State v. Keating

97-065

No. 97-065

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Respondent and Plaintiff,

v.

PHILLIP EARNEST KEATING,

Appellant and Defendant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

David F. Ness, Attorney at Law, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Ass't Attorney General, Helena, Montana

Mike McGrath, Lewis and Clark County Attorney,
Vicki Frazier, Deputy Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: August 14, 1997

Decided: November 25, 1997
Filed:

__________________________________________
Clerk

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

Phillip Keating (Keating) appeals from the judgment and commitment entered by
the First Judicial District Court, Lewis and Clark County, on a jury verdict finding
him
guilty of the offense of threats in official matters. He contends that the District
Court
erred in denying both his motion to dismiss based on speedy trial grounds and his
motion
for a directed verdict. We affirm.
The issues on appeal are:
1. Did the District Court err in failing to dismiss the case on the grounds of
denial of a speedy trial?

2.Did the District Court abuse its discretion when it denied Keatingþs motion
for a directed verdict?
BACKGROUND
On the evening of November 22, 1995, Deputy Jack Shamley and Deputy Dave
Peterson (collectively the deputies) of the Lewis and Clark County Sheriffþs
Department
(Sheriffþs Department) attempted to serve civil process on Keating on two separate
occasions. During the second attempt, Deputy Peterson approached Keatingþs residence
at the Kingþs Carriage Inn while Deputy Shamley waited by the patrol car. When
Deputy
Peterson knocked, Keating opened the inside, wooden door but not the glassed-in,
outer
door. Deputy Peterson told Keating that he had papers to serve on him, at which time
Keating began to yell at Deputy Peterson that he was trespassing and should leave.
The
deputies then left the property without accomplishing service of process.
Shortly thereafter, the 911 dispatcher contacted the deputies and told them that
Keating had telephoned and made a threat. During that telephone conversation,
Keating
stated, þFrom this point forward, this is official notice, do not, do not allow
officers on
property belonging to Phil Keating in Lewis and Clark County for fear they may be
killed. . . . Do not go on the property.þ
On November 24, 1995, the State of Montana (State) filed a complaint in the
Justice Court of Lewis and Clark County alleging that Keating had committed the
offense
of threats in official matters. The Justice Court issued an arrest warrant for
Keating and
set bond at $100,000. On November 27, 1995, the District Court revoked Keatingþs
bond on pending assault and drug charges due to various incidents of bizarre and
threatening behavior by Keating, including the alleged threat against the law
enforcement
officers. It ordered Keatingþs arrest and detention without bond pending a hearing.
Keating was arrested that same day in Missoula, Montana.
On December 21, 1995, the Justice Court bound Keating over to the District Court
for further proceedings on the charge of threats in official matters, a felony, and
the State

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subsequently filed an information in the District Court charging that offense.
After a
bond hearing on December 21, 1995, the District Court ordered bond set at $100,000
for
this case and $100,000 for the assault and drug case and set conditions in the event
Keating posted the bond. Following Keatingþs suggestions, the District Court ordered
him to live in Butte, Montana, with Duane Hanson (Hanson) pending trial. The
District
Court also ordered Keating not to enter Jefferson or Lewis and Clark County for any
reason except to visit with his attorney; Hanson was to accompany him on any such
trips.
The conditions subsequently were amended several times. Among other things, the
District Court altered the prohibition against entering Lewis and Clark County
þunder any
circumstancesþ to a prohibition against doing so without prior approval of the court.
Keating was arraigned on January 25, 1996, and his trial in this case was
scheduled for April 8, 1996, as the second criminal trial setting on that date. In
March
of 1996, Keatingþs attorney moved to withdraw and the District Court granted the
motion.
The State also made two discovery motions in March of 1996, which the District Court
granted.
The first case on the District Courtþs calendar went to trial on April 8, 1996,
and,
as a result, Keatingþs trial did not occur on that date. Shortly thereafter, and in
response
to a motion by the State, the District Court rescheduled Keatingþs trial for July
22, 1996.
In the meantime, Keating obtained new counsel to represent him in both cases and his
trial on the assault and drug charges ended in a mistrial. On July 12, 1996, the
District
Court vacated the July 22 trial date for this case and reset it for August 19, 1996.
Keating moved to dismiss for lack of a speedy trial on the morning of trial.
Counsel argued the motion after voir dire and prior to the impanelling of the jury.
The
District Court denied the motion and the case proceeded to trial. At the close of
the
Stateþs case, Keating moved for a directed verdict. The District Court denied the
motion
and the jury ultimately convicted Keating of threats in official matters. Judgment
was
entered and Keating appeals.
1. Did the District Court err in failing to dismiss the case on the grounds
of denial of a speedy trial?
As set forth above, Keating filed his motion to dismiss based on denial of his
right
to a speedy trial on the morning of trial. Concluding that the motion was untimely,
the
District Court denied it.
The Sixth Amendment to the United States Constitution and Article II, Section
24,
of the Montana Constitution guarantee a criminal defendant the right to a speedy

