### No. 89-534 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent,-vsUNA R. EARL, Defendant and Appellant.

APPEAL FROM: District Court of the Tenth Judicial ~istrict, In and for the County of Fergus, The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD: For Appellant: Larry Jent, Bozeman,Montana

For Respondent: Hon.MarcRacicot,AttorneyGeneral,Helena,Montana Patti Powell and JamesYellowtail,Asst. Attorneyst General, Helena, Montana Craig Buehler, Fergus County Attorney, Lewistown, I 

### Montana t,3 1'3



### Submitted on Briefs: Feb. 22, 1990 Decided: March 30, 1990

P

### ClerkChief Justice 

### J. A. Turnage delivered the Opinion of the Court.

Una R. Earl (Mrs. Earl) was convicted by jury trial in the District Court for the Tenth Judicial ~istrict, Fergus County, of misdemeanor failure to keep a bear tag attached to a bear she shot. She appeals. We affirm. The issues are: 1. Was there sufficient evidence to convict Mrs. Earl of misdemeanor violation of 

### 5 87-2-509,MCA? 2. Did theJusticeCourt and theDistrict Courtproperly deny Mrs. Earl's motion to dismiss based on a statute of limitations? 3. Did the District Court act properly in allowing the testimony of Agent Ron Hanlon about certain conversations? In March 1988, two Montana Fish and Game inspectors made an inspection ofWalt's TaxidermynearJudithGap,Montana. The small shop was owned and operated by Walt Earl and was located at his home. Mr. Earl and his wife, Una Earl, had been licensed outfitters and guides in the State of Montana for some years. Inside a freezer in the taxidermy shop, the inspectors found a plastic bag containing a frozen black bear hide with no visible tag attached. Mr. Earl speculated that the tag must be frozen inside thehide. The inspectors took the hidewith them, intending to thaw it and find the tag.The inspectorswereunable to find a tagwhen thehide thawed. They called the Earls and told them that no tagwas attached to the hide. Mr. Earl responded that he had found the tag inside the freezer and thatMrs. Earl had shot the bear in 1984. The inspectors returned to the Earls1home, retrieved the bear tag from Mrs. Earl, and cited her for I1fail[ing]to keep tag attached to hide,"

a violation of 5 87-2-509, MCA. As a misdemeanor, this action was first brought in justice court. Mrs. Earl pled guilty in that court after unsuccessfully moving to dismissbased on a statute of limitations argument. She then appealed to district court, where she again unsuccessfully raised her statute of limitations argument. She was tried in district court before a six-person jury, was found guilty,and was fined $200with a $20 surcharge.I Was there sufficient evidence to convict Mrs. Earl of misdemeanor violation of 

### 5 87-2-509,MCA? Our standard of review is whether any rational trier of fact could have found Mrs. Earl guiltybeyond a reasonable doubt of the essential elements of the crime. See State

### v. Price (Mont. 1988), 762 P.2d 232, 234, 45 St.Rep. 1798, 1800. Section 87-2-509, MCA, provides that When anyperson takes or killsany game animal



# . . . the person shall immediately thereafter



# . . . attach the tag, coupon, or othermarkerto the animal 

# . 

# . . . Such tag, coupon, or other marker shall be kept attached to the carcass so long as any considerableportion of the carcass remains unconsumed 

# . 

# . . . The elements that the State was required to prove to support its charge against Mrs. Earl were that she 1) purposely or knowingly, 2) failed to keep a tag attached to the bear hide, 3) while itwas possessed by her. Mrs. Earl argues that the State has failed to prove that shewas in possession of the bear hide at any timewhen it was not tagged. llPossessionll is defined as the knowing control of something for a sufficienttime tobe able to terminatecontrol. Section 45- 2-101(52), MCA. Mrs. Earl testified that after she shot the bear, she tagged itwhile her husband gutted it. The family ate themeat and the hide was stored in the taxidermy freezer. According to Mrs. EarlIs testimony at trial, she knew where the bear hide was at all times. Shemade no statement indicating that shehad given it to her husband or otherwise abandoned control over it. We conclude that a rational jury could have found beyond a reasonable doubt that Mrs. Earl possessed the bear hide at the time of the 1988 inspection. I1 Did the Justice Court and the District Court properly deny Mrs. Earl's motion to dismiss based on a statute of limitations?Mrs. Earl argues that thisprosecutionwas barred under 

### 5 45- 1-205(2)

## , MCA, which provides: (2) Except as otherwise provided by law, prosecutions forother offenses are subject to the following periods of limitation:

(b) A prosecution for a misdemeanor must be commencedwithin 1year after it is committed.

She asserts that the statute of limitations began to run in 1984 when she shot the bear and gave the hide to her husband. Mrs. Earl's continuing possession of the bear hide is discussed above under Issue I. As towhether theprosecutionmust have been brought within one year after the bear was shot, the District Court determined that this offense was a continuing one. We agree. Under 

### 5 87-2-509,MCA, the offense continuesas long as "any considerableportion of the carcass remainsuncon~umed.~~ We conclude that the court did not err in interpreting that language to mean as long as the bear hide remained to be taxidermied.

Did the District Court actproperly in allowing the testimony of Agent Ron Hanlon about certain conversations? The conversations at issue occurred in 1986 between Mr. Earl and United States Fish and Wildlife Service Agent Ron Hanlon,when Mr. Hanlon was inspecting Walt's Taxidermy. Mr. Hanlon testified at trial as follows:Q. 

### All right. Did the discussion about a bear that Una Earl shot come up during that conversation? MR. JENT: Objection, the question calls for a hearsay answer. THE COURT: Overruled. Q. 

### (ByMr. Buehler) Go ahead. A. Yes, a conversation regarding a bear that she shot was 

### discussed. Q. 

### You were part of that conversation. A. 

### Yes, I was, sir. Q. 

### That was pursuant to the reason that you were there talking about various different things, is that correct? A. That is correct, sir. Q. 

### All right. What did you learn about a bear that was shotby Una Earl? MR. JENT: Objection, the question is testifying from what he learned,which ishearsay. THE COURT: Overruled. A. I--I learned through conversation and records that 

### I examined that Una Earl killed a black bear in 1984,May of 1984 as I recall. And that this bear was later given to an individual, 

### Ibelieve his name was Lehman, in Pennsylvania to be taxidermied. This bear, alongwith at least one otherwere sold toMr. Lehman for two hundred fifty dollars. The bear that Una Earl shot, and was described to me as the bear that she shot in 1984, was described as being a yearling bear. And it was further described as 

## -- as being dorsal cut, down through the back, so that it could further be taxidermied in Pennsylvania as a lifesizebear.

### MR. JENT: 

### Objection,Your Honor. May counsel approach the bench? [Abench conference was held.] Mrs. Earl contends that the abovewas hearsay evidence not within any hearsay exception. The State contends that because Mrs. Earl was present at the above conversationandmadeno objectionstoherhusband1 sremarks, 

### the testimony about the conversation was admissible under the hearsay exception for admissionsof a party,Rule 801(2)

## ,M.R.Evid. Additionally, the State contends that the testimony has not been shown to be prejudicial to the defendant and that even if its admissionwas error, it was harmless error. Mrs. Earl has not shown any relationship between the above testimony and any element of the misdemeanor crime with which she

was charged. The Statedid not refer to this testimony in closing argument. "Only if there was 

### a reasonable possibility that inadmissible evidence might have contributed to the conviction is there reversible error. State v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335. Even if the admission of the testimony

was error, it has notbeen showntobe anythingbut harmless error. Affirmed.



## / Chief Justice 

# AWe concur: