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No. 00-416 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 207 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

MERRITT L. HOPE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

Honorable Diane G. Barz, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Helena, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney; Melodee Hanes, Deputy 

County Attorney, Billings, Montana 

Submitted on Briefs: February 23, 2001 

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Decided: October 11, 2001

Filed:

__________________________________________

Clerk

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

¶1 Merritt Hope appeals from the Thirteenth Judicial District Court's judgment of 

conviction for partner or family member assault. We affirm. 

¶2 The following issue is raised on appeal:

¶3 Did the District Court err in admitting into evidence a note written by a partner or 

family member assault victim prior to the assault?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Vivian Doyle Thomas (Doyle) met Merritt Hope (Hope) in August 1999. Shortly 

thereafter, Hope moved into Doyle's home. On September 18, 1999, Doyle, driving her 

parents' van, met Hope at the Circle Inn. After having some drinks, Hope, who now drove 

the van, took Doyle with him to inquire about renting a friend's house. Doyle claimed 

Hope was critical of her while they were at the friend's house. Following the visit, Hope 

and Doyle drove to the Empire Bar. Along the way, Doyle asked Hope to stop and buy her 

some cigarettes and gum. Hope responded by angrily telling Doyle "he wasn't [her] Goddamn F'ing pimp," but he stopped the van and went into the store. While waiting in the 

van, Doyle found a notebook and wrote down her feelings regarding Hope's angry mood 

and her own apprehension about further problems which might arise that night. 

¶5 Shortly after they arrived at the Empire Bar, Hope left to go to another bar and Doyle 

stayed at the Empire by herself for approximately an hour. When Hope returned, Doyle 

met Hope outside of the bar and told him she wanted the keys to her parents' van. Hope 

refused to give them to her because she had been drinking. 

¶6 At trial, differing stories emerged regarding the next events. Doyle claimed Hope 

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pushed her hard outside of the bar, and when she went inside the bar to call 911, Hope 

scraped the metal phone cord across her face and then hit her cheek. In contrast, Hope and 

other witnesses contended Doyle was intoxicated, fell off of a bar stool and sustained 

injuries. It is undisputed that Doyle left the bar, contacted a police officer and was taken to 

the hospital for treatment. 

¶7 Hope was arrested and charged with felony partner or family member assault and 

unauthorized use of a motor vehicle. At trial, Doyle testified regarding how she felt when 

Hope angrily responded to her request for cigarettes and gum. The following exchange 

then took place:

Q. I'm going to hand you what has been marked as State's Exhibit No. 1, do you 

recognize that? 

A. Yes.

Q. What is that? 

A. It's what I wrote down while he was in the store. I found a notebook in my 

parents' van.

Q. And that recorded your present sense feelings at that moment?

A. Yes.

MS. HANES : At this time, Your Honor, we would offer State's Exhibit No. 1.

MR. ENGLISH : I would object, Your Honor. It's hearsay. It does not fall under a 

hearsay exception, Your Honor. She has testified to her feelings at that time, she 

was upset. It would give undue weight to those - that testimony, to enter that into 

evidence and give it to the jury to consider during deliberations.

THE COURT : The jury is free to give it the weight they deem it entitled to. Exhibit 

1 is admitted.

BY MS. HANES: Q. Could you tell us what you wrote down, please?

A. I wrote down Friday, I wrote down the date, it was kind of dark and I was writing 

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fast. So I said, This guy is getting so angry. We stopped at a friend's house, he got 

angry. I saw - oh, I saw a store, asked him for some cigarettes. He yelled at me and 

said, I am no God-damn fucking pimp. So I feel there is going to be big trouble 

because he is in such a bad mood. So I am writing this because my stomach is 

churning in knots, and I know there is going to be trouble and he'll blame it on me. 

And I am so scared, my mouth is dry. We will go somewhere else, but I know I'll be 

set up and put down.

And then I started to write, I don't, and then he got in the car and I hid the notebook.

Q. Is that a true and accurate description of how you were feeling at that moment?

A. (Witness nods head affirmatively.) 

¶8 After deliberating, the jury found Hope guilty on both charges. On appeal, Hope 

contends that the District Court erred when it admitted into evidence the note that Doyle 

wrote before she was assaulted. He claims that the note did not come within the recorded 

recollection exception to the hearsay rule and that the court impermissibly provided the 

jury with testimonial material about Doyle's general credibility. In response, the State 

claims the District Court properly admitted Doyle's note under the recorded present sense 

impression hearsay exception and that undue emphasis was not placed on Doyle's 

testimony. Moreover, the State maintains admission of the note was harmless beyond a 

reasonable doubt in light of Hope's own testimony admitting his irritation with Doyle on 

the night in question.

STANDARD OF REVIEW 

¶9 We must first determine the appropriate standard of review to apply to the issue raised. 

