No. 92-322
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WELCH BROGAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Pete L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard L. Kalar, Attorney at Law, Boulder,
Colorado
Joe Gary, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Paulson, Ass't Attorney General, Helena, Montana
Tara DePuy, Deputy Park County Attorney, Livingston
Montana
Submitted on Briefs: ~ u g u s t1 9 , 1993
Decided: October 15, 1993
~usticeJohn Conway Harrison delivered the opinion of the Court.
Defendant Welch Brogan (Brogan) appeals his convictions for
failing to maintain fences on his game farm and illegally capturing
wild elk for use in his game farm business, following a bench trial
in the District Court of the Sixth Judicial ~istrict,Park County.
We aff irm.
Brogan raises eight issues and numerous sub-issues on appeal,
which we consolidate and rephrase as follows:
1. Did the District Court err by denying Brogan's motion to
dismiss on the grounds that the complaints failed to adequately set
forth violations of Montana law?
2. Is there sufficient evidence in the record to support
Brogan's convictions?
Brogan, 85, has owned and operated an elk game farm in Corwin
Springs, Montana, since 1946. Known by some as the "granddaddy of
all elk farmers," Brogan buys and sells elk in the local, national
and international markets. At times, he has had up to 250 head of
elk in his inventory.
From 1946 until 1983, Brogan operated an elk farm on the west
side of Highway 89, approximately ten miles north of Yellowstone
National Park. In 1983, he relocated the farm next to his home on
the east side of the highway. The Montana Department of Fish,
Wildlife and Parks (Department) approved an expansion of Brogan's
elk farm and his use of electric fence to contain his elk and
prohibit access of wild game.
The elk farm is comprised of approximately 400 acres, most of
which is rugged, mountainous terrain. Behind Brogan's house to the
northeast is a rectangular pen, which generally houses bull elk
(bull pen). To the north of his house, adjacent to the bull pen
and joined by a corral, is a triangular pen. To the northwest,
adjacent to the triangular pen, is a cow pasture, which generally
houses cow elk (cow pen). North of the triangular pen and cow pen
is a large mountain pasture (upper mountain pasture), and
east/northeast of the upper mountain pasture is Forest Service
land. At the northernmost of the triangular pen, a series of
non-electric gates connects the triangular pen, the cow pen, the
upper mountain pasture and Forest Service land.
Electric fence separately encloses the upper mountain pasture,
the triangular pen, the cow pen and the bull pen. The electric
fence, which emits 5,000 to 6,000 volts of electricity, has
transponders which remit signals to a shed near Brogan's home if
the fence malfunctions. The fence is broken down into sections,
which Brogan can monitor from his home and control from a panel in
the shed. The panel allows Brogan to identify which, if any,
section of fence is malfunctioning.
Brogan has enjoyed a good relationship with the Department.
In 1946, the Department approved Brogan's elk farm. In 1984, the
Department approved Brogan's expanded elk farm and electric
fencing. Over the years, various Montana game wardens have
inspected Brogan's elk farm, counted his elk, checked for disease,
reviewed his record books, and helped him trap and remove wild deer
from his elk farm.
On December 5, 1988, Game Wardens Randy Weurtz, Jim Kropp and
Hank Fabich inspected Brogan's elk farm. During this routine
inspection, they counted 90 elk: forty-five cows and calves in the
cow pen and forty-five de-antlered bulls in the bull pen (bulls are
de-antlered so as not to injure their handlers or one another). On
December 5th, the wardens' count matched Brogan's records.
On February 6, 1989, while patrolling the late season elk hunt
near ~ardiner,Montana, Weurtz was checking hunters on cinnabar
Mountain. From that vantage point, he noticed unusual movement
across the river on Brogan's elk farm. Though his view of the
lower triangular pen was partially obscured, Weurtz observed about
forty elk--cows, calves and antlered bulls--running back and forth
in Brogan's triangular pen. The elk in that pen were apparently
wild, spooked and entrapped by a closed gate. According to Weurtz,
Brogan's cow elk in the cow pen and de-antlered bull elk in the
bull pen remained calm, yet watched the wild elk with curiosity.