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trial.
State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287 (citations omitted).
The
primary purpose of the right to a speedy trial is protecting defendants from
oppressive
trial tactics by the State. State v. Gould (1995), 273 Mont. 207, 216, 902 P.2d
532, 538
(citations omitted). We apply the test set forth by the United States Supreme Court
in
Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine
whether a defendantþs right to a speedy trial has been violated. Matthews, 894 P.2d
at
287 (citing State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., Etc. (1977), 173
Mont.
516, 568 P.2d 162). The test requires the balancing of four factors:
1) length of the delay;
2) reason for the delay;
3) defendantþs assertion of the right; and
4) prejudice to the defendant.
Matthews, 894 P.2d at 287 (citations omitted). No single factor is determinative;
each
is weighed in light of the surrounding facts and circumstances. State v. Williams-
Rusch
(1996), 279 Mont. 437, 449, 928 P.2d 169, 176 (citation omitted).
Whether a defendantþs speedy trial rights have been violated is a question of
law.
We review a district courtþs conclusions of law to determine whether the
interpretation
of the law is correct. State v. Foshee (Mont. 1997), 938 P.2d 601, 604, 54 St.Rep.
370,
370-71 (citation omitted).
Length of the Delay
The first factor, the length of the delay, acts as a triggering mechanism.
Matthews, 894 P.2d at 287. If the delay is sufficient to be presumptively
prejudicial,
analysis of the remaining factors is required. Williams-Rusch, 928 P.2d at 176
(citations
omitted). Moreover, while we have declined to establish a þbright lineþ test for
determining whether the length of the delay is presumptively prejudicial, a delay of
over
200 days usually will trigger the analysis. See State v. Thompson (1993), 263 Mont.
17,
32, 865 P.2d 1125, 1135 (citations omitted).
In this case, the State concedes that the 270-day delay is presumptively
prejudicial
and triggers the full speedy trial analysis. Thus, we address the remaining three
speedy
trial factors, keeping in mind that once the delay has been determined to be
presumptively
prejudicial, the State generally has the burden of providing a reasonable
explanation for
the delay and showing that the defendant was not prejudiced by the delay. State v.

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Tweedy (1996), 277 Mont. 313, 320, 922 P.2d 1134, 1138 (citation omitted).
Reason for the Delay
Consideration of the second Barker factor, the reason for the delay, requires an
allocation of the delay attributable to each party. Matthews, 894 P.2d at 287
(citation
omitted). Here, the delay began when the first case set for trial on April 8, 1996,
proceeded to trial. Three weeks later, the District Court rescheduled Keatingþs
trial for
July 22, 1996. Meanwhile, Keatingþs trial on the unrelated assault and drug charges
ended in a mistrial on July 9, 1996, and the District Court rescheduled that
caseþwhich
had been pending longerþfor July 22, 1996, thus conflicting with the trial date set
for
this case. The District Court then scheduled this case for trial on August 19, 1996.
On this record, none of the delay in this case can be allocated to Keating. He
did
not move to continue either the April 8 or the July 22 trial date. Nor did he file
motions
which necessitated trial delays pending resolution. The delays which occurred were
inherent in the system and þ[d]elay inherent in the system is chargeable to the
State.þ
See State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416 (citation omitted).
We conclude, therefore, that the entire delay in this case is chargeable to the
State.
We also must weigh the delay chargeable to the State. Tweedy, 922 P.2d at
1138.
The approximately 240 days which elapsed prior to the July 22 trial date resulted
from
both ordinary procedures associated with criminal prosecutions, such as scheduling
and
holding the omnibus hearing, and the difficulties in settingþand keepingþtrial dates
which related to the District Courtþs crowded docket. Such delays are characterized
as
institutional delay. See Thompson, 865 P.2d at 1135 (citation omitted). Conflict
with the
trial date set for Keatingþs assault and drug case following the mistrial accounts
for the
remainder of the delay. This delay also is properly characterized as institutional
delay.
See State v. Lane (1996), 279 Mont. 128, 133, 927 P.2d 989, 992. None of the delay
in this case was intentional delay.
Institutional delay weighs less heavily against the State than intentional
delay.
Tweedy, 922 P.2d at 1138 (citation omitted). Therefore, while the entire delay is
attributable to the State, the State has met its burden of providing a reasonable
explanation for the delay by establishing that the delay was institutional rather
than
intentional. See Tweedy, 922 P.2d at 1138. As a result, the 270-day delay in this
case
does not weigh heavily against the State.
Assertion of the Right
The third Barker factor requires a defendant to assert the right to a speedy

