State v. Moschell, No. 22464-22466.

CourtSupreme Court of South Dakota
Writing for the CourtKONENKAMP, Justice.
Citation2004 SD 35,677 N.W.2d 551
Decision Date10 March 2004
Docket Number No. 22464-22466.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. William R. MOSCHELL, Gene T. Smith and Denis K. Moschell, Defendants and Appellants.

677 N.W.2d 551
2004 SD 35

STATE of South Dakota, Plaintiff and Appellee,
v.
William R. MOSCHELL, Gene T. Smith and Denis K. Moschell, Defendants and Appellants

Nos. 22464-22466.

Supreme Court of South Dakota.

Argued October 7, 2003.

Decided March 10, 2004.


677 N.W.2d 555
Lawrence E. Long, Attorney General, Craig M. Eichstadt, Robert E. Mayer, Deputy Attorneys General, Pierre, SD, for plaintiff and appellee

David M. Hosmer, Yankton, SD, for defendants and appellants.

KONENKAMP, Justice.

[¶ 1.] Between October 1999 and December 2000, the South Dakota Game, Fish and Parks (GF & P) conducted an undercover investigation into the practices of a hunting guide service. In the investigation, undercover agents went on several hunts and hunted for a variety of game. The agents recorded numerous violations of South Dakota law. Defendants were charged and convicted of these violations. They appeal their convictions, contending that the legislative criminalization of GF & P regulations constitutes an unlawful delegation of authority, that several statutes and regulations are unconstitutionally vague, that their convictions rest on insufficient evidence, that the trial court improperly instructed the jury, and that their conditions of probation were unreasonable. We affirm on all issues.

677 N.W.2d 556
Background

[¶ 2.] William Moschell operated a hunting guide service. Agents of the GF & P suspected that William and his associates operated the service in disregard of state hunting laws. Unable to verify these suspicions, the GF & P brought in two Iowa Department of Natural Resources conservation agents to work undercover. Throughout the investigation, the agents participated in hunts with defendants William Moschell, Denis Moschell, and Gene Smith.

[¶ 3.] On November 16, 1999, the agents made initial contact with William. He told them to return on the last weekend of the pheasant season and participate in a large group hunt. The agents agreed and made plans to return. On December 17, 1999, the agents met up with William at a game production area. The agents participated in at least two pheasant hunts on that clay. During the hunt, the agents observed radio coordination by the group members.

[¶ 4.] The following morning, December 18, 1999, the agents participated in a coyote hunt. Around noon, the members of the coyote hunting group returned to William's farm to organize an afternoon pheasant hunt. The large group of people split into two groups. One group consisted mainly of paying customers, while the other group consisted of William's friends. During the pheasant hunt the agents made the following observations:

1. William received messages over a radio informing him of the location of certain game;

2. William aimed his shotgun at pheasants from a vehicle;

3. Thirty-one members were hunting in a single group; and

4. William had possession of a hen pheasant.

Upon returning to William's farm, the agents made arrangements to come back on the opening pheasant hunting weekend the following year.

[¶ 5.] As arranged, the agents returned on October 21, 2000, the opening day of pheasant season. Once again, the participants were organized into two hunting parties. Members of the agents' group included William and Denis Moschell. The agents counted 26 members in their hunting group. Most of the agents' group was dropped off along the western edge of a field. As the hunters moved east, the agents noticed a large group of hunters moving toward them. The group of hunters moving toward the agents was the second group from William's farm.

[¶ 6.] The agents testified that they believed the members of that group were acting as blockers for their own group. However, a fence separated the two groups. William told the agents' group not to cross the fence because it was illegal to hunt in groups larger than 20 members. When the two groups met on opposite sides of the fence, 47 hunters were present.

[¶ 7.] On October 22, 2000, the agents returned to the Moschell farm. Following several hunts, the agents noted that William had in his possession a hen pheasant. At the conclusion of the day, the agents made arrangements to return later in the year to participate in a deer hunt.

