                                No.    94-116
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1995


STATE OF MONTANA,
             Plaintiff and Respondent,
     -vs -
WELCH E. BROGAN,
             Defendant and Appellant.



APPEAL FROM:        District Court of the Sixth Judicial District,
                    In and for the County of Park,
                    The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                    Joseph B. Gary, Attorney at Law, Bozeman,
                    Montana
                    Richard L. Kalar, Attorney at Law,
                    Boulder, Colorado

             For Respondent:
                    Hon. Joseph P. Mazurek, Attorney General;
                    John Paulson, Ass't Attorney General,
                    Helena, Montana


                                  Submitted on Briefs:     April 27, 1995
             JUL:                               Decided:   July 25, 1995
Justice Karla M. Gray delivered the Opinion of the Court.


        Welsh E.    Brogan   (Brogan)       appeals from the judgment and
sentence entered by the Sixth Judicial District Court, Park County,
following a jury verdict convicting him of the felony offense of
possession of unlawfully taken wildlife in violation of 5 87-3-
118(2),    MCA.    We affirm.
        We restate the issues on appeal as follows:
        1 . Did the District Court err in denying Brogan's motion
        for a new trial based on juror misconduct?
        2 . Did the District Court err in refusing to provide
        further instruction as requested by the jury?
        3 . Did the District Court err in failing to make a
        record of the jury's question and its response?
        4 . Did the District Court abuse           its discretion in
        admitting prior acts evidence?
           Did the District Court err in determining that § 87-
        :&8(2), MCA, is not unconstitutionally vague?
        Brogan is the owner-operator of a wild game farm located in
Corwin Springs, Montana.        He breeds and raises elk for       commercial

sale.      His operation consists of a series of penned pastures,
including a 440-acre upper pasture which is secured by an electric
fence.
         In January 1991,    officials from the Montana Department of
Livestock examined Brogan's elk.            They determined that the elk had
been exposed to tuberculosis, quarantined his farm and forbade any
movement of the elk to or from the farm.
         In February 1992, investigators from the Montana Department of
Fish, Wildlife and Parks (Department) placed the Brogan game farm
                                        2
under     surveillance in        response to an    anonymous     tip.       They
determined that, at that time, Brogan's lower pasture contained 154
elk,     ten animals more than his most recent official report to the
Department. Two Department wardens examined the perimeter fence to
the upper pasture and determined that it was completely intact; the
upper pasture        contained     two   elk.     Based on     the      wardens'
observations,     as well as the discrepancy in total number of elk,
the Department decided to conduct an inspection of Brogan's farm.
        The inspection was held on February 18, 1992.          Three wild and
untagged elk were found in the upper pasture on the day of the
inspection.      Initially, Brogan refused to admit that there were
excess elk on his farm.      He later stipulated that he had excess elk
and that they were wild.         He claimed, however, that he had left the
gate to the upper pasture open in an effort to lure the elk out.
        Brogan was    charged     with possession of     unlawfully taken
wildlife,     a violation of 5 87-3-118(2), MCA (1991).                 Prior to
trial,     the State of Montana (State) advised that it intended to
introduce Brogan's previous convictions on similar charges.                  The
District Court denied Brogan's motion in limine which sought to
exclude that evidence.          The case went to trial and resulted in a
hung jury and mistrial.
         The State refiled its complaint. The second trial resulted in
a jury verdict convicting Brogan of violating 5 87-3-118(2), MCA
(1991).      The District Court denied Brogan's subsequent motion for
a new trial.
         Brogan's sentence was deferred for two years provided he

                                         3
complies     with the following conditions:         (1)     serve    two    years
probation:    (2) obey all laws;    (3) pay $3,000 in restitution; (4)
pay a $10,000 fine;    (5)   pay the costs of his         trials   in the   amount

of $4,358.20;    and (6) forfeit his hunting, fishing and trapping
privileges for three years.        Brogan appeals from the judgment and
from the court's denial of his motion for a new trial, which
asserted each of the issues raised in this appeal.


                             STANDARD OF REVIEW
     Section 46-16-702(l), MCA, provides that:
      (I) Following a verdict or finding of guilty, the court
     may grant the defendant a new trial if required in the
     interest of justice.
The grant or denial of a motion for a new trial is within the
discretion of the trial court.       State v. Gambrel (1990), 246 Mont.
84, 91,    803 P.2d 1071, 1076.      Absent an abuse of discretion the
court's decision will be affirmed.         State v. Hatfield (Mont. 19951,
888 P.2d 899, 901, 52 St.Rep.      1, 2.


     1. Did the District Court err in denying Brogan's motion
     for a new trial based on alleged juror misconduct?
     Brogan submitted affidavits from three jurors in support of
his motion for a new trial.        Juror Jay O'Dell stated that, during
the deliberations, one of the members of the jury "asserted that it
was Mr. Brogan's legal duty pursuant to Montana law to go to the
upper pasture to check after his helper reported seeing elk tracks
in the pasture."     The other two affidavits also state that, after
he was informed about the tracks, the subject juror claimed Brogan
                                      4
owed a duty to either check the upper pasture or have it checked,
to determine if there were wild elk on his property.
     Brogan argues that,              based on these affidavits, one of the
jurors in this case "assume[d]           the role of the court by instructing
other members of the jury in regard to the law of the State of
Montana."      The State does not dispute the information contained in
the affidavits.        It   claims,   however, that the affidavits could not
be considered for the purpose of impeaching the verdict because the
alleged     juror's    comment did not fall within one of the three
exceptions to Rule 606(b), M.R.Evid.               That rule generally provides
that a juror    may   not testify as to what occurred during the jury's
deliberations except when the information pertains to: (1) whether
extraneous prejudicial           information was   improperly brought to the
jury's attention; (2) whether any outside influence was brought to
bear on any juror; or (3) whether any juror was induced to assent
to any verdict or finding by resort to the determination of chance.
Rule 606(b), M.R.Evid.
     The District Court considered the affidavits to the extent
necessary to determine whether they could be used to impeach the
verdict and concluded that the affidavits established only that the
juror had expressed his opinion about the law. The court relied on
Harry v.     Elderkin       (1981), 196 Mont. 1, 637        P.2d 809, for the
proposition    that,    in order to use the affidavits to impeach the
verdict under Rule 606(b), M.R.Evid., there must be some outside
influence more than mere misapprehension of the law.              & Elderkin,
637 P.2d at 813.

                                           5
       In Elderkin,       the jury in a personal injury suit found the
plaintiff      85%    negligent.      The plaintiff moved for a new trial,
arguing juror misconduct or irregularity.                     The motion was denied
and the plaintiff appealed.             Elderkin,      637   P.2d at 811-12.
       The plaintiff renewed her argument regarding the jury on

appeal, relying on an affidavit from the jury foreman which claimed
that the jury did not understand the                         instructions     regarding
contributory         negligence, comparative negligence and mitigation of
damages.       We pointed out that cases addressing juror affidavits
fall    into     categories        involving    either        external or      internal
influence on the jury.         Elderkin,       637   P.2d at 813.        Where external
influence is exerted or external prejudicial information is brought
to the jury's attention,             juror affidavits can be the basis for
overturning the judgment.            Elderkin, 637 P.2d at 813.             Examples of
external    influence include a juror's telephone call obtaining
information with regard to previous litigation by the plaintiff,
visiting the scene of an accident or bringing a newspaper article
about the trial into the jury room for the jurors to see.                        Geiger
v. Sherrodd (1993), 262 Mont. 505, 510-11, 866 P.2d 1106, 1109
(citations omitted).
       Regarding internal influences, however, we have held that
juror affidavits "may not be used to impeach the verdict based upon
internal influences on the jury, such as a mistake of evidence or
misapprehension of the law."            Elderkin, 637 P.2d at 813 (citations
omitted).       In this case,        the affidavits           claim   that the subject
juror made a comment about the law.                  At most, the subject juror's

                                           6
comment was his lay opinion about the law which, under Elderkin,
constituted a misstatement or misapprehension of the law.          Thus,
the juror affidavits relate to an internal influence on the jury.
     We conclude that the juror affidavits Brogan submitted do not
fall within the exceptions stated in Rule 606(b), M.R.Evid., and,
therefore,    that they could not be used to impeach the jury's
verdict.      We hold that the District Court did not abuse its
discretion in denying Brogan's motion for a new trial based on the
juror affidavits.


     2. Did the District Court err in refusing to provide
     further instruction as requested by the jury?
     During its deliberations, the jury submitted a question to the
court regarding a game farmer's legal obligations.         Neither   the
precise     nature of the question nor       the court's response was
recorded;     thus,   neither   is part of    the   record on    appeal.
Nonetheless, because the parties do not dispute the essential facts
and the District Court ruled on the issue in denying Brogan's
motion for a new trial, we will address the issue.
     It is undisputed that the jury posed a question to the court
regarding the legal obligations of a game farmer          in    Montana,
including whether Brogan had a duty to inspect his pastures.         The
court declined to give further instructions and told the jury to
rely on the instructions already provided.      Brogan argues that the
District Court's failure to provide further instruction entitles
him to a new trial.
     Section 46-16-503(2), MCA, provides:
                                    7
        After the jury has retired for deliberation, if there is
        any disagreement among the jurors as to the testimony or
        if the jurors desire to be informed on any point of law
        arising in the cause, they shall notify the officer
        appointed to keep them together, who shall then notify
        the court. The information requested may be given, in
        the discretion of the court, after consultation with the
        parties.
Brogan acknowledges that the court has discretion regarding whether
to provide additional instructions, but argues that the discretion
is not without limits.           Relying on State v. Jackson (1930), 88
Mont.    420,    293 P.   309,   he asserts that the court abused its
discretion in this case because the jury's question establishes
that the jury was having difficulty determining Brogan's legal
duties    and   responsibilities    under   the   instructions   given.   The
State relies on State v. Hawkins (1974), 165 Mont. 456, 529 P.2d
1377,     in arguing that the District Court did not abuse its
discretion because the question of whether Brogan owed a duty to
inspect was not at issue in the case.
        In Hawkins,   the jury submitted four questions during the
course of its deliberation.          After conferring with counsel, the
court responded as follows:
        The answers to your questions are contained in the
        instructions given.    I cannot further instruct you on
        these matters and suggest that you refer to the written
        instructions on the law which you have in the jury room.
Hawkins, 529 P.2d at 1379.          We concluded that 'I [ilf the judge is
of the opinion that the instructions already given are adequate,
correctly       state the law,     and fully advise the jury on the
procedures it is to follow in its deliberation, his refusal to
answer a question already answered in the instruction is not

                                       8
error. ”   Hawkins, 529 P.2d at 1379 (citations omitted).       Hawkins is
analogous to the present case.            The District Court fully and
correctly instructed the jury regarding Brogan's             legal    duties
insofar as they were at issue;        it had no obligation to provide
additional    instructions   on   other   matters.

      Jackson, on the other hand, involved a perjury prosecution in
which the court gave some of the defendant's instructions and
refused others.    No exception was taken to any of the instructions
given.     After deliberating for more than three hours, the jury
inquired in writing whether a conflict existed between two of the
instructions.     The court orally withdrew one of the instructions,
over defense counsel's objection.          Jackson,   293 P. at 311. On

appeal,    we concluded that the withdrawal of the instruction was
prejudicial error because the withdrawn instruction "bore            vitally
upon the question of [the] defendant's . . .          guilt or innocence."
Jackson, 293 P. at 312.
      Jackson is distinguishable from the case presently before us.
Here, the court did not withdraw any instructions previously given.
Moreover, no conflict existed or was asserted in the instructions
given and,    unlike in Jackson,     the jury was fully and correctly
instructed on the issues to be determined by the jury.               Indeed,
Brogan does not contend otherwise,         arguing only that additional
instruction may have cleared up some "confusion" for the jury.
      We conclude that the District Court did not abuse its
discretion in refusing to further instruct the jury. We hold that
the court did not abuse its discretion in denying Brogan's motion

                                      9
for a new trial on this basis.


      3.   Did the District Court err in failing to make a
      record of the jury's question and its response?
      With regard to the jury's question, Brogan also contends that
the court's failure to respond in writing or create a record was
prejudicial error requiring a new trial.        He asserts that § 46-16-
410, MCA,     requires that a record be made at the settlement of
instructions. While we agree with Brogan's statement regarding the
statute, we disagree that the District Court settled instructions
within the purview of the § 46-16-410,         MCA, requirement when it
advised the jury to rely on the instructions already given.
      Section 46-l6-410(2),      MCA, provides that a record "must be
made at the settlement of instructions."         The term "settlement of
instructions" refers to a court's consideration and selection of
instructions to be given to the jury, in conjunction with counsel,
prior to the jury retiring to deliberate. The record is clear that
the   court    complied   with    5   46-16-410(2),   MCA, in    settling
instructions at the close of the case.       However, events   surrounding
the jury's question during its deliberations do not constitute the
"settlement of instructions" under § 46-16-410(2), MCA.          While it
is the better practice to make a record of such events,                the
requirements of § 46-16-410(2), MCA, do not apply.
      Moreover, even assuming error in the court's failure to make
a record, the error would be harmless and not reversible, because
Brogan has not established any prejudice affecting his substantial
rights as required by 5 46-20-701(2), MCA.            The material facts
                                      10
surrounding the jury's question and the court's response are not
disputed and we concluded above that the court did not err in
failing to further instruct the jury.            Under such circumstances, no
prejudice affected Brogan's substantial rights.
     We conclude that the District Court did not err in failing to
make a record of the jury's question and its response.             Therefore,
we hold that the court did not abuse its discretion in denying
Brogan's motion for a new trial on this basis.


      4.   Did the District Court abuse its discretion in
      admitting prior acts evidence?
      The State gave timely notice prior to both of Brogan's trials
that it intended to introduce "other acts" evidence under Rule
404(b),    M.R.Evid.    The evidence pertained to events which took
place in February of 1989 and resulted in Brogan's conviction on
two counts of failing to maintain his fence to prevent entry of
wild animals and one count of capturing and holding wild elk.
      The District Court denied Brogan's motion in limine to exclude
introduction of the evidence,           provided the State's witnesses
referred only to Brogan's earlier acts and not to the convictions,
since the earlier case was still pending on appeal.               We review a
district    court's    ruling on    evidentiary     matters,   including   Rule

404(b),    M.R.Evid.,    matters,   for abuse of discretion.         State v.
Romero (1993), 261 Mont. 221, 224, 861 P.2d 929, 931 (citations
omitted).
      The admissibility of other       crimes,   wrongs, or acts is governed
by Rule 404(b), M.R.Evid., which provides:
                                      11
        Evidence of other crimes,      wrongs, or acts is not
        admissible to prove the character of a person in order to
        show action in conformity therewith. It may, however be
        admissible for other purposes, such as proof of motive,
        opportunity,   intent,  preparation,   plan,   knowledge,
        identity, or absence of mistake or accident.
In State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, we modified
the Just rule (see State v. Just (19791, 184 Mont. 262, 602 P.2d

957),    identifying four factors to be considered in admitting other
acts evidence.         The modified Just rule requires that:
        similA:)    The other crimes, wrongs or acts must be

              (2) The other crimes, wrongs or acts must not be
        remote in time.
              (3)  The evidence of other crimes, wrongs or acts is
        not admissible to prove the character of a person in
        order to show that he acted in conformity with such
        character; but may be admissible for other purposes, such
        as proof of motive, opportunity, intent, preparation,
        plan, knowledge, identity, or absence of mistake or
        accident.
              (4)  [There is a determination that the1 probative
        value [of the evidence] is [not] substantially outweighed
        by the danger of . . . prejudice [to the defendant] . .
        . .
MattI 814 P.2d at 56.
-
        Brogan's motion in limine focused on the first, second and,
briefly,     the third modified Just requirements.       Accordingly,   we
will limit our review to those issues raised in the District Court.
See Romero,        861 P.2d at 931.
        With regard to similarity, Brogan is charged in this case with
possessing unlawfully taken wildlife inviolation of § 87-3-118(2),
MCA. The acts upon which the charge is based are that he allegedly
captured wild elk and held them on his game farm.       The earlier case

                                      12
involved charges that Brogan unlawfully captured wild elk and that
he failed to maintain his game farm fences to prevent entry of wild
game    in violation of Department regulations.          See State v. Brogan
(1993), 261 Mont. 79, 862 P.2d 19.          Brogan argues that the offenses
are not similar because they were charged under different statutes
and because the wild elk entered his fenced pastures under
different        circumstances.    The differing statutes at issue have
little relevance, because we are concerned with whether his prior
acts are sufficiently similar to those upon which the charged
violation of § 87-3-118(2), MCA, are based. Moreover, although he
identifies the earlier acts as efforts to drive wild deer out and
capture      escaped game farm elk, our focus, again, is on the
similarity of the acts rather than the reasons Brogan asserts for
committing the acts.
        A prior act need not be identical to the offense charged to be
admissible under the first modified Just factor;                    "sufficient
similarity" between the two is all that is required.                Romero, 861
P.2d at 932.         In   Romero, for example, both the prior act and the
crime   charged involved assaults of young girls, while they slept,
after the defendant had been drinking; further, on both occasions,
the defendant left after the girls awakened and told him to stop.
Notwithstanding the E-year age difference between the two girls, we
concluded that the prior act was sufficiently similar to the
offense charged to satisfy the          similarity   requirement.   Romero, 861
P.2d at 932.
         Here,    the offense charged is the purposeful or knowing

                                       13
possession of unlawfully taken wild elk.        In both cases, Brogan
enclosed wild elk behind electric fences and closed gates in his
pastures.     We conclude that Brogan's "other acts" are sufficiently
similar to satisfy the first modified Just requirement.
     Regarding the remoteness factor, Brogan points out that the
prior acts occurred three years before the acts underlying the
offense charged in this case.     Relying on State v. Hansen (1980),
187 Mont. 91, 608 P.Zd 1083, he argues that a prior act occurring
more than two and one-half years before the acts at issue               in the
pending charge is too remote as a matter of law to satisfy the
second modified Just requirement.       Brogan misreads Hansen.
     In Hansen,     we stated that a three-year interval between a
prior act and the offense charged was     "close to    the    limit   of being
too remote;" we noted,      however,    that we had held other acts
occurring more than three years prior to the crime admissible when
the acts engaged in by the defendant constitute a continuing course
of conduct.     Hansen, 608 P.2d 1087; citinq Just, 609 P.2d at 961.
We concluded that the two and one-half year lapse between the prior
acts and the offense charged,      in combination with the lack of
sufficient similarity between the two, rendered the prior acts too
remote.     Hansen,   608 P.2d at 1087.      Hansen does not support
Brogan's argument that a three-year lapse of          time   renders a prior
act too remote as a matter of law under the modified Just rule.
     We have followed the Hansen approach of considering similarity
as a factor in our evaluation of remoteness in subsequent cases.
In State v. McKnight (1991), 250 Mont. 457, 463, 820 P.2d 1279,

                                   14
1283,     for example, we stated that a three-year period between
incidents was not too remote because the incidents in question were
sufficiently    similar.   Specifically, we observed that:
        In addition to the three-year time span in the present
        case, we have considered the similarity in conduct when
        comparing the assaults . . . which demonstrates a pattern
        of similar conduct which may be properly considered on
        the issue of remoteness.
McKniqht,    820 P.2d at 1283.
        Moreover, we consistently have declined to set arbitrary time
limits defining the remoteness factor.                 In State v. Tecca (1986),
220 Mont. 168, 172-73, 714 P.2d 136, 139, we determined that an
isolated incident nine years before the charged conduct would be
too remote on a stand-alone basis, but that the remoteness was
alleviated by the continuing course of conduct.                   In State v. Ray
(1994),    267 Mont. 128, 133, 882 P.2d 1013, 1016, we again declined
to establish an arbitrary time limit for admitting prior acts
evidence, holding only that acts occurring 16 to 18 years prior to
the charged conduct        were   too        remote,     absent   evidence of a
continuing course of conduct, to satisfy the second modified Just
requirement.     Rav,   882 P.2d at 1016.
        As discussed above,    there is little appreciable difference
between the other acts and the acts forming the basis for the
offense charged in this case.       Because the acts are substantially
similar and occurred within three years of each other, the prior
acts were not too remote to satisfy the second modified Just
requirement.
        Finally, Brogan makes a passing argument that the other acts

                                        15
evidence was not       admitted for one of the allowable purposes
specified in the third modified Just requirement.                The    State's
purpose in introducing the evidence was to establish absence of
mistake    or   accident   regarding   Brogan's    possession   of   unlawfully
taken     wildlife.   Absence of mistake or accident is one of the
permissible purposes for admitting other acts evidence under the
third requirement of the modified Just rule.           - -r 814 P.2d at
                                                       See Matt
56.     Under the circumstances of this case, the prior acts were
relevant to the stated purpose for admitting the evidence.
        We conclude that the District Court did not abuse                     its
discretion in denying Brogan's motion in limine and in admitting
prior acts evidence.        We hold, therefore, that the court did not
abuse its discretion in denying Brogan's motion for a new trial on
this basis.


