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Brigman v. State (2/14/2003) ap-1854
Brigman v. State (2/14/2003) ap-1854
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@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NICHOLAS W. BRIGMAN, )
) Court of Appeals No.
A-8044
Appellant, )
Trial Court No. 3KO-00-440 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1854 February 14, 2003]
)
Appeal from the District Court, Third Judi
cial District, Kodiak, Fred J. Torrisi,
Judge.
Appearances: Brent R. Cole and Colleen J.
Moore, Marston & Cole, Anchorage, for
Appellant. John T. Baker, Assistant Attorney
General, Anchorage, Joseph S. Slusser,
Assistant District Attorney, and J. Michael
Gray, District Attorney, Kodiak, and Bruce M.
Botelho, Attorney General, Juneau, for Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Nicholas W. Brigman appeals his conviction for
possessing and/or transporting game that he knew, or should have
known, had been taken in violation of Alaskas hunting
regulations.1 This conviction arose from Brigmans assistance to
a hunter who was successful in the spring 2000 drawing for brown
bear hunting permits on Kodiak Island.
The hunters permit allowed him to kill a brown bear in
Permit Hunt Area 258, the Wild Creek area. However, the hunter
tracked his bear into an adjacent hunting area, Permit Hunt Area
232, and killed the bear there. Brigman was convicted of helping
transport the skin, skull, and body parts of the bear when he
either knew or should have known that the hunter had violated the
terms of his permit by killing the bear outside the designated
permit hunt area.
The main issue raised in this appeal is Brigmans
challenge to the manner in which the Department of Fish and Game
established the various permit hunt areas on Kodiak Island.
These permit hunt areas were all established by internal decision
within the Department. Brigman contends that this is illegal for
two reasons. First, he argues that no statute or regulation
authorizes the Department to establish permit hunt areas.
Second, Brigman argues that even if the Department has the
authority to establish permit hunt areas, it can not do so by
internal decision; instead, the Department must enact a
regulation under Alaskas Administrative Procedure Act, AS 44.62,
if it wishes to establish (or modify) the permit hunt areas.
For the reasons explained here, we conclude that the
Department of Fish and Game defined the permit hunt areas
pursuant to the authority granted by a now-repealed regulation,
former 5 AAC 81.055(18). We further conclude that the permit
hunt areas are not rules ... or standards of general application
within the meaning of AS 44.62.640(a)(3), which means that the
Administrative Procedure Act does not apply to the Departments
action. Thus, pursuant to the authority granted by the former
regulation, the Department could lawfully define the permit hunt
areas by internal decision.
Legal background of this case
The State of Alaska is divided into twenty-
six major game management units, some of which are
divided into as many as six smaller sub-units (e.g.,
Unit 1(A), Unit 26(C)). See 5 AAC 92.450. Brigmans
appeal requires us to examine the rules that govern the
hunting of brown bears in Game Management Unit 8, which
comprises Kodiak Island and its neighboring islands
south of the Shelikof Strait.
Each year, the Department of Fish and Game
establishes the rules that will govern the drawing
permit hunts for game animals in Alaska.2 The
Department establishes permit hunt areas for different
species of game, fixes the number of permits that will
be issued for each permit hunt area, sets out the
procedures for applying for a permit, and announces any
supplemental conditions that will govern permit hunting
in each area (in addition to the conditions and
procedures mandated by 5 AAC 92.050). By law, all of
this information is published in an annual permit
supplement.3
For years, the Department has divided Game
Management Unit 8 into some thirty permit hunt areas
for the hunting of brown bears. These permit hunt
areas are not defined by metes and bounds descriptions,
but rather are drawn on a topographical map that is
published as part of the annual permit supplement.
Each of the permit hunt areas is designated by a pair
of identifying numbers one number for the fall hunt,
and the other for the spring hunt. In an accompanying
table, the permit hunt areas are also identified by a
geographic name (e.g., West Ugak Bay, Sturgeon River).
The Departments map, which is reproduced
here, will have a familiar look to any reader who has
played such games as Diplomacy or Risk.
The main issue in this appeal is Brigmans
legal challenge to the way the Department set the
boundaries of these permit hunt areas.
Several years ago, Title 5 of the Alaska
Administrative Code (5 AAC) contained a regulation that
expressly authorized the Department to set the
boundaries of permit hunting areas for brown bears in
Game Management Unit 8.4 That regulation has since
been repealed, but both the Department and the Board of
Game continue to use the permit hunt areas defined by
the Department.
It may be that the Department actively
reconsiders the boundaries of the permit hunt areas
annually, and it is just happenstance that the permit
hunt areas on Kodiak Island have remained unchanged for
years. Alternatively, the Department may re-affirm the
existing boundaries more or less automatically each
year, without active consideration of other potential
boundaries. Or the Department may believe that,
because the regulation that expressly authorized the
Department to create permit hunt areas has now been
repealed, the Department no longer has the authority to
modify the hunting areas that were created under that
former regulation.
Whatever the case may be, Brigmans legal
challenge to the permit hunt areas is ultimately the
same. The fact remains that the boundaries of the
permit hunt areas have been set by internal decision
within the Department. Brigman contends that this
violates Alaskas Administrative Procedure Act.
Specifically, he argues that even if the Department is
(or was) authorized to define permit hunt areas, it
could not do so by internal decision, but rather had to
do so by enacting a regulation in conformity with the
procedures specified in Alaskas Administrative
Procedure Act, AS 44.62. That is, Brigman asserts that
the Department could not establish permit hunt areas
without giving the public advance notice of its
proposed action and without holding a public hearing on
the proposed hunting areas and their specific
boundaries. See AS 44.62.180-290.
Factual background of this case
An Anchorage resident, Lorne Smette, was a
successful applicant for a spring 2000 brown bear
permit on Kodiak Island. Smettes permit was issued for
Permit Hunt Area 258, the Wild Creek area. That is,
Smette was only authorized to take a brown bear within
Area 258.
Smette was an inexperienced hunter, and he
wanted someone to assist him. Through an intermediary,
he negotiated with Brigman, whose wife owns a lodge on
Kodiak Island. Brigman agreed to help Smette in his
hunting venture. For $4000, Brigman provided Smette
with a camp, equipment, food, and transportation from
the lodge to the permit hunt area. He also arranged to
have Roy Lesher, an employee at the lodge, accompany
Smette on his hunt.
Smette arrived at Brigmans lodge on April 24,
2000. Smette conducted a reconnaissance of the permit
hunt area on April 25th, accompanied by Brigman. On
April 27th, Smette went hunting, accompanied by Lesher.
The hunt was unsuccessful. The next day, April 28th,
Smette and Lesher traveled farther up Hidden Basin
Creek. In doing so, the two men crossed the boundary
of Permit Hunt Area 258 and entered the adjacent
hunting area Area 232 (the West Ugak Bay area).
About a mile and a half into Area 232, Smette
and Lesher shot and killed a brown bear. They began to
skin the bear, but it was late in the day, so they left
the carcass and Brigman transported them back to the
lodge. The following day, Brigman accompanied Smette
and Lesher to the kill site. Brigman himself skinned
the bears head and paws. He also cut out the bears
gall bladder and saved it for himself.
After the skinning was completed, Brigman
used his skiff to transport Smette, Lesher, and the
bears skin, skull, and gall bladder back to the lodge.
Brigman was charged with several offenses
arising from this episode. For purposes of this
appeal, the pertinent charge was that Brigman violated
5 AAC 92.140(a), a regulation that forbids a person
from possessing, transporting, giving, receiving, or
bartering game or game parts if the person knows or
should know that the game was taken in violation of
Title 16 of the Alaska Statutes or any regulation
adopted under Title 16.
At trial, Brigman conceded that he possessed
and transported the bear parts from Smettes hunt, but
he argued that the boundaries of the permit hunt areas
were so vague and inexact that he had no reasonable way
of knowing that the bear was killed in the wrong area.
The jury rejected Brigmans argument and convicted him
of this offense.
Is the Department of Fish and Game authorized to
subdivide the states game management units into smaller
permit hunt areas?
In Alaska, no one may take, possess, or
transport game (or any part of a game animal) unless
the taking, possession, or transportation is authorized
by AS 16.05 16.40 or by a regulation adopted under
those statutes.5 Smette was successful in the permit
lottery for the spring 2000 brown bear hunt, but he was
obliged to obey the conditions of his permit.6 Smettes
hunting permit limited him to Permit Hunt Area 258.
The States core allegation against Brigman was that he
possessed and transported a bear skin, skull, and gall
bladder when he knew or should have known that the bear
was killed in violation of the terms of Smettes hunting
permit that is, killed outside Permit Hunt Area 258.
Brigman argues that the Department of Fish
and Game had no authority to limit Smettes hunting
activities to Permit Hunt Area 258 because the
Department ultimately has no authority to establish
permit hunt areas at all. Brigman points out there is
a regulation, 5 AAC 92.450, that defines the various
game management units within Alaska, but there appears
to be no regulation that either (1) defines smaller
permit hunt areas within these game management units,
or that (2) authorizes the Department to define permit
hunt areas within the game management units.
The State counters that the Departments
authority to establish permit hunt areas is recognized
in 5 AAC 92.052, Discretionary Permit Hunt Conditions
and Procedures. This regulation lists some twenty
restrictions and conditions that the Department may [in
its discretion] apply ... to a permit hunt, when
necessary for management of the species hunted. Among
the conditions listed in this regulation, number (7)
speaks of permit hunt areas:
(7) [The Department may direct that]
only a specified number of permittees may
hunt during the same time period, and [that]
a permittee may hunt only in a specified
subdivision within the permit hunt area[.]
The State argues that this portion of the regulation grants the
Department the authority to create permit hunt areas. But this
does not appear to be correct.
The regulation grants the Department the authority to
limit hunters to a specified subdivision within a particular
permit hunt area. At best, this regulation grants the Department
the authority to define subdivisions within a permit hunt area.
But the regulation does not authorize the Department to create
permit hunt areas. Rather, it seems to assume a pre-existing
system of permit hunt areas.
This same assumption a pre-existing system of permit
hunt areas is clearly found in 5 AAC 92.061(5), a regulation
enacted by the Board of Game that lists nine of the Kodiak Island
permit hunt areas by name, and specifies them as areas where
special conditions govern the hunting of female brown bears.
The record in the present appeal does not reveal when
the Department created the brown bear permit hunt areas in Game
Management Unit 8. However, as we noted above, a 1979 regulation
former 5 AAC 81.055(18) explicitly granted the Department this
power:
[P]ermits for hunting brown bear in
[Game Management] Unit 8 shall be issued on
the basis of a minimum of 60 percent of the
total available permits within hunting areas
established by the commissioner ... .
(Register 71, October 1979) (emphasis added).
Thus, by 1979 at the latest, the Board of Game had
authorized the Department of Fish and Game to create permit hunt
areas on Kodiak Island (and on the other islands contained in
Game Management Unit 8). It may be true that the current
regulations no longer expressly give the Department this
authority, but it is evident that the current regulations ratify
a system of permit hunt areas already in place.
The parties to this appeal agree that the permit hunt
areas on Kodiak Island have existed for years, but the record
does not reveal exactly when the Department defined these areas.
