Falcon conviction dismissal sought

COEUR d'ALENE - An attorney representing Patti MacDonald has asked for her misdemeanor conviction to be dismissed.

Coeur d'Alene Attorney Michael Palmer filed a motion on July, 7 that claims jurors were not properly instructed when they found MacDonald, 60, guilty of pursuing a hunter's falcon. The misdemeanor, Palmer wrote, required the prosecution to prove that the protected bird was hunted or taken by MacDonald during the January incident.

"Given the evidence presented, no reasonable juror could have found that Ms. MacDonald 'pursued' the bird in question in the sense of hunting or taking it," Palmer wrote.

According to Palmer, Idaho statute says an individual is able to pursue a bird without actually hunting or taking it. However it is those acts, he wrote, that are required for a conviction.

"The instructions highlighted 'pursuit' or 'pursuing' because the state elected to specify only the pursuit aspect of taking or hunting in its complaint," Palmer wrote. "However a complaint cannot change the statutes nor the proof required to convict someone of a crime."

Palmer added that he requested the additional jury instructions during MacDonald's trial at the beginning of July, but the request was denied. The attorney also asked Judge James Stow for a new trial in the event the conviction is not dismissed.

MacDonald was accused of attacking Scott Dinger's falcon, Hornet, when she encountered the raptor attempting to complete a lawful kill of a duck near a corn maze attraction in Hauser. She was charged with two misdemeanor offenses, pursuing a protected bird and beating or harassing an animal, in connection with the Jan. 7 incident.

On July 2, after more than two hours of jury deliberation, she was found guilty of pursuing a protected bird.

Kootenai County Prosecutor Barry McHugh told The Press Tuesday that, while post-trial motions are not uncommon, his office would be opposing the request to have the case dismissed.

In a brief submitted to Stow on July, 21, prosecutor Art Verharen wrote that Palmer's motion had to be filed within 14 days of the jury's decision. If Stow wishes to overlook the motion being filed one day after the time limit, Verharen wrote that it should still be denied.

The prosecution, he wrote, submitted substantial evidence during MacDonald's trial that covered "every element of the charged crime."

"It consisted of multiple witnesses who heard Mrs. MacDonald's admission regarding her contact with the bird," Verharen wrote. "It consisted of eyewitness testimony that put her at the same location as the bird before it flew off erratically with its leg dangling. Furthermore, it consisted of expert testimony about the conduct necessary to make such a bird leave its prey ..."

Verharen added that the motion to dismiss did not back up Palmer's claim that hunting or taking a protected animal is a requirement to MacDonald's misdemeanor conviction. Idaho statute, he wrote, includes the word "pursue" in its definition of "take" and the word "pursuing" in its definition of "hunt."

"A plain reading of the definitions leads to the obvious conclusion that any of the methods listed under 'take' or 'hunt' are the various methods by which one could violate the law," Verharen wrote. "The instruction the court gave in this matter were appropriate in light of the charge."

A ruling on the motion is scheduled to take place in Kootenai County District Court on Aug. 19.