State v. Mobbs

State v. Mobbs (98-333); 169 Vt. 645; 740 A.2d 1288

[Filed 09-Sep-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-333

                              MARCH TERM, 1999


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
Scott Mobbs	                       }
                                       }	DOCKET NO. 5534-11-97CnCr


             In the above-entitled cause, the Clerk will enter:


       Defendant Scott Mobbs appeals his conviction of taking a moose in
  closed season in violation  of 10 V.S.A. App. § 31(f).  On appeal from
  Chittenden District Court defendant argues (1) the court  erred in not
  requiring the State to prove specific intent to take a moose as an element
  of the offense  and; (2) the statute is void for vagueness.  We affirm.

       On October 12, 1997, defendant was bow hunting for deer in the
  Richmond area.  While in  the woods, defendant heard a noise, looked up,
  and glimpsed what he thought was a deer.  From  approximately twenty-five
  yards, defendant shot his arrow hitting the hind quarters of the animal. 
  As the animal ran away, defendant realized he had shot a moose, not a deer. 
  For the entire year of  1997, there was no open season for moose in
  Richmond.  

       Later that day, the owner of the property on which defendant was
  hunting found the wounded  moose bleeding from its hind quarters.  The
  owner recorded the license plate numbers of the vehicles  on the property
  and contacted the Richmond Police.  Several days later, the property owner
  and State  Game Warden searched the area for the injured moose and found
  the moose dead.  Based on the  vehicle information obtained from the
  landowner, the game warden located defendant and  questioned him about the
  moose.  Defendant admitted to the warden that he had mistakenly shot the 
  moose thinking it was a deer.

       Defendant was charged with taking a moose in closed season in
  violation of 10 V.S.A. App.  § 31(f).  Read in pari materia with the
  definitions of "taking" and big game violations, § 31(f) states,  "game
  animals . . . may be taken only during the period specified . . . . "  As
  defined by 10 V.S.A.  § 4001(23), "taking" an animal means "pursuing,
  shooting, hunting, killing, capturing, trapping [or]  snaring . . . ." 
  Because a moose is defined as "big game," 10 V.S.A. § 4001(31), defendant
  was  sentenced pursuant to 10 V.S.A. § 4518 (providing penalties for
  violations of provisions relating to  taking big game).

       Defendant filed two motions to dismiss.  In the first, defendant
  argued that the State would  be unable to prove that he was motivated by
  any criminal intent when he shot at the moose.   

 

  Defendant's second motion contended the statute was void for vagueness
  because the language did  not provide a reasonable opportunity to know what
  conduct was prohibited.  The court denied both  motions.  After a finding
  of guilty by the court, defendant renewed his pretrial motions.  The court 
  again denied the motions and imposed a $300.00 fine and a $250.00
  restitution payment.  The  sentence was stayed pending this appeal.  

       Defendant's central claim is that the court erred in not requiring the
  State to prove that  defendant had the specific intent to shoot a moose. 
  Defendant argues that because he intended to  perform a lawful activity in
  taking a deer, he cannot be guilty of taking a  moose.  The "starting point 
  in the search for the mental element required for conviction of any
  particular crime is the intent to  do the deed which constitutes the actus
  reus of the offense." State v. Mott, 166 Vt. 188, 196, 692 A.2d 360, 366
  (1997).  Here, defendant argues that the deed which constituted the actus
  reus for a  violation of § 31(f) was the intent to take a moose.  We
  disagree.  The "deed" was the shooting of  the game, an act defendant
  conceded he intended to do.  See Mott, 166 Vt. at 196, 692 A.2d  at 366 
  (defendant charged with sending letter in violation of abuse prevention
  order need possess only  intent to send letter, not intent to violate
  order).  

