                                                                                     October 13 2015


                                      DA 15-0449
                                                                                     Case Number: OP 15-0449


            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2015 MT 294
                                  _________________

STATE OF MONTANA,

           Petitioner,

      v.
                                                                OPINION
                                                                  AND
MONTANA SECOND JUDICIAL DISTRICT
                                                                 ORDER
COURT, SILVER BOW COUNTY, THE
HONORABLE KURT KRUEGER, DISTRICT
JUDGE,

           Defendant and Appellee/Cross-Appellant.
                                  _________________

¶1    The Attorney General seeks a writ of supervisory control, arguing that the Second

Judicial District Court, Silver Bow County, is proceeding based on a mistake of law by

dismissing two counts of a five-count Information against Joseph McGrath. The State

challenges the District Court’s ruling that the limitations period for unlawful possession

of wildlife under § 87-6-202(1), MCA, begins to run on the date a person gains control or

ownership of unlawfully taken wildlife. We accept review of the petition in this instance

because the case presents a purely legal issue for which there would be no adequate

remedy on appeal if the District Court erred. For the following reasons, we conclude that

the District Court incorrectly applied the statute of limitations to violations of

§ 87-6-202(1), MCA. Accordingly, we reverse the District Court’s June 10, 2015 order

dismissing Counts I and V against McGrath.
                  PROCEDURAL AND FACTUAL BACKGROUND

¶2     The State charged McGrath with a number of offenses under Title 87, MCA,

including four counts of unlawful possession of wildlife under § 87-6-202(1), MCA.

McGrath moved to dismiss two of the counts—Count I (felony possession of a mountain

goat) and Count V (misdemeanor possession of a bobcat)—on the grounds that the statute

of limitations barred prosecution. McGrath relied on § 45-1-205(2)(a) and (5), MCA,

asserting that the limitations period for unlawful possession of wildlife begins on the date

a person gains control or ownership of the unlawfully taken wildlife.

¶3     The State argued that because § 87-6-202(1), MCA, criminalizes the possession of

unlawfully taken wildlife, the limitations period does not begin until a person no longer

possesses the unlawfully taken wildlife.          The State analogized a violation of

§ 87-6-202(1), MCA, to § 45-9-102, MCA, which makes it an offense to possess

dangerous drugs. The State asserted that concluding that the charges against McGrath

were time-barred would be similar to concluding that the statute of limitations barred

prosecution of a defendant who had taken possession of dangerous drugs more than five

years before being found in possession of the drugs.

¶4     The District Court agreed with McGrath and dismissed Counts I and V. In doing

so, the court relied on State v. Mullin, 268 Mont. 214, 886 P.2d 376 (1994), and State v.

Hamilton, 252 Mont. 496, 830 P.2d 1264 (1992). The court reasoned that “[a]dopting

and applying the State’s interpretation of the statutes to this case would essentially nullify

the statute of limitations for wildlife crimes involving possession of an animal until a date

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that could far exceed the statute of limitations expiration date . . . .” The State petitioned

this Court for a writ of supervisory control.

                                       DISCUSSION

¶5     1. Propriety of Supervisory Control

¶6     Pursuant to Article VII, section 2(2), of the Montana Constitution, this Court may

exercise supervisory control over other courts.       We are justified in doing so when

“urgency or emergency factors exist making the normal appeals process inadequate,

when the case involves purely legal questions, and when . . . the other court is proceeding

under a mistake of law and is causing a gross injustice.” M. R. App. P. 14(3). “We will

assume supervisory control over a district court to direct the course of litigation if the

court is proceeding based on a mistake of law, which if uncorrected, would cause

significant injustice for which appeal is an inadequate remedy.”            Stokes v. Mont.

Thirteenth Jud. Dist. Ct., 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citing Simms

v. Mont. Eighteenth Jud. Dist. Ct., 2003 MT 89, ¶ 18, 315 Mont. 135, 68 P.3d 678).

¶7     We find it appropriate to review the State’s contentions here. The State presents a

purely legal question: whether a violation of § 87-6-202(1), MCA, is continuous conduct

for statute of limitations purposes.     Such determinations primarily involve statutory

interpretation because “[a] particular offense should not be construed as continuing

‘unless the explicit language of the substantive criminal statute compels such a

conclusion, or the nature of the crime involved is such that [the legislature] must

assuredly have intended that it be treated as a continuing one.’” Hamilton, 252 Mont. at

                                          3
500, 830 P.2d at 1267 (quoting Toussie v. United States, 397 U.S. 112, 115, 90 S. Ct.

858, 860 (1970)). Moreover, whether a violation of § 87-6-202(1), MCA, is continuous

conduct for statute of limitations purposes is an issue of first impression, and the answer

will govern whether the trial proceeds on two of the five counts against McGrath. The

State is not permitted “to appeal from an order that dismisses one count but leaves the

case still pending.” State v. Watters, 2009 MT 163, ¶ 16, 350 Mont. 465, 208 P.3d 408

(citing § 46-20-103, MCA). As such, failure to assume supervisory control would cause

significant injustice for which appeal is an inadequate remedy. We therefore grant the

State’s petition and exercise supervisory control.

¶8      2. Whether the District Court erred in determining that the statute of limitations
for a violation of § 87-6-202(1), MCA, begins when a person takes possession of illegally
taken wildlife.

¶9     Section 87-6-202(1), MCA, makes it unlawful for a person to “possess, ship, or

transport all or part of any game fish, bird, game animal, or fur-bearing animal that was

unlawfully killed, captured, or taken, whether killed, captured, or taken in Montana or

outside of Montana.” We recognized in State v. Norman, 2010 MT 253, 358 Mont. 252,

244 P.3d 737, that the State must prove three elements to convict a defendant under

§ 87-6-202(1), MCA: (1) that the defendant possessed all or part of any game animal;

(2) that the game animal was unlawfully killed, captured, or taken, whether killed,

captured, or taken in Montana or outside of Montana; and (3) that the defendant acted

purposely or knowingly. Norman, ¶¶ 15, 39 (construing § 87-3-111, MCA (repealed and

codified at § 87-6-202, MCA)). The focus of the statute is therefore not the unlawful

                                          4
killing or taking of wildlife, but the purposeful or knowing possession of wildlife that has

been unlawfully killed or taken. Norman, ¶ 26.

¶10    Here, the District Court correctly focused on McGrath’s possession of the

unlawfully taken wildlife—as opposed to when the wildlife was illegally taken—in

analyzing when the statute of limitations began. The court, however, incorrectly relied

on Mullin in concluding that the elements for Counts I and V were met—and thus the

limitations period began running—when McGrath knowingly exerted control of the

illegally taken wildlife and did not relinquish or terminate his control.

¶11    In Mullin, the defendant was charged with felony theft in violation of § 45-6-301,

MCA. Mullin, 268 Mont. at 215, 886 P.2d at 376. The only issue on appeal was whether

felony theft is continuous conduct for purposes of the statute of limitations. Mullin,

268 Mont. at 215, 886 P.2d at 376. We began our discussion by citing the pertinent

definitions of theft found in § 45-6-301, MCA, which provides:

       (1) A person commits the offense of theft when the person purposely or
       knowingly obtains or exerts unauthorized control over property of the
       owner and:
                                        . . .
       (b) purposely or knowingly uses, conceals, or abandons the property in a
       manner that deprives the owner of the property.
                                        . . .
       (3) A person commits the offense of theft when the person purposely or
       knowingly obtains control over stolen property knowing the property to
       have been stolen by another and:
                                        . . .
       (b) purposely or knowingly uses, conceals, or abandons the property in a
       manner that deprives the owner of the property . . . .




                                          5
In rejecting the State’s argument that felony theft is continuous conduct, we concluded

that the “plain language of § 45-6-301, MCA, does not state that theft is a continuing

offense. Nor does the nature of the crime compel a conclusion that the Legislature

intended that this crime be treated as continuing.” Mullin, 268 Mont. at 217, 886 P.2d at

378.   We cited decisions from other jurisdictions holding that theft is not a continuing

offense and quoted the following language with approval: “[T]he crime of receiving and

concealing stolen property is not a continuing offense and . . . the statute of limitations

begins to run when the crime is complete, to wit: when the property is received and

concealed with the knowledge that the same is stolen.” Mullin, 268 Mont. at 218, 886

P.2d at 378 (quoting State v. Webb, 311 So. 2d 190, 191 (Fla. Dist. Ct. App. 2d Dist.

1975)).

¶12    Here, the District Court’s reliance on Mullin is misplaced. The statute at issue in

Mullin provides that it is an offense to obtain or exert control over stolen property. In

contrast, the statute at issue here provides that it is an offense to possess illegally taken

wildlife. The nature of the offense in Mullin is therefore different from the nature of the

offense here.    As we noted in Mullin, the crime of receiving stolen property is

complete—and therefore the limitations period begins—when the property is received

with the knowledge that it is stolen. Here, the statute criminalizes the act of possession

and is not limited to receipt of the property. The weight of authority supports the

conclusion that the crime of possessing illegally taken wildlife is complete—and

therefore the limitations period begins—when a person stops possessing the wildlife.

                                          6
United States v. Winnie, 97 F.3d 975 (7th Cir. 1996); State v. Maidwell, 50 P.3d 439

(Idaho 2002). See also United States v. Blizzard, 27 F.3d 100 (4th Cir. 1994); United

States v. Krstic, 558 F.3d 1010 (9th Cir. 2009); People v. Bland, 898 P.2d 391 (Cal.

1995). The Idaho Supreme Court’s Maidwell decision and the Seventh Circuit’s Winnie

decision are particularly persuasive because both involve wildlife possession.

¶13    In Maidwell, the defendant was charged with unlawful possession of wildlife and

argued that the statute of limitations barred prosecution. Maidwell, 50 P.3d at 439-440.

The statute at issue provided that “no person shall have in his possession any wildlife or

parts thereof protected by the provisions of this title . . . .” Idaho Code Ann. § 36-502(b).

The Court concluded that unlawful possession of wildlife is continuous conduct for

statute of limitations purposes because “the legislature made it unlawful for any person to

‘have in his possession’ the wildlife parts, rather than to ‘take possession of’ the wildlife

parts.” Maidwell, 50 P.3d at 442. Moreover, the Court noted, “The wording chosen by

the legislature clearly indicates an intent to make this crime a continuing offense.”

Maidwell, 50 P.3d at 442.

¶14    In Winnie, the defendant was charged with possessing a cheetah in violation of the

Endangered Species Act, 16 U.S.C. § 1538(c)(1). Winnie, 97 F.3d at 975. Similar to the

District Court’s conclusion here, the defendant asserted that the statute of limitations

barred prosecution because all the elements of the offense were present when the

defendant took possession of the cheetah more than five years before the charges were

brought. Winnie, 97 F.3d at 975. In rejecting the defendant’s argument, the court noted

                                          7
that such a position was “contrary to the plain language of the statute, part of which

makes it a crime ‘to possess’ protected wildlife.” Winnie, 97 F.3d at 976. The court

further noted that the defendant’s “analysis would require a conclusion that the crime

defined by Congress was ‘to take possession of’ illegally traded wildlife . . . rather than

‘to possess’ wildlife.” Winnie, 97 F.3d at 976. The court concluded that the limitations

period “did not begin to run until [the defendant] ceased possessing the cheetah. It was

only then that he stopped violating the law.” Winnie, 97 F.3d at 976.

¶15    Similar to the Endangered Species Act and the Idaho statute, the plain language of

§ 87-6-202(1), MCA, makes it unlawful “to possess” illegally taken wildlife rather than

“to take possession of” illegally taken wildlife. Therefore, a person stops violating § 87-

6-202(1), MCA—and the limitations period begins to run—only when he or she ceases to

possess illegally taken wildlife. The District Court therefore erred in determining that the

statute of limitations for a violation of § 87-6-202(1), MCA, begins when a person takes

possession of illegally taken wildlife.

¶16    IT IS HEREBY ORDERED that the Petition for Writ of Supervisory Control is

GRANTED.

¶17    IT IS FURTHER ORDERED that the District Court’s dismissal of Counts I and V

against McGrath is REVERSED. We remand this case to the District Court to reinstate

Counts I and V and for further proceedings.

¶18    The Clerk of Court is directed to provide copies hereof to all counsel of record and

the Honorable Kurt Krueger, Second Judicial District Court Judge, presiding.

                                          8
     DATED this 13th day of October, 2015.


                                             /S/ BETH BAKER

We concur:

/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




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