May 22 2012
DA 11-0512
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 112N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
WENDY KRUSE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDC-10-422
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joseph P. Howard, Attorney at Law, Great Falls, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy K Plubell, Assistant
Attorney General, Helena, Montana
Joel Thompson, Special Deputy Cascade County Attorney, Helena, Montana
Submitted on Briefs: April 17, 2012
Decided: May 22, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, 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 Wendy Kruse (Kruse) appeals a sentencing order entered by the Eighth Judicial
District, Cascade County, after Kruse was found guilty by a jury of tampering with evidence.
¶3 On November 23, 2010, Bradley, Kruse’s husband, was sentenced to prison after
having pled guilty to a charge of incest because he had sexually abused his stepdaughter and
Kruse’s daughter, K.M. During the investigation of this crime, the Cascade County Sheriff’s
office interviewed K.M. and her two siblings. K.M. described how Bradley would watch
pornographic DVD movies with his stepchildren. During these viewings, Bradley was naked
and sexually aroused. K.M. stated the DVDs were stored in a cabinet next to a pink recliner
in the living room. K.M.’s older sister confirmed there were pornographic DVDs in the
home. Bradley also had two large pornographic posters in his bedroom, and there were
stacks of pornographic magazines in the bedroom shared by K.M. and her sister.
¶4 Based on this information, Deputy Antonich, of the Cascade County Sheriff’s Office,
obtained a search warrant for the Kruse residence. When deputies executed the search
warrant, the interior of the home was exactly as K.M. and her sisters had described it,
including a cabinet next to a pink recliner. The deputies, however, did not find any
pornographic movies, posters or magazines, except for one Playboy in Bradley’s bedroom.
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¶5 When the deputies did not find any of the pornographic materials, Deputy Antonich
became concerned and decided to interview Kruse. Deputy Antonich interviewed Kruse for
the first time on October 10, 2008. During this interview Kruse stated that she and her
husband did not have any pornography, but that they may have rented a movie or two in the
past.
¶6 Because Kruse was adamant that there were no pornographic materials at the family
home, Deputy Antonich decided to interview the girls a second time. The girls maintained
there was pornographic material in the home consistent with their initial interviews. Deputy
Antonich then interviewed Kruse a second time, and she admitted that she had burned the
pornographic DVDs and posters, and gotten rid of the pornographic magazines.
¶7 As a result of her actions, Kruse was charged on November 9, 2010, with tampering
with evidence in violation of § 45-7-207, MCA. Kruse pled not guilty and proceeded to a
jury trial on May 2, 2011, where she was found guilty. Kruse was sentenced on July 6, 2011,
to ten years at the Montana State Women’s Prison, the maximum allowable.
¶8 In reaching its decision to impose the maximum penalty, the District Court considered
a letter from K.M. advocating her mother receive the maximum sentence, testimony from
K.M.’s aunt and natural father, the correctional and sentencing policies for the State of
Montana, and all of the information contained within the presentence investigation report
(PSI). The PSI showed that Kruse had no significant criminal history. Kruse did not call
any witnesses and chose not to make a statement. The court also acknowledged that it had
alternatives to a prison sentence. Considering this information, the District Court judge
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described Kruse’s actions as the most egregious tampering with physical evidence she had
ever seen in thirty years of experience in the court system and sentenced Kruse to the
maximum allowable.
¶9 Kruse appeals her sentence because she believes the District Court failed to take into
account alternatives to prison as required by § 46-18-225, MCA. Kruse, however, failed to
object to her imprisonment based on the court’s failure to consider sentencing alternatives
pursuant to § 46-18-225, MCA.
¶10 It is well established that on direct appeal the appellant is limited to those issues that
were properly preserved in the district court. In re K.M.G., 2010 MT 81, ¶ 36, 356 Mont. 91,
229 P.3d 1227; State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892; State v.
Swoboda, 276 Mont. 479, 481, 918 P.2d 296, 298 (1996); State v. Nelson, 274 Mont. 11, 16,
906 P.2d 663, 666 (1995). An exception to this general rule is that an appellate court may
review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or
exceeds statutory mandates, even if no objection is made at the time of sentencing. Kotwicki,
¶ 8 (citing State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979).
¶11 Both Nelson and Swoboda involved situations where, as here, the trial court failed to
consider alternatives as required by § 46-18-225, MCA, before imposing a prison sentence
on a nonviolent offender. Nelson, 274 Mont. at 17, 906 P.2d at 665; Swoboda, 276 Mont. at
480-81, 918 P.2d at 297. In each case, the defendant failed to object to the court’s error at
the sentencing hearing, yet challenged their sentence on appeal as illegal because it failed to
consider sentences alternative to prison. Nelson, 274 Mont. at 17-18, 906 P.2d at 668;
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Swoboda, 276 Mont. at 482, 918 P.2d at 298. In both cases, we held that the court, after
considering the requirements of § 46-18-225, MCA, legally could have sentenced Nelson
and Swoboda to prison, thus the sentences failed to meet the illegality requirement or exceed
statutory mandates. Nelson, 274 Mont. at 20, 906 P.2d at 668; Swoboda, 276 Mont. at 482,
918 P.2d at 298.
¶12 Accordingly, as in Nelson and Swoboda, Kruse’s failure to object to the District
Court’s failure to consider alternatives resulted in a waiver of her right to challenge her
sentence for that reason on appeal, and we will not review her sentence unless it is illegal or
exceeds statutory mandates. Kruse’s sentence, however, is neither illegal nor does it exceed
statutory authority. Although § 46-18-225, MCA, requires consideration of alternatives to
imprisonment, such consideration would not have necessarily changed the court’s final
sentence for Kruse. Kruse’s sentence of ten years is not in excess of the maximum
statutorily authorized by § 45-7-207(2), MCA.
¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions.
¶14 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
5
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JIM RICE
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State v. Kruse
Combined Opinion