State v. Norman

• Decision Date: 02 December 2010
• Docket Number: No. DA 09-0235.,DA 09-0235.
• Citation: 2010 MT 253,244 P.3d 737,358 Mont. 252
• Parties: STATE of Montana, Plaintiff and Appellee, v. Kurt J. NORMAN, Defendant and Appellant.
• Court: Montana Supreme Court

244 P.3d 737 358 Mont. 252 2010 MT 253 STATE of Montana, Plaintiff and Appellee, v. Kurt J. NORMAN, Defendant and Appellant. No. DA 09-0235. Supreme Court of Montana. Submitted on Briefs July 21, 2010. Decided Dec. 2, 2010.

For Appellant: Johnna K. Baffa, Attorney at Law, Missoula, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Barbara C. Harris, Assistant Attorney General, Helena, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Kurt J. Norman was convicted following a jury trial in the Twenty-First Judicial District Court, Ravalli County, of unlawfully possessing game animals. He now appeals, arguing (1) that the District Court improperly instructed the jury and (2) that his trial attorney rendered ineffective assistance of counsel. We affirm.

BACKGROUND

¶ 2 In 2006, the Montana Department of Fish, Wildlife, and Parks (FWP) commenced an investigation of Norman based on information that he had been involved in unlawful hunting activities in Hunting District 270 (HD 270). This district, located southeast of Hamilton, is highly regulated for the purpose of fostering a population of mature buck mule deer. According to testimony from J.D. Douglas, a criminal investigator with FWP, the restrictions on hunting in HD 270 have, in fact, resulted in some "enormous" bucks. Correspondingly, the area has become very popular among hunters. In 2007, only 100 permits were issued for the large bucks, 15 of which went to area landowners. For the remaining 85 permits, FWP received 5,820 applications.

¶ 3 In 1999, Walter Mick Iten bought 3,500 acres within HD 270. He testified that after acquiring the property, he received calls from "literally hundreds" of people wanting to hunt there. He further testified about instances of trespassing and poaching, sometimes by persons whom he had specifically told not to enter his property. Thus, in late 2000, Iten enlisted Norman to patrol the property and reportany trespassers or poachers. In exchange, Iten allowed Norman to shoot one legal elk and one legal deer per year. This arrangement continued until 2005. Notably, however, Norman was never issued a license by FWP during this period to hunt buck mule deer in HD 270. Also, Iten did not give Norman permission to bring other people onto the property.

¶ 4 Douglas testified that in the course of the FWP investigation, he interviewed ten or so witnesses and seized animal parts, numerous photographs, and a computer from Norman's residence. Based on an analysis of this evidence and the witness interviews, he ascertained the location and circumstances under which each animal had been killed, who had done so, and whether the person had been issued a license for the particular animal in the particular location. According to testimony at trial, Norman was involved with a number of animals unlawfully taken in 2003, 2004, and 2007, sometimes as the shooter and sometimes as the person who accompanied the shooter.

¶ 5 The State filed a three-count Information on January 2, 2008, charging Norman with violations of § 87-3-111, MCA (2005), and § 87-3-118, MCA (2003),¹ as follows:

Count 1: Unlawful possession of game animals, a felony, in violation of § 87-3-111(1), MCA (2005). Between May 8 and 22, 2007, Norman purposely or knowingly possessed two buck mule deer, one antelope, and one bull elk which had been killed unlawfully (namely, without a valid license) and whose value exceeds $1,000.

Count 2: Possession of unlawfully taken wildlife, a felony, in violation of § 87-3-118(2), MCA (2003). Between November 1 and 30, 2004, Norman purposely or knowingly possessed one cow elkand two buck mule deer which had been killed unlawfully (without a valid license) and whose value exceeds $1,000.

Count 3: Possession of unlawfully taken wildlife, a felony, in violation of § 87-3-118(2), MCA (2003). Between October 12 and November 30, 2003, Norman purposely or knowingly possessed one antelope, one bull elk, and one buck mule deer which had been killed unlawfully (without a valid license, or in violation of the limit on number of game animals hunted or killed) and whose value exceeds $1,000.

¶ 6 The value of each animal is set by statute. See § 87-3-111(5), MCA (2005); § 87-3-118(2), MCA (2003); §§ 87-1-111, -115, MCA (2003 & 2005). Of relevance here, an elk, deer, or antelope that meets the criteria set forth in § 87-1-115, MCA, is deemed a "trophy animal" and, as such, is valued higher than it otherwise would be under § 87-1-111, MCA. For instance, an elk is valued at $1,000 under § 87-1-111, MCA, but a trophy elk (defined as having at least six points on one antler) is valued at $8,000 under § 87-1-115, MCA. Similarly, deer and antelope are valued at $500 or $300 (depending on certain characteristics) under § 87-1-111, MCA, but a trophy deer (i.e., with at least four points on one antler) is valued at $8,000 and a trophy antelope (i.e., with at least one horn greater than 14 inches in length) is valued at $2,000 under § 87-1-115, MCA.

¶ 7 Furthermore, with respect to Count 1 (unlawful possession of four animals whose value exceeds $1,000), § 87-3-111(5), MCA (2005), states that the value of game animals unlawfully possessed "as part of the same transaction ... may be aggregated in determining the value." Similarly, with respect to Counts 2 and 3 (possession of three unlawfully taken animals whose value exceeds $1,000), § 87-3-118(4), MCA (2003), states that the value of all wildlife possessed "within a 45-day period must be added together to determine whether the value of the wildlife is greater than $1,000."

¶ 8 Consequently, in order for Norman to be convicted of felony possession of game animals as charged in the Information under these statutes, it was necessary for the jury to determine, with respect to each count:

1. that he unlawfully possessed at least one of the animals listed in the count; and

2. that the value of the unlawfully possessed animal or animals exceeded $1,000 because (a) at least one animal was a trophy animal or (b) two or more animals were unlawfully possessed "as part of the same transaction" (Count 1) or "within a 45-dayperiod" (Counts 2 and 3) and their value when "aggregated" (Count 1) or "added together" (Counts 2 and 3) exceeded $1,000.

¶ 9 Of course, in order to complete the second inquiry, the jury had to determine the value of each unlawfully possessed animal. Although the animals' values are set out in §§ 87-1-111 and -115, MCA, the applicable statute and ultimate value depends on whether the animal is a "trophy animal." Thus, upon finding that Norman had unlawfully possessed a particular animal, the jury had to decide whether that animal met the criteria of a "trophy animal." Once this determination was made for each unlawfully possessed animal, and the corresponding value was assigned to the animal pursuant to either § 87-1-111 or § 87-1-115, MCA, then the jurycould calculate whether the value of the unlawfully possessed animal or animals in the given count exceeded $1,000—either because at least one was a trophy animal, or because two or more were unlawfully possessed "as part of the same transaction"/"within a 45-day period" and their value when "aggregated"/"added together" exceeded $1,000.

¶ 10 The case was tried on October 20 through 22, 2008. Ultimately, the jury made the following findings reflected in the Verdict:

Count 1: Norman illegally possessed two buck mule deer, one antelope, and one bull elk between May 8 and 22, 2007, and "the total value of the animals illegally possessed" was "[o]ver $1,000."

Count 2: Norman illegally possessed one cow elk and one buck mule deer between November 1 and 30, 2004, but did not illegally possess the second buck mule deer alleged under this count, and "the total value of the animals illegally possessed" was "[o]ver $1,000."

Count 3: Norman illegally possessed one antelope and one bull elk between October 12 and November 30, 2003, but did not illegally possess the buck mule deer alleged under this count, and "the total value of the animals illegally possessed" was "[o]ver $1,000."

¶ 11 Under Count 1, the District Court gave Norman a five-year deferred imposition of sentence. Under Counts 2 and 3, the court sentenced him to two five-year terms at the Department of Corrections, both suspended, to be served concurrently with each other and consecutively to the sentence under Count 1. Furthermore, the court revoked, for the remainder of his lifetime, Norman's privileges to hunt, trap, and fish, and the court also ordered that he may not accompany any hunter, angler, or trapper in the field.

DISCUSSION

¶ 12 Issue 1. Did the District Court improperly instruct the jury?

¶ 13 We generally review jury instructions in a criminal case to determine if, when taken as a whole, they fully and fairly instruct the jury on the applicable law. State v. Allen, 2010 MT 214, ¶ 22, 357 Mont. 495, 241 P.3d 1045. If the trial court has rendered instructions that are erroneous in some aspect, the mistake must prejudicially affect the defendant's substantial rights in order to constitute reversible error. State v. Archambault, 2007 MT 26, ¶ 14, 336 Mont. 6, 152 P.3d 698; § 46-20-701(1), (2), MCA. Norman raises three distinct challenges relating to the jury instructions in this case. We address them in turn.

A. "Exceeds $1,000"

¶ 14 First, with regard to the statutory scheme under which he was charged in Count 1, Norman points out that if the value of the unlawfully possessed animal or animals does not exceed $1,000, then the offense is a misdemeanor. It is only when the value "exceeds $1,000" that the offense becomes a felony. See § 87-3-111(6), MCA (2005). Thus, in order for him to be given a felony sentence, there had to be a finding that the value of the animals that he unlawfully possessed exceeded $1,000. Moreover, as a matter of constitutional law, this fact had to be found by the jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct....