Opinion
Court of Appeals No. A-10935 Trial Court No. 3AN-10-1773 CRNo. 6066
07-02-2014
KURT LEPPING, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kurt Lepping, pro se, Wasilla, for the Appellant. Arne F. Soldwedel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Catherine M. Easter, Judge.
Appearances: Kurt Lepping, pro se, Wasilla, for the Appellant. Arne F. Soldwedel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Senior Judge COATS.
Kurt Lepping was convicted of twenty-three counts of fish and game violations. He raises eight claims of error: (1) that the district court erred when it denied a continuance of the trial date to allow his attorney more time to prepare for trial, (2) that the district court gave the jury erroneous instructions on the elements for some of the charges in this case, (3) that his guide license should have been reinstated in 2007, (4) that the State violated his due process rights when it did not notify him that he could request a hearing when troopers seized his two airplanes, (5) that he received ineffective assistance of counsel at trial, (6) that the district court should have ordered the return of his airplanes because troopers misled the court when applying for search warrants, (7) that the district court erred when it upheld the original search warrants, and (8) that the district court imposed an excessive sentence.
We agree that the jury instructions erroneously defined the phrase "properly permitted bait station" by telling the jury that Lepping was required to physically post his permit at the bait site. But we conclude that the error was harmless beyond a reasonable doubt because Lepping was not convicted of any of the counts where this was an issue. We also agree that one condition of Lepping's probation — that he not accompany any person in the field — is overly restrictive. We remand the case to the district court for a hearing to re-visit this particular condition. But for the reasons explained in this decision, we otherwise affirm Lepping's convictions and his sentence.
Background
This case arose from the investigation of a 2008 bear hunt. As a result of that investigation, Lepping was charged with fish and game violations that occurred in 2005, 2006, 2007, and 2008. The offenses involved four clients: Christopher and Collette Ashcroft, and David and Wendy Greeno.
In June 2008, Lepping was a licensed transporter, but he was not a licensed outfitter-guide. Nor was he a licensed outfitter-guide in 2005, 2006, or 2007. Because he had been convicted in 2002 of federal game violations, he had, as part of a plea agreement, surrendered his outfitter-guide license for five years.
In 2008, the Ashcrofts, residents of Utah, arranged a multi-day black bear hunt and fishing trip with Lepping. After they had booked the trip, Lepping informed the Ashcrofts that he could transport them but that they would have to hunt bear on their own because he did not have an outfitter-guide license. Although the Ashcrofts expressed some concern about this aspect of the trip, Lepping assured them that he could get them to a location and that, once there, they would have no trouble hunting black bear on their own.
In the charging documents, Christopher was referred to as "Randy."
The Ashcrofts decided to hunt and arrived in Alaska on June 5, 2008. Lepping charged them approximately $11,000 to stay at his lodge for a week. And he registered two black bear bait stations the same day that the Ashcrofts arrived. But neither of these two stations were located where the Ashcrofts hunted on June 5.
Although Lepping did not have an outfitter-guide license, he was licensed as a transporter when he assisted the Ashcrofts. As a transporter, he was allowed to take the Ashcrofts into the field, help them embark and disembark from the airplane, and load and unload their equipment and any harvested big game animals. But once he had helped them disembark, he then had to leave; a transporter cannot remain with hunters in the field while they hunt.
See AS 08.54.720(a)(19).
See id.
When the Ashcrofts arrived in Alaska on June 5, Lepping arranged to have them driven from Anchorage to his lodge in Wasilla. That evening, the Ashcrofts bought bear tags and hunting licenses. Afterwards, Lepping flew them, along with his friend, David Greeno, to a black bear bait station near the Beluga River in Game Management Unit 16B. Lepping provided the Ashcrofts with a bow and arrows, as well as a satellite phone. Only a registered outfitter-guide can provide big game hunters with equipment.
See AS 08.54.720(a)(11).
While the Ashcrofts hunted from a tree stand at the bait station, Lepping and Greeno remained with Lepping's airplane by the river, about 300 yards away. Christopher Ashcroft wounded a black bear about a half-hour after arriving at the bait site. Lepping helped him track the wounded bear, which they found dead. Lepping helped Ashcroft retrieve the bear from the field, and then skinned the bear. Only a registered outfitter-guide can provide this type of guide service.
See AS 08.54.720(a)(6).
Although Christopher had taken the bear, the hide was tagged with Collette's bear tag, not Christopher's. At trial, Collette testified that she believed that Lepping knew the first bear was improperly tagged when he flew the hide into Anchorage to be sealed. Lepping put the hide in his Cessna 206 airplane and, leaving the Ashcrofts in the field, returned with Greeno to Lepping's lodge. The Ashcrofts remained in the field that night.
The next day, the Ashcrofts were contacted at the bait station by Sergeant Mark Agnew, a Wildlife Trooper. Agnew periodically checked the places he knew were regularly used as bait sites. Prior to the Ashcrofts' arrival, Agnew had checked the site and found that while it had been baited, nothing at the site showed that the station had been registered. According to Agnew, when a bait station is registered, the user must post information at the site that identifies the person who registered the site and that warns others that the site is a black bear bait station.
Speaking with the Ashcrofts, Agnew learned that they were nonresident hunters. It also appeared to him that they were hunting at an unregistered bait station. Agnew also learned that the Ashcrofts had been flown in by Lepping who, despite not being a registered outfitter-guide, had remained at the site while they hunted. Because Agnew did not know if Lepping was properly licensed as a transporter, he left the field to check on Lepping's status.
Later that day, Agnew returned to the bait station, and Lepping arrived while he was there. Lepping informed Agnew that he had a transporter license. He told Agnew that the bait station was his, and that the Ashcrofts' hunt was free. In other words, he claimed he was not receiving any compensation for the bear hunt.
In Agnew's view, the Ashcrofts were hunting at an unregistered bait station and were also illegally hunting black bear same day airborne. Lepping, however, pointed out that same day airborne hunting of black bears, even by nonresident hunters, was allowed at bait stations established in Game Unit 16B. But this was not relevant to Agnew, for if neither the Ashcrofts nor Lepping had a permit for the bait station they were using, then the Ashcrofts could not hunt there same day airborne.
Agnew next checked the State's database for bait stations and found that although Lepping had indeed registered two bait stations, neither one was on the Beluga River where the Ashcrofts were hunting. To the contrary, the registered stations were on the Yetna River, nearly thirty-four miles away. Because the Ashcrofts were hunting at an unregistered bait station, they were in violation of the same day airborne hunting prohibition.
For his part, Lepping, after talking with Agnew, flew the Ashcrofts back to his lodge. He then returned to Anchorage where he amended his existing permits to include the Beluga River site where the Ashcrofts had been hunting. Lepping later posted this new information at the Beluga River bait station.
On June 9, Lepping flew the Ashcrofts back to the same bait station, where Christopher, with a bow provided by Lepping, again took a black bear same day airborne. While the Ashcrofts hunted, Lepping flew David Greeno to hunt black bear at another bait station located approximately six miles from the site where the Ashcrofts were.
Lepping then returned and assisted Christopher with Christopher's second bear. Lepping helped skin the bear, and then he transported the hide back to his lodge. This time he used his Piper PA-18 airplane.
Before the Ashcrofts' stay in Alaska was complete, Investigator Katrina Malm, another Wildlife Trooper — based on information provided by Agnew — began investigating the Ashcrofts' hunt. The Ashcrofts were contacted and interviewed at the airport as they were leaving the state. Later, they were charged with numerous hunting offenses. They each ultimately entered a plea bargain that, among other things, required them to testify truthfully at Lepping's trial.
Malm's investigation swept up David Greeno, the person helping Lepping with the Ashcroft hunt, and his wife, Wendy. The Greenos lived in Washington State. Since 2005, they had been regularly fishing and hunting in Alaska with Lepping.
Based on her investigation, Malm found that the Greenos and Lepping had committed numerous fish and game offenses in 2005, 2006, 2007, and 2008. The Greenos were charged with a number of fish and game violations and, ultimately, they each entered a plea bargain that, among other things, required them to testify truthfully at Lepping's trial.
As part of her investigation, Malm and another Wildlife Trooper, Sergeant William Connors, applied for search warrants for Lepping's lodge and his two airplanes. Lepping had used his Cessna 206 airplane and his Piper PA-18 airplane at various times as he transported the Ashcrofts and the Greenos to and from the field, and to transport bear hides.
The warrants were issued, and the Cessna 206 was seized at Lepping's lodge. The Piper PA-18 was ultimately seized in Washington State. Troopers also searched Lepping's lodge, and, pursuant to a separate warrant, searched the office of the broker who had booked the Ashcrofts' hunting and fishing trip with Lepping.
Lepping challenged the initial search warrants, claiming that the troopers made false statements and omissions in their affidavits. Following a lengthy evidentiary hearing, District Court Judge Catherine M. Easter rejected the challenges to the warrants. She denied Lepping's request that his property be returned and his request that evidence seized with the warrants be excluded. She found that none of Lepping's claims that the troopers had made false statements, or that they had misled by omission, established the elements necessary for suppression under Malkin v. State.
Judge Easter has since been appointed to the superior court.
722 P.2d 943 (Alaska 1986).
Lepping was initially charged in December 2009 with twenty counts of fish and game offenses and one felony count of tampering with physical evidence. Later, in response to Lepping's motion to dismiss about half of the original counts, primarily because those counts were duplicitous, the State — approximately a month before trial — filed an amended information.
The final version, which included some additional but minor amendments, charged Lepping with fifty-three misdemeanor fish and game offenses (and dropped the felony). As a result of the amendment, Lepping's attorney moved for a continuance, asserting that because the State had added so many new charges, he needed more time to prepare for trial. Judge Easter denied the motion.
The case was tried before a jury. Of the fifty-three charges, Lepping was convicted of twenty-three. He was convicted of two counts of being a transporter remaining in the field, four counts of guiding without a license, two counts of unlawful acts as a transporter for allowing various violations of game regulations, one count of outfitting without a license, five counts involving same day airborne violations, one count of unlawful possession and transportation of a black bear taken at an unregistered site, two counts of unlawful possession and transportation of black bears taken at bait stations without the required information posted, one count of establishing a bait station without first obtaining a permit, one count of accepting illegal remuneration for use of a black bear bait station, three counts involving illegal sport fish guiding activities, and one count of failure to file a transporter activity report.
Counts 1 and 2 (AS 08.54.720(a)(19)).
Counts 3, 4, 17 and 18 (AS 08.54.720(a)(9)).
Counts 7 and 8 (AS 08.54.720(a)(8)(A or B)).
Count 30 (AS 08.54.720(a)(11)).
Counts 5 (AS 08.54.720(a)(15)), 10, 41 (5 AAC 92.140(a)), 32, and 37 (5 AAC 92.085(8)).
Count 9 (5 AAC 92.140(a)).
Counts 12 (5 AAC 92.140(a)) and 40 (5 AAC 92.044(b)(7)).
Count 13 (5 AAC 92.044(a)).
Count 15 (AS 08.54.720(a)(9)).
Counts 25 (AS 16.40.270(c)(1) and (2)), 26, and 27 (AS 16.40.270(f)(1) or (2)).
Count 53 (AS 08.54.650(c)).
At sentencing, the State put on evidence that, in addition to prior federal fish and game convictions, Lepping had also committed other uncharged bad acts, including prior instances of illegal guiding, violating game laws, stealing fuel from another guide, harassing marine animals and wildlife, and an episode of littering. Judge Easter considered these uncharged bad acts when imposing sentence.
Additionally, at the State's request, Judge Easter found that, although the jury had acquitted Lepping of thirty counts, for purposes of sentencing, the State had proven those counts by a preponderance of the evidence.
Lepping's composite sentence included 700 days in jail with 350 suspended, $45,000 in fines, and unsupervised probation for 10 years. His Cessna 206 and his Piper PA-18 were both ordered forfeited to the State. His sport fishing guide license was suspended for a number of years, and his hunting guide license and transporter guide license were both permanently revoked.
One condition of his probation provided that Lepping could "not be present with or accompany anyone in the field."
Judge Easter did not err when she denied a continuance of Lepping's trial date
Lepping first claims that Judge Easter erred when she denied his request for a continuance. He argues that his attorney had insufficient time to prepare for trial after the State filed its amended information, which more than doubled the number of criminal counts he faced. This information was filed on November 2, 2010, twenty-eight days before the scheduled trial date. He contends that the denial of his motion prejudiced his case.
Not every denial of a request for additional time violates due process. The denial of a continuance is within the discretion of the trial judge, and to constitute error, an abuse of this discretion must be shown. Only an arbitrary refusal violates due process, and whether this has occurred "depends upon the circumstances of each case, especially the reasons supporting the request for continuance." A defendant must show that the denial of the continuance "embarrassed" the preparation of his defense and prejudiced his rights. We have carefully examined the record and we conclude that Judge Easter did not abuse her discretion when she denied the motion for a continuance.
Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970).
Id.
Id.
Id.
Procedural history of the motion to continue
Lepping was initially charged in December 2009 with twenty-one counts. The first six counts involved various bear hunting violations that Lepping committed with Christopher and Collette Ashcroft in 2008. Another fourteen counts involved various fishing and bear hunting violations Lepping committed with David and Wendy Greeno in 2005, 2006, 2007, and 2008. And one count involved Lepping's tampering with physical evidence, a felony.
On October 20, 2010, Lepping filed a motion to dismiss eleven of the twenty-one counts, primarily on the ground that they were duplicitous because individual counts involved two people (both Ashcrofts or both Greenos), or else included events that occurred on two different dates, or both. In response, the State pointed out that dismissal was not the proper remedy for duplicitous charges, and on November 2, 2010, the State filed its first amended information to correct the problems Lepping had complained of. Not surprisingly, resolving the issue raised by Lepping's motion resulted in an increased number of counts.
On November 18, Lepping moved for a continuance, asserting that because of the many additional counts in the amended information, and because of some 900 pages of recently received discovery, he needed additional time to prepare for trial. The State opposed, arguing that many of the additional counts were added (and others amended) to resolve Lepping's complaint that the prior counts had been duplicitous. Additionally, the State pointed out that, except for just three pages, the documents Lepping had received were just certified copies of discovery that Lepping had already received.
The State contended that despite Lepping's assertion that this was "a particularly complex and difficult" case to prepare for trial, the case was basically the same case that Lepping's attorney had declared he was ready to try five months earlier.
Judge Easter's ruling
In a written order, Judge Easter denied Lepping's motion. She found that the State's amended information primarily "broke apart the duplicitous charges but did not change the overall charging structure." She found "only one count" was actually new, but that it "could not have come as a surprise" to Lepping. (This was a charge that he had failed to file a transporter activity report.) The record supports her ruling.
Lepping has not shown that the additional counts prejudiced his ability to prepare the case in time for trial. Although Lepping complains about the addition of more than thirty new counts, the amended information was a direct result of his motion to dismiss many of the original counts as duplicitous. Under Trounce v. State, "[i]t is generally recognized that the rule against duplicity is a pleading rule rather than one that affects substance. Duplicity, therefore, is not necessarily a fatal defect. Rather, charges improperly joined in a single count can be segregated into separate counts in the same indictment." Because of this, Lepping's attorney knew or should have known that, as a result of his motion, he would face additional charges as the State amended the complaint to ensure that each charge involved just one client or just one date.
498 P.2d 106, 110 (Alaska 1972); see also Carmen v. State, 658 P.2d 131, 139 (Alaska App. 1983).
Although the State, in addition to adding charges to resolve the duplicity problem, added a number of other charges, it maintained that all of these additional charges were based on the original probable cause statement. According to the prosecutor, no new investigation had been conducted, nor were the additional charges otherwise based on new facts.
A review of the amended information shows that the vast majority of the new allegations — approximately twenty of them — arose from the fact that Lepping had unlawfully, over a number of years, allowed four different clients to hunt at unregistered, or improperly posted, black bear bait stations. Accordingly, most of these additional counts were very similar to one another — the only material differences between these additional charges were (1) the date the offense allegedly occurred and (2) with which client the offense allegedly occurred. Thus, in practical terms, Lepping's attorney did not have to prepare for twenty or so completely different and unrelated allegations.
To further illustrate this, we note that there were four new counts alleging that Lepping received illegal remuneration for the use of the black bear bait stations. But the only material differences between these four counts were the date of the alleged offense and the name of the client involved. Hence, practically speaking, these counts involved a single continuing episode.
In short, the majority of the additional counts that Lepping's attorney had to contend with were substantially similar to one another, differing only with regard to the date of the alleged offense, and the name of the client involved. The only truly new count was a charge that Lepping had failed in 2008 to file his transporter "activity report."
Judge Easter's assessment that the amended information "did not change the overall charging structure" is supported by the record. Judge Easter could reasonably find that many of the additional charges were consistent with counts for which Lepping had already been charged, and that these new counts did not make the case so complex that Lepping's attorney lacked sufficient time to prepare for them.
With regard to the large number of documents that in part prompted Lepping's attorney to seek a continuance, Judge Easter, when denying the continuance, found that the vast majority of the documents had previously been in Lepping's attorney's possession. Lepping has not shown that this finding was clearly erroneous.
We conclude that Lepping has not shown that Judge Easter abused her discretion when she denied his motion to continue the case on the ground that he needed more time to prepare.
Lepping's challenge to Judge Easter's jury instructions on the elements of some of charges in this case
Lepping challenges the jury instructions that defined "compensation," "remuneration," "properly permitted," and "same day airborne." He also challenges the instruction regarding his "failure to file a transporter report."
We agree that the definition of "properly permitted" was inaccurate as applied to the same day airborne and related transporter offenses. But as explained later, based on the outcome of those counts, we conclude that any error was harmless beyond a reasonable doubt. We also conclude that the other instructions accurately informed the jury of the applicable law in this case.
"Compensation" — Jury Instructions 53 and 55
Lepping claims that it was error to define compensation to include "indirect" compensation. An element of many of the charges against Lepping was whether he received "compensation" for his services. A person does not illegally provide guiding or transporting services unless that person receives compensation for the service.
See AS 08.54.790(9) ("Guide" means "to provide, for compensation or with the intent or with an agreement to receive compensation, services, equipment, or facilities to a big game hunter in the field by a person who accompanies or is present with the big game hunter in the field either personally or through an assistant[.]").
Alaska Statute 08.54.790(5) defines compensation as "payment for services including wages or other remuneration but not including reimbursement for actual expenses incurred." The jury was given this definition.
The jury was also instructed that "payment for services" — for purposes of "compensation" — includes receiving remuneration, directly or indirectly, for any provision of services, equipment, or facilities in the field to a person who, in fact, engages in big game hunting and uses or benefits from the services, equipment, or facilities. This instruction was taken from a 2009 regulation, 12 AAC 75.940. As Lepping points out, this regulation became effective February 28, 2009, months after Lepping committed his offenses.
Lepping now claims that before this regulation was passed, the definition of compensation was ambiguous — that is, he asserts that it is not clear whether compensation included both direct and indirect payments. From this, he argues that the rule of lenity applies, and that the definition must be construed in his favor to include only direct remuneration.
Under the rule of lenity, ambiguities in criminal statutes should be read narrowly and strictly construed against the State. But Lepping does not show that the statute is ambiguous. Compensation is defined as "payment for services including wages or other remuneration but not including reimbursement for actual expenses incurred." Generally speaking, under the sliding-scale approach to statutory interpretation, a statute's plain language remains significant: "the plainer the language of the statute, the more convincing contrary legislative history must be." Lepping has not convinced us that the definition of "compensation" did not include indirect remuneration for services.
McDole v. State, 121 P.3d 166, 169 (Alaska App. 2005).
Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).
Moreover, Lepping's interpretation is unreasonable. It is highly unlikely that the legislature intended to regulate only guides who were receiving "direct" compensation for their guiding services, but not those who received only "indirect" compensation. And while a statute's "legislative history can sometimes alter a statute's literal terms," Lepping cites no legislative history at all, let alone any that supports his argument.
See Haywood v. State, 193 P.3d 1203, 1206 (Alaska App. 2008) (statutory subsections "susceptible to more than one conflicting but reasonable interpretation" are ambiguous).
See Ward, 288 P.3d at 98.
Lepping also claims that this jury instruction was void because it was vague. To the extent that Lepping argues that jurors necessarily had to guess at what the term "indirect compensation" meant, he did not preserve such a claim. At trial, he objected to using the word "indirect" in the instruction on only one ground: "all of the alleged offenses occurred prior" to the effective date of the regulation from which the State took the definition.
Because this claim was not preserved, Lepping must now show that the jury instruction was plainly erroneous. With regard to jury instructions, plain error will be found only when an erroneous instruction creates "a high likelihood that the jury followed an erroneous theory[,] resulting in a miscarriage of justice." The "ultimate determination in analyzing plain error in jury instructions is simply whether a correct instruction would have likely altered the result." We have reviewed the record and conclude that an instruction defining "compensation" that omitted the phrase "directly or indirectly" would not have altered the results in this case.
