No. 83-313 

IN THE SUPREME COURT OF TIE STATE OF MONTAPJA 

1983 

STATE OF MONTAXA, 

Plaintiff and Respondent, 

-vsGARY L. PALMER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sverdru2 & Spencer, Libby, Montana 

For Respondent: 

Eon. Mike Greely, Attorney General, Helena, Montana 

William L. Douglas, County Attorney, Libby, Montana 

Submitted on Briefs: September 22, 1983 

Decided: December 8, 1983 

@EC c- - 

Filed: L, 1983 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant Gary Palmer appeals from his conviction on 

charges of felony theft and felony criminal mischief 

following a jury trial in the District Court of the 

Nineteenth Judicial District, Lincoln County. For the 

reasons stated below, we affirm defendant's conviction. 

On November 13, 1982, two employees of the St. Regis 

Paper Company observed Palmer and four companions, George 

Busse, William Glidden, Donald Souder and Bruce Bothum, 

cutting trees on land owned by St. Regis. The employees 

notified the county sheriff's office, which dispatched a 

deputy to the scene. En route, the deputy was joined by two 

law enforcement officers from the Kootenai National Forest. 

As the three men approached the scene of the tree cutting, 

one of the cutters, later identified as Glidden, ran behind 

some bushes. Glidden did not emerge from the bushes until 

the officer yelled for him to come out. Glidden explained 

that he had gone behind the bushes only to relieve himself, 

but the officer could find no traces of urination in the 

brush. 

The officers and the deputy asked Glidden and the 

others for evidence of permission to be cutting trees on the 

section. They were referred to the defendant, Palmer, who 

produced a small slip of paper indicating that Palmer had 

authority to cut trees on section 36, a tract owned by the 

State of Montana. The slip was signed by Ralph James, who 

had a Christmas tree cutting permit from the State for 

section 36. However, one of the officers noted that the 

area the men were working was section 35, owned by St. 
Regis, which lies adjacent to the state-owned section. 

Palmer, his colleagues, and the officers left the 

scene and went to the sheriff Is office to discuss the 

problem further. The next day, November 14, the sheriff Is 

deputy and St. Regis employees returned to section 35 to 

conduct an investigation. One of the employees determined 

that the most recent cutting had been done on St. Regis 

land, and found no evidence of recent cutting on state-owned 

section 36. This conclusion was confirmed by a state 

forester observing the area a few days later. Palmer had 

insisted that he and his colleagues were cutting on section 

36. Photographs taken at the scene revealed that the 

property lines were clearly demarcated by posted notices, 

although Palmer maintained that he had not seen these 

notices until the forest service officers and the deputy had 

discovered the cutting on November 13. 

The investigation revealed that Palmer and the others 

had been cutting the trees near the ground, and "topping" 

the felled trees so that the tops could be used as Christmas 

trees. St. Regis employees and the sheriff's deputy were 

able to match the butts of the trees to stumps on section 

35. The deputy retained some of the trees, butts and stumps 

as evidence. St. Regis retained the topped Christmas trees 

and other butts. The trees were later sold at wholesale for 

approximately $1,600. The employees also took estimates of 

damages to the land. The estimates included $200 to remove 

the stumps; $329 for replacement of plant seedlings, and 

$1,849 for loss of thirty year's tree growth. 

Palmer and his four associates were charged with 

felony theft and felony criminal miscl~ief for illegally 
removing and damaging the trees. The four associates 

negotiated a plea bargain and plead guilty to misdemeanor 

theft. Palmer pled not guilty to all the charges against 

him. Although his colleagues testified on his behalf at 

trial, Palmer was convicted and sentenced to two years in 

the Montana State Prison. 

Palmer appeals from his conviction, and raises three 

issues : 

(1) Whether the District Court erred in failing to 

dismiss the charges against Palmer because of the State's 

alleged suppression or destruction of material and 

exculpatory evidence? 

(2) Whether Palmer's conviction of both felony theft 

and felony criminal mischief violates multiple punishment 

statutes? 

(3) Whether the District Court erred in allowing 

testimony of monetary values other than "current market 

value" to establish proof of felony criminal mischief? 

ISSUE ONE: 

Prior to trial, and immediately following presentation 

of the state's case-in-chief, Palmer's counsel moved for 

dismissal of the charges on the grounds that the state had 

suppressed or destroyed material, exculpatory evidence. 

Palmer maintained that, because the State had disposed of 

all but four or five of the trees cut by Palmer and his 

associates, he had no evidence which would tend to prove 

that they had been cutting trees on State-owned section 36. 

Suppression or destruction of material, exculpatory evidence 

by the State amounts to a violation of a defendant's due 

process rights and warrants dismissal of charges against 
him. See Brady v. Maryland (1963), 373 U.S. 53, 83 S.Ct. 

1194, 10 L.Ed.2d 215; State v. Craig (1976), 169 Mont. 150, 

545 P.2d 649. 

The District Court denied all motions by defense 

counsel to dismiss the charges. We find no error in the 

court's actions. When the deputy and the St. Regis 

employees returned to the scene of cutting, they 

investigated both sections in dispute. They found no 

evidence of recent cutting on State-owned section 36, but 

did find such evidence on section 35, and gathered 

sufficient evidence relevant to that area. Although an 

investigation of section 36 in February, 1983, revealed that 

trees had been felled on that section around November, 1982, 

the method of cutting was markedly different than that used 

by Palmer and his colleagues on section 35. Furthermore, 

the trees in question were retained and later sold by St. 

Regis, and not the State, as Palmer has argued since trial. 

Palmer's counsel filed a motion to produce all the 

trees cut on the areas in question nearly five months after 

the incident arose. In State v. Clements (1981), 52 0r.App. 

309, 628 P.2d 433, under facts very similar to those at bar 

in the immediate case, the Court of Appeals of Oregon held 

that a defendant could not avail himself of the protections 

afforded under Brady, supra, where a motion to disclose 

evidence was filed long after the evidence had been 

destroyed and where the state had no reason to know of 

defendant's claims prior to the filing of the motion. 

Clements involved the destruction of meat allegedly stolen 

from a grocery store. Although the defendant in that case 

was aware of a possible exculpatory value in the meat, i.e., 
that he allegedly had not stolen it, but was returning it to 

the store because it was supposedly tainted, the state had 

no reason to know that the condition of the meat was 

material to defendant's case until the motion was filed. 52 

0r.App. 309, 628 P.2d at 435-36. 

In the instant case, the defendant could have moved 

very early in the proceedings to preserve any evidence 

having some, if any, connection to section 36. However, the 

initial investigation of the two sections gave neither the 

State nor St. Regis any indication that the trees seized 

were connected to section 36, or that any materials gathered 

from section 36 would be critical to establishing Palmer's 

innocence. Indeed, we find no indication in the record that 

there was any exculpatory evidence available to Palmer. 

Moreover, the allegedly exculpatory evidence was never in 

the possession of the State. The record is clear that 

St.Regis was in effective control of the remaining trees, 

stumps and butts found on section 35. Under these 

circumstances, the State did not have possession or control 

of these items for Brady purposes. Clements, supra, 52 

0r.App. 309, 628 P.2d at 436 n. 5. 

ISSUE TWO: 

Palmer further alleges that his conviction for both 

felony theft and felony criminal mischief violates the 

provisions of the multiple punishment statute, Section 

46-11-502, MCA, and this Court's construction of that 

statute. 

Section 46-11-502 provides that: 

"When the same transaction may establish 

the commission of more than one offense, 

a person charged with such conduct may be 

prosecuted for each such offense. He may 
not, however, be convicted of more than 

one offense if: 

(1) one offense is included in the 

other; 

(2) one offense consists only of a 

conspiracy or other form of preparation 

to commit the other; 

(3) inconsistent findings of fact are 

required to establish the commission of 

the offenses; 

(4) the offenses differ only in that 

one is defined to prohibit a designated 

kind of conduct generally and the other 

to prohibit a specific instance of such 

conduct; or 

(5) the offense is defined to prohibit 

a continuing course of conduct and the 

defendant's course of conduct was 

interrupted, unless the law provides that 

the specific periods of such conduct 

constitute separate offenses." 

In a recent decision, State v. Wells (Mont. 1983), 658 

P.2d 381, 40 St.Rep. 127, we had this to say about multiple 

punishments: 

"The double jeopardy prohibition 

contained in the Fifth Amendment to the 

United States Constitution has been 

applied to state proceedings since 1969. 

Benton v. Maryland (1969), 395 U.S. 784, 

796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 

717. This prohibition protects a 

defendant from both multiple prosecutions 

for offenses arising out of the same 

transaction and from multiple punishments 

imposed at a single prosecution for the 

same offense. See North Carolina v. 

Pearce (1969), 395 U.S. 711, 717, 89 

S.Ct. 2072, 2076, 23 L.Ed.2d 656,664-665. 

Where, as here, defendant was tried at a 

single prosecution for all of the 

statutory crimes in question, the issue 

is one of multiple punishments. State v. 

Close (1981), Mont . , 623 P.2d 

940, 949, 38 St.Rep. 177, 188. 

"The analysis that this Court has 

consistently applied in determining 

whether one offense is included within 

another offense is the test set forth in 

Blockburger v. United States (1932), 284 

U.S. 299, 304, 52 S.Ct. 180, 182, 76 

L.Ed. 306, 309. In Blockburger, the 

Court ruled: 

'The applicable rule is that where the 

same act or transaction constitutes a 
violation of two distinct statutory 

provisions, the test to be applied to 

determine whether there are two offenses 

or only one, is whether each provision 

requires proof of a fact which the other 

does not.' 284 U.S. at 304, 52 S.Ct. at 

182, 76 L.Ed. at 309. 

"The Blockburger test is codified in 

section 46-11-502, MCA. 

"This Court has adopted the approach 

whereby the analysis is applied to the 

statutes in question rather than to the 

facts of the individual case. State v. 

Ritchson (1981), Mont. , 630 

P.2d 234, 237, 38 St.Rep. 1015,1018. In 

determining whether multiple punishments 

should be allowed for offenses arising 

out of the same transaction, the 

dispositive question then becomes whether 

the legislature intended to provide for 

multiple punishments. State v. Close 

(1981), supra, 623 P.2d at 949, 38 

St.Rep. at 188. 'Blockburger's analysis 

must stand or fall on the working of the 

statutes alone, not on the indictment.' 

Close, 623 P.2d at 950, 38 St.Rep. at 

189. See also, State v. Buckman (1981), 

Mont. , 630 P.2d 743, 745, 38 

St.Rep. 100r 1009; State v. Coleman 

11979). Mont. , 605 P.2d 1000. 

1008-i009,3 St.Rep. ii34, 1138-1140~; 

State v. Perry (1979), 180 Mont. 364, 

368. 590 P.2d 1129. 1131: State v. Davis 

& ciose (1978), 176 ~ont'. 196, 199, 577 

P.2d 375, 377; State v. Radi, supra, 176 

Mont. at 462, 578 P.2d at 1176." 

Adhering to these standards, we find no error in 

convicting Palmer on both felony theft and felony criminal 

mischief. Theft in the context of this case consists of 

purposely or knowingly taking the property of another with 

the purpose to deprive. Section 45-6-301(1)(a), MCA. 

Criminal mischief in the context of this case consists of 

purposely or knowingly damaging or destroying the property 

of another without his consent. Section 45-6-101(1)(a), 

MCA. Clearly, the two statutes are similar only in the 

requirements concerning mental state, and proof of a 
requisite mental state is a feature of any criminal statute. 