In the absence of evidence to the contrary, we follow the
presumption of regularity the presumption that public officers
have properly discharged their official duties.7 In Brigmans
case, we presume that the Department of Fish and Game defined the
permit hunt areas within Game Management Unit 8 when the
Department had express authority to do so.
Because the Department was once authorized to create
permit hunt areas for the hunting of brown bears in Game
Management Unit 8, and did so, and because no statute or
regulation has abolished the permit hunt areas created by the
Department (indeed, the current regulations assume the existence
of those permit hunt areas), we conclude that the existing permit
hunt areas within Unit 8 were lawfully created if the Department
could create these hunting areas without following the procedures
specified in the Administrative Procedure Act. That issue is
addressed in the next section of this opinion.
Was the Department of Fish and Game obliged to follow
the Administrative Procedure Act when it established
the brown bear permit hunt areas in Game Management
Unit 8?
Brigman argues that even if the Department
was authorized to create the brown bear permit hunt
areas in Game Management Unit 8, the Department was
obliged to follow the Administrative Procedure Act, AS
44.62, when it created these hunting areas. That is,
Brigman asserts that the Department was obliged to
publicly announce its intention to establish the system
of permit hunt areas, then to hold public hearings on
this proposal, and finally to codify the permit hunt
areas in a regulation published in the Alaska
Administrative Code.8 The State responds that the
Department could lawfully establish the permit hunt
areas by internal decision.
The key to resolving this issue is the
definition of regulation codified in AS 44.62.640(a)(3)
for the Administrative Procedure Act governs an agencys
actions only if those actions constitute regulations
within this statutory definition.
AS 44.62.640(a)(3) declares that, for
purposes of the Administrative Procedure Act, the term
regulation means
every rule, regulation, order, or standard of
general application ... adopted by a state
agency to implement, interpret, or make
specific the law enforced or administered by
it, or to govern its procedure [except for
rules that relate only to the internal
management of the agency].
Brigman argues that the system of brown bear permit
hunt areas constitutes a rule ... or standard of general
application, and thus the Department had to comply with the
mandates of the Administrative Procedure Act when the
Department defined those hunting areas.
The State argues that the permit hunt areas should not
be deemed rules of general application because they do not apply
to the hunting population in general, nor do they fix the
boundaries of brown bear hunting in general. Rather (the State
argues), each defined permit hunt area governs the activities of
only the few hunters who succeed in obtaining a brown bear
hunting permit for that hunting area in the annual permit
lottery. In the States view, the boundaries of the permit hunt
areas are simply one of the many conditions or limitations that
govern a hunters use of their particular permit.
The words of the statute are not particularly helpful
in resolving this dispute. The system or grid of permit hunt
areas applies to all persons who wish to hunt brown bears in Game
Management Unit 8, so in one sense this system of hunting areas
is a rule ... of general application ... adopted by [the
Department of Fish and Game] to implement ... the law enforced or
administered by it. But in another sense, the particular
geographical boundaries of these permit hunt areas do not
constitute rules or standards because they do not govern or
restrict hunters activities in the same manner as the rules that
(for example) specify the hunting season, or restrict the type of
transportation or weapon that hunters may use, or that prohibit
the killing of animals of a particular size or sex. Although the
various permit hunt areas may differ in terms of ease of access
or likelihood of a successful hunt, the hunting permits are
awarded by lottery thus giving all hunters the same chance to
obtain access to any particular permit hunt area.
For these reasons, it is unclear whether the system of
permit hunt areas should be viewed as a rule ... of general
application within the meaning of AS 44.62.640(a)(3). Both
Brigman and the State advance policy arguments in favor of their
viewpoints. We do not find either of these policy arguments
convincing.
Brigman asserts that, if the Department is not forced
to establish the permit hunt boundaries through the procedures
codified in AS 44.62, hunters will be denied due process because
they will not have adequate notice of [their] potential criminal
conduct. But, as we explained above, 5 AAC 92.049(b) obliges
the Department to annually publish a permit supplement that
describes the permit hunt areas, announces the number of permits
that will be issued for each area, sets out the procedures for
applying for a permit, and specifies any supplemental conditions
that will govern permit hunting in each area (in addition to the
conditions and procedures mandated by 5 AAC 92.050). While one
might argue that the Department should seek public input before
it decides all these parameters of permit hunting, there is ample
public notice of the Departments decision. Moreover, all
successful permit applicants are individually notified of the
conditions that govern their individual permits. For these
reasons, we reject Brigmans contention that the Departments
practice of establishing permit hunt areas by internal decision
denies hunters fair notice of the geographical restrictions on
their hunt.
The State, for its part, argues that unless the
Department is free to define permit hunt areas by internal
decision, the Department will be unable to adequately manage game
resources. The State contends that the number of permit hunt
areas, and their individual boundaries, must be re-assessed on a
regular basis to ensure the health of the brown bear population.
And the State further contends that it would be impossible to
adequately perform this assessment if the Department were forced
to go through the regulation-enactment process specified in AS
44.62.
The States argument might have more force if the
Department regularly adjusted the permit hunt areas (their number
and/or their boundaries). But there is nothing in the record to
indicate that the Department has altered the permit hunt areas
since they were created. In fact, as we explained above, the
Board of Game has incorporated nine of these permit hunt areas in
a permanent regulation, 5 AAC 92.061 thus suggesting that the
Board of Game, at least, treats the permit hunt areas as a more
or less permanent fixture of the bear-hunting landscape.
To resolve Brigmans case, we have examined several
decisions of the Alaska Supreme Court in which the court has
interpreted and applied AS 44.62.640(a)(3): State v. Tanana
Valley Sportsmens Association, 583 P.2d 854, 858-59 (Alaska
1978); Kenai Peninsula Fishermens Cooperative Association v.
State, 628 P.2d 897, 904-06 (Alaska 1981); Gilbert v. Dept. of
Fish and Game, 803 P.2d 391, 396-97 (Alaska 1990); Usibelli Coal
Mine, Inc. v. Dept. of Natural Resources, 921 P.2d 1134, 1148-49
(Alaska 1996); Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816,
825-26 (Alaska 1997); and Jerrel v. Dept. of Natural Resources,
999 P.2d 138, 142-44 (Alaska 2000). Among these supreme court
decisions, we conclude that Kachemak Bay Watch, Inc. v. Noah
controls our resolution of Brigmans case.
The issue in Kachemak Bay Watch was the Department of
Natural Resources authority to divide the state into districts
for aquaculture. The legislature had enacted a statute, AS
38.05.855(a), which required the Department to identify districts
in the state within which sites [could] be selected for the
establishment and operation of aquatic farms and related
hatcheries.9 Once the Department designated these districts, the
Department would then receive and consider applications for
permits to engage in aquaculture within each defined district.10
Kachemak Bay Watch challenged the Departments authority
to designate the aquaculture districts by internal decision.
They argued that the Department was obliged to define these
districts by regulation, pursuant to the Administrative Procedure
Act. But the supreme court rejected this argument.
The supreme court ruled that the system of districts
would not necessarily constitute a regulation simply because it
affected the public in general ways. Quoting a decision of the
D.C. Circuit Court of Appeals, Batterton v. Marshall11, the
supreme court acknowledged that many ... internal agency
practices affect [the public] often in significant ways.12 But
the court suggested that an agencys action would normally not be
deemed a regulation if it did not alter the rights or interests
of the parties.13
The court conceded that it was a close question whether
the Departments designation of the aquatic farming districts
constituted a regulation for purposes of the Administrative
Procedure Act.14 However, the court concluded that the system of
districts did not constitute a regulation:
[I]dentification [of the districts] does not
alter the rights of the parties, does not
deprive any party of a fair opportunity for
public participation, embodies no finding as
to a particular [permit] application[,] and
does not establish criteria by which
particular [permit] applications should be
evaluated.
Agencies often make discretionary
decisions not requiring formal procedures.
Olson v. State, Dept of Natural Resources,
799 P.2d 289, 292 (Alaska 1990). We have
described an agencys discretionary decision
that does not require formal procedures as
quasi-executive[.] Kodiak Seafood Processors
[Association v. State], 900 P.2d [1191,] 1197
[(Alaska 1995)]. We review such decisions
only for an abuse of discretion. Id.
[The Department of Natural Resources]
regularly makes decisions that are
quasi-executive in nature and do not
constitute regulation under the APA even when
one or more indices of a regulation are
present. See Olson, 799 P.2d at 292. For
instance, the Commissioner does not identify
by regulation those lands made available for
oil and gas leases, mineral leases, or timber
sales. See AS 38.05.180(b), AS 38.05.
135-175, and AS 38.05.115. The legislatures
assignment of a task to an agency, such as
the identification of districts at issue
here, invariably involves the exercise of
agency discretion.
District identification is the first
step in a lengthy, detailed public process of
determining what aquatic farm will be allowed
in what location. The legislatures
established procedures under the Act do not
include requiring the identification of
districts by regulation.
Katchemak Bay Watch, 935 P.2d at 825-26. The
supreme court therefore concluded that the
Departments identification of aquatic farm
districts did not constitute a regulation
under the Administrative Procedure Act.
If anything, the facts of Brigmans
case point more strongly toward this
conclusion than the facts presented in
Kachemak Bay Watch for brown bear hunting
permits are awarded by lottery, and thus all
applicants have an equal chance to secure a
permit in any specified permit hunt area.
Therefore, based on the supreme courts
decision in Katchemak Bay Watch, we conclude
that the Department of Fish and Games
designation of the permit hunt areas in Game
Management Unit 8 does not constitute a
regulation for purposes of the Administrative
Procedure Act. Thus, the Department could
legally define the brown bear permit hunt
areas by internal decision.
For these reasons, we reject
Brigmans argument that the permit hunt areas
are invalid. The State could lawfully
prosecute Brigman for possessing or
transporting game that he knew or should have
known was taken outside the boundaries of the
permit hunt area specified in Smettes brown
bear hunting permit.
We now turn to the other arguments
that Brigman raises in his appeal.
Brigmans request for a jury instruction on the
affirmative defense that he possessed and
transported the illegally taken bear for the sole
purpose of salvaging the meat
At trial, Brigman conceded that he possessed
and transported the bear skin, skull, and gall
bladder, and he ultimately conceded (in his
summation to the jury) that the bear was taken in
the wrong permit hunt area. But Brigman argued
that the map depicting the permit hunt area
boundaries was unclear, and therefore he did not
know nor could he reasonably be expected to know
that the bear was killed outside Smettes allotted
permit hunt area, Area 258. Thus, according to
Brigman, the State had failed to show that he
acted negligently with regard to the circumstance
that the bear was taken illegally.
