,, • r

No. 94-573 IN THE SUPREME COURT OF THE STATE OF MONTANA 1995

STATE OF MONTANA, Plaintiff and Respondent,
-vsMARY THILL ENGLEHARDT, Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Chouteau, The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

Filed: For Appellant: Stephen C. Moses, Attorney at Law, Billings, Montana
For Respondent: Hon. Joseph P. Mazurek, AttorneyGeneral; CreggW. Coughlin, Ass't Attorney General, Helena, Montana Allin H. Cheetham, Chouteau County Attorney, Fort Benton, Montana

Submitted on Briefs: March 16, 1995 Decided: April 11, 1995

C1E!rkJustice Karla M. Gray delivered the Opinion of the Court. MaryThillEngelhardt (Engelhardt) appeals froma juryverdict of guilty on charges of tampering with evidence and criminal possession of drug paraphernalia and from the judgment entered thereon by the Twelfth Judicial District Court, Chouteau County. We affirm. The issue is whether the District Court abused its discretion in denying Engelhardt's motion to dismiss, or for a directed verdict on, both charges for which she ultimatelywas found guilty by a jury. During the evening hours of March 5, 1994, Engelhardt was travelling between Great Falls and Havre, Montana, in a pickup truck being driven by her husband. Officer Larry Henke of the Montana Highway Patrol stopped the vehicle for exceedingthe speed limit. When OfficerHenke requested the registration andproof of insurance for the vehicle, Engelhardt began looking for the items in the glove box. Observed by Officer Henke, she pulled a marijuanapipe from theglovebox, thenput itdownbyher side out of the officer's view. OfficerHenkehadEngelhardt'shusband steptothe rearof the vehicle. Engelhardt also exited the truck. In response to two inquiries fromOfficerHenkeregardingthewhereaboutsof thepipe, Engelhardt indicated that she did not know what the officer was talking about. A search of Engelhardt for the pipe produced no results. When Officer Henke searched the cab of the truck for the pipe, he discovered items which later tested positive for the 2,1 , .,

presence of cocaine. Engelhardtwas arrested, advisedofherrightsandinterviewed by Officer Henke. While she initially denied knowledge of the pipe, she ultimately admitted that she removed the pipe from the glove box and threw itwhen she exited the truck. Another officer subsequently found thepipe some fifteen to twenty feet from where the truck had been stopped. The State of Montana (State) charged Engelhardt with three criminal offenses. Count I alleged criminal possession of dangerous drugs, a felony, based on the items found in the truck cabwhich testedpositive for cocaine. Count II allegedtampering with evidence, a felony, based on Engelhardt's throwing the marijuana pipe. Count III alleged criminal possession of drug paraphernalia, a misdemeanor, based on Engelhardt's possession of the pipe. Ajury trial was held on August 1 and 2, 1994. The District Court dismissed Count I, criminal possession of dangerous drugs, during the State's case. At the end of the State's case, Engelhardt moved for dismissal of the tampering and paraphernalia charges on the basis that there was insufficient evidence to go to the jury on either charge. The court denied the motion and the jury found Engelhardt guilty of both the tampering and paraphernalia charges. Engelhardt appeals. Sentence and judgment were entered and

It is well-settled that "[t]he decision whether to direct a verdict of acquittal lies within the sound discretion of the trial

3,

# .

court and discretion." 

# .,

will not be disturbed absent an abuse of that State v. Moore (Mont. 1994), 885 P.2d 457, 484, 51 St.Rep. 1151, 1170-71. Amotion for a directed verdict should be grantedonlywhenthere isnoevidence to support a guiltyverdict. Moore, 885 P.2d at 484. We review the denial of such a motion to determine "whether, after viewing the evidence in the light most favorable totheprosecution, anyrational trierof fact couldhave found the essential elements of the crime beyond a reasonable doubt." Moore, 885 P.2d at 484; quoting State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562. We address the paraphernalia charge first, followed by the tampering charge. In pertinent part, § 45-10-103, MeA, defines the offense of criminalpossessionofdrugparaphernaliaaspossessionwithintent touse drugparaphernaliato ingest or inhale a dangerousdrug into the human body. It is undisputed in this case that the pipe was "drug paraphernalia" under the statute. Engelhardt's oral motion to dismiss this charge was premised
on several arguments related to the "possession" element of the offense. Reiterating those arguments here, Engelhardt argues that she did not knowingly have possession of the pipe because she had neither possession of, nor an ownership interest in, the truck. This argument is totallywithoutmeritunderthe facts of this case where Engelhardt's possession of the pipe was actual, not constructive. Indeed, the evidence that Engelhardt actually had the pipe in her physical possession after removing it from the glove box is undisputed.

4" < Engelhardt also contends--relying on the definition of possessioncontainedin § 45-2-101(52), MCA, as "knowingcontrol of anything for a sufficient time to be able to terminate control"-- that she didnot criminallypossess thepipebecause she terminated her control over it. In this regard, we need note only that evidence was presented about the time span duringwhich Engelhardt had the pipe in her possession and the jurywas instructed on the applicable law. It was within the province of the jury to weigh the evidence and the witnesses' credibility and determine whether the State proved beyond a reasonable doubt that Engelhardt had sufficient possession of the pipe under the applicable law. Finally, Engelhardt argues that the State did not present sufficient evidence or, indeed, anyevidence at all, to support the "intent to use" element of the paraphernalia offense as charged. The transcript of Engelhardt's motion to dismiss does not include any mention of this argumenti the motion was limited to the "possession" element of the offense. We will not address this issue raised for the first time on appeal. We conclude that the District Court did not abuse its discretion in denying Engelhardt's motion to dismiss the criminal possession of drug paraphernalia charge. Insofar as is relevant here, § 45-7-207, MCA, defines the tampering offense as tampering with physical evidence by destroying, concealing or removing any thing with the purpose of impairing its availability, believing that an official proceeding
or investigation is about to be instituted. Engelhardt contended

5Ill. -, 

## ·

# .

to the District Court in her motion to dismiss, and contends here
on appeal, that there is insufficient evidence to support her knowledge or belief that an investigation regarding the pipe was about to begin and her intent to impair the availability of the pipe in any such investigation. This contention borders on the frivolous. The evidence presented during the State's case was that OfficerHenke stopped the truck and requested the registration and proofof insurance, that OfficerHenke's flashlight illuminatedthe pipe as Engelhardt removed it from the glovebox, that she slidthe pipe to her side awayfrom the officer'sviewand, thereafter, that she threw it away from the truck when she exited the vehicle. The State's evidence also indicated that Engelhardt initially denied knowingwhat OfficerHenkewas talkingabout whenhe inquiredabout the pipe, but admitted during the post-arrest interview that she had removed the pipe from the glove box and was afraid of going to jail. Under this record presented by the State, there was more than sufficient evidence togo to thejuryonthe tamperingcharge. Moreover, during her own testimony, Engelhardt admitted knowing what the pipewas andthat she threwit awayfrom the truckbecause she knew it was illegal. Viewedinanylight, andcertainlyinthe lightmost favorable to the prosecution, the jury was entitled to determine that Engelhardt believed that an investigation regarding the pipe was about to begin. The jury also was entitled to determine that Engelhardt'spurposeinthrowingthepipewas to impair--indeed, to

6foreclose--its availability during the investigation. In short, there was sufficient evidence for the trier of fact to determine that the State hadproved its tampering charge beyond a reasonable doubt. We conclude, therefore, that the District Court did not abuse its discretion indenying Engelhardt's motion to dismiss the tampering charge. Affirmed. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal OperatingRules, this decision shall not be cited as precedent and shallbepublishedby its filing as a public document with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, State Reporter and West Publishing Company.

We concur:

7