Baker v. State, 905 P.2d 479, 489 (Alaska App. 1995) (quoting Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993)).
Baker v. State, 905 P.2d 479, 489 (Alaska App. 1995) (quoting Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993)).
Lepping has not shown that this jury instruction was plainly erroneous.
"Remuneration" — Jury Instruction 54
Lepping next asserts that Judge Easter erroneously defined "remuneration." Under the hunting guide statutes, remuneration is part of the definition of compensation. That is, compensation is defined as "payment for services including wages or other remuneration but not including reimbursement for actual expenses incurred."
AS 08.54.790(5).
Lepping wanted the jury instructed that "remuneration" is synonymous with the word "compensation." Judge Easter rejected this request, and instead instructed the jury that remuneration means to "pay an equivalent for a service, loss, or expense."
Lepping contends that Judge Easter's instruction was erroneous because "compensation" expressly excludes reimbursement for actual expenses, but the definition she gave for remuneration includes "expense." This, he contends, makes it appear that remuneration includes even "reimbursement for actual expenses." Lepping raised this problem at trial when he objected.
He now argues that Judge Easter's definition created an ambiguity as to whether compensation did or did not include "reimbursement for actual expenses." But looking at the instructions as a whole, we conclude that Judge Easter did not abuse her discretion.
Baker, 905 P.2d at 490 (jury instructions are not viewed in isolation, but are assessed as a whole).
Although Jury Instruction 54 defines remuneration as "an equivalent for a service, loss, or expense" (emphasis added), Jury Instruction 53 clearly explains that compensation is "payment for services including wages or other remuneration but not including reimbursement for actual expenses incurred." (Emphasis added.) These instructions adequately informed the jury that neither compensation nor remuneration included "reimbursement for actual expenses incurred."
We conclude that Lepping has not shown that Judge Easter committed error with this jury instruction.
"Properly Permitted" — Jury Instructions 15, 19, 28, 66, 67, and 68
Lepping next claims that Judge Easter erred when she added the phrase "properly permitted" to a number of the jury instructions. Lepping devotes a large portion of his brief to this claim of error, and he presents various arguments as to why the definition adversely affected his trial.
As already explained, we agree that the phrase "properly permitted" was erroneously defined. But we conclude that the error was harmless beyond a reasonable doubt.
See Dailey v. State, 65 P.3d 891, 896 (Alaska App. 2003) (where error in instructions "lies in the ... definition of the elements of the offense," error must be harmless beyond a reasonable doubt) (citation omitted).
All of the jury instructions that Lepping challenges in this section of his brief — Instructions 15, 19, 28, 66, 67, and 68 — apply to the same day airborne offenses and to the transporter offenses related to the same day airborne offenses. The jury instruction defining the phrase "properly permitted" only affected those two types of offenses. Whether a bait station was "properly permitted" was an important issue in this case because, while same day airborne hunting is generally prohibited, it was allowed for black bears in Game Unit 16B at permitted black bear bait stations.
Jury Instruction 68 defined what was required to "properly permit" a black bear bait station. This instruction, in conjunction with Instructions 66 and 67, applied to all of the same day airborne and related transporter charges.
If the station was not properly permitted, then Lepping violated the law by allowing or assisting hunters to take black bear same day airborne at the site. And he also violated the law when he transported any game that had been taken unlawfully. Instruction 68, however, erroneously told the jury that Lepping was required to actually post his black bear bait permit at the bait station. That is, the jury was told that if the permit was not posted at the bait station, then the station was not properly permitted. This was not correct.
Lepping argues that because of this erroneous instruction, the jury could have wrongly convicted him. But Lepping was not convicted of any same day airborne or related transporter offenses for any hunt that occurred after June 6, 2008, regardless of whether he posted his permit. All of Lepping's convictions for same day airborne and related transporter offenses were for hunts that occurred prior to June 6, 2008, when he had no permit at all for the bait stations used by his clients.
As already explained, on June 6, after speaking with Trooper Agnew, Lepping amended his permits in an effort to register the Beluga River bait stations where the Ashcrofts and David Greeno hunted in 2008. Based on the verdicts, the jury found that Lepping had properly permitted the stations after June 6, whether or not he had posted his permit.
But prior to June 6, 2008, the evidence offered at trial showed that Lepping had no permits for the sites that his clients used for hunting bear same day airborne. For example, the Beluga River bait station the Ashcrofts used on June 5 was not registered. The bait stations that Lepping originally had permits for in 2008 were on the Yetna River, nearly 34 miles away from the Beluga River site the Ashcrofts were using.
To illustrate this point, we note that Lepping was charged with two separate counts of assisting Christopher Ashcroft in taking a black bear same day airborne — once on June 5, 2008, and once on June 9, 2008 (Counts 5 and 19). Ashcroft used the same bait station on both days. But while Lepping was convicted of the June 5 hunt, he was acquitted of the June 9 hunt.
Likewise, in Count 32, Lepping was convicted of assisting Wendy Greeno in taking a bear same day airborne in a 2007 hunt, and in Count 37, Lepping was convicted of assisting David Greeno in taking a bear same day airborne in a 2007 hunt. But Lepping did not claim that he had permits for these bait stations in 2007. Instead, he claimed that the Greenos had permission to hunt at the site from the person who had permitted it, Harry Zola. Under the regulations, if the Greenos had permission from Zola, then they could lawfully hunt at the bait station. But the Greenos each testified that they had never spoken to Zola, and both denied that Zola had given them permission to use the station.
Similarly, Lepping was charged with illegally transporting a black bear that had been taken same day airborne (Counts 10, 41, and 22). Again, he was convicted of two counts where neither he nor the Greenos had a permit — Counts 10 and 41, which involved a June 2007 hunt. But he was acquitted of Count 22, which involved a June 9, 2008 hunt, when he arguably had a permit.
In short, Jury Instruction 68 applied to same day airborne and related unlawful transportation counts. The instruction's definition of "properly permitted" included a condition that was not required under the law — that the permit be posted at the bait station. But this error was harmless beyond a reasonable doubt. Lepping was not convicted of any offense where the evidence showed that he arguably had a permit.
Although Lepping separately takes issue with the fact that Judge Easter added the word "properly" to these instructions, we conclude that merely adding "properly" to the instructions did not create reversible error. Lepping was acquitted of the same day airborne and related transporter offenses where he showed that he arguably had a permit.
Instructions 15 and 19 provided the proper culpable mental state for Counts 10 and 41 — transporter offenses related to same day airborne violations
Lepping also challenges Jury Instructions 15 and 19. With regard to Instruction 15, he argues that the district court erred because its instruction on "properly permitted" wrongly changed the "mental element from 'knowingly violates' same day airborne to 'knowingly assisted' in the taking of big game."
But there was no error. The two counts that this instruction pertained to — Counts 5 and 19 — address the unlawful acts of a transporter. The gravamen of these offenses is not that Lepping knowingly violated the same day airborne laws, but that he "knowingly assisted" in the illegal taking of big game.
In these two counts, Lepping was charged, as a licensed transporter under Title 8, with knowingly violating 5 AAC 92.085(8), which prohibits a person who has been airborne from assisting in taking a big game animal "until after 3:00 a.m. following the day in which the flying occurred." In these offenses, the crime occurs when a licensed transporter knowingly assists a hunter in committing a game violation. The transporter does not have to also commit the same offense as the hunter.
With regard to Instruction 19, which addressed four unlawful transportation counts, Lepping claims that by adding the phrase "properly permitted," Judge Easter "removed the mens rea of knew or should have known that there was a same day airborne violation." But, while Lepping argues that the State should have been required to prove that he knew or should have known he did not have a valid permit to hunt same day airborne, the instruction required the State to essentially prove the same thing — that Lepping knew or should have known that the bears were taken in violation of the hunting regulations. That is, the jury had to find that Lepping knew that the hunters were taking black bears same day airborne using a bait station that was not permitted.
Here, Jury Instruction 19 applied to Counts 10, 22, and 41, which were unlawful possession or transportation of a black bear taken same day airborne. The violation charged in each of these three counts was that Lepping "negligently and unlawfully" possessed and transported a black bear that he "knew or should have known was taken" in violation of the same day airborne regulation.
To prove this, Instruction 19 required the State to prove beyond a reasonable doubt that Lepping negligently possessed or transported a black bear, that he knew or should have known was taken same day airborne, and that "he was not properly permitted to same day airborne." Looking at all the pertinent jury instructions (including Instructions 66, 67, and 68), we conclude that the jury clearly understood that the State had to prove that Lepping negligently transported bears that he knew were taken same day airborne, but were not taken over a permitted bait station.
The jury verdicts support this conclusion. As already explained, Lepping was convicted for the counts where his clients hunted at a site that had no permit — Counts 10 and 41. Count 10 involved a June 5, 2008 hunt, and Count 41 involved a June 2007 hunt. He was acquitted of Count 22, a June 9, 2009 hunt, where the evidence showed that he arguably had a permit.
Instruction 19 might have been more artfully written, but Lepping has not shown that Judge Easter erred when she gave this instruction.
Same day airborne — Instructions 38 and 39
Lepping next takes issue with Jury Instructions 38 and 39. Although his claim here is unclear, based on the arguments in the trial court, we believe that Lepping is asserting that he was entitled to a "mistake of law" defense with regard to the same day airborne offenses, and that Instructions 38 and 39 prevented that defense. In his brief, he asserts that these instructions somehow implicated the culpable mental state for all of the counts charging same day airborne violations.
Lepping generally objected to the same day airborne jury instructions at trial. But he took the position that "for each of the offenses charged the State must prove that [he] either knew, should have known, or was negligent with respect to whether his conduct violated the law." To that end, he proposed the following instruction for Count 32, one of the same day airborne offenses:
That on or about June 9, 2008, at or near Palmer, Alaska, in the Third Judicial District, State of Alaska, Kurt M. Lepping negligently violated 5 AAC 82.085(8) by assisting in the taking of a black bear same day airborne by Wendy Greeno.(Emphasis in original.) The jury instruction that was given, Instruction 32, differed only in that it charged that "Lepping negligently assisted the taking of a black bear same day airborne by Wendy Greeno." Obviously, the only difference was that the instruction given omitted the phrase "violated 5 AAC 82.085(8)."
Lepping argued during the trial that because the fish and game laws were so complex, the State was required "to prove lack of good faith," and that he was "entitled to a good faith mistake of law instruction, [and] that the burden [was] on the State to prove otherwise." In other words, Lepping wanted to argue that the State had to prove that he was actually aware of the statute or regulation that he was violating, and that he had violated it knowingly or negligently. Judge Easter rejected this argument. Her decision is supported by AS 11.81.620(a), which provides that "knowledge, recklessness, or criminal negligence as to whether conduct constitutes an offense, or knowledge, recklessness, or criminal negligence as to the existence, meaning, or application of the provision of law defining an offense, is not an element of an offense unless the provision of law clearly so provides."
Lepping further argues that Instructions 38 and 39 are in direct conflict with the same day airborne counts that required the jury to find that he knew or should have known that his actions were illegal. Specifically, he challenges Counts 5, 10, 32, 37, and 41. Instruction 38 provides:
In crimes described in these instructions there must exist a joint operation of an act or conduct and a culpable mental state. To constitute a culpable mental state it is not necessary that there exist an intent to violate the law. When a person intentionally, knowingly, recklessly or with criminal negligence does that which the law declares to be a crime, the person is acting with a culpable mental state, even though he may not know that his act or conduct is unlawful.And Instruction 39 provides:
When evidence shows that a person voluntarily did that which the law declares to be a crime, it is no defense that a person did not know that his or her act was unlawful or that the person believed it to be lawful.
As just explained, Lepping asserts that these instructions directly conflict with the culpable mental state of the same day airborne counts. But these instructions are accurate statements of law, and the State was required in each of the counts that Lepping specifically challenges — Counts 5, 10, 32, 37, and 41 — to prove that Lepping knowingly or negligently did an act which the law declares a crime.
See, e.g., Reynolds v. State, 664 P.2d 621, 627-28 (Alaska App. 1983).
For instance, in Count 5, the State had to prove that Lepping, a person licensed as a transporter, knowingly assisted Christopher Ashcroft in taking a black bear. In the other four counts (depending on the charge), the State either had to prove that Lepping negligently possessed and transported a black bear he knew or should have known was taken same day airborne, or else prove that he negligently assisted a hunter in taking a black bear same day airborne.
For each count, the jury instructions required the State to prove that Lepping engaged in certain prohibited conduct and did so with the appropriate culpable mental state. Judge Easter committed no error.
Failure to file a transporter report — Instruction 32
Jury Instruction 32 set out the elements of Count 53, which charged Lepping with knowingly failing to file his annual transporter activity reports for the 2007 - 2008 guide season. The jury was instructed that the State had to prove that Lepping was a licensed transporter and that he knowingly failed to file the reports. Lepping claims that this instruction "underscores" the unfairness of the trial, but he does not actually argue that it was a misstatement of the law.
At trial, Lepping proposed an instruction that provided that the jury should find him "not guilty" if it found that he could not file the transporter report because the State had seized his activity reports and still possessed them when the reports were due. Lepping argues that he was entitled to his version of the instruction because it became impossible for him to file the reports after the State had seized them as part of the criminal investigation.
Licensed transporters are, under AS 08.54.650(c), required to file annual transporter activity reports. If a transporter loses a transporter activity report, the transporter must, under 12 AAC 75.395(g), submit to the department a notarized statement documenting the loss of the transporter activity report and client information not already submitted to the department. In other words, although Lepping might have been unable to file the actual reports because the State had seized them, he could still comply with the filing requirement by submitting the information in another fashion. There was no evidence at trial that Lepping attempted to submit the information at any time.
Judge Easter did not abuse her discretion by rejecting Lepping's proposed instruction and giving Instruction 32.
Lepping's master guide license did not automatically reinstate in 2007
A number of the charges against Lepping were based on his lack of a hunting guide license. Lepping surrendered his master guide license in 2002 for five years as part of his federal sentence. He was not allowed to apply for a guide license during this time.