Based on his suspicion that Brogan was harboring wild elk,
Weurtz contacted his supervisor, Warden Bud Hubbard. Hubbard
suggested a reconnaissance flight over Brogan's elk farm. On an
early morning flight of February 7, 1989, Weurtz observed elk in
the upper mountain pasture, animal tracks through that gate
preserved in snow-covered ground, and hay just inside the gate.
Weurtz, Hubbard and Kropp visited Brogan earlythat afternoon.
Fabich and fellow warden, Terry Hill, watched from the Ranch
Kitchen, a Corwin Springs restaurant from which they could
partially observe the elk farm. Hubbard informed Brogan that they
wished to inspect his elk. Brogan asked if the wardens would mind
returning in an hour and a half, when one of Brogan's hired hands
would be available to assist with the count. Hubbard agreed.
The wardens drove across Highway 89 to Cinnabar Mountain to
observe the elk in Brogan's pens. The weather was clear. They
observed calm cow elk in the cow pen, calm bull elk in the bull
pen, and mixed wild elk--cows, calves and antlered bulls--running
in the triangular pen. All gates were closed. Minutes later, the
wardens saw Brogan and an assistant drive to the series of gates
and open the gate connecting the triangular pen to Forest Service
land. Brogan and his assistant then drove to the bottom of the
triangular pen and herded the wild elk up through the open gate.
The wardens counted at least 80 head of wild elk being forced from
the triangular pen. Scurrying to escape, one cow elk attempted to
jump the fence leading to the upper mountain pasture. She became
entangled in that fence, eventually freed herself and, injured,
limped off into the upper mountain pasture.
The wardens immediately drove to Brogan's ranch. They met
Brogan and his assistant, Blake Romey, who were walking down from
the triangular pen. Hubbard asked Brogan what had just taken
place. Brogan replied that he was attempting to remove some wild
deer from his elk farm. Hubbard challenged that claim, explaining
that the wardens had just watched him run wild elk from his farm
onto Forest Service land. Brogan then stated that he was trying to
recapture one of his bull elk, which he may have lost back in
January. Brogan had not reported the lost bull, as required by
State law.
Hubbard told Brogan that he had violated Montana law. The
wardens then secured further evidence. They photographed the elk
tracks and noted that hay was spread just outside and inside of the
triangular pen. They observed a doe deer and a healthy, wild cow
elk in the upper mountain pasture; not the injured cow elk they had
seen jump the fence.
The wardens saw elk and deer tracks leading to and from Forest
Service land and the upper mountain pasture, through the electric
fence. When Weurtz's dog, which was along for the ride, ran out
and back in through the electric fence unaffected, the wardens
concluded that the electric fence was turned off.
The wardens and one of Brogan's assistants then counted
Brogan's elk. The cow count matched what was documented in
Brogan's records. The bull count yielded one less bull than was
documented in Brogan's records.
On May 30, 1989, the Department cited Brogan for three
violations of Montana law under 9 87-1-201, MCA (1989):
1. Failure to maintain fence on a game farm in such a
manner as to prevent entry of wild game animals to the
triangular pen in violation of Department regulations.
2. Failure to maintain fence on a game farm in such a
manner as to prevent entry of wild game animals to the
upper mountain pasture in violation of Department
regulations.
3 . Unlawfully capturing over 80 wild elk in violation of
Department regulations.
Following a bench trial on November 27, 1989, the Park County
Justice Court found Brogan guilty on all three counts. Brogan was
notified of the verdict on December 12, 1989, and he appealed to
the Park County District Court.
On April 12, 1991, Brogan filed a motion to dismiss on the
grounds that the complaints failed to adequately set forth
violations of law. The District Court denied the motion and a
bench trial was held on April 15, 1991, and May 1, 1991. After
receiving post-trial briefs from the parties, the ~istrictCourt
entered its findings of fact and conclusions of law on September 6,
1991. The District Court fined Brogan $500 on each of the three
counts. Brogan appeals.
Did the District Court err by denying Brogan's motion to
dismiss on the grounds that the complaints failed to adequately set
forth violations of Montana law?
Brogan challenges the sufficiency of the charging documents.
