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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