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 Eighteenth Judicial 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, Assistant Attorney General; Helena, Montana 

Jane Mersen, 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, 1994 
Chief Justice J. A. Turnage delivered 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 in violation 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 it was served on David that day. 

On November 6, 1993, David telephoned Tadday. He left a 

message on Tadday's answering machine 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 

that day he again telephoned Tadday" mother and apologized for the 

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 

returned home on November 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 'm fucked. But, I 'm not at my house so 

I have witnesses that say that I didn't [call]. Please 

help me get over this. For me to get over this, this is 

so humiliating, my life is over when 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 David was "crazy." Tadday stated that she feared him when 

he was drinking and that she was "scared to deathw of 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 court determined that the affidavit did 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 also noted that the State had 

other available means by which to charge David, such as breach of 

the restraining order. 
Issue 

Did the District Court abuse its discretion when it denied the 

State's motion for leave to file an information charging defendant 

with felony stalking pursuant 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. The probable 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 emotional distress or reasonable apprehension 

of bodily injury or death by repeatedly: 

(a) following the stalked person; 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 second or subsequent offense, or if 

the defendant was under a judicial restraining order at 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 s discretion to determhe that 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 Tadday1s emotional distress 

or apprehension. The affidavit does 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 David was a product of their pre-existing strained relationship. 

The affidavit states: 

Tadday is afraid of the defendant when he is drinkinq. 

Tadday has quit going to school and quit going to work 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. [Emphasis added.] 

It was within the court's discretion to believe that Tadday's 

apprehension was not caused by David's telephone calls on November 

6 and 17, but rather from her previous relationship with him. 

This Court has consistently deferred to the reviewing judge in 

matters of probable cause determinations. In State ex rel. Juhl v. 
District Court (1938), 107 Mont. 309, 312-13, 84 P.2d 979, 981, we 

stated: 

Obtaining leave to file an information without a previous 

examination ofthe accused before a committing magistrate 

is not a mere perfunctory matter which should be granted 

as a matter of course, but rests in the sound discretion 

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. [Citation omitted.] 

Based on the affidavit, we conclude that 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 conduct did not infringe on the State's prosecutorial discretion. The District Court's denial of the State's motion 

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: