State Of Utah v. Steele

• Decision Date: 09 July 2010
• Docket Number: No.071600039,No. 20090417-CA,20090417-CA,071600039
• Citation: 2010 UT App 185
• Parties: State of Utah,Plaintiff and Appellee, v. Roger Howard Steele,Defendant and Appellant.
• Court: Utah Court of Appeals

2010 UT App 185

State of Utah, Plaintiff and Appellee,
v.
Roger Howard Steele, Defendant and Appellant.

No. 20090417-CA
No.071600039

Utah Court Of Appeals

FILED: July 9, 2010

Gary W. Pendleton, St. George, for Appellant

Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee

This opinion is subject to revision before publication in the Pacific Reporter.

For Official Publication

Sixth District, Kanab Department

The Honorable David L. Mower

The Honorable Marvin Bagley

OPINION

Before Judges Davis, McHugh, and Roth.

ROTH, Judge:

¶1 Defendant Roger Howard Steele appeals his conviction for wanton destruction of protected wildlife, a third degree felony, see Utah Code Ann. § 23-20-4(1), (3)(a)(ii) (2003), ¹ for taking² a trophy animal without a valid hunting permit. Defendant challenges the trial court's conclusion that his hunting permit was void as well as the court's decision to give a mistake of law

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jury instruction and further alleges that his right to a speedy trial was violated.³ We affirm.

BACKGROUND

¶2 In 2003, the Division of Wildlife Resources (the Division) offered a drawing for Cooperative Wildlife Management Unit (CWMU) hunting permits for a special week-long all-expenses-paid trophy hunt on private land: the "Once-in-a-Lifetime Hunt." The CWMU program gives private landowners throughout Utah the incentive to manage wildlife on their properties while giving hunters a unique opportunity to hunt on private lands where they are more likely to harvest mature trophy animals. Each year, the Division gives ninety percent of the CWMU hunting permits that are available for each unit to the landowner for distribution as he or she sees fit; the Division then distributes the remaining ten percent by public drawing. The public drawing for these few CWMU hunting permits is available only to Utah residents. Nonresidents--or residents who either did not participate or were unsuccessful in the public drawing--must purchase a CWMU hunting permit directly from the landowner in order to participate in the hunt. In 2003, only six CWMU hunting permits were available to Utah residents by public drawing for the Alton unit--the unit for which the hunting permit here was issued. Those awarded CWMU hunting permits through the public drawing received lodging, meals, and a guide for up to a week at no expense. The remaining CWMU hunting permits were available only from the landowner at a cost of $12,000 each. Defendant, a California resident with Utah roots, entered the public drawing for Utah residents and was awarded a CWMU hunting permit.⁴ Defendant participated in the "Once-in-aLifetime Hunt" and used his hunting permit to take a coveted trophy male mule deer.

¶3 Utah hunting permits are typically distributed through a lottery-style drawing. Applicants who are not selected receive points that can be accumulated and then used in future drawings to increase their chances of selection. Defendant frequently applied for hunting permits in Utah. Over the years, Defendant accumulated more points than nearly anyone else in the applicant

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pool, making it very likely that he would be selected to receive any hunting permit he applied for in 2003.

¶4 In years prior to 2003, Defendant applied for Utah hunting permits as a nonresident; although he grew up and graduated from high school in Utah, Defendant moved to California to attend college and continued to live there, working as an aerospace engineer. In 2001, Defendant married a Utah resident (Wife), who moved to California to reside with Defendant. After the move, Wife traveled to Utah several times a month to complete college course work. After a few months, she transferred to a California college and then graduated in 2002. Defendant and Wife would occasionally travel to Utah for a few days at a time to visit their families; during these visits, they would stay with family members, including Wife's parents. Defendant and Wife also kept horses in Utah. Defendant considered moving back to Utah and looked for employment here, but he could not find employment as an aerospace engineer of the same "caliber and quality" or at the same pay to which he was accustomed. Nonetheless, during the time at issue, Defendant did not have a Utah residence. Rather, he maintained his primary residence in California, worked in California, had a California driver license, registered and licensed his vehicles in California, filed tax returns in California, and voted in California.

¶5 In the course of applying for a CWMU hunting permit for the "Once-in-a-Lifetime Hunt," Defendant received a copy of the Division's Utah Big Game Proclamation (the Proclamation). See generally Utah Code Ann. § 23-13-2(33) (Supp. 2009) (defining "Proclamation" as "the publication used to convey a statute, rule, policy, or pertinent information as it relates to wildlife"). The Proclamation set out the official residency requirements for obtaining Utah resident hunting permits as well as the statutory definitions of "resident" and "domicile": "resident" is defined as a person who "has been domiciled in the state of Utah for six consecutive months immediately preceding the purchase of a license," id. § 23-13-2(37)(a)(i), and "domicile" is defined as a person's "fixed permanent home," id. § 23-13-2(13)(a)(i).⁵

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¶6 Defendant read the Proclamation "very carefully" several times and concluded that "[he] qualified" as a Utah resident; he then applied for the CWMU hunting permit public drawing. On the application, Defendant listed Wife's parents' Utah address as his residence and also listed their Utah phone numbers as his own. Other than the occasional weekend visit, Defendant had never lived with Wife's parents and had stayed at their house only intermittently, for a couple of days at a time. Wife's parents did not authorize Defendant to use their address or phone numbers on his application. Defendant also stated on his application that he was a Utah resident and had been a Utah resident for the preceding six months. Defendant signed the application, certifying that (1) the statements on the application were true, (2) he understood any false statement would subject him to criminal prosecution, (3) he had read and understood the Proclamation, and (4) he was eligible for the hunting permit for which he had applied. Defendant applied for the CWMU hunting permit online. Had he not used a Utah address and represented himself as a Utah resident for a period of at least six months, Defendant would not have been eligible to apply for the "Once-ina-Lifetime" CWMU hunting permit and the online application process would not have allowed him to complete and submit an application for that permit.

¶7 As anticipated, due to his uniquely high accumulation of points, Defendant was selected by drawing to receive a Utah resident CWMU hunting permit for the "Once-in-a-Lifetime" hunt. In September 2003, Defendant participated in the hunt and used that hunting permit to take a coveted trophy male mule deer. In the course of a subsequent investigation, the Division discovered that Defendant was not a Utah resident.⁶

¶8 Defendant was charged with wanton destruction of protected wildlife, a third degree felony, in violation of Utah Code section 23-20-4 (the Unauthorized Taking Statute), which

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prohibits taking a trophy animal without a valid hunting permit. See Utah Code Ann. § 23-20-4(1), (3)(a)(ii) (2003).⁷ To establish that Defendant had taken a trophy animal without a valid hunting permit, the State relied upon Utah Code section 23-19-5 (the Unlawful Permit Statute), which makes it unlawful for a nonresident to purchase a resident hunting permit or for any person to obtain a hunting permit by fraud, deceit, or misrepresentation. See id. § 23-19-5. The State argued that because Defendant had obtained a hunting permit in violation of the Unlawful Permit Statute, his hunting permit was void. In response, Defendant argued that his hunting permit was merely voidable and could be used legitimately until suspended or revoked. The trial court agreed with the State and concluded that Defendant's hunting permit, having been obtained in violation of the Unlawful Permit Statute, "was invalid and could not be lawfully used for hunting wildlife."

¶9 As a further defense to the charge that he had taken a trophy animal without a valid hunting permit, Defendant asserted that he did not have the requisite culpable mental state because he believed in good faith that he qualified as a Utah resident when he applied for his hunting permit. Defendant said that he based this belief on his reading of the Proclamation's official residency requirements and his application of those requirements to the circumstances of his and Wife's living arrangements. The

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State responded by requesting a mistake of law jury instruction, requiring that Defendant's reliance on the Proclamation be reasonable. The trial court gave this instruction over Defendant's objection that it unfairly undermined his good faith defense.

¶10 Defendant also moved to dismiss, alleging that his right to a speedy trial had been violated. Defendant was first charged by information in December 2003. The case was dismissed in January 2007 then refiled in March 2007.⁸ The reason for the dismissal was that two of Defendant's former attorneys had accepted positions as prosecutors with the Kane County Attorney's Office--the county that was prosecuting Defendant. After...