But I Wasn’t Poaching!

Poaching is defined, according to my Dictionary.com app, as “the illegal practice of trespassing on another’s property to hunt or steal game without the landowner’s permission”.

The definition makes sense, but most people probably wouldn’t give such a detailed answer if they were asked to define it. They would most likely say something along the lines of “to kill any animal when you had no right to”.

The common sense definition of poaching makes sense, but the Utah Code is not so cut and dry. Utah criminal law has four different levels of culpability, or in other words, has different levels of thinking that can lead to a criminal conviction. They are 1) intentionally, 2) knowingly, 3) recklessly, and 4) negligently (Utah Code § 76-2-101(1)(b)(i) ).

People generally tend to think that if they did not intend for something to happen, or did not mean for a specific result to occur, then they should not be found guilty. However, the law in Utah, as well as other States, is not written in such a way.

Utah Code § 23-20-3 says, in part, that:

(1) Except as provided in this title or a rule, proclamation, or order of the Wildlife Board, a person may not:

(a) take protected wildlife or its parts;

(b) collect, import, possess, transport, propagate, store, donate, transfer, or export protected wildlife or its parts;

(c) take, possess, sell, purchase, barter, donate, or trade protected wildlife or its parts without having previously procured the necessary licenses, permits, tags, stamps, certificates of registration, authorizations, and receipts required in this title or a rule, proclamation, or order of the Wildlife Board;

(d) take protected wildlife with any weapon, ammunition, implement, tool, device, or any part of any of these not specifically authorized in this title or a rule, proclamation, or order of the Wildlife Board;

This statute is basically a catch all, and allows for prosecution even when a Utah hunter did not intentionally break the law. An individual can even be prosecuted under this section if they made an honest mistake as to their location (thinking they were on a different tract of land).

The statute is allowed to catch ‘honest mistakes’ because of paragraph (3)(b). The paragraph says: “does so with criminal negligence as defined in Subsection 76-2-103(4). § 76-2-103(4) says:

“With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.”

A hunting example of criminal negligence would be if a hunter, who has a Nevada hunting license, thought he was in Nevada when he shot an animal, and was actually in Utah. Even though the hunter did not intend to take an animal illegally (poach), and had a license, he could be prosecuted under § 23-20-3.

Hunters, be careful. Know your location before you pull the trigger. Because, even though you have a license, and do not have the intent to take an animal unlawfully, ie. “I wasn’t poaching”, you could still be prosecuted for an honest mistake, or in the eyes of Utah law, criminal negligence.

In a key case, Utah said this, “Conduct is not criminally negligent unless it constitutes a ” ‘gross deviation’ from the standard of care exercised by an ordinary person.” State v. Standiford, 769 P.2d 254, 267 (Utah 1988). “[O]rdinary negligence, which is the basis for a civil action for damages, is not sufficient to constitute criminal negligence.” Id. In State v. Warden, 784 P.2d 1204 (Utah Ct.App.1989),6 this court explained, ” ‘[m]ere inattention or mistake in judgment resulting even in death of another is not criminal unless the quality of the act makes it so.’ ” Id. at 1207; see State v. Hallett, 619 P.2d 335, 338 (Utah 1980) (“The ‘negligence’ required in this context must be more than the lack of ordinary care and precaution; it must be something more than mere inadvertence or misadventure, but rather a recklessness or indifference incompatible with a proper regard for human life.”); see also State v. Hallett, 619 P.2d 335, 338 (Utah 1980) (upholding negligent homicide conviction when defendant pushed stop-sign to ground at two-way stop intersection thereby setting “a trap fraught with danger and possible fatal consequences”).

State v. Larsen, 2000 UT App 106, 999 P.2d 1252, 1257

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