State v. Curtis

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 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.
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                                 No. 89-621

 State of Vermont                             Supreme Court

      v.                                      On Appeal from
                                              District Court of Vermont,
 Benny E. Curtis                              Unit No. 3, Orleans Circuit

                                              September Term, 1991

 Edward J. Cashman, J.

 Gary S. Kessler, Supervising Appellate Prosecutor, and Baldwin Chin, Intern
   (On the Brief), Montpelier, for plaintiff-appellee

 Gary J. Karpin, Newport, for defendant-appellant

 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

    MORSE, J.    Defendant shot a deer decoy and was convicted of attempting
 to take a wild deer out of season under 10 V.S.A. { 4745.  His principal
 argument on appeal is that the defense of legal impossibility precludes a
 conviction under this statute and under Vermont's attempt statute, 13 V.S.A.
 { 9.  He also contends that the trial court erred in refusing to instruct on
 the issue of entrapment and that he should be acquitted because the use of a
 deer decoy violated certain Fish and Wildlife Department guidelines.  We
      At approximately nine o'clock on the night of November 18, 1988, two
 state game wardens placed a deer decoy in a field adjacent to Town Road 23
 in Greensboro, Vermont.  Complaints by local residents prompted the measure
 in an effort to detect the illegal taking of deer.  The wardens constructed
 the decoy using styrofoam and wood, a deer hide covering, and a mounted deer
 head.  They designed the body of the decoy to closely resemble the physique
 and proportions of a deer, covering its glass eyes with reflective tape to
 simulate the appearance of a live deer's eyes.  The decoy was placed
 eighty-three feet from the road.
      Positioning themselves so that they could observe the area undetected,
 the wardens saw defendant's pickup truck proceeding slowly along the town
 road.  They watched as the truck stopped and saw a "very bright" light shine
 from the passenger window for approximately thirty seconds, aimed directly
 at the decoy.  After the light went out, the wardens continued to watch as
 the truck again began moving slowly down the road.   It stopped once more,
 and the light reappeared, again aimed at the decoy.  The wardens saw the
 silhouette of a rifle emerge from the driver's window and heard a gun shot
 almost immediately thereafter.  The  wardens converged on the truck,
 identifying defendant as the operator of the truck and seizing a .22
 caliber rifle, ammunition and lighting devices, the strongest of which was
 attached to a miner's cap, worn by defendant.  An expended .22 caliber
 casing was found on the ground nearby.  Upon examination of the decoy, the
 wardens determined that one eye had been shattered by a gun shot.
      We must decide whether it makes a difference that defendant shot a
 decoy, a fact beyond his knowledge, rather than a live deer.  Defendant
 argues that it does, claiming the defense of legal impossibility requires a
 reversal.  We have not had occasion to rule on this issue.
      A person is prohibited from taking "a wild deer except specified wild
 deer during the seasons provided by law."  10 V.S.A. { 4745.  A person is
 guilty of attempting a crime by doing "an act toward [its] commission . . .
 but by reason of being interrupted or prevented fails in the execution of
 the same."  13 V.S.A. { 9.  We have held that an "attempt consists not only
 of an intent to commit a particular crime, but . . . some overt act designed
 to carry out such intent."  State v. Hudon, 103 Vt. 17, 20, 151 A. 562, 564
 (1930);  see also State v. Boutin, 133 Vt. 531, 533, 346 A.2d 531, 532
 (1975) (a criminal attempt "must be of such character as to advance the
 conduct of the actor beyond the sphere of mere intent. . . . [and] must
 reach far enough towards the accomplishment of the desired result to amount
 to the commencement of the consummation").  Undoubtedly, defendant's
 behavior demonstrated an intent to take a wild deer out of season.  He
 performed an overt act toward the commission of the intended crime.  His
 conduct went as far as it could in achieving the goal of taking a wild deer
 out of season.  Except for the fact that the "wild deer" in his sights was
 not real, he would be guilty of the crime prohibited by { 4745.
      The doctrine of legal impossibility has been defined as a "situation in
 which the defendant did everything he intended to do but yet had not commit-
 ted the completed crime."  2 W. LaFave & A. Scott, Substantive Criminal Law
 { 6.3 at 38 (1986).  This is a semantic defense which would make defendant
 guilty of no crime, even if he thought he was taking a live, wild deer.
 Defendant's rationale is that the decoy was not subject to hunting
 regulations; it could not be killed, tagged and weighed for identification.
 See 10 V.S.A. {{ 2, 2a.  Therefore, the Legislature simply did not make it
 illegal to take deer decoys, and attempting to do what is not illegal is not
 a crime.
      Nevertheless, we read part of the statutory definition of attempt, "but
 by reason of being . . . prevented fails in the execution of the [crime],"
 as covering the facts in this case.  Defendant was "prevented" from shooting
 a wild deer because he was tricked into shooting a decoy.  We see no
 meaningful distinction between the infeasible act of putting a bullet-proof
 protection on a live deer to prevent its demise and the use of a decoy to
 divert a hunter's attention from a live deer.  Either way, live deer are
 given a measure of protection.
      Defendant relies on a Missouri case with facts almost identical to the
 case at hand.  State v. Guffey, 262 S.W.2d 152, 156 (Mo. Ct. App. 1953) (no
 crime is committed in attempting to take a wild deer by shooting a "dummy
 deer").  Guffey has been overruled by state statute.  See Mo. Ann. Stat. {
 564.011(2) (Vernon 1979) ("no defense to a prosecution . . . that the
 offense attempted was, under the actual attendant circumstances, factually
 or legally impossible of commission, if such offense could have been
 committed had the attendant circumstances been as the actor believed them to
      The modern trend of authority also bolsters our decision.  The
 majority of jurisdictions have rejected the defense of legal impossibility
 by statute or court decision.  See State v. Rios, 409 So. 2d 241, 244-45
 (Fla. Dist. Ct. App. 1982) (listing thirty-two jurisdictions which had
 rejected the legal impossibility defense as of 1982); See also Duke v.
 State, 340 So. 2d 727, 730 (Miss. 1976) ("when the impossibility grows out of
 extraneous facts not within control of the party, impossibility is not a
 defense"); State v. Lopez, 100 N.M. 291, 292, 669 P.2d 1086, 1087 (1983)
 (defendant guilty of attempt to sell cocaine, even though substance was not
 cocaine, because situation is no different from a case "in which a defendant
 shoots into the intended victim's bed believing the victim to be there, when
 in fact the victim is elsewhere"); State v. Hageman, 307 N.C. 1, 13, 296 S.E.2d 433, 441 (1982) ("when a defendant had the specific intent to commit
 a crime and under the circumstances as he reasonably saw them did the acts
 necessary to consummate the substantive offense, but, because of facts
 unknown to him essential elements of the substantive offense were lacking,
 he may be convicted of an attempt to commit the crime"); State v.
 Latraverse, 443 A.2d 890, 894 (R.I. 1982) ("When a defendant has done all
 that he believes necessary to cause a particular result, regardless of what
 is actually possible under the existing circumstances . . . he has committed
 an attempt."); Minn. Stat. Ann. { 609.17(2) (West 1987) ("An act may be an
 attempt notwithstanding the circumstances under which it was performed or
 the means employed to commit the crime intended or the act itself were such
 that the commission of the crime was not possible, unless such impossibility
 would have been clearly evident to a person of normal understanding.");  W.
 Lafave & A. Scott, Criminal Law at 515 (1986 2d ed.) (impossibility defense
 has been criticized by "many commentators . . . and rejected . . . in
 virtually all recent recodifications").
      The Model Penal Code rejects the legal impossibility defense:
           This approach . . . is unsound in that it seeks to
           evaluate a mental attitude --or "purpose"  --
           not by looking to the actor's mental frame of reference,
           but to a situation wholly at variance with the actor's
           beliefs.  In so doing, the courts exonerate defendants
           in situations where attempt liability most certainly
           should be imposed.  In all of these cases the actor's
           criminal propose has been clearly demonstrated; he went
           as far as he could in implementing that purpose; and,
           as a result, his "dangerousness" is plainly manifested.

