DA 07-0182

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 53N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

SHIRLEY RICHEY BLOME,

 Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 2005-0733

Honorable Ingrid Gustafson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Tammy K. Plubell,

Assistant Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, David Carter, Deputy

County Attorney, Billings, Montana

Submitted on Briefs: February 6, 2008

 Decided: February 13, 2008

Filed:

__________________________________________

Clerk

February 13 2008
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Justice James C. Nelson 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 2003, 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 Shirley Richey Blome (Blome) appeals from her jury conviction of Theft by 

Embezzlement, a felony, in violation of § 45-6-301(7) and (8)(c), MCA, and Forgery, 

Common Scheme, a felony, in violation of §§ 45-6-325 and 45-2-101(8), MCA. 

¶3 On appeal, Blome raises two issues: (1) did prosecutorial misconduct prevent a 

fair trial, and (2) did the introduction of the videotape of Blome providing a statement 

violate the court’s orders in limine?

¶4 Blome was a bookkeeper for Willard’s Garage, an automotive repair shop. She

was charged with embezzlement and forging documents while working for Willard’s 

Garage. As to her first issue she contends that the prosecution spent the entire 

examination using leading questions and asking for opinion evidence as to who was more 

credible and who the alleged victim believed was guilty. The State counters, noting that 

Blome did not object to any of the prosecutor’s questions of which she now complains. 

Section 46-20-104(2), MCA, bars appellate review of alleged errors not objected to at 

trial, absent specific exceptions set out at § 46-20-701(2)(a)-(c), MCA, none of which are 

at issue here. We have previously declined to review claims of prosecutorial misconduct 
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not objected to at trial. See State v. Ogle, 255 Mont. 246, 250-51, 841 P.2d 1133, 1135-

36 (1992); State v. Raugust, 2000 MT 146, ¶¶ 35-36, 300 Mont. 54, ¶¶ 35-36, 3 P.3d 115, 

¶¶ 35-36.

¶5 As to her second issue, Blome argues that the District Court erred by playing and 

admitting her videotaped statement in violation of the court’s order in limine prohibiting 

the State from mentioning that Blome was the subject of an Internal Revenue Service 

investigation. The State points out, however, that prior to the commencement of the trial, 

the parties met with the court in chambers. There, Blome’s counsel informed the court 

that he believed that the tape was admissible and that the tape itself was not included in 

his motion in limine. We will not put a district court in error for action in which the 

appealing party acquiesced or actively participated. State v. Gray, 2004 MT 347, ¶ 20, 

324 Mont. 334, ¶ 20, 102 P.3d 1255, ¶ 20 (citation omitted). Moreover, we have also 

held that acquiescence in error takes away the right of objecting to it. State v. Gardner, 

2003 MT 338 ¶ 44, 318 Mont. 436, ¶ 44, 80 P.3d 1262, ¶ 44, cert. denied, 541 U.S. 1034, 

124 S. Ct. 2105 (2004).

¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our 1996 Internal Operating Rules, as amended in 2003, which provides for 

memorandum opinions. It is manifest on the face of the briefs and on the record before 

us that the appeal is without merit—defendant waived her objection to her claim of 

prosecutorial misconduct by failing to object and she waived her claim of error in the 

admission of the videotape because her counsel agreed that it was admissible. The legal 
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issues here are clearly controlled by settled Montana law. Therefore, we affirm Blome’s 

convictions in this case.

¶7 Affirmed. 

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ BRIAN MORRIS