Lepping in essence contends that his master guide license should have been automatically reinstated at the end of the five years, in 2007. But there is no statute or regulation that provides for an automatic reinstatement in his circumstances, nor does the record show that Lepping ever formally requested the State to reinstate or to renew the license.
Lepping asserts that he "went to get his license back" at the end of the probationary period. But there is nothing in the record showing that Lepping tried to formally renew or reinstate his license. There was testimony that in November 2007, he asked what he had to do to reinstate his license. At that time, he was told that because his guide license had lapsed, he would have to reapply for a new one. We express no opinion on the accuracy of this information, but even if it was erroneous, Lepping was not entitled to provide guiding services to the Ashcrofts and the Greenos until his guide license was in fact renewed or reinstated.
See Tenison v. State, 38 P.3d 535, 538 (Alaska App. 2001) ("Even when the person can show that their license application should have been granted, they are not free to break the law by engaging in the licensed activity without the necessary license.").
Lepping's claim that he was entitled to notice that he could request a post-seizure hearing to contest the seizure of his aircraft
Lepping claims that his due process rights were violated because the State did not promptly tell him that he could request a hearing to contest the seizure of his airplanes. He asserts that because of this lapse, the airplanes should be returned and his convictions overturned.
But federal due process rights are satisfied when police give property owners notice that their property has been seized and state law provides a post-seizure procedure to challenge the seizure to seek the return of the property. Here, Lepping's federal due process rights were satisfied because he received notice that his airplanes had been seized, and Alaska Criminal Rule 37 provides a post-seizure procedure allowing him to seek return of the property.
City of West Covina v. Perkins, 525 U.S. 234, 240-41 (1999).
Alaska R. Crim. P. 37(c) ("[Any] ... person aggrieved by an unlawful search and seizure may move the court in the judicial district in which the property was seized or the court in which the property may be used for the return of the property[.]").
Likewise, Lepping's state due process rights were satisfied. In F/V American Eagle v. State and State v. F/V Baranof, the Alaska Supreme Court declared that property owners have "an immediate and unqualified right to contest the [S]tate's justification" when the State seizes their property. But nothing in either case requires the government to provide an express notice of the right to request a hearing. Rather, in both cases, the State provided the property owners notice that their property had been seized. This notice and the subsequent opportunities to challenge the seizures satisfied due process.
620 P.2d 657 (Alaska 1980).
677 P.2d 1245 (Alaska 1984).
F/V Baranof, 677 P.2d at 1255; F/V American Eagle, 620 P.2d at 667.
F/V Baranof, 677 P.2d at 1255-56; F/V American Eagle, 620 P.2d at 667.
Conceivably, there might be circumstances where the Alaska due process clause would require the government to take affirmative measures to notify a property owner of the right and the procedure to challenge the seizure of his or her property. But nothing in Lepping's case supports a finding that his due process rights were violated. Lepping had notice that his property had been seized, and he retained an attorney soon afterwards, so he had legal advice regarding the seizure. Here, Lepping had every opportunity to challenge each seizure, and he did in fact, prior to trial, move to have his airplanes returned.
Lepping has not demonstrated that, in the circumstances of his case, his airplanes should be returned and his convictions overturned on the ground that the State did not expressly notify him that he could challenge the seizures.
Lepping's claim that he received ineffective assistance of counsel
Lepping claims that his attorney provided ineffective assistance at trial. We have consistently held that we will not consider claims of ineffective assistance for the first time on appeal because, in most instances, the appellate record is inadequate to allow us to meaningfully assess the competence of the attorney's efforts. Here, the appellate record is inadequate to allow us to meaningfully assess the competence of Lepping's attorney's efforts. Lepping's claim of ineffective assistance must be raised in the trial court in an application for post-conviction relief under Alaska Criminal Rule 35.1.
See Tazruk v. State, 67 P.3d 687, 688 (Alaska App. 2003); Hutchings v. State, 53 P.3d 1132, 1135-36 (Alaska App. 2002); Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
Judge Easter did not err when she denied Lepping's motion to return property based on his claim that police made false statements when applying for search warrants
Prior to trial, Lepping moved to have his airplanes returned. He asserted that the troopers intentionally deceived the district court when they cited Jones v. State in their affidavit as the authority that allowed the court to relax Criminal Rule 37 and delay notifying Lepping of the search warrant documents. In his brief, Lepping argues that this deception allowed the troopers to delay providing him with the affidavits supporting the search warrants issued in this case. But we conclude that it was not deceptive for the troopers to cite Jones for the proposition that a court can relax the time limits set out in Criminal Rule 37.
646 P.2d 243 (Alaska App. 1982).
In Jones, we allowed Rule 37 to be relaxed when police are electronically monitoring conversations pursuant to a Glass warrant. We recognized that in cases involving Glass warrants, police, in the interests of effective law enforcement, should be allowed to postpone service of an inventory. To do so, police have to set out the justification for the postponement of service in the affidavit accompanying the State's application for a warrant.
Jones, 646 P.2d at 249.
Id. at 250.
But nothing in Jones limits trial courts from relaxing Rule 37 in cases that do not involve electronic monitoring of conversations. In Lepping's case, both of the first two warrants issued included a request that service be delayed for 90 days because the troopers anticipated a follow-up investigation. It was not unreasonable, or unlawful, for the issuing judge, based on the Jones decision — even though Jones is not directly on point — to grant the requested delay. Lepping does not show, nor argue, that the troopers in his case deceived the judge because they were in fact not planning to follow up on the investigation.
As part of this claim, Lepping also contends that Judge Easter erred when she denied Lepping's motions to suppress evidence. But Lepping did not, in the district court, move to suppress evidence based on the argument he raises in this section of his brief. Rather, he moved only to have his airplanes returned to him. Because Lepping did not seek suppression under this theory in the district court, he cannot now argue that the district court should have suppressed evidence on this theory.
See Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978) (search and seizure claims ordinarily cannot be raised for the first time on appeal, even if the trial court record clearly reveals a ground for suppression of the evidence).
We conclude that Lepping has not shown any error.
Judge Easter did not err when she upheld the original search warrants
Lepping separately contends that Judge Easter should not have upheld the original search warrants. He claims that the warrants were unlawfully obtained because the troopers intentionally falsely claimed in their affidavits that Lepping's black bear bait permits were "open to residents only."
Lepping's permits did in fact allow nonresidents to hunt on black bear bait stations. But after an evidentiary hearing, Judge Easter found that under State v. Malkin, while the search warrant affidavits were not accurate, the troopers did not recklessly or intentionally make any false statements. And, because the statements were not reckless or intentional, she ruled that evidence seized with the warrants would not be suppressed. The record supports Judge Easter's ruling.
722 P.2d 943 (Alaska 1986).
The troopers' affidavits stated that, based on the Alaska Department of Fish and Game website, the bait stations Lepping registered in Game Unit 16B were "open to Alaska residents only." At the evidentiary hearing held to resolve this claim, the troopers testified about their mistake.
