State v. DomangueState v. Domangue
Richard Domangue was charged by bill of information with numerous counts, including in count 1, thirty counts of possession of untagged alligators and skins (violations of
The jury found defendant not guilty on count 1 and guilty on counts 3 and 4. The court sentenced defendant on count 3 to serve a term of six months imprisonment in the parish jail and to pay a fine of $6000. The court suspended execution of the sentence and placed defendant on unsupervised probation for one year with the following
In reviewing the record for patent error, we have noticed that the statutory citation included in the bill of information for Counts 3 and 4 is inaccurate. The state cited
FACTS
On September 10, 1991, agents of the Enforcement Division of the Louisiana Department of Wildlife and Fisheries executed a search warrant at Domangue Fur House in Terrebonne Parish. The warrant was secured after defendant refused to give two of the agents an alligator he purchased from a hunter which had the hunting tag tied on rather than attached as required by regulations of the Department. The agents wanted the alligator for use in their investigation of the hunter. Defendant told the agents that Noel Kindler (a project coordinator with the Refuge Division of the Department of Wildlife and Fisheries) had told him it was legal for the hunter to tie the tag on if it fell off. When the agents returned to execute the search warrant, they discovered three alligator hides which did not have a tag, three loose tags which were not attached to any alligator, and forty-one hides which had the tag tied on. According to Lt. Roy Chauvin, the Enforcement Division supervisor for Terrebonne Parish, his agency‘s position is that it is a violation of the regulations to tie on the tag. One of the three hides which did not contain a tag formed the basis for the state‘s prosecution of defendant in count 1.
The agents also found twenty-four hides which the agents determined were not skinned in compliance with the regulations. One of these improperly skinned hides was introduced into evidence. It was identified as having tag no. 1019049 and measuring 9‘5“. Major Inspector Tom Candies of the Enforcement Division (a state witness) and Ted Joanen, a biologist with the Department and the programs manager for the alligator program in Louisiana (a defense witness), examined this hide and testified that it had not been skinned properly under the regulations. Three of the improperly skinned hides had a separate tag which read “no flap.” According to defendant‘s son, who testified as a witness for the defense, whenever he was aware that a hide had been skinned improperly, he put a “no flap” tag on the hide. The improperly skinned hide which was introduced into evidence did not have a “no flap” tag.
Defendant, his son, and several other people were present when the agents arrived to search the facility. Defendant told the agents that he currently had approximately 900 hides at the facility and that all of them were being processed to sell to foreign markets. Defendant also said that agents from the Refuge Division were scheduled to inspect the hides on the following day in anticipation of shipment. The state also introduced correspondence and other records which showed that defendant, on behalf of Domangue Fur House, Inc., was negotiating with companies in Japan and France to sell the hides. According to Johnny Collins (an agent with the United States Fish and Wildlife Service) and Ted Joanen, alligators in Louisiana are protected under the CITES treaty (Convention on International Trade and Endangered Species) signed by the United States along with 120 other nations. In an effort to promote conservation of alligators, the CITES treaty requires the State of Louisiana to comply with certain requirements if it wants to have a hunting season for alligators. In compliance with the federal guidelines, the Louisiana Department of Wildlife and Fisheries adopted regulations
FAILURE TO CHARGE A CRIME IN COUNT 4
In reviewing the record for patent error, we have discovered the crime charged in count 4, attempting to sell an improperly skinned alligator hide, is not a crime under the statute. In one of the motions to quash, defendant argued count 4 should be quashed because
A crime is that conduct which is defined as criminal in the Louisiana Criminal Code, or in other acts of the legislature or in the Louisiana Constitution.
The statute upon which the state relies as its basis for count 4 at the time of the instant prosecution provided as follows:
A. No person shall take or possess the eggs of alligators, or alligators, or their skins in any parish of this state except as provided for by rules and regulations of the commission. Alligators or their skins shall be tagged as provided for by rules and regulations of the commission. The possession or sale of untagged alligators or their skins is prohibited. No person shall take, possess, or sell alligators or their skins under four feet in length, except as provided for by rules and regulations of the commission. Upon approval by the commission, a special permit shall be issued to take, possess, or sell the eggs of alligators or live alligators under four feet in length.
B. Violation of this Section is a class 7-A violation.
La.R.S. 56:261 (as amended by 1991 La.Acts, No. 578, § 1; effective Sept. 6, 1991) (emphasis added).
Although this statute prohibits the “sale” of untagged alligators or skins and the “possession” of skins other than as provided by the regulations, the statute does not specifically prohibit the sale or attempt to sell hides which were not skinned in compliance with the rules and regulations. The state relies on the following regulations of the Department of Wildlife and Fisheries as its statutory support for count 4:
5. Special instructions will be issued to the holders of alligator hunting licenses immediately prior to the annual open season describing detailed methods regarding the skinning of alligators. Alligator farmers shall adhere to the annual skinning
requirements when skinning farm raised alligators. Alligators not skinned in compliance with the established specific requirements shall be considered illegal and shall be confiscated by the Department. 6. It shall be a violation for any alligator hunter, alligator farmer, fur buyer, or fur dealer who knowingly attempts to sell an alligator hide that was not skinned in accordance with the established specific requirements. Violation of this part is a class 7A violation as described in Title 56.
Alligator Regulations, Sections (F)(5) & (6), 16 La.Reg. 1070 (Dec. 20, 1990) (to be codified at
While the regulations attempt to criminalize the attempt by a fur dealer (such as Domangue Fur House, see
SUFFICIENCY OF THE EVIDENCE
In two related assignments of error (assignments of error numbers 2 and 3), defendant contests the sufficiency of the state‘s evidence that he knowingly possessed an improperly skinned alligator hide.3 In reviewing claims challenging the sufficiency of the evidence, this Court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also
The statute under which defendant was prosecuted in count 3 provides, in pertinent part: “No person shall take or possess ... alligators, or their skins ... except as provided for by rules and regulations of the commission.”
