Friday, October 22, 2010

Felony dismissed in elk poaching case

State botches test to determine animalís trophy status


By TERRY SMITH
Express Staff Writer

Blaine County Deputy Prosecuting Attorney Matt Fredback holds the antlers seized from Tony Mayer, a Twin Falls man accused of illegally killing a trophy bull elk in 2009. Magistrate Court Judge R. Ted Israel, shown in the background, dismissed a felony charge against Mayer. Photo by David N. Seelig

A felony charge was dismissed Wednesday against an accused elk poacher after a Blaine County judge determined that the Idaho Department of Fish and Game bungled an evidence test crucial to the case.

Tony Mayer, a 59-year-old Twin Falls man and the founder of the anti-wolf website SaveElk.com, still faces three misdemeanor game charges for allegedly killing a bull elk out of season last year in the Alturas Lake area of northern Blaine County.

While Magistrate Court Judge R. Ted Israel dismissed a felony count of unlawful killing of a trophy bull elk, he found during a preliminary hearing that Mayer illegally killed the animal.

"Clearly, if you add up the days from the defendant's story, then he killed the elk out of season," Israel said at the conclusion of the hearing in Hailey.

A preliminary hearing is a judicial procedure wherein a magistrate court judge determines if sufficient evidence exists to transfer a felony case to district court for further prosecution. Misdemeanor charges are not considered during a preliminary hearing, and Mayer is still charged with misdemeanor counts of hunting without an elk tag, hunting without an archery permit and unlawful possession of protected wildlife.

Israel scheduled a pretrial conference on the misdemeanor charges for Nov. 15. Mayer has pleaded not guilty to all three charges.

Israel dismissed the felony charge "without prejudice," which means that the Blaine County Prosecuting Attorney's Office has the option to refile the charge. Deputy Prosecuting Attorney Matt Fredback said Thursday that "we plan to refile."

Israel said he dismissed the charge because Fish and Game conducted an "invalid test" to determine if the elk was truly of trophy status.

In Idaho, the difference between illegally killing a trophy elk as opposed to a regular elk is the difference between a felony and a misdemeanor.

Trophy status is determined by the size and symmetry of the antlers, which is determined by official measurements using the "Boone and Crockett" measurement standards.

Israel determined that the test was invalid because Boone and Crockett standards require a 60-day drying period at room temperature to allow for fluid loss, a process referred to as shrinkage. Testimony at Wednesday's hearing showed that Fish and Game kept the antlers in a freezer storage locker and that the antlers were only kept at room temperature for three days prior to the test.

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Wolf hunt

Merritt Horsmon, a Fish and Game conservation officer for the Alturas Lake area, testified at the hearing that Mayer killed the elk on Oct. 3, 2009, three days after the bow hunt season ended on Sept. 30.

"He told us he hunted wolves for a couple of days, but said he didn't have any luck so he decided to hunt elk," Horsmon said.

Horsmon testified there were inconsistencies in Mayer's version of events, but that Mayer told investigators in an interview that he first shot the elk on Sept. 30 and only wounded it, then tracked the animal for two days and shot and killed it on Oct. 2.

Horsmon said photographs were seized from Mayer's computer when a search warrant was executed in November 2009. He said the photographs show Mayer and his wife and children posing with the dead elk and that the photos are dated Oct. 3, 2009. Also, Horsmon testified that there was snow on the ground in the Alturas Lake area on Sept. 30 and it was snowing off and on throughout the day. However, he said, the photographs show good weather with no snow.

Defense attorney John Lothspeich pointed out that Idaho law requires a hunter to pursue and retrieve a wounded animal. However, Horsmon said pursuit is not allowed after the end of hunting season and that even had the animal been shot on Sept. 30, Mayer should have contacted Fish and Game.

Horsmon testified that wounded elk don't necessarily die from their wounds.

"Elk are renowned for being very tough animals to bring down," Horsmon said. "They can take a lot of types of shots and survive."

Boone and Crockett

Roger Atwood, a retired police officer from Rexburg, testified that he is an official measurer for the Boone and Crockett Club, which sets the standards for determining trophy animal status for record setting.

Elk antler scores are measured in inches, with measurements of circumference, main beam and points of the antlers. Atwood said deductions are made for imperfections such as lack of symmetry.

He said he measured the antlers in the Mayer case on Feb. 3 and it scored 303 1/8.

Testimony showed that Boone and Crockett sets a minimum score of 360 for qualification as a trophy elk, but that Idaho code has a lesser standard and sets the minimum at 300.

Atwood said he did not know how long the antlers had been at room temperature prior to his measurements, but Horsmon testified they had only been out of freezer storage for three days.

Israel ruled that since shrinkage was not considered when Atwood measured the antlers there was no evidence to support the prosecution claim that the bull elk was of trophy status.

Lothspeich and Mayer declined to comment after Wednesday's hearing.

Terry Smith: tsmith@mtexpress.com




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