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No. 98-548 IN THE SUPREME COURT OF THE STATE OF MONTANA 1999 MT 324 [56 St.Rep. 1295] 297 Mont. 321

992 P.2d 831 STATE OF MONTANA, Plaintiff and Respondent,

v. JOHN ART BENSON, Defendant and Appellant. APPEAL FROM: District Court of the Tenth Judicial District, In and for the County of Petroleum, Honorable John R. Christensen, Judge Presiding COUNSEL OF RECORD: For Appellant: Chris J. Nelson, Attorney at Law, Billings, Montana For Respondent: Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Nickolas C. Murnion, Special Deputy County Attorney, Jordan, Montana

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__________________________________________ Clerk Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶ John Art Benson allegedly stole and butchered his neighbor's cow. He was charged with felony theft, pursuant to § 45-6-301(1), MCA, and mutilating a hide. A jury in the Tenth Judicial District Court, Petroleum County, found Benson guilty of theft. He was sentenced to five years in prison, suspended on certain conditions. Benson appeals. We affirm his conviction. ¶ On appeal, we consider the following issues: ¶ 1. Whether there was sufficient evidence to prove that Benson committed felony theft. ¶ 2. Whether the District Court committed reversible error when it admitted into evidence records that were not provided prior to trial. FACTUAL BACKGROUND ¶ Benson admits that on December 5, 1996, he killed a cow on his ranch and prepared it to be butchered. The following day a fire was visible on his land. Partially-burned remains of a cow and a fresh waste pile were discovered at the site of the fire. Included in the remains were a cow's head and a red-colored hide with a hole cut into the middle of the left side. In the waste pile was an immature uterus which had no ovaries attached to it.

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¶ This evidence was used to prove that Benson stole and butchered a cow belonging to Juanita Holmberg, who keeps her cattle on land near Benson's property. Holmberg has Hereford cattle, which normally have red-colored hides. She testified that each year she brands approximately 10 of them on the left rib, where the hole was cut into the hide. Also, Holmberg spays her heifers and was likely the only person in the area who did so that year. Dr. Stackhouse, of the Department of Livestock Veterinary Diagnostic Laboratory, testified that the cow Benson butchered probably had been surgically spayed based on its immature uterus and its missing ovaries. Although Holmberg kept spayed heifers in the pasture near Benson's property, she could not say with certainty if she lost any of them. ¶ Benson testified that the cow he butchered had his son's brand on the left rib. He disputed Dr. Stackhouse's opinion that the cow butchered was one and one-half to two-years old and said it was two and one-half years old. He explained that the cow had been dry the previous year and did not get pregnant in the current year, so he decided to slaughter it. ¶ Benson's son, J.B., testified that he traded a dry cow with his father but that he was uncertain about the details of how old or what color the cow was. In a recorded statement made before trial, J.B. said the cow was around four or five, but also stated that he was not certain. At trial, J.B. admitted that he did not have any spayed heifers. ¶ The State established that a cow bearing J.B.'s brand had been sold at the Miles City Livestock Auction on November 26, 1996. The State wanted to prove that this was the cow J.B. traded with his father. When the prosecution attempted to admit Department of Livestock

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ISSUE 1 ¶ Was there sufficient evidence to prove that Benson committed felony theft? ¶ We review the sufficiency of evidence in a criminal case to decide whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See State v. Heffner, 1998 MT 181, ¶ 22, 290 Mont. 114, ¶ 22, 964 P.2d 736, ¶ 22. In this case, the State was required to prove that Benson purposely or knowingly obtained or exerted unauthorized control over Holm-berg's cow with the purpose of depriving her of it. See § 45-6-301(1), MCA. ¶ Benson argues that a rational trier of fact could not have concluded that he stole and butchered Holmberg's cow because the evidence did not prove beyond a reasonable doubt that

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ISSUE 2 ¶ Did the District Court commit reversible error when it admitted records that were not

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¶ Benson has not established any other reason that the admission of Exhibits 34 and 35 constitutes reversible error. In its response brief, the State argues that it had good cause not to provide pretrial notice of these exhibits because, as the prosecution explained at trial, it did not obtain the exhibits until the day it sought to introduce them and it did not anticipate using them until J.B. gave unexpected testimony. In his reply, Benson asserts that the record demonstrates that good cause had not been shown. However, Benson again fails to provide legal authority to support his argument. Benson does not cite an applicable statute, claim surprise, or provide us with any other basis to require good cause for failure to give notice of these exhibits. ¶ In addition, we conclude there was no prejudice to Benson because these exhibits were merely cumulative evidence. Earlier at trial, when the State questioned J.B., he admitted the same information contained in the exhibits: that a cow bearing his brand was sold at the Miles City Livestock Auction on November 26, 1996, and that the cow could have been dry based on the amount of the sale. Although proposed Exhibits 34 and 35 were used during J.B.'s testimony, Benson did not object. ¶ Even if the exhibits had been improperly admitted, we find reversible error based on prejudice to the defendant only where there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction. See State v. Link, 1999 MT 4, ¶ 29, 293 Mont. 23, ¶ 29, 974 P.2d 1124, ¶ 29. Benson contends that the admission of Exhibits 34 and 35 led to his conviction because they linked the cow he acquired from J.B. with the one sold at auction, instead of the one he slaughtered. However, we are not convinced that Exhibits 34 and 35 led to his conviction. In Issue 1, we concluded that evidence of the cow's head, uterus and

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We concur:

/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ WILLIAM E. HUNT, SR. /S/ W. WILLIAM LEAPHART

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