State v. Montana Second Judicial District, 2015 MT 294 (Oct. 13, 2015) (Baker, J.) (5-0, writ granted, rev’d)
Issue: (1) Whether the Court will accept review of the state’s petition for supervisory control, and (2) whether the district court erred in holding that the limitations period for unlawful possession of wildlife begins to run on the date a person gains control or ownership of the unlawfully taken wildlife.
Short Answer: (1) Yes, and (2) yes. A violation of § 87-6-202(1), MCA, is continuous conduct for statute of limitations purposes.
Writ of supervisory control granted; district court’s dismissal of counts I & V reversed
Facts: The state charged Joseph McGrath with several offenses under Title 87, MCA, including four counts of unlawful possession of wildlife under § 87-6-202(1). McGrath moved to dismiss two counts on statute of limitations grounds, arguing the limitations period for unlawful possession of wildlife begins to run on the date a person gains control or ownership of the unlawfully taken wildlife. The state argued that because the statute criminalizes possession of unlawfully taken wildlife, the limitations period does not begin to run until a person no longer possess the wildlife.
Procedural Posture & Holding: The district court granted McGrath’s motion and dismissed Counts I and V. The state petitioned for supervisory control, which the Supreme Court grants. The Court reverses the district court and reinstates Counts I and V.
Reasoning: (1) The state presents a purely legal issue of first impression, which will govern whether trial proceeds on two of five counts against McGrath. The state may not appeal from dismissal of one count that leaves the case still pending. Failure to assume supervisory control would case significant injustice for which appeal is an inadequate remedy.
(2) Possession of all or part of any game animal that was unlawfully killed, captured or taken (whether in Montana or not) must be proved by the state to obtain a conviction under § 87-6-202(1), MCA. Distinguishing Mullin, which held that felony theft is not continuous conduct, the Court points out that theft occurs when a person obtains or exerts control over stolen property. The offense here is the possession of illegally taken wildlife. The criminal act is not limited to receiving the wildlife, but of possessing it. Therefore, the limitations period does not begin to run until the person no longer possesses the illegally taken wildlife.