No. 96-036 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

JOSEPH MONACO, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Suzanne C. Smith, Douglas W. Marshall; 

Marshall & Smith, Bozeman, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

John Paulson, Ass't Attorney General, 

Helena, Montana 

A. Michael Salvagni, Gallatin County Attorney, 

Jane Mersen, Deputy County Attorney, 

Bozeman. Montana 

Filed: 

Submitted on Briefs: June 4, 1996 

Decided: July 8, 1996 
Justice W. William Leaphart delivered the Opinion of the Court. 

Joseph Monaco (Monaco) appeals from the sentence and judgment 

of the Eighteenth Judicial District Court, Gallatin County, entered 

on a jury verdict convicting him of felony theft. We affirm. 

Monaco raises the following issues on appeal: 

1. Did the District Court abuse its discretion in allowing 

the prosecuting attorney to testify relating to the defendant's 

statements at a deposition? 

2. Did the District Court err in denying defendant's motion 

to exclude evidence relating to defendant's prior acts? 

Monaco was employed by Hargrove Trucking of Bozeman, Montana, 

as a log-truck driver. On July 5, 1990, Monaco was hauling logs 

from a job-site near Augusta, Montana. En route, he received a 

call on his radio from Bob Piper, a Hargrove employee, requesting 

that Monaco pick up, and attach, a trailer to his truck in Augusta 

on his way to the job-site. Monaco asserts that he did not have 

the proper equipment to pick up the trailer but that he was 

directed to do so or risk losing his job. Monaco claims that he 

attempted to hitch up the trailer to his truck and, in so doing, 

injured his back. 

Monaco filed a claim with the State Mutual Compensation 

Insurance Fund (State Fund). State Fund accepted the claim and, in 

all, paid Monaco $22,116.36 in benefits. On August 12, 1994, 

Monaco was charged with felony theft in violation of §§ 45-6 

301(5)(b) and 45-6-301(7) (b), MCA. The information alleged that 

during the period between the alleged accident on July 5, 1990 and 

December of 1991, Monaco purposely or knowingly obtained or exerted 

2 
unauthorized control over benefits from the State Fund by means of 

deception or other fraudulent action. Trial commenced on September 

18, 1995 and the jury returned a guilty verdict on September 22, 

1995. Additional facts will be set forth as necessary for our 

resolution of the issues. 

1. Did the District Court abuse its discretion in allowing 

the prosecuting attorney to testify relating to the defendant's 

statements at a deposition? 

Monaco asserts that the District Court abused its discretion 

in allowing Assistant Attorney General and Special Deputy County 

Attorney Elizabeth Horsman-Wiitala, to testify as to statements 

made by Monaco in his deposition given in related civil proceedings 

before the Workers' Compensation Court. Horsman-Wiitala was 

previously counsel for State Fund and was present at Monaco's 

deposition. By the time of the criminal trial, however, the 

certified copy of the deposition had been lost and the District 

Court ruled that Horsman-Wiitala could testify regarding Monaco's 

deposition testimony that he had no prior industrial injuries. 

Although the court initially stated that Horsman-Wiitala's 

testimony would be "foundational" only, the court then instructed 

the jury that "she's going to testify as to the deposition and the 

contents thereof." Thus, Monaco's counsel was on notice that the 

contents of the deposition would be before the jury through 

Horsman-Wiitala's testimony. 

At trial, Monaco's objection to Horsman-Wiitala's testimony 

was directed to the question of whether Monaco had reviewed and 

signed his deposition and to the question of "whether or not 

3 
[Horsman-Wiitalal has an interest in the outcome of this case." In 

cross-examiningHorsman-Wiitala, Monaco's counsel focusedprimarily 

on whether Monaco had signed the deposition. Monaco did not 

present the District Court with the argument that Horsman-Wiitala's 

testimony should not have been admitted or that she, having become 

a witness, should not have been allowed to continue prosecuting the 

case. Monaco raises these arguments for the first time on appeal. 