        5 . Did the District Court err in determining that § 87-
        3-118(2), MCA, is not unconstitutionally vague?
        A defendant may challenge a statute's constitutionality by
arguing that it is so vague that it is void on its face or that it
is vague as applied to him.       State v. Crisp (1991), 249 Mont. 199,
202, 814 P.2d 981, 983 (citation omitted).            "A statute is void on
its face if it fails to give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden."                  Crisn,   814
P.2d at 983 (citations omitted).            "No person should be required to
speculate as to whether his contemplated course of action may be
subject to criminal penalties."         CTiSL),   814 P.Zd at 983 (citation
omitted).
                                       16
         Section 87-3-118(2), MCA, provides:
         A person commits the offense of possession of unlawfully
         taken wildlife having a value of more than $1,000 if he
         purposely or knowingly has actual or constructive
         possession of or transports or causes to be transported
         unlawfully taken wildlife having a value of more than
         $1,000. The value of the unlawfully taken wildlife must
         be determined from the schedule of restitution values set
         out in 87-l-111.
Brogan argues, in essence, that the statute is void for vagueness
because     it    does   not   sufficiently        define    constructive         possession
and,     therefore, does not give a reasonable person notice of what
conduct      is proscribed; he also asserts vagueness because no
specific intent to possess unlawfully taken wildlife is required.
His arguments are without merit.
         We previously have rejected an argument                      similar   to Brogan's
regarding vagueness premised on the lack of a requirement of
specific intent          to commit   an offense.        In Criso, the definition of
the offense at issue required that the defendant "knowingly" engage
in conduct creating a risk of death or serious bodily injury. We
observed     that    "knowingly"       is separately defined by statute and
specifically included as the mental state element of the offense.
Crisp,     814   P.2d at 983.         We stated that "[bly incorporating the
intent element of knowingly,                a mental state     that     is      adequately
defined by statute, the legislature has given fair warning of the
mental state required in order to be convicted of felony criminal
endangerment."           Criso,      814   P.2d    at   983.     On that basis, we
concluded that the "use of the mental state of knowingly does not
render a statute unconstitutionally vague."                      Crisp,         814   P.2d   at
983;     citing City of Billings v. Batten (1985), 218 Mont. 64, 70,
                                              17
705 P.Zd 1120, 1124
       Here,    the offense with which Brogan was charged requires that
he "purposely or knowingly has actual or constructive possession of
. . .      unlawfully taken wildlife having a value of more                    than
$1,000."       Section 87-3-118(2), MCA.            "Purposely" and "knowingly"
are defined in subsections (58) and (33),              respectively, of 5 45-2-
101, MCA.        By incorporating these statutorily defined terms into
the definition of the offense,              the legislature has given fair
warning of the mental state which is an element of the offense. We
conclude,      therefore,    that § 87-3-118(2), MCA, is not unconstitu-
tionally vague by virtue of the                 "purposely or knowingly" mental
state element of the offense.
       Criso also disposes of Brogan's vagueness claim based on the
failure of the statute under which he was charged to define the
term    "constructive       possession."        In Crisp,   the   defendant   argued
that the phrase        "substantial risk of death," an element of the
charged offense, failed to define the type of conduct proscribed
and,    therefore,     did not give him fair warning that he faced
criminal       sanctions.    We observed that, while the phrase was not
statutorily defined, it was "not so arcane or obscure . . . as to
give insufficient notice of the conduct prohibited . . . .'I Crisp,
814 P.2d at 983-84.              Relying on dictionary definitions, we
concluded that "[tlhe         fact that the phrase is not defined in the
code does not make the statute vague on its face."                 Crisv, 814 P.2d
at 984.
       Here,     while the term "constructive           possession"    in 5 87-3-

                                           18
118 (2) ,   MCA, is not defined by statute, it has been defined by this
court.      lt[Clonstructive   possession means that the goods are not in
actual,     physical possession but that the person charged with
possession has dominion and control over the goods."              State v.
Meader (1979), 184 Mont. 32, 42, 601 P.2d 386, 392.              Thus, we
conclude that the absence of a statutory definition for the phrase
"constructive       possession"   does not render 5 87-3-118(2),        MCA,
unconstitutionally       vague.
      Brogan has not met his burden of establishing that §           01-3-

118 (2) ,   MCA, is unconstitutionally vague in failing to       give   fair
warning that his conduct was proscribed.           We conclude, therefore,
that the District Court did not err in determining that the statute
is not unconstitutionally vague.            We hold that the court did not
abuse its discretion in denying Brogan's motion for a new trial
that basis.
      Affirmed.                         3
                                           ---,   --7 --_-




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following named:

      .- -
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Attorney at Law
P.O. Box One
Bozeman, MT 59771-0001

Richard L. Kaku
Attorney at Law
1375 Walnut Street, Ste. 200
Boulder, CO 80302

Hon. J6seph P. Mazurek, Attorney General
John Paulson, Assistant
Justice Bldg.
Helena, MT 59620

Tara Depuy, County Attorney
P.O. Box 487
Livingston, MT 59047

                                                      ED SMITH
                                                      CLERK OF THE SUPREME COURT
                                                      STATE OF MONTANA