He first argues that by charging him under § 87-1-201, MCA (1989),
the Department failed to provide him adequate notice of the
offenses charged. That statute, he argues, merely sets out the
Department's powers and duties.
Brogan received one citation for failure to maintain the upper
mountain pasture fence and another for failure to maintain the
triangular pen fence. He suggests that he should have been charged
for these violations under 12.6.1503 A.R.M. (1989). That rule on
game farm fencing requirements provides in pertinent part:
(3) The fence shall be maintained in a game-proof
condition at all times. If cloven-hoofed game are able
to pass through, under, or over the fence because of any
local topographic or other conditions, the licensee shall
supplement the fence so as to prevent such passage.
Brogan received a third citation for unlawful capture of 80
wild elk. He suggests that he should have been charged for this
violation under § 87-4-418, MCA (1989). That statute, on unlawful
capture, states that "[nlo person may capture, take, or otherwise
acquire any game animal in this state for use on a game farm except
as provided in 87-4-410." Section 87-4-410, MCA (1989), in turn,
sets out specific procedures for the game f a n licensee and the
Department to follow when capturing and removing wild game from a
game farm.
The Department agrees that if Brogan were charged simply with
violating § 87-1-201, MCA (1989), then his argument would have
merit. That statute provides in pertinent part:
(1) The department shall supervise all the wildlife,
fish, game, game and nongame birds, waterfowl, and the
game and fur-bearing animals of the state. It possesses
all powers necessary to fulfill the duties prescribed by
law and to bring actions in the proper courts of this
state for the enforcement of the fish and game laws and
the rules adopted by the department.
(2) It shall enforce all the laws of the state
respecting the protection, preservation, and propagation
of fish, game, fur-bearing animals, and game and nongame
birds within the state.
Brogan next argues that where conduct alleged in the complaint
may be wholly innocent, the unlawfulness of the conduct must be
either stated expressly or by using terms or facts which clearly
imply the unlawfulness. See People v. Campbell (Ill. App. Ct.
1972), 279 N.E.2d 123, 124. We determine that the complaints
expressly stated the unlawfulness of Brogan's conduct, using facts
and terms which clearly explained the offenses charged.
Brogan further argues that the charging language of the
complaints is insufficient because it fails to precisely track the
statutes under which he should have been charged. To support his
contention, Brogan relies on People v. Hayn (Ill. App. Ct. 1969),
253 N.E.2d 575. In m, the court held that an indictment failing
to allege the mental state element of theft was insufficient to
charge an offense and was, therefore, fatally defective. Hayn, 253
N.E.2d at 577. However, as the Department correctly asserts,
Montana does not test the sufficiency of charging documents by such
a rigid rule. Rather, we apply the tlcommonunderstandingM rule.
State v. Board (1959), 135 Mont. 139, 142, 337 P.2d 924, 926; see
also 5 46-11-401(c) (iii), MCA (1989).
The common understanding rule requires that a court determine
whether the charging language allows a person of common
understanding to know what is intended to be charged. Board, 337
P.2d at 142 (citing State v. McGowan (1908), 36 Mont. 422, 425-26,
93 P. 552, 554). Moreover, the test of the sufficiency of a
charging document is whether the defendant is apprised of the
charges and whether he will be surprised. State v. Bogue (1963),
142 Mont. 459, 462, 384 P.2d 749, 750. We have held that if the
facts, acts and circumstances of an offense are sufficiently set
forth in a complaint, then erroneously naming the offense or an
erroneous statutory reference will not invalidate the charge.
State v. Collins (1987), 226 Mont. 188, 191, 734 p.2d 686, 688-89
(citations omitted).
In this case, the complaints clearly detailed specific
violations of law. The Department contends and the record shows
that the complaints specify the particular facts and date of the
violations. Brogan knew full well what offenses he had been
charged with. He was prosecuted in Justice Court on the same
complaints. Nothing in the record indicates that the Department's
proof or theories changed on appeal to the District Court.
Brogan was not surprised by the alleged inadequacies of the
complaints. At most, the slight imperfections in the complaints
constituted harmless error. See State v. Pearson (1985), 217 Mont.
