No. 83-319 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

STATE OF MONTANA, Plaintiff and Respondent,

-vsROY XANKINS, Defendant and Appellant.

APPEAL FROM: DistrictCourtof theFirstJudicial District, InadForthe Countyof Lewis & Clark, The HonorableGordonBennett, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Ann L. Smoyer, Helena, Montana

For Respondent: Mike Greely, Attorney General, Helena, Montana Mike McGrath, CountyAttorney, Helena, Montana

Submittedon Briefs: January 26, 1984 Decided: April 30, 1984

Filed: 

### 4Pi( 

### ,i

### 1984

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

The defendant, Roy Hankins, was charged on June 30, 1982, in the District Court of the First Judicial District, with the felony offense of trafficking in the unlawfully obtained body parts of a protected species. On August 27, 1982, Hankins entered a plea of not guilty. On March 9, 1983, a jury found Hankins guilty of the offense charged. Hankins appealsfrom thejury verdict. We affirm. At the outset, we note certain facts relevant tothis appeal: (1)In order to sell or transfer a bobcat pelt the pelt must bear a tag issued by a warden from the Fish, Wildlife and Parks Department. The tag is designed so that it cannotbe removed without damaging thetag. (2)During the trapping season involved in this case, each licenseewas allowed onebobcat. (3) The bobcat trapping season ran from December 1, 1981 to February 15, 1982 and there were ten days from the closeof the season totag a pelt. On February 23, 1983, two days before the end of tagging, Hankins and his wife, Nancy, had game warden Jim Bird in Townsend tag a bobcat pelt with tag number 707 for Nancy Hankins. Bird later testified that thepelt "was old and dried out, and the fur was very short." That same day Roy Hankins appeared at the Fish, Wildlife and Parks warehouse in Helena with a bobcat pelt. The State later contended attrialthatthepeltBankins presented inHelena

was the same pelt he had tagged earlier in Townsend. Hankins received tag number 1901 from the Helena warehouseissued toHankins himself aslicensee. Subsequently, Hankins sold a pelt bearing tag number 1901 to Bill Summers for $130. Summers in turn sold the pelt to Pacific Hide and Fur for $10 or $15 because the buyer atPacific Hide and Fur considered the pelt to be of poor quality. Thereafter, Warden JimBird of Townsend examined the pelt with tag number 1901and later testified attrial that it was the same pelt he had tagged at Townsend with tag number 707. Bird also learned that on about March 18, 1982 Hankins sold a high qualitypelttoPacificHide and Fur for $200. This pelt, which Bird later testified he had never

seen before, bore tag number 707. Bird also testified at trial that tag number 707 showed signs of tool marks and appeared tohave been pried off. As a result of the foregoing occurrences Hankins was charged and convicted by a jury of violating Section 87-3-111, MCA, trafficking in the unlawfully obtained body parts of a protected species, a felony. Hankins was sentenced toserve one year in theMontana State Prison all of which was suspended if Hankins spent tenweek-ends inthe Lewis and Clark jail, paid a fine of $1,000 and forfeited hislicense tohunt, fishor trapfor two years. The first issue Hankins raises on appeal is whether the District Court erred in its instructions to the jury. Appellant contends that because the information referred to "bobcats"-- plural, theDistict Court should have instructed thejury thattheyhad tofindthatmore thanone bobcat was illegallytaken inorder toconvicttheappellant. Although the information did state that appellantengaged in a common scheme to trafficinthe "body parts" of unlawfully taken "bobcats," the jury instruction which referred to those terms singularly does not constitute reversible error. In State ex rel. McKenzie v. District Court (1974), 165Mont. 54, 525 P.2d 1211, this Court held that the purpose of an information is to inform the defendant of what he is charged. "Itis not the functionof the information toanticipateor suggest instructionstothe jury 