Thus, the state was required to prove (1) that defendant possessed the skin of an alligator which was not skinned in compliance with the regulations, and (2) that defendant had general intent to commit the offense. See generally State v. Husband, 437 So.2d 269, 271 (La.1983); State v. Badie, 626 So.2d 46, 47 (La.App. 1st Cir.1993) (summarizes the elements of the offense of possession of a firearm by a convicted felon, which contains language similar to the instant offense). Actual physical possession of the hide is not required. Constructive possession satisfies the possessory element of the offense. Constructive possession is a legal term describing the situation in which a person who is not in actual physical possession of an object can nevertheless be considered in legal possession of the item if it is subject to his dominion and control. State v. Hills, 451 So.2d 1346, 1347 (La.App. 1st Cir.), vacated in part on other grounds, 457 So.2d 1183 (La.1984). General intent is defined as being “present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”
In closing argument, defense counsel conceded that the alligator hide bearing tag no. 1019049 was skinned improperly. Major Inspector Candies and Ted Joanen both testified that the hide was improperly skinned. Thus, we must decide if the state presented sufficient evidence that defendant possessed the improperly skinned hide with the requisite intent.
The state‘s evidence did not explain defendant‘s connection with the company, other than indicating that defendant was present when the search was conducted. The defense introduced copies of licenses issued to Domangue Fur House, Inc., which listed defendant as being the company‘s president. Testifying as a defense witness, defendant‘s son, Archie Domangue, said the company had been in business for about thirty years and was a licensed resident fur dealer, authorized to buy and sell alligator hides. Archie also said his father‘s role in the business was in the office where he paid the hunters for the skins, distributed the cash, and made offers to resell the hides. Archie, as the vice president and manager of the company, was in charge of the “outside.” He helped the hunters unload the alligators, checked the hunters’ licenses, made sure the alligators were tagged, measured the alligators, prepared the purchase tickets, and brought the tickets to defendant.
Archie estimated that in an average year the business bought and resold between 5000 and 8000 alligators. Most of the alligators were purchased whole and were skinned at the facility. Approximately 90 employees worked for the company, including about 20 to 25 skinners who worked 18 to 20 hours each day during the first ten to twelve days of the alligator hunting season. Ted Joanen, the biologist from the Department of Wildlife and Fisheries who was programs manager for the alligator program in Louisiana, explained that approximately 75 percent of the 25,000 alligators killed during the alligator season in Louisiana are killed during the first ten days of the season. In 1991, the season opened on August 31. Joanen also indicated that 75 to 80 percent of the alligators taken are sold whole to the dealers because of the importance of selling the meat.
Archie testified that he instructed the skinners in the proper technique to use in skinning the alligators and that he put pictures “all over the wall to indicate such.” During the search, a copy of the diagram issued with the 1991 skinning instructions was found taped on the wall. According to Archie, there was no advantage for skinners to skin the alligator improperly because they knew it would be a loss for the company. Whenever
The state presented no evidence concerning where the improperly skinned hide (tag no. 1019049) was found. According to Archie, the alligator was sold whole to the company on September 6, 1991, and would have been skinned at the facility. The hunter confirmed that he sold the alligator whole. The hide was 9‘5” and, thus, more valuable than shorter hides. It did not have a “no flap” tag; and only three of the improperly skinned alligators found during the search had such a tag.
During the search, defendant told the agents he was in the process of selling all of the hides he had at that time to a foreign company. Correspondence and other records of the company showed defendant was negotiating with companies in Japan and France. The Refuge Division was scheduled to inspect the hides on the following day in anticipation of the shipment. Joanen and Noel Kindler (the project coordinator for the Fur and Refuge Division) testified that their division inspects each alligator hide prior to shipment4 and that defendant had a history of cooperating with the Department during these inspections. During the inspection, the Fur and Refuge agents check the tag and the manner of skinning on every alligator. If they find an improperly skinned hide, they seize the hide but do not issue any citations. According to Joanen, defendant did a good job of following the rules and regulations issued by the agency. Joanen testified that it would be impossible for defendant to sell an improperly skinned hide without his division first inspecting it. Both Joanen and Archie Domangue said defendant knew each hide would be inspected and knew an improperly skinned hide would be confiscated. Domangue Fur House regularly set aside any alligator hides which were noticed to have been skinned improperly. Joanen maintained that the Department instructed hunters and skinners who had skinned an alligator improperly to either turn the skin in at that time or wait until the Refuge Division picked up the hide at the end of the season. Archie testified that, although an improperly skinned hide could not be sold and would be confiscated, his company processed it like a regular hide so it would not rot. He did not want the hide to rot because he was required by the Department to account for each tag.5 In addition to the inspection by the Fur and Refuge Division, agents with the United States Fish and Wildlife Service also inspected each shipment before export. During this inspection, only about five percent of the hides would be individually inspected by the federal agents.
Under these facts, we conclude the state failed to prove the elements of the offense. Merely because defendant was an officer in the business does not make him criminally responsible for the actions of all of his employees. See State v. Chapman Dodge Center, Inc., 428 So.2d 413, 416 (La.1983). The state failed to prove that defendant constructively possessed the improperly skinned hide. The state also presented no testimony to contradict the defense evidence which showed the alligator was purchased whole after the season opened and was later skinned at defendant‘s facility. All indications
CONVICTIONS AND SENTENCES REVERSED; DEFENDANT ORDERED DISCHARGED.