At the close of the trial, Brigman asked for
a jury instruction on a different theory of
defense the affirmative defense that his
possession and transportation of the bear was done
for the sole purpose of salvaging the meat. This
affirmative defense grew out of the Alaska Supreme
Courts decision in Gudmundson v. State.15
Gudmundson involved two hunters who killed a
sheep in an area closed to hunting and then confronted
a legal dilemma. On the one hand, AS 16.30.010(a)
required the hunters to salvage the meat so that it
would not be wasted; but on the other hand, 5 AAC
92.140 prohibited them from possessing the sheep or
transporting it anywhere (because it had been taken
illegally). The hunters chose to leave the sheep where
it was. Later, after an anonymous caller alerted the
authorities to the illegal kill, the two hunters
directed the authorities to the kill site. But by the
time the authorities were able to reach the sheep, the
meat was maggot-infested and inedible, so the hunters
were charged with wanton waste under AS 16.30.010(a).16
The supreme court ruled that, because of the hunters
legal dilemma, they were denied due process of law when
the State charged them with wasting the sheeps meat.17
Following the supreme courts decision in
Gudmundson, a new section was added to 5 AAC 92.140,
the regulation that forbids the possession or
transportation of illegally taken game. This new
section, 92.140(d), states:
Notwithstanding [the prohibition on the
possession or transportation of illegally
taken game], it is an affirmative defense to
the crime of unlawful possession or
transportation of game, if the person who
possesses and transports game or parts of
game taken in violation of AS 16 or a
regulation adopted under AS 16 is doing so
for the sole purpose of salvaging that game
... , immediately salvages that game or parts
of game from the field[,] and immediately
surrenders that game or parts of game to a
representative of the state located at the
nearest office of the Department of Fish and
Game ... or Department of Public Safety ... .
When the parties were discussing
jury instructions at the close of Brigmans
trial, Brigman asked for an instruction on
this affirmative defense. The trial judge,
Superior Court Judge Fred J. Torrisi, found
no evidence to warrant this instruction. On
appeal, Brigman challenges Judge Torrisis
decision on two grounds.
First, Brigman asserts that the
salvage defense is actually a new element of
the crime so that when defendants are tried
for possession or transportation of illegally
taken game, juries must always be apprised of
this potential defense, and the State must
disprove the defense beyond a reasonable
doubt. This is simply a misreading of the
regulation. The regulation refers to the
salvage defense as an affirmative defense.
The term affirmative defense is not
defined in Title 5 of the Administrative
Code, so it is not clear whether this term
(as used in the regulation) means the same
thing as it means in Title 11 i.e., a
defense on which the defendant bears the
burden of proof by a preponderance of the
evidence. See AS 11.81.900(b)(2). But
regardless of which side is meant to bear the
ultimate burden of proof, we construe the
regulation to mean (at least) that defendants
bear the burden of raising the issue and
presenting evidence to support a finding in
their favor.18 Thus, Brigman is wrong when
he asserts that juries must always be
instructed on this defense.
This brings us to Brigmans second
challenge to Judge Torrisis ruling. As
explained above, the judge ruled that Brigman
had failed to present any evidence to support
a finding in his favor on the proposed
salvage defense.
The evidence at trial showed that,
after Smette killed the bear, Brigman,
Smette, and Lesher brought the bear skin and
skull to the Kodiak office of the Department
of Fish and Game but they did this so that
the skin and skull could be sealed (as
required by regulation19), not salvaged.
Smette and his companions did not bring the
bear meat to the Kodiak office, nor did they
surrender the skin to the Fish and Game
officer (other than temporarily), nor did
they tell the officer that they had taken the
bear illegally. Instead, they told the
officer that the bear had been killed
lawfully, in conformity with Smettes hunting
permit.
As explained above, this remained
Brigmans position at trial. He contended
that he believed that the kill was lawful
and that, if by chance the kill was not
lawful, there was no reasonable way for him
to know this. He has never contended that he
or Smette intended to relinquish any part of
the bear to the Department for salvage.
Given this evidence, Judge Torrisi
lawfully refused Brigmans request for a jury
instruction on the salvage defense codified
in 5 AAC 92.140(d).
Judge Torrisis refusal to re-open the evidence so that
the jury could be apprised that the State had
dropped all charges against Smette
Before Brigmans trial, Smette negotiated a
plea bargain with the State. The State allowed
Smette to plead no contest to a violation that
is, a strict liability, quasi-criminal offense
that carried a penalty of up to a $300 fine and
forfeiture of the bear skin in return for Smettes
testimony against Brigman. When Smette testified
at Brigmans trial, the jury was informed of the
details of Smettes plea bargain.
Then, on the morning of closing arguments,
the prosecutor informed Judge Torrisi and Brigmans
attorney that his boss, the Kodiak district
attorney, had decided to dismiss all charges
against Smette. The prosecutor assured Judge
Torrisi that the change was initiated solely by
the Kodiak district attorney, without consulting
Smette, because the district attorney had
concluded that Smette was more a victim than
anything else. The prosecutor further assured the
judge that Smette had had no inkling that he might
ultimately get a better deal than the one he
negotiated.
Nevertheless, Brigmans attorney asked Judge
Torrisi to tell the jury that all charges against
Smette had been dismissed. When Judge Torrisi
asked why this information was relevant, the
defense attorney answered that it was relevant to
the States perception [of the case].
After hearing the defense attorneys
explanation, Judge Torrisi ruled that the information
was not relevant unless there was some evidence that
Smette had prior knowledge of the better deal. The
judge told the defense attorney that he had the right
to interview Smette (to investigate the prosecutors
assertion that the change in the deal was the States
unilateral decision). The judge further stated that,
if there was evidence that Smette was aware of the
deal, the defense attorney would have a good motion.
Judge Torrisis ruling would have been
questionable if Brigman had wanted to use this
information to attack Smettes credibility. Compare our
decision in Braund v. State, 12 P.3d 187, 191 (Alaska
App. 2000). Had Brigman wanted to delve into Smettes
understanding or hopes concerning the district
attorneys ultimate decision regarding Smettes charges
or sentence, Brigman might well have been entitled to
do this. We do not say that Brigman would have been
entitled to precisely what he asked for i.e., entitled
to simply have the jury instructed that the charge
against Smette had been dropped. If the issue was to
be litigated, both parties would be entitled to present
their side of the issue: Brigman would have been
entitled to re-open the evidence to elicit the fact
that the charge against Smette had been dropped, and
the State would have been entitled (if it wished) to
present testimony to explain why the district attorney
had done so.
But when Brigman argued this point to Judge
Torrisi, he did not argue that the States decision to
drop the charge was relevant to assessing Smettes state
of mind his potential motives and, thus, his
credibility as a witness. Nor does Brigman raise this
argument on appeal. In fact, Brigman now affirmatively
asserts that the dismissal of the charge against Smette
was not a deal (emphasis added), and that the district
attorney dropped the charge without [receiving] any
consideration from Mr. Smette.
Rather, Brigman argues (as he did in the
trial court) that the States decision to drop the
charge was relevant to the district attorneys state of
mind the district attorneys perception of the case.
Brigman argues that the district attorneys decision to
drop the remaining strict-liability charge against
Smette was, in effect, a concession by the district
attorney that he no longer believed that the bear was
taken illegally i.e., no longer believed that the bear
was taken in the wrong permit hunt area.
This does not follow. As we recently pointed
out in State v. District Court, the State [has] the
discretion to decide whether to bring charges against a
person who has broken the law and, if so, to decide
what those charges will be.20 Quoting the Nebraska
Supreme Court in State v. Blair21, we said:
[A] prosecutor is not obliged to present
all charges which the evidence might support.
Nor is it desirable that he prosecute all
crimes at the highest degree available. ...
In exercising discretion in this way, the
prosecutor is not neglecting his public duty
or discriminating among offenders. The
public interest is best served and
even-handed justice best dispensed not by a
mechanical application of the letter of the
law but by a flexible and individualized
application of its norms through the exercise
of the trained discretion of the prosecutor
as an administrator of justice.
State v. District Court, 53 P.3d at 632.22
We agree with Judge Torrisi that the Kodiak district
attorneys decision to dismiss the remaining charge against Smette
was not relevant to show how the government construed the
evidence. The State is not obliged to prosecute every violation
of law, and the States ability to dismiss charges in the interest
of justice is not limited to circumstances where the defendant is
factually innocent. As the Eleventh Circuit Court of Appeals
observed when it rejected an analogous claim (a claim that the
trial judge should have allowed the defendant to apprise the
jury that the government had dismissed charges against the
defendants co-conspirator), [W]e cannot attribute the governments
decision not to prosecute to an independent determination that
the defendant is not guilty.23
Moreover, Brigmans attorney himself conceded, during
final argument, that it [did] appear that [the bear] was taken in
violation of the law, on the wrong side of the boundary i.e., in
the wrong permit hunt area. Brigmans defense at trial was not
that the bear might have been killed legally, but rather that he
and his companions had no reasonable way to know (at the time)
that the bear was killed in the wrong hunting area. There is no
reasonable basis for construing the district attorneys decision
to dismiss the remaining charge against Smette as a concession
that the bear was killed legally and that none of the
participants could lawfully be convicted of a game offense.
For these reasons, we uphold Judge Torrisis refusal to
inform the jury that the district attorney had dismissed the
remaining charge against Smette.
Judge Torrisis refusal to admit Brigmans video tape
that purportedly depicted a hike to the spot where the
bear was killed
At trial, Brigmans attorney attempted to
introduce a video tape of the area where the bear was
killed. The video tape was recorded by Roy Lesher,
Brigmans wifes employee, in October 2000 that is,
about five months after the hunt.
Brigman argued that the video would have
allowed the jury to see how difficult it can be for a
person to know their exact position when they are in
the field, and how hard it would be for Smette, Lesher,
and Brigman to know when they had crossed the boundary
from one permit hunt area to another.
The State objected to the video tape because
the video was not a continuous recording. The hike to
the kill site was approximately ninety minutes, but the
video tape ran for only twenty minutes. The State
argued that the video was misleading because it would
lead the jury to think that it took only a few minutes
for the hunters to move into the wrong permit hunt
area. The State also objected to the fact that, at
several points in the video tape, an individual pointed
to locations on a map that had no topographical
markings and that had not been admitted into evidence.
(Apparently, the purpose of this pointing was to
indicate to the viewers of the video where the video
photographer was located at that moment.)
Judge Torrisi refused to admit the video
tape; he concluded that the video did not fairly
represent the route to the kill site because it showed
only a portion of that route, and because it was
recorded at a different season of the year, when the
ground and the foliage would appear different.
A video tape is admissible if the proponent
of the evidence establishes, as a foundational matter,
that the tape accurately depict[s] the subject and ...
will be helpful to the jury.24 The video need not be
totally free from inaccuracies, as long as there is an
explanation of these imperfections so that the jury is
not misled.25 However, a trial judge has discretion
under Evidence Rule 403 to exclude potentially relevant
evidence if the probative value of the evidence is
outweighed by the danger that it may confuse or mislead
the jury.26
The primary issue litigated at Brigmans trial
was whether Brigman knew or should have known that the
bear had been killed in the wrong permit hunt area.
The State presented testimony that the boundary between
the two permit hunt areas was very easy to distinguish.
Brigman, on the other hand, argued that the boundary
was unclear.
The video tape showed only selected portions
of the hike to the kill site. Given these omissions,
the potentially misleading portions pointed out by the
prosecutor, and the fact that the tape was made at a
different season of the year, we conclude that Judge
Torrisi did not abuse his discretion when he declined
to allow Brigman to introduce the video tape.
Brigman argues that Judge Torrisi could not
properly rule on the admissibility of the video tape
until he personally viewed the tape himself. But the
parties made the judge aware of the content of the
tape, and Brigman did not dispute the major
deficiencies that formed the basis of Judge Torrisis
ruling the fact that the video tape was made some five
months after the hunt, and the fact that it did not
record the entire distance that the hunters had had to
traverse to reach the kill site. Thus, even though
Judge Torrisi did not view the tape, he could properly
rule on the admissibility of the tape based on the
parties descriptions of its content.27
Judge Torrisis refusal to allow Brigman to introduce
the States previous charging documents that mistakenly
identified the site of the bear kill as Permit Hunt
Area 258, rather than Permit Hunt Area 232
On October 16, 2000, the State filed a
complaint against Brigman that charged him with aiding
or abetting Smettes illegal act of killing a bear
outside the area authorized by Smettes hunting permit.
