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State v. Kerr

Court of Appeals of Idaho

November 30, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
BRIAN CALDER KERR, Defendant-Appellant.

         2017 Opinion No. 64

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Valley County. Hon. Jason D. Scott, District Judge; Hon. Lamont C. Berecz, Magistrate.

         Decision of the district court, on intermediate appeal from the magistrate, affirming memorandum decision of the magistrate, affirmed.

          Stewart Taylor & Morris, PLLC; Daniel W. Bower, Boise, for appellant. Daniel W. Bower argued.

          Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent. Kale D. Gans argued.

          GUTIERREZ, Judge

         Brian Calder Kerr appeals from the district court's decision affirming the magistrate's memorandum decision, which determined that confiscation by the Idaho Department of Fish and Game (Fish and Game) of a bull elk Kerr killed was proper. The primary issue in this case is the definition of the phrase "unlawfully take, " as used in the confiscation statute in Idaho's Fish and Game Code. For the following reasons, we affirm.

         I.

         FACTS AND PROCEDURE

         On October 15, 2015, Kerr shot a trophy bull elk and then trespassed onto private land to retrieve it. A Fish and Game officer issued him a misdemeanor citation for trespass to retrieve wildlife on cultivated land without permission from the landowner. Kerr pled guilty before a magistrate to trespass to retrieve wildlife, Idaho Code § 36-1603(a). However, a dispute arose over whether Fish and Game should be allowed to confiscate the elk under I.C. § 36-1304(b), as it was unclear as to whether illegally retrieving an elk could render the "taking" of the elk unlawful. The magistrate ordered that the elk be confiscated by Fish and Game.

         Kerr requested reconsideration of the confiscation issue, and the magistrate granted Kerr permission to brief the issue. The magistrate issued a memorandum decision concluding that confiscation was appropriate. The magistrate reasoned that an unlawful taking had occurred because Kerr committed an unlawful act, namely trespass, in order to possess the elk, with possession falling under the I.C. § 36-202(i) definition of "take." The magistrate declined to make factual findings regarding where the elk was actually shot because it was unnecessary for purposes of the magistrate's analysis. Kerr appealed to the district court.

         In affirming the magistrate's memorandum decision, the district court held that the confiscation statute applied because Kerr acted unlawfully in taking possession of the elk. The district court reasoned, alternatively, that Kerr unlawfully took the elk by pursuing it onto private land before it expired, as pursuit is covered by the statutory definition of "take." The district court further held that Kerr was procedurally barred from raising the issue of whether the confiscation statute was unconstitutionally vague as applied to him. Kerr again appeals.

         II.

         STANDARD ...


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