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 z C1> 0 0 Z -) -. a

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.. 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: ForAppellant: 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, 1990Justice John C. Sheehy delivered the Opinion of the Court.

Leeand RebeccaGibbs each appeal from judgmentsof 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. Inthemonth ofFebruary, 1988,Warden Sergeant GaryE. 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 linehehad setout. Gibbshad shotthemountain lion twice in the sidewith 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 Gibbswas charged in the District Courtwith 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 anunlawfully taken gameanimal (587-3-112,MCA), illegal possession of the head and capeof abighorn 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 IVpossession of parts of anunlawfully 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 Gibbswas charged with the felonycount 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 (possessionof 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 CountI11 (selling the mountain lion for $300), Count IV (illegal possession of the hide of the mountain lion); and, Count V

(traffickinginbody 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 whichwas suspended on the conditionthat 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 Gibbswas 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, fromDecember 5,1989 throughand includingDecember 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 DistrictCourt, 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 ofMontana are mismatched, inconsistent,and provide inconsistentpenalties. They renderthehunting, fishingand trappingregulations 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 knowwhat those laws and regulations are. It is the feeling of this Court that they need to be redrafted so that they canbe 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 opinionwhich mayhavegeneral application. 

### Iwould requestand 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 themisdemeanor 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 themisdemeanor portion of the statute was a lesserincluded offense of the felonyportion,guided by Statev. Hankins (1984), 209 Mont. 365, 680P.2d 958. The District Court alsoheld that under Hankins, the felony crime did not require a scheme to trafficby involving more than one animal. The District Court wasuncomfortable with this holding because there is no statutory definition for game animals. Because Lee Gibbswas 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 CountV, 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 thebody parts of unlawfully taken species is guilty of a felony and shall be punished by a fine of $10,000 or imprisonment in the stateprison for a term of 1year 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 1year. (Emphasisours.) 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 inthe state prison for any term of one year or less. (Emphasissupplied.)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 LeeGibbs fora felony is improper. The state contends with respect to this argument that the legislaturehas the right to define crimes, and thatmoreover the general definitions of felonyandmisdemeanor under 5 45-2-101are 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 felonyormisdemeanorbasedupon themaximum potential sentencewhich could be imposed by statute.

(2) An offense defined by any statute of this state other than this code shallbe 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 thestatement 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 considereda felony. Although the legislaturehas theundoubted right to classify crimes, in sodoing the legislature is required to follow the rules which it has itself provided for such classification. We therefore determine that because of theimprisonment 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 theDistrict Courtwhere

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 isnot inerror,however. Thegravamen ofhis crime is thathe 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, sincewe decided inHankins that trafficking can involve a single animal. Lee Gibbs cannot be convicted of more than one offensebecause one is included in the other. Section 46- 11-502(1)

### ,MCA. We uphold the District Court inGibbt s conviction for a violation of 5 87-3-111(4), MCA, and itsdecision not to convict for the sameviolation under 5 87-3-111(1), MCA. We turn now to the conviction of Lee Gibbs under Count IV. This Count related to themisdemeanor possession of an unlawfully taken fur-bearinganimal,thebobcatpelt. LeeGibbs contendsthathe was lawfully in possession of the pelt of the bobcat, because it was taken by him in defense of the person of his sonwhom 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 threateningtokillany person. The samestatute requiresthatany person who takes such wildlife in theprotection of others notify the Department within 72hours. Because no notification was given by LeeGibbs to theDepartment,theDistrictCourt refused to allow the issue of Gibbsldefense of another person to be submitted to the jury. Gibbshaving possessed thebobcat pelt formore 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, sincehispossession after the 72 hour period was illegal, regardless of the circumstances under which he obtained the bobcat pelt. The ~istrict Courtwas not in error in refusing to submit to the jury the issue of Gibbs' defense of anotherperson. 

### 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 hadbrought for tanning. Shehad admitted toBurke that itwas shewho did the tanning. There is no other evidence in the record which shows her participation in the acts charged against her husband, forwhichhe was convicted. Sherelieson Statev. 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 isnot necessary that criminal accountabilitymust be founded on the convictions for the same crimeby 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 ficking, since for a consideration to her husband, she tanned two hides for Burke. Thesameproblem for Rebecca's felonyconviction arises as for Lee Gibb's, relating to the classification of trafficking as a felony. What we said foregoing applies alsohere. Accordinglywe sustain the conviction ofRebecca as amisdemeanor, and remandher 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 definingcrimes against protected game animals. The present statutes, particularlythewhole of 

### 5 87-3-111,MCA,arevague 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. Convictionsaffirmed. Remanded forresentencing inaccordance herewith.

* Justice We Concur: 

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Chief Justice

A

JusticeWilliam E. Hunt, Sr., concurs in this Opinion.