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trial.
Matthews, 894 P.2d at 288. Our rule in Montana is that, if a defendant moves to
dismiss
before trial, he has fulfilled the requirement of asserting his constitutional right
to a
speedy trial. Tweedy, 922 P.2d at 1139 (citation omitted).
Here, Keating filed his motion to dismiss on the morning of trial, but before
the
trial began. Pursuant to Tweedy, his motion was timely filed and the District Court
erred
in concluding otherwise.
Technical compliance with the assertion of the right requirement does not end
the
discussion of this factor, however. As set forth above, the Barker test requires a
balancing of the speedy trial factors in light of the surrounding facts and
circumstances.
Williams-Rusch, 928 P.2d at 176; Matthews, 894 P.2d at 287. Indeed, we previously
have determined that failing to assert the right to a speedy trial until four days
before trial
indicates a defendantþs lack of an actual interest in moving the case to trial which
should
be considered in the process of balancing the Barker factors. Thompson, 865 P.2d at
1135.
In this case, Keating did not file his motion to dismiss or indicate in any
other way
that he was interested in moving his case to trial until the morning of trial. Had
he been
interested in doing so, he could have objected in April of 1996, when his trial was
rescheduled to July 22, 1996. It was at that point that speedy trial implications
arose
because 240 days would have elapsed by the rescheduled trial date. Keating did not
object to the trial date or indicate any interest in regard to moving his case to
trial at that
time. Nor did he do so when the July 22 trial date was vacated and his trial was
reset
for August 19, 1996.
The State contends that another indication of Keatingþs lack of interest in
moving
this case to trial was his failure to object to the April 8 trial date when it was
set at the
omnibus hearing in February of 1996. While the State is correct in positing that a
defendantþs failure to object to a trial date at the omnibus hearing is a
consideration in
some cases (see Williams-Rusch, 928 P.2d at 178), Keatingþs failure to object to the
trial
date set at the omnibus hearing is not pertinent here.
In Williams-Rusch, the omnibus hearing was held almost eleven months after the
defendant was arrested and a trial date was set for almost six months later.
Notwithstanding that the speedy trial time parameters already had been exceeded by
the
time of the omnibus hearing, the defendant did not object at that time to the
delayed trial

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date. Williams-Rusch, 928 P.2d at 177-78. We concluded that the defendant exhibited
a lack of interest in moving her case to trial, which should be considered in the
Barker
balancing process. Williams-Rusch, 928 P.2d at 178 (citations omitted). In
contrast,
Keatingþs omnibus hearing was held less than three months after he was originally
charged and the April 8, 1996, trial date set at that hearing was only 137 days
after the
complaint was filed in Justice Court. No speedy trial implications arose at that
time and,
as a result, Keatingþs failure to object to the trial date set at the omnibus
hearing is not
a proper consideration in this case.
We conclude that Keatingþs delay in asserting his right to a speedy trial until
the
morning of trial indicates his lack of an actual interest in moving the case to
trial and, as
a result, we weigh this factor against him. This factor is not determinative,
however,
since his motion was technically timely, and it is necessary to complete the Barker
balancing process by considering the final factor.
Prejudice to the Defendant
The final factor which must be analyzed under the Barker test is prejudice to
the
defendant. Prejudice is assessed in light of three interests which the speedy trial
right
was designed to protect: prevention of oppressive pretrial incarceration;
minimization
of anxiety and concern; and avoidance of impairment of the defense. Matthews, 894
P.2d
at 288 (citation omitted). While each interest is important, impairment of the
defense is
the most critical. Matthews, 894 P.2d at 288 (citation omitted).
With regard to pretrial incarceration, Keating was held in the Missoula County
jail
for approximately thirty days while awaiting a bond hearing and before posting bond.
He does not contend that this constituted oppressive pretrial incarceration.
Moreover, it
appears that Keatingþs incarceration pending a bond hearing resulted from the
District
Courtþs order revoking an earlier bond in the pending assault and drug case, since
the
Justice Court set bond in the present case at $100,000 when it issued the arrest
warrant.
When a defendant is incarcerated on separate charges, the pretrial incarceration
does not
result in prejudice in the case at bar. Lane, 927 P.2d at 992 (citations omitted).
On this
record, Keatingþs incarceration was neither oppressive nor prejudicial.
With regard to anxiety and concern, we have recognized that a certain amount of
anxiety and concern is inherent in being charged with a criminal offense. State v.
Weeks

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(1995), 270 Mont. 63, 73, 891 P.2d 477, 483 (citation omitted). We also have
indicated
that the anxiety and concern to be assessed under the Barker test is anxiety and
concern
which was þaggravated as a result of the delay.þ Williams-Rusch, 928 P.2d at 178.
þ[S]ince it is nearly impossible for the State to prove that anxiety and concern do
not
exist, the Stateþs burden to show a lack of anxiety becomes considerably lighter in
the
absence of more than marginal evidence of anxiety.þ Williams-Rusch, 928 P.2d at 178
(citations omitted).
Here, Keatingþs argument relating to anxiety and concern focuses on bond-related
matters. He contends that the combination of the bond amount and his inability to
properly manage his Helena businesses from Butte resulted in financial difficulties
which
caused him þa great deal of anxiety and concern.þ He also contends that, as a
result of
being prohibited from entering Lewis and Clark or Jefferson County, he was separated
from his children, missed his daughterþs high school graduation and was unable to
visit
his father, who died while Keating was awaiting trial.
The first problem with Keatingþs contentions is that they relate to bond matters
rather than anxiety and concern aggravated by the delay in bringing this case to
trial. We
will not address the merits of those bond-related matters in the context of the
speedy trial
analysis.
Furthermore, the main thrust of Keatingþs anxiety and concern argument is that
the
living and travel restrictions created financial difficulties and separation from
his family.
These living and travel restrictions were suggested by Keating himself, however, to
encourage the District Court to set bond in light of what the District Court
characterized
as þbizarreþ behavior and of threats he had made to and against various people in
Lewis
and Clark and Jefferson Counties while free on bond in the assault and drug case. We
will not allow Keating to rely on bond conditions he proposed to his own benefit at
the
time they were imposed to establish anxiety and concern in the speedy trial context
where, as here, it is clear that the difficulties those conditions caused were
entirely predictable.
In addition, with specific regard to Keatingþs contentions regarding his father
and
his daughter, Keatingþs father died in January of 1996, long before any speedy trial
time
or delay problems arose in this case. Moreover, by the time of Keatingþs daughterþs
graduation, the District Court had lifted the travel restrictions on several
occasions in
response to timely motions. That Keating failed to timely request such a
modification for
purposes of his daughterþs graduation cannot constitute anxiety and concern

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aggravated
by the delay in bringing this case to trial.
Here, there is no evidence that Keating suffered excessive anxiety and concern
as
a result of the delay in bringing this case to trial. We will not hold the State to
the nearly
impossible task of proving that anxiety and concern do not exist. See Foshee, 938
P.2d
at 606.
Finally, we consider the most critical of the prejudice-related interests the
speedy
trial right was designed to protect: whether Keatingþs defense was impaired by the
delay.
See Matthews, 894 P.2d at 288. As set forth above, once the delay has been
determined
to be presumptively prejudicial, the State has the burden of rebutting the
presumption of
prejudice. Tweedy, 922 P.2d at 1138. This does not necessarily mean, however, that
the State has the burden of coming forward first. Indeed, in addressing the
impairment
of the defense interest, our recent cases indicate that the defendant ordinarily
must come
forward with some evidence that the defense was impairedþthat is, prejudicedþas a
result of the delay. See, e.g., Foshee, 938 P.2d at 605-07; Lane, 927 P.2d at 993;
Tweedy, 922 P.2d at 1139; Matthews, 894 P.2d at 288-89. From a practical standpoint,
it would be virtually impossible for the State to rebut presumed prejudice from an
allegedly impaired defense without some showing by the defendant of actual impairment
resulting in prejudice. Thus, we look first at the evidence Keating presented in
support
of his allegation that his defense was impaired by the delay in bringing his case to
trial.
Keatingþs primary thrust in this regard was that the delay resulted in the
unavailability of testimony from his father and two other witnesses to buttress his
defense
at trial that his threat was a reaction to past harassment by local law enforcement
agencies. He also contended that he could remember the events at issue only vaguely.
The record is clear, however, that Keatingþs father died prior to the original
trial
date for this case. Thus, the later trial date did not impair Keatingþs defense in
this
regard. Similarly, the alleged impairment of the defense due to the unavailability
of two
other unidentified witnesses is controverted by Keatingþs own testimony, at the
hearing
on his speedy trial motion, that approximately fifty witnesses could testify to the
harassment he allegedly experienced from local law enforcement. Absent some
indication
that the unavailable witnesses could provide unique information not obtainable from
other
witnesses, the unavailability of two witnesses out of fifty cannot constitute
prejudice.
Finally, although Keating testified that he only vaguely remembered the events

