State v. Parson
| Decision Date | 14 June 2005 |
| Docket Number | No. 24,451.,24,451. |
| Citation | 2005 NMCA 083,115 P.3d 236 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Calvin PARSON, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.
John Bigelow, Chief Public Defender, Sheila Lewis, Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant Calvin Parson unlawfully transported elk heads. He appeals his convictions under felony statutes outlawing "transporting ... stolen or unlawfully possessed livestock or any unlawfully possessed game animal, or any parts thereof," NMSA 1978, § 30-18-6 (1963), and conspiring to commit that crime, see NMSA 1978, § 30-28-2(A) (1979). He grounds his appeal on the view that he should have only been charged with a misdemeanor under the more specifically applicable game and fish laws in NMSA 1978, §§ 17-2-7 and -20.3 (1979), and NMSA 1978, § 17-2-10 (1999). We agree with Defendant and reverse.
{2} In presenting its case, the State put on testimony regarding an unlawful, multi-million dollar elk head and antler trophy business. The testimony included a description of a joint investigation into waste of wildlife and illegal antler trade by the New Mexico Department of Game and Fish and the Colorado Division of Wildlife. In the investigation, Department personnel discovered the carcasses of two decapitated mature bull elk. The investigation led to a possible poacher by the name of Zach Romero and then to Defendant. Each was charged with a violation of Section 30-18-6 and charged with conspiracy to violate Section 30-18-6, pursuant to Section 30-28-2(A). These crimes are fourth degree felonies. §§ 30-18-6, 30-28-2(B)(3).
{3} The linking of firearm shell casings found at the sites of the killed elk with cartridges in Defendant's home, the linking of DNA from blood of the elk and blood found in Defendant's van, and testimony of Romero in Defendant's trial that the two shot the elk in question out of season and transported the elk heads, led to Defendant's convictions on both charges. Before he testified against Defendant, Romero pled guilty to the same charges.
{4} Defendant sought dismissal of the charges on the ground that he was improperly charged under Section 30-18-6 instead of under the game and fish laws. He argued that the felony statute under which he was convicted was a general statute, whereas the applicable misdemeanor game and fish statutes were the more specific, and that the State was required to prosecute him under the more specific statutes. Defendant's argument on this issue centered on State v. Cleve, 1999-NMSC-017, 127 N.M. 240, 980 P.2d 23, in which the Court held that NMSA 1978, § 30-18-1 (1963, repealed 1999) (amended 2001) (cruelty to animals), one of the many animal-related statutes in Article 18 of the New Mexico Criminal Code (Chapter 30), did not apply to Defendant's conduct in "snaring two deer." Cleve, 1999-NMSC-017, ¶ 37, 127 N.M. 240, 980 P.2d 23. The Supreme Court construed the words "any animal" in Section 30-18-1 to mean "domestic animals and wild animals in captivity," and determined that the conduct was covered under the more specific game and fish laws. See Cleve, 1999-NMSC-017, ¶¶ 34-37, 127 N.M. 240, 980 P.2d 23.
{5} The district court denied Defendant's motions to dismiss, distinguishing Cleve on the basis that Section 30-18-1 in Cleve and Section 30-18-6 in the present case were different statutes. In making the distinction, the Court focused mostly on the proscribed conduct of "transporting" a game animal or a part of a game animal in Section 30-18-6.
{6} Defendant asserts on appeal that: (1) Section 30-18-6 applies only to elk when elk are being raised as livestock, and not to free-roaming, wild elk and, therefore, the State failed to prove that Defendant stole livestock as defined by the statute; (2) under a plain meaning analysis, the State was required to charge Defendant under the game and fish statutes; and (3) if the plain meaning rule is inapplicable, then Cleve's determination of legislative intent that the game and fish laws are an exception to the animal-related statutes in Article 18 of the Criminal Code controls.
{7} We decide the issues in this case based on statutory construction alone. Our review, therefore, is de novo. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995).
{8} We preface our discussion of Defendant's points on appeal by discussing Chapter 30, Article 18 of our statutes, and by setting out the various statutes on which Defendant relies, together with a fuller discussion of Cleve.
{9} Article 18 of Chapter 30 relates to "animals" generally. Several specific statutes relate to cruelty to animals and the seizure, disposition, and award of costs in connection with animals endangered from cruel treatment. See § 30-18-1; NMSA 1978, §§ 30-18-1.1, -1.2, -1.3 (1999). Several of the other sections in Article 18 expressly mention "livestock" or obviously cover livestock by referring to "cattle" or "cow." See NMSA 1978, § 30-18-3(C) (1963); NMSA 1978, §§ 30-18-4, -5, -6, -8, -12, -14 (1963, as amended through 2001). One of these sections relates to injury to livestock that is the property of another and defines "livestock" as "used in this section." See § 30-18-12(B). The definition there does not include the family cervidae or elk. Id. Section 30-18-14 authorizes livestock inspectors who are certified peace officers to enforce "criminal laws relating to livestock," including those in Article 18.
{10} Several provisions in Article 18 that do not expressly or exclusively relate to clearly domesticated animals such as livestock, cattle, dogs, equines (horse, pony, mule, donkey or hinny), are nevertheless obviously or likely meant to cover only domesticated animals. See §§ 30-18-3; -4(D), (E), (F); -6;-7; -15. Section 30-18-3 covers unlawful branding. Section 30-18-4 covers the unlawful disposition of animals that are owned or are the property of others. Section 30-18-6, which proscribes transporting "stolen" livestock and defines this as transporting "stolen or unlawfully possessed livestock or any unlawfully possessed game animal," by use of the word "stolen" implies the taking of property from another. See Merriam Webster's Collegiate Dictionary 1150 (10th ed.1996) (defining "steal" to mean "to take the property of another wrongfully"). Section 30-18-7 relates to misrepresentation of the pedigree of an animal. Section 30-18-15, the last section in Article 18, proscribes certain injections by personnel of an animal control service or facility, animal shelter, or humane society.
{11} Only two provisions in Article 18 use the words "game animal." Section 30-18-6, as indicated earlier in this opinion, proscribes the transporting of an unlawfully possessed game animal. Section 30-18-10 excludes from Article 18 proscriptions "the taking of game animals, game birds or game fish by the use of dogs" under certain circumstances.
{12} Defendant turns to the Livestock Code, NMSA §§ 77-2-1 to -18-4 (1869, as amended through 2004), which states that, "[a]s used in The Livestock Code ... `animals' or `livestock' means all domestic or domesticated animals that are used or raised on a farm or ranch, including ... farmed cervidae upon any land in New Mexico." § 77-2-1.1(A). Based on these definitions and pointing out that "cervidae" are elk and deer, Defendant contends that "game animals" as used in Section 30-18-6 do not include free-roaming animals.
{13} The game and fish laws are found in Chapter 17 of the statutes. See NMSA 1978, §§ 17-1-1 to 17-8-6 (). Defendant contends that the State's evidence established nothing more than that the elk in question were free-roaming, wild animals protected under the game and fish laws. Defendant cites, in particular, Sections 17-2-3(A)(4), -7, -10, and -20.3. Section 17-2-3(A)(4) lists certain "game mammals" as protected wildlife species. Among the game mammals listed is "the family Cervidae." Id. Under Section 17-2-7(A)(1) and (2), unless permitted under regulations or law, "it is unlawful to[] hunt, take, capture, [or] kill ... any game animal," and it is unlawful to "possess... all or any part of any game animal." Section 17-2-10(A) states that it is a misdemeanor to violate any provision of Chapter 17 or any regulations "that relate to the time, extent, means or manner that game animals ... may be hunted, taken, captured, killed, possessed, sold, purchased or shipped." Section 17-2-20.3 states that the "illegal possession or transportation of big game during closed season" is a misdemeanor, and, further, that "taking or attempting to take big game during closed season," and "selling or attempting to sell big game or parts thereof" without a permit, are misdemeanors. § 17-2-20.3(A), (B), (D).
{14} In Cleve, only the cruelty to animals provision in Article 18, namely, Section 30-18-1, was at issue. Cleve, 1999-NMSC-017, ¶ 7, 127 N.M. 240, 980 P.2d 23. The defendant in Cleve was convicted of cruelty to animals under Section 30-18-1 and unlawful hunting under Section 17-2-7(A). Cleve, 1999-NMSC-017, ¶¶ 5-6, 127 N.M. 240, 980 P.2d 23. In regard to Section 30-18-1, the question in Cleve was whether "any animal" in that statute meant all animals, including game animals. 1999-NMSC-017, ¶¶ 7, 9, 127 N.M. 240, 980 P.2d 23. Interpreting Section 30-18-1, the Court read the three subsections of the statute as it then existed to "prohibit behavior that could only apply to domesticated animals or wild animals previously reduced to captivity[.]" Cleve, 1999-NMSC-017, ¶ 12, 127 N.M. 240, 980 P.2d 23. The Court concluded that "the Legislature intended that the phrase `any animal' denote domesticated animals and wild...
To continue reading
Request your trial
-
State v. Farish
...unless it appears that the [L]egislature intended to make the general act controlling"); State v. Parson , 2005-NMCA-083, ¶¶ 14-19, 137 N.M. 773, 115 P.3d 236 (addressing the continuing validity of the general/specific rule applied in Cleve and its continuing application to crimes involving......
-
State v. Farish
...unless it appears that the [L]egislature intended to make the general act controlling"); State v. Parson, 2005-NMCA-083, ¶¶ 14-19, 137 N.M. 773, 115 P.3d 236 (addressing thecontinuing validity of the general/specific rule applied in Cleve and its continuing application to crimes involving f......
-
Wild Horse Observers Ass'n, Inc. v. New Mex. Livestock Bd.
... ... {1} Plaintiff Wild Horse Observers Association, Inc. (the Association) appeals the district court's dismissal for failure to state a claim under Rule 1012(B)(6) NMRA. The Association claims that Defendant New Mexico Livestock Board (the Board) has unlawfully treated a group of ... {16} Other case law dealing with whether an animal is wild or domesticated is instructive. In State v. Parson, this Court considered whether a criminal defendant could be charged under two laws covering roughly the same conduct. 2005NMCA083, 137 N.M. 773, ... ...
-
State v. Gutierrez
...relies on State v. Parsons, in which the defendant was prosecuted for unlawfully transporting elk heads. 2005-NMCA-083, ¶ 1, 137 N.M. 773, 115 P.3d 236. This Court held that the defendant's conviction of a fourth degree felony under a general animal cruelty statute violated the general/spec......