In fact, the inquiry into whether Horsman-Wiitala would be 

disqualified from continuing to prosecute the case after she 

testified was raised solely by the deputy county attorney assisting 

Horsman-Wiitala 

This Court has consistently held that the failure to object 

constitutes a waiver of the objection pursuant to § 46-20-104, MCA, 

unless the circumstances come within an exception found at § 46-20- 

701(2), MCA. State v. Riley (1995), 270 Mont. 436, 439, 893 P.2d 

310, 313 (citing State v. Arlington (1994), 265 Mont. 127, 158, 875 

P.2d 307, 326); State v. Stuit (1994), 268 Mont. 176, 182, 885 P.2~7 

1290, 1294. Section 46-20-104(2), MCA, provides: 

(2) Upon appeal from a judgment, the court may 

review the verdict or decision and any alleged error 

objected to which involves the merits or necessarily 

affects the judgment. Failure to make a timely objection 

during trial constitutes a waiver of the objection except 

as provided in 46-20-701(Z). [Emphasis added.] 

Section 46-20-701(2), MCA, provides: 

(2) Any error, defect, irregularity, or variance 

which does not affect substantial rights shall be 

disregarded. No claim alleging an error affecting 

jurisdictional or constitutional rights may be noticed on 

appeal, if the alleged error was not objected to as 

provided in 46-20-104, unless the defendant [convicted 

person] establishes that the error was prejudicial as to 

4 
his guilt or punishment and that: 

(a) the right asserted in the claim did not exist 

at the time of the trial and has been determined to be 

retroactive in its application; 

(b) the prosecutor, the judge, or a law enforcement 

agency suppressed evidence from the defendant [convicted 

person] or his attorney that prevented the claim from 

being raised and disposed of; or 

Cc) material and controlling facts upon which the 

claim is predicated were not known to the defendant 

[convicted person1 or his attorney and could not have 

been ascertained by the exercise of reasonable diligence. 

In the instant case, the record does not suggest, nor does 

Monaco argue, that any of the exceptions enumerated in § 46-20- 

701(2), MCA, apply. Rather, Monaco invites this Court to invoke 

the "plain error" exception to § 46-20-104, MCA. See, e.s.. State 

v. Finley (Mont. 1996), 915 P.2d 208, 212, 53 St.Rep. 310, 312. We 

decline Monaco's invitation. 

Although we recently held that the doctrine of common law 

plain error review continues to survive despite the existence of 

Montana's plain error statute, this appeal does not represent the 

exceptional case necessary to invoke the plain error doctrine. 

Finley, 915 P.2d at 215 (citing Arlington, 875 P.2d at 322). In 

Finlev, we discussed the background and application of the common 

law doctrine of plain error as well as the statutory requirements 

of § 46-20-701(2), MCA. In Finlev, we held that: 

this Court may discretionarily review claimed errors that 

implicate a criminal defendant's fundamental 

constitutional rights, even if no contemporaneous 

objection is made and notwithstanding the inapplicability 

of the § 46-20-701(2), MCA, criteria, where failing to 

review the claimed error at issue may result in a 

manifest miscarriage of justice, may leave unsettled the 

question of the fundamental fairness of the trial or 

proceedings, or may compromise the integrity of the 

judicial process. 

5 
Finlev, 915 P.2d at 215. 

Here, the District Court's determination that Horsman-Wiitala 

could testify as to Monaco's deposition statement that he had had 

no prior industrial injuries does not rise to the level of a 

manifest miscarriage of justice, will not leave unsettled the 

question of the fundamental fairness of the trial or proceedings, 

nor will it compromise the integrity of the judicial process. See 

Finlev, 915 P.2d at 215. Accordingly, we determine that Monaco's 

failure to make a contemporaneous objection precludes this Court 

from addressing this argument. Section 46-20-104(2), MCA; Riley, 

893 P.2d at 313; Stuit, 885 P.2d at 1294; Arlinoton, 875 P.2d at 

325-26. 

