State v. Wimer

• Decision Date: 26 October 1990
• Docket Number: No. 18061,18061
• Citation: 118 Idaho 732,800 P.2d 128
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Forrest L. WIMER, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 128

800 P.2d 128

118 Idaho 732

STATE of Idaho, Plaintiff-Respondent, v. Forrest L. WIMER, Defendant-Appellant.

No. 18061.

Court of Appeals of Idaho.

Oct. 26, 1990.

Rapaich, Knutson & Chapman, Lewiston, for defendant-appellant. Scott Chapman argued.

Jim Jones, Atty. Gen., James E. Leuenberger, Deputy Atty. Gen., argued, for plaintiff-respondent.

SWANSTROM, Judge.

A jury in the magistrate division found Forrest Wimer guilty of the misdemeanors of wrongfully possessing an Idaho resident hunting license and of killing an elk in Idaho County, Idaho, without having a valid hunting license. The magistrate entered an order withholding judgment. Wimer appealed to the district court raising four issues: (1) whether the magistrate erred by denying Wimer's motion to dismiss for failure to prove venue; (2) whether the magistrate erred by refusing to allow Wimer's father to testify regarding conversations with a former prosecuting attorney about residency requirements; (3) whether the evidence supported the jury's finding that Wimer wrongfully possessed an Idaho resident hunting license; and (4) whether the magistrate erred by sentencing Wimer on both counts of the amended complaint. The district court, sitting as an appellate court, affirmed and Wimer brought this appeal. For the following reasons, we also affirm.

Wimer and his family moved from California to Idaho on June 13, 1987. Prior to relocating in Idaho, he had lived in California for at least five years. In February, 1987, Wimer visited Idaho for a weekend for the purpose of inspecting a house his grandfather promised to give to him. Wimer took possession of his grandfather's property on June 17, 1987.

Wimer applied for and was issued an Idaho resident hunting license on September 4, 1987. An Idaho resident elk tag was issued to him on September 8. Wimer killed an elk in Idaho County on November 18. He took the elk to a hunting lodge at Orogrande, which is located in Idaho County, Idaho.

Idaho Fish and Game officers investigating a citizen's report of illegally killed game eventually charged Wimer with four misdemeanors, including two charges of illegally killing elk in a closed area. During the officers' investigation they concluded that Wimer had not been a resident of Idaho for six months as required by I.C. § 36-202(r) when Wimer purchased a resident hunting license. Accordingly, Wimer was charged with possessing the wrong class of license, I.C. § 36-405(c)(1), and taking an elk without having a license of the proper class, I.C. § 36-502. A Fish and Game officer attempted to seize Wimer's hunting license, but Wimer told the officer that it was located at Orogrande. Later, on December 15, 1987, Wimer gave the license to the officer.

At trial, at the close of the state's case, Wimer orally moved for dismissal of the charge that he had possessed the wrong class of license "on or about December 15, 1987, in Idaho County, Idaho." Wimer contended that the state failed to submit any proof of venue; that is, that Wimer had possession of the license on December 15 in Idaho County. He argued that because the state failed to prove venue, one of the elements of the offense, the state is not entitled to a guilty verdict on the charge of possession of the wrong class of license. It follows necessarily that the second count, taking an elk without a proper-class hunting license, should also be dismissed, contended Wimer. The magistrate denied the motion in its entirety.

We note first that a motion to dismiss made under the circumstances here is actually a motion under I.C.R. 29 for a judgment of acquittal. See State v. Holder, 100 Idaho 129, 594 P.2d 639 (1979) and State v. Huggins, 103 Idaho 422, 648 P.2d 1135 (Ct.App.1982), rev'd on other grounds, 105 Idaho 43, 665 P.2d 1053 (1983).

An appellate court will not set aside a judgment of conviction entered upon a jury verdict if there is substantial evidence to support the verdict. On appeal, where a defendant stands convicted, we view the evidence in a light most favorable to the prosecution. State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982). The same standards apply when we review the district court's decision to grant or deny the defendant's motion for judgment of acquittal. State v. Holder, supra; State v. Elisondo, 103 Idaho 69, 644 P.2d 992 (Ct.App.1982); State v. Huggins, supra; State v. O'Campo, 103 Idaho 62, 644 P.2d 985 (Ct.App.1982); State v. Mata, 107 Idaho 863, 693 P.2d 1065 (Ct.App.1984). Moreover, when we review the record to determine whether substantial evidence exists, we are precluded from substituting our judgment for that of the jury as to the credibility of witnesses, the weight of the testimony, and the reasonable inferences to be drawn from the evidence. State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct.App.1983).

Venue is non-jurisdictional. Proof of proper venue is satisfied if shown by a preponderance of the evidence. I.C. § 19-301(2). Direct or circumstantial evidence may be used to establish venue. State v. Barr, 63 Idaho 59, 117 P.2d 282 (1941). Here, the jury was instructed that the state "must prove beyond any reasonable doubt" ¹ that "on or about the 15th day of December, 1987, the Defendant was in Idaho County, Idaho; and ... at such time and place the Defendant did knowingly possess an Idaho resident hunting license; and ... at such time and place the Defendant was not lawfully entitled to possess a resident Idaho hunting license." (Emphasis added.)

The state's evidence at trial showed that on December 15, 1987, Idaho Fish and Game Officer Hedberg seized a resident hunting license from Wimer. Hedberg's testimony included the following statements:

We had--Mr. Wimer did not have his license with him on one occasion that we talked. He said it was up at Orogrande and he would go get it for me. He went and got his license and called me. And we made an agreement to meet. And at that point I asked him for his license and he gave me that hunting license.

Although the prosecuting attorney failed to ask the officer where this seizure took place, the magistrate nevertheless held that venue had been proven by sufficient evidence. The officer's testimony was not disputed. The seized license was admitted into evidence without objection. Moreover, it was also undisputed that Wimer had killed an elk near Orogrande in Idaho County, while possessing the license in question. The magistrate reasoned that because Wimer told the officer his license was in Orogrande, and because there was evidence that he went there to get it "on or about December 15, 1987," the state had produced sufficient evidence to show venue. We agree.

Likewise, we uphold the trial court's refusal to dismiss count two, taking an elk without having a proper-class license. We disagree with Wimer's argument that count two must also fail if venue in the first count was not proven. Although we hold that proof of venue for count one was sufficient, proof of venue for count two required proof of a different set of facts: that Wimer had taken an elk in Idaho County, without having the proper class of license. The state's evidence on these elements was clearly sufficient. We have examined Wimer's other arguments about the insufficiency of the evidence to sustain count two, but we are not persuaded that they have merit.

Wimer next argues that the magistrate abused his discretion by refusing to allow Wimer's father to testify regarding a conversation that took place in 1974 between Wimer's father and a former prosecuting attorney concerning the residency requirements relative to fish and game licenses. Wimer intended to show through an offer of proof that the information obtained by his father was imparted to him. Wimer wanted to establish that in February, 1987, when he came to Idaho for the weekend to inspect his grandfather's house, he formed the intent to make Idaho his residence. Apparently, Wimer wanted to prove that the 1974 information he had received gave him reason to believe that the six-month residency period commenced in February, 1987, rather than in June, when he actually moved to Idaho.

The state objected to the offer of evidence on the grounds of hearsay and relevancy. To avoid the hearsay objection, Wimer contended the evidence was being offered only to show what intent and beliefs Wimer had in February, 1987 as a result of the information received in 1974.

The state argued, correctly, that none of the offenses involved the element of a specific criminal intent.

[W]here such intent is not made an ingredient of the offense, the intention with which the act is done, or the lack of any criminal intent in the premises, is immaterial.... [E]rror cannot be predicated upon the action of the court in excluding evidence tending to show the defendant's good intentions and good faith, where a criminal intent is not a necessary element of the offense charged.

State v. Sterrett, 35 Idaho 580, 583, 207 P. 1071, 1072 (1922). Wimer never made it clear exactly why the excluded evidence was relevant, or how it would have benefitted him.

The magistrate found that the proffered evidence was too remote in time to be probative of the issues before the court. "The determination of whether the proffered evidence lacks probative value because of remoteness in time rests in the sound discretion of the trial court." Lehmkuhl v. Bolland, 114 Idaho 503, 511, 757 P.2d 1222, 1230 (Ct.App.1988) (review denied). Under Lehmkuhl, the test is "whether the probative value of the evidence is sufficiently strong to render the evidence admissible ... in light of its alleged remoteness" in time. Id. at 510, 757 P.2d at 1229. Here, we are not persuaded that the trial court abused its discretion in deeming the evidence too remote to be probative of the issues before the court. We uphold the exclusion of the evidence on this relevancy ground alone and, therefore, we do not need to discuss the state's other arguments for upholding the...