                                                                                          February 4 2014


                                          DA 13-0483

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 29N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JAMES R. CRESSLER,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Granite, Cause No. DC 12-02
                       Honorable Ray Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       James R. Cressler, self-represented; Drummond, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
                       Assistant Attorney General; Helena, Montana

                       Chris Miller, Granite County Attorney; Phillipsburg, Montana



                                                   Submitted on Briefs: January 2, 2014
                                                              Decided: February 4, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, 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     Defendant, James Cressler (Cressler) and his father, Robert Cressler (Robert), both

have homes on a 20-acre parcel of land in Drummond. The property is marked with no

trespassing signs and orange posts, although Felan Road passes through the Cressler

property. From the testimony, rights associated with the road appear disputed but, at a

minimum, it provides access to other area landowners. On December 27, 2011, Dale

Cochrell (Cochrell), Scott Adler (Scott), and Jake Adler (Jake) were hunting mountain

lions in the area, where public lands are interspersed with private holdings. They were

hunting with three dogs—Bob, Shy, and Bodie. It is undisputed that, at some point

during the day, the dog Bob (Bob), owned by Cochrell, crossed a portion of Cressler’s

property. Cressler and Robert had approximately 27 dogs of their own on their property.

The events that followed are disputed, so the following is taken from the evidence

introduced at trial.

¶3     Cressler asserted that around 8:45 a.m., several of his dogs began barking and

running toward the house while being attacked and chased by two unknown dogs.

Cressler reported that he had had problems with other dogs on his property in the past and

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would summarily shoot unknown dogs on his property. Both Robert and Cressler fired

what Robert described as “warning shots” to scare off the attacking dogs, but one of the

shots fired by Cressler struck and killed Bob. Cressler stated that two of his dogs were

injured in the attack, but he did not seek medical attention for them. He stated that he

later found the two dogs dead from their injuries and buried them. Robert placed Bob in

a garbage bag and dumped him in a gully about two miles down the road from Cressler’s

property. Cressler called the Sheriff’s Office that morning to report the attack and

shooting of the dog. Deputy Roland Hultman spoke with Cressler on the phone and met

with Cressler and Robert at approximately two o’clock that afternoon.

¶4     Deputy Hultman was not shown any injured or dead dogs on Cressler’s property,

nor was he shown a location where a dog fight had occurred. Deputy Hultman asked

Cressler to take the dogs to the vet for medical attention in order to document the injuries,

however he was told that Cresslers would not seek medical attention for either dog

because they did not want to invest money in any dog since they had so many.

¶5     Scott testified that while looking for the dog, he drove up Felan Road which goes

through Cressler’s property. Cressler approached Scott in the road. Scott asked if

Cressler had seen any dogs, and Cressler replied that two “ran off that way.” Cressler did

not mention the dog fight, shooting, or disposal of Bob. Scott noticed dog tracks and

blood on the ground near Cressler’s gate. There only appeared to be one set of dog

tracks, along with human tracks and drag marks.




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¶6     Cochrell testified that he used the tracking collar to locate Bob. After finding Bob

dead in the garbage bag, clearly killed by a gunshot, Cochrell called the Sheriff’s Office.

Cochrell testified that he would be surprised if any of his dogs would have gone off the

lion track and tangled with other dogs given their breeding, instinct, and training.

Deputies Hultman and Ed Short responded to the call and met Cochrell and Scott where

Bob was found. The group traveled to where Scott had noticed blood and dog tracks

earlier in the day.

¶7     Both Deputies testified that when viewing the location where Scott had found

blood that day, they only saw what appeared to be one set of dog tracks. There were no

signs of a dog fight in the area where Bob was killed. They also testified that their

examination of Bob revealed a clear bullet hole to the abdomen and a possible gunshot in

the head, but no sign of an altercation with other dogs such as bite marks or tears.

¶8     Cressler was issued citations for cruelty to animals, criminal mischief, and

harassment, all misdemeanors, on January 22, 2012. Cressler entered a plea of not guilty

to all charges on February 3, 2012, and he was appointed trial counsel. A jury trial was

held on July 20, 2012, in Justice Court. Following his conviction on all three counts,

Cressler appealed to the Third Judicial District Court, Granite County, on August 21,

2012. Daniel Miller and James Reavis were substituted as counsel for Cressler before the

District Court. The District Court signed a Scheduling Order on September 20, 2012,

setting the trial for March 11, 2013.




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¶9       Miller subsequently filed a motion to continue the trial on March 4, 2013 “on the

grounds and for the reasons that the defense ha[d] been made aware of new information

regarding this matter and need[ed] additional time to fully investigate that information.”

The State did not object to the continuance, and the trial was reset for May 30, 2013.

Cressler assets this continuance was filed without his knowledge.           He subsequently

requested leave to represent himself. The District Court granted Cressler’s request, and

appointed Miller and Reavis as stand-by counsel. Cressler was convicted by jury of

cruelty to animals and criminal mischief, but acquitted of harassment. Cressler appeals. 1

¶10      Cressler argues that the charges against him must be dismissed because his right to

a speedy trial was violated by the continuation of his district court trial, without his

consent, resulting in a trial being conducted 252 days after the District Court entered the

scheduling order. He further argues there was insufficient evidence to convict him of the

cruelty to animals and criminal mischief charges because the State failed to prove that

Cochrell and Adlers were on a “lawful” hunt at the time of the shooting, and it failed to

disprove Cressler’s justification defense.     Finally, Cressler argues that his appointed

counsel were ineffective by filing the motion to continue the second trial without his

consent, failing to call in expert witnesses and subpoena documents as he had requested,

failing to provide discovery in a timely manner, and failing to participate on his behalf at

trial.

1
  Cressler’s opening brief is titled “Appeal of Defendant for Post Conviction Relief.” However,
there has been no postconviction proceeding and Cressler’s Notice of Appeal was filed on
July 22, 2013, within the 60-day deadline for a direct appeal from the District Court’s final
sentencing order of June 21, 2013. We thus deem this to be a direct criminal appeal.
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¶11    Section 46-13-401(2), MCA, requires that a court dismiss the prosecution of a

misdemeanor charge if the defendant has not been brought to trial within six months of

the entry of a plea unless the trial was postponed upon the defendant’s motion. However,

this statute has long been held to apply only to the original trial in justice court, and not to

a trial de novo in district court. State v. Stanko, 1998 MT 323, ¶ 25, 292 Mont. 214, 974

P.2d 1139 (citations omitted). Cressler was tried in justice court within six months of his

plea, thus his right to a speedy trial under the statute was not violated by the

postponement of his district court trial.

¶12    The State was not required to prove that the victim was engaged in a lawful hunt

to support a conviction of cruelty to animals under § 45-8-211, MCA, or criminal

mischief under § 45-6-101, MCA. Though the harassment charge Cressler was acquitted

of required the State to prove that Cressler interfered with another person’s “lawful

taking of a wild animal” pursuant to § 87-6-215, MCA, no similar requirement existed for

the other charges.      Further, conflicting testimony does not render the evidence

insufficient to support a guilty verdict, and determinations of credibility and weight of

testimony are within the exclusive province of the jury. State v. Wood, 2008 MT 298,

¶ 43, 345 Mont. 487, 191 P.3d 463. The jury was presented with sufficient evidence

from which to conclude that Cressler was guilty of these offenses and to reject his

argument that he was justified in shooting the dog under the circumstances.

¶13    Ineffective assistance of counsel (IAC) claims are evaluated under the

two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

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(1984). State v. Morsette, 2013 MT 270, ¶ 18, 372 Mont. 38, 309 P.3d 978. The test

requires that a defendant asserting IAC establish that counsel’s performance fell below an

objective standard of reasonableness and that there is a reasonable probability that but for

counsel’s errors the result of the trial would have been different.        Morsette, ¶ 19.

However, before reaching the merits of an IAC claim on appeal, this Court must first

determine whether the claim is properly before it. State v. Savage, 2011 MT 23, ¶ 23,

359 Mont. 207, 248 P.3d 308. If the record explains “why” counsel took, or failed to

take, action in providing a defense, this Court may address the issue on direct appeal.

State v. Wright, 2011 MT 92, ¶ 31, 360 Mont. 246, 253 P.3d 838. If the record does not

reveal “why” counsel acted in a specific manner, then this Court will dismiss the IAC

claim without prejudice and allow the defendant to raise the claim in a petition for

postconviction relief. State v. Norman, 2010 MT 253, ¶ 20, 358 Mont. 252, 244 P.3d

737. Sometimes, however, it is unnecessary to ask “why” in the first instance such as

when there can be “no plausible justification” for what defense counsel did. State v.

Kougl, 2004 MT 243, ¶¶ 15-16, 323 Mont. 6, 97 P.3d 1095. Similarly, it would be

unnecessary to ask “why” when there can be no plausible argument that the action was

prejudicial to the defendant.

¶14    Cressler raises seven allegations in his IAC claim, which we separate into four

categories. First, Cressler claims his counsel’s filing of a motion for continuance in the

District Court without his consent pushed the trial beyond the six-month statutory

requirement. He argues this continuance deprived him of the right to a speedy trial, and

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his counsel’s failure to move for dismissal of the charges was ineffective. The second

claim centers on his counsel’s failure to obtain expert witnesses and to subpoena hunting

and dog licenses for Cochrell and Adlers, despite his repeated requests to do so. Third,

Cressler asserts despite his inexperience with the law, including the voir dire process and

the rules of civil procedure, his stand-by counsel “failed to offer any assistance”

throughout the trial’s duration. Finally, Cressler claims that his counsel failed to forward

discovery materials to him in a timely manner after being removed from the case. He

alleges this delay in providing discovery prohibited him from adequately preparing for

his trial.

¶15     We can properly review Cressler’s allegations of IAC regarding the motion for

continuance on direct appeal because the record plainly reveals “why” counsel took this

action. In the motion, counsel stated it was made because “the defense has been made

aware of new information regarding this matter and needs additional time to fully

investigate the information.” We have already noted that the six-month statute did not

apply to district court proceedings.     Further, nothing about counsel’s request for a

continuance less than two weeks before trial in response to new information that may

have come to light is objectively unreasonable. Additionally, Cressler has not presented

any evidence that the outcome of his case would have been different but for the

continuance.

¶16     We can evaluate Cressler’s second and third IAC claims on direct appeal because

it is unnecessary to ascertain the reason for his counsel’s actions. With regard to his

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claim regarding expert witnesses and subpoenaed records, it is clear that no prejudice can

be alleged from these actions. Cressler requested to bring a witness from Fish, Wildlife,

and Parks (FWP) to testify about regulations for hunting mountain lions in the area, as

well as whether Cochrell and Adlers were on a “lawful” hunt. Cressler further requested

to have an expert testify about proper training and handling of hunting dogs to establish

both that Cochrell failed to properly control his dog and to discredit Cochrell’s claim that

Bob was worth $1,500. Finally, Cressler requested that hunting licenses for Cochrell and

Adlers be subpoenaed to verify whether they had the proper licenses for their lion hunt.

¶17    As explained above, it was unnecessary for the State to prove that Cochrell was on

a lawful hunt at the time of the shooting to support the convictions for cruelty to animals

and criminal mischief.    Similarly, it was unnecessary for defense counsel to gather

evidence to prove that there was an “unlawful” hunt. Though this evidence may have

been pertinent to the hunter harassment charge, Cressler was acquitted of this crime and

thus cannot claim any prejudice by counsel’s failure to call FWP personnel or to

subpoena hunting licenses.

¶18    Cressler also claims that Cochrell was required by law to “prevent the hunting

dogs from running at large,” and if he had properly controlled Bob, the dog would never

have been killed. This argument is based on §§ 87-3-124(1)(d) and 87-1-102(1), MCA

(both provisions were repealed effective October 1, 2011).         Section 87-3-124(1)(d),

MCA, provided that an owner of a dog who chases, stalks, pursues, attacks, or kills a

hooved game animal is guilty of a misdemeanor even if “the dog is not under the control

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of an adult.” Section 87-1-102(1), MCA, simply provided that any person who violates a

fish and game law is guilty of a misdemeanor. Neither of these statutes provides any

support for Cressler’s claim that Cochrell was required to have physical control over Bob

throughout the entire hunt.     It appears Cressler may be arguing that under § 87-3-

124(1)(c), MCA, he was entitled to kill the dog “without criminal or civil liability.”

However, these statutes were not effective at the time Bob was killed, and even if they

were, Cressler is not a peace officer, game warden, or other person authorized to enforce

the fish and game laws. Further, the statute specifically excepted dogs engaged in a lion

hunt during lion season. Section 87-3-124(3)(a), MCA. Finally, Cressler has never

alleged that Bob was attacking a hooved game animal. Thus, there can be no argument

that failure to have experts testify regarding Cochrell’s failure to comply with a repealed

statute prejudiced his defense. As Cressler has provided no other reason why Cochrell’s

handling of Bob at the time of his death justified the shooting, this claim likewise fails to

meet either prong of the Strickland test.

¶19    In addition to the proper handling concern, Cressler sought to introduce expert

testimony as to the monetary value of a trained hunting dog, such as Bob, to discredit

Cochrell’s claim that the dog’s value was $1,500. However, monetary value of the

animal was not an element for either the cruelty to animals or criminal mischief charges.

Though the State would have had to prove a monetary value of over $1,500 to support a

felony conviction for criminal mischief, § 45-6-101(3), MCA, Cressler was charged with

a misdemeanor, which requires no such proof. Thus, the introduction of such expert

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testimony would have been irrelevant to his convictions, and failure to obtain the

testimony was not ineffective.

¶20    Cressler’s claim that his stand-by counsel failed to provide assistance at trial

likewise does not establish ineffectiveness. Cressler does not allege that the District

Court erred in allowing him to represent himself at his request, but rather alleges that his

stand-by counsel did not assist him during trial. The transcript reveals that, during the

trial, Cressler requested and was granted leave by the court to consult stand-by counsel, at

which times a conversation between Cressler and counsel would be conducted. Stand-by

counsel is not held to the same standards as an attorney fully representing a client.

Cressler requested to represent himself and was warned of the difficulties and obstacles

in doing so. Cressler was given the opportunity to consult with counsel during the trial as

he wished, during which time it appears counsel responded to his inquiries. Cressler does

not assert that stand-by counsel refused to aid him when he requested it. Cressler’s claim

does not establish, and we cannot conclude, that stand-by counsel violated any objective

standard of reasonableness during the trial.

¶21    Cressler’s final IAC claim cannot be reviewed on direct appeal because it is not

apparent from the record what discovery materials counsel allegedly failed to provide.

Cressler does not explain what material was not timely provided, nor what effect such

delay had upon his defense. As the nature of this claim cannot be determined from the

record, Cressler may raise this issue in a petition for postconviction relief with the

District Court. He will need to make out a plausible claim in order to do so.

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¶22   We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

jury’s verdict was supported by substantial evidence and the legal issues are controlled by

settled Montana law, which the District Court correctly interpreted. Affirmed.


                                                /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




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