State v. Fertterer

• Decision Date: 12 November 1992
• Docket Number: No. 91-443,91-443
• Citation: 841 P.2d 467,255 Mont. 73
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard J. FERTTERER, Sr., and David John Fertterer, Defendants and Appellants.
• Court: Montana Supreme Court

Page 467

841 P.2d 467

255 Mont. 73

STATE of Montana, Plaintiff and Respondent, v.Richard J. FERTTERER, Sr., and David John FerttererDefendants and Appellants.

No. 91-443.

Supreme Court of Montana.

Submitted July 9, 1992.

Decided Sept. 28, 1992.

Rehearing Denied Nov. 12, 1992.

John M. Morrison, argued, Morrison Law Offices, Helena, for defendants and appellants.

Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., argued, Helena, Patrick L. Paul, Cascade County Atty., Steve Hagerman, DeputyCascade County Atty., Great Falls, for plaintiff and respondent.

WEBER, Justice.

A jury in the Eighth Judicial District Court, Cascade County, Montana, convicted Richard J. Fertterer, Sr. of seven misdemeanor fish and game violations and two counts of felony criminal mischief.This jury also found David John Fertterer guilty of four misdemeanor fish and game violations and two counts of felony criminal mischief.Defendants appeal the felony convictions and the sentence imposed by the District Court.We affirm in part and reverse in part.

The Fertterers raise the following issues for our review:

1.Are wild animals "public property" within the purview of § 45-6-101, MCA?

2.Does Title 87, MCA, provide an exclusive remedy for the illegal taking of game?

3.Are wild animals property within the definition of § 45-2-101(54), MCA?

4.Is Montana's criminal mischief statute, as applied to the Fertterers, unconstitutionally vague?

5.Did the District Court properly charge the Fertterers with the costs of investigation?

6.Did the District Court properly charge Fertterers with jury costs?

From November 1989, through August 1990, the Department of Fish Wildlife and Parks(FWP) conducted an undercover investigation of a large scale poaching operation run by the Fertterers.During the investigation FWP agents, posing as out-of-state hunters, had extensive contact with the defendants.At trial, agents testified they were actively guided by the Fertterers during two separate five-day hunts.Neither defendant had an outfitter license.In addition, agents testified that during those hunts, Fertterers were spotlighting and killing game without proper tags, illegally trapping bear, soliciting the sale of an illegally killed mountain lion hide, and attempting to sell approximately 1000 pounds of deer and elk meat to an Illinois FWP agent posing as an owner of a meat market.

The jury convicted Richard Fertterer of two counts of felony criminal mischief for illegally killing three elk, six deer and three antelope.It also convicted him of several misdemeanors under Title 87, MCA, including: two counts of outfitting without a license; two counts of unlawfully selling, transporting and possessing game; two counts of hunting with aid of artificial light; and one count of unlawfully trapping game animals.

Likewise, the jury convicted David John Fertterer of two counts of felony criminal mischief for unlawfully killing one mountain lion and three elk.He was also convicted of several misdemeanors under Title 87, MCA, including: guiding without a license, unlawful sale or possession of game, hunting with aid of artificial light, and unlawful trapping of game animals.

Fertterers contend they were wrongfully convicted of felony criminal mischief where wild animals are not properly classified as property or public property within Montana's criminal code.In the alternative defendants claim the criminal mischief statute is unconstitutionally vague as applied to Fertterers and violates the legislative intent of Title 87, MCA.

As a condition of the Fertterers' partially suspended sentences, the District Court charged both defendants with the cost of the jury trial, investigation expenses incurred by FWP, and restitution for the value of the wild game they illegally killed.Defendants argue the court improperly charged them with jury costs where the state improperly tried and convicted them of criminal mischief, and that the costs were excessive due to the length of the trial and the change of venue caused by the State's excessive publicizing of the case.Finally they contend the court wrongfully charged them with investigative costs incurred by FWP prior to filing an information.

I

Are wild animals "public property" within the meaning of § 45-6-101, MCA?

