                                             DA 13-0515                                     October 21 2014

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                            2014 MT 279


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSEPH ROBERTSON and
CARRI ROBERTSON,

              Defendants and Appellants.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Jefferson, Cause Nos. DC-2012-44 and DC-2012-45
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Jeanne M. Walker; Hagen & Walker, PLLC; Billings, Montana
                        (for Joseph D. Robertson)

                        Jennifer A. Hurley; Hurley Kujawa PLLC; Butte, Montana
                        (for Carri Robertson)

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein,
                        Assistant Attorney General; Helena, Montana

                        Mathew J. Johnson, Jefferson County Attorney; Boulder, Montana



                                                     Submitted on Briefs: September 3, 2014
                                                                Decided: October 21, 2014

Filed:




                                             Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Carri and Joseph Robertson separately appeal their convictions for criminal

trespass and theft. We restate the issues on appeal as follows:

¶2     1. Whether the State presented sufficient evidence to convict the Robertsons of
trespass and theft.

¶3     2. Whether the Court should review issues that the Robertsons did not raise
with the District Court.

¶4    3. Whether the written judgments conform to the oral pronouncement of
sentences.

¶5     We affirm the theft convictions, vacate the trespass convictions, and remand the

written judgments to the District Court for amendment.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶6     The Robertsons were members of the Basin Volunteer Fire Department (BVFD)

for most of 2011. Issues arose within the BVFD and, on December 28, 2011, the BVFD

Board of Trustees (Board) mailed a letter to the Robertsons stating, “[Y]our membership

with the [BVFD] is being placed in suspension status.” The letter explained that the

suspension was “put in place by the [Board] of the BVFD as per the by-laws adopted July

2011.” The letter also informed the Robertsons that “[d]uring suspension status you are

not allowed to enter any property owned by the BVFD . . . .”

¶7     By January 14, 2012, the Robertsons had received and read their suspension

letters. While driving that day, they encountered a disabled vehicle pulled off alongside

the interstate. The Robertsons offered to help the driver. Carri called the Jefferson

County Sheriff’s Office and told the dispatcher that they were going to deploy cones and
                                         2
flares. The Robertsons then went to the BVFD fire hall, using their member access codes

to enter.   While there, the Robertsons took two fire jackets from the unassigned

inventory, as well as two cones and some flares. Carri called BVFD President Dema

Rhodes and left a message advising her that they were taking cones and flares from the

fire hall to help a disabled vehicle. Carri did not mention the jackets.

¶8     The Robertsons returned to the disabled vehicle and placed the cones and flares on

the highway. A passing truck ran over and destroyed one of the cones. After they

finished their assistance, the Robertsons went back to the fire hall. They returned the

intact cone but not the jackets, and took a handful of additional flares. Carri called

Rhodes again, leaving a message that the Robertsons returned the cones.

¶9     Later, on the fire hall’s surveillance video, Rhodes saw that the Robertsons had

taken and not returned the two jackets.        Eventually, a warrant was issued for the

Robertsons’ arrest, after which the Robertsons turned themselves in and returned the

jackets.

¶10    The State charged the Robertsons with trespass for entry into the fire hall and with

theft of the cones, flares, and jackets. Trial began on April 3, 2013, before a jury in the

Fifth Judicial District Court. The Robertsons were jointly represented.

¶11    After voir dire but before the venire panel returned to the courtroom for final

selection, the judge held a conference with the parties in the courtroom. Defense counsel

informed the judge that there were prosecution witnesses in the courtroom’s foyer

speaking to prospective jurors. The judge then went out into the hallway to investigate.

                                          3
Upon returning, the judge reported that the bailiff was keeping the potential jurors

separate from the witnesses, and that all witnesses and other persons in the hallway

denied speaking with any members of the jury pool. Defense counsel did not object or

request the opportunity to question either the prospective jurors or the people in the

hallway about any contact between them, and the proceedings continued.

¶12     The trial lasted two days. At the end of the second day, the parties submitted the

case to the jury for deliberations. The jury deliberated for approximately fifty minutes

before the judge reconvened the parties and the jury. The jury reported that it had more

deliberating to do before it could reach a verdict. The judge disclosed that he had a long

drive ahead of him that evening and that he would not be able to return to oversee the rest

of the deliberations until April 17. The judge and parties then spoke off the record.

Going back on the record, the judge said that the court would reconvene in nearly three

weeks, on April 24, for the jury to continue deliberating. Neither party objected to this

plan.

¶13     On April 24, 2013, the court reconvened for further deliberations.            The jury

deliberated for approximately two hours before returning guilty verdicts.

¶14     At the sentencing hearing, the court asked whether the parties had any objections

to the restitution affidavit for the cost of the trial. The restitution affidavit disclosed that

three members of the jury pool who did not serve on the jury had addresses outside

Jefferson County. Neither party raised any concerns about the out-of-county addresses.

The court sentenced each of the Robertsons to consecutive six-month jail terms and $500

                                           4
fines on each count, all suspended. The court also imposed restitution to the BVFD plus

all costs of the jury trial.

¶15     The Robertsons separately appeal their convictions.

                                STANDARD OF REVIEW

¶16     We generally decline to consider issues raised for the first time on appeal. State v.

Torres, 2013 MT 101, ¶ 37, 369 Mont. 516, 299 P.3d 804. Regardless of whether it was

raised below, however, we review de novo a claim of insufficiency of the evidence. State

v. Criswell, 2013 MT 177, ¶ 13, 370 Mont. 511, 305 P.3d 760. We view the evidence in

the light most favorable to the prosecution and ask whether a rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Criswell,

¶ 13.

                                       DISCUSSION

¶17 1. Whether the State presented sufficient evidence to convict the Robertsons of
trespass and theft.

¶18     The Robertsons each were convicted of trespass and theft, and each now appeals

those convictions on the ground of insufficient evidence.

        A. Trespass

¶19     Trespass to property has three elements: (1) a “person knowingly,” (2) “enters or

remains unlawfully in,” (3) an “occupied structure” or “the premises of another.” Section

45-6-203(1)(a)-(b), MCA. “A person enters or remains unlawfully . . . when the person is

not licensed, invited, or otherwise privileged . . . .”        Section 45-6-201(1), MCA.


                                          5
Privilege to enter “may be revoked at any time by personal communication of notice by

the landowner or other authorized person . . . .” Section 45-6-201(1), MCA.

¶20    The Robertsons both argue that, as BVFD members, they were privileged to enter

the fire hall, which means their entry was lawful under § 45-6-201(1), MCA. They claim

that no “authorized person” revoked that privilege before they entered the fire hall on

January 14, 2012. Section 45-6-201(1), MCA.

¶21    The State does not dispute that BVFD members ordinarily are privileged to enter

the fire hall. The State argues that the Board was authorized to revoke the Robertsons’

privilege to enter the fire hall, and did revoke that privilege through the suspension letter.

The suspension letter specifically informed the Robertsons that they were “not allowed to

enter any property owned by the BVFD . . . .”

¶22    Montana permits fire district boards of trustees to “govern[ ] and manage[ ]” fire

districts. Section 7-33-2104, MCA. Trustees accordingly have powers to “prepare and

adopt suitable by-laws” and “provide adequate and standard firefighting and emergency

response apparatus, equipment, personnel, housing, and facilities.” Section 7-33-2105,

MCA. The Board’s suspension letter, admitted into evidence, informed the Robertsons

their “suspension [was] put in place by the Board of Trustees of the BVFD as per the

by-laws adopted July 2011.” The State submitted into evidence the July 2011 BVFD

“Constitution and By-Laws.” The document provides, “Any adult citizen, who resides in

Basin or who owns real property in the fire district or who lives in an area adjacent to the

[BVFD], can be a member of the [BVFD].” The document also provides, “Any member

                                          6
may be removed from the [BVFD], for cause, by two-thirds vote of the active

membership. Such cause for removal will be put in writing by the Chief or the Trustees

and kept on record with the Fire Department.”

¶23    BVFD Trustee Greg Hughes testified that the by-laws authorized the Board to

suspend members. He located the authorization in the by-laws’ reference to “such calls

[sic] for removal” and testified “I would consider the word ‘calls [sic] for removal’ to be

part of a suspension.” He admitted, however, that no “direct words” provided the Board

authority to suspend BVFD members. BVFD President Rhodes, meanwhile, testified that

the Board lacks the power to remove a person from the ranks of BVFD members or to

exclude members from the fire hall.

