February 13 2008
DA 07-0182
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 53N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SHIRLEY RICHEY BLOME,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 2005-0733
Honorable Ingrid Gustafson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, David Carter, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: February 6, 2008
Decided: February 13, 2008
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Shirley Richey Blome (Blome) appeals from her jury conviction of Theft by
Embezzlement, a felony, in violation of § 45-6-301(7) and (8)(c), MCA, and Forgery,
Common Scheme, a felony, in violation of §§ 45-6-325 and 45-2-101(8), MCA.
¶3 On appeal, Blome raises two issues: (1) did prosecutorial misconduct prevent a
fair trial, and (2) did the introduction of the videotape of Blome providing a statement
violate the court’s orders in limine?
¶4 Blome was a bookkeeper for Willard’s Garage, an automotive repair shop. She
was charged with embezzlement and forging documents while working for Willard’s
Garage. As to her first issue she contends that the prosecution spent the entire
examination using leading questions and asking for opinion evidence as to who was more
credible and who the alleged victim believed was guilty. The State counters, noting that
Blome did not object to any of the prosecutor’s questions of which she now complains.
Section 46-20-104(2), MCA, bars appellate review of alleged errors not objected to at
trial, absent specific exceptions set out at § 46-20-701(2)(a)-(c), MCA, none of which are
at issue here. We have previously declined to review claims of prosecutorial misconduct
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not objected to at trial. See State v. Ogle, 255 Mont. 246, 250-51, 841 P.2d 1133, 1135-
36 (1992); State v. Raugust, 2000 MT 146, ¶¶ 35-36, 300 Mont. 54, ¶¶ 35-36, 3 P.3d 115,
¶¶ 35-36.
¶5 As to her second issue, Blome argues that the District Court erred by playing and
admitting her videotaped statement in violation of the court’s order in limine prohibiting
the State from mentioning that Blome was the subject of an Internal Revenue Service
investigation. The State points out, however, that prior to the commencement of the trial,
the parties met with the court in chambers. There, Blome’s counsel informed the court
that he believed that the tape was admissible and that the tape itself was not included in
his motion in limine. We will not put a district court in error for action in which the
appealing party acquiesced or actively participated. State v. Gray, 2004 MT 347, ¶ 20,
324 Mont. 334, ¶ 20, 102 P.3d 1255, ¶ 20 (citation omitted). Moreover, we have also
held that acquiescence in error takes away the right of objecting to it. State v. Gardner,
2003 MT 338 ¶ 44, 318 Mont. 436, ¶ 44, 80 P.3d 1262, ¶ 44, cert. denied, 541 U.S. 1034,
124 S. Ct. 2105 (2004).
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and on the record before
us that the appeal is without merit—defendant waived her objection to her claim of
prosecutorial misconduct by failing to object and she waived her claim of error in the
admission of the videotape because her counsel agreed that it was admissible. The legal
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issues here are clearly controlled by settled Montana law. Therefore, we affirm Blome’s
convictions in this case.
¶7 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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