DA 08-0500

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 324N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOHN MICHAEL CRITES,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark, Cause No. CDC 2006-329

Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael J. Sherwood, Michael J. Sherwood, P.C., Missoula, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss,

Assistant Attorney General, Helena, Montana

Leo J. Gallagher, Lewis and Clark County Attorney; Carolyn Clemens,

Melissa Broch, Deputy County Attorneys, Helena, Montana

Submitted on Briefs: August 18, 2009

Decided: October 1, 2009

Filed:

__________________________________________

Clerk

October 1 2009
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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 On August 31, 2007, the State filed an Amended Information against John

Michael Crites (Crites) in the First Judicial District Court. The Amended Information

contained a total of fifteen counts. Prior to trial some of the counts were dismissed.

Ultimately, Crites was convicted by a jury on Count II, misdemeanor unlawful possession

of game animals. Crites now appeals from the jury verdict and judgment convicting him

of misdemeanor unlawful possession of game animals, imposing a six-month suspended

sentence, and ordering him to pay $1,000 in restitution. We affirm.

¶3 The circumstances surrounding the charges against Crites are briefly described as

follows. Crites owns and resides on four twenty-acre parcels in the Birdseye area of

Lewis and Clark County. In 2005, Crites was involved in a lawsuit with a neighbor

regarding access to her land, which could only be accessed via Turk Road. Judgment

was rendered against Crites and a writ of execution was issued permitting two of his lots

to be sold at a sheriff’s sale. On March 29, 2006, Sergeant Rick Broadwater (Sgt.

Broadwater) and two other deputies from the Lewis and Clark County Sheriff’s

Department, traveled to Crites’ property via Turk Road in order to post a notice of sale.
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¶4 Sgt. Broadwater attempted to contact Crites at his property. Sgt. Broadwater later

testified that he did not recall observing any no trespassing signs at the entry of Crites’

driveway, nor was there a gate blocking Crites’ driveway. When Sgt. Broadwater drove

up, five to seven deer ran towards him and stopped near where he had parked. The deer

began feeding on what Sgt. Broadwater thought was hay residue. Sgt. Broadwater also

noticed what he thought were five wolf hybrids in a fenced area on the backside of the

house. Sgt. Broadwater also observed a number of deer bones, and two antlered deer

skulls. Sgt. Broadwater went up to Crites’ door and knocked, but Crites was not home at

the time. On the porch Sgt. Broadwater noticed a freezer, which he opened. Inside, he

observed what he thought to be deer meat. Sgt. Broadwater took pictures of the interior

of the freezer and the observable property.

¶5 On March 30, 2006, Sgt. Broadwater contacted the Department of Fish, Wildlife,

and Parks (DFWP) and informed DFWP Warden Sergeant Randy Arnold (Sgt. Arnold)

what he had observed. Sgt. Broadwater suspected that Crites was in violation of various

DFWP hunting and fishing regulations. Sgt. Arnold worked with DFWP Warden Dave

Loewen (Warden Loewen) to apply for a search warrant. The search warrant application

listed four possible offenses, including unlawful possession of game animals, and the

locations and evidence to be searched for. On April 6, 2006, Justice of the Peace Wallace

A. Jewell granted the search warrant. DFWP officers executed the search warrant on

April 10, 2006, and seized a number of items of evidence. The DFWP officers later

testified that they did not remember seeing any no trespassing signs on the lower portion
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of Turk Road leading up to Crites’ property, nor did they recall any gate or other type of

barrier blocking the entrance to Crites’ property.

¶6 After the Amended Information was filed, Crites filed a motion to suppress.

Crites argued that the information in the search warrant application was obtained by an

unlawful trespass by law enforcement, that it omitted material facts and presented false

facts, and that it was invalid because it was overly broad. After a hearing, the District

Court denied the motion. The District Court concluded it was not unreasonable for Sgt.

Broadwater to enter Crites’ property in order to personally inform him of the sale.

Furthermore, while the District Court did conclude that Crites had posted a “no

trespassing” sign on Turk Road before the driveway to his house, the location of the sign

did not indicate that an individual should not enter Crites’ driveway. In this connection,

the District Court noted that Crites had lost a lawsuit over his ability to restrict the use of

Turk Road.

¶7 In denying Crites’ motion, the District Court considered testimony from DFWP

Warden Sergeant Ottman (Sgt. Ottman) concerning his previous interactions with Crites

at his property. Sgt. Ottman testified that Crites had never instructed them to seek

permission before entering his property, and also did not recall seeing any no trespassing

signs on the lower part of Turk Road leading up to Crites’ property, or before the turnoff

into Crites’ driveway. The District Court determined that once Sgt. Broadwater was on

Crites’ property, he was not prohibited from photographing what he had observed. The

District Court, did, however, hold that Sgt. Broadwater should not have opened the

freezer and that any evidence obtained from the freezer should be suppressed.
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¶8 The District Court also examined the search warrant application and concluded

that it stated with sufficient particularity the offenses which Crites was alleged to have

committed and the evidence sought. See State v. Worall, 1999 MT 55, 293 Mont. 439,

976 P.2d 968. The District Court acknowledged that the search warrant may have

contained an incorrect statement to the effect that Sgt. Broadwater believed two of the

antlered deer skulls he observed were from recently killed deer, but concluded that if that

information was excised, sufficient probable cause for the warrant still existed.

¶9 Crites subsequently filed motions to dismiss all the charges against him. Count II,

unlawful possession of game animals, the only charge of which Crites’ was convicted,

was not dismissed by the District Court. Count II alleged that between October 1, 2002,

and August 10, 2006, Crites unlawfully possessed the following in violation of various

provisions of the 2001, 2003, and 2005 versions of Title 87, chapter 1, part 1, and chapter

3, part 1, of the Montana Code Annotated: (1) antlers from a mule deer buck illegally

killed in the Missouri River Breaks in October 2002; (2) antlers from a whitetail buck

with a broken brow tine line illegally killed in November 2002; (3) antlers from a

five-point mule deer buck illegally killed in 2003; and/or (4) antlers from a whitetail buck

illegally killed in 2003. The District Court concluded that the State set forth allegations

in support of these charges sufficient to establish probable cause that Crites committed

these offenses, and denied the motion.

¶10 Crites later filed motions to dismiss the counts in the Amended Information,

including Count II, on other grounds as well. For instance, Crites argued that the statutes

upon which these charges were based improperly imposed absolute liability on him. The
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District Court denied this motion, citing to § 87-1-102(1), MCA, which states in relevant

part that a person who purposely, knowingly, or negligently violates any provision of

Title 87, or any other state law pertaining to fish and game, could be found guilty of a

misdemeanor or felony. Because a mental state was required, the District Court found

the statutes did not impose absolute liability.

¶11 Additionally, Crites moved to dismiss these counts on substantive and procedural

grounds. Crites asserted that § 46-11-205, MCA, did not authorize the State to file the

Amended Information against him through an ex parte process, and that its failure to

contact him prior to filing the Amended Information was procedural flawed. The District

Court rejected this argument, citing to § 46-11-205, MCA, which states in relevant part as

follows:

46-11-205. Amending information as to substance or form. (1)

The court may allow an information to be amended in matters of substance

at any time, but not less than 5 days before trial, provided that a motion is

filed in a timely manner, states the nature of the proposed amendment, and

is accompanied by an affidavit stating facts that show the existence of

probable cause to support the charge as amended. A copy of the proposed

amended information must be included with the motion to amend the

information.

. . .

(3) The court may permit an information to be amended as to form at

any time before a verdict or finding is issued if no additional or different

offense is charged and if the substantial rights of the defendant are not

prejudiced.

¶12 Crites also argued that the charges against him should be dismissed for failure to

comply with the Montana Administrative Procedures Act, Title 2, chapter 4, MCA

(MAPA). This argument was rejected as well.
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¶13 Crites now appeals the denial of his motion to suppress and motion to dismiss, and

argues his conviction should be reversed. Crites also argues the jury was improperly

instructed and that he was improperly ordered to pay DFWP $1,000 in restitution. We

address each of these challenges in turn.

¶14 Crites argues the District Court erred in denying his motion to dismiss Count II

because: (1) the DFWP game regulations upon which the charges against him were

premised did not meet the requirements under MAPA and did not have the effect of law;

(2) Count II failed to allege a mental state as an element of the offense; (3) the

Legislature’s adoption of restitution values for unlawfully taken deer and trophy deer, as

set forth in §§ 87-1-111 and -115, MCA, violate substantive and procedural due process;

and (4) the factual allegations in Count II failed to allege sufficient facts to establish

probable cause and were not supported by sufficient evidence.