¶24    Viewing the evidence in a light most favorable to the prosecution, we conclude

that the State failed to offer sufficient evidence that the Robertsons unlawfully entered

the fire hall. The Robertsons were members of the BVFD. Like other members, they had

the code needed to enter the fire hall.

¶25    There is insufficient evidence to establish that the Board was authorized to revoke

the Robertsons of their privilege to enter the fire hall. At trial, the State did not dispute

that the Board derives its authority from the July 2011 by-laws. The BVFD by-laws do

not authorize the Board to suspend BVFD members. In fact, the by-laws are altogether

silent on the suspension of BVFD members. The by-laws specify that the removal of a

BVFD member requires “a two-thirds vote of active membership.” But the Robertsons’

suspension was not executed through a “two-thirds vote of active membership.” As the

                                          7
suspension letter makes clear, the suspension was “put in place by the Board of

Trustees.” Although the by-laws require the Trustees or the Chief to record “such cause

for removal” after it has occurred by a vote of BVFD members, that clause does not grant

the Board the power to suspend members before a removal vote.

¶26    The State argues that it is irrelevant whether the Board has the power to suspend

because the Board also informed the Robertsons in the letter that they were “not allowed

to enter any property owned by the BVFD . . . .” This argument suffers two flaws. First,

the suspension letter predicated the removal of the Robertsons’ privilege to enter BVFD

property on the Robertsons’ suspension. The entire pertinent portion of the letter reads,

“During suspension status you are not allowed to enter any property owned by the BVFD

[emphasis supplied] . . . .” If the Board lacked the power to suspend, then there was no

“suspension status” during which the Robertsons were not allowed to enter BVFD

property.

¶27    Second, the State points to nothing in the by-laws that provides the Board the

authority to ban a BVFD member from entering the fire hall. Without a suspension

clause, there is nothing in the by-laws to support the Board’s claimed authority to revoke

a BVFD member’s permission to enter BVFD property.

¶28    As a matter of law, in the absence of authority, the Board could not revoke the

Robertsons’ normal privileges to enter the fire hall. We thus vacate the Robertsons’

respective trespass convictions.




                                        8
       B. Theft

¶29    A person commits theft when he or she purposely or knowingly obtains or exerts

unauthorized control over property of another with the purpose of depriving the other

person of that property. Section 45-6-301(1), MCA.

¶30    Drawing all reasonable inferences in favor of the prosecution, we conclude that

the State presented sufficient evidence to sustain the Robertsons’ respective theft

convictions. Unlike entering the fire hall, which BVFD members were privileged to do,

the State’s evidence suggested that individual firefighters were not privileged to take

jackets from the inventory without special permission. Rhodes testified that jackets in the

inventory were for new firefighters without jackets of their own. The Robertsons had

their own jackets in their assigned lockers. Moreover, the State presented sufficient

evidence that the Robertsons possessed the requisite state of mind for a theft offense.

Unlike other items they took, the Robertsons did not report taking the jackets. And

unlike a cone they took, the Robertsons did not return the jackets until a sheriff’s deputy

confronted them. A reasonable juror could conclude from these facts that the Robertsons

exercised unauthorized control over the jackets with the intent to purposely deprive the

BVFD of them.

¶31 2. Whether the Court should review the issues that the Robertsons did not raise
with the District Court.

¶32    We generally will not review the merits of an issue that an appellant fails to

preserve through a timely objection at trial. Torres, ¶ 37; see § 46-20-104(2), MCA.

Although we retain our common law power to review unpreserved issues under the plain
                                         9
error doctrine, we exercise that power only when an appellant convinces us that (1) “the

claimed error implicates a fundamental right,” and (2) “the claimed error would result in

a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness

of the trial or proceedings, or compromise the integrity of the judicial process.” Torres,

¶ 37.

¶33     On appeal, Joseph raises whether it was proper for the District Court to adjourn

jury deliberations for three weeks and whether the procedures used to select his jury pool

complied with statutory requirements. Carri raises whether her right to presence was

violated by the District Court judge speaking to witnesses outside her presence. On all

these issues, we find the Robertsons’ failures to object fatal to their claims.

        A. Adjournment in Jury Deliberations

¶34     Joseph challenges the propriety of the adjournment in jury deliberations. The

Robertsons failed to object either before or immediately following the adjournment.

