No. 89-399 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vROBERT L. LYNN, 

Defendant and Appellant. 

- 71 - - ., . - 

APPEAL FROM: District Court of the Twentieth Judicial Dist~ict, 

In and for the County of Sanders, P.' The Honorable C. B. McNeil, Judge presidjng. c-, 

COUNSEL OF RECORD: 

For Appellant: 

James E. Handley; Polson, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; George Schunk, 

Asst. Atty. General; Helena, Montana 

Robert Slomski; Sanders County Attorney; Thompson 

Falls, Montana 

Filed: 

Submitted on Briefs: May 24, 1990 

Decided: July 121 1990 
Justice R. C. McDonough delivered the opinion of the Court. 

This is an appeal from the judgment of the District Court of 

the Twentieth Judicial District, Sanders County, finding defendant 

Robert Lynn guilty of the offenses of shooting from a public 

highway and hunting a game animal during the closed season. We 

affirm. 

The issues are: 

1. Whether the District Court erred by denying defendant's 

motion to exclude from evidence a .22 caliber rifle and ammunition 

seized from defendant's vehicle; 

2. Whether the District Court erred by denying defendant's 

motion for directed verdict as to Count I (shooting from a public 

highway) by rejecting defendant's contention that no proof had been 

adduced concerning the legal right-of-way within which he is 

alleged to have shot; 

3. Whether the District Court erred by denying defendant's 

motion for directed verdict as to Count I and Count I1 (hunting a 

game animal during closed season) by rejecting defendant's 

contention that no evidence had been adduced from which the jury 

could determine whether the alleged illegal acts had been done 

knowingly or purposely. 

In the late afternoon of March 13, 1988, Violet Hodges 

(Hodges) was working around her home, located about seven miles 

east of Thompson Falls on Highway 200. She heard a volley of gun 

shots from what she thought was a small caliber rifle. She looked 

in the direction from which the noise came and saw a tan Jeep 

2 
Wagoneer pulled off to the side of Highway 200. Hodges also 

noticed a herd of bighorn sheep running up a hillside, away from 

the Wagoneer and toward the cliffs above her property. 

Hodges, concerned by the shots because hunting season was 

closed, got in her car to investigate. As she drove down her 

driveway, Hodges encountered the defendant, Robert Lynn, in the tan 

Wagoneer. When questioned what he was doing on her property, Lynn 

told Hodges that he was looking for aluminum cans. After Hodges 

told Lynn there were no cans on her property, she essentially asked 

him to leave, which he did. After Lynn left, Hodges 

surreptitiously followed him as he drove into Thompson Falls. Upon 

her arrival in town, she reported the shooting to Undersheriff Bill 

Alexander. 

While Hodges was relating her story to the undersheriff, her 

neighbor telephoned the sheriff's office and reported that a sheep 

had died from a gunshot wound on her property. The neighbor, like 

Hodges, reported that shortly before she found the sheep, she heard 

gunshots from a small caliber rifle. Hodges then described Lynn's 

vehicle to the undersheriff. She stated that it was a tan Jeep 

Wagoneer with scrap cardboard in the back, rolled rugs on top and 

Alaska plates. 

The undersheriff then contacted Bruce Sterling, a wildlife 

technician and part time game warden for the Montana Department of 

Fish, Wildlife and Parks. He requested Sterling's assistance and 

proceeded to look for Lynn's vehicle which Alexander said was 

parked in town. 
The officers located Lynn's vehicle and subsequently pulled 

him over for having expired plates and being a suspect in the 

shooting of the bighorn sheep. When questioned, Lynn denied any 

knowledge of the shooting. The undersheriff then asked Lynn if he 

had any weapons. Lynn produced a .38 caliber revolver and a 

crossbow. Upon examining the handgun, the undersheriff noticed a 

.22 caliber rifle which was in plain view, although it was wedged 

between some pieces of cardboard. Lynn allowed him to inspect the 

rifle. 

Lynn was arrested for two traffic violations which are not 

part of this appeal, and he was allowed to drive his car to the 

police station "to save him a tow bill and so it could be secured 

over there." In the meantime, the game warden went to the site of 

the shooting. There he found five .22 caliber shell casings. The 

ram was field dressed and a bullet hole .223 inches in diameter was 

discovered in the ram's neck. 

After Lynn was booked and incarcerated, he asked Undersheriff 

Alexander to get his reading glasses from his car. The 

undersheriff agreed and while he was in Lynn's vehicle he 

reinspected the .22 rifle and seized the weapon. Eventually Lynn 

was charged with the two game violations now on appeal. 

Initially Lynn was tried in justice court. Following his 

conviction, he appealed for a trial de novo in District Court. 

Shortly before trial, Lynn moved to suppress from evidence the .22 

caliber rifle and to dismiss the game violations. Both motions 

were denied. Trial commenced on May 25, 1989, and following the 
close of the State's case-in-chief, Lynn moved for a directed 

verdict. This motion was denied. ~ollowing closing arguments, the 

jury returned a unanimous verdict of guilty on both counts. 

Sentence was imposed on June 27, 1989 and this appeal followed. 

I 

Lynn argues that Undersheriff Alexander's seizure of the .22 

caliber rifle was unlawful and therefore it should not have been 

admitted into evidence. In advancing this argument, he maintains 

the plain view exception, which was the primary argument advanced 

by the State, does not apply to his case because the rifle does not 

bear any relationship to the traffic offenses, which were the only 

crimes he was charged with at the time of the gun's seizure. He 

argues that plain view searches and seizures are only proper if the 

items seized bear some relationship to the offense charged. 

