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 CountyAttorney,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 failingtomaintain fencesonhisgame farm and illegallycapturing wild elk foruse inhisgame farmbusiness, following abench trial in the District Court of the Sixth Judicial ~istrict, Park County. We affirm. 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 dismisson thegroundsthatthecomplaints failedtoadequately 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 "granddaddyof all elk farmers," Brogan buys and sells elk in the local, national and internationalmarkets. At times,he has had up to 250 head of elk in his inventory. From 1946 until 1983, Brogan operated an elk farm on thewest 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,mountainousterrain. Behind Brogan's houseto the northeast is a rectangular pen, which generally houses bull elk

(bullpen). 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 triangularpen, is a cow pasture, which generally houses cow elk (cowpen). North of the triangularpen and cowpen is a large mountain pasture (upper mountain pasture), and east/northeast of the upper mountain pasture is Forest Service land. At thenorthernmost of the triangularpen,a series of non-electric gates connects the triangular pen, the cow pen, the upper mountain pasture and Forest Service land. Electric fenceseparatelyenclosestheupper 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 fromhis home and control from a panel in the shed. The panel allows Brogan to identify which, if any, section of fence ismalfunctioning. 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,countedhis elk, checked for disease, reviewedhis recordbooks,and helpedhim trapand removewild deer from his 

### elk farm.On December 5, 1988, GameWardens Randy Weurtz, Jim Kropp and Hank Fabich inspected Brogan's elk farm. During this routine inspection, they counted 90elk: forty-fivecowsand calves in the

cowpen and forty-fivede-antlered bulls in thebull pen (bullsare de-antlered so asnot to injuretheirhandlers or oneanother). On December 5th, the wardens' countmatched Brogan's records. On February 6,1989, whilepatrolling the late seasonelkhunt

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 triangularpen waspartially 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 entrappedby a closed gate. According toWeurtz, 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 andKroppvisited Brogan earlythatafternoon. 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 theywished to inspecthis elk. Brogan asked if thewardens 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 triangularpen. All gateswere 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. Thewardens counted at least 80 head of wild elk being forced from the triangularpen. 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 fromhis 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 thathewas 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 byState law. Hubbard told Brogan that he had violated Montana law. The wardens then secured further evidence. They photographed the elk tracks and noted thathaywas spread just outside and inside of the triangularpen. They observed a doe deer and a healthy,wild cow elk in theupper mountain pasture;not the injured cow elk they had

seen jump the fence. Thewardens 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 fencewas 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 80wild elk inviolation of Department regulations. Following a bench trial on November 27, 1989,the Park County Justice Court found Broganguilty on all three counts. Broganwasnotified 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 factand 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 thegroundsthatthe complaints failed to adequately set forth violations of Montana law? Brogan challenges the sufficiency of the charging documents. He first argues thatby 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. Broganreceived one citation for failureto maintain theupper mountain pasture fence and another for failure to maintain the triangular pen fence. He suggeststhathe shouldhavebeen charged for theseviolations under 12.6.1503 A.R.M. (1989). That rule on game farm fencing requirementsprovides in pertinent part: (3) The fence shall be maintained in a game-proof condition at all times. 

### If cloven-hoofed game are able topass through, under, or over the fence because of any local topographic or other conditions,the licenseeshallsupplement 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 fanlicensee and the Department to followwhen capturing and removing wild game from a game farm. The Department agrees that if Broganwere 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. Itpossesses all powers necessary to fulfill thedutiesprescribed 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 theprotection, preservation,andpropagation of fish,game, fur-bearing animals,and game and nongame birds within the state. Brogannext argues that where conductalleged inthe 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 theunlawfulness of Brogan's conduct,using facts and termswhich clearly explained the offenses charged.Brogan further argues that the charging language of the complaints is insufficient because it fails toprecisely 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 courtheld that an indictment failing to allege the mental state element of theft was insufficient to chargeanoffenseandwas, therefore, fatally defective. Hayn, 253 N.E.2d at 577. However, as the Department correctly asserts, Montana doesnot test the sufficiency of charging documentsby such a rigid rule. Rather, we apply the tlcommon understandingM rule. Statev. Board (1959), 135 Mont. 139, 142, 337 P.2d 924, 926; see also 5 46-11-401(c)(iii)

