State v. Sullivan

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 86-455
 
 
State of Vermont                             Supreme Court
 
      v.                                     On Appeal from
                                             District Court of Vermont
Thomas J. Sullivan                           Unit No. 3, Caledonia Circuit
 
                                             January Term, 1990
 
 
Joseph J. Wolchik, J.
 
Dale O. Gray, Caledonia County State's Attorney, St. Johnsbury, and Jo-Ann
  Gross, Department of State's Attorneys, Montpelier, for plaintiff-appellee
 
Rexford & Kilmartin, Newport, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     MORSE, J.   Defendant appeals a conviction for failing to tag a deer in
violation of 10 V.S.A. App. { 2b, a regulation of the Vermont Fish and
Wildlife Board.  We affirm.
     On November 16, 1985, in response to a telephone call reporting
defendant as a lost hunter, a police officer along with two game wardens
began searching for defendant.  After speaking with defendant's neighbors
and consulting a topographical map of the area, they located defendant by
sounding a siren and using a loudspeaker in the area where he usually
hunted.  Defendant had in his possession an untagged deer and consequently
was charged with violating 10 V.S.A. App. { 2b, which stated at the time of
the offense in relevant part:
          A person who takes a deer in open season shall
          immediately affix the locking tag securely to the deer
          by locking the tag through the hock or gambrel joint in
          such a manner to prevent removal.  The tag shall remain
          on the carcass during possession and transportation
          until the deer is cut up for consumption.
 
                                    I.
     Defendant objected to the trial court taking judicial notice of { 2b,
because as a regulation it was not authenticated by 1 V.S.A. {{ 4 and 60
(published statutes certified authentic by the chairman of the Statutory
Revision Commission are admissible in all Vermont courts as prima facie
evidence of the law).
     Even if we accept defendant's argument that the regulation in issue was
not covered by the certificate of authentication because it was contained in
an appendix to Title 10, defendant never questioned whether the regulation
was authentic, whether it was properly promulgated pursuant to the
Administrative Procedure Act, 3 V.S.A. {{ 801-849, or whether it was within
the power of the Board to promulgate, 10 V.S.A. { 4082.  Moreover,
V.R.Cr.P. 26.1(a) provides in pertinent part:
 
          The court, in determining [a regulation], may consider
          any relevant material or source, including testimony,
          whether or not submitted by a party or admissible under
          the Vermont Rules of Evidence.  The court's
          determination shall be treated as a ruling on a
          question of law.
     For the first time, on appeal, defendant claims the State failed to
produce a copy of { 2b properly certified by the Secretary of State,
thereby meeting the requirement of 3 V.S.A. { 113 (Secretary of State's duly
certified copies of recorded documents shall be competent evidence in
court).  We express no opinion on whether { 113 applies.  This purported
ground for challenging the authenticity of { 2b was waived because defendant
did not raise it in the trial court.  State v. Schmitt, 150 Vt. 503, 506
n.*, 554 A.2d 666, 668 n.* (1988) ("all issues must be timely raised in
order to preserve them for appeal").
     Defendant also contends that he was not given notice of the State's
intent to rely on { 2b as required by V.R.Cr.P. 26.1(a) ("party who intends
to raise an issue concerning an administrative regulation of any agency of
this state . . . shall give reasonable written notice").  This contention is
without merit since the charging document itself cites { 2b as the law
defendant violated.
     Finally, defendant argues V.R.E. 201 (judicial notice of adjudicative
facts) was violated.  Rule 201, however, has no bearing on a determination
of law and applies exclusively to "propositions pertaining to the particular
events which give rise to the lawsuit."  Reporter's Notes, V.R.E. 201.
                                    II.
     Defendant next asserts that the "Vermont Uniform Fish and Game
Information" failed to adequately inform him of the elements of the offense
he allegedly committed.  Defendant's position is without merit.  The
description of the charge was "Failure to Tag Deer" and referenced 10 V.S.A.
App. { 2b.  The facts showed that defendant shot a deer and did not affix a
tag.  We perceive no impediment to preparing a defense by the absence of
more detail in the charging document.  The information set forth the charge
with particularity, reasonably indicating to defendant the exact offense he
was charged with and enabling him to intelligently prepare his defense.
State v. Conn, ___ Vt. ___, ___, 565 A.2d 246, 249 (1989); State v.
Christman, 135 Vt. 59, 60, 370 A.2d 624, 625 (1977).
                                   III.
     Defendant also takes issue with the information charging him with
committing the offense at 7:50 p.m. when it was obvious that he shot the
deer hours before.  Defendant's evidence was that the deer was taken and
reduced to possession some two hours and fifty minutes before the warden
arrested him.  Defendant admitted to the warden that he had shot the deer
but had not tagged it because he was concerned that the tag might fall off
during transport.  Fish and Game Regulation { 2b required defendant to tag
the deer "immediately" upon taking and to keep the tag "on the carcass
during possession and transportation until the deer is cut up for
consumption."  10 V.S.A. App. { 2b.  The time on the ticket indicated the
hour when the game warden apprehended defendant in possession of a dressed
deer without a tag.  At the time the warden observed defendant, defendant
was acting in violation of the regulation.  All the State had to prove was
that the deer was not tagged when defendant was charged with violating the
regulation.  Id.
                                    IV.
     The trial court instructed the jury that knowledge of the criminal
character of the offense or an intent to break the law was not relevant to
guilt.  In other words, the court charged that violation of the tagging
regulation was a strict liability offense.  Defendant would have us believe
that the State had to prove that he knew he possessed a hunting license,
knew he possessed deer tags, knew how to affix the tag, and knew the anatomy
of the deer well enough to follow the regulation's instruction to "lock the
tag through the hock or gambrel joint."  This is simply not the case.
     The mandatory conduct required by the regulation includes no mental
element imparting consciousness of guilt, and the trial court stated this
properly in its instructions to the jury.  State v. Conn, ___ Vt. at ___,
565 A.2d  at 249.  See State v. Roy, ___ Vt. ___, ___, 557 A.2d 884, 889-90
(1989) (lists factors for court to consider to determine whether Legislature
intended strict liability).  Here, the words make plain that the Legislature
chose to criminalize the act of failing to immediately tag a deer.  See,
e.g., State v. Kerr, 143 Vt. 597, 605, 470 A.2d 670, 674 (1983) (strict
liability offense to carry a firearm during a felony).
                                    V.
     Defendant faults the trial court for its failure to instruct the jury
on the necessity defense.  This Court has included three elements as among
those required to establish the defense of necessity DD specifically, an
emergency situtation arising without fault of the defendant, presenting no
reasonable opportunity to avoid injury without committing the crime, and
imminent injury sufficiently serious to outmeasure the criminal conduct.
State v. Warshow, 138 Vt. 22, 24, 410 A.2d 1000, 1001-02 (1979).
     Each of these elements was absent.  Defendant claimed he did not affix
the tag to the deer because he thought it would become dislodged during the
journey from the woods to the road.  In other words, defendant committed the
offense so that he would not run a risk of losing the tag and, consequently,
be charged with the offense.  Defendant's own conduct of shooting the deer
DD not an emergency situation DD gave rise to the obligation to tag the
deer.  Apart from the uncontradicted evidence that defendant did not even
tag the deer when the deer was brought to the road, the court correctly
found the necessity defense inapplicable to the facts of this case.  The
crime committed was not outmeasured by the crime avoided.
     Affirmed.
 
 
                                        FOR THE COURT:
 
 
 
                                        __________________________________
                                        Associate Justice