                                           No. 03-825

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 174N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ELIZABETH HICKOK,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DC 03–185
                     Honorable Ed McLean, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Derik Pomeroy, Attorney at Law, Bozeman, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Robert Stutz,
                     Assistant Attorney General, Helena, Montana

                     Marty Lambert, Gallatin County Attorney; Ashley Harrington,
                     Deputy County Attorney, Bozeman, Montana



                                                   Submitted on Briefs: May 11, 2004

                                                             Decided: June 30, 2004


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray 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. Its case title, Supreme Court cause number and disposition shall be included

in this Court's quarterly list published in the Pacific Reporter and Montana Reports.

¶2     The Eighteenth Judicial District Court, Gallatin County, convicted Elizabeth Hickok

of felony assault on a minor. She appeals. We affirm.

¶3     Hickok first argues that the District Court erred by refusing to require the State of

Montana to charge her with misdemeanor partner or family member assault instead of felony

assault on a minor, because the victim was her son. She asserts the statute defining

misdemeanor partner or family member assault controls because it is more specific than the

statute defining felony assault on a minor. Contrary to Hickok's assertion, however, these

statutes set forth alternative offenses, not a specific statute and a general statute. When the

facts of a case support a possible charge of more than one crime, the crime to be charged is

a matter of prosecutorial discretion. See State v. Smaage (1996), 276 Mont. 94, 98, 915 P.2d

192, 194-95 (citation omitted).

¶4     Hickok's second issue on appeal is whether the District Court committed reversible

error by admitting other crimes evidence during the State's closing argument. Because she

did not object to the State's remark during closing argument, we will not consider this issue.

See State v. Hendricks, 2003 MT 163, ¶ 14, 316 Mont. 296, ¶ 14, 71 P.3d 1212, ¶ 14


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(citations omitted). Nor will we address Hickok's claim of plain error in this regard, because

she raised it for the first time in her reply brief. See State v. Raugust, 2000 MT 146, ¶ 19,

300 Mont. 54, ¶ 19, 3 P.3d 115, ¶ 19 (citations omitted).

¶5     We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. We conclude the issues raised in Hickok's appeal are clearly controlled by settled

Montana law which the District Court correctly interpreted. Therefore, we affirm the

judgment of the District Court.


                                                  /S/ KARLA M. GRAY


We concur:


/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM REGNIER




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Justice Jim Rice specially concurring.

¶6     I agree with the Court’s resolution of the claims raised by Hickok on appeal and,

therefore, concur in affirming the District Court.

¶7     However, the county attorney’s charging decision in this matter is appalling, and it

is small wonder that the District Judge raised concerns about it. Charging a mother with

felony assault, leading to the attendant consequences–having to register as a violent offender

and losing overnight visitation privileges with her child–was excessive. In this parent-child

disciplinary situation, which admittedly went out of control, a child was bruised, and no

doubt, the filing of a charge was not inappropriate. However, the prosecutor should have

more carefully considered the family context in which the situation arose in determining

what charges to file. This was a positive parent-child relationship in which a mistake

occurred.    The relationship was so important to the defendant that she waived her

constitutional trial rights, thus yielding trial advantage, so that her children would not need

to testify. She was anguished by her conduct and, before charges were even filed, sought

counseling, which she pursued long-term. She had no prior criminal record, except a traffic

ticket. While the prosecution must have discretion in deciding what charge to file, it can do

better than this.

                                                     /S/ JIM RICE




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