dissenting.
1136 I conclude M.C., the juvenile, did not violate the willful destruction of wildlife statute, § 83-6-117, C.R.S.2011, because the juvenile did not acquire an interest in the antelope by either (1) being present when it was shot, or (2) later returning to the seene to hide the carcass. I also conclude that the statute under which the juvenile was adjudicated a delinquent, § 88-6-117(1)(a)(I1), C.R.S.2011, is unconstitutionally vague. Thus, I respectfully dissent..
1837 Section 88-1-101, C.R.S.2011, defines all the acts by which someone may lawfully acquire an interest in the wildlife of this state:
(1) It is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors....
(2) All wildlife within this state not lawfully acquired and held by private ownership is declared to be the property of this state. Right, title, interest, acquisition, transfer, sale, importation, exportation, release, donation, or possession of wildlife shall be permitted only as provided in articles 1 to 6 of this title or in any rule or regulation of the wildlife commission.
T 38 Section 88-6-117 protects the wildlife of this state by proscribing ways a person may acquire an interest in wildlife:
(1)(a) ... [I]t is unlawful for a person:
(I) To hunt or take, or to solicit another person to hunt or take, wildlife and detach or remove, with the intent to abandon the carcass or body, only the head, hide, claws, teeth, antlers, horns, internal organs, or feathers or any or all of such parts;
(I1) To intentionally abandon the carcass or body of taken wildlife; or
(III) To take and intentionally abandon wildlife.
[[Image here]]
(2) The purpose and intent of this section is to protect the wildlife of this state from wanton, ruthless, or wasteful destruction or mutilation for their heads, hides, claws, teeth, antlers, horns, internal organs, or feathers, from being taken and abandoned, 'or any or all of the foregoing, and the provisions of this section shall be so construed.
1 39 I respectfully contend that, if subsection (1)(a)(II) is read to constitute a separate crime, the statute is unduly vague in violation of the Fourteenth Amendment.
I. Protecting Wildlife by Preventing Waste of the Carcass
T40 The parties do not dispute that a different juvenile alone shot and killed the antelope. Yet, the juvenile here was conviet-ed only under section 83-6-117(1)(a)(I1), for intentionally abandoning the carcass or body of taken wildlife. I agree with the majority that wildlife cannot be abandoned by a person unless the person has a possessory interest in the animal and the concomitant intent to abandon the carcass. I believe, however, that such an interest is not derived from the common meaning of the word "abandoned," but rather is identified in subsection (1)(a)(I) of the statute.
T 41 Subsection (1)(a)(I) proscribes ways in which the actor may acquire an interest in wildlife. These include the actor hunting or taking the wildlife, or soliciting another to do so, and removing parts, with the intent to abandon the rest of the carcass. This is directed at trophy hunting. Section 33-1-102(8), C.R.S.2011, defines "carcass" as "the dead body of any wildlife or a portion thereof."
T42 Subsection (1)(a)(III) of the willful destruction of wildlife statute prohibits taking and intentionally abandoning the entire carcass. It includes the thrill kill seenario where the animal is taken purely for sport and the entire carcass is wasted. That is the subsection the other juvenile appears to have violated when he shot the antelope.
*1040€{43 Although the majority reasons that subsection (1)(a)(I1), by virtue of its use of the passive voice, creates criminal liability for "abandonment by someone other than the initial taker" of the wildlife, I believe this reasoning leads to unreasonable results, including the fact that the juvenile here is punished for having the intent to abandon the carcass of wildlife that had already been wasted (because the antelope had been shot and abandoned by the other juvenile hours before).
{44 The definitions of several statutory terms, all of which refer to active rather than passive conduct, support my view. "Hunt" means "to pursue, attract, stalk, lie in wait for, or attempt to shoot, wound, kill, trap, capture, collect, or take wildlife." § 88-1-102(25.5), C.R.S.2011. "Take" means "to acquire possession of wildlife." § 38-1-102(43), C.R.S.2011. "Possession" means "either actual or constructive possession of or any control over the object referred to." § 83-L-102(84), C.R.S.2011.
T 45 Moreover, because the proscribed taking deprives the people of this state of the use, benefit, and enjoyment of the wildlife at the time the wildlife is killed, see § 83-1, 101(2), I believe the legislature intended to define the prohibited possessory interest as occurring at that time and not hours later by someone uninvolved in the taking.
T 46 I also believe that the inherently undefinable, and expansive, identity of a person who is deemed to obtain possession of a wildlife carcass by, for example, acquiring some undefined right or interest in that carcass "after the initial taking but before abandonment" as the majority believes occurred here, creates liability beyond that defined by the legislature. For instance, would a curious hiker who stumbles on the carcass of a deer recently shot and killed, grasps its foreleg, and then thinks to herself, "Such a shame," releases the foreleg, and goes on her merry way, be determined to have possessed the carcass and thereby deemed to have committed a felony for intentionally abandoning the carcass or body of taken wildlife? Or would a different hiker who, having heard the shot that killed an elk, comes running up to the carcass of the elk after the shooter and any companions left, rolls the carcass over with his boot, decides the meat on the carcass was not worth saving, and leaves the carcass be determined to have possessed the animal and thereby committed a similar felony?
{47 Because the juvenile here was not charged under subsection (1)(a)(I), and the prosecutor did not allege the juvenile was complicit in the taking and abandoning of the antelope under subsection (1)(a)(II1), I would reverse the juvenile's adjudication.
II. Void for Vagueness
{48 In addition, I conclude that section 33-6-117(1)(a)(II), standing alone, violates the Fourteenth Amendment's protection against arbitrary and capricious government laws and actions.
49 "A law that is unduly vague violates the Due Process Clause of the Fourteenth Amendment." - Independence Inst. v. Coffman, 209 P.3d 1130, 1136-37 (Colo. "The vagueness doctrine helps to ensure that a law is sufficiently definite so that citizens will be alerted to the conduct that is pro-seribed and they may act accordingly, and so that the law will not be arbitrarily applied." Id. at 1187. "A law is vague where persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application." Id.
150 In my view, the acts necessary to establish a possessory interest in the wildlife such that its body or carcass could be abandoned under subsection (1)(a){II), standing alone, is not defined, leaving the courts and the actor to guess as to what the law proscribes. Thus, I conclude that this statute, when read in isolation, is void for vagueness.
{51 I agree with the majority that the term "taken" used in this subsection "creates ambiguity by failing to identify the actor." Assuming it does apply to a third party who was not the initial taker, however, I conclude this subsection does not define what conduct of that third party would be proscribed. As applied to the juvenile's situation, the statute does not define which of his acts, after the point at which he witnessed the other juvenile shoot and abandon (and thereby waste) *1041the antelope, would suffice for criminal liability.
$52 And imposing liability under the destruction of wildlife statute for the juvenile's conduct that occurred after the animal had already been taken and abandoned, in my view, creates confusion as to what conduct constitutes abandonment. - The dictionary definitions of abandonment cited by the majority do not delineate what possessory interest a person has when he or she drags an already wasted carcass or assists in concealing it. This confusion was evidenced by the trial court, which provided an alternative ruling supporting the juvenile's adjudication that, because the juvenile was present and holding a flashlight, he was part of the plan. That is, apparently the trial court did not believe that the juvenile needed to touch the careass to abandon it.
153 The majority assumes that the juvenile "acquired an interest or right in the carcass of wildlife taken by another" because he may have dragged the carcass and assisted in concealing it. However, because the juvenile here was not charged as an accessory after the fact, I would reverse the adjudication of delinquency.
1 54 For the foregoing reasons, I respectfully dissent.