This charge was reiterated in an information dated
December 26, 2000 that was intended to supersede the
October complaint. Both of these pleadings charged
Brigman with aiding or abetting Smettes act of killing
a bear in violation of his permit, but both pleadings
mistakenly identified the site of the kill as Permit
Hunt Area 258 (the hunting area where Smette was
authorized to kill a bear) instead of Permit Hunt Area
232 (the true site of the kill). The State remedied
this error when it filed a corrected information on
January 10, 2001.
At trial, Brigman asked permission to
introduce the two earlier charging documents. He
asserted that the States misidentification of the
permit hunt area should be deemed an admission that the
bear was in fact killed in Permit Hunt Area 258, the
hunting area in which Smette was authorized to take a
bear. Judge Torrisi refused to admit the pleadings on
this basis. He told Brigmans attorney, We know it was
a mistake, and Im not going to hold the State to it.
On appeal, Brigman renews his argument that
the October and December pleadings were admissible as
admissions of a party-opponent (i.e., the State) that
the bear was killed in the proper hunting area.
Alternatively, Brigman argues that the pleadings were
admissible as public records tending to show that the
proper hunting area was difficult to identify. Brigman
contends that, even if the misidentification of the
permit hunt area stemmed from clerical error, this
would go to the weight of the charging documents, not
their admissibility.
Courts often admit superseded or withdrawn
pleadings in civil and criminal cases on the theory
that they constitute evidentiary admissions. (Of
course, the party who filed and then withdrew the prior
pleadings is entitled to explain them.)28 If the party
made the admission in error, or without adequate
information, that fact generally goes to the weight of
the evidence, not to its admissibility.29
But here, as Judge Torrisi noted, the record
is clear that the misdesignation of the permit hunt
area was a clerical error rather than an admission of
fact. It was uncontested that Smette had a valid
permit to kill a brown bear in Permit Hunt Area 258.
If the kill occurred in that permit hunt area, there
would be no charges. The States case against both
Smette and Brigman rested on the assertion that the
kill had occurred in the adjacent hunting area, Area
232. Indeed, the States initial complaint against
Brigman correctly charged him with unlawfully
possessing or transporting a bear that had been killed
in Permit Hunt Area 232. And, at trial, Brigman never
disputed that the bear was killed in Area 232.
Given these circumstances, Judge Torrisi
could properly conclude that the States October and
December pleadings had essentially no probative force
as admissions against interest and that, instead, these
pleadings were likely to mislead the jury. The judges
ruling was not an abuse of discretion under Evidence
Rule 403.
Brigmans sentencing arguments
In advance of Brigmans sentencing, various
members of the community submitted letters to the
district court. Eleven of these letter-writers
supported Brigman, but another six letter-writers
accused Brigman of committing various other hunting and
fishing violations.
Brigmans attorney filed a sentencing
memorandum in which the attorney referred to the
accusatory letters. The defense attorney stated, To
the extent that these letters allege that Mr. Brigman
has acted illegally or improperly in the past, Mr.
Brigman intends on entering a testimonial denial in all
respects at sentencing.
Despite this announcement, Brigman did not
offer a testimonial denial of the alleged past misdeeds
at his sentencing hearing. Instead, in an unusual
procedure, the prosecutor called Brigman to the stand
(without objection from Brigmans attorney). The
prosecutor began his examination of Brigman by saying,
Mr. Brigman, I note that you entered a testimonial
denial as to any criminal allegations in any letters,
and I have a few questions to ask [you] regarding your
testimonial denial[.]
In fact, the prosecutors premise was wrong.
Brigman had not entered a testimonial denial of
anything at that point. Brigmans attorney had
announced Brigmans intention to enter a testimonial
denial at sentencing, but Brigman had never made any
statement under oath denying the alleged other crimes.
After the prosecutor asked Brigman a few
questions about the alleged other crimes, Brigmans
attorney objected that the prosecutors questions were
irrelevant and designed merely to harass Brigman:
Defense Attorney: [W]hat is the
relevance of this[?] Its clear that what
[the prosecutor] is trying to do is set up
Mr. Brigman for perjury charges ... . Its no
secret [that this is] what hes trying to do.
I dont see ... the relevance [of the
prosecutors questions]. [Mr. Brigman] can
deny [the other crimes], and the matters
ended.
But this is not the law.
Under our prior decisions, a
testimonial denial for sentencing purposes
means that the defendant (1) testifies under
oath that the other allegations of misconduct
are false, and (2) submits to cross-
examination on these issues.30 If Brigman
wished to prevent Judge Torrisi from relying
on hearsay allegations of other crimes
contained in the various letters, Brigman had
to deny those allegations under oath and
submit to cross-examination about them.
Brigmans attorney asserted in a pre-
sentencing memorandum that Brigman intended
to enter a testimonial denial at sentencing.
However, the defense attorneys assertion
concerning his clients intention to enter a
testimonial denial at a later time did not
itself constitute the requisite testimonial
denial. To the extent that the record in
this case contains Brigmans testimonial
denial of anything, that denial is contained
in Brigmans answers to the prosecutors few
questions about the other alleged incidents.
During the prosecutors questioning,
Brigman denied that he had left subsistence
nets unattended, or that he had pulled other
peoples crab pots, or that he had shot
unwounded ducks while his boat was running,
or that he had lied on his assistant guiding
license application, or that he had possessed
a firearm. (Brigman is a convicted felon.)
After hearing Brigman deny these allegations,
the prosecutor declined to call witnesses to
challenge Brigmans denials; instead, the
prosecutor told the court that he accepted
Brigmans clear statements on the issues. But
Brigman never addressed several other
allegations contained in the letters:
allegations that Brigman had set illegal nets
and long lines, had snagged fish and then
provided those fish to his clients, had
guided illegally, had allowed his dogs to run
wild and kill deer, and had left trash,
caches, and meat in the field.
We need not discuss this point any
further because, for an independent reason,
we must ask the district court to reconsider
Brigmans sentence. When the district court
reconsiders the sentence, the parties can
straighten out the problem of Brigmans nearly
non-existent testimonial denial.
Brigman argues that Judge Torrisi
improperly relied on letters containing
allegations of other misconduct when Brigmans
attorney never received those letters in
advance of the sentencing hearing. At
sentencing, Brigmans attorney told the court
that he did not think he had copies of all
the adverse letters sent to the court. In
response, Judge Torrisi listed the letters he
had received. The defense attorney informed
the judge that he did not have one of these
letters: the adverse letter written by John
Witteveen, owner of the Wild Creek Lodge.
This matter was then never resolved; the
sentencing continued.
When Judge Torrisi imposed Brigmans
sentence, he referred to the accusatory
letters twice. First, the judge stated that
he was concerned about [the] community
condemnation of [Brigmans] act, which ... is
represented by your neighbors out there, but
to some extent is refuted by [the testimony]
youve provided. A little later, Judge
Torrisi continued in the same vein:
The Court: I [will] rely on these four
or five letters that say things about you, to
[show] that there is a significant [segment]
of your community saying that youre doing
things illegally. Theyre asking these
officers to come in and enforce the law.
And, as I said at the outset, this is a crime
thats hard to catch, its hard to prove ... ,
and I think I have to emphasize deterrence
when I ... sentence you.
From Judge Torrisis remarks, it is
impossible to tell whether he was relying on
the letter that Brigmans attorney did not
receive in advance of sentencing. For this
reason, we remand this case to the district
court so that Judge Torrisi can either (1)
clarify his remarks or (2) give Brigman a
chance to respond to this letter (since
Brigmans attorney now knows of the letter and
its contents).
Conclusion
For the reasons explained here, we AFFIRM
Brigmans conviction, but we REMAND Brigmans case
to the district court for reconsideration of
Brigmans sentence.
_______________________________
1 5 AAC 92.140(a).
2 See 5 AAC 92.049.
3 See 5 AAC 92.049(b).
4 See former 5 AAC 81.055(18) (Register 71, October 1979).
5 AS 16.05.920(a).
6 See 5 AAC 92.990(16), which states: drawing permit means
a permit issued to a person who is one of a limited number
of people selected by means of a lottery held for people who
have submitted a valid application for the permit and who
agree to abide by the conditions specified for each hunt[.]
7 Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972),
quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir.
1960).
This principle has been repeatedly applied by both the
Alaska Supreme Court and this Court. See Finkelstein v. Stout,
774 P.2d 786, 790 (Alaska 1989) (applying the principle to a case
involving absentee ballots, but holding that the presumption of
regularity was rebutted); Tallman v. Dept. of Public Works, 506
P.2d 679, 681 (Alaska 1973) (applying the presumption to reject a
challenge to the array of a jury panel); Wallace v. State, 933
P.2d 1157, 1162 (Alaska App. 1997) (applying the presumption to
conclude that the use of National Guard troops had been properly
authorized); Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App.
1993) (presuming, in the absence of a contrary showing, that the
trial court acted in accordance with its earlier ruling);
Houston-Hult v. State, 843 P.2d 1262, 1266-67 (Alaska App. 1992)
(applying the presumption of regularity to a chain of custody
issue).
8 See AS 44.62.180-290.
9 Kachemak Bay Watch, Inc. v. Noah, 935 P.2d at 821.
10 Id.
11 648 F.2d 694, 707 (D.C. Cir. 1980).
12 Kachemak Bay Watch, 935 P.2d at 825.
13 Id.
14 Id.
15822 P.2d 1328 (Alaska 1991).
16 Gudmundson, 822 P.2d at 1329.
17 Id. at 1332-33.
18See Trout v. State, 866 P.2d 1323, 1324-25 (Alaska App.
1994).
19See 5 AAC 92.165.
20 53 P.3d 629, 633 (Alaska App. 2002).
21 433 N.W.2d 518 (Neb. 1988).
22 Quoting Blair, 433 N.W.2d at 521.
23 United States v. Delgado, 903 F.2d 1495, 1499 (11th
Cir. 1990).
24 Johnson v. State, 636 P.2d 47, 67 (Alaska 1981).
25 Kaps Transport, Inc. v. Henry, 572 P.2d 72, 75-76
(Alaska 1977); see also Beck v. Dept. of Transportation &
Public Facilities, 837 P.2d 105, 113-14 (Alaska 1992)
([S]ubsequent photographic evidence of reconstructed events
is admissible as long as a proper foundation is laid and any
discrepancies between the reconstruction and the original
event are explained.).
26 See Johnson, 636 P.2d at 67.
27 See United States v. Hearst, 563 F.2d 1331, 1349 n.14
(9th Cir. 1977) (concluding that the trial court did not err
by excluding a tape recording without listening to it first,
since the court was familiar with its content).
28 See, e.g., First Bank of Marietta v. Hogge, 161 F.3d
506, 510 (8th Cir. 1998) ([statements in] abandoned ...
pleadings ... are admissible evidence that can be weighed
like any other admission against interest); Huey v.
Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996) (holding
that the trial court erred in granting a motion for summary
judgment because admissions in the defendants initial
answers, which were later amended to deny the allegations,
created a genuine issue of material fact); United States v.
GAF Corp., 928 F.2d 1253, 1260 (2nd Cir. 1991) (holding that
court erred in refusing to admit prior inconsistent bill of
particulars in criminal case because the jury is at least
entitled to know that the government at one time believed,
and stated, that its proof established something different
from what it currently claims); United States v. McKeon, 738
F.2d 26, 30-31 (2nd Cir. 1984) (The law is quite clear that
superseded pleadings constitute the admissions of a party-
opponent and are admissible in the case in which they were
originally filed as well as in any subsequent litigation
involving that party.); State v. Irving, 555 A.2d 575, 580
(N.J. 1989) (factual assertions in pleadings or in
superseded pleadings may be used against the parties who
made the assertions). See generally Wright & Miller,
Federal Practice & Procedure, Evidence 7026 (Interim ed.
2002), Vol. 30B, p. 19; Ediberto Roman, Your Honor, What I
Meant to State Was ...: A Comparative Analysis of the
Judicial and Evidentiary Admission Doctrines as Applied to
Counsel Statements in Pleadings, Open Court, and Memoranda
of Law, 22 Pepperdine Law Rev. 981, 995-98 (1995). But see
Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir.
1985) (holding that a pleading should not be construed as an
admission against the truth of an alternative or
inconsistent pleading in the same case because that would
undermine the federal rule allowing litigants to present
alternative and inconsistent pleadings).
29 See Huey, 82 F.3d at 333 (quoting Kunglig
Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195,
198 (2nd Cir. 1929)); United States v. Bakshinian, 65
F.Supp.2d 1104, 1109 n.5 (C.D. Cal. 1999); Dreier v. Upjohn
Co., 492 A.2d 164, 168 (Conn. 1985).
30 See Evans v. State, 23 P.3d 650, 652 (Alaska App.
2001); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska
App. 1989).
The main issue in this appeal is Brigmans
legal challenge to the way the Department set the
boundaries of these permit hunt areas.
Several years ago, Title 5 of the Alaska
Administrative Code (5 AAC) contained a regulation that
expressly authorized the Department to set the
boundaries of permit hunting areas for brown bears in
Game Management Unit 8.4 That regulation has since
been repealed, but both the Department and the Board of
Game continue to use the permit hunt areas defined by
the Department.
It may be that the Department actively
reconsiders the boundaries of the permit hunt areas
annually, and it is just happenstance that the permit
hunt areas on Kodiak Island have remained unchanged for
years. Alternatively, the Department may re-affirm the
existing boundaries more or less automatically each
year, without active consideration of other potential
boundaries. Or the Department may believe that,
because the regulation that expressly authorized the
Department to create permit hunt areas has now been
repealed, the Department no longer has the authority to
modify the hunting areas that were created under that
former regulation.
Whatever the case may be, Brigmans legal
challenge to the permit hunt areas is ultimately the
same. The fact remains that the boundaries of the
permit hunt areas have been set by internal decision
within the Department. Brigman contends that this
violates Alaskas Administrative Procedure Act.
Specifically, he argues that even if the Department is
(or was) authorized to define permit hunt areas, it
could not do so by internal decision, but rather had to
do so by enacting a regulation in conformity with the
procedures specified in Alaskas Administrative
Procedure Act, AS 44.62. That is, Brigman asserts that
the Department could not establish permit hunt areas
without giving the public advance notice of its
proposed action and without holding a public hearing on
the proposed hunting areas and their specific
boundaries. See AS 44.62.180-290.
Factual background of this case
An Anchorage resident, Lorne Smette, was a
successful applicant for a spring 2000 brown bear
permit on Kodiak Island. Smettes permit was issued for
Permit Hunt Area 258, the Wild Creek area. That is,
Smette was only authorized to take a brown bear within
Area 258.
Smette was an inexperienced hunter, and he
wanted someone to assist him. Through an intermediary,
he negotiated with Brigman, whose wife owns a lodge on
Kodiak Island. Brigman agreed to help Smette in his
hunting venture. For $4000, Brigman provided Smette
with a camp, equipment, food, and transportation from
the lodge to the permit hunt area. He also arranged to
have Roy Lesher, an employee at the lodge, accompany
Smette on his hunt.
Smette arrived at Brigmans lodge on April 24,
2000. Smette conducted a reconnaissance of the permit
hunt area on April 25th, accompanied by Brigman. On
April 27th, Smette went hunting, accompanied by Lesher.
The hunt was unsuccessful. The next day, April 28th,
Smette and Lesher traveled farther up Hidden Basin
Creek. In doing so, the two men crossed the boundary
of Permit Hunt Area 258 and entered the adjacent
hunting area Area 232 (the West Ugak Bay area).
About a mile and a half into Area 232, Smette
and Lesher shot and killed a brown bear. They began to
skin the bear, but it was late in the day, so they left
the carcass and Brigman transported them back to the
lodge. The following day, Brigman accompanied Smette
and Lesher to the kill site. Brigman himself skinned
the bears head and paws. He also cut out the bears
gall bladder and saved it for himself.
After the skinning was completed, Brigman
used his skiff to transport Smette, Lesher, and the
bears skin, skull, and gall bladder back to the lodge.
Brigman was charged with several offenses
arising from this episode. For purposes of this
appeal, the pertinent charge was that Brigman violated
5 AAC 92.140(a), a regulation that forbids a person
from possessing, transporting, giving, receiving, or
bartering game or game parts if the person knows or
should know that the game was taken in violation of
Title 16 of the Alaska Statutes or any regulation
adopted under Title 16.
At trial, Brigman conceded that he possessed
and transported the bear parts from Smettes hunt, but
he argued that the boundaries of the permit hunt areas
were so vague and inexact that he had no reasonable way
of knowing that the bear was killed in the wrong area.
The jury rejected Brigmans argument and convicted him
of this offense.
Is the Department of Fish and Game authorized to
subdivide the states game management units into smaller
permit hunt areas?
In Alaska, no one may take, possess, or
transport game (or any part of a game animal) unless
the taking, possession, or transportation is authorized
by AS 16.05 16.40 or by a regulation adopted under
those statutes.5 Smette was successful in the permit
lottery for the spring 2000 brown bear hunt, but he was
obliged to obey the conditions of his permit.6 Smettes
hunting permit limited him to Permit Hunt Area 258.
The States core allegation against Brigman was that he
possessed and transported a bear skin, skull, and gall
bladder when he knew or should have known that the bear
was killed in violation of the terms of Smettes hunting
permit that is, killed outside Permit Hunt Area 258.
Brigman argues that the Department of Fish
and Game had no authority to limit Smettes hunting
activities to Permit Hunt Area 258 because the
Department ultimately has no authority to establish
permit hunt areas at all. Brigman points out there is
a regulation, 5 AAC 92.450, that defines the various
game management units within Alaska, but there appears
to be no regulation that either (1) defines smaller
permit hunt areas within these game management units,
or that (2) authorizes the Department to define permit
hunt areas within the game management units.
The State counters that the Departments
authority to establish permit hunt areas is recognized
in 5 AAC 92.052, Discretionary Permit Hunt Conditions
and Procedures. This regulation lists some twenty
restrictions and conditions that the Department may [in
its discretion] apply ... to a permit hunt, when
necessary for management of the species hunted. Among
the conditions listed in this regulation, number (7)
speaks of permit hunt areas:
(7) [The Department may direct that]
only a specified number of permittees may
hunt during the same time period, and [that]
a permittee may hunt only in a specified
subdivision within the permit hunt area[.]
The State argues that this portion of the regulation grants the
Department the authority to create permit hunt areas. But this
does not appear to be correct.
The regulation grants the Department the authority to
limit hunters to a specified subdivision within a particular
permit hunt area. At best, this regulation grants the Department
the authority to define subdivisions within a permit hunt area.
But the regulation does not authorize the Department to create
permit hunt areas. Rather, it seems to assume a pre-existing
system of permit hunt areas.
This same assumption a pre-existing system of permit
hunt areas is clearly found in 5 AAC 92.061(5), a regulation
enacted by the Board of Game that lists nine of the Kodiak Island
permit hunt areas by name, and specifies them as areas where
special conditions govern the hunting of female brown bears.
The record in the present appeal does not reveal when
the Department created the brown bear permit hunt areas in Game
Management Unit 8. However, as we noted above, a 1979 regulation
former 5 AAC 81.055(18) explicitly granted the Department this
power:
[P]ermits for hunting brown bear in
[Game Management] Unit 8 shall be issued on
the basis of a minimum of 60 percent of the
total available permits within hunting areas
established by the commissioner ... .
(Register 71, October 1979) (emphasis added).
Thus, by 1979 at the latest, the Board of Game had
authorized the Department of Fish and Game to create permit hunt
areas on Kodiak Island (and on the other islands contained in
Game Management Unit 8). It may be true that the current
regulations no longer expressly give the Department this
authority, but it is evident that the current regulations ratify
a system of permit hunt areas already in place.
The parties to this appeal agree that the permit hunt
areas on Kodiak Island have existed for years, but the record
does not reveal exactly when the Department defined these areas.
In the absence of evidence to the contrary, we follow the
presumption of regularity the presumption that public officers
have properly discharged their official duties.7 In Brigmans
case, we presume that the Department of Fish and Game defined the
permit hunt areas within Game Management Unit 8 when the
Department had express authority to do so.
Because the Department was once authorized to create
permit hunt areas for the hunting of brown bears in Game
Management Unit 8, and did so, and because no statute or
regulation has abolished the permit hunt areas created by the
Department (indeed, the current regulations assume the existence
of those permit hunt areas), we conclude that the existing permit
hunt areas within Unit 8 were lawfully created if the Department
could create these hunting areas without following the procedures
specified in the Administrative Procedure Act. That issue is
addressed in the next section of this opinion.
Was the Department of Fish and Game obliged to follow
the Administrative Procedure Act when it established
the brown bear permit hunt areas in Game Management
Unit 8?
Brigman argues that even if the Department
was authorized to create the brown bear permit hunt
areas in Game Management Unit 8, the Department was
obliged to follow the Administrative Procedure Act, AS
44.62, when it created these hunting areas. That is,
Brigman asserts that the Department was obliged to
publicly announce its intention to establish the system
of permit hunt areas, then to hold public hearings on
this proposal, and finally to codify the permit hunt
areas in a regulation published in the Alaska
Administrative Code.8 The State responds that the
Department could lawfully establish the permit hunt
areas by internal decision.
The key to resolving this issue is the
definition of regulation codified in AS 44.62.640(a)(3)
for the Administrative Procedure Act governs an agencys
actions only if those actions constitute regulations
within this statutory definition.
AS 44.62.640(a)(3) declares that, for
purposes of the Administrative Procedure Act, the term
regulation means
every rule, regulation, order, or standard of
general application ... adopted by a state
agency to implement, interpret, or make
specific the law enforced or administered by
it, or to govern its procedure [except for
rules that relate only to the internal
management of the agency].
Brigman argues that the system of brown bear permit
hunt areas constitutes a rule ... or standard of general
application, and thus the Department had to comply with the
mandates of the Administrative Procedure Act when the
Department defined those hunting areas.
The State argues that the permit hunt areas should not
be deemed rules of general application because they do not apply
to the hunting population in general, nor do they fix the
boundaries of brown bear hunting in general. Rather (the State
argues), each defined permit hunt area governs the activities of
only the few hunters who succeed in obtaining a brown bear
hunting permit for that hunting area in the annual permit
lottery. In the States view, the boundaries of the permit hunt
areas are simply one of the many conditions or limitations that
govern a hunters use of their particular permit.
The words of the statute are not particularly helpful
in resolving this dispute. The system or grid of permit hunt
areas applies to all persons who wish to hunt brown bears in Game
Management Unit 8, so in one sense this system of hunting areas
is a rule ... of general application ... adopted by [the
Department of Fish and Game] to implement ... the law enforced or
administered by it. But in another sense, the particular
geographical boundaries of these permit hunt areas do not
constitute rules or standards because they do not govern or
restrict hunters activities in the same manner as the rules that
(for example) specify the hunting season, or restrict the type of
transportation or weapon that hunters may use, or that prohibit
the killing of animals of a particular size or sex. Although the
various permit hunt areas may differ in terms of ease of access
or likelihood of a successful hunt, the hunting permits are
awarded by lottery thus giving all hunters the same chance to
obtain access to any particular permit hunt area.
For these reasons, it is unclear whether the system of
permit hunt areas should be viewed as a rule ... of general
application within the meaning of AS 44.62.640(a)(3). Both
Brigman and the State advance policy arguments in favor of their
viewpoints. We do not find either of these policy arguments
convincing.
Brigman asserts that, if the Department is not forced
to establish the permit hunt boundaries through the procedures
codified in AS 44.62, hunters will be denied due process because
they will not have adequate notice of [their] potential criminal
conduct. But, as we explained above, 5 AAC 92.049(b) obliges
the Department to annually publish a permit supplement that
describes the permit hunt areas, announces the number of permits
that will be issued for each area, sets out the procedures for
applying for a permit, and specifies any supplemental conditions
that will govern permit hunting in each area (in addition to the
conditions and procedures mandated by 5 AAC 92.050). While one
might argue that the Department should seek public input before
it decides all these parameters of permit hunting, there is ample
public notice of the Departments decision. Moreover, all
successful permit applicants are individually notified of the
conditions that govern their individual permits. For these
reasons, we reject Brigmans contention that the Departments
practice of establishing permit hunt areas by internal decision
denies hunters fair notice of the geographical restrictions on
their hunt.
The State, for its part, argues that unless the
Department is free to define permit hunt areas by internal
decision, the Department will be unable to adequately manage game
resources. The State contends that the number of permit hunt
areas, and their individual boundaries, must be re-assessed on a
regular basis to ensure the health of the brown bear population.
And the State further contends that it would be impossible to
adequately perform this assessment if the Department were forced
to go through the regulation-enactment process specified in AS
44.62.
The States argument might have more force if the
Department regularly adjusted the permit hunt areas (their number
and/or their boundaries). But there is nothing in the record to
indicate that the Department has altered the permit hunt areas
since they were created. In fact, as we explained above, the
Board of Game has incorporated nine of these permit hunt areas in
a permanent regulation, 5 AAC 92.061 thus suggesting that the
Board of Game, at least, treats the permit hunt areas as a more
or less permanent fixture of the bear-hunting landscape.
To resolve Brigmans case, we have examined several
decisions of the Alaska Supreme Court in which the court has
interpreted and applied AS 44.62.640(a)(3): State v. Tanana
Valley Sportsmens Association, 583 P.2d 854, 858-59 (Alaska
1978); Kenai Peninsula Fishermens Cooperative Association v.
State, 628 P.2d 897, 904-06 (Alaska 1981); Gilbert v. Dept. of
Fish and Game, 803 P.2d 391, 396-97 (Alaska 1990); Usibelli Coal
Mine, Inc. v. Dept. of Natural Resources, 921 P.2d 1134, 1148-49
(Alaska 1996); Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816,
825-26 (Alaska 1997); and Jerrel v. Dept. of Natural Resources,
999 P.2d 138, 142-44 (Alaska 2000). Among these supreme court
decisions, we conclude that Kachemak Bay Watch, Inc. v. Noah
controls our resolution of Brigmans case.
The issue in Kachemak Bay Watch was the Department of
Natural Resources authority to divide the state into districts
for aquaculture. The legislature had enacted a statute, AS
38.05.855(a), which required the Department to identify districts
in the state within which sites [could] be selected for the
establishment and operation of aquatic farms and related
hatcheries.9 Once the Department designated these districts, the
Department would then receive and consider applications for
permits to engage in aquaculture within each defined district.10
Kachemak Bay Watch challenged the Departments authority
to designate the aquaculture districts by internal decision.
They argued that the Department was obliged to define these
districts by regulation, pursuant to the Administrative Procedure
Act. But the supreme court rejected this argument.
The supreme court ruled that the system of districts
would not necessarily constitute a regulation simply because it
affected the public in general ways. Quoting a decision of the
D.C. Circuit Court of Appeals, Batterton v. Marshall11, the
supreme court acknowledged that many ... internal agency
practices affect [the public] often in significant ways.12 But
the court suggested that an agencys action would normally not be
deemed a regulation if it did not alter the rights or interests
of the parties.13
The court conceded that it was a close question whether
the Departments designation of the aquatic farming districts
constituted a regulation for purposes of the Administrative
Procedure Act.14 However, the court concluded that the system of
districts did not constitute a regulation:
[I]dentification [of the districts] does not
alter the rights of the parties, does not
deprive any party of a fair opportunity for
public participation, embodies no finding as
to a particular [permit] application[,] and
does not establish criteria by which
particular [permit] applications should be
evaluated.
Agencies often make discretionary
decisions not requiring formal procedures.
Olson v. State, Dept of Natural Resources,
799 P.2d 289, 292 (Alaska 1990). We have
described an agencys discretionary decision
that does not require formal procedures as
quasi-executive[.] Kodiak Seafood Processors
[Association v. State], 900 P.2d [1191,] 1197
[(Alaska 1995)]. We review such decisions
only for an abuse of discretion. Id.
[The Department of Natural Resources]
regularly makes decisions that are
quasi-executive in nature and do not
constitute regulation under the APA even when
one or more indices of a regulation are
present. See Olson, 799 P.2d at 292. For
instance, the Commissioner does not identify
by regulation those lands made available for
oil and gas leases, mineral leases, or timber
sales. See AS 38.05.180(b), AS 38.05.
135-175, and AS 38.05.115. The legislatures
assignment of a task to an agency, such as
the identification of districts at issue
here, invariably involves the exercise of
agency discretion.
District identification is the first
step in a lengthy, detailed public process of
determining what aquatic farm will be allowed
in what location. The legislatures
established procedures under the Act do not
include requiring the identification of
districts by regulation.
Katchemak Bay Watch, 935 P.2d at 825-26. The
supreme court therefore concluded that the
Departments identification of aquatic farm
districts did not constitute a regulation
under the Administrative Procedure Act.
If anything, the facts of Brigmans
case point more strongly toward this
conclusion than the facts presented in
Kachemak Bay Watch for brown bear hunting
permits are awarded by lottery, and thus all
applicants have an equal chance to secure a
permit in any specified permit hunt area.
Therefore, based on the supreme courts
decision in Katchemak Bay Watch, we conclude
that the Department of Fish and Games
designation of the permit hunt areas in Game
Management Unit 8 does not constitute a
regulation for purposes of the Administrative
Procedure Act. Thus, the Department could
legally define the brown bear permit hunt
areas by internal decision.
For these reasons, we reject
Brigmans argument that the permit hunt areas
are invalid. The State could lawfully
prosecute Brigman for possessing or
transporting game that he knew or should have
known was taken outside the boundaries of the
permit hunt area specified in Smettes brown
bear hunting permit.
We now turn to the other arguments
that Brigman raises in his appeal.
Brigmans request for a jury instruction on the
affirmative defense that he possessed and
transported the illegally taken bear for the sole
purpose of salvaging the meat
At trial, Brigman conceded that he possessed
and transported the bear skin, skull, and gall
bladder, and he ultimately conceded (in his
summation to the jury) that the bear was taken in
the wrong permit hunt area. But Brigman argued
that the map depicting the permit hunt area
boundaries was unclear, and therefore he did not
know nor could he reasonably be expected to know
that the bear was killed outside Smettes allotted
permit hunt area, Area 258. Thus, according to
Brigman, the State had failed to show that he
acted negligently with regard to the circumstance
that the bear was taken illegally.
At the close of the trial, Brigman asked for
a jury instruction on a different theory of
defense the affirmative defense that his
possession and transportation of the bear was done
for the sole purpose of salvaging the meat. This
affirmative defense grew out of the Alaska Supreme
Courts decision in Gudmundson v. State.15
Gudmundson involved two hunters who killed a
sheep in an area closed to hunting and then confronted
a legal dilemma. On the one hand, AS 16.30.010(a)
required the hunters to salvage the meat so that it
would not be wasted; but on the other hand, 5 AAC
92.140 prohibited them from possessing the sheep or
transporting it anywhere (because it had been taken
illegally). The hunters chose to leave the sheep where
it was. Later, after an anonymous caller alerted the
authorities to the illegal kill, the two hunters
directed the authorities to the kill site. But by the
time the authorities were able to reach the sheep, the
meat was maggot-infested and inedible, so the hunters
were charged with wanton waste under AS 16.30.010(a).16
The supreme court ruled that, because of the hunters
legal dilemma, they were denied due process of law when
the State charged them with wasting the sheeps meat.17
Following the supreme courts decision in
Gudmundson, a new section was added to 5 AAC 92.140,
the regulation that forbids the possession or
transportation of illegally taken game. This new
section, 92.140(d), states:
Notwithstanding [the prohibition on the
possession or transportation of illegally
taken game], it is an affirmative defense to
the crime of unlawful possession or
transportation of game, if the person who
possesses and transports game or parts of
game taken in violation of AS 16 or a
regulation adopted under AS 16 is doing so
for the sole purpose of salvaging that game
... , immediately salvages that game or parts
of game from the field[,] and immediately
surrenders that game or parts of game to a
representative of the state located at the
nearest office of the Department of Fish and
Game ... or Department of Public Safety ... .
When the parties were discussing
jury instructions at the close of Brigmans
trial, Brigman asked for an instruction on
this affirmative defense. The trial judge,
Superior Court Judge Fred J. Torrisi, found
no evidence to warrant this instruction. On
appeal, Brigman challenges Judge Torrisis
decision on two grounds.
First, Brigman asserts that the
salvage defense is actually a new element of
the crime so that when defendants are tried
for possession or transportation of illegally
taken game, juries must always be apprised of
this potential defense, and the State must
disprove the defense beyond a reasonable
doubt. This is simply a misreading of the
regulation. The regulation refers to the
salvage defense as an affirmative defense.
The term affirmative defense is not
defined in Title 5 of the Administrative
Code, so it is not clear whether this term
(as used in the regulation) means the same
thing as it means in Title 11 i.e., a
defense on which the defendant bears the
burden of proof by a preponderance of the
evidence. See AS 11.81.900(b)(2). But
regardless of which side is meant to bear the
ultimate burden of proof, we construe the
regulation to mean (at least) that defendants
bear the burden of raising the issue and
presenting evidence to support a finding in
their favor.18 Thus, Brigman is wrong when
he asserts that juries must always be
instructed on this defense.