[¶ 8.] The agents returned to William's farm on November 24, 2000. On that day, the hunting group included William, Denis, Gene Smith, and several other hunters. During the hunt, the agents observed:

1. A dog catch and return a hen pheasant to Denis who placed it under the seat of William's vehicle;

677 N.W.2d 557
2. William receive a message over a radio alerting him to look out his window

3. William chamber a round and twice point his shotgun out the window of his moving vehicle in an apparent attempt to shoot a hawk; and

4. William drive his vehicle into a field toward a pheasant that had been observed.

[¶ 9.] The next morning, November 25, 2000, the agents returned to hunt deer. William instructed that each vehicle should carry at least one deer license. William also told the group to use the radios for coordination, but to use the appropriate code words, since using radios was illegal. The agents rode in the vehicle with Denis. Denis had only one deer tag, which was a landowner's tag. During the hunt the agents observed:

1. Denis chamber a round into his rifle and take aim at a cottontail rabbit;

2. Denis obtain a radio for the purpose of communicating with the other groups; and

3. Denis shoot and kill a buck, not on his own land. The agents did not observe Denis tag the buck.

[¶ 10.] On November 26, 2000, the agents returned for their final day of hunting. During this hunt the agents observed:

1. William use a radio to communicate with others in the hunting party regarding the location of game;

2. William use his vehicle to intercept and block an escaping buck;

3. Gene Smith shoot and kill a buck despite not having a deer license;

4. William order others to load an untagged deer into a vehicle so that the feet were toward the vehicle passengers, thus allowing it to be quickly tagged in case they were stopped by an enforcement agent; and

5. Denis unload another untagged deer, which Denis said had been shot behind his home.

The agents never observed a tag being placed on Smith's deer. According to the agents, they later saw Smith's deer lying in William's shop without a tag.

[¶ 11.] A jury convicted William, Denis, and Gene on several hunting violations. Each defendant was fined, ordered to pay restitution, assessed court costs, and sentenced to serve a term in jail. In addition, their hunting and trapping licenses were revoked for a period of time. As part of probation, the trial court suspended the jail sentences and imposed several conditions on defendants. Among those conditions, each was ordered to report to jail by 1:00 p.m. the day before the opening day of pheasant hunting season. Defendants would then spend the following twenty days in jail. This condition lasted for as long as defendants remained on probation.

[¶ 12.] Defendants now appeal on the following issues: (1) Whether GF & Pregulations are an improper delegation of core legislative lawmaking powers. (2) Whether the defendants faced a "choice of evils" because of a statutory scheme that is impermissibly vague. (3) Whether statutory law forbidding one to "receive" an electronic form of communication is vague and overbroad. (4) Whether a cottontail rabbit is a "rodent." (5) Whether accidental or fence-separated hunting negates cooperation. (6) Whether there was sufficient evidence to show that a motor vehicle was used to disturb game animals. (7) Whether there was sufficient evidence to show Denis Moschell twice failed to tag big game, and hunted big game without a license. (8) Whether there was sufficient evidence to show that Gene Smith hunted big game without a license and shot big

677 N.W.2d 558
game from a road right-of-way. (9) Whether the trial court's instruction relating to the legitimacy of the undercover investigation was given in error, and if so, whether it created reversible error. (10) Whether the trial court imposed reasonable and legal conditions on the suspension of a term of imprisonment

Analysis and Decision

I.

[¶ 13.] Defendants first call on this Court to review whether the regulations promulgated by the GF & P originate from a proper delegation of authority by the Legislature. Where a party challenges the constitutionality of a statute, our review is de novo. Boever v. South Dakota Bd. of Accountancy, 1997 SD 34, ¶ 7, 561 N.W.2d 309, 311 (citing Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398). SDCL 41-2-18 provides in part:

The Game, Fish and Parks Commission may adopt such rules as may be necessary to implement the provisions of chapters 41-1 to 41-15, inclusive. The rules may be adopted to regulate:

* * *

(2) The hunting, taking, killing, possession, sale and transportation of all wild birds, wild animals and wild fish ...

