State v. Kleppe

• Decision Date: 13 July 2011
• Docket Number: Nos. 20100354,20110029.,s. 20100354
• Citation: 800 N.W.2d 311,2011 ND 141
• Parties: STATE of North Dakota, Plaintiff and Appelleev.Harlan KLEPPE, Defendant and AppellantState of North Dakota, Plaintiff and Appelleev.William Dethloff, Defendant and Appellant.
• Court: North Dakota Supreme Court

800 N.W.2d 311

2011 ND 141

STATE of North Dakota, Plaintiff and Appellee

v.Harlan KLEPPE, Defendant and AppellantState of North Dakota, Plaintiff and Appellee

v.William Dethloff, Defendant and Appellant.

Nos. 20100354

20110029.

Supreme Court of North Dakota.

July 13, 2011.

Bryan D. Denham (argued), Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.Robert V. Bolinske, Jr. (argued), Bismarck, N.D., and Daniel Harry Oster (appeared), Bismarck, N.D., for defendants and appellants.MARING, Justice.

[¶ 1] In consolidated appeals, Harlan Kleppe appeals from a criminal judgment entered on his conditional guilty plea to the charge of unlawfully hunting and shooting big game, and William Dethloff appeals from a criminal judgment entered on his conditional guilty plea to the charge of unlawfully taking and possessing big game. On appeal, Kleppe and Dethloff argue the trial court abused its discretion in granting the State's motions in limine to preclude them from introducing evidence on the defenses of depredation and defense of property at trial. They also claim the trial court improperly declined to give their proposed jury instructions on the affirmative defenses of excuse and mistake of law. Lastly, Dethloff asserts the trial court abused its discretion by requiring him to pay $8,500 in restitution. We affirm in part, reverse in part, and remand to the trial court for a further restitution hearing and order consistent with this opinion.

I

[¶ 2] On March 2, 2010, the State charged Dethloff with seventeen counts of unlawfully taking and possessing deer in violation of N.D.C.C. §§ 20.1–05–01 and 20.1–05–02. On March 19, 2010, the State charged Kleppe with unlawfully hunting and shooting big game in violation of N.D.C.C. § 20.1–05–02. Both pleaded not guilty to the charges.

[¶ 3] The State filed a motion in limine in each case to exclude any evidence on the defenses of depredation and defense of property.

[¶ 4] In Kleppe's case, the trial court granted the State's motion and declined to give Kleppe's proposed jury instructions on excuse and mistake of law. The trial court found Kleppe admitted to shooting in the general direction of deer without a license and during off season. The trial court further found game wardens located a number of dead deer on Kleppe's property. Noting the offense of unlawfully hunting and shooting big game is a strict liability offense, the trial court concluded Kleppe could not raise any affirmative defenses. Kleppe entered a conditional plea of guilty to the charge of unlawfully hunting and shooting big game, preserving his right to an appeal.

[¶ 5] In Dethloff's case, the trial court issued an order, finding the defenses of depredation and defense of property inapplicable, but allowing Dethloff to present evidence at trial on his reasons for shooting the deer. In its order, the trial court declined to give Dethloff's proposed jury instructions on excuse and mistake of law because he had not established he was entitled to them. On the day of trial, however, the trial court revised its ruling on the issue of applicable defenses, stating Dethloff had no defenses available to him because the offense of unlawfully taking and possessing deer is a strict liability offense. Dethloff made an offer of proof and entered a conditional plea of guilty, preserving his right to an appeal. The trial court entered a criminal judgment and ordered Dethloff to pay restitution in the amount of $8,500.

[¶ 6] Kleppe and Dethloff appealed and moved to consolidate their appeals under Rule 3(b) of the North Dakota Rules of Appellate Procedure, stipulating the legal issues in both cases are identical. We granted the motion to consolidate.

II

[¶ 7] Kleppe and Dethloff argue the trial court abused its discretion by granting the State's motions in limine to preclude them from introducing evidence on the defenses of depredation and defense of property at trial. We disagree.

[¶ 8] We review a trial court's decision on a motion in limine for an abuse of discretion. State v. Buchholz, 2006 ND 227, ¶ 7, 723 N.W.2d 534. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner. Id.

[¶ 9] Kleppe and Dethloff argue the trial court abused its discretion by excluding any evidence on the defense of depredation. Kleppe and Dethloff assert they have a right to kill any wild fur-bearing animal committing depredations on their crops under N.D.C.C. § 20.1–07–04 and were, therefore, entitled to present evidence on the defense of depredation at trial. Section 20.1–07–04, N.D.C.C., states:

A landowner or tenant or that person's agent may catch or kill any wild fur-bearing animal that is committing depredations upon that person's poultry, domestic animals, or crops, except a landowner or tenant or that person's agent shall notify and obtain the approval of the director before catching or killing a black bear.

Kleppe and Dethloff's argument is without merit. Section 20.1–01–02(5), N.D.C.C., defines deer as a big game animal, not a fur-bearer. Compare N.D.C.C. § 20.1–01–02(5) (including deer in the definition of big game) with N.D.C.C. § 20.1–01–02(15) (not listing deer in the definition of fur-bearers). Accordingly, the defense of depredation is inapplicable to killing deer and the trial court did not abuse its discretion by precluding Kleppe and Dethloff from introducing evidence related to the defense of depredation at trial. See Buchholz, 2006 ND 227, ¶ 7, 723 N.W.2d 534 (stating a trial court has broad discretion in deciding whether evidence is relevant and explaining an appellate court will not reverse a trial court's decision to exclude evidence on the basis of relevance).

[¶ 10] Kleppe and Dethloff further argue the North Dakota Constitution affords them the right to defend their property and claim they should have been allowed to present evidence on the defense of defense of property at trial. We have repeatedly cautioned that parties raising a constitutional claim must provide persuasive authority and a reasoned analysis to support the claim. Whelan v. A.O., 2011 ND 26, ¶ 10, 793 N.W.2d 471. We have further explained we will decide only those issues that have been thoroughly briefed and argued, and we will not “search the record and the applicable caselaw to discover deprivation of constitutional magnitude when the party attempting to claim a constitutional violation has not bothered to do so.” Id. Kleppe and Dethloff have submitted only bare, conclusory assertions to support their claim on the applicability of the constitutional defense of defense of property. By failing to provide adequate support for their constitutional argument, Kleppe and Dethloff have waived the issue on appeal. See id. at ¶¶ 10–11. Therefore, we decline to address it.

III

[¶ 11] Kleppe and Dethloff argue the trial court erred in refusing to give their requested jury instructions on the defenses of excuse and mistake of law. Specifically, Kleppe and Dethloff assert the trial court erroneously concluded no defenses were available to them because they were charged with a strict liability offense.

[¶ 12] “We review jury instructions as a whole to determine whether they fairly and adequately advise the jury of the applicable law.” State v. Zottnick, 2011 ND 84, ¶ 6, 796 N.W.2d 666. A defendant is entitled to a jury instruction on a defense if the evidence creates a reasonable doubt about an element of the offense. Id. We view the evidence in the light most favorable to the defendant to determine whether sufficient evidence exists to support a jury instruction. Id. A trial court may refuse to give a jury instruction that is irrelevant or inapplicable, but errs if it refuses to instruct the jury on an issue adequately raised by the defendant. Id.

[¶ 13] The trial court declined to give Kleppe and Dethloff's proposed jury instructions on excuse and mistake of law, stating the offense of unlawfully taking and possessing deer was a strict liability offense, not subject to any defenses. The trial court explained section 20.1–05–02, N.D.C.C., does not contain a culpability requirement, making the offense of unlawfully taking and possessing deer a strict liability offense. The trial court further explained affirmative defenses, such as mistake of law, are ordinarily inapplicable when the governing statute contains no culpability requirement. Accordingly, the trial court concluded the defenses of excuse and mistake of law are inapplicable to the strict liability offense of unlawfully taking and possessing deer.

[¶ 14] The legislature may enact strict liability offenses that require no intent. State v. Haugen, 2007 ND 195, ¶ 7, 742 N.W.2d 796. Section 20.1–05–02, N.D.C.C., provides: “[A] person may not hunt, harass, chase, pursue, take, attempt to take, possess, transport ... a big game animal except as provided in this title.” The statute does not specify a culpability requirement and thus, the trial court did not err in concluding the offense of unlawfully taking and possessing big game is a strict liability offense. See State v. Holte, 2001 ND 133, ¶ 10, 631 N.W.2d 595 (stating that when a statute outside of Title 12.1, N.D.C.C., does not specify a culpability requirement, the offense is a strict liability offense for which no proof of intent is needed).

[¶ 15] A statute establishing a strict liability offense, however, does not always preclude affirmative defenses. Holte, 2001 ND 133, ¶ 11, 631 N.W.2d 595. Although rarely, we have permitted an affirmative defense to a strict liability offense when public policy supports the defense or when the defense serves as “a logical accommodation which recognizes the reasons for both the legislative designation of the crimes as strict liability offenses and the constitutional interests of the accused.” Id.; see also State v. Rasmussen, 524 N.W.2d 843, 846 (N.D.1994) (holding an affirmative defense may be applied when life-threatening...