State v. Anderson

                                                                                              February 2 2010


                                           DA 09-0160

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2010 MT 17N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL JEFFREY ANDERSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC 2007-089C
                        Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Joslyn Hunt, Chief Appellant Defender, Jim Wheelis, Assistant Appellate
                        Defender, Helena, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Deputy
                        County Attorney, Bozeman, Montana



                                                    Submitted on Briefs: January 20, 2010

                                                                Decided: February 2, 2010


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter 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 2006, 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     Michael Jeffrey Anderson (Anderson) appeals from his conviction for felony

assault with a weapon, misdemeanor assault, and misdemeanor partner family member

assault. Anderson also appeals from the imposition of a probation condition which

prohibited him from using alcohol or entering establishments where alcohol is the chief

item of sale. The State concedes on appeal that the District Court erred in imposing this

probation condition on Anderson, and agrees this probation condition should be stricken.

Accordingly, we remand Anderson’s sentence to the District Court to strike the alcohol

prohibition. Otherwise, we affirm Anderson’s conviction.

¶3     At trial, Anderson sought to introduce transcripts of interviews of Anderson

conducted by law enforcement officers. Certain portions of these transcripts had been

redacted, although the transcripts themselves were referred to numerous times at trial.

Anderson sought admission of the entire transcripts, arguing they were not hearsay under

M. R. Evid. 801(d)(2), the “admissions by a party opponent” exception to the hearsay

rule. The District Court denied the admission of the transcripts.




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¶4     On appeal, Anderson argues the District Court abused its discretion in denying the

admission of the transcripts. However, Anderson does not argue that the transcripts are

admissible under M. R. Evid. 801(d)(2). Instead, he raises an entirely new argument for

the first time on appeal, and claims the transcripts are admissible under M. R. Evid. 106.

¶5     In its response brief, the State points out that this argument is being raised for the

first time on appeal, and argues this Court should decline to consider it. Anderson filed

no reply brief.

¶6     We have repeatedly held that we will generally not consider arguments raised for

the first time on appeal, because it is fundamentally unfair to fault the district court on an

issue it was never given an opportunity to consider. State v. Dewitz, 2009 MT 202, ¶ 30,

351 Mont. 182, 212 P.3d 1040 (citing State v. Peterson, 2002 MT 65, ¶ 24, 309 Mont.

199, 44 P.3d 499). An exception to this general rule is found under the doctrine of “plain

error” review. See State v. Rovin, 2009 MT 16, ¶ 29, 349 Mont. 57, 201 P.3d 780.

Anderson has not argued for the applicability of the plain error doctrine in this case.

Accordingly, we decline to further consider Anderson’s challenge to the District Court’s

decision denying the admission of the transcripts.

¶7     We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)

of our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the record before us that the District Court did

not abuse its discretion in denying Anderson’s admission of the transcripts under

M. R. Evid. 801(d)(2).     Therefore, we affirm Anderson’s conviction.         However, we

conclude the District Court erred in imposing the alcohol prohibition as a condition of


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Anderson’s probation, and remand this matter to the District Court to strike this condition

from his sentence.


                                                       /S/ PATRICIA O. COTTER

We concur:

/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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