State v. Daniels

Can You Be Convicted of Evidence Tampering in Montana If the Gun Is Never Found? State v. Daniels, 2019 MT 214

Boland Aarab PLLP

Yes, in some cases. In State v. Daniels, 2019 MT 214, a divided Montana Supreme Court (4–3) held that a jury may convict someone of tampering with evidence even though the gun was never found. That is allowed when strong circumstantial evidence shows the person had it, fled, and no longer had it when arrested. Three justices dissented, agreeing with the defense that failing to find evidence, without proof of an act of concealment, is not enough.

Key Takeaways

• Tampering under § 45-7-207(1)(a), MCA requires proof that the person believed an investigation was pending or imminent, acted to conceal evidence, and intended to impair its availability (Daniels ¶ 45).
• The “mere failure to locate evidence, without more,” is still insufficient (State v. Polak, 2018 MT 174, ¶ 37). But Daniels held that circumstantial evidence of possession, flight and a disappearance can be “more” (¶¶ 50–51).
• The case was decided 4–3. The dissent warned that the ruling effectively adds a time element to Polak and excuses police from searching (¶ 65).
• Objections not made at trial are reviewed only under the narrow plain-error doctrine (¶¶ 30–31).

In this case sheet: At a glance · What the Court held · Our position and how the Court differed · What changed · Statutes · When it applies · How hard · FAQ

The lawyers who argued this case are the lawyers who handle yours. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in State v. Daniels?

The case arose from a December 2016 cabin burglary near Wolf Creek. The cabin owners testified that Mr. Daniels pointed a handgun at the owner and fired at him (¶¶ 3–5). Deputies found five .25-caliber casings at the scene, all fired from the same gun (¶ 12). Mr. Daniels was arrested about three hours later, more than ten miles away, with no gun (¶¶ 9, 51). The gun was never recovered (¶ 15).

He was convicted of attempted deliberate homicide, aggravated burglary and tampering with evidence (¶ 22). The Supreme Court affirmed on all three issues:

1. Verdict-form note. The Court declined plain-error review of an erroneous note on the verdict form. The jury convicted on the main charge and never reached the part of the form containing the error (¶¶ 38–40).
2. Tampering. There was sufficient evidence of tampering (¶¶ 50–54).
3. Ineffective assistance. There was no prejudice from trial counsel’s failure to object or to move to dismiss the tampering count (¶ 61).

What did the defense argue, and how did the Court differ?

Our position on appeal. Relying on State v. Polak, 2018 MT 174, we argued that the State proved only two things: that Mr. Daniels had a gun at the scene, and that he did not have one when arrested. The State produced no evidence of any act of concealment. Treating a gun that was never found as proof that he hid it was speculation, and speculation cannot support a conviction beyond a reasonable doubt (¶ 48).

The majority’s view. The majority found this case different from Polak because of the amount of circumstantial evidence (¶ 50):

• eyewitnesses to the shooting;
• casings matching a gun that did not belong to the owners;
• game-camera images;
• a false name given at arrest;
• his statement that deputies were not “going to find anything”;
• ten miles of snowy, wooded ground covered in a few hours, with “innumerable opportunities” to discard the gun (¶ 51).

The majority said it applied the same standard as Polak and simply reached a different result on different evidence (¶ 53).

The dissent agreed with us. Justice Gustafson, joined by Justices McKinnon and Sandefur, wrote that the State “did not prove that Daniels committed an overt act to conceal” the pistol (¶ 63). She pointed out that officers never searched beyond a small area near the cabin and never returned after the snow melted (¶¶ 63–64). The only real difference from Polak, she wrote, was “three hours and two days.” In her view the majority “grafted on a temporal requirement” and “condoned a practice whereby law enforcement is not even required to make a search for the missing evidence” (¶ 65).

What did Daniels change in Montana law?

Daniels narrowed Polak in practice. Polak remains good law: failing to find evidence, by itself, is not tampering. But after Daniels, prosecutors can often meet the “more” requirement with circumstantial evidence of possession, flight, an opportunity to discard the item, and conduct suggesting awareness of guilt.

Because the Court split 4–3, the precise line between Polak and Daniels remains contested. Later Montana Supreme Court decisions continue to cite Daniels on circumstantial proof of tampering, including State v. Ragner (2022), State v. Kirn (2023) and State v. French (2025).

Which Montana laws and rules apply?

• § 45-7-207, MCA: tampering with or fabricating physical evidence
• § 26-1-102, MCA: definition of circumstantial evidence (¶ 44)
• § 46-16-403, MCA: motion to dismiss when the evidence is insufficient to go to the jury
• § 46-20-104 and § 46-20-701, MCA: preserving issues for appeal and plain error
• Mont. Const. art. II, § 24: rights of the accused, including effective assistance of counsel

When might Daniels apply to you?

• Something goes missing between the incident and the arrest. Examples include a phone, a weapon or drugs, where the prosecution adds a tampering count based on the item never being found.
• Flight after an incident. Time, distance and terrain between the scene and the arrest can become part of the State’s circumstantial case.
• Statements at arrest. Comments like “you won’t find anything” can be used as evidence of awareness and intent.

The defense question in each case is whether the State can point to evidence of an actual act of concealment, or only to an absence of evidence.

How hard is it to win a sufficiency-of-the-evidence appeal in Montana?

These appeals are very hard to win.

• Sufficiency of the evidence. The Supreme Court views the evidence “in the light most favorable to the prosecution” and asks whether “any rational trier of fact” could have found each element beyond a reasonable doubt (¶ 27). Credibility and the weight of evidence belong to the jury (¶ 42). A conviction may rest entirely on circumstantial evidence (¶ 43).
• Plain error. When no objection was made at trial, the Court reviews only “sparingly,” and the defendant must “firmly convince” it that review is necessary (¶¶ 30–31).
• Ineffective assistance. Claims of ineffective assistance must satisfy both parts of Strickland v. Washington: deficient performance and prejudice (¶ 57).

Daniels shows how close these cases can be. Three of seven justices would have reversed.

The practical lesson for trial lawyers is to object to verdict-form errors when they happen. It is also to move to dismiss an unsupported count under § 46-16-403 at the close of the State’s case. Both steps preserve the strongest standard of review for appeal.

The Boland Aarab Way

Boland Aarab PLLP represented Mr. Daniels on appeal. We lost the tampering issue by one vote. We publish our losses alongside our wins because they show how Montana law actually develops, and because a close dissent often becomes the argument in the next case. You can judge our work by the record itself. When you hire Boland Aarab for a serious trucking or injury case, you get the same attorneys and the same preparation.

Frequently Asked Questions

Is it tampering in Montana if police just can’t find the evidence? Not by itself. The Montana Supreme Court has said the “mere failure to locate evidence, without more,” is insufficient (Polak ¶ 37). But after Daniels, strong circumstantial evidence may be enough.

What does the State have to prove for tampering with evidence in Montana? That the person believed an investigation was pending or about to begin, acted to conceal or remove evidence, and intended to impair its availability (Daniels ¶ 45; § 45-7-207(1)(a), MCA).

What is plain-error review? It is a narrow exception that lets the Montana Supreme Court review an error nobody objected to at trial, but only when a fundamental right is at stake and the defendant firmly convinces the Court that review is needed (Daniels ¶¶ 30–31).

Work With the Lawyers Behind These Cases

Boland Aarab is a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• State v. Daniels, 2019 MT 214 (official opinion)
• § 45-7-207, MCA
• § 26-1-102, MCA
• § 46-16-403, MCA
• § 46-20-104, MCA
• § 46-20-701, MCA
• Mont. Const. art. II, § 24

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.