In addition, we note that Monaco's false statement in the 

deposition that he had never filed a prior claim would have been 

before the jury in any event. Even if Horsman-Wiitala had been 

precluded from testifying as to the contents of the deposition, her 

testimony laid the foundation for another witness, the State's 

investigator, to rely on the contents of the deposition which were 

part of his investigation file. Monaco raised no substantive 

objection to Horsman-Wiitala's characterization of his deposition 

testimony. Horsman-Wiitala's testimony accurately reflected 

Monaco's statement. Thus, Monaco was not prejudiced by HorsmanWiitala's testimony and any error by the District Court in allowing 

her testimony would have been harmless under the facts of this 

case. See Arlincrton, 875 P.2d at 325. 

2. Did the District Court err in denying defendant's motion 

to exclude evidence relating to defendant's prior acts? 

6 
In reviewing evidentiary rulings of the district court, we 

determine whether the district court abused its discretion. State 

v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The 

determination of whether evidence is relevant and admissible is 

left to the sound discretion of the trial judge and will not be 

overturned absent a showing of abuse of discretion. State v. 

Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; Gollehon, 

864 P.2d at 1263. 

In filling out his State Fund claim, Monaco stated that he had 

not made any prior claims. As the State correctly notes, it was 

required to establish the existence of the prior claims in order to 

show that Monaco's statement was false and, therefore, that Monaco 

committed theft by deception. Monaco asserts that the District 

Court abused its discretion when it denied his motion to exclude 

evidence relating to allegedly fraudulent workers' compensation 

claims he filed in Florida and Wyoming. Monaco argues that the 

court, in allowing evidence that he filed prior claims and 

excluding all evidence of the details of the claims unless he 

attempted to explain them away, "left the door open for the 

remaining Florida and Wyoming evidence to become admissible if 

[Monaco] attempted to cross examine. . . .I' According to Monaco, 

the court's ruling had the effect of denying him his Sixth 

Amendment right to cross-examination. Monaco argues that if he 

were to cross-examine witnesses regarding the filing of the Florida 

and Wyoming claims, then, through the State's anticipated rebuttal, 

specific details of those claims would be before the jury. 

7 
The State counters that the District Court properly limited 

the evidence to the filing of the Florida and Wyoming claims either 

as part of the corpus delicti of the charge of theft by deception 

or, alternatively, as evidence of other acts under Rule 404(b), 

M.R.Evid. Further, the State asserts that if Monaco "opened the 

door" to the substance of the prior claims the State would be 

allowed to refute that testimony. We agree. 

In State v. Hage (1993), 258 Mont. 498, 506, 853 P.2d 1251, 

1256, this Court noted that the State is entitled to present the 

entire corpus delicti of the crime charged, including matters 

closely related to the offense and explanatory of the crime. 

Establishing the fact that Monaco had previously filed claims in 

Florida and Wyoming was essential to show that Monaco lied to State 

Fund when he stated that he had not filed prior claims. Therefore, 

the evidence of previous claims having been filed was properly 

admitted as part of the corpus delicti of the crime of fraud by 

deception; accordingly, we need not address Monaco's argument that 

the evidence should have been excluded as "other crimes" evidence 

under Rule 404(b), M.R.Evid., State v. Matt (1991), 249 Mont. 136, 

814 P.2d 52, and State v. Just (1979), 184 Mont. 262, 602 P.2d 957. 

We hold that the evidence was admissible as part of the corpus 

delicti and that the District Court did not abuse its discretion in 

denying Monaco's motion to exclude evidence of the prior claims. 

Affirmed. 
We concur: 

9 
CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Suzanne C. Smith, Esq.; Douglas W. Marshall, Esq. 

Marshall & Smith 

113 South 19th Avenue 

Bozeman MT 59715 

Hon. Joseph P. Mazurek, Attorney General 

John Paulson, Assistant 

215 N. Sanders 

Helena MT 59620 

A. Michael Salvagni, County Attorney 

Jane Mersen, Deputy County Attorney 

615 South 16th Street 

Bozeman MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA