Hunter plans appeal ofelk baiting conviction |

Hunter plans appeal ofelk baiting conviction

An El Jebel man who was convicted by a jury last month for using bait to hunt and kill a cow elk and trophy bull elk is appealing the case.Marc McKinney filed a notice in Pitkin County District Court yesterday alleging that three errors were made by the trial judge in county court. Judge Erin Fernandez-Ely presided over the case when it went before a jury May 21. McKinney’s attorney, John Case of Aspen, contended in the notice of appeal that the judge made an erroneous instruction to the jury on a key point and that two pieces of evidence were erroneously allowed to be presented by the prosecution in the trial.The judge told the jury that McKinney’s conduct would be unlawful if he “knew or should have known” that bait was present at the specific area where he was hunting. Case contended that Colorado Division of Wildlife regulations define baiting as intentionally placing or distributing salt or minerals in an attempt to lure wildlife.During the trial, McKinney – along with several hunting buddies – testified they were unaware any salt was present in the area where McKinney killed the two elk during bow hunting season. He hunted south of mile marker 48 on Highway 82 east of Aspen along Independence Pass.McKinney emphatically testified during the trial that he didn’t place any bait at the site. He said he was sitting in a tree blind when the cow elk wandered into his range and was followed a short time later by a trophy bull.Testimony showed the bull was a hunter’s dream. It weighed at least 700 pounds and sported antlers that were roughly 4 feet high and 3 feet wide from the tips. Each beam had six points.Assistant District Attorney Gail Nichols built part of the case against McKinney around the fact that he was aware the area where he hunted had been salted by someone on at least two occasions in the 1990s. Nichols didn’t try to show that McKinney did the salting – only that he knew bait had been placed.In an interview prior to the appeal, Nichols said she anticipated that McKinney might challenge the conviction based on the contention that he should have known the bait was present. She said she researched case law in several states and found that the standard was usually that a hunter should have known about the presence of bait – not that the hunter had to have placed the bait.In the notice of appeal, Case also objected that the judge allowed a prosecution witness to testify that McKinney allegedly said 10 years ago that he had killed a buck using a salt lick. Case wrote that his client denied ever saying that, and it shouldn’t have been admitted because there was no additional evidence to verify it.Case objected as well to the judge’s decision to allow testimony which showed another hunter was given a ticket for using bait at a separate hunting site that McKinney shared with him.The prosecution tried to show that baiting was a regular tactic used by McKinney. Case argued that the evidence was irrelevant and shouldn’t have been admissible.A six-person jury found McKinney guilty of two counts of illegally taking elk while using bait. He was fined $1,000 for each count. In addition, he was fined $10,000 under a special state law for killing the trophy bull. Fees and costs boosted the total fine to $12,761. McKinney could also lose his hunting license if the conviction is upheld.A transcript of the trial is being prepared for the district judge to consider as part of the appeal. Case and Nichols will also prepare briefs stating their cases.Scott Condon’s e-mail address is

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