PEOPLE OF MI V BLAINE RUSSELL LEVIGNE JR (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
July 3, 2012
9:25 a.m.
Plaintiff-Appellee,
v
No. 306776
Emmet Circuit Court
LC No. 10-002981-AR
BLAINE RUSSELL LEVIGNE, JR.,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
WILLIAM GERARD McNEIGHT,
No. 306777
Emmet Circuit Court
LC No. 11-002982-AR
Defendant-Appellant.
Advance Sheets Version
Before: BECKERING, P.J., and FITZGERALD and STEPHENS, JJ.
PER CURIAM.
William McNeight and Blaine Levigne, Jr., 1 appeal by leave granted the circuit court’s
order affirming their convictions before the district court for unlawfully taking a bear in violation
of MCL 324.40118(3). Defendants were charged with a misdemeanor violation of the Natural
Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., for using trained
hunting dogs to assist Todd Yoder, a Native American hunter, in capturing and killing a bear out
of hunting season. We reverse.
1
The spelling of “Levigne” is inconsistent in the record. Most of the court documents spell his
name as “Lavigne,” while the documents submitted by defendants’ attorney (including those
filed in this appeal) identify the defendant as “Levigne.”
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The prosecution argued that defendants unlawfully took a bear outside of the season in
which it is lawful to hunt bear with the use of a firearm, which was defined by the Department of
Natural Resources (DNR) in former Wildlife Conservation Order (WCO) 3.203(4) as having run
between September 17 and September 25, 2010. 2 The prosecution asserted that MCL
324.40118(3) precludes the unlawful “taking” of a bear, which is defined in the statute to include
both hunting and attempting to hunt. The prosecution also claimed that Yoder’s permit to hunt
out of season did not extend to defendants and did not permit them to assist him. Because
defendants knowingly assisted Yoder in capturing and killing a bear on October 23, 2010, the
prosecution argued that defendants could not claim that they were only “training” their animals
out of season.
Defendants argued that they did not break the law because their no-kill tags permitted
them to participate in a bear hunt out of season as long as they did not kill the bear. Defendants
asserted that the tags were designed to limit the number of bears harvested, not the number of
participants permitted in a bear hunt. Because Yoder was authorized by his permit to hunt bear
until October 26, 2010, and defendants did not actually kill the bear, defendants reasoned that
they did not violate the law. Defendants conceded that they were participating in the hunt, rather
than training their dogs to hunt bear, because they intended to assist Yoder in harvesting the bear.
While defendants claimed that the law did not prohibit them from acting as licensed hunting
guides, they also conceded that Yoder would not have been able to harvest the bear without their
assistance.
The district court found defendants guilty of violating MCL 324.40118(3). The court
noted that the essential question before it was whether defendants were lawfully permitted to
participate in a bear hunt out of season given that the hunter had a valid permit to hunt out of
season. The court concluded that defendants’ own no-kill permits restricted their right to
participate in bear hunting outside of the hunting season specified for authorized Michigan
residents.
During the appeal before the circuit court on September 9, 2011, the parties reasserted the
arguments they had made before the district court. Defendants additionally argued that they did
not “take” the bear because longstanding precedent requires that a hunter possess or capture an
animal before it can be “taken.” Because they did not chase the bear while using a gun or bow,
defendants argued, they could not have committed a “taking” under the statute. Plaintiff
responded that “taking” is defined by statute to include defendants’ chasing and capturing of the
bear. The circuit court affirmed the district court convictions, reasoning that defendants were
participating in a bear hunt out of season, which constituted hunting under the statute. The court
specifically held as follows:
Whether they were carrying a gun, or discharged the gun themselves, they
were participating in hunting and therefore using hunting in its commonly
2
The relevant order, WCO 3.203, has been amended several times. At the time that defendants
participated in the hunt at issue here, WCO 3.203 as amended by 2010 Amendment 17 was
controlling.
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understood term, they were hunting as participants in the hunt. And the clear
language of the statute says that these Defendants are not permitted to do that
outside of the bear hunting season.
