No. 90-109 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsLEE and REBECCA GIBBS, 

husband and wife, 

Defendants and Appellants. Y 

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'n . . APPEAL FROM: District Court of the Tenth ~udicial b~stri?t, 5 

In and for the County of Fergus, -2 L: P 0 

The Honorable John C. Warner, Judge pe%tdiq. 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas, Lewistown, Montana 

For Respondent: 

Marc Racicot, Attorney General; Elizabeth S. Baker, 

Assistant Attorney General, Helena, Montana; Craig 

R. Buehler, Fergus County Attorney; Jon A. 

Oldenburg, Deputy County Attorney, Lewistown, 

Montana 

Filed: 

Submitted: June 28, 1990 

Iv 

Decided: August 30, 1990 
Justice John C. Sheehy delivered the Opinion of the Court. 

Lee and Rebecca Gibbs each appeal from judgments of conviction 

against them for violations of the game laws of Montana. The 

convictions were obtained in the District Court, Tenth Judicial 

~istrict, Fergus County. As to Lee Gibbs, we affirm the judgment 

of conviction as to two of the counts and remand one of the same 

for resentencing. We affirm the conviction of Rebecca ~ibbs but 

remand for resentencing. 

In the month of February, 1988, Warden Sergeant Gary E. Burke, 

of the Montana Department of Fish, Wildlife and Parks, posing as 

a buyer of animal horns, in an undercover investigation, viewed 

antlers at the ~ibbs residence. On a subsequent date, when Burke 

returned to the Gibbs residence, Lee Gibbs inquired about 

purchasing a set of sheep horns the agent had in his truck. 

Eventually Gibbs agreed to trade his tanning services for two 

illegal bobcat hides that Burke brought over in exchange for a 

small set of sheep horns from Burke. Burke picked up the bobcat 

hides after they were tanned. Rebecca Gibbs told Burke that she 

had done most of the work on the hides. 

On Burke's first visit to the Gibbs residence, Lee Gibbs had 

shown him a mountain lion hide which Gibbs said he had caught in 

a trap line he had set out. Gibbs had shot the mountain lion twice 

in the side with a pistol. On a later visit by Burke to the Gibbs 

home, the price of lion hide was discussed and eventually Burke 

paid Gibbs $300 for the lion hide. 
The foregoing are the important facts in regard to this case. 

Lee Gibbs was charged in the District Court with violations of the 

game laws in five counts: Count I possession of parts of an 

unlawfully taken fur-bearing animal (5 87-3-112, MCA), for the 

possession of two illegal bobcat pelts; Count I1 possession of 

parts of an unlawfully taken game animal (5 87-3-112, MCA), illegal 

possession of the head and cape of a bighorn sheep; Count I11 sale 

of parts of unlawfully taken game animals (5 87-3-111, MCA), 

selling the hide of an unlawfully taken mountain lion for $300; 

Count IV possession of parts of an unlawfully taken game animal (5 

87-3-112, MCA), having possession of parts of an unlawfully taken 

mountain lion; and, Count V, a felony, trafficking in body parts 

of unlawfully taken species (5 87-3-111(4), MCA), relating to the 

purchase, sale, possession and transportation of unlawfully taken 

game animals. 

Rebecca Gibbs was charged with the felony count of trafficking 

in body parts of game animals through accountability, under 55 87- 

3-111(4) and 45-2-302, MCA, relating to aiding and encouraging Lee 

Gibbs in selling, purchasing, possessing and transporting 

unlawfully taken game animals or parts thereof. 

The cases against the two defendants were consolidated for 

trial. The jury found Rebecca Gibbs guilty as to the charge 

against her. As to Lee Gibbs, the jury was unable to reach a 

verdict (a hung jury) on Counts I (possession of illegal bobcat 

pelts) and I1 (possession of the head and cape of an illegal 

bighorn sheep). Lee Gibbs was found guilty by the jury of Count 
I11 (selling the mountain lion for $300), Count IV (illegal 

possession of the hide of the mountain lion); and, Count V 

(trafficking in body parts of unlawfully taken species, a felony). 

The defendants were sentenced on January 15, 1990. Rebecca 

Gibbs was sentenced to a fine of $10,000 and a one year term of 

imprisonment, all of which was suspended on the condition that she 

have no firearms in her possession during the suspension and that 

she spend five days in the Fergus County Jail. Lee Gibbs was 

sentenced on Counts IV and V only, the District Court having 

declared that Count I11 constituted a lesser-included offense of 

Count V. As to Count IV, Lee Gibbs was fined $300 and ordered to 

serve 30 days in the Fergus County Jail concurrent with time 

imposed under Count V, and was further ordered to pay restitution 

in the sum of $500 pursuant to 5 87-1-111(l) (b), MCA. As to Count 

V, the court imposed a fine of $10,000, which was suspended on the 

condition that the defendant Lee Gibbs obey all the fish and game 

laws of the state of Montana for the period of his incarceration 

and he was sentenced to a one year term of imprisonment at the 

Montana State Prison. All of each of the defendants' hunting, 

fishing and trapping privileges were suspended under 5 87-1-111, 

MCA, from December 5, 1989 through and including December 31, 1999. 

The case has come to this Court on appeal from the foregoing 

judgments and sentences. 

There is no doubt that there was sufficient evidence to 

sustain the convictions on counts found by the jury. The 

difficulty for us in the case arises, as it did for the District 
Court, from consideration of the sentences imposed, in the light 

of the language of the statutes under which the defendants were 

charged. In passing sentence, the District Court expressed its 

dismay, saying: 

The statutes concerning the fish and game laws and 

regulations of Montana are mismatched, inconsistent, and 

provide inconsistent penalties. They render the hunting, 

fishing and trapping regulations of this state difficult 

if not impossible for game wardens to enforce, and make 

the job of other law enforcement officials difficult. 

I feel that the laws as they are written render it 

difficult for citizens of this state to know what those 

laws and regulations are. It is the feeling of this 

Court that they need to be redrafted so that they can be 

understood. 

This case does present some possible grounds for an 

appeal. The Supreme Court in this case, should the 

Defendant desire to appeal, may interpret the laws, but 

they will have difficulty in rendering an opinion which 

may have general application. I would request and invite 

them to do so, should they have the opportunity. 

Montana law makes it a misdemeanor to sell, offer to sell, 

possess, ship or transport a fur-bearing game animal or any part 

thereof except as permitted by law. Section 87-3-111(1)(3), MCA. 

The law also provides that any person engaging in the activities 

prohibited by the misdemeanor statute in furtherance of a "scheme 

to traffic in the body partsw of unlawfully taken species is a 

felony. Section 87-3-111(4), MCA. The District Court properly 

concluded that the misdemeanor portion of the statute was a lesserincluded offense of the felony portion, guided by State v. Hankins 

(1984), 209 Mont. 365, 680 P.2d 958. The District Court also held 

that under Hankins, the felony crime did not require a scheme to 

traffic by involving more than one animal. The District Court was 
uncomfortable with this holding because there is no statutory 

definition for game animals. 

Because Lee Gibbs was convicted of a felony scheme to traffic 

in body parts, the District Court concluded that Count I11 was a 

lesser-included offense of that felony conviction and so imposed 

no sentence as to the sale of the mountain lion, charged as a 

misdemeanor. 

With respect to the felony conviction of Count V, however, a 

problem arises as to the sentence imposed under the statute. 

Section 87-3-111(4), MCA, provides: 

Any person engaging in the activities prohibited in 

subsection (1) in furtherance of a scheme to traffic in 

the body parts of unlawfully taken species is guilty of 

a felony and shall be punished by a fine of $10,000 or 

imprisonment in the state prison for a term of 1 year or 

both. 

The sentence for imprisonment in the foregoing statute does 

not meet the statutory definition of a I1felonyl1 found in 5 45-2- 

101(21), MCA, which states: 

I1Felonyl1 means an offense in which the sentence imposed 

upon conviction is death or imprisonment in the state 

prison for any term exceedinq 1 year. (Emphasis ours.) 

On the other hand, a llmisdemeanorll is defined as follows (5 

45-2-101 (36) , MCA) : 

I1Misdemeanorl1 means an offense in which the sentence 

imposed upon conviction is imprisonment in the county 

jail for any term or a fine, or both, or the sentence 

imposed is imprisonment in the state prison for any term 

of one year or less. (Emphasis supplied.) 
Counsel for Lee Gibbs contends that because the jail 

punishment for the purported felony described in 5 87-3-111(4), 

MCA, does not meet the definition of felony contained in g 45-2- 

101 (21) , MCA, the conviction of Lee Gibbs for a felony is improper. 

The state contends with respect to this argument that the 

legislature has the right to define crimes, and that moreover the 

general definitions of felony and misdemeanor under 5 45-2-101 are 

intended to apply only to crimes described in Title 45, from 

language which appears in the first portion of § 45-2-101. We 

cannot accept the state's argument on this point however because 

of the language in g 45-1-201 which provides: 

classification of offenses. (1) For the determination 

of the court's jurisdiction at the commencement of the 

action and for the determination of the commencement 

through the period of limitations, the offense shall be 

designated a felony or misdemeanor based upon the maximum 

potential sentence which could be imposed by statute. 

(2) An offense defined by any statute of this state 

other than this code shall be classified as provided in 

this section, and the sentence that may be imposed on 

conviction thereof shall be governed by this title and 

Title 46. (~mphasis added.) 

Regardless therefore of the statement in § 87-3-111, MCA, that 

trafficking in game animals is a felony, because the jail sentence 

for a violation of that statute does not exceed one year, it may 

not, under the classification rules provided by the legislature, 

be considered a felony. Although the legislature has the undoubted 

right to classify crimes, in so doing the legislature is required 

to follow the rules which it has itself provided for such 

classification. We therefore determine that because of the 
imprisonment provision of 5 87-3-111(4), MCA, which fixes the 

imprisonment for a term of one year, and does not provide for a 

term exceeding one year, the conviction of Lee Gibbs for 

trafficking in game animals is in fact a misdemeanor. It is 

necessary therefore that the sentence imposed for the infraction 

of 5 87-3-111(4), MCA, must be remanded to the District Court where 

a sentence shall be imposed by the District Court, as though the 

conviction were for a misdemeanor. 

The District Court construed the violation of Count V to be 

a felony, and the violation of Count I11 a misdemeanor. It 

therefore held that Lee Gibbs was convicted in Count I11 of a 

lesser-included offense of Count V. We have now determined that 

a violation of Count V is a misdemeanor also. One misdemeanor 

cannot be a lesser-included offense of another misdemeanor. The 

District Court is not in error, however. The gravamen of his crime 

is that he sold a lion hide to Burke for $300. Selling an illegal 

game animal pelt is a misdemeanor under either 55 87-3-111(1) or 

87-3-111(4), MCA, since we decided in Hankins that trafficking can 

involve a single animal. Lee Gibbs cannot be convicted of more 

than one offense because one is included in the other. Section 46- 

11-502 (1) , MCA. We uphold the District Court in Gibbt s conviction 

for a violation of 5 87-3-111(4), MCA, and its decision not to 

convict for the same violation under 5 87-3-111(1), MCA. 

We turn now to the conviction of Lee Gibbs under Count IV. 

This Count related to the misdemeanor possession of an unlawfully 

taken fur-bearing animal, the bobcat pelt. Lee Gibbs contends that 
he was lawfully in possession of the pelt of the bobcat, because 

it was taken by him in defense of the person of his son whom the 

bobcat was attacking. Section 87-3-130, MCA, provides that there 

is no criminal liability for the taking of wildlife otherwise 

protected by the game laws if the wildlife is molesting or 

threatening to kill any person. The same statute requires that any 

person who takes such wildlife in the protection of others notify 

the Department within 72 hours. Because no notification was given 

by Lee Gibbs to the Department, the District Court refused to allow 

the issue of Gibbsl defense of another person to be submitted to 

the jury. Gibbs having possessed the bobcat pelt for more than 72 

hours, and with no excuse shown, not having reported acquiring the 

same to the Department, his possession of the pelt after that 

period became illegal. Thus the issue attempted to be raised by 

Lee Gibbs, that he shot the bobcat in defense of another person, 

would have no effect on the eventual outcome, since his possession 

after the 72 hour period was illegal, regardless of the 

circumstances under which he obtained the bobcat pelt. The 

~istrict Court was not in error in refusing to submit to the jury 

the issue of Gibbs' defense of another person. is conviction for 

illegal possession of the pelt of a game animal is affirmed. 

We next consider the appeal of Rebecca Gibbs. She was 

convicted of felony trafficking in parts of illegally-taken game 

animals on the basis of criminal accountability. She argues on 

appeal that the jury was hung on the counts charged against her 

husband, Lee Gibbs, relating to the bobcat pelts that Burke had 
brought for tanning. She had admitted to Burke that it was she who 

did the tanning. There is no other evidence in the record which 

shows her participation in the acts charged against her husband, 

for which he was convicted. She relies on State v. Cornish (1925), 

73 Mont. 205, 209, 235 P. 702, 703 and State ex rel. Murphy v. 

McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909 that she 

cannot be criminally responsible as an accomplice because of her 

mere presence at the acts for which her husband was convicted. 

Again the conviction of Rebecca was for wtrafficking,g' as an 

accomplice. It is not necessary that criminal accountability must 

be founded on the convictions for the same crime by the principal 

offender. A person may be convicted for accountability on proof 

that the offense was committed, even though the other person 

claimed to have committed the offense has not been convicted, or 

is convicted of a different crime. section 45-2-303, MCA. 

There is stronger proof in Rebecca's case that she aided or 

abetted I1traf f icking, since for a consideration to her husband, 

she tanned two hides for Burke. 

The same problem for Rebecca's felony conviction arises as for 

Lee Gibb's, relating to the classification of trafficking as a 

felony. What we said foregoing applies also here. Accordingly we 

sustain the conviction of Rebecca as a misdemeanor, and remand her 

sentence to the District Court for resentencing as a misdemeanor 

violation. 

We strongly urge the Department of Fish, Wildlife and Parks 

to engage the legislature in a clean-up of the statutes defining 
crimes against protected game animals. The present statutes, 

particularly the whole of 5 87-3-111, MCA, are vague and redundant. 

Especially it should be made clear whether fltraffickingfl means a 

course of trade or the sale of a single animal. There are 

constitutional considerations to be recognized in the rights of 

people to know in clear language when their acts transgress the 

rules of society. 

Convictions affirmed. Remanded for resentencing in accordance 

herewith. 

* 

Justice 

We Concur: 1 

Chief Justice 

A 

Justice William E. Hunt, Sr., concurs in this Opinion.