State v. Ball

No. 05-032
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 61N
STATE OF MONTANA,
Plaintiff and Respondent,
v.
SHERRY LEA BALL,
a/k/a SUZI BALL,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Roosevelt, Cause No. DC 04-13
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mary L. Zemyan, Attorney at Law, Wolf Point, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Joslyn M. Hunt,
Assistant Attorney General, Helena, Montana
Fred Hofman, Roosevelt County Attorney; Wolf Point, Montana
Submitted on Briefs: March 7, 2006
Decided: March 28, 2006
Filed:
__________________________________________
Clerk
Chief Justice 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. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 A jury in the Fifteenth Judicial District Court, Roosevelt County, found Sherry Lea
Ball, a/k/a Suzi Ball, guilty of theft, criminal possession of drug paraphernalia and
endangering the welfare of a child. Ball appeals on two issues relating to evidence seized in
a search of her home. We affirm.
¶3 The issues are whether the District Court erred in denying Ball’s motion to suppress
because (1) the search commenced before a search warrant was issued and, therefore, must
be considered a warrantless search; and (2) law enforcement officers failed to comply with
federal requirements in serving the search warrant.
¶4 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. The issues are clearly controlled by settled Montana and federal law.
¶5 Ball raises her first issue for the first time on appeal. We do not consider issues raised
for the first time on appeal. See, e.g., State v. Frasure, 2004 MT 242, ¶ 19, 323 Mont. 1, ¶
19, 97 P.3d 1101, ¶ 19. Therefore, we will not discuss the first issue further.
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¶6 In her second issue, Ball argues the officers who searched her home did not satisfy the
requirements of Rule 41(f)(3), Fed.R.Crim.P. (This case arose out of a theft on the Fort Peck
Indian Reservation, and Ball’s home was searched pursuant to a federal search warrant.)
Rule 41(f)(3) requires an officer executing a warrant to give a copy of the warrant and a
receipt for the property taken to the person from whom, or from whose premises, the property
was taken or to leave a copy of the warrant and a receipt at the place from which the officer
took the property. Although Ball now argues she should have been given a copy of the
warrant before her home was searched, she did not make this argument in her written motion
to suppress in the District Court, nor has she provided us with the portion of the transcript in
which she orally argued her motion to suppress to the District Court and the District Court
ruled thereon. It is the responsibility of the appellant to provide a record on which we can
decide the appeal. Rule 9(a), M.R.App.P. As a result of Ball’s failure to provide us with a
proper record, we are unable to determine whether this legal theory was raised at trial. In
addition, Ball has cited no authority under which the law enforcement officers’ acts would be
insufficient to satisfy the requirements of the second alternative under Rule 41(f)(3),
Fed.R.Crim.P.
¶7 Affirmed.
/S/ KARLA M. GRAY
We concur:
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/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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