes that during the trial, he offered to present the testimony of a master guide who  



           6         State v. Chun, 1992 WL 12153276, at *1 (Alaska App. Oct. 7, 1992) (unpublished).   



           7         Id. at *1-2.  



           8         See AS 16.05.340(a)(15).  



                                                                                                                                 - 20 -                                                                                                                              2657  


----------------------- Page 21-----------------------

believed, based on informal inquiries, that it was "standard in the trade" to issue tags                                                                         

before collecting money for the tags.                                   9  



                                                                                                                                                              

                          But  the  trial  court  correctly  determined  that  this  testimony  was  more  



                                                                                                                                                              

prejudicial than probative, as it could lead to jury confusion about whether the exact  



                                                                                                                                                                     

language of the law could properly be ignored.  The trial court resolved the question of  



                                                                                                                                                            

statutory interpretation posed by Kinmon's motion to dismiss by ruling that the statute  



                                                                                                                                                              

requires a nonresident hunter to pay for an appropriate tag prior to taking a big game  



                                                                                                                                                            

animal.  It accordingly found that testimony regarding "an informal poll of other guides  



                                                                                                                                                                  

who say they collect the money later" could lead the jury to believe that it was not  



                                                                                                                       

necessary for Kinmon to follow the law.  This was a correct ruling.  



                                                                                                                                                                     

                          I  disagree with  the majority's assertion that the trial court's failure to  



                                                                                                                                                                    

instruct the jury on the meaning of the term "purchase" entitles Kinmon to reversal of the  



                                                                                                                                                                    

convictions related to the Hahn and Ailts hunts.                                                    In fact, Kinmon does not argue on  



                                                                                                                                    

appeal that the trial court erred in its instructions to the jury on this point.  



                                                                                                                                                                  

                          During  closing  arguments,  relying  on  the  court's  ruling  regarding  the  



                                                                                                                                                    

meaning of the term, the prosecutor correctly told the jury that "[p]reviously purchasing  



                                                                                                                                                     

. . . doesn't mean to have an agreement to at some point maybe pay for it."  Later, the  



                                                                                                                                                                  

prosecutor did not object when Kinmon's attorney incorrectly argued to the jury that  



                                                                                                                                                                   

previously purchasing a game tag did not require paying for the tag before taking the  



                                                                                                                                                                  

animal.  The jury nevertheless convicted Kinmon on all relevant charges.  The fact that  



       9     I note that the jury convicted Kinmon of falsifying the tag records relating to a sheep     



taken by his client, John Maser.                             Maser testified that Kinmon directed him to backdate the   

check he gave Kinmon for the sheep tag to a date before he killed the sheep, even though he  

actually wrote the check after the hunt was over.                                                This testimony strongly suggests that,                          

notwithstanding the proffer, Kinmon believed he was required to collect the payment for the   

tag prior to the nonresident hunter taking the animal.  



                                                                               - 21 -                                                                          2657  


----------------------- Page 22-----------------------

the defense attorney made an incorrect statement of the law to the jury that was beneficial                                                                                                                                                                                                                                                                                                  



to Kinmon does not require reversal of Kinmon's convictions.                                                                                                                                                                                            



                                                                   I believe that the majority opinion unnecessarily complicates the meaning                                                                                                                                                                                                                                                       



of an unambiguous statute. While the purchase of a car or a house may routinely involve                                                                                                                                                                                                                                                                                                                 



lengthy written contracts, financing, and liens that make a "purchase" possible without                                                                                                                                                                                                                                                                                                                



payment in full, the purchase of a big game tag is a straightforward transaction that                                                                                                                                                                                                                                                                                                                                    



involves noneofthesecomplications. When                                                                                                                                                                                  thewords                                          "previously purchased"aregiven                                                                                                          



their ordinary, common meaning, the statute clearly requires that a nonresident must pay                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                     10  

 for the big game tag before taking the animal.                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                  I therefore dissent.  



                 10               I additionallynote that Kinmon's trial attorneydid not challenge AS 16.05.340(a)(15)                                                                                                                                      



as ambiguous or unconstitutionally vague.                                                                                                                                                                   Rather, at the close of the State's case, he asked   

the court to dismiss the case, arguing that the State had "failed to show even that a crime has   

been committed." This was essentially a motion for judgment of acquittal. Kinmon's lawyer                                                                                                                                                                                                                                                                    

went on to argue, "There's been no showing that failing to get payment right at the time you  

get the tags is a crime."  On appeal, Kinmon construes this mid-trial remark as an argument  

                                                                                                                                                                                                                                                                                                                                                                                               

that the statute failed to give him notice of what conduct was prohibited.  In my view, this  

argument was not presented to the trial court and was not preserved for this appeal.  



                                                                                                                                                                                                         - 22 -                                                                                                                                                                                                     2657  

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