State v. Englehardt ( 1995 )

,,
• r
No. 94-573
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MARY 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:
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
Filed:
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
2
,1 , .,
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. Sentence and judgment were entered and
Engelhardt appeals.
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 will not be disturbed absent an abuse of that
discretion. " 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.
4
" <
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
5
·. Ill. -,
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
6
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:
7