BLONDIN v. STATE, A-9699 (Alaska App. 3-4-2009)

COATS, Chief Judge.

A jury convicted Randy R. Blondin of two counts of being an assistant guide who guided without supervision, one count of being a transporter who remained in the field with client, two counts of guiding nonresident aliens, and one count of failure to file a transporter report. Blondin appeals the guiding and transporter convictions, arguing that the verdicts are inconsistent and that the charges are duplicitous. First, he argues that he could not lawfully be convicted of guiding without the supervision of a registered guide and of acting as a transporter who remained unlawfully in the field with a client based on the same conduct. Second, he argues that he could not lawfully have two separate convictions for guiding as an assistant guide without supervision for guiding two clients at the same time. And third, he claims that he should not have received two separate convictions for guiding two nonresident aliens at the same time. For the reasons explained below, we remand the case for merger of the two convictions for guiding as an assistant guide without supervision but we otherwise affirm Blondin's convictions.

Facts and proceedings

Blondin and his wife operated Kodiak Charters, a company that provided transportation services to big game hunters.

On December 11, 2002, Alaska State Troopers received a report that Blondin was guiding nonresident aliens without being employed by a registered big game guide (an additional requirement for nonresident alien hunters in Alaska). Upon investigation, troopers saw Blondin's boat leave Larsen Bay and go to the area of Harvester Island. Alaska State Trooper Sven Skille saw Blondin's boat with two occupants drift with the current along Harvester Island looking in the h ills for deer. A fter drifting with the current, Blondin would motor back to drift again. Blondin later admitted he took Adrian Sada on his boat to look for deer.

That night, Blondin advised Sada and his hunting party they would be more likely to kill a deer if they chartered a plane and flew to some local lakes. At Sada's request, Blondin organized a flight charter with Roland Ruoss. On December 12, 2002, Ruoss picked up Blondin and three nonresident aliens — Sada and two of Sada's sons, including Frederico Gonzales — from Larson Bay. Ruoss flew them to Twin Lake and then to Harvester Lake. At Harvester Lake, Blondin and the hunters exited the aircraft to hunt deer they had seen.

Blondin stood near Sada and Gonzales while they shot at deer. When one of the hunters' firearm malfunctioned, Blondin cleared the malfunction and returned the firearm. After the hunters got one deer, Blondin and the hunters pursued another, unsuccessfully. Ruoss, the pilot, gutted the deer, and he and Blondin dragged it down the hill to the aircraft. Blondin later admitted he went into the field with the hunters on December 12, 2002.

The State charged Blondin w ith eleven counts. Blondin represented himself at trial before Superior Court Judge Joel H. Bolger. The State dismissed several counts before trial, the jury acquitted Blondin of one count, and Judge Bolger granted Blondin's motion for judgment of acquittal on one count. The jury convicted Blondin of the remaining six counts. This appeal followed.

Why we reject Blondin's argument that his transporter remaining in the field with client conviction is inconsistent with his convictions for guiding as an assistant guide without supervision

Blondin argues he could not be convicted of both being a transporter remaining in the field with client and guiding as an assistant guide without supervision because his conduct constituted a single hunt over a two-day period. Blondin's argument that his actions were one continuing course of conduct is not supported by the record.

To convict Blondin of being an assistant guide on a hunt without supervision under AS 08.54.720(a)(3), the jury had to find that Blondin was a class-A assistant guide and that he guided without being employed and supervised by a registered guide. To convict Blondin of being a transporter in the field with a client under AS 08.54.720(a)(19), the jury had to find that while Blondin was providing transportation services under a transporter license, he knowingly accompanied the client or remained with the client in the field.

The State explicitly charged Blondin for distinct events that happened on separate days, December 11 and December 12. And Blondin concedes on appeal that his conduct involved two days, different hunters, and separate hunting locations.

Before trial started, the State moved to amend the charges to describe specific dates for specific acts. The State charged Blondin with being a transporter in the field with a client for his activity in the boat with Adrian Sada on December 11, 2002. The State charged Blondin, an assistant guide, with guiding a hunt without being employed and supervised by a registered guide for his activities with Sada and Gonzales on December 12, 2002.

The evidence at trial showed that Kodiak Charters, Blondin's family's business, provided lodging and transportation to hunting clients. The Blondin family lived in and worked out of Larsen Bay, a town on Kodiak Island. The undisputed evidence at trial showed that on December 11, 2002, Blondin took Sada out in his boat to Harvester Island to look for deer. After their unsuccessful trip out in the boat, Blondin and Sada returned to Larsen Bay. That night, while Blondin was talking with Sada and the rest of his party, they decided to charter a plane to go hunting the next day. Blondin then made the charter arrangements. The following day, December 12, Blondin, Sada, Gonzales, and another individual flew out from Larsen Bay to two lakes, where they took a deer.

The State was explicit that the charges were for distinct acts, and the evidence at trial was consistent with that theory. The two acts were distinct forays into the field on different days, to different locations, involving different people. Based on the facts of this case, we reject Blondin's argument that his actions constituted one continuous event.

Why we conclude Blondin could not be convicted of two counts of guiding as an assistant guide without supervision

Blondin was convicted of two counts of violating former AS 08.54.720(a)(3), which made it unlaw ful for a licensed class-A assistant guide (the guiding license Blondin had) to "knowingly guide a hunt except while employed and supervised by a registered guide." These convictions were based on his actions on December 12, 2002, when he accompanied Sada and Gonzales on a plane trip where they shot a deer. The issue presented is whether Blondin could be separately convicted of violating this statute for illegally guiding two individuals at the same time at the same location.

Former AS 08.54.720(a)(3) made it unlawful for a licensed class-A assistant guide to "knowingly guide a hunt except while employed and supervised by a registered guide." This statutory provision is ambiguous: the language leaves open the question of whether liability hinges on the number of excursions or the number of individuals who were guided. Neither party has provided us with any case law or legislative history to resolve the ambiguity in this statute.

The definition of "guide" is "to provide for compensation . . . services, equipment, or facilities to a big game hunter in the field by a person who accompanies or is present with the big game hunter in the field[.]" This definition of guide might be read to imply that the number of clients matters. But in AS 08.54.720(a)(3), the legislature made it criminal to " guide a hunt." The actus reus of "guide a hunt" is not defined; nor does the statute define "a hunt."

Other subsections within the same statute, AS 08.54.720, criminalize conduct differently. For example, under AS 08.54.720(a)(1), a guide can be separately convicted for knowingly failing to promptly report each violation that is committed by a client or an employee. On the other hand, AS 08.54.720(a)(16) makes it unlawful to knowingly provide big game hunting service or transportation services when the person's license is revoked or suspended (and "transportation services" are defined as "the carriage for compensation of big game hunters, their equipment, or big game animals harvested by hunters to, from, or in the field"). It appears that a transporter can only be convicted of one violation under this subsection for transporting while the transporter's license is suspended or revoked, regardless of the number of clients involved.

A contextual reading of the challenged statutory provision does not shed light on the issue presented in this case. To the extent that the meaning of "guide a hunt" remains ambiguous, we must interpret it in favor of the defendant. "When the scope of a criminal statute remains unclear or ambiguous after it has been subjected to legal analysis, we are bound to construe the statute against the government — that is, construe it so as to limit the scope of criminal liability." Accordingly, we remand this case for the superior court to modify the judgment by merging the two convictions of guiding as an assistant guide without supervision.

Why we reject Blondin's argument that he could be convicted of only one count of guiding nonresident aliens

Blondin's final argument is that he could only be convicted of one count of guiding a nonresident alien despite the fact that he guided two nonresident aliens. He argues his underlying criminal conduct was illegally guiding a single hunt, and therefore, he concludes, he could only be convicted of one count, regardless of how many nonresident aliens participated in the hunt.

Blondin was prosecuted under former AS 08.54.720(a)(8)(A), which made it "unlawful for a . . . person who is licensed under this chapter to knowingly . . . commit or aid in the commission of a violation of this chapter, a regulation adopted under this chapter, or a state game statute or regulation[.]" The predicate crimes for which Blondin was prosecuted were Sada's and Gonzales's violation of AS 16.05.408. Alaska Statute 16.05.408(a) makes it "a class A misdemeanor for a nonresident alien to hunt, pursue, or take a big game animal as defined by the Board of Game unless personally accompanied by" a registered guide, or a class-A assistant guide who is employed by a registered guide. Thus, two underlying crimes were committed in Blondin's case — each nonresident alien hunting, pursuing, or taking a big game animal without being properly accompanied. Each nonresident alien committed a distinct crime, and Blondin was convicted of aiding in each of those violations.

To interpret this statute differently would contradict the plain language of the statute. Blondin does not argue the plain language is ambiguous, and he has not met his burden of showing a contrary legislative intent. We conclude that Blondin was properly convicted of two separate counts.

Conclusion

The judgment of the superior court must be modified to reflect the merger of the two convictions for guiding as an assistant guide without supervision. Because two of these convictions merge, the superior court must resentence Blondin. In all other respects, the judgment of the superior court is AFFIRMED.