       Defendant argues that he did not know the animal was not a deer. 
  However, his knowledge  regarding whether the animal was a moose or a deer
  is immaterial.  See State v. Ward, 75 Vt. 438,  56 A. 85 (1903) (if statute
  makes offense criminal without regard to knowledge, then ignorance of  fact
  no excuse).  The defendant in Ward shot at an animal he believed was a deer
  with antlers -- a  lawful activity -- but which in fact was a deer without
  antlers -- an unlawful activity.  We affirmed  defendant's conviction in
  Ward holding that defendant's error did not eradicate his culpability.  We 
  noted defendant "had it in his power to find out what the fact was, or to
  refrain from acting until he  had found out."  Id. 

       Here too, defendant had the ability to make certain that he was
  shooting at a deer.  During  trial, defendant admitted to taking quick aim
  and shooting.   After only a glimpse of the animal,  defendant shot through
  a small pocket in the trees, intending to kill the animal he was aiming at. 
  He  did not attempt to ascertain the facts before shooting.  Defendant's
  actions, characterized by the trial  court as "shooting on the blind,"
  resulted in the very activity the legislature sought to prohibit -- the 
  killing of moose in prohibited season.  Defendant's presence in the woods
  with the intent to take  game exposed him to a risk of liability if he
  failed to ensure he was shooting at the correct animal. 

       Allowing defendant to prevail on the argument that specific intent was
  required to be  culpable  for killing the moose would nullify the statute. 
  Although the statute must be construed in a light  most favorable to the
  accused, it should not frustrate the statutory purpose or lead to absurd 
  consequences.  See State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239
  (1981).  If the defense  were allowed, every violation of the statute could
  be defended on the ground that the thing killed was  not the thing intended
  to be killed.  Proof beyond a reasonable doubt that defendant knew he was 
  killing prohibited wildlife rather than wildlife in season would be nearly
  impossible.  See Ward, 75  Vt. at 440, 56 A.  at 85 (rejecting defendant's
  argument that a hunter cannot possibly know whether  the deer he intended
  to shoot had horns).

 

       Defendant's final argument concerns the constitutionality of 10 V.S.A.
  § 4001(23).  Defendant  contends the statute, which defines "taking," is
  void for vagueness because it does not give a person  of ordinary and
  reasonable intelligence notice of criminally proscribed conduct.  We
  disagree.  A  statute is not unconstitutionally vague if it informs a
  person of ordinary intelligence what conduct  is proscribed and if it
  avoids arbitrary and discriminatory enforcement.  See State v. Cantrell,
  151  Vt. 130, 133, 558 A.2d 639, 641 (1989).  Defendant does not argue the
  statute is arbitrary or  discriminately enforced, thus our analysis
  concerns only whether reasonable notice of prohibited  conduct was
  provided.

       The definition of "taking" provides in relevant part "[t]ake and
  taking: pursuing, shooting,  hunting, killing, capturing, trapping, snaring
  and netting fish, birds and quadrupeds and all lesser  acts, such as
  disturbing, harrying or worrying or wounding or  placing, setting, drawing
  or using any  net or other device commonly used to take fish or wild
  animals . . . ." 10 V.S.A. § 4001(23).  Given  that First Amendment
  interests are not at issue here, the statute must be examined in the
  factual  context presented by the particular case.  See State v. Roy, 140
  Vt. 219, 229, 436 A.2d 1090, 1095  (1981); see also Cantrell, 151 Vt. at
  133, 558 A.2d  at 641.  The fact that the statute does not  explicitly warn
  hunters of possible liability in misidentifying an animal does not prove
  the statutory  language is vague.  To avoid a vagueness challenge, a
  statute need not specifically detail each and  every prohibited act.  See
  State v. Oren, 162 Vt. 331, 336, 647 A.2d 1009, 1012 (1994); Brody v. 
  Barasch, 155 Vt. 103, 111, 582 A.2d 132, 137 (1990).  As long as the
  defendant reasonably knew  of the proscribed conduct in the statute, the
  regulation will be upheld.  See Oren, 162 Vt. at 336, 647 A.2d  at 1012. 
  The statute expressly delineates and prohibits the methods that would
  constitute a  taking of moose.  The statute provided adequate notice to
  defendant of prohibited conduct, and  defendant cannot complain that 10
  V.S.A. § 4001(23) is unconstitutionally vague as applied.   

       Affirmed. 

                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice