95-532

 No. 95-352

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1997

 STATE OF MONTANA,

 

 Plaintiff and Respondent, 

 v.

 

 PAUL KENNETH 

JENKINS, 

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

 In and for the County of Lewis and Clark,

 The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Randi M. Hood, Public Defenderþs Office, Helena, Montana

 For Respondent:

 Joseph P. Mazurek, Attorney General, Patricia J. Jordan, 

Assistant

 Attorney General, Helena, Montana; Mike McGrath, Lewis and 

Clark

 County Attorney, Carolyn Clemens, Deputy Lewis and Clark County

Attorney, Helena, Montana

 Submitted on Briefs: May 1, 1997

 Decided: 

Filed:

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 __________________________________________

 Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

 Defendant-Appellant Paul Kenneth Jenkins (Appellant) and co-defendant Freddie

Joe Lawrence (Lawrence) were charged with deliberate homicide, aggravated kidnaping,

and robbery. Defendants were tried simultaneously but with separate juries in the 

First

Judicial District Court, Lewis & Clark County. Each jury found its respective 

defendant

guilty on all counts and judgments of conviction were entered. (See companion case 

of 

State v. Lawrence, No. ADC 94-215, Lewis and Clark County; Mont. No. 95-357). 

Defendants appealed their convictions and we consider each appeal separately. 

Appellant

appeals the jury verdict and judgment of conviction of the First Judicial District 

Court,

Lewis & Clark County. We affirm.

 Appellant raises the following issues on appeal:

 1. Did the District Court err by allowing into evidence letters written to 

Appellant

by his spouse, Mary Jenkins?

 2. Did the District Court err in admitting Mary Jenkinsþ prior inconsistent

statements and Officer McCormackþs testimony concerning Jimmy Lee Amos?

 3. Did the District Court err in refusing to grant Appellantþs motion for a 

new

trial on the basis of newly discovered evidence?

 4. Did the District Court err in refusing to grant Appellantþs motion to 

dismiss

the case for insufficient evidence?

BACKGROUND

 On the morning of January 12, 1994, the body of Donna Meagher (Meagher) was

discovered in a ditch west of Helena. Meagher had been working the night before at 

the

Jackson Creek Saloon in Montana City and had failed to come home as scheduled. After

her last customer left sometime after midnight, Meagher, working alone, closed the 

bar. 

Shortly thereafter, Meagher was confronted by her assailants, who forced her to 

reopen

the bar. The assailants robbed the cash register and poker machines, taking

approximately $3,300. Aside from the missing money, the bar was largely 

undisturbed. 

Meagherþs truck was moved from the barþs parking lot to a location behind a building

across the street. Meagher was then transported through Helena to a location west of

town, where she was bludgeoned to death. Her body was found at that location the 

next

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day.

 Meagherþs murder generated extensive publicity in the Helena area and a

substantial reward was offered to anyone providing information leading to the arrest 

and

conviction of the perpetrators. Authorities were subsequently contacted by Dan

Knipshield (Knipshield), Lawrenceþs father-in-law, who implicated Lawrence and

Appellant in the crime.

 On August 31, 1994, three law enforcement officers traveled to West 

Yellowstone

to talk to Lawrence, who was incarcerated in the Park County jail on an unrelated

offense. During the interview, Lawrence denied any involvement in the crime but

implicated Appellant and another man, Jimmy Lee Amos (Amos), as being responsible.

 Based on the information obtained from Knipshield and Lawrence, law

enforcement officers traveled from Montana to Oklahoma to interview Appellant, his

spouse Mary Jenkins, and Amos. At the conclusion of the police investigation, 

Appellant

and Lawrence were arrested and charged with the robbery, kidnaping and homicide. The

defendants were tried simultaneously before different juries and both were convicted 

on

all counts.

DISCUSSION

 Issue 1

 Did the District Court err by allowing into evidence letters written to 

Appellant by

his spouse, Mary Jenkins?

 The standard of review for evidentiary rulings is 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. Gollehon, 864 P.2d at 1263. 

 While Appellant was incarcerated and awaiting trial, he and his wife, Mary,

corresponded by letter. After reading Maryþs letters, Appellant tore them up into 

little

pieces and put them in the trash. Investigators with the Lewis and Clark County 

Sheriffþs

Department picked up Appellantþs trash from the jail and reassembled some of Maryþs

letters. The State attempted to introduce these letters into evidence, once at a 

pre-trial

competency hearing, and again at trial. Appellant asserts that the District Court 

twice

violated the spousal privilege when it admitted Maryþs letters into evidence first 

at the

pre-trial competency hearing and later at trial. We consider Appellantþs 

specifications

of error at the pre-trial and trial stages separately.

A. Pre-trial Competency Hearing

 On February 7, 1995, the District Court held a pre-trial hearing to determine 

the

competency of Mary Jenkins. During Maryþs testimony, the State attempted to 

introduce

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her letters to show that she could express herself and communicate with others. 