We disagree with this argument as it is applied to the facts 

now before us. When Undersheriff Alexander stopped Lynn, he had 

two reasons. First and foremost was the fact that Lynn was 

suspected of illegally shooting a bighorn sheep, and second he 

noticed that Lynn was driving with expired plates. Alexander's 

suspicions relative to the game violation originated from reports 

of two citizens. From these two reports, he knew that small 

caliber rifle shots had been fired from Highway 200 near a herd of 

bighorn sheep. A vehicle matching Lynn's was seen at that location 

during the time the shots were fired. Additionally, it was 

reported that Lynn was found on private property, driving towards 

the area where the sheep were, before the shooting occurred. 
Alexander also knew that a sheep had been found dying in this same 

general area. 

This information was sufficient to raise suspicions of Lynn's 

involvement in the shooting. However, this suspicion was further 

bolstered by Alexander's observation of the .22 caliber rifle in 

Lynn's possession. At this point in time, it cannot be denied that 

Alexander did not have probable cause to seize the rifle. Facts, 

including eye witness observations and circumstantial evidence, 

combined to link Lynn to the crime. When a police officer has 

knowledge of facts, which justify a reasonable belief that he has 

lawful grounds for prosecuting the suspect for the matter 

complained of, and surrounding circumstances support this belief, 

probable cause has been found to exist. See State ex rel. Wong You 

v. District Court (1938), 106 Mont. 347, 78 P.2d 353. Here there 

was sufficient evidence linking Lynn to the unlawful shooting and 

consequently Alexander would have been justified in seizing the 

rifle when he stopped Lynn's vehicle. 

Undersheriff Alexander did not seize the rifle at that time, 

however. The rifle was seized approximately an hour and a half 

later when Alexander went to the vehicle, at Lynn's request, to 

retrieve Lynn's glasses. We are therefore faced 

with the question of whether this delay rendered the seizure 

unreasonable. 

We hold that the seizure of the rifle was not unreasonable. 

As stated earlier, at the time of Lynn's arrest, probable cause 

existed to justify seizure of the rifle. The fact that a time 
period of one and a half hours elapsed between the time of arrest 

and seizure of the rifle at the police station does not overcome 

the original justification for the seizure. As has been stated on 

several occasions ll. . . searches and seizures that could be made 

on the spot at the time of arrest may legally be conducted later 

when the accused arrives at the place of detention.lV See United 

States v. Edwards (1974), 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 

771. This rule has been followed in Montana. See State v. Romero 

(1986), 224 Mont. 431, 730 P.2d 1157. Accordingly, we hold that 

the District Court did not err in refusing to exclude the rifle 

from evidence. 

I1 

Lynn next argues that the District Court erred by denying his 

motion to dismiss the charge alleging that he violated 5 87-3- 

101(2), MCA, which prohibits shooting a game animal from a public 

highway or its shoulder. He maintains that no evidence was 

presented concerning the legal boundaries of the highway and that 

there was no evidence presented which established from where the 

shots were fired. He therefore argues that the State failed to 

prove an essential element of the offense and that, as a result, 

a directed verdict should have been granted. 

We disagree. A directed verdict is appropriate only where 

there is no evidence upon which the jury could base its verdict. 

State v. Goltz (1985), 197 Mont. 361, 642 P.2d 1079. In the case 

on review, circumstantial evidence tended to prove that the shots 

were fired from the shoulder of Highway 200. These facts were: 1) 
Lynn's vehicle was parked on the shoulder of the highway when the 

shots were fired, and 2) spent shell casings, which were of the 

same brand found in Lynn's rifle, were found on the shoulder where 

his vehicle was parked during the shooting. Additionally, 

photographs were introduced which depicted the shoulder of the 

highway where Lynn parked his vehicle and the area where the shell 

casings were found. 

Circumstantial evidence may be used to prove elements of an 

offense. State v. Cox (1987), 226 Mont. 111, 733 P.2d 1307. In 

the case now before us, the lower court obviously found that the 

circumstantial evidence was sufficient to support a jury verdict 

of guilty. The trial court did not abuse its discretion in this 

regard and, therefore, we will not disturb its ruling on appeal. 

State v. Goltz (1985), 197 Mont. 361, 642 P.2d 1079. 

I11 

Finally, Lynn argues that the lower court erred in refusing 

to grant a directed verdict as to both of the game violations. In 

short he contends that the State failed to prove that he knowingly 

or purposely shot from a public highway in violation of 1 87-3- 

101(2), MCA, and that he knowingly or purposely shot a game animal 

out of season in violation of § 87-3-104, MCA. In support of this 

contention, Lynn argues that the State failed to prove that he was 

aware that road hunting was prohibited in Montana and aware that 

the season on bighorn sheep was closed. He further maintains that 

it was not proven that he knowingly or purposely pulled the trigger 

of the rifle with an intent to kill the ram. 
Neither of these contentions have merit. The first contention 

can be dismissed by reference to the maxim - "Ignorance of the law 

is no excuse. I' State ex rel. Rowe v. District Court (1911), 44 

Mont. 318, 119 P. 1103. The State had no burden to prove Lynn had 

knowledge that road hunting is illegal or that he was aware that 

sheep hunting was closed in March 1988. 

The second thrust of Lynn's argument is similarly without 

merit. Criminal intent can be proven through circumstantial 

evidence. State v. Gladue (1984), 209 Mont. 235, 679 P.2d 1256. 

There was sufficient evidence upon which the jury could infer that 

Robert Lynn purposely or knowingly pulled the trigger to kill the 

ram. This evidence included eyewitness testimony of Violet Hodges, 

the shell casings found on the ground where Lynn's truck had been 

parked, and the .22 caliber bullet hole found in the ram's neck. 

The lower court's judgment is affirmed. 

We Concur: A 

) I/ ; ~hieT Justice (I/\