# . .

# . It is a notice device, not a discovery device." Stateex rel. McKenzie, supra, 165Mont. at63. Appellant also asserts that the District Court's jury instructions failed to distinguish between the felony and misdemeanor offensesunder Section 87-3-111(1) and (4), MCA. The misdemeanor portion of Section 87-3-111, MCA, provides: "It is hereby made unlawful for any person topurchase, sell, offer to sell, possess, ship or transport any game, fish, game bird, game animal or furbearing animal or part thereof protected by the laws of this state, whether belonging to the same or different species from thatnative tothe Stateof Montana, except as specifically permitted by the laws of thisState." The felony portion of Section87-3-Ill, MCA, provides: "Any person engaging in the activities prohibited in subsection (1) in furtheranceof a scheme totrafficinthe body partsof unlawfully taken species is guilty of a felony and shallbe punished by a fine of $10,000 or imprisonment in the stateprison for a term of 1year or both. " When read together, the jury instructions clearly draw a distinction between the felony offense charged and the lesser included misdemeanor offense. Court's instruction number 1provided, in pertinent part: "The Defendant, Roy Hankins, is, by information a.ccused of trafficking inunlawfully obtained body 

### arts of a protected species, a felony

# ... " Court's instruction number 10provided, in pertinent part: "You are instructed that to prove the offense charged in this case, the State must prove the following propositions beyond a reasonabledoubt: "First: That the bobcat pelt bearing tag #1901, or the pelt bearing tag $707,was unlawfully taken. "Second: That Roy Hankins purposely or knowingly purchased, sold, offered to sell, possessed, shipped or transported an unlawfully taken bobcat pelt, and that unlawfully taken pelt was the pelt bearing tag #1901, or the pelt bearing tag #707. "Third: That Roy Hankins committed or performed the acts described in the preceding paragraph in furtherance of a common scheme to traffic in the body parts of unlawfully taken species." Court's instruction number 14 distinguished between the felony charged and the misdemeanor offense by providing, in part: "You are instructed that to prove the misdemeanor offense of unlawfully buying, selling,possessing or transporting game, the State must prove the following propositions beyond a reasonable doubt: "First: That the bobcat pelt bearing tag #1901, or the pelt bearing tag #707,was unlawfully taken; and "Second: That Roy Hankins purchased, sold,offered to sell,possessed, shipped or transported an unlawfully takenbobcat pelt, and that unlawfully taken pelt was the pelt bearing tag #1901, or the pelt bearing tag #707. Court's instruction number 14 on the misdemeanor offense properly omitted the "common scheme" language required for a felony conviction. Moreover, "common scheme" was accurately defined by court's instruction number 

### 7 which

### provided: "'Common scheme' means a series of 

### acts or omissions motivated by a purpose to accomplish a single criminalobjective or by a commonpurpose or plan which results in the repeated commission of the same offense or affects the sameperson or the samepersons or the property thereof." Although appellant asserts the court's instruction on "common scheme"was an inadequate statement of the law, the instruction was taken directly from Section 45-2-101(7), MCA. On several previous occasions this Court has rejected challenges to jury instructions when those instructions restated statutory language. State v. French (1975), 166 Mont. 196, 531 P.2d 373; State v. Dunn (1970), 155 Mont. 319,472P.2d 288. Likewise, the court's instructionon the definition of "trafficking" was taken directly from Section 87-3-111,MCA, and did not constitute reversible error. The District Court also did not err by refusing defendant's proposed jury instruction number 17 which set forth the duties of fish and game wardens. Where the instruction has no relevance to the case it serves no purpose but to confuse the jury. "An instruction shouldnot be given if it is not relevant nor material to the evidence

or issues in the case." State v. Brooks (1967), 150 Mont. 399, 436 P.2d 91. The fish and game wardens were not on trial in this case and appellant's proposed jury instruction

was not relevant to the issues presented at trial. 

