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                               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
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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.            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


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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.


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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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