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. Marc Racicot, Attorney General, Helena, Montana 

Patti Powell and James Yellowtail, 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 

Clerk 
Chief 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 the Justice Court and the District Court properly 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 of Walt's Taxidermy near Judith Gap, 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 the hide. The inspectors took the hide with them, intending 

to thaw it and find the tag. 
The inspectors were unable to find a tag when the hide thawed. 

They called the Earls and told them that no tag was attached to the 

hide. Mr. Earl responded that he had found the tag inside the 

freezer and that Mrs. Earl had shot the bear in 1984. The inspectors returned to the Earls1 home, 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 dismiss based 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 $200 with 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 guilty beyond 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 any person takes or kills any game animal . . . the person shall immediately thereafter . . . attach the tag, coupon, or other marker 
to the animal . . . . Such tag, coupon, or 

other marker shall be kept attached to the 

carcass so long as any considerable portion 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 it was 

possessed by her. Mrs. Earl argues that the State has failed to 

prove that she was in possession of the bear hide at any time when 

it was not tagged. 

llPossessionll is defined as the knowing control of something 

for a sufficient time to be able to terminate control. Section 45- 

2-101(52), MCA. Mrs. Earl testified that after she shot the bear, 

she tagged it while her husband gutted it. The family ate the meat 

and the hide was stored in the taxidermy freezer. According to 

Mrs. Earl Is testimony at trial, she knew where the bear hide was 

at all times. She made no statement indicating that she had 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 this prosecution was barred under 5 45- 

1-205 (2) , MCA, which provides: 

(2) Except as otherwise provided by law, 

prosecutions for other offenses are subject to 

the following periods of limitation: 

(b) A prosecution for a misdemeanor must be 

commenced within 1 year 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 to whether the prosecution must 

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 continues as long as 

"any considerable portion of the carcass remains uncon~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 act properly 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. (By Mr. 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 shot by Una Earl? 

MR. JENT: Objection, the question is testifying from what he learned, which is hearsay. 

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, I believe his name was Lehman, in 

Pennsylvania to be taxidermied. This bear, 

along with at least one other were sold to Mr. 

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 

lifesize bear. 
MR. JENT: Objection, Your Honor. May counsel 

approach the bench? 

[A bench conference was held.] 

Mrs. Earl contends that the above was hearsay evidence not within 

any hearsay exception. 

The State contends that because Mrs. Earl was present at the 

above conversation and made no objections to her husband1 s remarks, 

the testimony about the conversation was admissible under the 

hearsay exception for admissions of 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 

admission was 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 State did 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 not been shown to be anything but harmless error. 

Affirmed. 

/ Chief Justice A 
We concur: