No. 96-036 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

STATEOFMONTANA,

Plaintiff andRespondent,
v. JOSEPHMONACO,

Defendant andAppellant.

APPEALFROM: District Court of the Eighteenth Judicial District,

In andfor the County of Gallatin, The Honorable ThomasOlson, Judge presiding.

COUNSELOFRECORD:

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, 1996Justice W.William Leaphart delivered the Opinion of the Court.

Joseph Monaco (Monaco) appeals from the sentence andjudgment of the Eighteenth Judicial District Court, Gallatin County, entered
on ajury verdict convicting him of felony theft. Weaffirm. 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 adeposition? 2. Did the District Court err in denying defendant's motion to exclude evidence relating to defendant's prior acts? Monacowasemployed by Hargrove Trucking of Bozeman, Montana,
as a log-truck driver. OnJuly 5, 1990, Monacowas hauling logs from a job-site near Augusta, Montana. En route, he received a call on his radio from BobPiper, aHargrove employee, requesting that Monacopick up, andattach, atrailer 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 Fundaccepted the claim and, in all, paid Monaco $22,116.36 in benefits. OnAugust 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 onJuly 5, 1990and December of 1991, Monacopurposely or knowingly obtained or exerted
2unauthorized control over benefits from the State Fundbymeans of

deception or other fraudulent action. Trial commencedonSeptember 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 adeposition? 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 madebyMonacoin 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 asto the deposition andthe contents thereof." Thus, Monaco's counsel was onnotice 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 aninterest 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
awitness, should not havebeen allowed to continue prosecuting the
case. Monacoraises 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 wasraised solely bythe deputy county attorney assisting Horsman-Wiitala This Court has consistently held that the failure to object constitutes awaiver of the objection pursuant to §46-20-104, MCA, unless the circumstances comewithin anexception found at §46-20- 701(2), MCA. State v. Riley (1995), 270Mont. 436, 439, 893 P.2d 310, 313 (citing State v. Arlington (1994), 265Mont. 127, 158, 875 P.2d 307, 326); State v. Stuit (1994), 268Mont. 176, 182, 885P.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 makea timely objection during trial constitutes awaiver of the objection except asprovided 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 maybenoticed 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 wasprejudicial asto
4his 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 alaw 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 beenascertained bythe 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), 915P.2d 208, 212, 53St.Rep. 310, 312. We decline Monaco's invitation. Although we recently held that the doctrine of commonlaw 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, wediscussed the background and application of the common law doctrine of plain error aswell as the statutory requirements of §46-20-701(2), MCA. In Finlev, weheld that: this Court maydiscretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection is madeandnotwithstanding 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, mayleave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.
5Finlev, 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, wedetermine 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 aprior claim would have been before the jury in any event. Even if Horsman-Wiitala had been precluded from testifying asto the contents of the deposition, her testimony laid the foundation for another witness, the State's investigator, to rely onthe 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, Monacowas not prejudiced by HorsmanWiitala's testimony andany error bythe District Court in allowing her testimony would have been harmless under the facts of this
case. SeeArlincrton, 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? 6In 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), 271Mont. 367, 374, 897P.2d 1063, 1067; Gollehon, 864 P.2d at 1263. In filling out his State Fundclaim, Monacostated that hehad not madeany prior claims. As the State correctly notes, it was required to establish the existence of the prior claims in order to showthat Monaco's statement wasfalse 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 andWyomingclaims, then, through the State's anticipated rebuttal, specific details of those claims would be before the jury.
7The State counters that the District Court properly limited

the evidence to the filing of the Florida andWyoming 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. Weagree. 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 andWyomingwasessential to showthat Monacolied to State Fundwhenhestated that hehadnot 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, weneednot 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), 249Mont. 136, 814P.2d 52, andState v. Just (1979), 184Mont. 262, 602P.2d 957. Wehold that the evidence was admissible as part of the corpus delicti andthat the District Court did not abuse its discretion in denying Monaco's motion to exclude evidence of the prior claims. Affirmed.

### Weconcur:

9CERTIFICATEOFSERVICE

Ihereby certifythatthefollowingcertifiedorderwassentbyUnitedStates mail,prepaid,tothe followingnamed: Suzanne C.Smith,Esq.;Douglas

W.Marshall,Esq. Marshall &Smith 113South19thAvenue Bozeman MT59715 Hon.Joseph

P.Mazurek,AttorneyGeneral JohnPaulson,

Assistant 215N.Sanders Helena MT59620 A.MichaelSalvagni,

CountyAttorney Jane Mersen,DeputyCountyAttorney 615South16thStreet Bozeman MT59715

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA