Falcon pursuit conviction stands

COEUR d'ALENE - A Kootenai County District Court judge ruled Monday that Patti MacDonald will not have her misdemeanor conviction dismissed, nor will she have to pay restitution.

Judge James Stow ruled on two motions regarding MacDonald being found guilty of pursuing a hunter's falcon. The first, brought forward by MacDonald's defense attorney, Michael Palmer, asked Stow to dismiss or retry the case because he said the misdemeanor required the prosecution to prove that his client intended to hunt or take the protected bird during the January incident.

"This isn't just a general definition of the word pursue, it comes out of the Idaho game code," Palmer said. "There wasn't any intention here of pursuing this (falcon) in the context of hunting."

Palmer added he requested the additional jury instructions during MacDonald's trial at the beginning of July, but the request was denied. The attorney also asked 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. Dinger found Hornet dead about an hour later and, during the trial, two expert witnesses confirmed the bird had suffered a broken skull and fractured leg.

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.

Prosecutor Art Verharen used two points to argue against Palmer's request for a dismissal or retrial. Court procedure, he said, required the motion for dismissal to be filed within 14 days of MacDonald's conviction.

Palmer filed his motion 15 days after the conviction and had argued that it was still within the proper time frame because the jury gave their verdict after 5 p.m.

"It's a creative argument," Verharen said. "But there is really no basis to it."

In addition to the time element, Verharen said there was no basis for the notion he needed to prove that MacDonald took or hunted the falcon. The definitions for both words in the statute, he said, include multiple words such as "trapping, shooting and pursuing."

After Stow ruled in favor of the prosecution on the motion for dismissal, Verharen argued in favor of the court ordering an undetermined amount of restitution to Dinger. The prosecutor told Stow that MacDonald's actions resulted in Hornet leaving the scene.

"It's possible it was killed by something else, we don't know," Verharen said. "But it's highly unlikely that the bird of prey would have left that area and never come back if not for that force (MacDonald striking the falcon with a scarf)."

However Palmer argued that his client had already been found not guilty of the beating or harassing of an animal. Even testimony from experts, he added, couldn't associate the injury and death of Hornet to MacDonald.

If restitution was granted in the case, Palmer said the state of Idaho would effectively be acting as civil attorneys for Dinger in a criminal sentencing.

Stow agreed with Palmer and denied the motion for restitution because the prosecution could not adequately provide a monetary amount of, or data supporting, injuries to Dinger.

MacDonald is scheduled to be sentenced in Kootenai County District Court on Sept. 28.