State v. Brian Calder Kerr, 44740

Background

On Oct. 15, 2015 Kerr shot a bull elk and then trespassed onto private, cultivated land to retrieve it.
A Fish and Game officer cited Kerr for misdemeanor trespass to retrieve wildlife (I.C. § 36-1603(a)); Kerr pled guilty before the magistrate.
The Idaho Department of Fish and Game confiscated the elk under I.C. § 36-1304(b); magistrate ordered confiscation and later issued a memorandum decision explaining that Kerr’s unlawful conduct in possessing the elk supported confiscation.
Kerr sought reconsideration and appealed to the district court, which affirmed the magistrate, reasoning that Kerr unlawfully took the elk either by trespassing to possess it or by pursuing it onto private land (pursuit being within the statutory definition of “take”).
Kerr appealed to the Court of Appeals, arguing primarily that (1) an animal can be “taken” only once (when mortally wounded) so later trespass could not render the original taking unlawful, and (2) the confiscation statute is vague.
The Court of Appeals affirmed, holding the statutory definition of “take” covers multiple acts (shooting, pursuing, possessing), and that unlawful conduct in any part of the taking process permits confiscation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an animal can be “taken” more than once under I.C. § 36-202(i)	State: “Take” includes multiple acts (pursue, possess, shoot); statute contemplates various methods of taking.	Kerr: Taking completed when he mortally wounded the elk by shooting; cannot be taken again.	Held: “Take” unambiguously includes multiple acts; Kerr took the elk by shooting and again by pursuing/possessing.
Whether confiscation under I.C. § 36-1304(b) requires that the unlawful act contribute to the taking	State: Confiscation authorized where unlawful conduct is part of the taking process.	Kerr: If initial taking was lawful, subsequent trespass cannot retroactively make it an unlawful taking.	Held: “Taken unlawfully” means unlawful act contributed to the taking; trespass in retrieving/possessing the elk made the taking unlawful and supported confiscation.
Whether pursuing the elk onto private land constitutes a “take” under I.C. § 36-202(i)	State: Pursuit is within the statutory definition of “take.”	Kerr: Disputed that pursuit after shooting constitutes a separate takings event relevant to confiscation.	Held: Pursuit is covered by the definition of “take”; district court alternatively upheld confiscation on that basis.
Whether I.C. §§ 36-1304(b) and 36-202(i) are unconstitutionally vague	Kerr: Statutes void for vagueness facially and as applied.	State: Issue was not preserved; statutes are clear.	Held: Court found statutes’ plain language sufficient and not vague; declined to resolve preservation question and affirmed.

Key Cases Cited

State v. Korn, 148 Idaho 413 (review standard for district court affirming magistrate) (discusses appellate standard from magistrate to district to appellate court)
State v. Trusdall, 155 Idaho 965 (procedural rule that appellate courts review district court decision, not magistrate directly)
State v. Reyes, 139 Idaho 502 (statutory construction: appellate court free review of statute application)
State v. Burnight, 132 Idaho 654 (plain statutory language controls; no construction when unambiguous)
State v. Escobar, 134 Idaho 387 (give statute its plain, rational meaning; avoid extraneous interpretation)
State v. Beard, 135 Idaho 641 (rules for ascertaining legislative intent when statute ambiguous)
State v. Doe, 140 Idaho 271 (disfavor constructions that lead to absurd results)
State v. Knutsen, 158 Idaho 199 (vagueness challenge standard)