No. 92-322 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWELCH 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: ~ugust 19, 1993 

Decided: October 15, 1993 
~ustice John 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 ~istrict Court 

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 fan 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 tlcommon understandingM 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 if 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 elk 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 than 80 head of wild elk 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.