                                           DA 06-0322

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 180N



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

RAMONA “DOLL” CHAMPAGNE,
a/k/a RAMONA DONEY,

              Defendant and Appellant.



APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DC-05-098
                       Honorable David Rice, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Carl White, Attorney at Law, Havre, Montana

                For Respondent:

                       Honorable Mike McGrath, Attorney General; John Paulson,
                       Assistant Attorney General, Helena, Montana

                       Cyndee L. Peterson, County Attorney, Havre, Montana



                                                   Submitted on Briefs: April 25, 2007

                                                              Decided: July 31, 2007


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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 shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellant Ramona “Doll” Champagne (Champagne) appeals from the order of the

Twelfth Judicial District Court, Hill County, denying, in part, Champagne’s motion in

limine to prohibit the State from offering evidence obtained by electronic surveillance.

We affirm.

¶3     Champagne was charged on July 25, 2005, with two counts of criminal

distribution of dangerous drugs, a felony, in violation of § 45-9-101, MCA. Champagne

allegedly sold cocaine and methamphetamine to an undercover agent in Havre, and the

transaction had been electronically monitored. An omnibus hearing was held on

September 12, 2005, where the parties and the court signed an omnibus hearing

memorandum indicating that the State did not intend to rely on prior acts or convictions

of the defendant, and that no electronic surveillance was taken of the defendant or her

premises. Trial was set for December 15, 2005. On October 28, 2005, the State filed its

notice of witnesses and exhibits, which included the audiotape of the electronic

monitoring and the CD containing video recordings of the drug purchase. Champagne

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filed her notice of the affirmative defense of entrapment, and additionally, moved to join

this case with another pending against her. In November and December 2005,

Champagne filed motions in limine to prohibit the State from: (1) offering prior acts

evidence and (2) from offering any evidence obtained by electronic surveillance.

Champagne argued that at the omnibus hearing the State had represented that it did not

intend to offer such evidence.

¶4     The court granted Champagne’s motion in limine regarding prior evidence, and

granted Champagne’s motion in limine as to any electronic surveillance not previously

disclosed to the defense; however, the court ordered that the recordings previously

disclosed to the defense through discovery and shown on the State’s notice of witnesses

and exhibits may be introduced and utilized at trial.

¶5     The District Court further determined that a proper foundation would have to be

developed with the witness before the video recordings could be admitted, and that

defense counsel could question the witness about how the recordings got into their

current format. The court rejected defense counsel’s contention that an expert witness

would have to testify about the transfer of the format of the recordings because the

witness was there. The court stated that the recordings would be relevant to the defense

of entrapment, that the recordings had been disclosed and presented no surprise to the

defense, and that the court was inclined to allow the recordings to be played to the jury

with the understanding that the defense could renew its objection at the time the evidence

was offered.

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¶6     Shortly thereafter, the parties reached a plea agreement wherein Champagne

entered a nolo contendere plea to two counts of criminal distribution of dangerous drugs,

and reserved her right to appeal the District Court’s ruling on the use of the recorded

statements. The State dismissed Champagne’s charge in the companion case.

Champagne appeals the motion in limine ruling allowing the State to offer evidence

obtained by the electronic surveillance.

¶7     This Court reviews a district court’s evidentiary ruling for abuse of discretion.

Howard v. St. James Community Hosp., 2006 MT 23, ¶ 17, 331 Mont. 60, ¶ 17, 129 P.3d

126, ¶ 17. “The district court has broad discretion in determining the admissibility of

evidence.” Howard, ¶ 17. We will not reverse the district court unless the error is “of

such character to have affected the result.” Howard, ¶ 17 (quoting Payne v. Knutson,

2004 MT 271, ¶ 20, 323 Mont. 165, ¶ 20, 99 P.3d 200, ¶ 20). “Notwithstanding this

deferential standard, however, judicial discretion must be guided by the rules and

principles of law; thus our standard of review is plenary to the extent that a discretionary

ruling is based on a conclusion of law.” State v. Price, 2006 MT 79, ¶ 17, 331 Mont.

502, ¶ 17, 134 P.3d 45, ¶ 17. In this circumstance, we must determine whether the court

correctly interpreted the law. Price, ¶ 17.

¶8     Champagne argues that the District Court erred in equating the foundational

requirements for photographs and for digital media. Champagne contends the court

abused its discretion “in admitting evidence of electronic surveillance of Champagne,

including evidence of prior acts by Champagne, after the state failed to give notice of

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such evidence at the omnibus hearing, and in the absence of expert testimony regarding

the duplication of said evidence.”

¶9       The State argues that the District Court did not abuse its discretion when it denied,

in part, Champagne’s supplemental motion in limine. The State contends that it gave

adequate notice of its intention to utilize at trial the audio/video recording made by the

undercover agent, and it was not required to lay additional foundation, through expert

testimony, for the admission of the video recordings of Champagne’s drug transactions

with the undercover agent because videos and photographs should be treated the same for

purposes of foundation, and Champagne has offered no authority to the contrary. The

State further asserts that the admission of duplicate recordings would not have violated

the best evidence rule.

¶10      It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

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

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶11      Affirmed.

                                                          /S/ JIM RICE




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We concur:


/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART




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