No Lesser-Included: Destruction of a Communication Device Is Not a Lesser-Included Offense of Evidence Tampering

Case: State v. Taylor Jean Carlson, 2025 MT 245 (Mont. Oct. 28, 2025)

Court: Supreme Court of Montana

Author: Justice Jim Rice (majority); Justice Laurie McKinnon (dissent)

Introduction

In State v. Carlson, the Montana Supreme Court addressed whether the misdemeanor offense of Criminal Destruction of or Tampering with a Communication Device (§ 45-6-105, MCA) is a lesser-included offense of the felony Tampering with or Fabricating Physical Evidence (§ 45-7-207(1)(a), MCA). The case arose from a domestic dispute in which the defendant destroyed her ex-boyfriend’s cell phone after he stated he would record her conduct. The jury convicted the defendant of felony evidence tampering and misdemeanor Partner or Family Member Assault (PFMA). On appeal, the defendant challenged the trial court’s refusal to instruct the jury on the communication-device statute as a lesser-included offense.

The key issue was purely legal: do the statutory elements of § 45-6-105 fall within the “same or less than all” of the elements of § 45-7-207(1)(a), such that a lesser-included instruction was available? The Court said no. Emphasizing differences in the target conduct and mental purpose of each statute—what the majority described as “preemptive” obstruction of reporting versus “reactive” spoliation of evidence—the Court affirmed the trial court’s denial of the requested instruction.

Summary of the Opinion

• Holding: Criminal Destruction of or Tampering with a Communication Device (§ 45-6-105, MCA) is not a lesser-included offense of Tampering with or Fabricating Physical Evidence (§ 45-7-207(1)(a), MCA). The elements differ in material ways, particularly in the specific purpose each statute requires.
• Rationale:
  • Evidence tampering criminalizes altering, destroying, or concealing a “record, document, or thing” with the purpose of impairing its verity or availability in an official proceeding or investigation believed to be pending or about to be instituted.
  • Destruction or tampering with a communication device criminalizes making a phone or communication device unusable or unavailable with the purpose of obstructing, preventing, or interfering with reports to law enforcement (or emergency medical assistance).
  • Even though a phone can be a “thing,” the statutes diverge on purpose: the first focuses on spoliation of evidence in relation to proceedings; the second on preventing communication/reporting—an element not found in § 45-7-207(1)(a).
  • The Court relied on State v. Denny for the principle that substantial overlap in proof does not make one offense a lesser-included of another when each contains distinct elements, including distinct intent requirements.
• Disposition: The district court’s refusal to give the lesser-included instruction was affirmed because § 45-6-105 is not a lesser-included offense as a matter of law. Having so held, the Supreme Court did not reach whether the trial evidence would have supported the instruction.

Factual and Procedural Background

After attending a wedding with her ex-boyfriend, Shane Dalke, Taylor Carlson returned to Dalke’s home during a late-night dispute. Dalke, who works in security, said he intended to record Carlson because of her “state of mind.” After he announced this intention, an altercation ensued. Carlson tried to seize Dalke’s phone, offered to delete the recording if given the passcode, and eventually threw the phone onto concrete multiple times, rendering it inoperable. Dalke ultimately had to run several blocks to call the police from a friend’s phone.

The State charged Carlson with misdemeanor PFMA and felony evidence tampering. Police could not retrieve any data from the destroyed phone. At trial, the defense requested a lesser-included instruction on § 45-6-105 (destruction/tampering with a communication device), arguing that destruction of a phone used for recording is necessarily encompassed within the evidence tampering statute. The district court denied the request, reasoning that the proposed lesser offense contained an element not in the charged offense. The jury convicted on PFMA and felony tampering. Carlson appealed the denial of the lesser-included instruction.

Detailed Analysis

Precedents Cited and Their Influence

• State v. Avidiya, 2025 MT 31; State v. Freiburg, 2018 MT 145:
  The Court reiterated the two-part framework for lesser-included instructions:
  1. As a matter of law, the proposed offense must truly be a lesser-included of the charged offense.
  2. If so, the instruction must be supported by the trial evidence.
  The Court here resolved the case on the first, legal step and therefore did not reach step two.
• State v. Ohl, 2022 MT 241; State v. Craft, 2023 MT 129:
  Standards of review: de novo for whether an offense legally qualifies as lesser-included; abuse of discretion for the refusal to instruct, once legal eligibility is established. The Court proceeded de novo and found no legal eligibility.
• State v. Jay, 2013 MT 79; State v. Molenda, 2010 MT 215:
  “Facts” in the lesser-included statute means elements, not case-specific evidence. This was crucial: the Court compared statutory elements, not the narrative facts of the altercation, to decide whether § 45-6-105 nests inside § 45-7-207(1)(a).
• State v. Denny, 2021 MT 104:
  The cornerstone analogy. Denny held that unauthorized use of a vehicle is not a lesser-included of theft by possession of stolen property, even though the “subject property” can overlap, because the offenses diverge on intent and other elements. Key takeaways applied here:
  • Substantial overlap in proof does not suffice for lesser-included status.
  • Differences in intent and unique elements are dispositive.
• State v. Castle, 285 Mont. 363 (1997) (and Blockburger v. United States referenced in dissent):
  Castle is often cited for the two-step lesser-included analysis and the policy rationale for giving lesser-included instructions when warranted. The dissent leaned on Castle and Blockburger’s focus on whether one offense is established by the same or fewer elements than the other.

Element-by-Element Reasoning

The majority distilled a clear elements-based distinction. Consider the core elements of each statute:

• Evidence Tampering (§ 45-7-207(1)(a), MCA) requires:
  • Belief that an official proceeding or investigation is pending or about to be instituted; and
  • Altering, destroying, concealing, or removing any “record, document, or thing”;
  • With the purpose of impairing the verity or availability of that material in the proceeding or investigation.
• Destruction/Tampering with a Communication Device (§ 45-6-105, MCA) requires:
  • Purposely or knowingly destroying or tampering with a telephone or other communication device;
  • With the purpose to obstruct, prevent, or interfere with:
    • a report to law enforcement of a criminal offense, or of bodily injury/property damage, or
    • a request for emergency medical assistance.

Overlap exists because a phone is plainly a “thing” and destroying it can impair its availability. But overlap ends there. The respective purposes sharply diverge:

• Evidence tampering targets spoliation—impairing the verity or availability of material for use in an official proceeding/investigation.
• Communication-device destruction targets preemptive obstruction—making the device unusable for communication to law enforcement or emergency services.

The majority characterized this as “reactive” (tampering with existing or potential evidence for a proceeding) versus “preemptive” (stopping a report from happening). Importantly, the Court underscored that even a high degree of factual overlap is not enough when each offense contains an element the other does not—here, the communication-specific “reporting” purpose in § 45-6-105. That single distinct element prevents § 45-6-105 from being established by “the same or less than all” of the elements of § 45-7-207(1)(a).

The Court also observed a functional difference: the communication-device statute criminalizes thwarting a device’s primary communicative function. The tampering statute criminalizes impairing the accuracy or availability of material in relation to a proceeding. While a destroyed phone can be both a thwarted communications device and a destroyed piece of evidence, the statutes regulate distinct harms and require distinct mental aims.

The Dissent’s Counterpoint

Justice McKinnon dissented, disputing the majority’s “preemptive versus reactive” split and the suggestion that the tampering statute requires “preexisting evidence.” She emphasized:

• Both statutes revolve around impairing availability: one for a legal process; the other for reporting to law enforcement. The statutory language does not expressly divide intents into preemptive or reactive categories.
• The term “thing” in the tampering statute includes a “device,” and “impairing availability” mirrors “obstruct, prevent, or interfere.” Thus, in her view, the elements align such that the communication-device offense is established by the same or fewer elements than tampering.
• Relying on Denny is inapposite because in Denny the theft statute required an intent to deprive and “stolen” status—elements absent from unauthorized use—whereas here, the intents are, she argues, compatible.
• On the evidence, the jury could reasonably have convicted on the lesser offense, and the failure to instruct risked the unfair “all or nothing” choice Castle warns against.

The dissent would reverse and remand for a new trial with a lesser-included instruction.

Standards of Review and Procedural Posture

• Legal question (lesser-included as a matter of law): Reviewed de novo. The Court found § 45-6-105 not a lesser-included of § 45-7-207(1)(a).
• Discretionary question (whether to give the instruction): Reviewed for abuse of discretion only if the legal prong is met. Because the legal prong failed, the Court did not reach the evidentiary sufficiency prong.

Impact and Implications

1) Clarifies the elements-based boundary for lesser-included instructions

Carlson reinforces that courts must compare statutory elements—not case facts—when deciding lesser-included instructions. Even substantial factual overlap (destroying a phone that may both contain evidence and enable reporting) does not suffice if the statutes contain distinct elements, particularly different mental purposes.

2) Distinct harms and prosecutorial charging

The decision spotlights two different societal harms addressed by the statutes:

• Spoliation harm (tampering): Impairing the verity/availability of materials that would inform an official proceeding/investigation.
• Communication harm (device destruction): Obstructing communication to law enforcement or emergency services.

Prosecutors can frame charges based on which harm and intent the facts best show. Where evidence shows an accused destroyed a phone to eliminate recordings or data relevant to a likely investigation, tampering may be the better fit. Where evidence shows interference with 911 calls or police reports, § 45-6-105 is apt. Carlson confirms these are not nested; they are alternative (and in some cases potentially cumulative) avenues, subject to double jeopardy and legislative-intent analyses not addressed here.

3) Defense strategy on lesser-included requests

Defense counsel cannot secure a misdemeanor fallback under § 45-6-105 as a lesser-included to tampering merely because a phone was destroyed. Counsel must identify a lesser offense whose elements are truly a subset of the charged offense. After Carlson, the communication-device statute will not qualify as a lesser-included to evidence tampering in Montana.

4) Guidance for trial courts

Trial judges should decide the legal prong first. If the proposed lesser offense contains any element not included in the greater offense—including a different specific intent—the inquiry ends, and no instruction should be given. Carlson provides a clear template for that analysis.

5) Digital evidence and domestic-violence contexts

In disputes involving cell phones, Carlson urges careful attention to the defendant’s purpose:

• If the aim is to destroy or conceal recorded content or other data in anticipation of an official inquiry, tampering is implicated.
• If the aim is to prevent a 911 call or a report to law enforcement or to block emergency aid, § 45-6-105 is implicated.

The majority’s articulation helps refine charging decisions in cases where a phone functions simultaneously as an evidence container and a communication device.

Complex Concepts Simplified

• Lesser-Included Offense: A crime whose elements are fully contained within another crime’s elements. If every element of Crime B is necessarily proven when proving Crime A, B is “lesser-included” in A.
• Elements vs. Facts: Courts compare statutory requirements (elements), not case narratives. Overlapping evidence is irrelevant unless the statutory elements align.
• Specific Intent/Purpose: Some crimes require proof the defendant acted with a particular objective (e.g., to impair availability in a proceeding; to obstruct a report). Different intents = different elements.
• Spoliation: Destroying or altering materials to prevent their use as evidence. Evidence tampering is the criminal-law expression of spoliation.
• Blockburger Test (as referenced in dissent): A way to determine whether one offense is included in another by asking whether each requires proof of a fact the other does not. If so, they are distinct offenses.

Key Takeaways

• In Montana, § 45-6-105 (destruction/tampering with a communication device) is not a lesser-included offense of § 45-7-207(1)(a) (evidence tampering).
• Overlap in proof is insufficient; distinct intent elements foreclose lesser-included status.
• Courts must conduct an elements-only comparison before considering evidentiary support for a lesser-included instruction.
• For prosecutors, Carlson supports treating the two statutes as regulating different wrongs—spoliation versus obstruction of reporting—and charging accordingly.
• For defense counsel, requests for lesser-included instructions must be grounded in true element-by-element nesting, not fact-pattern similarities.

Conclusion

State v. Carlson meaningfully clarifies Montana’s lesser-included offense doctrine as applied to two frequently implicated statutes in modern criminal practice: evidence tampering and destruction/tampering with communication devices. By anchoring its analysis in distinct statutory purposes—impairment of evidentiary verity/availability versus obstruction of reporting—the Court held that § 45-6-105 does not nest within § 45-7-207(1)(a). The ruling strengthens the elements-only methodology for lesser-included inquiries and provides practical guidance for charging and instructing in cases involving cell phones that double as repositories of potential evidence and as lifelines for emergency communication. While the dissent persuasively argues that the intents are compatible and the instruction should have been given, the majority’s opinion now draws a salient doctrinal line: similar facts are not enough; the elements must match. On that basis, the conviction and the trial court’s refusal to give the requested lesser-included instruction were affirmed.