                                          No. 03-656

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 135


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

BENJAMIN P. RUIZ,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DC 03–72
                     Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Mark McLaverty; McLaverty & Associates, Missoula, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Barbara C. Harris,
                     Assistant Attorney General, Helena, Montana

                     Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana



                                                  Submitted on Briefs: March 30, 2004

                                                            Decided: May 25, 2004


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1       Benjamin Ruiz (Ruiz) appeals from the judgment entered by the Fourth Judicial

District Court, Missoula County, on his convictions and sentences for the misdemeanor

offenses of outfitting without a license and assisting an unqualified applicant in obtaining a

resident license. We affirm in part, reverse in part and remand with instructions.

¶2       The issue on appeal is whether the District Court abused its discretion in denying

Ruiz’s motion for directed verdicts on both charges at the close of the prosecution’s case-in-

chief.

                                     BACKGROUND

¶3       In June of 2001, the Montana Department of Fish, Wildlife and Parks (FWP) began

investigating Ruiz based on information it received that he was acting as an outfitter without

a license. During the investigation, FWP game wardens Randolph Arnold (Arnold) and

Michael Martin (Martin) went undercover in an attempt to obtain outfitting services from

Ruiz. Arnold posed as a Montana resident who worked as a consultant. Martin posed as one

of Arnold’s clients who resided in Iowa, but liked to hunt and fish in Montana. Between

June and December of 2001, the two FWP wardens contacted Ruiz on various occasions to

plan a waterfowl hunting trip. The hunting trip eventually took place on December 11, 2001,

when Ruiz met the wardens at a motel in Missoula, Montana, escorted them to Flathead

Lake, and provided equipment and advice for their hunting. In turn, Arnold paid Ruiz $275.




                                              2
¶4    At the end of the December of 2001 waterfowl hunting trip, Ruiz and the wardens

discussed the possibility of big game hunting the following fall. Martin informed Ruiz that

he would like to obtain a Montana resident hunting license, but would not be able to

establish residency in Montana in time for hunting season. Ruiz informed Martin that he

could use Ruiz’s home address in Stevensville, Montana, to obtain a Montana driver’s

license and also that Ruiz knew someone who would sell him a resident conservation and

fishing license without a Montana driver’s license. Once Martin obtained the resident

conservation and fishing license, as well as a Montana driver’s license, he could purchase

a resident big game hunting license.

¶5    In May of 2002, Ruiz and the FWP wardens met for dinner in Missoula, during which

they discussed the arrangements for purchasing a Montana resident conservation and fishing

license for Martin. Following dinner, the three went to a Missoula sporting goods store

where a friend of Ruiz’s worked and Martin purchased a conservation and fishing license by

using Ruiz’s Stevensville address. Later that evening, Ruiz provided Martin with a fake

rental agreement stating Martin was living at Ruiz’s Stevensville address, which Martin

could use to obtain a Montana driver’s license.

¶6    Based on the activities outlined above, the FWP issued two tickets to Ruiz charging

him with outfitting without a license and assisting an unqualified applicant to obtain a

resident license. Ruiz was convicted of both offenses following a trial in the Missoula

County Justice Court, and he appealed to the District Court. The District Court held a jury

trial in June of 2003. After the State of Montana (State) presented its case-in-chief, Ruiz


                                            3
moved the District Court for directed verdicts on both counts, asserting the State had failed

to establish the requisite elements of the offenses. The court denied the motion and the jury

found Ruiz guilty of both offenses. The District Court sentenced Ruiz and entered judgment

on the convictions and sentences. Ruiz appeals.

                                STANDARD OF REVIEW

¶7     We review a district court’s denial of a motion for a directed verdict to determine

whether the court abused its discretion. State v. Maloney, 2003 MT 288, ¶ 13, 318 Mont.

66, ¶ 13, 78 P.3d 1214, ¶ 13. In doing so, we determine whether, viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. Maloney, ¶ 13.

                                       DISCUSSION

¶8     Did the District Court abuse its discretion in denying Ruiz’s motion for directed
verdicts on both charges?

