No. 94-002 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

STATE OF MONTANA, Plaintiff and Appellant,

ANTHONY DAVID, 111, Defendant and Respondent.

APPEAL FROM: District Court of the EighteenthJudicial District, In and for the County of Gallatin, The Honorable Larry 

### W. Moran, Judge presiding.

COUNSEL OF RECORD: For Appellant: Hon. Joseph P. Mazurek, Attorney General; Carol 

### E. Schmidt,AssistantAttorneyGeneral; Helena,Montana JaneMersen, Deputy County Attorney, Bozeman, Montana For Respondent: Brian K. Gallik, and Robert K. Baldwin, Goetz, Madden & Dunn, P.C., Bozeman, Montana

Filed: Submitted on Briefs: August 11, 1994 Decided: September 12, 1994Chief Justice J. A. Turnagedelivered the Opinion of the Court. The State of Montana appeals from a ruling of the Eighteenth Judicial District Court, Gallatin County, denying its motion for leave to file an information charging the defendant with felony stalking pursuant to § 45-5-220, MCA. We affirm. The sole issue is whether the District Court abused its discretion when it denied the State leave to file an information charging defendant with felony stalking. On November 24, 1993, the Gallatin County Attorney's office filed a motion for leave to file an information charging Anthony David, 111, with felony stalking inviolation of 45-5-220, MCA. The motion was accompanied by an affidavit of probable cause. The affidavit set forth the alleged facts as follows. On November 5, 1993, David assaulted Cindy Tadday (Tadday). David left the Tadday residence in Tadday's car. Tadday immediately applied for a temporary restraining order (TRO). The District Court issued a TRO, and itwas served on David that day. On November 6, 1993, David telephoned Tadday. He left a message on Tadday's answeringmachine that he intended to obey the restraining order and that he was "not going to cause a single problem.iv David also called Tadday's mother on November 6, claiming he planned to make life "hellit for her daughter. Later thatdayhe againtelephonedTadday" mother and apologized forthe earlier call.Tadday left town on November 6 to avoid contact with David. She stayed with friends and did not go to school or work. Tadday returnedhome onNovember 17, 1993, and David repeatedly tel.ephoned her that afternoon. Tadday was able to record portions of two of these calls. In one call, David stated: Please don't call the cops, my life's pretty short, my life span is about as long as yours. I'm bringing witnesses to prove that you beat me up. If you have called the cops, I

### 'mfucked. But, 

### I'mnot atmy house so Ihave witnesses that say that 

### Ididn't [call]. Please help me get over this. Forme to get over this,this is so humiliating,my life is overwhen your life is. Ah, you know what I'm saying? David telephoned Tadday between twelve and sixteen times that afternoon. Tadday told the Bozeman, Montana, police department that she believed Davidwas "crazy." Tadday statedthat she fearedhim when he was drinking and that she was "scaredto deathwof him. Tadday also feared that David would attempt to injure her dog. The State moved the District Court for leave to file an information on November 24, 1993. The court denied the motion on November 29, 1993. The court ruled that probable cause was not established. The courtdetermined that the affidavitdid not show threats or intimidation. The court found that while some of the telephone calls tcpossibly could have been considered harassing," they were insufficient to create probable cause that David committed felony stalking. The court alsonoted that the Statehad other available means by which to charge David, such as breach of the restraining order.Issue Did theDistrictCourt abuse its discretion when itdenied the State'smotion for leave to file an informationcharging defendant with felony stalkingpursuant to § 45-5-220,MCA? Leave to file an information shall be granted when probable

cause exists that an offense has been committed by an identified suspect. Section 46-11-201,MCA. Theprobable cause determination is left to the sound discretion of the district court. A determination of probable cause will not be reversed absent an abuse of discretion. State v. Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334. District court judges should use their common

sense when reviewing affidavits of probable cause. State 

### v. Thompson (1990), 243 Mont. 28, 30, 792 P.2d 1103, 1105. In reviewing such cases, this Court has noted that "the reviewing court must give special deference to judicial probable cause determinations.'' State v. Riley (1982)

### , 199 Mont. 413, 423, 649 P.2d 1273, 1278. In 1993 the Montana Legislature enacted legislation making certain Mstalkingvv activities illegal. Codified as 5 45-5-220, MCA, the statute provides, in relevant part: (1) A person commits the offense of stalking if the person purposely or knowingly causes another person substantial emotionaldistress or reasonable apprehension of bodily injury or death by repeatedly: (a) following the stalkedperson; or (b) harassing, threatening, or intimidating the stalked person, in person or by phone, by mail, or by other action, device, or method.Stalking is a felony if it is a secondor subsequentoffense,or if the defendant was under a judicial restrainingorderat the time of the alleged conduct. Section 45-5-220(3), MCA. The affidavit fails to show that David followed Tadday. The affidavit likewise does not show that David threatened or intimidated Tadday. While the affidavit may indicate that David's conduct might have been harassment, it was within the District Court sdiscretiontodetermhethat the affidavit was insufficient to show probable cause that David stalked Tadday. The affidavit also presents no showing that David's alleged stalking activities were the cause of Tadday1semotional distress

or apprehension. The affidavitdoes not state that Tadday feared David because of the telephone calls: rather, the affidavit seems to indicate just the opposite. Based on the affidavit, the District Court could reasonably assume that Tadday's apprehension of Davidwas aproduct of theirpre-existing strained relationship. The affidavit states: Tadday is afraid of the defendant when he is drinkinq. Taddayhas quit going to school and quit going towork so the defendant cannot find her. Tadday told [detective] Welsand she was ''scared to death." 

# . . . The defendant has told Tadday in the wast that he would pour gasoline an her dog and light the dog on fire. [Emphasisadded.] It was within the court's discretion to believe that Tadday's apprehensionwasnot caused

### by David's telephone calls onNovember 6 and 17,but rather from her previous relationship with him. ThisCourt has consistentlydeferredtothe reviewing judge in matters of probable causedeterminations. InState ex rel. Juhlv.District Court (1938), 107Mont. 309, 312-13, 84 P.2d 979, 981,we stated: Obtainingleaveto file an informationwithout aprevious examinationoftheaccused before acommitting magistrate is not amere perfunctory matter which shouldbe granted as amatter of course,but rests in the sounddiscretion of the district judge, upon the showing made to him.



# . . An abuse of discretion materially prejudicing a substantial right of the accused would be grounds for reversal 

# . . . the appellate court cannot presume that the trial court exceeded its authority or abused its discretion. [Citationomitted.] Based on the affidavit,we concludethat the District Court did not abuse its discretion in denying the State's motion for leave to file an information charginy David with felony stalking. We find no merit in the State's contention that the District Court" suggestion of alternative charges against David violated the separation of powers doctrine. Art. 111, Sec.1, Mont. Const. The judge's closing remarks, "I think there is an adequate remedy in this matter by breach of the restraining order or by breach of the Justice Court order at the time of arraignment in another case,"did not constitute a violation of the separation of powers doctrine. Such conductdid not infringe on the State's prosecutorial discretion. The DistrictCourt's denial of the State'smotion

was based upon a lack of probable cause and any statement concerning alternative options available to the State should not be construed as an attempt to dictate what charges the State may bring.Since we uphold the District Court's decision, we need not address respondent's argument concerning the constitutionality of 5 45-5-220, MCA. We affirm the decision of the District Court.

.-

We concur: