Prosecutors have stepped up charges against a 23-year-old Roundup man accused of illegally killing three elk in August.
Earl Russell Benes now faces 24 criminal counts, including eight felonies, in Musselshell County District Court. Benes was set to make his initial appearance Monday afternoon. Defense attorney Kelly Varnes said his client would plead not guilty on all counts.
Musselshell County Attorney Kevin Peterson said the new charges come after additional legal research, but reflect no new information by game investigators.
On Aug. 18, Benes was leaving a party at a nearby Hutterite Colony, driving down Highway 12, when a he was forced to slow down for a herd of elk crossing the road, according to charging documents.
“I’ll make these bitches move,” Benes said, according to his statement to state game wardens.
Benes then “unloaded a semi-auto pistol at the group of elk,” striking and killing two trophy elk, prosecutors say. A trophy elk is valued at $8,000 under Montana law.
One elk ran 75 yards off the road and was found lying in a field, while the other traveled a half mile farther and was found in the field of the Kilby Butte Colony.
Prosecutors say it’s unknown how long it took the second elk to die, and charged Benes with aggravated animal cruelty for letting it suffer.
Three days later, Benes was driving around Dean Creek Road and Goulding Creek with friends when one of the passengers called him a name, charges state. Benes then got out of the truck, leaned across the hood and shot a bull elk with a 7 mm rifle, prosecutors say.
The state is also charging the third elk as a trophy elk, although the measurements are “close to the qualifications,” charges state.
For each elk killed, prosecutors charged Benes with criminal mischief and theft, although any restitution ordered could be required only once per animal, and not once per charge, Peterson said.
Benes also faces 16 misdemeanor game violations.
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The charges carry a maximum possible penalty of $278,500 in fines, as well as 83 years in jail or prison.
Peterson said District Judge Randal Spaulding initially rejected certain felony charges he sought to file because those charges were based on possession, which investigators could not establish.
Varnes, the defense attorney, said that in his experience, judges “rarely” rejected proposed charges, as happened initially in his client’s case.
The new charges reflect no new information from the poaching investigation, but are based on subsequent research of state law, Peterson said.
Peterson believes the Benes case may mark a new approach to prosecuting game violations.
Until 2011, prosecutors were confined to the state’s game laws in charging hunting violations. But according to Peterson, lawmakers that year enacted an amendment opening up the state’s criminal code, or its Title 45 laws, for prosecution in game violations.
Peterson said he didn’t think any other jurisdiction in Montana had used the aggravated animal cruelty statute in a hunting violation case.
At the time of the offenses with which Benes is now charged, his hunting privileges were suspended.
Benes had his hunting privileges suspended for four years in April 2018, when he was convicted of running down antelope with his vehicle and killing them north of Roundup, according to a Fish, Wildlife and Parks press release.
"Typically, somebody's poaching wildlife, somebody's taking it home and keeping it in their freezer and consuming it," Peterson said.
Those cases can be harder to track down. But in this case, no meat, antlers or heads were removed.
"They were just left to waste," Peterson said. "That's about $24,000 in restitution."