363, 367, 704 P.2d 1056, 1059. From the record, it is clear that
Brogan presented a complete defense to all charges brought against
him. We hold that the District Court properly denied Brogan's
motion to dismiss and correctly concluded that Brogan had adequate
notice of the charges brought against him.
Our decision here is distinguishable from our holding in State
v. Later (Mont. 1993), - P.2d , 50 St-Rep. 1099. A careful
review of this record reveals that the instant case fits within the
Lonqneck line of cases, distinguished in the recent Later case.
State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436. "The
Loncrneck line of cases concern informations [or complaints] which
fully inform the defendant charged 'of what was intended to be
charged and against what he was required to defend."' Later, 50
St.Rep. at 1100.
Brogan was fully informed as to the specific conduct engaged
in which formed the basis of the complaint. Additionally, he was
informed that his conduct violated Department regulations. Here,
the erroneous statutory citation was a minor error which did not
prejudice a substantial right of the defendant..
The defendant in Later, on the other hand, was not notified of
the specific conduct which formed the basis of the official
misconduct violation until after the defense had rested and the
jury instructions were being settled. We concluded that an
amendment to the complaint at such a late date, to a completely
different statute, substantially altered the underlying offense
which formed the basis of the official misconduct violation. Such
was not the case here, as Brogan was able to present a defense
tailored to the specific conduct which formed the basis of the
Department's complaint.
I1
Is there sufficient evidence in the record to support Brogan's
convictions?
Where the sufficiency of the evidence is at issue on appeal in
a criminal bench trial, the standard of review is whether, after
reviewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State
V. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110 (citing State
v. Riley (l992), 252 Mont. 469, 830 P.2d 549). In addition, the
credibility of the witnesses and the weight of the evidence are
exclusively within the province of the trier of fact. State v.
Whitcher (1991), 248 Mont. 183, 188, 810 P.2d 751, 754.
"The [trier of fact] is not bound to blindly accept a
defendant's version of the facts." State v. Sorenson (1980), 190
Mont. 155, 170, 619 P.2d 1185, 1194. If events are capable of
different interpretations, the trier of fact determines which is
most reasonable. State v. Matson (1987), 227 Mont. 36, 39-40, 736
P.2d 971, 973 (citation omitted). Section 26-1-501, MCA, permits
the trier of fact to make inferences based on the facts proved.
In the case before us, the District Court, the trier of fact,
assessed the credibility of the witnesses and weighed the evidence.
The court found the Department's version of the events more
credible than Brogan's.
Brogan contends that the evidence relied on by the Department
was circumstantial and not inconsistent with the rational theory
that he was attempting to recapture an escaped bull elk. See State
v. Starr (1983), 204 Mont. 210, 664 P.2d 893. However, the
Department presented direct evidence of the charged violations.
The game wardens saw wild elk entrapped in the triangular pen on
Brogan's elk farm. They testified that they saw Brogan and his
assistant open the gate connecting the triangular pen to Forest
Service land. The wardens testified that they watched the pair
return to the base of the triangular pen and force more than 80
head of wild elk from Brogan's elk farm onto Forest Service land.
The wardens further testified that they observed a wild cow elk
injure herself when jumping the fence leading to the upper mountain
pasture; yet they noted a different, healthy cow elk and doe deer
in the upper mountain pasture as well. Their testimony is direct
evidence of Brogan's unlawful capture of wild elk and of his
failure to maintain game-proof fences surrounding the triangular
pen and upper mountain pasture.
The District Court found that deer entered Brogan's upper
mountain pasture through the electric fence; that the gate
connecting the upper mountain pasture to Forest Service land was
open during the week preceding February 7, 1989; and that the
fences were not electrified on February 7th. These findings
support the District courtls' conclusion that Brogan failed to
maintain his fences to prevent the entry of wild game animals.
Brogan asserts that it would have been impossible for him to
use any of the elk in question, as he can only sell elk which are
double-tagged in their ears by a state-licensed veterinarian. He
argues that it would have been foolish for him to trap and use wild
elk, which present disease and health dangers to his healthy elk.
Brogan argues that the reasons he left gates open and
strategically placed the hay were: 1) to lure his escaped bull elk
back onto the farm; and 2) to bait wild deer out of his upper
mountain pasture. This "bait and pray" tactic, Brogan contends, is
standard industry practice for removing wild animals and
recapturing escaped elk--a tactic the Department knew about and
endorsed. Brogan further argues that the Department helped him
remove deer on an ongoing basis.
It is true that the Department at one time provided Brogan
with traps to remove wild deer and even assisted Brogan with "bait
and prayn tactics in the past. However, as Warden Hubbard
testified, the Department must supervise any operation where a gate
to the wild is open. Otherwise, the fence is not being maintained
in game-proof condition. The Department never gave Brogan
permission to conduct an unsupervised "bait and pray" operation.
Brogan argues that 87-4-419, MCA (1989), directs him to
"make every reasonable effort to recapture" his game farm animals.
However, Brogan apparently ignored the direction in the same
sentence of that statute which provides that "the game farm
licensee shall immediately notify the department of [the animal's]
escape." Brogan contends that he did not know he was required to
contact the Department i f his elk escaped. However, he testified
that when one of his elk escaped in 1982, while he was working in
Alaska, he "called one of the game wardens to tell them we had an
elk out .I1
The record supports the District Court's finding that Brogan
failed to notify the Department of his alleged escaped bull until
twice confronted by Warden Hubbard about releasing wild elk from
his triangular pen. As the Department correctly points out, the
District Court was not obligated to accept Brogan's explanations
and rationale for his conduct. Rather, the District Court heard
testimony, observed the witnesses and gauged their credibility, and
concluded that Brogan intended to capture the wild elk for use on
his game farm.
Brogan next argues that the Department failed to prove beyond
a reasonable doubt that he intended to use the wild elk he captured
on his elk farm. See 5 87-4-418, MCA (1989). Conversely, the
Department argues, and we agree, that it need not prove how Brogan
planned to use the elk. The rule in Montana is that circumstantial
evidence is an "acceptable and often convincing method of proving
criminal intent.' State v. Pascgo (1977), 173 Mont. 121, 126, 566
P.2d 802, 805. "The existence of a mental state may be inferred
from the acts of the accused and the facts and circumstances
connected with the offen~e.'~ Section 45-2-103(3), MCA (1989).
Circumstantial evidence alone may be sufficient to sustain a
conviction. State v. ~uckingham (1989), 240 Mont. 252, 783 P.2d
1331.
The direct evidence of Brogan's offenses is compelling:
however, the circumstantial evidence--such as the animal tracks,
the hay placed near the gates, the absence of electric power in the
fence, Brogan's request that the wardens return upon learning that
they planned to inspect his farm, and his evasive answers when
confronted about the events of February 7, 1989--additionally
supports any inferences drawn by the District Court, as well as its
findings of fact and conclusions of law.
Brogan contends that he is being charged with felony criminal
activity, which, he argues, requires proof of concurrent intent.
Brogan is mistaken. He was charged under Title 87 of Montana's
fish and wildlife statutes. The penalty provision of Title 87
provides that a person who violates any provision of Title 87 is
guilty of a misdemeanor. Section 87-1-102, MCA (1989). Brogan's
offenses were misdemeanors, not felonies.
Brogan finally argues that he should not be held accountable
for the actions of Joe Heimer, his hired hand, who actually closed
the gate which entrapped wild e l k on Brogan's elk farm. However,
Heimer told Warden Weurtz that he closed the gate in accordance
with Brogan's instructions. Heimer testified that Brogan wanted
the gate closed and Heimer informed Brogan that he would close the
gate to the pen. This testimony supports the ~istrict Court's
finding that Brogan was ultimately responsible for capturing wild
elk by luring them into the pen and securing the gate. Brogan
raises other arguments which lack merit and need not be addressed.
We hold that sufficient evidence exists in the record to
support the District Court's conclusions that: 1) Brogan captured
more t h a n 80 head of w i l d e l k for use on his game farm, purposely
luring them into his farm enclosures by leaving gates open and
baited with hay; and 2) Brogan failed to maintain his fences
surrounding the upper mountain pasture and triangular pen.