Citing State v. Weaver (1996), 276 Mont. 505, 509, 917 P.2d 437, 440, and United States 

v. Gilbert (9th Cir. 1995), 57 F.3d 709, 711, Hope contends that since the District Court 

failed to directly address the hearsay objection, this Court must review the admission of 

Doyle's handwritten note de novo. Alternatively, Hope urges the Court to review whether 

the District Court abused its discretion by placing undue emphasis on particular testimony. 

The State, on the other hand, claims the District Court addressed Hope's hearsay objection 

when overruling it on the grounds Doyle's note fell within the recorded present sense 

impression exception to the hearsay rule. The State claims the District Court's ruling 

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should be reviewed for abuse of discretion.

¶10 We conclude that Hope misconstrues Gilbert and Weaver. Gilbert states a district 

court's decisions to admit evidence under exceptions to the hearsay rule are reviewed for 

abuse of discretion. Gilbert, 57 F.3d at 711. Similarly, Weaver utilized an abuse of 

discretion standard when a district court failed to exercise its discretion. Weaver, 276 

Mont. at 509, 917 P.2d at 440. Neither of these cases requires de novo review of a district 

court's evidentiary ruling. Furthermore, in contrast to Weaver, we conclude that even 

though the District Court did not directly address Hope's general hearsay objection, it did 

exercise its discretion in admitting Doyle's note into evidence.

¶11 Accordingly, we will review the District Court's evidentiary ruling for an abuse of 

discretion. District courts have broad discretion to determine whether evidence is relevant 

and admissible. Absent a showing of abuse of discretion, we will not overturn the trial 

court's determination. State v. Osborne, 1999 MT 149, ¶ 14, 295 Mont. 54, ¶ 14, 982 P.2d 

1045, ¶ 14. 

DISCUSSION 

¶12 Did the District Court err in admitting into evidence a note written by a partner or 

family member assault victim prior to the assault?

¶13 Hope first contends that Doyle's note was improperly admitted because the jury 

should not consider prior recorded statements during deliberations. He claims the note 

does not meet the requirements of the recorded recollection exception to the hearsay rule, 

Rule 803(5), M.R.Evid. In contrast, the State argues the District Court properly admitted 

the note under the recorded present sense impression exception to the hearsay rule and that 

Hope has not addressed that contention.

¶14 We agree. Although Hope contends on appeal that the note does not come within the 

recorded recollection exception, he has nonetheless failed to address the State's contention 

that the note came within the recorded present sense impression exception. We conclude 

that Doyle's note was a recorded present sense impression. A recorded present sense 

impression is a written assertion describing or explaining an event or condition while the 

declarant was perceiving the event or condition, or immediately thereafter. Rules 801(a) 

and 803(1), M.R.Evid. For instance, contemporaneous notes based on personal 

observations are admissible as recorded present sense impressions. State v. Berosik, 1999 

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MT 238, ¶ 37, 296 Mont.165, ¶ 37, 988 P.2d 775, ¶ 37 (citing City of Helena v. Hoy

(1991), 248 Mont. 128, 131, 809 P.2d 1255, 1257). In this case, Doyle's note was a written 

assertion describing an event or condition, namely Hope's angry mood and Doyle's 

feelings, made immediately after she perceived the event or condition. Accordingly, we 

hold the note was properly allowed and was not inadmissible hearsay. 

¶15 Hope's second contention is that the District Court, by admitting Doyle's note, 

impermissibly provided the jury with testimonial material about Doyle's general character. 

Hope admits Doyle properly testified about Hope's anger, but he claims the admission of 

the note placed undue weight on this testimony. In support of his argument, Hope 

compares this case to cases in which a district court considered jury requests to review 

witness testimony during its deliberations. State v. Evans (1993), 261 Mont. 508, 862 P.2d 

417; State v. Harris (1991), 247 Mont. 405, 808 P.2d 453. In addition, Hope claims 

Doyle's note impermissibly bolstered her credibility through mere repetition. 

¶16 The State argues Evans and Harris are inapplicable because the jury in this case did 

not request a review of Doyle's testimony during its deliberations. Additionally, the State 

claims that the note described Doyle's perception of Hope's anger, rather than the assault 

itself, and the note did not give any emphasis to the critical elements of the State's case. 

Moreover, the State asserts the District Court properly noted that the jury was free to give 

the note the weight it deemed appropriate, and it instructed the jury of its role in weighing 

the evidence and determining the credibility of witnesses. 

¶17 We agree. This case does not involve a jury's review of witness testimony during 

deliberations as in Evans and Harris. Furthermore, since both Hope and Doyle testified 

that Hope was irritated on the night in question, credibility on this point was not an issue. 

The District Court correctly advised the jury it could give the note whatever weight it 

deemed appropriate. We hold the admission of Doyle's note did not unduly emphasize her 

testimony and the note was properly admitted. 

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

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/S/ JIM REGNIER

/S/ JAMES C. NELSON

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