No. 02-081
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 238N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ALANNA NONNEMACHER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade,
Honorable Julie Macek, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Kelli S. Sather, Deputy Public Defender, Missoula, Montana
Carl B. Jenson, Jr., Deputy Public Defender, Great Falls, Montana
For Respondent:
Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant
Attorney General, Helena, Montana
Brant Light, County Attorney; Joel Thompson, Deputy County Attorney,
Great Falls, Montana
Submitted on Briefs: June 27, 2002
Decided: October 24, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but 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 to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Alanna Nonnemacher (Nonnemacher) appeals from her conviction
in the Eighth Judicial District Court of felony burglary and
misdemeanor theft. We affirm.
¶3 The following issues are raised on appeal:
¶4 (1) Whether the District Court violated Nonnemacher’s
constitutional right to appear and defend by conducting an omnibus
hearing in her absence;
¶5 (2) Whether the District Court abused its discretion by
denying Nonnemacher’s request to voir dire a witness outside the
presence of the jury;
¶6 (3) Whether the District Court abused its discretion by
denying Nonnemacher’s motion for a directed verdict; and
¶7 (4) Whether a condition of probation, restricting Nonnemacher
from using or possessing alcoholic beverages, should be stricken as
unrelated to the offenses of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
¶8 On April 2, 2001, Great Falls Police Officer Eric Baumman responded to a report of
burglary and theft at Café Earth, a restaurant located on the first floor of the Roberts
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Apartment Building in Great Falls. Based on the statements of restaurant employees, Officer
Baumann suspected that Nonnemacher, a resident and manager of the apartment building,
had committed the crimes. During a police station interview with Baumman, Nonnemacher
signed a written waiver of her Miranda rights, and proceeded to explain to Baumann that on
March 26, 2001, she obtained a key to Café Earth from a lock box containing the keys to all
the businesses in the apartment building. She admitted entering the restaurant that evening
through a back door and taking the money from a register. Although the initial confession
was not recorded, Baumman created a videotape of Nonnemacher completing the written
confession and answering follow up questions about her statements. Nonnemacher was
subsequently charged with burglary, in violation of § 45-6-204(1), MCA, and misdemeanor
theft in violation of § 45-6-301(1)(a), MCA.
¶9 On June 27, 2001, the District Court held an omnibus hearing
to discuss certain pretrial matters, including Nonnemacher’s notice
of reliance on particular defenses, motions to suppress and
dismiss, joinder and severance of offenses, and stipulations.
Although she was represented by counsel at the hearing, Nonnemacher was not informed
about the proceeding and did not attend. During the hearing, Nonnemacher’s attorney
indicated that Nonnemacher was fit to proceed, that Nonnemacher intended to raise the
affirmative defense of compulsion, that she would not introduce evidence of good character
or mental disease or defect, and that she intended to file pretrial motions to suppress
statements. Both the county attorney and Nonnemacher’s attorney reviewed and signed the
Omnibus Hearing Memorandum, stipulating to its entry by the District Court.
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¶10 During the State’s case-in-chief, Brianne Manning, an employee
of Café Earth, testified about Nonnemacher’s access to the
restaurant. Manning’s testimony focused on whether, and for what
purpose, Nonnemacher had a key to the restaurant. Manning stated
that, prior to the burglary, Nonnemacher had indicated that she was
given a key to Café Earth for emergency purposes. Nonnemacher
requested to voir dire Manning to determine the basis of the
testimony. The District Court denied the request, but sustained
several hearsay objections raised by Nonnemacher in response to
Manning’s statements.
¶11 Following the State’s case-in-chief, Nonnemacher moved for a
directed verdict on the burglary charge. She argued that the State
failed to establish that she had unlawfully entered Café Earth
after hours. The State responded by citing Manning’s testimony
that Nonnemacher did not have access to Café Earth. Manning had
indicated that she would have called the police if she had seen
Nonnemacher in the restaurant after hours. The State argued that
Manning’s testimony, coupled with Nonnemacher’s confession and the
videotape, was sufficient to survive the motion for a directed
verdict. The District Court agreed and held that the State had
presented sufficient evidence for the burglary charge to go to the
jury. Nonnemacher then testified on her own behalf. She stated
that, as the manager of the Roberts Apartments, she had keys to all
the businesses located in the building, including Café Earth.
¶12 The jury found Nonnemacher guilty of felony burglary and
misdemeanor theft, and the District Court ordered Nonnemacher
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committed to the Department of Corrections for a term of five years
and six months. In addition, as a condition of pre-release or
acceptance into an Intensive Supervision Program, the District
Court restricted Nonnemacher from using or possessing alcoholic
beverages, or entering any establishment where alcohol is the chief
item of sale, including gambling establishments and casinos.
Notwithstanding its decision to impose the restriction, the
District Court noted that Nonnemacher did not use drugs or alcohol,
and that the burglary and theft were not drug related.
DISCUSSION
I
¶13 Whether the District Court violated Nonnemacher’s constitutional right to appear and
defend by conducting the June 27, 2001, omnibus hearing in her absence.
