, , • 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, Attorney General; Cregg W. 

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!rk 
Justice Karla M. Gray delivered the Opinion of the Court. 

Mary Thill Engelhardt (Engelhardt) appeals from a jury verdict 

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 ultimately was 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 exceeding the speed 

limit. When Officer Henke requested the registration and proof of 

insurance for the vehicle, Engelhardt began looking for the items 

in the glove box. Observed by Officer Henke, she pulled a 

marijuana pipe from the glove box, then put it down by her side out 

of the officer's view. 

Officer Henke had Engelhardt's husband step to the rear of the 

vehicle. Engelhardt also exited the truck. In response to two 

inquiries from Officer Henke regarding the whereabouts of the pipe, 

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 

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presence of cocaine. 

Engelhardt was arrested, advised of her rights and interviewed 

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 it when she exited the truck. Another officer 

subsequently found the pipe 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 

cab which tested positive for cocaine. Count II alleged tampering 

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. 

A jury 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 

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court and 

discretion. " 

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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. A motion for a directed verdict should be 

granted only when there is no evidence to support a guilty verdict. 

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 to the prosecution, any rational trier of fact could have 

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 

criminal possession of drug paraphernalia as possession with intent 

to use drug paraphernalia to ingest or inhale a dangerous drug 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 totally without merit under the 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. 

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Engelhardt also contends--relying on the definition of 

possession contained in § 45-2-101(52), MCA, as "knowing control of 

anything for a sufficient time to be able to terminate control"--

that she did not criminally possess the pipe because she terminated 

her control over it. In this regard, we need note only that 

evidence was presented about the time span during which Engelhardt 

had the pipe in her possession and the jury was 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, any evidence 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 argument i 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 

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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 

Officer Henke stopped the truck and requested the registration and 

proof of insurance, that Officer Henke's flashlight illuminated the 

pipe as Engelhardt removed it from the glove box, that she slid the 

pipe to her side away from the officer's view and, thereafter, that 

she threw it away from the truck when she exited the vehicle. The 

State's evidence also indicated that Engelhardt initially denied 

knowing what Officer Henke was talking about when he inquired about 

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 to go to the jury on the tampering charge. 

Moreover, during her own testimony, Engelhardt admitted knowing 

what the pipe was and that she threw it away from the truck because 

she knew it was illegal. 

Viewed in any light, and certainly in the light most 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's purpose in throwing the pipe was to impair--indeed, to 

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foreclose--its availability during the investigation. In short, 

there was sufficient evidence for the trier of fact to determine 

that the State had proved its tampering charge beyond a reasonable 

doubt. We conclude, therefore, that the District Court did not 

abuse its discretion in denying Engelhardt's motion to dismiss the 

tampering charge. 

Affirmed. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by 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: 

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