STATE of Minnesota, Respondent, v. Roger Benedict SCHMID, Appellant.
No. A13-0337.
Supreme Court of Minnesota.
Feb. 25, 2015.
859 N.W.2d 816
By enacting
For these reasons, I respectfully dissent.
GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice Dietzen.
WRIGHT, Justice (dissenting).
I join in the dissent of Justice Dietzen.
STATE of Minnesota, Respondent, v. Roger Benedict SCHMID, Appellant.
No. A13-0337.
Supreme Court of Minnesota.
Feb. 25, 2015.
859 N.W.2d 816
Daniel M. White, Scott M. Flaherty, Briggs and Morgan, P.A., Minneapolis, MN; and John J. Neal, Willenbring, Dahl, Wocken & Zimmerman, PLLC, Cold Spring, MN, for appellant.
OPINION
LILLEHAUG, Justice.
A Department of Natural Resources officer encountered Roger Schmid sitting in a camouflaged ATV blind in an open field, wearing blaze orange, and possessing a loaded gun. Schmid was charged and convicted under
On review by our court, the first issue is whether to define “take” by its narrower common law definition or by the broader statutory definition of “taking.” The second issue is whether Schmid‘s actions constituted a “take” under the applicable definition. We hold that the statutory definition of “taking” applies to “take,” and under that definition, a jury could reasonably conclude that Schmid was “pursuing” or “attempting to take” deer, and thus violated
Chad Thesing, a DNR enforcement officer, received a complaint about hunting activities on the evening of November 12, 2011. The next morning, while he investigated the complaint, Officer Thesing observed Schmid sitting on his ATV in an open field. Schmid had raised a folding camouflage blind on the ATV. Officer Thesing approached Schmid‘s blind and saw that Schmid was wearing blaze orange clothing. Schmid told Officer Thesing that he had killed a deer the previous evening. Discovering that Schmid had a loaded gun with him on the ATV, Officer Thesing performed a regulatory check of Schmid‘s license and permit.
Schmid possessed an expired permit to hunt from a motor vehicle. He also possessed what appeared to be a valid hunting license. However, Officer Thesing noted that the site validation tag was missing from the license.1 Officer Thesing informed Schmid that a hunter may only tag multiple deer if part of a hunting party or possessing bonus tags. Because Schmid was hunting alone and did not possess a bonus tag, Officer Thesing informed him that he was hunting with an invalid license. Officer Thesing told Schmid that he would “give him a break” and write him a citation for a lesser charge. Schmid immediately became hostile. According to Officer Thesing, Schmid was angry to be charged with “a chicken shit violation.”2 Officer Thesing then advised Schmid that he was going to write a citation for the more serious charge.
At that point, according to Thesing, Schmid gave several different reasons as to why he was in the field.3 He first said that he was part of a hunting party. Officer Thesing questioned that story, as Schmid‘s claimed hunting partners did not typically hunt.4 Schmid then told Officer Thesing that he was not hunting, but rather was out “nature watching.” Then, Schmid claimed that he was coyote hunting. Not believing any of Schmid‘s assertions, Officer Thesing issued Schmid a citation for hunting deer without a valid license, in violation of
Before trial, Schmid moved the district court to dismiss the charge, arguing that there was no evidence that he was “taking” a deer, which he defined by reference to
At trial, Schmid testified that he was in the field to pick up a deer that he had shot just before dark the previous day. He was unable to load it onto his ATV, so he tagged it and left it in the field. He testified that he came out the next morning to try again to load it, but was unsuccessful. So, he decided to wait until his
Schmid testified that he wore blaze orange for safety reasons and because the law required him to do so. See
In response, Officer Thesing testified that at no point did Schmid explain that he was in the field waiting to transport a tagged deer carcass. Officer Thesing recalled that he observed a gut pile near Schmid, but did not observe a carcass.
The district court instructed the jury that under Minnesota law “a person may not take a deer without a valid license,” and that it needed to determine whether Schmid “was taking a deer.” The court defined “taking” by its statutory definition under
Schmid moved for a judgment of acquittal, arguing for the first time that the statutory definition of “taking” did not apply to “take” in
Schmid appealed his conviction, and the court of appeals affirmed in a published decision. State v. Schmid, 840 N.W.2d 843 (Minn.App.2013). Like the district court, the court of appeals used the statutory definition of “taking” to define “take.”5 Id. at 845. The court of appeals rejected Schmid‘s argument that one must chase deer in order to “pursue” them. Id. at 846-47. The court of appeals reasoned that “it would be silly” to limit pursuit to a physical chase, “especially in the deer-hunting context.” Id. at 846. Citing hunting articles and books, the court determined that “pursuit” in the deer hunting context had a particular definition: “entering deer habitat, anticipating a point of interception, and waiting to take a shot.” Id. at 847. The court of appeals held that “entering a deer-hunting area and sitting in a blind armed with a deer-hunting weapon loaded with deer-hunting ammunition is ‘pursuing’ deer within the meaning of section 97B.301.” Id.
We granted Schmid‘s petition for review.
II.
We consider first the meaning of the word “take.” Schmid argues that “take” in
A.
In interpreting a statute, we must first determine “whether the statute‘s language, on its face, is ambiguous.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001). A statute is unambiguous if, as applied to the facts of a case, it is not “susceptible to more than one reasonable interpretation.” AAA. v. Minn. Dep‘t of Human Servs., 832 N.W.2d 816, 819 (Minn.2013). If a statute is unambiguous, then we “must apply the statute‘s plain meaning.” Larson v. State, 790 N.W.2d 700, 703 (Minn.2010). We may use the canons of interpretation in
The statute before us is unambiguous, as only one reasonable interpretation exists: “take” is defined by the definition of “taking” in the game and fish laws.6 By the rules of grammar, “take” and “taking” share the same underlying definition. “Take,” as used in
Indeed, at common law, “take” and “taking” did not have substantively different definitions; both had the basic definition of reducing an animal to possession or control.7 See Babbitt v. Sweet Home Ch. of Cmtys. for a Great Ore., 515 U.S. 687, 717-18 (1995) (Scalia, J., dissenting); 2 William Blackstone, Commentaries on the Laws of England 410 (1848) (“[T]he property of such animals ferae naturae ... with the right of pursuing, taking, and destroying them: which is vested in the king alone, and from him derived to such of his subjects as have received the grants of a chase, a park, a free warren, or free fishery.” (emphasis added)). When the Legislature modified the definition of “taking” from the common law, so too did it modify the definition of “take.”
Even if there remained a question as to the definitional relationship between “take” and “taking,” we do not write on a clean slate, as we have interpreted a similar statute. In State v. O‘Heron, game wardens observed the defendants sitting in a duck blind in open water. 250 Minn. 83, 84, 83 N.W.2d 785, 786 (1957). The defendants were charged under the following statute:
It shall be unlawful to take migratory waterfowl and rails in Open water when the hunter is not within a Natural growth of weeds, rushes, flags or other vegetation sufficient to Partially conceal the hunter or boat, or from a permanent artificial blind or sink box built in public waters, provided pursuing or shooting wounded birds in open water in a boat or canoe is permitted.
Id. at 84, 83 N.W.2d at 786 (emphasis added) (citation omitted). The statute defined “taking” as:
[P]ursuing, shooting, killing, capturing, trapping, snaring and netting wild ani-
mals, and all lesser acts such as disturbing, harrying or worrying or placing, setting, drawing or using any net, trap or other device used to take wild animals, and includes every attempt to take and every act of assistance to any other person in taking or attempting to take wild animals.
Id. at 85, 83 N.W.2d at 786 (citation omitted). We applied the statutory definition of “taking” to define “take.” Id. at 85, 83 N.W.2d at 786. We then upheld the conviction because the charging statute was “violated equally by attempting to take waterfowl or by actually killing waterfowl.” Id. at 86, 83 N.W.2d at 787. Although the defendants did not actually kill any waterfowl, their actions were an unlawful “attempt to take” waterfowl.
Schmid argues that the issue of whether the statutory definition of “taking” applies to “take” was not squarely before us in O‘Heron. It is true that we did not explain our reasoning for applying the definition of “taking” in O‘Heron. But the definition of “take” was necessary to our holding. See id. at 85-86, 83 N.W.2d at 787.
In 1986, almost 30 years after O‘Heron, the Legislature enacted
Thus, applying both the rules of grammar and the long-standing precedent of O‘Heron, the only reasonable interpretation of “take” in
B.
An examination as a whole of what the Legislature has designated the “game and fish laws,”
Many of the deer hunting statutes apply the statutory definition of “taking” to “take.” For example, a person may only “take” deer with certain types of firearms.
The high court of our sister state, another hotbed of deer hunting, reached the same conclusion when examining a statute without a definition of “take” or “taking.” The Wisconsin Supreme Court held that the context of “taking” throughout Wisconsin‘s game laws compelled it “to conclude that ‘take’ or ‘taking’ includes those activities delineated under the definition of ‘hunting’ in [the statute], such as killing, shooting, shooting at, trapping, and pursuing.” See Wis. Citizens Concerned for Cranes & Doves v. Wis. Dep‘t of Natural Res., 270 Wis.2d 318, 677 N.W.2d 612, 627-28 (2004). The same is true here.
Beyond deer hunting, the Minnesota game and fish laws use “take” in several different ways. In some statutes, “take” clearly requires the animal to be dead.8 In other statutes, “take” clearly means something different.9 Other statutory sections have “taking” or “hunting” in their headnotes but use “take” in the statutory language. See
It may initially appear that the various uses of “take” are inconsistent, such that the presumption of consistent usage provides little guidance. However, each of the uses of “take” falls within the definition of “taking.” See
Schmid argues that such an application would result in another hunting statute,
Because of the use of “taking” to define “take” throughout the game and fish laws, we again conclude that there is but one reasonable interpretation of
III.
Because we hold that the statutory definition of “taking” applies to “take,” we must next determine whether Schmid‘s actions violated the statute. We hold that, under the statutory definition of “taking,” a jury could reasonably conclude that Schmid took deer by “pursuing” and “attempting to take” deer and therefore violated
A.
The game and fish laws do not define “pursue.” In this context, “pursue” means “[t]o follow in an effort to overtake or capture.” The American Heritage Dictionary 1431 (5th ed.2011).
Schmid took steps that in the aggregate constituted “pursuing” deer. Wearing blaze orange, he drove an ATV into a field, disguised himself in a blind, and possessed a loaded gun. And the jury could well have found probative Schmid‘s shifting explanations for his presence in the field: that he was, variously, party hunting, nature watching, coyote hunting, and waiting to load a carcass. Other courts have held that similar conduct constituted “pursuing.” See Passmore v. State, 253 Ga.App. 901, 561 S.E.2d 123, 124 (2001) (holding that a defendant who “turned the truck around and went back to the field [in order to shoot the deer]” was pursuing the deer); State v. Hall, 751 S.W.2d 403, 406 (Mo.Ct. App.1988) (holding that a defendant was pursuing deer when he was in a truck with a spotlight panning over a field, and was in possession of a loaded weapon).10 Thus, Schmid was “pursuing” deer.
Like “pursue,” “attempt” is not defined by the game and fish laws. It is, however, defined in the criminal code as “an act which is a substantial step toward, and more than preparation for, the commission of the crime....”
In State v. O‘Heron, we upheld a conviction for taking waterfowl in open water as an “attempt to take.” 250 Minn. 83, 85-86, 83 N.W.2d 785, 786-87 (1957). In that case, the defendants sat in a duck blind on the edge of a lake. Id. at 84, 83 N.W.2d at 786. Such actions constituted an attempt to take because the defendants took a substantial step toward taking ducks; they entered the ducks’ territory with the means to immediately shoot them. Id. at 86, 83 N.W.2d at 787; see also Blair v. State, 16 Ark.App. 1, 696 S.W.2d 755, 758 (1985) (holding that the evidence was sufficient to convict the defendant of attempting to take deer when he was found with dogs in a hunting area and possessed a gun loaded with buckshot). Thus, Schmid was “attempting to take” deer under the definition of “taking.”
Nonetheless, Schmid argues that the State erred when it charged him under
IV.
For these reasons, we affirm Schmid‘s conviction for taking deer without a license under
Affirmed.