This brings us to Brigmans second
challenge to Judge Torrisis ruling. As
explained above, the judge ruled that Brigman
had failed to present any evidence to support
a finding in his favor on the proposed
salvage defense.
The evidence at trial showed that,
after Smette killed the bear, Brigman,
Smette, and Lesher brought the bear skin and
skull to the Kodiak office of the Department
of Fish and Game but they did this so that
the skin and skull could be sealed (as
required by regulation19), not salvaged.
Smette and his companions did not bring the
bear meat to the Kodiak office, nor did they
surrender the skin to the Fish and Game
officer (other than temporarily), nor did
they tell the officer that they had taken the
bear illegally. Instead, they told the
officer that the bear had been killed
lawfully, in conformity with Smettes hunting
permit.
As explained above, this remained
Brigmans position at trial. He contended
that he believed that the kill was lawful
and that, if by chance the kill was not
lawful, there was no reasonable way for him
to know this. He has never contended that he
or Smette intended to relinquish any part of
the bear to the Department for salvage.
Given this evidence, Judge Torrisi
lawfully refused Brigmans request for a jury
instruction on the salvage defense codified
in 5 AAC 92.140(d).
Judge Torrisis refusal to re-open the evidence so that
the jury could be apprised that the State had
dropped all charges against Smette
Before Brigmans trial, Smette negotiated a
plea bargain with the State. The State allowed
Smette to plead no contest to a violation that
is, a strict liability, quasi-criminal offense
that carried a penalty of up to a $300 fine and
forfeiture of the bear skin in return for Smettes
testimony against Brigman. When Smette testified
at Brigmans trial, the jury was informed of the
details of Smettes plea bargain.
Then, on the morning of closing arguments,
the prosecutor informed Judge Torrisi and Brigmans
attorney that his boss, the Kodiak district
attorney, had decided to dismiss all charges
against Smette. The prosecutor assured Judge
Torrisi that the change was initiated solely by
the Kodiak district attorney, without consulting
Smette, because the district attorney had
concluded that Smette was more a victim than
anything else. The prosecutor further assured the
judge that Smette had had no inkling that he might
ultimately get a better deal than the one he
negotiated.
Nevertheless, Brigmans attorney asked Judge
Torrisi to tell the jury that all charges against
Smette had been dismissed. When Judge Torrisi
asked why this information was relevant, the
defense attorney answered that it was relevant to
the States perception [of the case].
After hearing the defense attorneys
explanation, Judge Torrisi ruled that the information
was not relevant unless there was some evidence that
Smette had prior knowledge of the better deal. The
judge told the defense attorney that he had the right
to interview Smette (to investigate the prosecutors
assertion that the change in the deal was the States
unilateral decision). The judge further stated that,
if there was evidence that Smette was aware of the
deal, the defense attorney would have a good motion.
Judge Torrisis ruling would have been
questionable if Brigman had wanted to use this
information to attack Smettes credibility. Compare our
decision in Braund v. State, 12 P.3d 187, 191 (Alaska
App. 2000). Had Brigman wanted to delve into Smettes
understanding or hopes concerning the district
attorneys ultimate decision regarding Smettes charges
or sentence, Brigman might well have been entitled to
do this. We do not say that Brigman would have been
entitled to precisely what he asked for i.e., entitled
to simply have the jury instructed that the charge
against Smette had been dropped. If the issue was to
be litigated, both parties would be entitled to present
their side of the issue: Brigman would have been
entitled to re-open the evidence to elicit the fact
that the charge against Smette had been dropped, and
the State would have been entitled (if it wished) to
present testimony to explain why the district attorney
had done so.
But when Brigman argued this point to Judge
Torrisi, he did not argue that the States decision to
drop the charge was relevant to assessing Smettes state
of mind his potential motives and, thus, his
credibility as a witness. Nor does Brigman raise this
argument on appeal. In fact, Brigman now affirmatively
asserts that the dismissal of the charge against Smette
was not a deal (emphasis added), and that the district
attorney dropped the charge without [receiving] any
consideration from Mr. Smette.
Rather, Brigman argues (as he did in the
trial court) that the States decision to drop the
charge was relevant to the district attorneys state of
mind the district attorneys perception of the case.
Brigman argues that the district attorneys decision to
drop the remaining strict-liability charge against
Smette was, in effect, a concession by the district
attorney that he no longer believed that the bear was
taken illegally i.e., no longer believed that the bear
was taken in the wrong permit hunt area.
This does not follow. As we recently pointed
out in State v. District Court, the State [has] the
discretion to decide whether to bring charges against a
person who has broken the law and, if so, to decide
what those charges will be.20 Quoting the Nebraska
Supreme Court in State v. Blair21, we said:
[A] prosecutor is not obliged to present
all charges which the evidence might support.
Nor is it desirable that he prosecute all
crimes at the highest degree available. ...
In exercising discretion in this way, the
prosecutor is not neglecting his public duty
or discriminating among offenders. The
public interest is best served and
even-handed justice best dispensed not by a
mechanical application of the letter of the
law but by a flexible and individualized
application of its norms through the exercise
of the trained discretion of the prosecutor
as an administrator of justice.
State v. District Court, 53 P.3d at 632.22
We agree with Judge Torrisi that the Kodiak district
attorneys decision to dismiss the remaining charge against Smette
was not relevant to show how the government construed the
evidence. The State is not obliged to prosecute every violation
of law, and the States ability to dismiss charges in the interest
of justice is not limited to circumstances where the defendant is
factually innocent. As the Eleventh Circuit Court of Appeals
observed when it rejected an analogous claim (a claim that the
trial judge should have allowed the defendant to apprise the
jury that the government had dismissed charges against the
defendants co-conspirator), [W]e cannot attribute the governments
decision not to prosecute to an independent determination that
the defendant is not guilty.23
Moreover, Brigmans attorney himself conceded, during
final argument, that it [did] appear that [the bear] was taken in
violation of the law, on the wrong side of the boundary i.e., in
the wrong permit hunt area. Brigmans defense at trial was not
that the bear might have been killed legally, but rather that he
and his companions had no reasonable way to know (at the time)
that the bear was killed in the wrong hunting area. There is no
reasonable basis for construing the district attorneys decision
to dismiss the remaining charge against Smette as a concession
that the bear was killed legally and that none of the
participants could lawfully be convicted of a game offense.
For these reasons, we uphold Judge Torrisis refusal to
inform the jury that the district attorney had dismissed the
remaining charge against Smette.
Judge Torrisis refusal to admit Brigmans video tape
that purportedly depicted a hike to the spot where the
bear was killed
At trial, Brigmans attorney attempted to
introduce a video tape of the area where the bear was
killed. The video tape was recorded by Roy Lesher,
Brigmans wifes employee, in October 2000 that is,
about five months after the hunt.
Brigman argued that the video would have
allowed the jury to see how difficult it can be for a
person to know their exact position when they are in
the field, and how hard it would be for Smette, Lesher,
and Brigman to know when they had crossed the boundary
from one permit hunt area to another.
The State objected to the video tape because
the video was not a continuous recording. The hike to
the kill site was approximately ninety minutes, but the
video tape ran for only twenty minutes. The State
argued that the video was misleading because it would
lead the jury to think that it took only a few minutes
for the hunters to move into the wrong permit hunt
area. The State also objected to the fact that, at
several points in the video tape, an individual pointed
to locations on a map that had no topographical
markings and that had not been admitted into evidence.
(Apparently, the purpose of this pointing was to
indicate to the viewers of the video where the video
photographer was located at that moment.)
Judge Torrisi refused to admit the video
tape; he concluded that the video did not fairly
represent the route to the kill site because it showed
only a portion of that route, and because it was
recorded at a different season of the year, when the
ground and the foliage would appear different.
A video tape is admissible if the proponent
of the evidence establishes, as a foundational matter,
that the tape accurately depict[s] the subject and ...
will be helpful to the jury.24 The video need not be
totally free from inaccuracies, as long as there is an
explanation of these imperfections so that the jury is
not misled.25 However, a trial judge has discretion
under Evidence Rule 403 to exclude potentially relevant
evidence if the probative value of the evidence is
outweighed by the danger that it may confuse or mislead
the jury.26
The primary issue litigated at Brigmans trial
was whether Brigman knew or should have known that the
bear had been killed in the wrong permit hunt area.
The State presented testimony that the boundary between
the two permit hunt areas was very easy to distinguish.
Brigman, on the other hand, argued that the boundary
was unclear.
The video tape showed only selected portions
of the hike to the kill site. Given these omissions,
the potentially misleading portions pointed out by the
prosecutor, and the fact that the tape was made at a
different season of the year, we conclude that Judge
Torrisi did not abuse his discretion when he declined
to allow Brigman to introduce the video tape.
Brigman argues that Judge Torrisi could not
properly rule on the admissibility of the video tape
until he personally viewed the tape himself. But the
parties made the judge aware of the content of the
tape, and Brigman did not dispute the major
deficiencies that formed the basis of Judge Torrisis
ruling the fact that the video tape was made some five
months after the hunt, and the fact that it did not
record the entire distance that the hunters had had to
traverse to reach the kill site. Thus, even though
Judge Torrisi did not view the tape, he could properly
rule on the admissibility of the tape based on the
parties descriptions of its content.27
Judge Torrisis refusal to allow Brigman to introduce
the States previous charging documents that mistakenly
identified the site of the bear kill as Permit Hunt
Area 258, rather than Permit Hunt Area 232
On October 16, 2000, the State filed a
complaint against Brigman that charged him with aiding
or abetting Smettes illegal act of killing a bear
outside the area authorized by Smettes hunting permit.
This charge was reiterated in an information dated
December 26, 2000 that was intended to supersede the
October complaint. Both of these pleadings charged
Brigman with aiding or abetting Smettes act of killing
a bear in violation of his permit, but both pleadings
mistakenly identified the site of the kill as Permit
Hunt Area 258 (the hunting area where Smette was
authorized to kill a bear) instead of Permit Hunt Area
232 (the true site of the kill). The State remedied
this error when it filed a corrected information on
January 10, 2001.
At trial, Brigman asked permission to
introduce the two earlier charging documents. He
asserted that the States misidentification of the
permit hunt area should be deemed an admission that the
bear was in fact killed in Permit Hunt Area 258, the
hunting area in which Smette was authorized to take a
bear. Judge Torrisi refused to admit the pleadings on
this basis. He told Brigmans attorney, We know it was
a mistake, and Im not going to hold the State to it.
On appeal, Brigman renews his argument that
the October and December pleadings were admissible as
admissions of a party-opponent (i.e., the State) that
the bear was killed in the proper hunting area.
Alternatively, Brigman argues that the pleadings were
admissible as public records tending to show that the
proper hunting area was difficult to identify. Brigman
contends that, even if the misidentification of the
permit hunt area stemmed from clerical error, this
would go to the weight of the charging documents, not
their admissibility.
Courts often admit superseded or withdrawn
pleadings in civil and criminal cases on the theory
that they constitute evidentiary admissions. (Of
course, the party who filed and then withdrew the prior
pleadings is entitled to explain them.)28 If the party
made the admission in error, or without adequate
information, that fact generally goes to the weight of
the evidence, not to its admissibility.29
But here, as Judge Torrisi noted, the record
is clear that the misdesignation of the permit hunt
area was a clerical error rather than an admission of
fact. It was uncontested that Smette had a valid
permit to kill a brown bear in Permit Hunt Area 258.
