Tennyson v. State
| Decision Date | 15 November 2017 |
| Docket Number | No. 6542,Court of Appeals No. A-12352,6542 |
| Parties | ALLISON CLAIR TENNYSON, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
NOTICE
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
Trial Court Nos. 3NA-14-116 CR & 3NA-14-031 MO
Appeal from the District Court, Third Judicial District, Naknek, Dawson Williams, Magistrate Judge.
Appearances: Charles M. Merriner, Anchorage, for the Appellant. Aaron C. Peterson, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.*
Allison Clair Tennyson appeals her convictions for taking salmon in closed waters and for failing to affix proper identifying markers to her set gillnet.1 (Both of these offenses are strict liability minor offenses under 5 AAC 39.002.)
Tennyson claims that the evidence presented at her trial was legally insufficient to prove that she was operating the set gillnet in question. Tennyson also claims that the evidence was legally insufficient to prove that the net was in closed waters. In addition, Tennyson claims that her trial was rendered unfair because the trial judge made erroneous evidentiary rulings.
For the reasons explained in this opinion, we find no merit to Tennyson's claims of error, and we uphold her convictions.
Underlying facts
On June 26, 2014, the Naknek-Kvichak fishing district in Bristol Bay was opened to commercial fishing for 18½ hours. Tennyson and other members of her family were fishing in that district, near Graveyard Point.
Trooper Joseph Wittkop (accompanied by a commercial fisheries biologist) conducted a "line patrol" of the district during this opener, and Wittkop observed a fishing net that was set in closed waters. When Trooper Wittkop hovered his helicopter over the buoy that was attached to the far end of this net, his GPS unit indicated that the buoy was about 150 feet into closed waters.
Wittkop landed the helicopter and made contact with Tennyson and other members of her family on the shore. During their conversation, Tennyson admitted that the net was hers, and that she leased the site where the net was set.
The two buoys attached to Tennyson's net did not carry her Commercial Fisheries Entry Commission (CFEC) permit number. Instead, the buoys were marked with permit numbers belonging to her sisters: the inner buoy was marked with a permit number belonging to Janet Schlagel, while the outer buoy was marked with a permit number belonging to Nora Armstrong.
When Trooper Wittkop asked Tennyson about this, she admitted that she knew her net was not marked with her permit number. Tennyson told Wittkop that it was "hard to mark a net" because several members of her family "all fish together".
Trooper Wittkop cited Tennyson for fishing in closed waters and for failing to mark her net with her own CFEC permit number. Following a bench trial, Tennyson was found guilty of these two minor offenses.
The evidence was sufficient to establish that Tennyson was operating the gillnet
Tennyson contends that the evidence presented at her trial was legally insufficient to establish that she was operating the gillnet in question, in part because (according to Tennyson) there is too much ambiguity in the law regarding what conduct constitutes "operating" a set gillnet.
The evidence, construed in the light most favorable to the judge's verdict, shows that Tennyson was on the shore near the gillnet, and that she admitted the net was hers. It is true that the buoys attached to this net were marked with the permit numbers of Tennyson's sisters, but Tennyson told Trooper Wittkop that this was because the members of her family fished as a group, and thus it was "too hard" for each member of the family to mark their buoys with their own individual permit numbers.
On appeal, Tennyson argues that this evidence was legally insufficient because the State presented no testimony that Tennyson personally set the net, or that she personally removed fish from the net, or that she personally transported fish caught in the net to be sold. Thus, Tennyson argues, even if the State presented sufficient evidence that she was the permit holder for this gillnet, the evidence was insufficient to prove that she was "operating" her net.
We reject this contention. As defined in 5 AAC 39.975(a)(22)(A), the phrase "to operate fishing gear" includes the act of deploying the gear in the water, or having gear deployed in the water. (See also AS 16.05.940(4), which declares that the phrase "operate fishing gear" means "to deploy or remove gear from state water", and AS 16.05.940(35), which broadly defines the "taking" of fish as any attempt at "pursuing, ... fishing, ... or in any manner disturbing, capturing, or killing" fish.)
According to Trooper Wittkop's testimony, Tennyson's gillnet was deployed in the water, laid out to catch fish. The net was therefore being "operated".
There was no direct testimony that Tennyson personally deployed the gillnet. In fact, Tennyson told Trooper Wittkop that members of her family "all fish together". But even if Tennyson was assisted by other members of her family in the physical process of laying out her net, she would still be legally responsible, under the rules of complicity, for the operation of her net. See AS 11.16.110.
Tennyson additionally argues that, because the State's evidence tying her to the operation of the gillnet was based exclusively on her own admissions, the State failed to satisfy the corpus delicti rule. This argument is based on a misunderstanding of the corpus delicti rule.
Under the corpus delicti rule, the government is not allowed to rely on a person's uncorroborated confession to prove that a crime has been committed. But if there is sufficient evidence to prove that a crime has been committed, the corpus delicti rule does not limit the government's ability to rely on the person's confession to prove that the defendant was the person who committed the crime. As this Court explained in Dodds v. State, "While corpus delicti requires independent evidence that the charged crime occurred, it does not require independent evidence that the defendant participated in that crime." 997 P.2d 536, 538-39 (Alaska App. 2000).
Here, the crime was the operation of a gillnet in closed waters. Trooper Wittkop's testimony was sufficient to establish that this crime occurred. The State could therefore properly rely on Tennyson's admissions to establish that she operated the gillnet.
For these reasons, we conclude that the evidence presented at Tennyson's trial was sufficient to establish that she was operating her gillnet.
The evidence was sufficient to establish that Tennyson's net was being operated in closed waters
Tennyson alternatively argues that even if the evidence was sufficient to establish that she was operating the gillnet in question, the evidence was nonetheless insufficient to establish that the net was in closed waters.
Trooper Wittkop testified that the outer buoy of the gillnet was 150 feet "outside of the district" — i.e., 150 feet into closed waters — and that the net's shoreward buoy was likewise in closed waters (although the trooper did not specify by how many feet).
Trooper Wittkop made these determinations by using his GPS unit — comparing the GPS coordinates of the buoys attached to the gillnet with the GPS coordinates of the demarcation line defined in 5 AAC 06.350(b)(1) for Graveyard Point. At the time of Tennyson's offense (i.e., in June 2014), this regulation read:
Tennyson does not dispute that her net was on the wrong side of the boundary line defined by the latitude and longitude coordinates specified in this regulation. However, Tennyson argues that the latitude and longitude coordinates specified in the regulation do not actually define the legal boundary between the waters open to fishing and the waters closed to fishing.
In support of this argument, Tennyson cites 5 AAC 39.291, a regulation titled "Boundary markers". This regulation gives the Department of Fish and Game the discretionary authority to mark fishing boundary lines with physical markers:
The department [of fish and game] may post a boundary described in regulation by an appropriate marker. The marker must be placed as close as possible to the location specified in the applicable regulation. Where markers have been lost or destroyed, the boundary is as specified in the applicable regulation.
According to Tennyson, this regulation means that when a fishing boundary regulation — such as the 2014 version of 5 AAC 06.350(b)(1) — defines a boundary in terms of physical markers located at specified latitude and longitude coordinates, then even when those markers are not placed at the latitude and longitude coordinates specified in the regulation, the markers will nevertheless take precedence over the latitude and longitude coordinates specified in the regulation (unless the physical markers have been lost or destroyed).
Tennyson notes that the 2014 version of the regulation defined each end of the boundary line in terms of a "ADF&G regulatory marker located at" specified GPS coordinates. Based on this, Tennyson argues that the boundary line was not actually defined by the listed GPS coordinates, but rather by the physical...
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