 Model Penal Code { 5.01 Comment at 308-309 (1985).  See also Elkind
 Impossibility in Criminal Attempts: a Theorist's Headache, 54 Va. L. Rev.
 20, 33-36 (1968) (suggesting that courts need not await adoption of the
 Model Penal Code before rejecting the distinction between legal and factual
 impossibility as long as there is a "balancing [of] a number of
 considerations to determine whether a criminal intent is adequately
 evidenced by a corroborative act and whether either the intent or the act
 represents a sufficient danger to warrant punishment").
      The evidence at trial showed that defendant possessed the specific
 intent to take a wild deer out of season.  Defendant's failure to actually
 take a live wild deer is of no consequence.  This is not a case where
 defendant's conduct was equivocal, evidencing an intention to do both a
 legal and an illegal act.  See United States v. Oviedo, 525 F.2d 881, 886
 (5th Cir. 1976) (defendant not guilty of attempting to distribute
 controlled substance where chemical analysis revealed substance was a legal
 duplicate, because it was objectively reasonable to conclude that, as
 defendant testified, he was merely trying to "rip off" the government
 agent).  There was no testimony that defendant thought the decoy was not a
 live deer.  Instead, the defense was that it was defendant's companion who
 shot the decoy while defendant slept in the passenger seat.  Therefore,
 there is no evidence which would allow us to conclude that defendant could
 have intended to consummate the legal act of shooting a deer decoy instead
 of the illegal act of shooting a live deer.
      Failure to find that defendant's actions amount to a crime would
 frustrate the goals underlying wildlife protection legislation.  See 10
 V.S.A. { 4081(a) ("the policy of the state [is] that the protection,
 propagation, control, management and conservation of . . . wildlife . . . is
 in the interest of the public welfare, and the safeguarding of this valuable
 resource . . . requires a constant and continual vigilance").  A contrary
 holding would oblige state and local officials to respond to illegal hunting
 by more cumbersome, dangerous, after-the-fact methods.  Prosecution based on
 a fresh kill defeats the purpose of legislation drafted to preserve
 wildlife.  The difficulties and risks associated with detecting poachers
 without the benefit of decoys are manifest.  As stated by a game warden at
 trial, there is a serious concern for the safe detection of poachers, and
 the decoy system was established in response to those concerns.
      Defendant's remaining arguments are without merit.  He did not request
 an instruction on entrapment nor did he timely object to the court's
 charge.  The issue is waived.  V.R.Cr.P. 30.  As to defendant's argument
 that a failure to strictly conform to Fish and Wildlife Department
 guidelines invalidates his conviction, we find no deviations from the
 inter-office procedures regarding the use of decoys that would merit a
 reversal.  Unlike the guidelines associated with, for example, roadblocks,
 these procedures involve no constitutional implications.

                                         FOR THE COURT:

                                         Associate Justice