After the jury reconvened, deliberated, and delivered its verdicts, however, the

Robertsons moved for a “mistrial” based on the adjournment—a motion that the District

Court summarily denied.1

¶35     A motion for a new trial does not serve as a replacement for a timely objection.

State v. Ugalde, 2013 MT 308, ¶ 59, 372 Mont. 234, 311 P.3d 772. Joseph did not object




1
 Although to both the District Court and this Court Joseph referred to his motion as a motion for
mistrial, it is more properly considered a motion for a new trial because it came “[f]ollowing a
verdict or finding of guilty.” Section 46-16-702, MCA. We thus will refer to it as a motion for a
new trial in this opinion.
                                            10
when the District Court determined that there would be a three-week adjournment in

deliberations and does not request plain error review. We decline to consider this issue.

       B. Right to Presence

¶36    Carri argues that the judge’s inquiry into whether there was contact between

witnesses and jurors violated her right to be present at a critical stage of her trial because

the judge’s inquiry took place in the hallway while she remained in the courtroom.

Although she did not object to the inquiry at the time, she nonetheless insists that the

Court now review the merits of the issue.

¶37    The Sixth Amendment of the United States Constitution and Article II, Section 24

of the Montana Constitution guarantee a criminal defendant the right to be present at all

critical stages of her trial. State v. Matt, 2008 MT 444, ¶¶ 16-17, 347 Mont. 530, 199

P.3d 244. A critical stage is “any step of the proceeding where there is a potential for

substantial prejudice to the defendant.” Matt, ¶ 17.

¶38    Carri’s exclusion from the judge’s brief inquiry did not inhibit her opportunity to

register a contemporaneous objection. The supposed critical stage occurred right outside

the courtroom where Carri was present. Carri was present but did not object when the

judge said “I’m going out in the hallway.” Carri also was present but did not object

immediately after the inquiry when the judge reported what he had learned.

¶39    Carri argues that the claim is properly before the Court because there was no

“contemporaneous, personal, knowing, voluntary, intelligent and on-the-record waiver”

of her right to be present. State v. Tapson, 2001 MT 292, ¶ 32, 307 Mont. 428, 41 P.3d

                                          11
305. Earlier this year, we clarified how we analyze appeals on unpreserved right to

presence claims. In State v. Reim, 2014 MT 108, 374 Mont. 487, 323 P.3d 880, the Court

addressed a defendant’s claimed violation of his right to presence by noting that “in the

absence of a timely objection in the trial court, the defendant must obtain review of a

right to presence claim under one of the established methods, such as plain error review

or an ineffective assistance of counsel claim.” Reim, ¶ 40.

¶40    Although Carri requests plain error review, she has not met her burden to “firmly

convince” the Court that her exclusion compromised the justness, fairness, or integrity of

her trial. Torres, at ¶ 37. Carri compares her right to presence claim to other right to

presence claims that the Court has elected to review in the past, but the comparison is

unconvincing. Both in Tapson and in State v. Kennedy, 2004 MT 53, 320 Mont. 161, 85

P.3d 1279, the trial judge, without the defendant present, spoke with members of the jury

directly—in Tapson, in the jury room while the jury was deliberating, and in Kennedy,

privately with a juror about a “clear possibility [of] juror misconduct.” Tapson, ¶ 11;

Kennedy, ¶ 26.

¶41    By contrast, the contact here was the judge’s brief foray into the hallway to inquire

whether the witnesses had spoken to any of the prospective jurors during the break. The

judge immediately returned and reported on the record what had occurred. Carri was

present with counsel and the jury had not yet been sworn. She had the opportunity to

object at that time and to make a record. As we noted in Reim, our prior decisions did not

create a blanket rule that “all right of presence claims [are exempt] from the general rule

                                         12
that a constitutional violation must be first presented to the trial court.” Reim, ¶ 40.

Under these circumstances, we decline to exercise plain error review.

       C. Substantial Compliance with Jury Pool Procedures

¶42    A criminal defendant’s right to trial by an impartial jury includes the right to a jury

pool that represents a fair cross-section of the community. State v. LaMere, 2000 MT 45,

¶ 36, 298 Mont. 358, 2 P.3d 204. Certain procedures must be followed to ensure that the

fair cross-section requirement is met. LaMere, ¶ 38; see §§ 3-15-301, -402 to -404,

MCA.

