No. DA 06-0015 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 31

STATE OF MONTANA, Plaintiff and Respondent,

v. WAYNE ROGER RAMSEY, Defendant and Appellant.

APPEAL FROM: The District Court of the Fourth Judi cial District, In and For the County of Missoula, Cause No. DC 05-130, Honorable Ed McLean, Presiding Judge

COUNSEL OF RECORD: For Appellant: Lance P. Jasper, Paoli, Latino, Kutzman & Jasper, P.C., Missoula, Montana For Respondent: Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana Fred Van Valkenburg, County A ttorney; Kristen H. LaCroix, Deputy County Attorney, Missoula, Montana

Submitted on Briefs: December 28, 2006 Decided: February 7, 2007 Filed:

__________________________________________ Clerk2 Justice W. William Leaphart delive red the Opinion of the Court. ¶1 Defendant Wayne Ramsey appeals his convi ction for aggravated burglary, assault with a weapon, and misdemeanor theft, as well as his classification as a persistent felony offender (PFO). We affirm. ¶2 We restate the issues as follows: ¶3 1. Did the District Court err in consider ing a sealed dependent neglect file it had previously ruled irrelevant? ¶4 2. Did the District Court err in determ ining that the State provided adequate notice of its intention to seek treatment of Ramsey as a persistent felony offender? ¶5 3. Was Ramsey given permission to ente r the residence and take items from the residence? BACKGROUND ¶6 During the day, on February 22, 2005, Ramsey walked to the front door of a trailer home belonging to Ron Toney (Ron). Ramsey knocked on th e door, then walked around back and entered through the back door. Ra msey took several items belonging to Ron, including Ron’s gun and kn ife, from the trailer. ¶7 A neighbor called Ron and told him that someone was in the house. Ron responded that no one was supposed to be ther e, to call the police, and that he would be there soon. When Ron pulled up to th e back of the trailer, Ramsey ran out the front door. Ron initially ran into the trailer, but then pur sued Ramsey. Accord ing to Ron, Ramsey, once confronted, pulled out Ron’s gun and pointed it at Ron, who turn ed and ran. Police3 soon found Ramsey, took him into custody, and located Ramsey’s backpack, Ramsey’s hat, and Ron’s gun, all of which Ramsey had discarded during his flight. ¶8 At the time of this incident, Windy T oney was married to, but separated from, Ron. Windy did not live in th e trailer with Ron, had never lived there, and in fact had never entered the residence. Windy and Ra msey were friends th rough work. Windy testified, at Ramsey’s bench trial, that sh e had told Ramsey she was afraid of Ron and had given Ramsey permission to enter any marital propert y or residence. However, Windy conceded that she did not give Ramsey express perm ission to enter Ron’s trailer home, nor had she asked Ramsey to go to the trailer or to ge t any of her property out of the trailer. ¶9 The State filed charges against Ramsey to which he pled not guilty. On June 16, 2005, at the omnibus hearing, the District Co urt ordered the State to file notice by June 17, 2005, concerning what convictions it was relying on in seeking to have Ramsey sentenced as a PFO. The Stat e failed to file the PFO info rmation until June 22, 2005. Ramsey, however, did not object to the underl ying convictions and only objected to the State’s late PFO notice at the sentencing hearing, almost five months later. ¶10 On August 22, 2005, at the final status conference, the parties discussed Ramsey’s request to review the DPHHS case file concer ning Windy and Ron. It was agreed that the court would conduct an in camera inspection of the file. Ramsey submitted four questions for the court to consider in revi ewing the file: whether the file contained information relating to Windy or Ron’s hon esty; whether the case was contentious; whether abuse was alleged; and whether there was any information in the file relevant to4 Ramsey’s defense that he had consent to en ter the trailer home. The court determined that the file contained no info rmation relevant to the defens e, and therefore did not allow Ramsey to review the file. ¶11 During trial, the court mentioned the DPHHS file to Windy, telling her “it would behoove you to keep in mind that the Court has read the dependent neglect case from one end to the other, from start to finish.” The court also questioned Windy regarding whether she was allowed to go to Ron’s residence when the child at issue in the DPHHS file resided there. ¶12 At the end of the trial, the court found Ramsey guilty on all counts, and sentenced him to forty-five years in pris on, with thirty-five years susp ended. From his conviction, Ramsey appeals. STANDARD OF REVIEW ¶13 The determination of the relevancy and ad missibility of evidence is left to the sound discretion of the trial judge, and this Court will not overturn such determination absent an abuse of discretion. State v. Paoni , 2006 MT 26, ¶ 13, 33 1 Mont. 86, ¶ 13, 128 P.3d 1040, ¶ 13 (citations omitted). We review a criminal sentence for its legality; that is, whether the sentence is within the statutory parameters. State v. Heath , 2004 MT 58, ¶ 8, 320 Mont. 211, ¶ 8, 89 P.3d 947, ¶ 8. The district court’s statutory interpretation is a question of law, which we review to determine whether it is correct. Heath , ¶ 8. DISCUSSION ¶14 1. Did the District Court err in consid ering a sealed dependent neglect file it had previously ruled irrelevant?5 ¶15 Ramsey argues that the District Cour t committed reversible error when it considered, at trial, the sealed DPHHS fi le which the court ha d previously ruled irrelevant and refused to prov ide to Ramsey. Ramsey cont ends that, if he had been provided access to the file, which he assumes contained de famatory material regarding Windy, he would have employed a “completely different tr ial strategy.” Instead, only the State and the court were aware of Windy’s “d ishonest, manipulative nature” and the fact that she was restricted from en tering the trailer. Thus Ramsey was denied his right to a fair trial. ¶16 Ramsey, however, never specifically asked the court to exclude the DPHHS file, and then failed to object to the court’s referenc e to the file during trial. We will not allow him to raise the issue for th e first time on appeal, because it is fundamentally unfair to fault a district court for failing to rule correc tly on an issue it never had the opportunity to consider. State v. Johnson , 2005 MT 318, ¶ 13, 329 Mont . 497, ¶ 13, 125 P.3d 1096, ¶ 13. Additionally, we only review record based claims on appeal, and the DPHHS file is absent from the record before us. See State v. Frasure , 2004 MT 305, ¶ 13, 323 Mont. 479, ¶ 13, 100 P.3d 1013, ¶ 13. ¶17 2. Did the District Court err in det ermining that the State provided adequate notice of its intention to seek treatment of Ramsey as a persistent felony offender? ¶18 Ramsey also argues that the State violated § 46-13- 108, MCA, by failing to provide adequate notice that it intended to seek PFO status until five days after the court imposed deadline. Section 46-13-108, MCA, states in pertinent part:6 (1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender, notice of that fact must be given at or before the omnibus hearing pursuant to 46-13-110. (2) The notice must specify the alleged prior convictions . . . . (Emphasis added.) ¶19 The State maintains that it provided Ramsey notice that it might seek PFO status when it wrote “file by 6/17/05” under the PFO section of the omnibus memorandum. Further, the State notes that it was only five days late in providing notice of the alleged prior convictions, and that Rams ey did not object to the late notice filing until nearly five months later, at the sentencing hearing. ¶20 We dealt with this same issue in State v. Shults , where we noted that “[t]he purpose for providing su ch notice is to give the defenda nt an opportunity to file an objection to the criminal record relied upon in the notice and to hold a hearing should there be any such objection. ” 2006 MT 100, ¶ 22, 332 Mo nt. 130, ¶ 22, 136 P.3d 507, ¶ 22 (citations omitted). We concluded that if a defendant had am ple opportunity to object to PFO treatment and challenge the underlying criminal record, and if the defendant was not prejudiced by the timing of the filing, we will not overturn a court’s decision to impose a sentence with a PFO designation. Shults , ¶ 22. ¶21 In this case, Ramsey was aware, on June 16, 2005, that the State was going to move for PFO status. While th e State was five days late in providing Ramsey with the predicate offenses, Ramsey had almost five months to file an objection to the alleged prior offenses before the cour t imposed sentence. As the re cord indicates that Ramsey did not file an objection to the predicate offenses, despite having adequate time to do so,7 other than a general objection based on the Stat e’s late notice, we ho ld that the District Court correctly determined that the State provid ed adequate notice of its intention to seek
PFO status. ¶22 3. Was Ramsey given permission to en ter the residence and take items from the residence? ¶23 Finally, Ramsey argues that Windy provid ed him with consent to enter Ron’s trailer. Windy was able to consent, accordi ng to Ramsey, because all property owned by both Windy and Ron was “marital property,” a f act which the District Court took judicial notice of at trial. Windy, as Ron’s spouse, ha d the right to be in the trailer, to provide others with access to the trailer, and to possess any and all persona l property in the trailer. While Windy may not have expressly told Ramsey he could remove her things from Ron’s trailer, she did drive him by the traile r and tell Ramsey what property Ron had taken from her. Further, Ramsey contends that whether or not Windy had actual authority to enter the trailer, he believed sh e had the authority and thus thought he had permission to enter the trailer and remove Windy’s belongings. ¶24 We disagree. First, the record does no t support Ramsey’s permission defense. Windy testified that she did not expressly give Ramsey permission to enter Ron’s trailer, did not expressly ask Ramsey to retrieve her belongings, and was, in fact, surprised that Ramsey entered the trailer. Second, Win dy’s purported consent provides no lawful defense to theft under Montana law in any case, as § 45-6-303(2), MCA, states that “[i]t is no defense that theft was from the offende r’s spouse.” The only exception is for “household and personal effects . . . norma lly accessible to both spous es.” The “personal8 effects” exception, however, does not apply if the parties have “ceased living together.” Section 45-6-303(2), MCA. As Windy and Ron were separated and had ceased living together, Ramsey’s claim that Windy gave him permission to enter Ron’s trailer and take property provides Ramsey no de fense. Finally, while Ramsey might have thought he had lawful permission to enter the trailer, the law nonetheless recognizes theft by a spouse, and we have long held that ignor ance of the law is no excuse. State v. Tichenor , 2002 MT 311, ¶ 46, 313 Mont. 95, ¶ 46, 60 P.3d 454 , ¶ 46. CONCLUSION ¶25 For the foregoing reasons, we affirm th e judgment of the District Court.

/S/ W. WILLIAM LEAPHART

We concur: /S/ JIM RICE /S/ BRIAN MORRIS /S/ JAMES C. NELSON /S/ JOHN WARNER