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ROUNDUP — Should a felony charge against a Shepherd man accused of illegally taking a trophy bull elk be dismissed because investigators can’t produce the animal’s antlers?

That is the issue before Musselshell County District Judge Randall Spaulding, who heard testimony Friday in the criminal case against Jimmie Roberts.

Roberts, 61, is facing trial in April on charges related to the killing of two elk — a cow and a bull — on a Musselshell County ranch. Roberts’ attorney, Jeff Michael, recently filed a motion seeking to have the felony charge related to the bull elk dismissed.

Roberts also is awaiting trial in Yellowstone County on charges related to the illegal killing of several mule deer bucks and an antelope buck. That trial is scheduled for March 14.

In his motion and at the hearing Friday, Michael argued that the felony accusation should be dismissed because the antlers from the bull elk were inadvertently sold to a Billings recycling company before trial. As a result, Michael said, his client is unable to independently determine through a defense expert whether the antlers meet the criteria of a trophy animal under state law.

Michael also argued that the prosecution never disclosed that the antlers were in evidence and available for review by the defense.

And investigators with the state Department of Fish, Wildlife and Parks did not properly log evidence in the case, the defense attorney said.

Musselshell County Attorney Kent Sipe argued that a photograph and other evidence, including the measurements of the antlers by a certified expert, are sufficient to establish that the antlers meet the criteria of a trophy animal under state law. Michael never asked to see the antlers, Sipe said, until the prosecution filed a notice in November that the evidence had been lost.

Wildlife investigators Lee Burroughs and Jeff Scott testified at the hearing Friday. Burroughs explained that the agency’s evidence room in Billings is cleaned and sorted about twice a year. As many as 30 sets of antlers from criminal investigations or road kills can be held in the room, Burroughs said.

In this case, Burroughs cleaned out the evidence room last June and noticed on one set of elk antlers an evidence tag with the name of the property owner where the elk was killed. Burroughs said he mistakenly believed the antlers came from another bull elk killed on the same property that was part of a closed case.

Scott explained that most of the antlers no longer needed as evidence are sold in bulk by weight to Pacific Recycling in Billings. Scott said he discovered the antlers were missing last November when he went to collect the evidence from Roberts’ case in preparation for the trial that was scheduled to begin that month.

“I had a little heartburn,” Scott said when he couldn’t find the antlers.

The trial was delayed after it was discovered that the antlers were missing.

Later, Scott said, he found the evidence tag from the missing antlers in a box in another agent’s office. The tag from the missing antlers was submitted as evidence Friday, drawing an outburst from Roberts.

“They need something that comes out of a box?” he said. “Come on, guys, play fair.”

Michael said the issue of the missing antlers is critical because Roberts is charged based on a state law that classifies the illegal killing of a trophy game animal as a felony offense.

Spaulding said he would issue a written order later.

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