                                          No. 04-153

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 285


STATE OF MONTANA,


              Plaintiff and Respondent,

         v.

GARY MOTARIE,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Ninth Judicial District,
                     In and for the County of Glacier, Cause No. DC 2003-4,
                     Honorable Marc G. Buyske, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Terryl T. Matt, Attorney at Law, Cut Bank, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Larry D. Epstein, County Attorney, Cut Bank, Montana



                                                  Submitted on Briefs: September 21, 2004

                                                             Decided: October 19, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1       Gary Motarie appeals the District Court’s denial of his motion for a directed verdict.

Motarie argues that the State failed to prove an element necessary for finding him guilty of

intimidation and tampering with witnesses. Sections 45-7-206 and 45-5-203, MCA (2001).

We affirm.

                                       BACKGROUND

¶2       Phil Iverson reported Motarie to the Turn in Poachers, or T.I.P. program, for allegedly

poaching an elk on the Sun River Game Range–where hunting elk is illegal. The Department

of Fish, Wildlife and Parks established the T.I.P. program to give recreationists an easy way

to report violations of fish, wildlife, or parks violations. Through the Cut Bank grapevine,

Motarie learned that Iverson had reported Motarie to the Department of Fish, Wildlife and

Parks.

¶3       Within one month after accusing Motarie, Iverson received a phone call from a person

who did not identify himself, but whose voice Iverson recognized as Motarie’s. Motarie told

Iverson, “You’re a dead mother fucker, [sic] you’ll never live to see your next birthday.”

Motarie called again the next day, but said nothing. The jury found Motarie guilty of both

intimidation under § 45-5-203, MCA (2001), and tampering with a witness under, § 45-7-

206, MCA (2001).

                                 STANDARD OF REVIEW

¶4       We review a district court’s decision to deny a criminal defendant’s motion for a

directed verdict to determine if the district court abused its discretion. State v. Dahlin, 2004


                                                2
MT 19, ¶ 8, 319 Mont. 303, ¶ 8, 84 P.3d 35, ¶ 8. If, after viewing the evidence in the light

most favorable to the prosecution, a rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt, we will conclude the district court did not

abuse its discretion. State v. Dahlin, ¶ 8.

                                              DISCUSSION

¶5      The intimidation statute provides, in relevant part:

               Intimidation. (1) A person commits the offense of intimidation when,
        with the purpose to cause another to perform or to omit the performance of
        any act, he communicates to another, under circumstances which reasonably
        tend to produce a fear that it will be carried out, a threat to perform without
        lawful authority any of the following acts:
               (a) inflict physical harm on the person threatened or any other person;
               (b) subject any person to physical confinement or restraint; or
               (c) commit any felony.

Section 45-5-203(1), MCA (2001) (emphasis added). The tampering with witnesses and

informants statute provides as follows:

               Tam e i gwt wt es sa di f r a t. ( )Ap ro c m ist eof neo t m ei gwt wt es andinform sif,believng
                   p rn ih inse n nom ns 1 es n o mt h fe s fa p rn ih in ses                      ant        i
that an official proceeding or investigation is pending or about to be instituted, he purposely
or knowingly attempts to induce or otherwise cause a witness or informant to:
               (a) testify or inform falsely;
               (b) withhold any testimony, information, document, or thing;
               (c) elude legal process summoning him to testify or supply evidence;
        or
               (d) absent himself from any proceeding or investigation to which he
        has been summoned.


Section 45-7-206(1), MCA (2001) (emphasis added). Citing State v. Plenty Hawk (1997),

285 Mont. 183, 948 P.2d 209, Motarie claims that the prosecution failed to prove that he

acted with any purpose.

                                                       3
¶6     Plenty Hawk was behind bars when he told the deputy he was going to “kick [the

deputy’s] ass and terrorize [him] and his family.” Plenty Hawk, 285 Mont. at 185, 948 P.2d

at 210. By threatening the deputy with violence once released from his cell, Plenty Hawk

would have made the deputy even more disposed to leaving Plenty Hawk in the cell. We

concluded that the record lacked any evidence that the threats “were made for any particular

purpose.” Plenty Hawk, 285 Mont. at 186, 948 P.2d at 211. Instead, the record showed

nothing “to indicate that Plenty Hawk’s threats to [the deputy] were anything other than a

continuation of his belligerent attitude.” Plenty Hawk, 285 Mont. at 186-87, 948 P.2d at 211.

¶7     Motarie asserts that, as in Plenty Hawk, the State failed to show his purpose in making

his threats. Plenty Hawk was simply drunk and belligerent, but in the case sub judice, the

record speaks of a more invidious purpose. Iverson was the central witness to the State’s

poaching case against Motarie. It could certainly be inferred that Motarie could have

intended that his threats stop Iverson from cooperating with law enforcement.

¶8     “[C]riminal intent, being a state of mind, is rarely susceptible of direct or positive

proof and therefore must usually be inferred from the facts testified to by witnesses and the

circumstances as developed by the evidence.” State v. Longstreth, 1999 MT 204, ¶ 34, 295

Mont. 457, ¶ 34, 984 P.2d 157, ¶ 34 (quotation omitted). Seen in the light most favorable

to the prosecution, a reasonable jury could have determined that Motarie intended to stop

Iverson from continuing his cooperation in Motarie’s prosecution and, thus, he had the

requisite purpose for both the intimidation statute and the tampering with witnesses and

informants statute. We affirm the District Court.


                                              4
                        /S/ W. WILLIAM LEAPHART



We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM RICE




                    5