Palmer, however, insists that the act of "taking" or 

"depriving" involved in theft is synonomous with the act of 

"destroying" or "damaging" involved in criminal mischief. 

Common sense dictates that the offenses of theft and 

criminal mischief are neither coextensive nor wholly 

includible within each other. There are many situations 

where the acts of a wrongdoer involve both theft and 

criminal mischief, and the instant case is but one example. 

Palmer deprived St. Regis of its property, by taking 

portions of trees to use or sell as Christmas trees. Palmer 

damaged St. Regis property, as there was evidence of 

diminished value to the land because of the destruction. 

The conviction on charges of theft and criminal mischief was 

legally permissible. 

ISSUE THREE: 

Palmer contends that the evidence of value used to 

charge and convict him of felony criminal mischief was 

inadmissible. In the absence of any acceptable values, 

Palmer maintains that his conviction on that charge cannot 

stand. 

The gist of Palmer's defense is that proof of "value," 

for the purpose of establishing commission of a felony, is 

controlled by Section 45-2-101(69)(a), MCA, which states 

that value "means the market value at the time and place of 

the crime or, if such cannot be satisfactorily ascertained, 

the cost of the replacement of the property within a 

reasonable time after the crime." The evidence of "value" 

produced at trial to establish the act of felony criminal 

mischief consisted of costs of stump removal, replanting, 
and lost future tree growth. While the costs associated 

with these items are not within the scope of "value" as 

defined in Section 45-2-101(69)(a), we find that they are 

still admissible to establish proof of felony criminal 

mischief. 

Most criminal statutes, including theft, draw the line 

between a felony and a misdemeanor based upon the "value" of 

the property involved. It is to these statutes that the 

definition contained in Section 45-2-101(69)(a) applies. 

The distinction between felony and misdemeanor criminal 

mischief, however, is not measured by the "value" of 

property damaged or destroyed. On the contrary, the 

difference is controlled by the amount of "pecuniary loss" 

to the owner of the property. See Section 45-6-101(3). The 

term "value," as defined by Section 45-2-101(69)(a), does 

not appear in the criminal mischief statute. Palmer points 

to certain Compiler's Comments to the statute which use the 

word "value" in the context of criminal mischief, but these 

comments, apparantly drafted by the Montana Criminal Law 

Information and Research Center at the University of Montana 

Law School, are not part of the statute and thus do not have 

the force of law. Moreover, they are clearly misleading 

with respect to classifying categories of criminal mischief. 

Section 45-1-102(2) requires provisions of the 

criminal code "to be construed according to the fair import 

of their terms with a view to effect [the object of the 

code] . . . and to promote justice." Simply defined, 

"pecuniary loss" means "[a] loss of money, or something by 

which money or something of money value may be acquired." 

Black's Law Dictionary 1018 (5th ed. 1979). Evidence of 
damages from loss of future tree growth, as well as the 

out-of-pocket expense of removing stumps and replanting, is 

includible within the concept of pecuniary loss. Obviously, 

the statute was carefully drafted to avoid reference to 

"value," because property damaged or destroyed by criminal 

mischief may not, in some instances, have a market value or 

replacement cost. The trial court properly allowed the 

State's evidence to show the monetary losses arising from 

defendant's damage to St. Regis property. This evidence 

clearly established more than $150 of pecuniary 

loss---enough to charge and convict Palmer of felony 

criminal mischief. Even if we accept as true one of 

Palmer's subarguments, i.e., that there was insufficient 

evidence to establish any attempt by St. Regis to remove 

stumps and reseed the harvested portions of section 35, the 

evidence of money damages from lost future tree growth 

clearly exceeds the $150 minimum necessary to impose a 

felony conviction. 

Accordingly, the conviction of the defendant Palmer is 

affirmed. 

We concur: 

>ha- $1 $%iMdk 

Chief Justice