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State v. Schmid

Court of Appeals of Minnesota

December 23, 2013

State of Minnesota, Respondent,
v.
Roger Benedict Schmid, Appellant.

Stearns County District Court File No. 73-VB-11-13480

Lori Swanson, Attorney General, St. Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Caitlyn M. Prokopowicz Wilson, Assistant County Attorney, Kevin M. Voss, Assistant County Attorney, Carl Ole Tvedten, Assistant County Attorney, St. Cloud, Minnesota (for respondent)

John J. Neal, Willenbring, Dahl, Wocken & Zimmerman, PLLC, Cold Spring, Minnesota (for appellant)

Considered and decided by Schellhas, Presiding Judge; Hudson, Judge; and Ross, Judge.

SYLLABUS

Entering a deer-hunting area and concealing oneself behind a hunting blind while possessing a weapon loaded with ammunition suited to hunt deer constitutes "pursuing" deer under Minnesota Statutes section 97A.015, subdivision 47 (2010), which requires a deer-hunting license under section 97B.301.

OPINION

ROSS, Judge

A game warden found Robert Schmid in a deer blind in a deer-hunting area during hunting season dressed in blaze orange clothing and armed with a shotgun loaded with deer slugs. Schmid appeals from his conviction of hunting deer without a license. He maintains that the deer-hunting statute, which prohibits "pursuing" game without a license, does not include his conduct because "pursuing" game implies only direct pursuit, such as tracking or chasing game. Because we hold that "pursuing" deer includes Schmid's act of entering deer habitat to intercept and shoot a deer, we affirm.

FACTS

DNR officer Chad Thesing encountered Roger Schmid at 8:00 on a Sunday morning in November 2011 in an area in Stearns County where deer were being hunted. It was deer-hunting season. Schmid was sitting on his ATV enclosed in a camouflage deer blind. He wore blaze orange clothing, and a 12-gauge shotgun equipped with a scope and loaded with four deer slugs sat beside him.

Schmid told Officer Thesing that he had shot and killed a deer the previous evening. Officer Thesing asked to see Schmid's hunting license. He noticed that Schmid's license was missing a site tag, and Schmid admitted that he lacked a bonus permit to shoot a second deer. Officer Thesing told Schmid he would cite him for hunting deer without a license, a violation of Minnesota Statutes section 97B.301, subdivision 1 (2010). While Officer Thesing prepared to write the citation, Schmid volleyed various persuasions of innocence: he was hunting in a deer-hunting party with others; he was actually only nature watching; he was coyote hunting rather than deer hunting. Officer Thesing, not persuaded, issued the citation.

Schmid fought the citation. Before trial, he moved the district court to dismiss the charge because he claimed that his actions were not "hunting" or "attempting to hunt" under this court's decision in State v. Ritter, 486 N.W.2d 832 (Minn.App. 1992), review denied (Minn. Aug. 27, 1992). The district court denied the motion. At trial, Schmid and his wife testified that Schmid was not hunting but merely awaiting help to retrieve the deer he shot the previous day—an exculpatory explanation that differed from the three that Schmid had offered to Officer Thesing. Schmid moved for judgment of acquittal. The district court denied the motion, and the jury found him guilty of hunting deer without a license.

Schmid appeals the ...


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