¶43    Joseph claims that there was a “substantial failure” to comply with the mandated

procedures in the procurement of his jury pool. LaMere, ¶ 55. Specifically, he points out

that the State’s restitution affidavit disclosed that three persons who participated in the

jury pool had traveled from addresses outside Jefferson County and thus presumably

were not Jefferson County residents. Although none of these three individuals ended up

serving on the jury, and Joseph did not have to use any of his peremptory challenges on

them, Joseph claims that their participation in the jury pool violated his rights because it

evinced a substantial failure to comply with jury pool procurement procedures.

¶44    Joseph failed to register an objection on this issue during the jury selection

process. On appeal, he points out that nothing in the record shows that he knew that

these three individuals were from outside the county. To the contrary, Joseph argues that

he received a notice from the District Court on March 21, 2013, that thirty-five




                                          13
prospective jurors had been randomly selected “pursuant to” Montana’s jury selection

procedures.

¶45    At the beginning of voir dire, however, Joseph’s counsel “stipulate[d]” that the

“veneer [sic] panel [was] properly summoned, properly selected, and [had] an appropriate

number of persons . . . .” Moreover, the record does reveal that Joseph was put on notice

of this issue during the sentencing phase, but raised no concern when presented with the

restitution affidavit.

¶46    To preserve an issue for appeal, an appellant must object “as soon as the grounds

for the objection become apparent.” State v. Grace, 2001 MT 22, ¶ 35, 304 Mont. 144,

18 P.3d 1008.       While Joseph argues that there is nothing in the record to show

conclusively that he knew about the addresses of the three jurors at the voir dire stage,

Joseph nonetheless should have known at this stage. Under Uniform District Court

Rule 9, the jury questionnaires were available to counsel, and Joseph’s counsel stipulated

that the jury pool was properly summoned and selected.

¶47    We are not convinced that the inclusion of these three jurors in the jury pool

resulted in “a manifest miscarriage of justice, left unsettled the question of the

fundamental fairness of the trial or proceedings, or compromised the integrity of the

judicial process.” Torres, ¶ 37. None of the individuals actually served on the jury that

tried the case. None therefore played a role in convicting Joseph. Moreover, Joseph did

not have to use any of his preemptory challenges on any of these three individuals. Thus,

we do not find the circumstances appropriate for plain error review.

                                        14
¶48 3. Whether the written judgments conform to the oral pronouncement of
sentences.

¶49    The Robertsons own their own fire company and engage in fire suppression by

contract. At sentencing, the Robertsons pointed out that they may be called upon to assist

the BVFD in fire suppression. The District Court ordered the Robertsons to stay out of

the fire hall, but said that it “intends by the absence of comment to make no order about

[the Robertsons’] firefighting activities.” At the sentencing hearing, the court imposed no

restriction on the Robertsons’ abilities to interact with law enforcement. When the

written judgment was entered, however, it included a condition that the Robertsons “must

report any contact with law enforcement to the County Attorney within 48 hours.”

¶50    The record shows that the Robertsons were not “afforded the opportunity to

respond to [this] condition’s inclusion upon sufficient notice at sentencing.” State v.

Goff, 2011 MT 6, ¶ 31, 359 Mont. 107, 247 P.3d 715. Therefore, the question is whether

the condition “substantively increase[s] the [Robertsons’] loss of liberty or property.”

Goff, ¶ 31. The State argues that it does not, and promises to not predicate probation

revocation proceedings on the Robertsons’ failure to report contact with law enforcement

during emergency situations.

¶51    Notwithstanding the State’s pledge on appeal, the written judgment requires any

contact with law enforcement to be reported. The Robertsons will almost certainly come

into frequent contact with law enforcement while engaging in their business activities.

Requiring them to report those contacts within forty-eight hours or potentially face


                                        15
revocation constitutes a substantial interference with their livelihood, and, by extension,

their liberty and property. We thus conclude that this clause should not stand.

                                    CONCLUSION

¶52    We affirm the Robertsons’ convictions for theft. Because the State presented

insufficient evidence to convict the Robertsons of trespass, we vacate their trespass

convictions. We remand the case to the District Court with instructions to conform the

written judgments to the oral pronouncement of the sentences.



                                                 /S/ BETH BAKER

We concur:

/S/ PATRICIA COTTER
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




                                        16