* * *

(14) The devices, weapons, ammunition, traps, tackle, bait, lures and equipment which may be used to hunt, kill, capture or locate any wild animal or fish if use of the above items would adversely affect the health, safety or welfare of people or wildlife resources;

* * *

(19) The number of persons who may cooperate as a group in the pursuit, hunting, taking or killing of game birds or game animals;

* * *

The rules shall be adopted pursuant to chapter 1-26 and shall be in accordance with the provisions of this chapter.

A violation of the substantive provision of any rule authorized by this section is a Class 2 misdemeanor. If the same incident is a violation of statute and of the rules authorized by this section only the penalty authorized for the violation of the statute may be imposed.

[¶ 14.] Defendants contend that this statute is an improper delegation of legislative power. The principle restraining the delegation of certain legislative powers derives from the...

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16 practice notes
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...(possession of undersized fish); State v. Peloquin, 427 A.2d 1327, 1329-31 (R.I. 1981) (controlled substances act); State v. Moschell, 2004 SD 35, P13-25, 677 N.W.2d 551, 558-60 (2004) (hunting, taking, and transportation of wild animals) (criticizing 56. See McCurley v. State, 390 So.2d 15......
  • FIRST PREMIER v. KOLCRAFT, No. 22421
    • United States
    • Supreme Court of South Dakota
    • August 18, 2004
    ...(citations omitted). If, as a whole, the instructions misled, conflicted, or confused, then reversible error occurred. State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567 (citations omitted). The party charging that an instruction was given in error has the dual burden of showing that ......
  • State v. Lassiter, No. 22854.
    • United States
    • Supreme Court of South Dakota
    • January 12, 2005
    ...on prior acts only validated for the jurors the propriety of considering these irrelevant and prejudicial facts. See State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567 (recognizing where jury instructions "mislead, conflict, or confuse then reversible error [¶ 27.] In summary, th......
  • Steffen v. Schwan's Sales Enterprises, No. 23706.
    • United States
    • Supreme Court of South Dakota
    • April 19, 2006
    ...challenging jury instructions has the burden of establishing that they were both erroneous and prejudicial. Id. (citing State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567). "An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and......
  • Request a trial to view additional results
16 cases
  • State v. Rhine, No. PD-0912-08.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 23, 2009
    ...(possession of undersized fish); State v. Peloquin, 427 A.2d 1327, 1329-31 (R.I. 1981) (controlled substances act); State v. Moschell, 2004 SD 35, P13-25, 677 N.W.2d 551, 558-60 (2004) (hunting, taking, and transportation of wild animals) (criticizing 56. See McCurley v. State, 390 So.2d 15......
  • FIRST PREMIER v. KOLCRAFT, No. 22421
    • United States
    • Supreme Court of South Dakota
    • August 18, 2004
    ...(citations omitted). If, as a whole, the instructions misled, conflicted, or confused, then reversible error occurred. State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567 (citations omitted). The party charging that an instruction was given in error has the dual burden of showing that ......
  • State v. Lassiter, No. 22854.
    • United States
    • Supreme Court of South Dakota
    • January 12, 2005
    ...on prior acts only validated for the jurors the propriety of considering these irrelevant and prejudicial facts. See State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567 (recognizing where jury instructions "mislead, conflict, or confuse then reversible error [¶ 27.] In summary, th......
  • Steffen v. Schwan's Sales Enterprises, No. 23706.
    • United States
    • Supreme Court of South Dakota
    • April 19, 2006
    ...challenging jury instructions has the burden of establishing that they were both erroneous and prejudicial. Id. (citing State v. Moschell, 2004 SD 35, ¶ 54, 677 N.W.2d 551, 567). "An erroneous instruction is prejudicial if in all probability it produced some effect upon the verdict and......
  • Request a trial to view additional results

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