DA 11-0345

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 92N

LEWIS GALE THORP,

 Petitioner and Appellant,

 v.

STATE OF MONTANA,

 Respondent and Appellee.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Custer, Cause No. DV 2011-17

Honorable Gary L. Day, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Lewis Gale Thorp, (self-represented litigant); Shelby, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Matthew T. Cochenour, 

Assistant Attorney General, Helena, Montana 

Wyatt Glade, Custer County Attorney, Miles City, Montana

Submitted on Briefs: March 21, 2012

 Decided: April 24, 2012

Filed:

__________________________________________

Clerk

April 24 2012
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Chief Justice Mike McGrath 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 In January 2009, Louis Gale Thorp (Thorp) was convicted by jury of one count of 

sexual intercourse without consent in the Sixteenth Judicial District Court, Custer 

County, for the rape of a fifteen-year-old girl. The District Court sentenced Thorp to life 

in the Montana State Prison without the possibility of parole. On February 6, 2009, 

Thorp filed a motion for a new trial pursuant to § 46-16-702, MCA, arguing that the State

improperly vouched for the victim’s credibility. He also argued that the court used an 

improper jury instruction for “without consent” and improperly admitted other acts 

evidence. The District Court denied Thorp’s motion, and this Court affirmed. State v. 

Thorp, 2010 MT 92, 356 Mont. 150, 231 P.3d 1096 (hereinafter Thorp I). 

¶3 In Thorp I, we held that the witness law enforcement officer’s response that the 

victim’s story “seemed credible” did not warrant plain error review. Thorp I, ¶ 25. 

Rather, a cautionary instruction was sufficient under the circumstances to remedy any 

alleged infringement on Thorp’s right to a fair trial. Thorp I, ¶¶ 29-30. It was not an 

abuse of discretion to allow testimony regarding Thorp’s admission of an alleged oral sex 

act on him by the victim, because Thorp’s own counsel participated in the line of 
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questioning that gave rise to the unexpected testimony. Thorp I, ¶ 40. Finally, we held 

that the court’s jury instructions fully and fairly instructed the jury, and that Thorp’s 

sentence fell within the statutory guidelines for his offense. Thorp I, ¶¶ 37, 43. 

¶4 Thorp then filed for post-conviction relief, alleging ineffective assistance of 

counsel (IAC), that the State had impermissibly vouched for the victim’s credibility, and 

that the testimony regarding oral sex constituted material evidence improperly withheld 

by the prosecution. On April 21, 2011, the District Court denied Thorp’s petition, 

concluding that all claims had either been addressed on appeal or were record based and 

should have been raised on direct appeal. The District Court later denied another motion

to reinstate the petition, finding that Thorp was simply rearguing issues that had been 

decided. He now appeals from the orders of the District Court alleging several 

constitutional violations in addition to re-raising the issues that he did in his petition for 

post-conviction relief. 

¶5 Thorp makes a single allegation in support of his IAC claim. He alleges that his 

attorneys did not believe in his innocence as evidenced by statements they made to 

prosecutors that two State’s witnesses could be incriminating themselves based upon 

their proposed testimony. The District Court found that these claims were record based 

and should have been brought on direct appeal. We agree. When a petitioner has been 

afforded the opportunity for a direct appeal of a conviction, grounds for relief that were 

or could reasonably have been raised on direct appeal may not be raised in a petition for 

post-conviction relief. Section 46-21-105(2), MCA; see also Ellenburg v. Chase, 2004 

MT 66, ¶ 19, 320 Mont. 315, 87 P.3d 473. 
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¶6 As for the claim that the State impermissibly vouched for the credibility of the 

victim during trial, the District Court correctly determined that this argument was 

previously addressed on direct appeal. See Thorp I, ¶¶ 22-30. Likewise, we also 

conclusively resolved the issue of whether the trial court impermissibly admitted other 

acts evidence under M. R. Evid. 404(b) when it allowed witnesses to testify regarding 

Thorp’s admission of alleged oral sex by the victim at some point during 2006. Thorp I, 

¶ 40. Accordingly, these issues may not be raised in a petition for post-conviction relief.

¶7 In reference to the other acts evidence discussed above, Thorp makes the new 

allegation that he learned of this evidence for the first time on the second day of trial. He 

alleges that this constitutes material evidence withheld by the State in violation of the 

principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). This 

argument is misplaced because the evidence in question was not suppressed—it arose for 

the first time on the second day of trial during a line of questioning of prosecution 

witnesses in which Thorp’s counsel actively participated. Moreover, this testimony was 

unknown to the State before it surfaced at trial, thus making pretrial disclosure 

impossible. See Thorp I, ¶¶ 27- 28. 

¶8 Finally, Thorp makes the argument that several of his rights under the United 

States Constitution and the Montana State Constitution were violated at trial. He makes 

no supporting argument or allegations as to how these violations occurred, but instead 

simply lists the provisions and alleges violations. We generally refuse to consider 

arguments raised for the first time on appeal, let alone on second appeal. See e.g. City of 

Missoula v. Moore, 2011 MT 61, ¶ 13, 360 Mont. 22, 251 P.3d 679. This includes new 
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arguments and changes in legal theory. State v. Ferguson, 2005 MT 343, ¶ 38, 330 

Mont. 103, 126 P.3d 463. Moreover, as we stated above, grounds for relief that were or 

could reasonably have been raised on direct appeal may not be raised in a petition for 

post-conviction relief. Section 46-21-105(2), MCA.

¶9 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. The 

issues in this case are legal and are controlled by settled Montana law, which the District 

Court correctly interpreted. 

¶10 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ PATRICIA COTTER

/S/ JIM RICE

/S/ BETH BAKER

/S/ JAMES C. NELSON