Section 45-6-101(1)(a), MCA, provides:

(1) A person commits the offense of criminal mischief if he knowingly or purposely:

(a) injures, damages, or destroys any property of another or public property without consent; ...

In this instance, defendants contend the District Court incorrectly instructed the jury that wild animals in Montana are owned by the State and are public property.Fertterers argue that the State has no title ownership in the wild animals within its borders; thus, the animals are not owned by the State.

Although the criminal code fails to define "public property", it offers some other definitions regarding ownership which are helpful in defining "public property" under Montana's criminal code.

Section 45-2-101(46), MCA, defines owner as follows:

"Owner" means a person other than the offender who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.

Under this definition, ownership is not limited to title ownership such as that applied to the ownership of real property or to personal property such as cattle or other livestock.The statute recognizes that a lesser interest than title ownership is sufficient as an ownership interest in property crimes.

In State v. Tome(1987), 228 Mont. 398, 742 P.2d 479, this Court recognized that an interest less than title ownership was sufficient to prove ownership for the purpose of Montana's criminal mischief statute.Tome, 228 Mont. at 401, 742 P.2d at 481.In that case, the defendant was charged with felony criminal mischief for $191 in vandalism damages to a city building and $359 in damages to a vending machine leased by a golf pro employed by the city.The defendant argued that the lower court incorrectly considered $359 in damages to the machine in convicting him of felony criminal mischief.This Court held that mere possessory ownership is sufficient to show ownership under the criminal mischief statute.

Similarly here, the State need not prove it had title ownership interest in wild game within its borders.As stated in § 45-2-101(46), MCA, the State is an owner of the property if, without the State's consent, the Fertterers had no authority to exert control over the game.

Next § 45-2-101(55), MCA, defines property of another as follows:

"Property of another" means real or personal property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender himself may have an interest in the property.

Again, this definition focuses not on title ownership of the property but on a superior interest.Under this definition, the State need only prove that it had an interest in the wild game which the Fertterers had no authority to either defeat or impair.Once again under the definition of § 45-2-101(55), MCA, the State need not prove it has title ownership to the game to be classified as an owner.

While the criminal code does not require the State to prove title ownership, the State must prove it possesses an interest superior to the interest of the Fertterers.We conclude that under the statutes and cases of Montana, the State has a superior interest under the ownership theory and also has such an interest by virtue of its police power to regulate the taking of game.

A brief historical analysis shows that beginning with Geer v. Connecticut(1896), 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793, the United States Supreme Court recognized that the states had a right to regulate the taking of game within their borders.This regulatory power was derived from the states' "title ownership" in the game, and also from the states' police power.In Geer, the Court determined that a Connecticut law prohibiting the taking of game birds outside its borders did not violate interstate commerce.That court likewise relied on the title ownership theory in subsequent federal cases including Baldwin v. Montana(1978), 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354.In Baldwin, the Court recognized Montana's interest in regulating the taking and preserving the game animals within its borders.It held that Montana's disparate licensing fees between resident hunters and non-resident hunters did not violate the privileges and immunities clause of the Constitution or the equal protection clause.In the 1979case of Hughes v. Oklahoma(1979), 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250, the United States Supreme Court concluded that an Oklahoma law which prohibited the transporting of live minnows across state lines into Texas violated the interstate commerce clause.As a part of that opinion, it expressly abandoned the title ownership theory as promulgated in Geer.The defendants argue that the Hughes decision effectively precludes Montana from convicting them of criminal mischief for destroying public property.

The State contends there are no federal constitutional questions of interstate commerce, equal protection, or privileges and immunities; and as a result, Hughes is not controlling.We agree with that contention.There is no federal constitutional issue or other federal question presented in the present case.As a result, the holding in Hughes is not controlling here.We do point out that as we compare Hughes to Baldwin, we are not certain the holding expressed in this case would be found to contradict Hughes.

Montana has long recognized that Montana has the power to regulate game animals under both a title ownership and police power theory.In Rosenfeld v. Jakways(1923), 67 Mont. 558, ...