Michigan man found guilty on charge stemming from elk hunt
By: Sean Dieterich, The Independent
08/08/2008
In a Monday ruling, the Pinetop Justice Court found a Michigan hunter guilty on one of two counts of firing too close to occupied residences during a 2007 elk hunt on Porter Mountain.
The state charged Michael Malik, a long-time hunter and hunt club owner in Davison, with two counts of discharging a firearm within a quarter-mile of an occupied residence. The charges stem from a July 26, 2007, incident in which Malik hunted and killed an large bull elk well known to residents of Mountain View Ranch on Porter Mountain Road.
Many residents complained the hunt took place too close to their homes. Arizona Game and Fish confiscated the elk and issued Malik with a citation.
A bench trial was held July 31 at the justice court. Judge Pro Tem David Antonini found John McClendon, an outfitter, not guilty for guide aiding or counseling a hunter in violation.
The trial lasted over 10 hours, with Antonini taking the case under advisement at the end of the trial.
During the trial, Malik's attorney, Bruce S. Griffen of Flagstaff, tried to prove the first shot was not within a quarter-mile of any occupied residence. Afterwards, when the elk was wounded, the defense said law enforcement had authorized a salvage and euthanasia operation, no longer making it a hunt.
In the case for McClendon, local defense attorney Dirk LeGate argued his client was not a guide for the hunt by definition, since he received no financial gain from Malik's hunt.
The prosecution, led by county prosecutor Clyde Halstead, argued Malik shot too close to the homes, without permission from the homeowners. The court heard from various witnesses during the trial, including Game and Fish officers, Mountain View Ranch residents and Malik and McClendon themselves.
According to a summary published by Game and Fish, Antonini ruled Malik was not guilty with taking the first shot too close to homes. Griffen said they were able to successfully prove the location of the first shot occurred further away than from what Game and Fish indicated and well outside the quarter-mile boundary. He said McClendon, when talking to Game and Fish on the scene, misidentified the location of the first shot. He said three witnesses testified to this fact, including Malik and McClendon.
"Three people testified that Game and Fish had the wrong location," he said. "There was no witness that supported the state's version at the end of the day."
Antonini then ruled that the location of and responsibility for the second shot was indisputable and Malik was guilty of the second count. Griffen said they do not agree with the decision and are looking at appealing it.
"We will be taking further steps to try to correct that," he said.
Antonini also found McClendon not guilty on his charge because the state did not provide sufficient evidence showing he directly gained financially from the hunt.
Game and Fish Public Information Officer Bruce Sitko said they are preparing a revocation packet, a typical process for any wildlife violation.
"Once the violator has gone through the justice court, the department also has an option to take that violation to a Game and Fish commission," he said.
Sitko said Game and Fish can ask the commission for a civil fine or revocation of a license, to be compounded with the court's sentence. He said license revocations would typically be for five years, although the commission could decide to make it shorter, but any revocation would extend to other Western states because of a pact between state wildlife organizations.
"It can have some far-reaching effects," he said.
It had been more than a year between the incident occurred and the trial was finally held. Sitko said the delays came from motions made by the defense lawyers, as they would come across new information relating to the case and needed sufficient time to prepare.
Another delay came, Sitko said, when the lawyers for Malik and McClendon motioned in May that the two be tried together. He said the state was going to try the two defendants separately.
Malik is scheduled for sentencing on Aug. 15.