¶15 A district court’s denial of a motion to dismiss in a criminal proceeding is a

question of law which we review de novo to determine whether the district court’s

conclusion of law is correct. State v. Allen, 2009 MT 124, ¶ 9, 350 Mont. 204, 206 P.3d

951. The District Court did not err in denying Crites’ motion to dismiss. First, the

District Court correctly noted that § 2-4-102(11)(b)(iv), MCA, of MAPA, specifically

provides any exemption from the normal publication requirements for seasonal rules

adopted annually or biennially which relate to hunting, fishing, or trapping. The

regulations upon which Crites’ conviction were premised fall into this exemption and are

lawful under MAPA. Second, the District Court correctly concluded that § 87-1-102(1),

MCA, requires a mental state for Crites’ alleged offenses as set forth in the Amended
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Information. Third, in 1987 the Legislature established restitution values for the illegal

killing or possession of wildlife pursuant to § 87-1-111, MCA (1987). In 1999, the

Legislature enacted restitution values for a conviction of the knowing or purposeful

illegal killing, taking, or possession of trophy wildlife under § 87-1-115, MCA. Crites

has failed to demonstrate how any of these statutes violate procedural or substantive due

process. Fourth, the allegations set forth in the Amended Information and supporting

affidavit set forth sufficient facts to indicate that Crites committed the offenses for which

he was charged. See State v. Mason, 283 Mont. 149, 152, 941 P.2d 437, 439 (1997).

Moreover, the District Court did not err in concluding that the State presented sufficient

evidence for a rational trier of fact to find that Crites committed the charged offense. See

State v. Trujillo, 2008 MT 101, 342 Mont. 319, 180 P.3d 1153. Thus, the District Court

did not err in denying Crites’ motions to dismiss Count II.

¶16 Next we turn to Crites’ challenges to the denial of his motion to suppress. We

review a district court’s denial of a motion to suppress to determine whether the district

court’s findings of fact are clearly erroneous and whether the district court correctly

applied those findings as a matter of law. State v. Clawson, 2009 MT 228, ¶ 9, 351

Mont. 354, 212 P.3d 1056. Crites claims the District Court erred in denying his motion

to suppress because: (1) the officers’ entry onto his property was unlawful; and (2) the

search warrant contained false statements, was overbroad and was therefore deficient.

We disagree. In order to determine whether a search is illegal under the Montana

Constitution, the court must consider whether the person has an actual expectation of

privacy which society is willing to recognize as objectively reasonable and the nature of
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the State’s intrusion. State v. Dunn, 2007 MT 296, ¶ 12, 340 Mont. 31, 172 P.3d 110.

Here the District Court did not err in concluding that Crites failed to manifest an actual

expectation of privacy which would prevent the officers from driving up to his house, and

that the nature of the officers’ visit to Crites’ residence was not overly intrusive. The

District Court did conclude that the officers should not have opened Crites’ freezer,

however, and did order any evidence obtained from the freezer to be suppressed.

Additionally, the District Court reviewed the application and the search warrant itself and

concluded it stated with sufficient particularity the offenses which Crites was alleged to

have committed and the evidence sought. Crites has failed to demonstrate that the

District Court erred in either regard.

¶17 In addition to the challenges to the denial of his motions to dismiss and suppress,

Crites also argues the District Court improperly instructed the jury, imposed an

unauthorized sentence when it ordered him to pay $1,000 in restitution, and that

cumulative trial error and prosecutorial misconduct warrant reversal of his conviction.

Under M. R. App. 12(1)(f), this Court will decline to consider arguments on appeal which

are not adequately briefed and argued. See State v. Cybulski, 2009 MT 70, ¶¶ 13-15, 349

Mont. 429, 204 P.3d 7. Crites has failed to support these additional challenges with

appropriate citations to the record and argument as required under M. R. App. 12(1)(f).

Thus, we reject Crites challenges on these grounds as well.

¶18 We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)

of our 1996 Internal Operating Rules, as amended in 2003, which provides for
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memorandum opinions. It is manifest on the record before us that the District Court did

not err in denying Crites’ motions to suppress and dismiss. Affirmed.

/S/ PATRICIA O. COTTER

We concur:

/S/ JOHN WARNER

/S/ JAMES C. NELSON

/S/ JIM RICE

/S/ BRIAN MORRIS