According to the evidence presented at the hearing, in 2008, there were two kinds of permits available for black bear bait stations: predator control or general. A person could get four predator control permits, but only two general permits. Predator control permits were restricted to residents, while general permits were open to nonresidents. The website the troopers used to check on Lepping's permits inaccurately indicated that on June 5, 2008, he had received four black bear bait station permits. This led the troopers to mistakenly believe that Lepping had predator control permits, which were restricted to resident hunters.
Lepping, however, had obtained just two black bear bait station permits on June 5, 2008. But when he later amended those permits after talking to Trooper Agnew, the State's internet site showed that those amended permits were also issued on June 5. This, in turn, made it appear that Lepping had received four permits on June 5, which suggested that he had obtained predator control permits. As already explained, those permits were restricted to Alaska residents.
After hearing the evidence, Judge Easter found that the statement in the affidavits that the permits were available only to resident hunters was false. Because Lepping had met his burden, she recognized that under Malkin, the burden shifted to the State to show by a preponderance of the evidence that the statements were not made intentionally or with reckless disregard for the truth. But she then ruled that the State had met its burden. That is, Judge Easter found that the statement had not been made intentionally or with reckless disregard for the truth. Consequently, she denied the motion to suppress evidence.
In addition, we note that Lepping contended that once the troopers' false material statements were removed from the affidavits, there would be no probable cause to support the search warrants. But, when applying for the warrants, the troopers alleged that they suspected Lepping of guiding without a license, outfitting without a license, and committing unlawful acts as a licensed transporter. Based on these offenses, we conclude that even if the challenged statement had been removed from each of the affidavits, there would still have been probable cause for the warrants.
We reach this conclusion because whether the hunters were residents was not material to, nor an element of, any of the three suspected offenses listed in the warrant. Lepping could have committed the first two offenses — guiding and outfitting without a license — regardless of the hunters' resident status because he provided services he was not licensed to provide.
As for the third offense, regardless of the hunters' resident status, there was ample evidence establishing probable cause that he committed unlawful acts as a transporter. The affidavit showed that Lepping allowed the Ashcrofts to hunt at an unregistered bait station. He accepted remuneration for the bait site, which only an outfitter can do. He provided the Ashcrofts with hunting equipment — bows and arrows — which only an outfitter can do. He allowed them to take two bears same day airborne over an unregistered bait site. He remained in the field with them while they hunted. He transported one bear hide in his Cessna and the other in his Piper. And he tagged one bear improperly when he tagged a bear Christopher Ashcroft had taken with Collette's bear tag.
We conclude that Judge Easter committed no error.
The sentence was not excessive
Lepping claims that his sentence is excessive. Primarily, he contends that Judge Easter erred when she found that, for sentencing purposes, the State had proven by a preponderance of the evidence that Lepping had committed all the counts that had been charged. He also takes exception to Judge Easter's having taken into account the many uncharged bad acts that the State presented at the sentencing hearing. He contends that his sentence is overly harsh considering that all he was doing was helping the State to eliminate black bears in a liberalized hunting area.
But he does not specifically address the terms or the length of his composite sentence, although he does suggest that it was clearly mistaken to sentence him to jail for "a longer term than for Class C Felonies." The only part of his sentence that he discusses in a more than cursory fashion is the condition of his probation that he "not be present with or accompany anyone in the field." He claims that this condition of probation unduly restricts his freedom, is not reasonably related to his rehabilitation, and does not protect the public.
The terms of Lepping's sentence
Lepping received a composite sentence of 700 days with 350 suspended, and was ordered to pay $45,000 in fines. He was placed on unsupervised probation for 10 years. His Cessna 206 and his Piper PA-18 were both ordered forfeited to the State. His sport fishing guide license was suspended for a number of years, and his hunting guide license and transporter guide license were both permanently revoked.
Among other things, as conditions of his probation, Lepping was prohibited from applying for a sport hunting or sport fishing license, and he could "not be present with or accompany anyone in the field."
Judge Easter's sentencing comments
When imposing the composite sentence, Judge Easter carefully addressed the Chaney criteria. She found that Lepping, at the age of 55, had a long history of misconduct as a fishing and hunting guide, and that rehabilitation was not a high priority. She found that he had not learned from his federal big game conviction and that he was purely motivated by greed. Based on his continuing violations of fish and game laws since 1996, she found he was a worst offender. She also found that Lepping's offenses were worse than the defendant's in Graybill v. State because Lepping not only had been convicted of more offenses, but had, unlike Graybill, committed his crimes for commercial reasons. She found that isolation was a high priority, primarily because of the difficulty of catching and prosecuting those who violate the fish and game laws. For the same reason, she found that deterrence of Lepping and others was also a high priority.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (setting out the sentencing factors a court must consider); AS 12.55.005 (codifying the Chaney factors).
695 P.2d 725 (Alaska 1985).
She recognized that because it is difficult for the State to enforce fish and game laws, Lepping "made a business decision to ignore the law, because it was a lucrative business and he knew that his chances of getting caught were low." She pointed out that "he took a risk, and despite being caught and prosecuted twice before[,] he repeatedly violated the law, hoping that he wouldn't get caught."
Lepping does not address any of these findings. In particular, he does not contest the worst offender finding, nor does he try to distinguish his case from Graybill. Graybill had an extensive history of fish and game violations. He was convicted of 20 misdemeanor fish and game violations, was found a worst offender, and was sentenced to a composite term of seven years' imprisonment, with five and one-half years suspended. The only substantial difference between the two cases — as Judge Easter pointed out — is that Lepping, unlike Graybill, committed his fish and game offenses for commercial gain.
Id. at 726.
Id.
Id. at 727.
Id. at 726.
In light of the sentence approved in Graybill, and considering the many similarities between Lepping's and Graybill's conduct, Lepping has not shown that his sentence was clearly mistaken.
Judge Easter's consideration of the acquittals and uncharged bad acts
As already mentioned, Lepping takes issue with Judge Easter for considering all of his charged offenses, even those of which he was acquitted, when imposing the sentence. And he also takes issue with her for considering the State's evidence of a number of prior instances of his uncharged bad conduct.
But with regard to the acquittals, in determining the seriousness of Lepping's conduct for sentencing purposes, Judge Easter "was not bound by the jury's acquittal[s] but was entitled to rely on [her] own view of the facts." That is, Judge Easter was entitled to interpret the evidence "less charitably than the jury." Lepping has not shown that Judge Easter's finding in this regard was clearly erroneous.
DeGross v. State, 816 P.2d 212, 217 (Alaska App. 1991).
Id.
As for the uncharged bad acts, a sentencing court "may consider evidence of prior uncharged misconduct at a defendant's sentencing if the misconduct is verified." Accordingly, Judge Easter could consider verified instances of Lepping's past misconduct, even though Lepping was "not convicted or even charged with the same." In the context of fashioning a sentence, "verified" misconduct is that which is "corroborated or substantiated by supporting data or information."
See Grandstaff v. State, 171 P.3d 1176, 1211 (Alaska App. 2007) (citing Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977), aff'd on reh'g, 576 P.2d 982, 984-85 (Alaska 1978)).