¶9     At the close of the State’s case-in-chief, Ruiz moved the District Court for directed

verdicts on both charges against him, arguing that the State had failed to prove the elements

of the offenses. The court denied the motion and Ruiz asserts the court abused its discretion

in doing so. We address each charge in turn.

                              a. Outfitting without a license

¶10    Ruiz contends that the District Court abused its discretion in denying his motion for

a directed verdict on this count because the State failed to prove beyond a reasonable doubt




                                             4
that any of his alleged outfitting activities occurred in Missoula County. Essentially, Ruiz

argues that Missoula County was not the proper venue in which to bring this charge.

¶11    Generally, a criminal charge must be brought in the county where the offense was

committed. Section 46-3-110(1), MCA. However, where an act requisite to the commission

of an offense occurs or continues in more than one county, or where two or more acts

requisite to the commission of the offense are committed, the charge may be filed in any

county in which any of the acts occurred. Sections 46-3-112(1) and -112(2), MCA.

Additionally, while venue is not an element of a charged offense, it is a jurisdictional fact

which must be established by the prosecution at trial beyond a reasonable doubt. State v.

Galpin, 2003 MT 324, ¶ 23, 318 Mont. 318, ¶ 23, 80 P.3d 1207, ¶ 23 (citations omitted).

¶12    Ruiz was charged with violating § 37-47-301, MCA, based on his activities in taking

Arnold and Martin on a waterfowl hunting trip in December of 2001. That statute provides

that

       [a] person may not act as an outfitter, guide, or professional guide or advertise
       or otherwise represent to the public that the person is an outfitter, guide, or
       professional guide without first securing a license . . . .

Section 37-47-301(1), MCA. An “outfitter” is defined as

       any person, except a person providing services on real property that the person
       owns for the primary pursuit of bona fide agricultural interests, who for
       consideration provides any saddle or pack animal; facilities; camping
       equipment; vehicle, watercraft, or other conveyance; or personal service for
       any person to hunt, trap, capture, take, kill, or pursue any game, including fish,
       and who accompanies that person, either part or all of the way, on an
       expedition for any of these purposes or supervises a licensed guide or
       professional guide in accompanying that person.



                                               5
Section 37-47-101(11), MCA.

¶13    Arnold testified at trial that, on the morning of the waterfowl hunting trip, Ruiz met

the two wardens at a motel in Missoula and escorted them--albeit in separate vehicles--

through Missoula County on their way to Flathead Lake. Thus, Ruiz’s acts of providing

services and accompanying the wardens on their hunting expedition occurred, in part, within

Missoula County. Consequently, pursuant to § 46-3-112, MCA, it was appropriate for the

State to bring the outfitting without a license charge in Missoula County. We hold,

therefore, that the District Court did not abuse its discretion in denying Ruiz’s motion for a

directed verdict on the outfitting without a license charge.

             b. Assisting an unqualified applicant to obtain a resident license

¶14    The State also charged Ruiz with purposely or knowingly assisting an unqualified

applicant in obtaining a resident license, in violation of § 87-2-106(8), MCA (2001), based

on his actions in helping Martin--whom Ruiz believed to be a resident of Iowa, rather than

Montana--obtain a resident conservation and fishing license. Ruiz moved the District Court

for a directed verdict on this count, arguing that the State did not prove the elements of the

offense because Martin was a Montana resident. The District Court denied the motion and

Ruiz asserts error.

¶15    A person applying for a resident license is required to present identification

establishing that the person is a resident of Montana. Section 87-2-106(1), MCA (2001).

It is a misdemeanor offense for a person who does not meet the statutory residency criteria--

in other words, a person who is an unqualified applicant--to make a false statement in order


                                              6
to obtain a resident license. Section 87-2-106(7)(a), MCA (2001). Ruiz was charged with

violating § 87-2-106(8), MCA (2001), which provides that “[i]t is unlawful and a

misdemeanor for a person to purposely or knowingly assist an unqualified applicant in

obtaining a resident license in violation of this section.”

¶16    It is undisputed that Martin was a Montana resident at the time he applied for a

Montana resident conservation and fishing license and, consequently, was qualified to obtain

such a license. Therefore, notwithstanding Martin’s undercover persona as an Iowa resident,

Ruiz did not assist an unqualified applicant to obtain a resident license because Martin

actually was a Montana resident.

¶17    The State contends that, in proving Ruiz violated the statute, it is sufficient that Ruiz

believed he was assisting a nonresident in obtaining a Montana resident license, regardless

of whether Martin was a resident or not. As stated above, however, § 87-2-106(8), MCA

(2001), provides that it is unlawful to “assist an unqualified applicant . . .” to obtain a

resident license. To interpret the statute in the manner urged by the State would require us

to insert language into § 87-2-106(8), MCA (2001), stating it is unlawful to assist an

applicant one believes to be unqualified to obtain a resident license. We may not do so. In

interpreting statutes, our role is “to ascertain and declare what is in terms or in substance

contained therein, not to insert what has been omitted or to omit what has been inserted.”

Section 1-2-101, MCA.

¶18    In order to prove a violation of § 87-2-106(8), MCA (2001), the State must prove that

the applicant for the license was unqualified. As a result, the State was required to prove that


                                               7
Martin was not a resident of Montana. The State failed to do so. Consequently, we hold that

the District Court abused its discretion in denying Ruiz’s motion for a directed verdict on the

charge that he assisted an unqualified applicant to obtain a resident license.

¶19    Affirmed in part, reversed in part and remanded for the entry of an amended judgment

dismissing the assisting an unqualified applicant to obtain a resident license conviction and

deleting the related sentence.



                                                   /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE




                                              8
Justice W. William Leaphart dissenting.

¶20    I dissent on the question of whether the State proved venue in Missoula County for

the offense of outfitting without a license. The hunting trip in question took place on

December 11, 2001, when Ruiz met the wardens at a motel in Missoula, Montana, escorted

them to Flathead Lake and provided equipment and advice for their hunting venture outside

of Missoula County. Venue is proper in any county in which any of the acts requisite to the

commission of the offense occurred. Section 46-3-112(1) and (2), MCA.

¶21    As the Court notes, an “outfitter” is defined as:

       [A]ny person, except a person providing services on real property that the
       person owns for the primary pursuit of bona fide agricultural interests, who for
       consideration provides any saddle or pack animal; facilities; camping
       equipment; vehicle, watercraft, or other conveyance; or personal service for
       any person to hunt, trap, capture, take, kill, or pursue any game, including fish,
       and who accompanies that person, either part or all of the way, on an
       expedition for any of these purposes or supervises a licensed guide or
       professional guide in accompanying that person.

Section 37-47-101(11), MCA.

¶22    Although the actual hunting did not commence until the parties were in the Flathead

Lake area, the Court concludes that the fact that Ruiz met the wardens at a Missoula motel

and escorted them, in a separate vehicle, to Flathead Lake, constituted the “providing of

personal services” and “accompanying” for purposes of outfitting without a license. In my

view, this analysis stretches venue principles beyond credibility. As far as “accompanying”

goes, Ruiz was not even in the same vehicle with the wardens. In the context of the criminal

offense at issue, “accompany” means to be with a person while that person is engaged in

hunting or taking any game, not merely traveling on the same highway to a common

                                               9
destination. As to the “providing of personal service,” Arnold (an actual Montana resident,

posing as a Montana consultant) hardly needed “escorting” to get from Missoula to Flathead

Lake. The occurrences in Missoula County were preparatory at best; they were not acts

requisite to the commission of the offense of outfitting without a license, which only

occurred in the Flathead Lake area–outside of Missoula County. Section 46-3-112(1) and

(2), MCA. Outfitting is defined as providing a personal service “for consideration.”

Obviously, Ruiz would not have demanded or received “consideration” from Arnold and

Martin for meeting them at the motel and accompanying them to Flathead Lake. The

personal service–i.e the “outfitting”–did not occur until they reached Flathead Lake.

¶23    The State failed to prove venue in Missoula County, and, thus, the District Court

abused its discretion in denying Ruiz’s motion for a directed verdict on the outfitting without

a license charge.



                                                   /S/ W. WILLIAM LEAPHART




                                              10