Appellant objected to admission of the letters on the basis of spousal privilege. 

The

District Court responded:

 I am going to reserve my ruling on those letters. I prefer being able to

 determine her competency based on her testimony today rather than

 something she has written in the past.

 Later in the hearing, when Officer McCormack took the stand, the State again

attempted to introduce Maryþs letters, and Appellant again objected on the ground of

spousal privilege. The following exchange then took place:

 [Court]: Okay. The spousal privilege does not apply because the letters are

 not being introduced for the truth of the matters contained in the letters. 

 The letters would only be introduced to show that Mary [can] communicate

 . . . .

 [Lawrenceþs Defense Counsel]: Your Honor, before you consider the letters

 I would just like the record to reflect that I didnþt see these letters until

 yesterday . . . . I would like the ability to reserve any objection and your

 review of the letters until such time as we have had a chance to look at

 them.

 [Court]: All right. I will go ahead and take a look at the letters and after

 you have looked at the letters we will meet in chambers and discuss the

 exhibit.

The court took the matter under advisement and ended the hearing. Later that 

afternoon,

in chambers, the court ruled that Mary was competent to testify. As to the letters, 

the

court ruled:

 I donþt feel the need to consider those letters and I am refusing the

 admission of those letters as to evidence. I decided I could rule on Maryþs

 competence without those letters.

 On appeal, the State contends that no error occurred because the District 

Court

never admitted the letters. The State argues that Appellant mistook the courtþs

statement, "The spousal privilege doesnþt apply . . ." as the courtþs ruling on the 

matter,

when in fact, at the request of Appellant, the court took the matter under 

advisement. 

We agree with the State. The portion of the record set out above reveals that the 

District

Court refused admission of the letters, as they were not needed in determining Maryþs

competency. Therefore, we conclude that because the letters were never admitted at 

the

competency hearing, no error occurred.

B. At Trial

 At trial, Appellant planned to call Dr. William Stratford to testify about his

psychological examination of Mary and his diagnosis that she suffered from dementia. 

The State then filed a motion in limine asking the court to permit its use of Maryþs 

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letters

in cross-examining Dr. Stratford. When the court discussed the motion with counsel 

in

chambers, Appellant again objected to admission of the letters on the basis of 

spousal

privilege. However, Appellant then conceded to admission of the letters for the 

limited

purpose of showing that Mary could communicate. Appellant stated:

 I am willing to have Dr. Stratford read the letters and comment upon, you

 know, if she [sic] wants to say well she writes real nice letters, he can

 explain that. That is not inconsistent with his diagnosis.

 In ruling on the motion, the court permitted the State to use only "one or 

two"

letters in cross-examining Dr. Stratford, and held that such use did not violate the 

spousal

privilege because the letters were being admitted not through a spouse, but through a

third party. After the courtþs ruling, the following exchange took place:

 [Jenkinsþ Defense Counsel]: Your Honor, I would presume that the courtþs

 ruling only goes to those letters going in if they become relevant.

 [State]: Well I think the jury needs to make that decision.

 [Jenkinsþ Defense Counsel]: Well then we want to see which of these letters

 you produce because there are letters that are totally nonsense.

 [State]: We wonþt produce the one that says she has told the neighbors they

 were home in bed when this happened. I presume we canþt get that one in.

 [Lawrenceþs Defense Counsel #1]: Yeah you can.

 [Lawrenceþs Defense Counsel #2]: Sure you can.

 [Lawrenceþs Defense Counsel #1]: We donþt care.

 [Jenkinsþ Defense Counsel]: So we want to know early on which ones--

 [State]: Then I think we want that one.

 [Court]: Okay. Now what was the other issue?

Later, when the State moved for admission of the letters, Appellant stated:

 Your Honor, I donþt believe there has been a foundation laid on these, but

 because perhaps it is important for this witness to talk about them I wonþt

 object.

 The State argues that Appellant failed to preserve this issue for appeal. 

The State

cites õ 46-20-104(2), MCA, for the rule that "[f]ailure to make a timely objection 

during

trial constitutes a waiver of the objection," and points to the above excerpt from 

the

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transcript as evidence that Appellant failed to object to the letters when they were 

being

admitted.

 Appellant counters that his failure to object at trial was not a waiver of the

objection, "but an appropriate trial tactic once the courtþs position on the spousal 

privilege

was clear." Appellant urges this Court to focus on his objection made in chambers 

rather

than his failure to object at trial. Appellant argues that the objection made in 

chambers

satisfied õ 46-20-104(2), MCA, as it was a timely, specific objection made in 

response

to the Stateþs motion in limine.