If the kill occurred in that permit hunt area, there
would be no charges. The States case against both
Smette and Brigman rested on the assertion that the
kill had occurred in the adjacent hunting area, Area
232. Indeed, the States initial complaint against
Brigman correctly charged him with unlawfully
possessing or transporting a bear that had been killed
in Permit Hunt Area 232. And, at trial, Brigman never
disputed that the bear was killed in Area 232.
Given these circumstances, Judge Torrisi
could properly conclude that the States October and
December pleadings had essentially no probative force
as admissions against interest and that, instead, these
pleadings were likely to mislead the jury. The judges
ruling was not an abuse of discretion under Evidence
Rule 403.
Brigmans sentencing arguments
In advance of Brigmans sentencing, various
members of the community submitted letters to the
district court. Eleven of these letter-writers
supported Brigman, but another six letter-writers
accused Brigman of committing various other hunting and
fishing violations.
Brigmans attorney filed a sentencing
memorandum in which the attorney referred to the
accusatory letters. The defense attorney stated, To
the extent that these letters allege that Mr. Brigman
has acted illegally or improperly in the past, Mr.
Brigman intends on entering a testimonial denial in all
respects at sentencing.
Despite this announcement, Brigman did not
offer a testimonial denial of the alleged past misdeeds
at his sentencing hearing. Instead, in an unusual
procedure, the prosecutor called Brigman to the stand
(without objection from Brigmans attorney). The
prosecutor began his examination of Brigman by saying,
Mr. Brigman, I note that you entered a testimonial
denial as to any criminal allegations in any letters,
and I have a few questions to ask [you] regarding your
testimonial denial[.]
In fact, the prosecutors premise was wrong.
Brigman had not entered a testimonial denial of
anything at that point. Brigmans attorney had
announced Brigmans intention to enter a testimonial
denial at sentencing, but Brigman had never made any
statement under oath denying the alleged other crimes.
After the prosecutor asked Brigman a few
questions about the alleged other crimes, Brigmans
attorney objected that the prosecutors questions were
irrelevant and designed merely to harass Brigman:
Defense Attorney: [W]hat is the
relevance of this[?] Its clear that what
[the prosecutor] is trying to do is set up
Mr. Brigman for perjury charges ... . Its no
secret [that this is] what hes trying to do.
I dont see ... the relevance [of the
prosecutors questions]. [Mr. Brigman] can
deny [the other crimes], and the matters
ended.
But this is not the law.
Under our prior decisions, a
testimonial denial for sentencing purposes
means that the defendant (1) testifies under
oath that the other allegations of misconduct
are false, and (2) submits to cross-
examination on these issues.30 If Brigman
wished to prevent Judge Torrisi from relying
on hearsay allegations of other crimes
contained in the various letters, Brigman had
to deny those allegations under oath and
submit to cross-examination about them.
Brigmans attorney asserted in a pre-
sentencing memorandum that Brigman intended
to enter a testimonial denial at sentencing.
However, the defense attorneys assertion
concerning his clients intention to enter a
testimonial denial at a later time did not
itself constitute the requisite testimonial
denial. To the extent that the record in
this case contains Brigmans testimonial
denial of anything, that denial is contained
in Brigmans answers to the prosecutors few
questions about the other alleged incidents.
During the prosecutors questioning,
Brigman denied that he had left subsistence
nets unattended, or that he had pulled other
peoples crab pots, or that he had shot
unwounded ducks while his boat was running,
or that he had lied on his assistant guiding
license application, or that he had possessed
a firearm. (Brigman is a convicted felon.)
After hearing Brigman deny these allegations,
the prosecutor declined to call witnesses to
challenge Brigmans denials; instead, the
prosecutor told the court that he accepted
Brigmans clear statements on the issues. But
Brigman never addressed several other
allegations contained in the letters:
allegations that Brigman had set illegal nets
and long lines, had snagged fish and then
provided those fish to his clients, had
guided illegally, had allowed his dogs to run
wild and kill deer, and had left trash,
caches, and meat in the field.
We need not discuss this point any
further because, for an independent reason,
we must ask the district court to reconsider
Brigmans sentence. When the district court
reconsiders the sentence, the parties can
straighten out the problem of Brigmans nearly
non-existent testimonial denial.
Brigman argues that Judge Torrisi
improperly relied on letters containing
allegations of other misconduct when Brigmans
attorney never received those letters in
advance of the sentencing hearing. At
sentencing, Brigmans attorney told the court
that he did not think he had copies of all
the adverse letters sent to the court. In
response, Judge Torrisi listed the letters he
had received. The defense attorney informed
the judge that he did not have one of these
letters: the adverse letter written by John
Witteveen, owner of the Wild Creek Lodge.
This matter was then never resolved; the
sentencing continued.
When Judge Torrisi imposed Brigmans
sentence, he referred to the accusatory
letters twice. First, the judge stated that
he was concerned about [the] community
condemnation of [Brigmans] act, which ... is
represented by your neighbors out there, but
to some extent is refuted by [the testimony]
youve provided. A little later, Judge
Torrisi continued in the same vein:
The Court: I [will] rely on these four
or five letters that say things about you, to
[show] that there is a significant [segment]
of your community saying that youre doing
things illegally. Theyre asking these
officers to come in and enforce the law.
And, as I said at the outset, this is a crime
thats hard to catch, its hard to prove ... ,
and I think I have to emphasize deterrence
when I ... sentence you.
From Judge Torrisis remarks, it is
impossible to tell whether he was relying on
the letter that Brigmans attorney did not
receive in advance of sentencing. For this
reason, we remand this case to the district
court so that Judge Torrisi can either (1)
clarify his remarks or (2) give Brigman a
chance to respond to this letter (since
Brigmans attorney now knows of the letter and
its contents).
Conclusion
For the reasons explained here, we AFFIRM
Brigmans conviction, but we REMAND Brigmans case
to the district court for reconsideration of
Brigmans sentence.
_______________________________
1 5 AAC 92.140(a).
2 See 5 AAC 92.049.
3 See 5 AAC 92.049(b).
4 See former 5 AAC 81.055(18) (Register 71, October 1979).
5 AS 16.05.920(a).
6 See 5 AAC 92.990(16), which states: drawing permit means
a permit issued to a person who is one of a limited number
of people selected by means of a lottery held for people who
have submitted a valid application for the permit and who
agree to abide by the conditions specified for each hunt[.]
7 Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972),
quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir.
1960).
This principle has been repeatedly applied by both the
Alaska Supreme Court and this Court. See Finkelstein v. Stout,
774 P.2d 786, 790 (Alaska 1989) (applying the principle to a case
involving absentee ballots, but holding that the presumption of
regularity was rebutted); Tallman v. Dept. of Public Works, 506
P.2d 679, 681 (Alaska 1973) (applying the presumption to reject a
challenge to the array of a jury panel); Wallace v. State, 933
P.2d 1157, 1162 (Alaska App. 1997) (applying the presumption to
conclude that the use of National Guard troops had been properly
authorized); Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App.
1993) (presuming, in the absence of a contrary showing, that the
trial court acted in accordance with its earlier ruling);
Houston-Hult v. State, 843 P.2d 1262, 1266-67 (Alaska App. 1992)
(applying the presumption of regularity to a chain of custody
issue).
8 See AS 44.62.180-290.
9 Kachemak Bay Watch, Inc. v. Noah, 935 P.2d at 821.
10 Id.
11 648 F.2d 694, 707 (D.C. Cir. 1980).
12 Kachemak Bay Watch, 935 P.2d at 825.
13 Id.
14 Id.
15822 P.2d 1328 (Alaska 1991).
16 Gudmundson, 822 P.2d at 1329.
17 Id. at 1332-33.
18See Trout v. State, 866 P.2d 1323, 1324-25 (Alaska App.
1994).
19See 5 AAC 92.165.
20 53 P.3d 629, 633 (Alaska App. 2002).
21 433 N.W.2d 518 (Neb. 1988).
22 Quoting Blair, 433 N.W.2d at 521.
23 United States v. Delgado, 903 F.2d 1495, 1499 (11th
Cir. 1990).
24 Johnson v. State, 636 P.2d 47, 67 (Alaska 1981).
25 Kaps Transport, Inc. v. Henry, 572 P.2d 72, 75-76
(Alaska 1977); see also Beck v. Dept. of Transportation &
Public Facilities, 837 P.2d 105, 113-14 (Alaska 1992)
([S]ubsequent photographic evidence of reconstructed events
is admissible as long as a proper foundation is laid and any
discrepancies between the reconstruction and the original
event are explained.).
26 See Johnson, 636 P.2d at 67.
27 See United States v. Hearst, 563 F.2d 1331, 1349 n.14
(9th Cir. 1977) (concluding that the trial court did not err
by excluding a tape recording without listening to it first,
since the court was familiar with its content).
28 See, e.g., First Bank of Marietta v. Hogge, 161 F.3d
506, 510 (8th Cir. 1998) ([statements in] abandoned ...
pleadings ... are admissible evidence that can be weighed
like any other admission against interest); Huey v.
Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1996) (holding
that the trial court erred in granting a motion for summary
judgment because admissions in the defendants initial
answers, which were later amended to deny the allegations,
created a genuine issue of material fact); United States v.
GAF Corp., 928 F.2d 1253, 1260 (2nd Cir. 1991) (holding that
court erred in refusing to admit prior inconsistent bill of
particulars in criminal case because the jury is at least
entitled to know that the government at one time believed,
and stated, that its proof established something different
from what it currently claims); United States v. McKeon, 738
F.2d 26, 30-31 (2nd Cir. 1984) (The law is quite clear that
superseded pleadings constitute the admissions of a party-
opponent and are admissible in the case in which they were
originally filed as well as in any subsequent litigation
involving that party.); State v. Irving, 555 A.2d 575, 580
(N.J. 1989) (factual assertions in pleadings or in
superseded pleadings may be used against the parties who
made the assertions). See generally Wright & Miller,
Federal Practice & Procedure, Evidence 7026 (Interim ed.
2002), Vol. 30B, p. 19; Ediberto Roman, Your Honor, What I
Meant to State Was ...: A Comparative Analysis of the
Judicial and Evidentiary Admission Doctrines as Applied to
Counsel Statements in Pleadings, Open Court, and Memoranda
of Law, 22 Pepperdine Law Rev. 981, 995-98 (1995). But see
Molsbergen v. United States, 757 F.2d 1016, 1019 (9th Cir.
1985) (holding that a pleading should not be construed as an
admission against the truth of an alternative or
inconsistent pleading in the same case because that would
undermine the federal rule allowing litigants to present
alternative and inconsistent pleadings).
29 See Huey, 82 F.3d at 333 (quoting Kunglig
Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195,
198 (2nd Cir. 1929)); United States v. Bakshinian, 65
F.Supp.2d 1104, 1109 n.5 (C.D. Cal. 1999); Dreier v. Upjohn
Co., 492 A.2d 164, 168 (Conn. 1985).
30 See Evans v. State, 23 P.3d 650, 652 (Alaska App.
2001); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska
App. 1989).