Opinion
Court of Appeals No. A-10157.
November 12, 2009.
Appeal from the District Court, Third Judicial District, Glennallen, Jeanmarie P. Wilkinson, Magistrate, Trial Court No. 3GL-07-159 CR.
Benjamin I. Whipple, Palmer, for the Appellant. Jarom B. Bangerter, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Jeffrey E. Venzke was found guilty of taking a bull moose that had sub-legal antlers. On appeal, he contends that the state hunting regulations violate the federal and state privileges against self-incrimination because hunters who take game in violation of the regulations must salvage the meat and antlers and surrender them to state authorities.
He also claims that there was insufficient evidence to support the verdict. For the reasons explained here, we affirm the judgment of the district court.
Facts and proceedings
On September 15, 2007, Benjamin I. Whipple, on behalf of his hunting partner, Venzke, transported and surrendered to Alaska Wildlife Troopers in Palmer the salvaged meat and antlers from a sub-legal bull moose. Whipple also provided the troopers with a "transfer of possession" statement — that is, a statement documenting Venzke's transfer of the meat and antlers to Whipple. This statement identified Venzke as the hunter who took the moose, but it did not contain any admission or assertion that the moose was taken illegally. This form is used whenever a hunter transfers possession of game to anyone, whether temporarily, for transport or storage, or permanently.
At the time Whipple provided these items to the troopers, he also declared that Venzke was "asserting his Fifth Amendment rights." Eventually, the State prosecuted Venzke for the strict liability violation of harvesting a sub-legal moose, a violation of 5 AAC 85.045(a)(11).
See 5 AAC 92.002 (holding that any person violating the state's hunting regulations "is strictly liable for the offense, regardless of that person's intent").
Prior to trial, Venzke moved to dismiss the charge. He noted that the state's 2007 — 2008 Alaska Hunting Regulations handbook, printed and distributed by the Alaska Department of Fish and Game, directed hunters to turn in illegally taken game to the nearest Alaska State Trooper or Department of Fish and Game office. He asserted that "this directive from the State compels his self-incrimination in violation of his federal and state constitutional rights."
Magistrate Jeanmarie P. Wilkinson rejected Venzke's arguments and denied the motion to dismiss. After a bench trial on stipulated facts, Magistrate Wilkinson found that Venzke was guilty of the strict liability violation. Venzke now appeals from these district court rulings.
Why we affirm Magistrate Wilkinson's ruling
Magistrate Wilkinson's ruling on Venzke's motion to dismiss was fairly narrow. She examined the two regulations that Venzke identified — (1) the regulation announcing that illegally taken game is the property of the State, and (2) the regulation providing an affirmative defense to unlawful transportation of game when a person salvages and transports illegally taken game to the Department of Fish and Game or the Department of Public Safety — and concluded that these regulations do not compel self-incrimination.
In this appeal, Venzke contends that these hunting regulations violate the privilege against self-incrimination. But despite the importance of this question, we decline to answer it because regulations are presumed to be valid and it is the challenger's burden to show that they are in some way unconstitutional. Venzke has failed to rebut the presumption that the hunting regulations are constitutional.
See State v. Alyeska Pipeline Serv. Co., 723 P.2d 76, 78 (Alaska 1986) ("A regulation is presumptively valid, therefore the burden of proving invalidity is on the party challenging the regulation."); State v. Alaska Civil Liberties Union, 159 P.3d 513, 514 (Alaska 2006) (explaining that regulations adopted by the state are accorded the usual presumption of constitutionality).
Venzke's briefing is simply inadequate to permit us to address this constitutional issue. He opted to rely on his district court pleadings rather than file an opening appellate brief, but his district court pleadings contain only three pages addressing this issue, and he did not cite a single appellate court decision. His appellate reply brief adds little of substance to support his claim of error.
This procedure is allowed under Appellate Rule 217(f).
Additionally, most of the important factual assertions Venzke relies upon were not litigated in the district court. Here, the challenged regulations do not on their face require that hunters taking sub-legal game identify themselves. And there is no evidence in the record explaining the procedures that state authorities use when game is surrendered. In other words, there is no evidence in the appellate record showing how hunters would be required to incriminate themselves when surrendering salvaged game.
See Clark v. Anchorage, 112 P.3d 676, 678 (Alaska App. 2005) ("Nothing on the face of the ordinance [requiring proof of current car insurance] unlaw fully compels motorists to incriminate themselves [or] to speak against their will. . . .").
Furthermore, Venzke did not actually surrender the salvaged game, his hunting partner, Whipple, did. Apparently, the information that identified Venzke as the person who shot the moose was required by regulation solely because Venzke transferred the game to Whipple. But nothing in the regulations required Venzke to transfer the game. If Venzke voluntarily transferred the game to Whipple, then it appears that the information provided on the transfer statement was not compelled. Venzke does not address this issue.
See Creary v. State, 663 P.2d 226, 229 (Alaska App. 1983).
Also, Venzke was tried for a strict liability violation. Although strict liability violations of regulations are enforced and adjudicated using criminal procedures, violations are considered noncriminal offenses, punishable only by a fine. The privilege against self-incrimination is generally limited to criminal cases. Thus, it appears that the privilege may not apply to a strict liability violation of a hunting regulation. Again, Venzke does not address this issue.
See State v. Euteneier, 31 P.3d 111, 113 (Alaska App. 2001).
A S 11.81.900(a)(63); see State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738, 742-43 (Alaska 1998).
See United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742 (1980).
In short, Venzke is asking this court to address a constitutional question that was neither substantively litigated in the district court, nor adequately briefed on appeal. In the past, we have declined to resolve similar constitutional issues when inadequately briefed. We find that we must reach the same conclusion here. Because Venzke's briefing is inadequate and because there is no meaningful factual record, we hold that Venzke has failed to rebut the presumption that the hunting regulations are constitutional.
See Case v. Anchorage, 128 P.3d 193, 196 (Alaska App. 2006) (declining to address a Fifth Amendment issue because the appellant had not demonstrated that the challenged court rule violated the privilege against self-incrimination); Nason v. State, 102 P.3d 962, 965 (Alaska App. 2004) (concluding that the appellant had failed to rebut the presumption that a statute was constitutional).
Was there sufficient evidence to support the guilty verdict?
Venzke also claims that there w as insufficient evidence to support the guilty verdict. We view the evidence in the light most favorable to the judge's verdict. The question is whether the finding of guilt is supported by substantial evidence — that is, such relevant evidence to support the conclusion by a reasonable mind that Venzke's guilt was established beyond a reasonable doubt. Here, based on the stipulated facts, there was substantial evidence supporting the trial court's conclusion that Venzke had violated state game regulations by taking a bull moose that had sub-legal antlers.
See, e.g., Helmer v. State, 608 P.2d 38, 39 (Alaska 1980); Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
See Helmer, 608 P.2d at 39.
Conclusion
We therefore AFFIRM the district court's judgment.