STATE v HANKINS
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No. 83-319 I N THE SUPREME COURT O F THE STATE OF MONTANA 1984 STATE OF MONTANA, P l a i n t i f f and R e s p o n d e n t , -vsROY XANKINS, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , I n a d F o r t h e C o u n t y of L e w i s & C l a r k , T h e H o n o r a b l e G o r d o n B e n n e t t , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: A n n L. Smoyer, Helena, Montana For R e s p o n d e n t : Mike Greely, Attorney General, Helena, Mike M c G r a t h , C o u n t y A t t o r n e y , H e l e n a , S u b m i t t e d on B r i e f s : Decided: Filed: 4Pi( ,i 1984 Clerk Montana Montana January 26, 1 9 8 4 A p r i l 30, 1984 Mr. J u s t i c e L . Court. C. Gulbrandson d e l i v e r e d t h e Opinion of Roy H a n k i n s , The d e f e n d a n t , was c h a r g e d on J u n e the 30, 1982, i n t h e D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , with the felony offense o b t a i n e d body p a r t s o f of trafficking a the a protected species. 1982, Hankins e n t e r e d a p l e a of 1983, in On A u g u s t 2 7 , not guilty. j u r y found Hankins g u i l t y of unlawfully On March 9 , t h e o f f e n s e charged. Hankins a p p e a l s from t h e j u r y v e r d i c t . We affirm. we note certain f a c t s relevant t o t h i s A t the outset, appeal : to sell or tag issued (1) I n o r d e r pelt must bear a a bobcat p e l t transfer by W i l d l i f e and P a r k s D e p a r t m e n t . a warden from the the Fish, The t a g i s d e s i g n e d s o t h a t i t c a n n o t b e removed w i t h o u t damaging t h e t a g . ( 2 ) During t h e t r a p p i n g s e a s o n involved i n t h i s c a s e , e a c h l i c e n s e e was a l l o w e d o n e b o b c a t . ( 3 ) The b o b c a t trapping season ran f r o m December 1, 1 9 8 1 t o F e b r u a r y 1 5 , 1982 and t h e r e were t e n d a y s from t h e c l o s e of t h e s e a s o n t o t a g a p e l t . On tagging, February 23, 1983, two H a n k i n s and h i s w i f e , days Nancy, before the end of had game w a r d e n J i m B i r d i n Townsend t a g a b o b c a t p e l t w i t h t a g number 707 f o r Nancy H a n k i n s . B i r d l a t e r t e s t i f i e d t h a t t h e p e l t "was o l d and d r i e d o u t , and t h e f u r was v e r y s h o r t . " Roy Hankins warehouse appeared at i n Helena w i t h the a Fish, T h a t same d a y Wildlife bobcat p e l t . and Parks The S t a t e l a t e r contended a t t r i a l t h a t t h e p e l t Bankins p r e s e n t e d i n Helena was the same pelt he had H a n k i n s r e c e i v e d t a g number tagged earlier in Townsend. 1901 from t h e Helena warehouse i s s u e d t o Hankins himself a s l i c e n s e e . Subsequently, H a n k i n s s o l d a p e l t b e a r i n g t a g number 1 9 0 1 t o B i l l Summers f o r $130. pelt to Pacific Hide and Summers Fur for in turn $10 o r sold the $15 b e c a u s e the b u y e r a t P a c i f i c H i d e and F u r c o n s i d e r e d t h e p e l t t o b e o f poor q u a l i t y . Warden J i m B i r d o f Thereafter, Townsend e x a m i n e d t h e p e l t w i t h t a g number 1 9 0 1 and l a t e r t e s t i f i e d a t t r i a l t h a t i t was t h e same p e l t h e had number 707. tagged at Townsend with tag B i r d a l s o l e a r n e d t h a t on a b o u t March 1 8 , 1 9 8 2 Hankins s o l d a h i g h q u a l i t y p e l t t o P a c i f i c Hide and Fur f o r $200. This p e l t , which B i r d l a t e r t e s t i f i e d h e had n e v e r s e e n b e f o r e , b o r e t a g number trial that t a g number 707. Bird 707 showed also testified a t s i g n s of t o o l marks and appeared t o have been p r i e d o f f . As a charged and 87-3-111, parts r e s u l t of of convicted MCA, a t h e f o r e g o i n g o c c u r r e n c e s H a n k i n s was by a jury of violating Section t r a f f i c k i n g i n t h e u n l a w f u l l y o b t a i n e d body protected species, a felony. Hankins was s e n t e n c e d t o s e r v e o n e y e a r i n t h e Montana S t a t e P r i s o n a l l of which was s u s p e n d e d i f H a n k i n s s p e n t t e n week-ends L e w i s and C l a r k jail, p a i d a f i n e of $1,000 in the and f o r f e i t e d h i s l i c e n s e t o h u n t , f i s h o r t r a p f o r two y e a r s . The f i r s t i s s u e H a n k i n s t h e D i s t r i c t Court e r r e d in r a i s e s on a p p e a l is w h e t h e r its i n s t r u c t i o n s t o t h e jury. Appellant contends t h a t because t h e information r e f e r r e d t o "bobcats"-- p l u r a l , t h e D i s t i c t Court should have i n s t r u c t e d t h e j u r y t h a t t h e y had t o f i n d t h a t more t h a n o n e b o b c a t was i l l e g a l l y taken i n order t o convict t h e appellant. Although the information did state that appellant e n g a g e d i n a common scheme t o t r a f f i c i n t h e "body p a r t s " o f unlawfully referred taken to reversible "bobcats," those error. terms In the purpose of jury singularly S t a t e ex C o u r t ( 1 9 7 4 ) , 1 6 5 Mont. that the 54, an rel. 525 P.2d i n s t r u c t i o n which does constitute McKenzie v . District 1211, t h i s Court h e l d information d e f e n d a n t o f what h e is c h a r g e d . not to is inform the " I t is n o t t h e f u n c t i o n of the information t o a n t i c i p a t e o r suggest i n s t r u c t i o n s t o t h e jury . . . It i s a n o t i c e d e v i c e , not a discovery device." S t a t e e x r e l . McKenzie, s u p r a , 1 6 5 Mont. a t 6 3 . Appellant a l s o a s s e r t s t h a t t h e D i s t r i c t Court's jury instructions failed t o d i s t i n g u i s h between the misdemeanor o f f e n s e s u n d e r S e c t i o n 8 7 - 3 - 1 1 1 ( 1 ) The misdemeanor p o r t i o n o f S e c t i o n 87-3-111, f e l o n y and a n d ( 4 ) , MCA. MCA, p r o v i d e s : " I t i s h e r e b y made u n l a w f u l f o r a n y person t o purchase, sell, o f f e r t o s e l l , p o s s e s s , s h i p o r t r a n s p o r t a n y game, fish, game bird, game animal or f urbear ing animal or part thereof p r o t e c t e d by t h e l a w s o f t h i s s t a t e , whether belonging to the same or d i f f e r e n t s p e c i e s from t h a t n a t i v e t o t h e S t a t e o f Montana, e x c e p t a s s p e c i f i c a l l y p e r m i t t e d by t h e l a w s o f t h i s S t a t e . " The f e l o n y p o r t i o n o f S e c t i o n 8 7 - 3 - I l l , MCA, p r o v i d e s : "Any p e r s o n e n g a g i n g i n t h e a c t i v i t i e s prohibited in subsection (1) in f u r t h e r a n c e o f a scheme t o t r a f f i c i n t h e body p a r t s o f u n l a w f u l l y t a k e n s p e c i e s i s g u i l t y o f a f e l o n y and s h a l l b e p u n i s h e d by a f i n e o f $ 1 0 , 0 0 0 o r i m p r i s o n m e n t i n t h e s t a t e p r i s o n f o r a term of 1 year o r both. " When read together, distinction the between the jury felony lesser i n c l u d e d misdemeanor number 1 provided, Hankins, is, by i n s t r u c t i o n s c l e a r l y draw offense offense. in pertinent part: information charged Court's and a the instruction "The D e f e n d a n t , Roy a.ccused of trafficking in unlawfully obtained body felony . .. " arts of a protected species, a Court's instruction number 10 provided, in pertinent part: "You are instructed that to prove the offense charged in this case, the State must prove the following propositions beyond a reasonable doubt: "First: That the bobcat pelt bearing tag #1901, or the pelt bearing tag $707, was unlawfully taken. "Second: That Roy Hankins purposely or knowingly purchased, sold, offered to sell, possessed, shipped or transported an unlawfully taken bobcat pelt, and that unlawfully taken pelt was the pelt bearing tag #1901, or the pelt bearing tag #707. "Third: That Roy Hankins committed or performed the acts described in the preceding paragraph in furtherance of a common scheme to traffic in the body parts of unlawfully taken species." Court's instruction number 14 distinguished between the felony charged and the misdemeanor offense by providing, in part: "You are instructed that to prove the misdemeanor offense of unlawfully buying, selling, possessing or transporting game, the State must prove the following propositions beyond a reasonable doubt: "First: That the bobcat pelt bearing tag #1901, or the pelt bearing tag #707, was unlawfully taken; and "Second: That Roy Hankins purchased, sold, offered to sell, possessed, shipped or transported an unlawfully taken bobcat pelt, and that unlawfully taken pelt was the pelt bearing tag #1901, or the pelt bearing tag #707. Court's instruction number 14 on the misdemeanor offense properly omitted the "common scheme" language required for a felony conviction. Moreover, "common scheme" accurately defined by court's instruction number was 7 which provided: "'Common scheme' means a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan which results in the repeated commission of the same offense or affects the same person or the same persons or the property thereof." Although appellant asserts the court's instruction on "common scheme" was an inadequate statement of the law, the instruction was taken directly from Section 45-2-101(7), MCA. On several previous occasions this Court has rejected challenges to jury instructions when restated statutory language. Mont. 196, 531 P.2d 319, 472 P.2d 288. those instructions State v. French (1975), 166 373; State v. Dunn (1970), 155 Mont. Likewise, the court's instruction on the definition of "trafficking" was taken directly from Section 87-3-111, MCA, and did not constitute reversible error. The District Court also did not err by refusing defendant's proposed jury instruction number 17 which set forth the duties of instruction has no fish and game wardens. relevance to purpose but to confuse the jury. the case it Where the serves no "An instruction should not be given if it is not relevant nor material to the evidence or issues in the case." 399, 436 P.2d 91. State v. Brooks (1967), 150 Mont. The fish and game wardens were not on trial in this case and appellant's proposed jury instruction was not relevant to the issues presented at trial. A review of the jury instructions in their entirety indicates the jury was fully and fairly instructed on the applicable law and we cannot reverse the decision of the District Court. State v. Higley (Mont. 1980), 621 P.2d Next appellant asserts that the legally insufficient Specifically, and appellant information was defective argues the on its language face. of the information insufficiently apprised the appellant of the charges that were being brought against him. The information stated the offenses essentially in terms of the statute with additional allegations of time and place. Montana follows the general rule that an information is sufficient if it properly charges an offense in the language of the statute describing the offense. State ex rel. Glantz v. District Court (1969), 154 Mont. 132, 461 P.2d 193. "An information need only be apprise the accused of the crime charged. perfect." P.2d sufficient to It need not be State v. Coleman (1978), 177 Mont. 732, 745. 1, 22, 579 Thus, the information in the case was legally sufficient and not defective on its face. The appellant also maintains that the District Court erred in failing to rule on appellant's motion to dismiss on grounds that the information was unsupported by probable cause. However, the record shows that the District Court denied appellant's motion to dismiss on March 7, 1983 immediately preceding trial by jury. Appellant also argues that the District Court erred in denying appellant's motion for a continuance. Eight months elapsed from the time of the filing of the information to the day of trial and the appellant has failed to demonstrate any prejudice that was caused by the District Court's denial of a continuance. "Motions for continuance are addressed to the discretion of the trial court and the granting of a continuance has never been a matter of right. The District Court cannot be overturned on appeal in absence of a showing of prejudice to the mova.nt." State v. Van Natta (Mont. Finally appellant argues the District Court erred in its sentencing of the appellant. Specifically, appellant inaintains the District Court erred by, (1) failing to order a presentence investigation; (2) failing to mention that appellant was to lose his trapping privileges; (3) charging the appellant by information with a felony but including misdemeanor sanctions in appellant's sentence; and (4) the sentencing was erroneous because potential punishment was not set forth in the information. Section 46-18-111, MCA, provides in pertinent part: "No defendant convicted of a crime which may result in commitment for one (1) year or more in the state prison, shall be sentenced or otherwise disposed of before a written report of investigation by a probation officer is presented to and considered by the court, unless the court deems such report unnecessary." (Emphasis added. ) The plain language of the statute indicates the necessity of a presentence investigation is within the sound discretion of the District Court and appellant's assertion that the District Court erred by refusing to conduct an investigation is without merit. explained Moreover, to appellant the District Court clearly its reasons for the sentence it imposed and appellant declined to object or respond to those reasons with any mitigating circumstances he could find State v. Bretz (Mont. 1979), 605 P.2d 974, 36 St.Rep. 1037. The District Court did not err by failing to mention appellant would lose his trapping privileges. The District Court clearly stated at sentencing that it would "impose the sanctions set forth in Section 87-1-102, MCA," which includes the loss of trapping privileges. Also, there is no merit to appellant's contention that the District Court could not use sentencing options in the felony which it could in the misdemeanor. includes the misdemeanor. Here, the felony Under Section 87-3-111, MCA, the State had to first prove the misdemeanor offense before it could prove the felony offense. Thus, the loss of hunting, fishing and trapping privileges was properly applied to the appellant. Lastly, the sentence was information failed punishment. not improper because to set forth appellant's the potential Section 46-11-401, MCA, which provides what the charge shall contain, does not require the State to inform the accused of the potential punishments for the offense. The State sustained its burden of proof and we find no reversible error. P The conviction is affirme &,L Justice / We concur: 3 Justice 4 ~ d Chief / Justices Mr. Justice Daniel J. Shea concurs and will file a written concurrence at a later time. SPECIALLY CONCURRING OPINION OF MR.. JUSTICE DANIEL J. SHEA STATE OF MONTANA VS . ROY HANKINS C L E W OF SUPRMWE @8UR'I; STATE OF NION1'LkNA DATED: January 6, 1985 Kr. Justice Daniel J. Shea specially concurring: 1 agree with the majority's decision to affirm the defendant's conviction. mz jority ' s ruling However, I cannot agree with the that the jury instructions on "common scheme" and "traffickins," which set forth statutory language verbatin, are valid statutory language. solely because they When a are drafted statute upon which s in jury instruction is based is amgiguous or difficult to understand, that jury instruction is also usually ambiguous or unclear. Merely setting forth statutory Language does not always fulfill the trial court's obligation to fully and accurately instruct the jury. be needed Additional.. or different instructions may in order to insure that the jury receives the clearest picture possible of the pertinent legal issues.
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