Defendants now appeal the circuit court’s order affirming their convictions.
On appeal, defendants assert that the district court was precluded from finding that they
acted in violation of MCL 324.40118(3). We agree. Defendants’ sole issue on appeal is
essentially an argument that the evidence presented at trial did not demonstrate that they
committed an action proscribed by law. In reviewing a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to the prosecution in order to
determine whether a rational trier of fact could have found that the prosecution proved the
elements of the crime beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-269;
380 NW2d 11 (1985). Essential to defendants’ argument on appeal is the claim that the district
court erred in interpreting MCL 324.40118(3). On appeal, questions of statutory interpretation
are reviewed de novo. People v Buehler, 477 Mich 18, 23; 727 NW2d 127 (2007).
Defendants were convicted of violating MCL 324.40118(3), which provides as follows:
A person who violates a provision of this part or an order or interim order
issued under this part regarding the possession or taking of deer, bear, or wild
turkey is guilty of a misdemeanor and shall be punished by imprisonment for not
less than 5 days or more than 90 days, and a fine of not less than $200.00 or more
than $1,000.00, and the costs of prosecution.
Under this statutory language, a person is guilty of a misdemeanor if that person violates a
provision or order issued under part 401 of NREPA, MCL 324.40101 et seq., related to the
taking of certain animals. In the present case, defendants are alleged to have violated former
WCO 3.203(4), which provided:
The open season for taking a bear with firearms, crossbows, or bow and
arrow in the red oak bear management unit in zone 2 shall be from the first Friday
following September 15 and 8 days thereafter. The open season for taking a bear
with bow and arrow only in the red oak bear management unit shall be from the
first Friday following October 1 through 6 days thereafter.
In charging defendants with a violation of MCL 324.40118(3), the prosecution theorized that
defendants’ conduct constituted the taking of a bear. That theory is largely based on the
statutory definition of the term “take.” “Take” is statutorily defined as “to hunt with any
weapon, dog, raptor, or other wild or domestic animal trained for that purpose; kill; chase;
follow; harass; harm; pursue; shoot; rob; trap; capture; or collect animals, or to attempt to engage
in such an activity.” MCL 324.40104(1). As a result of their interpretations of this statutory
provision, both the prosecution and the lower courts have determined that defendants, by
working in concert with Yoder, took the bear when they used dogs to tree the bear before Yoder
shot it.
It is certainly reasonable to conclude that defendants, by pursuing, chasing, following,
and harassing a bear with hunting dogs did commit a taking under the statutory definition of that
-3-
term. However, former WCO 3.203(4) did not merely prohibit the taking of a bear. Rather, the
order at issue placed qualifying language after the term “taking a bear” in the form of the phrase
“with firearms, crossbows, or bow and arrow . . . .” Former WCO 3.203(4). The parties agree
that neither of these defendants used a firearm, crossbow, or bow and arrow while assisting
Yoder. As the prosecution admits, these defendants were not convicted on a theory of aiding and
abetting the unlawful taking of a bear. Indeed, the circuit court emphasized that whether these
defendants used a gun was irrelevant to its determination. However, when interpreting a statute,
the court’s goal is to give effect to the intent of the Legislature. People v Hill, 486 Mich 658,
667-668; 786 NW2d 601 (2010). Unless ambiguous, statutory language should be given its
ordinary meaning because the Legislature is presumed to have intended the meaning expressed
in the statute. Id. MCL 324.40118(3) and former WCO 3.203(4) did not prohibit an unarmed
individual from assisting someone with the lawful taking of a bear, nor did they prohibit
someone from taking a bear without a firearm, crossbow, or bow and arrow. Had the Legislature
or the DNR intended to prohibit that behavior, the language used in the order and statute would
have expressed that intent. Because the parties stipulated that neither defendant used a firearm,
crossbow, or bow and arrow to take the bear, there was insufficient evidence presented to
support a conviction under MCL 324.40118(3) and former WCO 3.203(4).
Reversed.
/s/ Jane M. Beckering
/s/ E. Thomas Fitzgerald
/s/ Cynthia Diane Stephens
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