State v. Ruiz

• Decision Date: 07 October 1988
• Docket Number: No. 17104,17104
• Citation: 115 Idaho 12,764 P.2d 89
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Freddy B. RUIZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 89

764 P.2d 89

115 Idaho 12

STATE of Idaho, Plaintiff-Respondent, v. Freddy B. RUIZ, Defendant-Appellant.

No. 17104.

Court of Appeals of Idaho.

Oct. 7, 1988.

Addendum Upon Denial of Rehearing

Nov. 7, 1988.

Petition for Review Denied Jan. 10, 1989.

William J. Brauner and Byron K. Meredith (argued), Brauner, Meredith & Coffel, Caldwell, William B. Taylor, Jr., Grangeville, for defendant-appellant.

Jim Jones, Atty. Gen., David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Following a weekend big-game hunting trip with two companions in central Idaho, Freddy Ruiz was charged with four violations of Idaho's Fish and Game laws and regulations. The alleged offenses--all misdemeanors--were (1) discharging a firearm across a highway; (2) killing a deer after having previously killed another deer during the same hunting season; (3) killing a doe mule deer in an area not open for hunting such an animal; and (4) wasting a game animal by failing to care for the Ruiz raises the following issues. First, he contends the verdicts of the jury, finding him guilty of the wasting charge but not guilty of the other charges, are inconsistent. Next, he argues that he was found guilty on the basis of testimony from accomplices--his two hunting companions--without corroboration of that testimony. Third, he avers there was insufficient evidence to support the verdict of guilty of wasting a game animal. ² Before addressing these issues on their merits, we will briefly review the underlying facts which gave rise to the verdicts in this case.

                meat.  A jury found Ruiz not guilty of the first three charges, but found him guilty of [115 Idaho 13] the offense of wasting a game animal. 1  The judgment of conviction on the wasting offense was upheld on appeal to the district court.  We, too, affirm the judgment
                

Most of the facts presented by the evidence at trial were hotly disputed and were severely in conflict. The few salient facts that were undisputed are as follows. Ruiz, Dan Ady and Gary Gochenour (all residents of Canyon County) participated jointly in a hunting trip in Idaho County during the weekend of November 15-17, 1985. They used Gochenour's pickup-camper for transportation. Only Ruiz had a tag for hunting deer; the other two hunted for elk. On Saturday, November 16, Ruiz shot and took into possession a small buck deer. Due to a snowstorm, the trio left the hunting area on Sunday, November 17, returning to their homes in Canyon County. They proceeded south from Grangeville, Idaho, travelling by way of U.S. Highway 95 down White Bird Hill. They stopped for a short time, part way down the hill. There they saw several doe mule deer on the hillside. After parking the vehicle, the men watched the deer through binoculars. The ensuing events are disputed.

Dan Ady testified at trial that although they had discussed the fact that the White Bird Hill area was not open for hunting mule deer, Ruiz began shooting at the animals, across the road, notwithstanding protestations from both Ady and Gochenour that Ruiz should not shoot at all. When Ruiz wounded one of the deer, Gochenour shot at it also, according to Ady, but apparently without hitting it. The deer fell after a final shot from Ruiz. Ady testified that he told the other two that he did "not want anything to do with this." His testimony continued:

After the deer was shot, the preparations were made of going up there and getting it began. Freddy asked me to go up and gut it and bring it down, and I refused and he said if I didn't go up and get the deer that he would say I shot it. And I just walked off and Freddy went to Gary behind the back of the trailer--or the camper, and they were talking back there, and Gary had come up and they had decided to go up there and get it and if I would drive the truck up a little ways and wait for a few minutes and come back down and get them.

So I went ahead and did that, drove a quarter of a mile, and there were three or four cars that came down during that time. And I was scared, I didn't want to get caught with that thing.

I waited up there for five to ten minutes and came back down and they still weren't through, and I sat there and waited on the side of the road for them. Finally Gary and Freddy come down the hill and get in the truck. Freddy does not have any blood on him that I observed, Gary's hands are bloody. They get in the car, we drive up to the look-out point, about an eight[h] to a quarter of a mile. I pull over to the side on the Q. How--with what does he wash his hands off?

left-hand side of the road and they get out, Freddy and Gary get out. Freddy--or Gary washes his hands, gets the blood off.