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in
question, he testified affirmatively at trial as to his purpose in making the
threat. Nor did
he deny that he made the threat on which the charge was based. While Keatingþs
memory may not have been as clear in August of 1996 as it would have been in April of
1996, he made no showing of how that impaired his defense. Taking the minimal
evidence Keating presented together with the Stateþs record-based arguments, we
conclude
that Keatingþs defense was not impaired by the delay.
In summary, although the delay itself and the reason for it weigh against the
State,
they do not weigh heavily in this case. Keatingþs delay in asserting his right,
however,
indicates his lack of an actual interest in moving the case to trial. Moreover,
Keating did
not experience either oppressive pretrial incarceration or excessive anxiety and
concern
resulting from the delay in bringing his case to trial. Nor did he make a showing of
actual impairment to his defense. Thus, while the District Court erred in
concluding that
Keatingþs motion to dismiss was untimely, a balancing of the Barker factors
necessitates
our conclusion that Keatingþs right to a speedy trial has not been violated in this
case.
We hold, therefore, that the District Court did not err in denying Keatingþs motion
to
dismiss for lack of a speedy trial.
2. Did the District Court abuse its discretion when it denied Keatingþs
motion for a directed verdict?
The State charged Keating with threats in official matters under õ 45-7-
102(1)(a)(i), MCA (1995), which provides:
(1) A person commits an offense under this section if the person purposely
or knowingly: (a)(i) threatens harm to any person . . . with the purpose to
influence the personþs decision, opinion, recommendation, vote, or other
exercise of discretion as a public servant, party official, or voter[.]
In the context of this case, it was necessary for the State to prove that Keating: 1)
purposely or knowingly 2) threatened harm to law enforcement officers 3) for the
purpose
of influencing their exercise of discretion. Keating moved for a directed verdict
at the
end of the Stateþs case, arguing that the State did not establish that his threat to
kill
officers coming on his property to serve process was made for the purpose of
influencing
an exercise of discretion. The District Court denied the motion.
A district courtþs decision to grant or deny a motion for a directed verdict
lies
within its sound discretion and will not be overturned absent an abuse of that
discretion.
State v. Romannose (Mont. 1997), 931 P.2d 1304, 1307, 54 St.Rep. 72, 73 (citation
omitted). þWe review a trial courtþs denial of a motion for a directed verdict to
determine whether, after reviewing the evidence in the light most favorable to the

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prosecution, any rational trier of fact could have found the essential elements of
the crime
beyond a reasonable doubt.þ Romannose, 931 P.2d at 1307 (citation omitted).
Keating argues that the State failed to prove two elements of the offense of
threats
in official matters. First, he contends that the deputies were not involved in a
discretionary duty when they attempted to serve him with civil process because
sheriffþs
deputies have a statutory duty to serve civil process and Rule 4D, M.R.Civ.P.,
mandates
the manner in which that duty is to be performed. Keating also argues that his
threat was
not made for the purpose of influencing an exercise of discretion. Interspersed
throughout both of his arguments is Keatingþs notion that he should have been charged
with intimidation rather than threats in official matters, and it is appropriate to
dispose
of this theory before addressing whether the District Court erred in denying the
motion
for a directed verdict.
A person commits the statutory 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[.]
Section 45-5-203(1)(a), MCA (1995). Thus, it may be true that the charge of
intimidation was available to the State in this case. The law is clear, however,
that
þwhen the facts of a case support a possible charge of more than one crime, the crime
to be charged is a matter of prosecutorial discretion.þ State v. Smaage (1996), 276
Mont. 94, 98, 915 P.2d 192, 194-95 (citation omitted); see also State v. Arlington
(1994), 265 Mont. 127, 165, 875 P.2d 307, 330 (citations omitted). As a result, the
fact
that a different offense could have been charged has no bearing on whether the State
presented evidence from which a rational trier of fact could find the elements of the
offense of threats in official matters under õ 45-7-102(1)(a)(i), MCA (1995), beyond
a
reasonable doubt. See Smaage, 915 P.2d at 195 (citation omitted).
Keatingþs primary argument is that service of process is not a discretionary
function which can serve as the basis for a charge of threats in official matters
under õ
45-7-102(1)(a)(i), MCA (1995). Notwithstanding Keatingþs repeated use of the term
þdiscretion-ary function,þ however, õ 45-7-102(1)(a)(i), MCA (1995), defining threats
in official matters, speaks to a threat made for the purpose of influencing an
þexercise
of discretionþ by a public servant; it does not speak to a þdiscretionary function.þ
Therefore, the fact that service of process is a statutory duty under õ 7-32-2121
(9), MCA
(1995), rather than a þdiscretionary function,þ does not relate to the issue of
whether
service of process involves an exercise of discretion under õ 45-7-102(1)(a)(i), MCA
(1995).

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We have defined discretion as involving þthe power of choice among several
courses of action, each of which is considered permissible.þ Sourdough v. Board of
County Comþrs (1992), 253 Mont. 325, 327, 833 P.2d 207, 208 (citation omitted). As
a result, if service of process involves þthe power of choice among several courses
of
action,þ then service of process by the sheriffþs deputies involves an exercise of
discretion
which can serve as the basis for a charge of threats in official matters.
Rule 4D, M.R.Civ.P., governs service of process in Montana. In the case of
personal service within the state, it simply requires that the person, or that
personþs
designated agent, be personally served by delivery of a copy of the summons and
complaint. Rule 4D(2)(a), M.R.Civ.P. The Rule neither requires nor prohibits
service
at any particular time or place. Under Rule 4D, then, deputies generally can
accomplish
personal service of process wherever and whenever the person to be served can be
found.
Indeed, the record in this case reflects that the Sheriffþs Department uses a
variety
of discretionary methods of serving process. On some occasions, the person to be
served
is asked to come in and pick up the process; alternatively, deputies may serve the
person
at the personþs residence or some other location. Deputy Shamley testified that he
had
served process on Keating outside the courtroom, rather than at his residence, on a
previous occasion. He also testified that a dangerous situation could cause him to
decide
not to serve civil process at a personþs residence at all. Finally, he testified
that he took
Keatingþs threat seriously in this case and, as a result, directed that a minimum of
two
officers be present when efforts were made to serve civil process on Keating.
Based on the requirements of Rule 4D, M.R.Civ.P., and Deputy Shamleyþs
testimony that discretion is exercised in determining where and when process will be
served, it is clear that service of process involves the power of choice among
several
courses of action. On that basis, we conclude that service of process involves an
þexercise of discretionþ under õ 45-7-102(1)(a)(i), MCA (1995).
Keatingþs final argument is that the State did not establish that his threat
that law
enforcement officers coming on to his property þmay be killedþ was made for the
purpose of influencing an exercise of discretion. He contends, in this regard, that
he did
not know the deputies were at his residence on the evening of November 22, 1995, to
serve him with process, so his telephone threat later that evening was not an
attempt to
influence how that service was accomplished.
Deputy Peterson testified, however, that he told Keating he þhad some papers to
serve on him.þ Deputy Shamley corroborated that testimony by testifying that he
heard

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Deputy Peterson so advise Keating. According to Deputy Peterson, Keating started
yelling when told the purpose of the deputiesþ visit, telling Deputy Peterson he was
trespassing and must leave. The deputies left without accomplishing service of
process
and Keating made his telephone threat shortly thereafter. Moreover, Keating himself
testified that, if he knew civil papers were to be served on him and the Sheriffþs
Department called him, he would go to the Sheriffþs Department to pick them up. The
evidence regarding Keatingþs awareness of the deputiesþ reason for being at his
residence,
his insistence that he would pick up any papers to be served on him at the Sheriffþs
Department, and his threat after the deputies attempted to serve him with process was
sufficient to permit the jury to infer that Keating purposely or knowingly
threatened the
deputies with the purpose to influence their exercise of discretion regarding where
and
when to accomplish service of process on him.
We conclude that, viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the
offense of threats in official matters beyond a reasonable doubt. We hold,
therefore, that
the District Court did not abuse its discretion in denying Keatingþs motion for a
directed
verdict.
Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ WILLIAM E. HUNT, SR.

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