¶14 Nonnemacher argues that she was excluded from the omnibus
hearing, in violation of Article II, Section 24, of the Montana
Constitution, when the District Court failed to inform her that she
could attend. Nonnemacher suggests that the District Court was
obligated to notify her of her constitutional right to be present
at the hearing. In response, the State argues that since
Nonnemacher’s presence at the hearing was optional, neither the
District Court nor the county attorney had a duty to notify
Nonnemacher that she could attend the hearing.
¶15 We agree with the State that the District Court did not commit
reversible error by failing to inform Nonnemacher that she could
attend the omnibus hearing. Section 46-13-110(3), MCA, governing
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omnibus hearings, provides that “[t]he presence of the defendant is
not required.” Nonnemacher has not questioned the constitutional
validity of § 46-13-110(3), MCA, and, absent such a challenge, we
will apply the statute according to its terms. State v. Kills on
Top (1990), 243 Mont. 56, 102,
793 P.2d 1273, 1304. Under the
language of § 46-13-110(3), MCA, the District Court clearly was not obligated to explain to
Nonnemacher that she could attend the hearing.
¶16 Furthermore, Nonnemacher has not established, nor has she
argued, that her absence from the omnibus hearing resulted in
prejudice to her defense. We have stated that a trial court’s failure to hold an
omnibus hearing is not reversible error absent a showing of prejudice. State v. Hildreth
(1994),
267 Mont. 423, 427-29,
884 P.2d 771, 774-75. Nonnemacher declines to identify
the specific harm that resulted when the District Court and the attorneys discussed pretrial
issues in her absence. Rather, she offers only a general remark that the District Court, the
State, and her own defense counsel addressed “crucial pretrial matters” during the hearing,
and that the “discussion of these issues should not be done outside the presence of a
defendant.” Absent a specific showing of prejudice, we conclude that any error is not
reversible.
II
¶17 Whether the District Court abused its discretion by denying Nonnemacher’s request to
voir dire a witness outside the presence of the jury.
¶18 Our standard of review of a discretionary trial court ruling
in a criminal case is whether the trial court abused its
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discretion. State v. Sullivan (1994), 266 Mont. 313, 324,
880 P.2d
829, 836; State v. Mergenthaler (1993),
263 Mont. 198, 204,
868
P.2d 560, 563; State v. Later (1993),
260 Mont. 363, 364,
860 P.2d
135, 136.
¶19 Nonnemacher argues that the District Court should have allowed
her to voir dire the State’s witness, Brianne Manning, outside the
presence of the jury. She also suggests that the District Court
was obligated to admonish the jury about Manning’s hearsay
statements. Nonnemacher contends that by not admonishing the jury
or granting the voir dire request, the District Court allowed the
jury to hear continuous hearsay testimony for which no foundation
was laid.
¶20 Nonnemacher offers no legal support for these assertions; and
we have declined to consider unsupported arguments on appeal.
State v. Peterson,
2002 MT 65, ¶ 24,
309 Mont. 199, ¶ 24,
44 P.3d
499, ¶ 24 (citing State ex rel. Booth v. Montana Twenty-first
Judicial Dist.,
1998 MT 344, ¶ 35,
292 Mont. 371, ¶ 35,
972 P.2d
325, ¶ 35). An appellant carries the burden of establishing error
by the trial court. Rule 23 of the Montana Rules of Appellate
Procedure requires that the appellant do so by citing to authority
which supports the position being advanced. Nonnemacher offers no
authority, statutory or otherwise, in support of her assertion that the District Court was
obligated to instruct the jury about the inadmissibility of hearsay, or to allow Nonnemacher
to voir dire Manning outside the presence of the jury. It appears, also, that Nonnemacher
never requested the District Court to admonish the jury about the hearsay statements, and
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instead, raises the instruction issue for the first time on appeal. Thus, Nonnemacher has not
established that she was entitled to an opportunity to voir dire Manning or that the District
Court should have admonished the jury about Manning’s hearsay statements.
¶21 In addition, Nonnemacher does not suggest that the court’s
rejection of the voir dire request resulted in prejudice to her
defense. In fact, the record demonstrates that Nonnemacher offered
much of the same testimony solicited from Manning. Nonnemacher
admitted to possessing a key to the restaurant for emergency
purposes. Nonnemacher stated that she was given a key to Café
Earth, that the key was kept in a lock-box, and that the key was to
be used to “let emergency personnel in if there was smoke, or if
there was a fire, or if something happened.” To the extent that
Nonnemacher’s testimony was similar to Manning’s, no harm could
have resulted from Manning’s statements about Nonnemacher’s access
to Café Earth. In the absence of a showing of harm, and because
Nonnemacher’s presumptions about the duties of the District Court
are unsupported, we conclude that the District Court did not abuse
its discretion by denying Nonnemacher’s voir dire request.
III
¶22 Whether the District Court abused its discretion by denying Nonnemacher’s motion
for a directed verdict.
