State v. Wilmer, DA 10–0159.

Decision Date19 April 2011
Docket NumberNo. DA 10–0159.,DA 10–0159.
Citation252 P.3d 178,2011 MT 78,360 Mont. 101
PartiesSTATE of Montana, Plaintiff and Appellee,v.Steven Joseph WILMER, Defendant and Appellant.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

For Appellant: Ethan C. Lerman; Lerman Law Firm, PLLC; Missoula, Montana.For Appellee: Steve Bullock, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana, M. Shaun Donovan, Mineral County Attorney; Superior, Montana.Justice BETH BAKER delivered the Opinion of the Court.

[360 Mont. 102] ¶ 1 Steven Joseph Wilmer (Wilmer) appeals his conviction of Waste of a Game Animal. He raises the following issues:

¶ 2 1. Whether photographs of the deer carcass properly were admitted despite being taken several days after the carcass was seized from Wilmer's property.

¶ 3 2. Whether the District Court properly admitted expert testimony regarding the condition of the meat.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On January 27, 2009, Warden Michael Fegley (Fegley) received an anonymous tip from 1–800–TIP–MONT indicating Wilmer had a deer hanging on the side of his trailer since Thanksgiving. Fegley visited Wilmer's residence on January 28, 2009. Fegley observed a deer carcass that was dried out with frozen water in the chest cavity and mold growing on the interior and exterior. The carcass was hanging on Wilmer's deck exposed to the elements. Based on Fegley's observations about the general appearance and texture of the carcass, he determined the meat was not fit for human consumption. After seeing the carcass and inquiring about the location of the animal tag, Fegley warned Wilmer that it was illegal to waste game, to kill an animal without a tag, and to fail to keep the tag attached to the animal at all times.

¶ 5 Fegley returned to Wilmer's residence on January 31, 2009. At that time, Wilmer presented Fegley with a deer tag marked for two different days, November 11, 2008 and November 19, 2008. When Fegley asked Wilmer what exact day the deer was shot, Wilmer responded that he didn't remember. Fegley explained to Wilmer that the standard for a violation of the law prohibiting waste of a game animal is whether the meat is fit for human consumption. According to Fegley, Wilmer's only response was “it's my deer, I can do with it what I want.”

¶ 6 Fegley wrote Wilmer two tickets, Waste of a Game Animal and Failure to Tag the Carcass of a Game Animal. Fegley confiscated the carcass and put it in the back of his truck. For three days, the carcass remained uncovered in the bed of Fegley's truck. On February 3, 2009, Fegley photographed the carcass and disposed of it.

¶ 7 Wilmer was tried before a jury in the Mineral County Justice Court and convicted of both charges. Wilmer appealed to the District Court.

¶ 8 Prior to trial, Wilmer filed a motion in limine to exclude, among other things, the photographs Fegley took of the carcass and the testimony of Jerry Stroot (Stroot). Stroot is the owner and operator of Superior Meats. He has worked in meat processing for approximately thirty years and is certified by the United States Department of Agriculture in Hazardous Analysis of Critical Control Points in food processing. He also regularly attends Montana Meat Processors Association training. Stroot regularly inspects wild game to determine whether the meat is fit for human consumption. While Stroot had not personally inspected the deer carcass that Fegley seized from Wilmer's property, he had examined the photographs and was offered by the State to present expert testimony regarding the condition of the meat.

¶ 9 The District Court denied Wilmer's motion in limine and held a jury trial on December 30, 2009. Fegley, Wilmer, and Stroot all testified at trial. The photographs of the carcass were admitted over objection after Fegley testified that the carcass was in the same condition at the time of disposal as the day he confiscated it from Wilmer's property.

¶ 10 The jury found Wilmer guilty of both charges and the court sentenced him to twelve months in the county jail, all suspended, imposed the maximum fine, and suspended of all of his hunting, fishing, and trapping privileges for twelve months. Wilmer now appeals.

STANDARD OF REVIEW

¶ 11 Rulings regarding the admissibility of evidence are left to the sound discretion of the trial court and will not be overturned absent a showing of manifest abuse of discretion. State v. Bar–Jonah, 2004 MT 344, ¶ 96, 324 Mont. 278, 102 P.3d 1229. A district court's weighing of potential prejudice against probative value will be upheld absent an abuse of discretion. Id.

DISCUSSION

¶ 12 1. Whether photographs of the deer carcass were properly admitted under M.R. Evid. 403.

¶ 13 Wilmer contends the photographs of the deer carcass are not probative and therefore should not have been admitted under M.R. Evid. 403. He argues that because the carcass was photographed three days after it was confiscated, the photographs are not instructive as to the condition of the carcass while in Wilmer's possession. He also alleges that, even if admissible, the State failed to provide a proper foundation for the photographs at trial.

¶ 14 Evidence is probative if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R. Evid. 401. Evidence is relevant and admissible “if the state is able to demonstrate a link between the evidence and the fact or element in question.” Bar–Jonah, ¶ 99.

¶ 15 Section 87–3–102(3), MCA, states:

(3) A person responsible for the death of any game animal ... commits the offense of waste of game if the person purposely or knowingly:

...

(b) wastes any part of any game animal ... by transporting, hanging, or storing the carcass in a manner that renders it unfit for human consumption....

¶ 16 The photographs of the carcass were presented as evidence of its condition. They were therefore clearly instructive as to the quality of the meat and whether Wilmer allowed the game to be wasted. Fegley testified to photographing the carcass three days after confiscating it. He also testified that the storage conditions, including exposure to the elements, were the same as they had been at Wilmer's residence, where the carcass admittedly had been hanging for roughly seventy days. Fegley insisted that the condition of the carcass when photographed was the same as when it was confiscated.

¶ 17 Wilmer argues that there were animal bite marks on the carcass and that Fegley could not be certain those marks did not occur while in the back of Fegley's truck. This Court has upheld a district court's refusal to admit photographs when taken at an unknown time and where conditions had substantially changed. See Lamb v. Page, 153 Mont. 171, 177, 455 P.2d 337, 340 (1969). However, it is not necessary for the State to prove with affirmative testimony that evidence could not have been tampered with. State v. Walton, 222 Mont. 340, 343, 722 P.2d 1145, 1147 (1986) (citing State v. Wong Fong, 75 Mont. 81, 87, 241 P. 1072, 1074 (1925)). It is only necessary to identify the evidence and make a prima facie showing that there had been no substantial change in it to warrant its introduction into evidence. Id. Because the deer was hanging at Wilmer's property for approximately ten weeks prior to Fegley's seizure of it, an additional three days under the same conditions would not have substantially altered the quality of the meat. Any change the carcass may have undergone in the three days between confiscation and disposal affected the weight of the evidence rather than its admissibility.

¶ 18 Finally, Wilmer fails to demonstrate why the photographs were unfairly prejudicial,...

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  • State v. Fleming
    • United States
    • Montana Supreme Court
    • October 7, 2019
    ...probable than without it. M. R. Evid. 401." State v. Meyer , 2017 MT 124, ¶ 23, 387 Mont. 422, 396 P.3d 1265 (emphasis added); State v. Wilmer , 2011 MT 78, ¶ 14, 360 Mont. 101, 252 P.3d 178. Far more than bearing a mere "tendency," Fleming's experience bore directly upon his knowledge and ......
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    ...OF REVIEW[1] [2] [3] [4] [5] ¶ 17 A district court's evidentiary rulings are reviewed for an abuse of discretion. State v. Wilmer, 2011 MT 78, ¶ 11, 360 Mont. 101, 252 P.3d 178. This includes rulings on the admissibility of expert testimony. Norris v. Fritz, 2012 MT 27, ¶ 17, 364 Mont. 63, ......
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    ...and therefore could not testify as a lay witness. ¶15 In contrast, "personal knowledge is not required for expert testimony." State v. Wilmer , 2011 MT 78, ¶ 21, 360 Mont. 101, 252 P.3d 178 (citing M. R. Evid. 602). An expert witness may testify "in the form of an opinion or otherwise," to ......
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