State of Minnesota, Respondent, vs. Kenneth Edward Pariseau, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-427

 

State of Minnesota,

Respondent,

 

vs.

 

Kenneth Edward Pariseau,

Appellant.

 

Filed December 23, 2003

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. KX-01-1583

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Gary R. Leistico, Rinke-Noonan, P.O. Box 1497, St. Cloud, MN 56302-1497 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Poritsky, Judge.*

 

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Following a trial on stipulated testimony to the court, appellant Kenneth Edward Pariseau contends the evidence does not support his conviction of violating Minn. R. 6234.2600, supb. 4 (1999), which prohibits the tagging of animals not personally taken.  We affirm. D E C I S I O N

            In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court will not disturb the verdict if the fact-finder, acting with due regard for the presumption of innocence, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).  The court must assume that the trier of fact believed the evidence supporting the conviction and disbelieved any evidence to the contrary.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).  The same standard of review applies to bench and jury trials.  Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999). 

Appellant was charged with violating Minn. R. 6234.2600, subp. 4, which reads:  "Prohibition on tagging animals not personally taken.  A person may not affix any tag or seal to the pelt or carcass of any animal that the person did not take or is not authorized to take."  The case was submitted to the district court on stipulated testimony such that the district court could review the statements submitted to the court and make its own credibility determinations.  The stipulation was made pursuant to Minn. R. Crim. P. 26.01, subd. 3, which permits appellant to "raise issues on appeal the same as from any trial to the court."  Appellant argues that the evidence is insufficient to support the conviction.  Evidence is sufficient to support a conviction if, given the facts in the record and the legitimate inferences drawn from those facts, a fact-finder could reasonably conclude that the accused was guilty.  State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992). 

Appellant first contends that because he had the appropriate license he "was authorized" to take the pine marten and that he did not violate the rule if he either took, or was authorized to take, the pine marten.  We disagree.

In interpreting Minn. R. 6234.2600, subp. 4, we consider the intent of the legislature and construe the rule in a way that gives effect to all its provisions.  Minn. Stat. § 645.16 (2002).  The regulatory scheme for trapping and tagging small game, including pine martens, is set forth in Minnesota Rules chapter 6234 (1999).  Minn. R. 6234.1800, supb. 4, requires the person taking a pine marten to tag the animal at the time and place where the animal is taken.  And Minn. R. 6234.2200, subp. 12, states that someone may remove an animal from the trap of another only if there is a written agreement, the agent has all necessary licenses, and the agent places his or her own tag on the animal removed from the trap.  In contrast, the legislature specifically allows "group hunting" for deer.  Minn. R. 6232.0300, subp. 3 (1999).  Under this scheme, the group may shoot a deer for each tag possessed by the group, and one person may tag a deer with another group member's tag.  Id.  But there is no similar provision with respect to trapping pine marten.  And reading Minn. R. 6234.2600, subp. 4, in such a way that allows a person to engage in either of the two prohibited acts would permit someone to tag an animal with the tag of another, contrary to the regulatory scheme.

We reject appellant's argument that under State v. Loge, 608 N.W.2d 152 (Minn. 2000), "or" will be read in the disjunctive and requires that only one of the possible factual situations be present in order for the statute to be satisfied.  Id. at 155.  In Loge, the relevant statute read:  "It shall be unlawful . . . to keep or allow to be kept in a motor vehicle . . . any bottle . . . containing intoxicating liquors . . . which has been opened . . . . "  Id. at 154 n.1(citing Minn. Stat. § 169.122, subd. 3 (1998)).  That statute uses "or" to list proscribed conduct; a person may not "keep" or "allow to be kept" open containers of alcohol in his vehicle.  After correctly noting that the word "or" is a disjunctive referring to two different things as alternatives, the court states:  "[a]ccordingly, we limit our opinion to the words ‘to keep.'"  Id. at 155.  This indicates that the defendant in that case would have been in violation of the statute if he "kept" or "allowed to be kept" an open bottle of alcohol in his vehicle.

            Similarly, the rule at issue here uses the disjunctive "or" to list proscribed conduct.  Therefore, appellant is guilty of violating Minn. R. 6234.2600, subp. 4, if he does either of the proscribed acts:  affixes a tag where he (1) "did not take" or (2) "is not authorized to take" the animal.  Because it is not disputed that appellant had all necessary licenses and tags, such that he was authorized to take a pine marten, the issue here is whether appellant took the pine marten.

            Appellant, citing the definition of taking in Minn. Stat. § 97 A. 015, subd. 47 (1998), argues that "take" in the rule can include "assisting another person in taking wild animals."  But respondent argues that the district court properly determined that "take" in the rule means "personally take."  We agree.   

            The title of the rule states, "Prohibition on tagging animals not personally taken." (Emphasis added.)  Thus, although not determinative, the rule, by its own language, applies to individuals who did not "personally take" the animal.

            More importantly, in ascertaining legislative intent, courts will look at the entire statute and presume an intent that the entire statute be effective and certain.  Minn. Stat. § 645.17(2) (2002).  And if, as appellant contends, the word "take" in the rule means assist another in taking a wild animal, then Minn. R. 6234.2200, subp. 12, would lose its meaning.  Rule 6234.2200, subp. 12, allows an individual to check the traps of another, but the individual must place his or her own tag on any animal removed from the principal's trap; further, the agreement must be in writing.  But if "take" in rule 6234.2600, subp. 4, means assist another in taking, then a person would be able to tag an animal for another without complying with rule 6234.2200, subp. 12.  An individual could claim that they are not an "agent" under rule 6234.2200, subp. 12, but merely assisting another, under the less strict rule 6234.2600, subp. 4.  Thus, in no instance would an agent have to comply with the provisions in rule 6234.2200, subp. 12, because someone who checks the traps of another would likely fit the broader category of "assisting another person in taking wild animals."

            Further, as respondent argues, concluding that a person can lawfully tag if he assisted in taking, would, in effect, allow group trapping.  But the regulatory scheme at issue does not allow an individual to place his or her tag on the animal of another, thus indicating an intent that group trapping is not allowed.  As discussed above, rule 6234.2200, subp. 12, requires an individual checking the traps of another to place his or her own tag on any animals removed from the traps.  Thus, the rule evidences an intent that the animal be tagged by the person who removed the animal from the trap.  Looking at the regulatory scheme as a whole, we conclude that the rule is intended to prohibit persons from tagging animals they did not personally take.

            Here, the stipulated testimony stated that appellant's grandson placed his possession tag on the pine marten when it was removed from the trap.  This tag allegedly tore off when appellant attempted to remove the animal from the stretching board.  After the original tag tore off, appellant replaced the tag with one of the grandson's tags.  Thus, the record supports a finding that appellant's grandson, and not appellant, personally took the pine marten.

            Finally, we note that the district court specifically found that appellant's "bullying and uncooperative behavior toward [the Minnesota conservation officer] render[ed] him unbelievable."  Therefore, we conclude that on these facts the evidence was sufficient for the district court to reasonably conclude that appellant was guilty of the charged offense. 

            Affirmed.

 

*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.