### A review of the jury instructions in their entirety indicates the jury was fully and fairly instructed on the applicable law and we cannot reverse the decision of the District Court. State v. Higley (Mont. 1980), 621 P.2d

### Next appellant asserts that the information was legally insufficient and defective on its face. Specifically, appellant argues the language of the information insufficiently apprised the appellant of the charges that were being brought againsthim. The information stated the offenses essentially in terms of the statute with additional allegations of time and place. Montana follows the general rule that an information is sufficient if it properly charges an offense in the language of the statute describing the offense. State ex rel. Glantz v. District Court (1969), 154 Mont. 132, 461 P.2d 193. "An information need only be sufficient to apprise the accused of the crime charged. It need not be perfect." State v. Coleman (1978), 177 Mont. 1, 22, 579 P.2d 732, 745. Thus, the information in the case was legally sufficientand not defective on its face. The appellant also maintains that the District Court erred in failing to rule on appellant's motion todismiss on grounds that the information was unsupported by probable

cause. However, the record shows that the District Court denied appellant's motion to dismiss on March 7, 1983 immediately preceding trial by jury. Appellant also argues that theDistrict Court erred in denying appellant's motion for a continuance. Eight months elapsed from the time of the filing of the information to the day of trial and the appellanthas failed to demonstrate any prejudice thatwas causedby theDistrict Court's denial of a continuance. "Motions for continuance are addressed to the discretion of the trial court and the granting of a continuance has never been amatter of right. The District

### Court cannotbe overturned onappeal in absence of a showing of prejudice to the mova.nt." State v. Van Natta (Mont.

Finally appellant argues the District Court erred in its sentencing of the appellant. Specifically, appellant inaintains the District Court erred by, (1)failing to order a presentence investigation; (2) 

### failing to mention that appellant was to lose his trapping privileges; (3)charging the appellant by information with a felony but including misdemeanor sanctions in appellant's sentence; and (4) the sentencing was erroneous because potential punishment was not set forth in the information. Section 46-18-111,MCA,provides inpertinent part: "Nodefendant convicted of a crime which may result in commitment for one (1)year or more in the state prison, shall be sentenced or otherwise disposed of before a written report of investigation 

### by a probation officer is presented to and considered by the court,unless the court deems such report unnecessary." (Emphasis added.) 

### The plain language of the statute indicates the necessity of a presentence investigation is within the sound discretion of the District Court and appellant's assertion that the DistrictCourt erred by refusing to conduct an investigation is without merit. Moreover, the District Court clearly explained to appellant its reasons for the sentence it imposed and appellant declined to objector respond to those

reasons with any mitigating circumstances he could find Statev. Bretz (Mont. 1979),605P.2d 974, 36 St.Rep. 1037. The District Court did not err by 

### failing to mention appellantwould lose his trapping privileges. The District Court clearly stated at sentencing that itwould "impose the

### sanctions set forth in Section 87-1-102, MCA," which includes the loss of trapping privileges. Also, there is nomerit to appellant's contention that the District Court could not use sentencing options in the felony which it could in the misdemeanor. Here, the felony includes the misdemeanor. Under Section 87-3-111, MCA, the State had to first prove the misdemeanor offense before it could prove the felony offense. Thus, the loss of hunting, fishing and trapping privileges was properly applied to the appellant. Lastly, the sentence was not improper because the information failed to set forth appellant's potential punishment. Section 46-11-401,MCA, which provides what the charge shall contain, does not require the State to inform the accused of thepotential punishments for the offense. The State sustained its burden ofproof and we find no reversible error. The conviction is affirme 

# P 

# &,L,

Justice 

# / We concur: 

# 3~d4 / 

### Chief Justice

Justices

Mr. JusticeDaniel J. Shea concurs andwill file a written concurrence ata later time.SPECIALLY CONCURRING OPINION OF MR.. JUSTICEDANIEL J. SHEA

STATEOF MONTANA

VS

# . ROY HANKINS

CLEWOFSUPRMWE @8UR'I; STATEOFNION1'LkNA

DATED: January 6, 1985

### Kr. JusticeDanielJ. Shea 

### specially concurring:

1 

### agree 

### with the majority's decision to affirm the defendant's conviction. However, I 

### cannot agree with the



### mzjority

### 's ruling that the 

### jury instructions on "common scheme" and "traffickins,"which set forth statutory language verbatin, are valid solely because they are drafted in statutory language. When a statute upon which s 

### jury instruction isbased isamgiguous or difficult to understand, that jury instruction is also usually ambiguous or unclear. Merely setting forth statutory Language does not always fulfill the trial court's obligation to fully and accurately instruct the jury. Additional..or different instructionsmay be needed in order to insure that the jury receives the clearest picture possible of the pertinent legal issues.