¶23 Our standard of review of a trial court’s decision to deny a
criminal defendant’s motion for a directed verdict is for abuse of
discretion. State v. Brady, 2000 MT 282, ¶ 20,
302 Mont. 174, ¶
20,
13 P.3d 941, ¶ 20 (citing State v. Bromgard (1993),
261 Mont.
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291, 293,
862 P.2d 1140, 1141). When the evidence in a criminal
case is insufficient to support a guilty verdict, the trial court
may, either on its own motion or on a motion of the defendant,
dismiss the action and discharge the defendant. Section 46-16-403,
MCA. A defendant is entitled to a directed verdict of acquittal if
reasonable persons could not conclude from the evidence, taken in a
light most favorable to the State, that guilt was proven beyond a
reasonable doubt. Bromgard,
261 Mont. at 293,
862 P.2d at 1141.
¶24 Nonnemacher argues that the District Court should have granted
her motion for a directed verdict on the burglary charge because
the State failed to establish that she unlawfully entered the
restaurant after hours. She maintains that the only evidence
offered by the State regarding her right to be in Café Earth after
hours included Brianne Manning’s inadmissable hearsay statements
that Nonnemacher had obtained a key to the restaurant for emergency
purposes.
¶25 We agree with the District Court that the evidence, viewed in a light most favorable to
the State, was sufficient to go to the jury. The code section under which Nonnemacher was
convicted provides that “[a] person commits the offense of burglary if he knowingly enters or
remains unlawfully in an occupied structure with the purpose to commit an offense therein.”
Section 45-6-204(1), MCA. Nonnemacher fails to acknowledge that the District Court
denied her motion on the basis of testimony from both Manning and Officer Baumman, as
well as Nonnemacher’s own confession, all of which suggest that Nonnemacher entered Café
Earth unlawfully. The record indicates that Manning testified that she would have notified
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the police if she had discovered Nonnemacher in Café Earth after hours. In response to the
question of whether Nonnemacher should have been in the restaurant, Manning stated that
“there wouldn’t be any reason for her to be in there unless there was flames coming out of
the building.” In addition, Officer Baumman testified that Nonnemacher confessed to
obtaining a key to Café Earth from a lock-box in the office of the Roberts Apartments,
entering the restaurant through the back door, and taking money from the register. In light of
this testimony and Nonnemacher’s own confession, we conclude that the District Court did
not abuse its discretion by denying Nonnemacher’s motion for a directed verdict.
IV
¶26 Whether the condition of probation restricting Nonnemacher from using or possessing
alcoholic beverages should be stricken as unrelated to the charged offenses.
¶27 Our standard of review of a criminal sentence is limited to
questions of legality and is confined to whether the sentence is
within the parameters provided by statute. State v. Muhammad, 2002
MT 47, ¶ 18,
309 Mont. 1, ¶ 18,
43 P.3d 318, ¶ 18 (citing State v.
Pritchett,
2000 MT 261, ¶ 6,
302 Mont. 1, ¶ 6,
11 P.3d 539, ¶ 6).
¶28 Nonnemacher argues that there is no nexus between the charged
offenses of burglary and theft and the requirement that she not use
or possess any alcoholic beverages or be under the influence of
alcohol. Citing State v. Ommundson,
1999 MT 16, ¶ 11,
293 Mont.
133, ¶ 11,
974 P.2d 620, ¶ 11, Nonnemacher maintains that there
must be a relationship between the underlying charge and the
condition of the sentence given. Section 46-18-202(1), MCA, allows
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the imposition of limitations “reasonably related to the objectives
of rehabilitation and the protection of the victim and society.”
¶29 In Ommundson, we interpreted this statute as requiring that a
sentencing condition have some “corrolation or connection to the
underlying offense for which the defendant is being sentenced.” ¶
11. Applying this standard, we held that a condition of the
defendant’s sentence, requiring participation in a sex offender
treatment program, was unrelated to the charged offense of DUI.
Ommundson, ¶¶ 11, 12. There was no evidence that treatment for
indecent exposure would curtail the incidence of alcohol abuse or
DUI by the defendant in society. Ommundsun, ¶ 12. Similarly, in
the present case, the condition of probation restricting
Nonnemacher from using or possessing alcoholic beverages is not
reasonably related to Nonnemacher’s rehabilitation or the
protection of society. According to Nonnemacher’s probation and
parole officer, Nonnemacher was under his supervision for five
years and had not used alcohol or drugs during that time. In light
of the officer’s testimony, the District Court noted that neither
alcohol nor drugs seemed to be the reason for Nonnemacher’s
conduct. The State also concedes, in its brief, that because there
was no evidence presented to the District Court indicating that the
offenses were drug or alcohol related, the sentence should be
stricken. We conclude that the condition of probation restricting
Nonnemacher from using or possessing alcoholic beverages should be
stricken as unrelated to the charged offenses.
CONCLUSION
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¶30 In summary, we affirm Nonnemacher’s conviction of felony
burglary and misdemeanor theft; and we order stricken from the
District Court’s November 13, 2001 Judgment of Conviction and
Sentencing Order that portion of Nonnemacher’s sentence which
restricts Nonnemacher from using or possessing alcoholic beverages,
or entering establishments where alcohol is the chief item of sale.
The remaining provisions of the sentence are affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JIM RICE
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