 Appellantþs arguments are not persuasive. Whether Appellantþs trial tactic 

was

appropriate or not is not subject to our review. Applying the facts of this case to 

the law,

we conclude that because Appellant failed to timely object when the letters were 

being

admitted, he waived his objection for appeal. Appellant urges this Court to focus 

on the

objection made to the Stateþs motion in limine. We acknowledge recent Montana case

law holding that "a motion in limine preserves trial error for appeal." State v. 

Stuit

(1996), 277 Mont. 227, 230, 921 P.2d 866, 868. See also State v. Weeks (1995), 270

Mont. 63, 85, 891 P.2d 477, 490. However, we refuse to apply Stuit to this case

because Appellantþs objection to the motion in limine was vitiated by his later 

agreement

to admit the letters. The record shows that Appellant and the State agreed to have 

the

letters admitted for the limited purpose of showing that Mary could communicate. The

record also shows that the parties negotiated an agreement as to which letters the 

State

would use. Moreover, it appears from the above excerpt of the transcript that 

Appellant

thought the letter to be quite favorable. Indeed, Dr. Stratfordþs testimony 

regarding the

letter, that it was "childish," was favorable to Appellantþs position. Under these 

facts,

coupled with the fact that the letters contained no inculpatory evidence, we 

conclude that

Appellant failed to preserve his objection for appeal. Accordingly, we do not reach 

the

merits of Appellantþs argument.

Issue 2

 Did the District Court err in admitting Mary Jenkinsþ prior inconsistent 

statements

and Officer McCormackþs testimony concerning Jimmy Lee Amos?

 Appellant argues that the District Court erred in admitting Mary Jenkinsþ 

prior

statements made during several interviews with investigating officers. Appellant 

argues

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that Maryþs statements of "I donþt remember" were consistent, rather than 

inconsistent,

with her trial testimony, and that the State failed to meet the foundational 

requirements

for admitting evidence under the hearsay exception for prior consistent statements. 

 This issue is identical to that raised in the companion case, State v. 

Lawrence

(Mont. No. 95-357, decided October 21, 1997), slip. op. at 18. In that case, we held

that a claimed lapse of memory is an inconsistency within the meaning of Rule

801(d)(1)(A), M.R.Evid., and concluded that the District Court properly admitted the

prior inconsistent statements. The discussion and analysis in Lawrence applies to 

this

case as well. We hold that the District Court did not err in admitting Mary 

Jenkinsþ prior

inconsistent statements.

 Appellant also argues that the District Court erred in admitting Officer

McCormackþs statements that (1) he interviewed Jimmy Lee Amos; and (2) based on

information he received, he learned that Mary was involved in the kidnaping portion 

of

the alleged crimes. Appellant argues that the officerþs testimony was inadmissible

hearsay.

 Once again, this same issue was raised in Lawrence. In Lawrence, we 

determined

that when the two statements were viewed in the proper context, no reasonable jury

would infer that Officer McCormack learned of Maryþs involvement solely by

information received from Amos. Further, we held that even if the jury made such an

inference, the statements were still admissible because they were not offered for 

the truth

of the matter asserted, and thus, not hearsay. The discussion and analysis in 

Lawrence

applies to the instant case as well. We hold that the District Court did not err in

admitting Officer McCormackþs statements.

Issue 3

 Did the District Court err in refusing to grant Appellantþs motion for a new 

trial

on the basis of newly discovered evidence?

 Appellant contends that the District Court erred when it denied his motion 

for a

new trial based on newly discovered evidence that: (1) Dan Knipshield, one of the 

Stateþs

witnesses, has episodic schizophrenia; and (2) Mary Jenkins, another witness for the

State, has night blindness. Again, this issue is identical to that raised in 

Lawrence. In

Lawrence, we applied the Greeno criteria (see State v. Greeno (1959), 135 Mont. 580,

342 P.2d 1052) to these two items of evidence and concluded that because they failed 

to

meet the criteria, a new trial was not warranted. The discussion and analysis in

Lawrence applies to the instant case as well. We hold that the District Court did 

not err

in refusing to grant a new trial on the basis of newly discovered evidence.

Issue 4

 Did the District Court err in refusing to grant Appellantþs motion to dismiss 

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the

case for insufficient evidence?

 Lastly, Appellant argues that given the lack of physical evidence, Mary 

Jenkinsþ

dementia, and Dan Knipshieldþs lack of credibility, there was insufficient evidence 

to

convict him of the alleged crimes. Again, this issue is identical to that raised in

Lawrence. In Lawrence, we noted that circumstantial evidence is sufficient to 

support

a conviction; that there was ample corroborating evidence connecting the defendant 

to the

crimes; and that the credibility of witnesses was a question solely for the jury to 

decide. 

The discussion and analysis in Lawrence applies to the instant case as well. We 

hold that

the District Court did not err in refusing to grant Appellantþs motion to dismiss 

the case

for insufficient evidence.

 Affirmed.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

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