A. They have a camper and it has some water, a little sink up there.

Q. Oh, okay.

A. And he was up there washing his hands. And that's when they decide to tag that deer and they did not--but they decided not [to] bring the deer with them, that Freddy would come back the next morning and get the deer.

Ady testified that they then proceeded on to their homes. Once he had arrived at his house, Ady called Pat Cudmore, an Idaho Fish and Game officer, and reported the White Bird incident.

The other hunter in the party, Gary Gochenour, provided testimony at trial consistent with the events related by Ady. He added that he had field-dressed the mule deer shot by Ruiz because Ruiz did not know how to dress it out. He confirmed that Ruiz had fired across the road at the animal and that Ruiz' shots had killed the deer. He admitted that he had shot at the mule deer also, but only after Ruiz had wounded it because "in the manual it tells you that you're to kill a wounded animal." He said he would not let Ruiz load the deer into the pickup "[b]ecause I didn't want it in my truck, and I told him that, that if he didn't come [back] up and get it, that I would turn him in." Gochenour disclosed that he later was given immunity by the state in exchange for his cooperation and testimony in this case.

However, another version of the events on the hill, attributable also to Gochenour, was presented at the trial during Gochenour's cross-examination by the defense. Ruiz' attorney introduced a tape recording of an interview of Gochenour conducted by the attorney on November 21, 1985. In that interview, Gochenour stated that he, Ady and Ruiz had stopped on White Bird Hill and watched several hunters on top of the hill "shoot at [a] doe, and right after they shot it, Freddy and myself got into the camper and started eating and Dan kept watching." When the tape recording was introduced, Gochenour acknowledged having given the statement but denied that it was truthful. He was asked in what particulars he did not tell the truth. He replied "I was just agreeing with what Freddy was saying."

Freddy Ruiz also testified, in his own defense. His version of the events on White Bird Hill coincided with the statement made by Gochenour in the recorded interview with Ruiz' attorney. He said that his group stopped on White Bird Hill to eat; that while they were eating they saw several hunters shooting at doe mule deer; and that those hunters shot a deer. He denied shooting the doe mule deer, shooting across the highway, and leaving any deer meat to be wasted.

With respect to the testimony of Dan Ady--that he had contacted Fish and Game Officer Cudmore after arriving home--Officer Cudmore related that he immediately relayed the report to another officer in Idaho County. That officer, on the evening of November 17 (the same day as the alleged shooting of the mule deer) found the deer's carcass at the location and essentially in the field-dressed condition evidently described by Ady to officer Cudmore. He testified that the carcass was partially wasted because "birds had eaten most of the tenderloin and had started on the hindquarters." He waited in the area for about an hour and then left. He returned the next afternoon and removed the carcass. More of the meat had been eaten by birds and the meat was possibly soured. He confirmed that the White Bird Hill area was not open for hunting doe mule deer on the date in question.

Presented with this evidence, and considerable impeachment testimony, ³ the jury

[115 Idaho 15] found Ruiz not guilty of shooting across a highway, not guilty of killing a deer after having previously killed another deer during the same hunting season, and not guilty of killing a doe mule deer in a closed area. The jury, however, found Ruiz guilty of wasting a game animal, the doe mule deer.

I Inconsistent Verdicts

We turn first to the issue concerning inconsistent verdicts. Ruiz argues that the verdict of guilty of wasting a game animal cannot rationally be reconciled with the verdicts of the jury finding him not guilty of shooting and killing the mule deer.

"Inconsistency" between verdicts is generally understood to mean some logical impossibility or improbability implicit in the jury's findings on several indictments or informations tried together or as between several counts of a single criminal accusation tried without severance of the counts. Annotations, Inconsistency of Criminal Verdict with Verdict on Another Indictment or Information Tried at the Same Time, 16 A.L.R.3d 866 (1967); Inconsistency of Criminal Verdict as Between Different Counts of Indictment or Information, 18 A.L.R.3d 259 (1968). According to most authorities, consistency between the verdicts on simultaneously tried charges is unnecessary where the defendant is convicted on some counts but acquitted on others, and the convictions will generally be upheld irrespective of their rational incompatibility with the acquittals. Id. This view follows the opinion of the United States Supreme Court in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), recently reaffirmed in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (conviction will not be vacated "merely because the...