Summary
The North Dakota Supreme Court considered consolidated appeals involving convictions for unlawfully hunting, taking, and possessing big game. The court held that the defenses of depredation, defense of property, excuse, and mistake of law were unavailable or unsupported under the circumstances, but reversed an $8,500 restitution order because the State did not prove the deer values by a preponderance of the evidence. The criminal judgments were affirmed, and the restitution issue was remanded for a further hearing.
Topics
Practice areas
Questions Presented
- Whether the trial court properly excluded evidence supporting the statutory defense of depredation.
- Whether the defendants were entitled to present a constitutional defense-of-property theory.
- Whether the defendants were entitled to jury instructions on excuse and mistake of law despite the strict-liability nature of the charged offenses.
- Whether the trial court properly ordered Dethloff to pay $8,500 in restitution without evidence establishing the applicable value of each deer.
Holdings
- The statutory depredation defense does not apply to killing deer because deer are classified as big game animals, not wild fur-bearing animals.
- The defendants waived their constitutional defense-of-property claim by failing to provide persuasive authority and reasoned analysis.
- The defendants were not entitled to an instruction on excuse because the defense-of-property justification on which they relied concerns force against another person, not physical action against deer.
- The defendants were not entitled to mistake-of-law instructions because the charged offenses were strict-liability offenses and the record contained no evidence that either defendant reasonably relied on an authorized statement of law or held the required good-faith belief.
- The trial court abused its discretion by ordering $8,500 in restitution because the State failed to prove the value of the deer by a preponderance of the evidence.
Key quotations
“A statute establishing a strict liability offense, however, does not always preclude affirmative defenses.” (800 N.W.2d at 316)
“A defendant may be entitled to a jury instruction on excuse and his conduct may be excused if the evidence shows the defendant believed the facts were such that his conduct was necessary and appropriate for any of the purposes that would establish a justification or excuse under N.D.C.C. ch. 12.1-05, even though his belief was mistaken.” (800 N.W.2d at 317)
“Based on the record, we conclude the State failed to prove the amount of restitution by a preponderance of the evidence.” (800 N.W.2d at 320)
Factual background
Kleppe admitted shooting in the general direction of deer without a license and during the off-season, and game wardens found multiple dead deer on his property. Dethloff was charged with unlawfully taking and possessing seventeen deer and asserted that the deer were damaging or consuming feed and other property. Both defendants sought to present depredation, defense-of-property, excuse, and mistake-of-law theories. Dethloff's restitution was set at $8,500, calculated at $500 for each deer without evidence concerning the animals' age, size, or condition.
Procedural history
The State charged Kleppe with unlawfully hunting and shooting big game and charged Dethloff with seventeen counts of unlawfully taking and possessing deer. The trial courts granted or revised motions in limine to preclude depredation and defense-of-property evidence, declined to give requested instructions on excuse and mistake of law, and accepted conditional guilty pleas preserving the defendants' appellate issues. Dethloff was also ordered to pay $8,500 in restitution. The North Dakota Supreme Court affirmed the criminal judgments, reversed the restitution order, and remanded for a further restitution hearing.
Remand instructions
Remand for a further restitution hearing and a restitution order consistent with the opinion, including proof of the applicable value of the deer under the administrative valuation rules.