See Nukapigak, 562 P.2d at 701.
See id. at 701 n.2.
At Lepping's sentencing, the State called witnesses to verify the uncharged bad acts that Judge Easter considered when imposing sentence. There was evidence — video recordings — that shortly after his release from federal probation, Lepping harassed marine animals and a grizzly bear by "buzzing" them with an airplane. There was testimony that Lepping was captured on a trail camera at a remote site stealing gasoline from another big game guide's camp. There was evidence that Lepping was booking international clients in Germany for guided hunts in Alaska for substantial amounts of money at a time when he had no outfitter-guide license.
Other testimony established that Lepping had purposely destroyed evidence when he was investigated by federal wildlife agents by locking himself in his airplane and erasing GPS way points to prevent the authorities from tracking his movements. Witnesses also testified that Lepping poisoned wolves to support moose populations and that he told clients to falsely tag game.
Lepping was informed of this information and given the opportunity to deny it or to present contrary evidence of his own. Because the information was verified — that is, because it appeared trustworthy and Lepping was given the opportunity to deny it or to present contrary evidence — Lepping has not shown any error.
See id. at 701; see also Hinson v. State, 199 P.3d 1166, 1173-74 (Alaska App. 2008).
The probation condition that Lepping not be in the field with others
Lepping also contends that Judge Easter improperly restricted his liberty when she imposed the condition of his probation that he not be present with or accompany anyone in the field. This condition was part of every judgment of conviction. Specifically, Judge Easter wrote, "Do not apply for a sport/hunting guide license and not be present with or accompany anyone in the field."
A sentencing judge has broad authority to fashion special conditions of probation. But the conditions of probation must be "reasonably related to the rehabilitation of the offender and the protection of the public and ... not unduly restrictive of liberty." Conditions that restrict constitutional rights are subject to special scrutiny to determine whether the restriction serves the goals of rehabilitation of the offender and protection of the public. The particular condition at issue here is so broad that it potentially restricts family associations — thus, it is subject to strict scrutiny.
Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985) (quoting Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977)).
Diorec v. State, 295 P.3d 409, 412 (Alaska App. 2013); Thomas, 710 P.2d at 1019.
See Diorec, 295 P.3d at 414 ("Conditions of probation restricting family associations must be subjected to special scrutiny because they implicate important constitutional rights.").
At sentencing, Judge Easter explained that she imposed this condition because the evidence at trial showed that Lepping routinely tried to avoid the guiding regulations by claiming that he was helping his friends for free. If Lepping was taking people fishing and hunting for free, then he was not subject to the laws regulating guides. With this in mind, Judge Easter explained her reason for imposing this condition of probation:
I'm making that a condition of his probation because during the course of the trial and during the course of sentencing here today it was quite apparent that his M.O., if you will, was to profess that he was fishing or hunting personally and that these individuals, some of whom he had just met on the plane a couple of hours before, were his friends, and he was just doing this as a friend.Judge Easter also found "not credible" Lepping's explanations that he was, despite his profession as a guide, constantly giving people free guiding trips.
Judge Easter's intent was to prevent Lepping while he was on probation from again engaging in the fiction that he was not guiding, fishing, or hunting in violation of his probation, but was instead just helping a friend.
As a preliminary matter, we note that his condition is limited to "the field," and it appears that the word "field" is a term of art under the game regulations. Under AS 08.54.790(7), "field" is defined as "an area outside of established year-round dwellings, businesses, or other developments associated with a city, town, or village." In addition, "field" does not include "permanent hotels or roadhouses on the state road system or state or federally maintained airports."
5 AAC 92.990(a)(58) (adopting the definition of "field" from AS 08.54.790).
With this in mind, the record shows that Lepping has a long history of fish and game guide violations, and Judge Easter could reasonably conclude that to prevent Lepping from continuing to violate the law, and to prevent the continuing illegal harvest of State property, she had to prevent him from being present with or accompanying people in the "field," where guides go to make money.
But even so, because this condition totally restricts Lepping's association with friends and family, we believe that this condition of probation is not sufficiently limited to reasonably serve the goals of rehabilitation of the offender and protection of the public.
Accordingly, we remand this case to the district court to confirm what constitutes the "field," and to more narrowly define the people whom Lepping may not accompany there. If necessary, the district court may hold a hearing to determine what friends or family Lepping may accompany, and under what conditions.
Forfeiture of Lepping's two airplanes
As already mentioned, Judge Easter ordered the two airplanes Lepping used to be forfeited to the state. She had the authority to do so under AS 08.54.720(f)(4). Under this statute, all guns, fishing tackle, boats, aircraft, automobiles, or other vehicles, camping gear, and other equipment and paraphernalia used in, or in aid of, a violation of subsection (a) of the statute may be seized by persons authorized to enforce this chapter and may be forfeited to the state as provided under AS 16.05.195.
Specifically, under AS 16.05.195(a)(1), if a person is convicted in a criminal proceeding of a violation of Title 16 or AS 08.54, the aircraft used in, or used in aid of, a violation of Title 16 or AS 08.54, or a regulation adopted under Title 16 or AS 08.54, may be forfeited to the state.
Lepping was convicted of numerous unlawful acts under AS 08.54.720(a) during which he used either the Cessna or the Piper airplanes (Counts 1, 2, 4, 5, 17, and 18). He was also convicted for violating regulations adopted under AS 08.54 (Counts 32 and 37) and Title 16 (Count 41).
We note that Lepping does not raise a separate argument claiming that Judge Easter erred when she ordered the forfeiture of his Cessna and his Piper airplanes. He barely mentions his airplanes at all in the sentencing section except to state that they were valued "at over $400,000." To the extent he generally claims that his sentence is excessive, he may be claiming that forfeiture of the two airplanes was excessive because it was grossly disproportionate to the fish and game offenses he was convicted of violating.
But even if his valuation of the airplanes is accurate — he fails to identify any place in the record where the value of either airplane was established — Lepping could have been ordered to pay more than $300,000 in fines. We conclude that the forfeiture of airplanes valued at $400,000 was not grossly disproportionate in light of the maximum aggregate fines authorized by the legislature for Lepping's criminal offenses.
See, e.g., McCormick v. Anchorage, 999 P.2d 155, 169 (Alaska App. 2000).
Some parts of Lepping's briefs are difficult to understand, and he may have intended to raise claims other than the ones we have discussed in this decision. To the extent that he is attempting to raise other claims, we conclude that these claims are inadequately briefed.
See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (issues that are only cursorily briefed are deemed abandoned); Wilkerson v. State, Dep't of Health & Soc. Servs., 993 P.2d 1018, 1021-22 (Alaska 1999) (the fact that a litigant is appearing pro se does not relieve the litigant of the obligation to brief the issues he or she has raised); see also A.H. v. W.P., 896 P.2d 240, 243-44 (Alaska 1995) (waiving for inadequate briefing majority of fifty-six arguments raised by pro se appellant).
Conclusion
We AFFIRM Lepping's convictions and his sentence. We REMAND the case to the district court for a hearing on the probation condition that Lepping not be present with or accompany anyone in the field. We do not retain jurisdiction of this case.