Submitted On Briefs: November 5, 2013
APPEAL FROM District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC-11-114 Honorable Jeffrey H. Langton, Presiding Judge
For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana
For Appellee: Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana William Fulbright, Ravalli County Attorney; Angela Wetzsteon, Deputy County Attorney, Hamilton, Montana
Mike McGrath Chief Justice
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Jeremy Richard Ward appeals from his April 2012 convictions in the Twenty First Judicial District Court of the offenses of aggravated assault and assault with a bodily fluid. We affirm.
¶3 On September 11, 2011, Ward and his mother attended a party. Ward was intoxicated and became agitated, turning over furniture and repeatedly striking his mother. When law enforcement officers responded, Ward resisted arrest by fighting and then spitting. Ward's mother suffered broken bones in her face, cuts that were stitched closed and bruising on various parts of her body. A doctor recommended that she have surgery to straighten her nose.
¶4 After trial the jury convicted Ward of aggravated assault and assault with a bodily fluid, and acquitted him of assault on a police officer and resisting arrest. The District Court subsequently sentenced Ward as a persistent felony offender to thirty five years at Montana State Prison.
¶5 On appeal Ward contends that that the District Court erred by sentencing him as a persistent felony offender without requiring the jury to determine whether he had a prior felony record, and that the District Court erred by admitting or allowing the jury to consider irrelevant and prejudicial evidence.
¶6 Montana law allows a person convicted of a second felony offense within five years to be sentenced as a persistent felony offender. Section 46-18-501, MCA. The prosecution must give notice of the intent to seek PFO treatment and must specify the prior convictions that support the designation. The accused who objects to the allegations in the notice is entitled to a hearing. Section 46-13-108, MCA.
¶7 In the District Court proceedings Ward never attacked the adequacy of the prosecution's notice that it intended to seek designation as a PFO. Ward never requested a hearing on the identity of his prior felony convictions and admitted to a 2009 conviction for felony driving under the influence. He never attacked the propriety of his designation as a PFO. Moreover, it was clear that Ward's position in District Court was, quite reasonably, that it would be prejudicial to him if the jury knew about his prior record. He successfully moved the District Court to prohibit the prosecution from informing the jury of any evidence of his criminal record.
¶8 Ward failed to raise any issue in District Court as to whether the jury should determine the extent of his prior record. Not only did he fail to raise that issue, he affirmatively took the opposite position by successfully seeking to prohibit introduction of his criminal record. He did not contest the accuracy of his criminal record and does not do so on appeal. He does not explain how he was prejudiced by not having his prior record presented to the jury.
¶9 This Court does not consider issues raised for the first time on appeal. Section 46-20-104(2), MCA; State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. This Court will not reverse a district court based upon alleged error that the defendant acquiesced in or actively participated in. State v. Micklon, 2003 MT 45, ¶ 10, 314 Mont. 291, 65 P.3d 559. ...