## , MCA (1989). The common understanding rulerequires that a courtdetermine whether the charging language allows a person of common understanding to knowwhat is intended to be charged. Board, 337 P.2d at 142 (citingStatev. 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. Statev. 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 (citationsomitted). In this case, the complaints clearly detailed specificviolations 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 indicatesthat 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 constitutedharmless error. See Statev. Pearson (1985), 217Mont. 363, 367, 704 P.2d 1056, 1059. From the record, it is clear that Broganpresented a complete defense to all chargesbrought against him. We hold that the District Court properly denied Brogan's motion to dismissand correctly concluded that Brogan had adequate notice of the charges brought against him. Ourdecisionhere isdistinguishablefromourholding in State

v. Later (Mont. 1993), 

### -P.2d 

### , 50 St-Rep.1099. A careful reviewof thisrecord reveals that the instant case fitswithin 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.. Thedefendant in Later,on theotherhand, was notnotified 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 thebasis of the official misconductviolation. 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 Isthere sufficient evidence in therecord to supportBrogan's convictions? Where the sufficiency of the evidence is at issueon 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), 254Mont. 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." Statev. Sorenson (1980), 190 Mont. 155, 170, 619 P.2d 1185, 1194. If events are capable of different interpretations, the trier of fact determineswhich is most reasonable. Statev. Matson (1987), 227Mont. 36, 39-40, 736 P.2d 971, 973 (citationomitted). Section 26-1-501,MCA, permits the trier of fact to make inferencesbased on the facts proved. In the casebefore us, the District Court,the trier of fact, assessed the credibilityof thewitnesses andweighed the evidence. The court found the Department's version of the events more credible than Brogan's. Brogan contends that the evidence relied onby the Department

was circumstantial and not inconsistent with the rational theory thathewas attemptingto 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 herselfwhen jumping the fence leadingtotheuppermountain pasture; yet they noted a different, healthy cow elk and doe deer in the upper mountain pasture as well. Their testimony is directevidence 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 ofwild 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 itwould have been foolish forhim to trap and usewild elk,which present disease and health dangers to his healthy elk. Brogan argues that the reasons he left gates open and strategicallyplaced thehay were: 1) to lurehis escapedbull elk back onto the farm; and 2) to bait wild deer out of his upper mountainpasture. This "baitandpray" 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 removewild deer and even assisted Brogan with "bait and prayn tactics in the past. However, as Warden Hubbardtestified,theDepartment must superviseany operation where a gate to thewild 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 thedepartment of [theanimal's] escape." Brogan contends that he did not know he was required to contact the Department ifhis 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 thewitnesses and gauged theircredibility,and concluded that Brogan intended to capture the wild elk for use on his game farm. Brogan next argues that the Department failed toprove beyond a reasonable doubt that he intended to use thewild elk he captured

on his elk farm. See 

### 5 87-4-418, MCA (1989). Conversely, theDepartment argues, and we agree, that it need not prove how Brogan planned touse the elk. The rule inMontana is that circumstantial evidence is an "acceptableand often convincing method of proving criminal intent.' Statev. Pascgo (1977), 173 Mont. 121, 126, 566 P.2d 802, 805. "The existence of a mental statemay 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, thehay placed near thegates,theabsence of electric power in the fence,Brogan's request that thewardens returnupon learning that they planned to inspect his farm, and his evasive answers when confronted about the events of February 7, 1989--additionally supports any inferencesdrawnby the District Court,aswell as its findings of fact and conclusions of law. Brogan contends thathe 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 accountablefor the actions of JoeHeimer, his hired hand, who actually closed the gatewhich 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 thathewould close the gate to the 

### pen. This testimony supports 

### the ~istrictCourt's finding that Brogan was ultimately responsible for capturing wild elk 

### by luring them into the pen and 

### securing the gate. Brogan 

### raises other argumentswhich lack merit and need notbe 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 wildelk 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.