# In re T.W.

> Montana Supreme Court · July 11, 2006 · 332 Mont. 454

URL: https://www.frixlaw.com/law-library/cases/8029940

## Case

- **Full name:** IN THE MATTER OF T.W. and J.M., Youths In Need Of Care
- **Court:** Montana Supreme Court
- **Decided:** July 11, 2006
- **Citations:** 332 Mont. 454; 139 P.3d 810; 2006 MT 153; 2006 Mont. LEXIS 317
- **Precedential status:** Published
- **Opinion:** Concurrence by Nelson
- **Judges:** Gray, Leaphart, Morris, Nelson, Rice
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8029940

## Opinion text

JUSTICE NELSON
concurs.
¶17 I concur in the result of the Court’s Opinion, but not in all that is said.
¶18 As noted at ¶ 11 of the Opinion, R.M.’s objection to Dahle’s testimony was simply that it “[c]all[ed] for hearsay.” The State’s attorney responded that the basis for the admissibility of the testimony *459 was Rule 803(2), M.R.Evid., the excited utterance exception. R.M. did not respond; he failed to set forth the specific basis for his general hearsay objection. State v. Ferguson, 2005 MT 343, ¶ 63 , 330 Mont. 103, ¶ 63 , 126 P.3d 463, ¶ 63 (“[sjpecific objections must be made to portions of testimony deemed inappropriate; broad general objections do not suffice.”) (citations omitted).
¶19 Instead, on appeal, for the first time, R.M. recasts his arguments as ones involving confrontation, citing Crawford v. Washington (2004), 541 U.S. 36 , 124 S.Ct. 1254 , 158 L.Ed.2d 177; Bonamarte v. Bonamarte (1994), 263 Mont. 170 , 866 P.2d 1132 ; Rule 611(e), M.R.Evid.; and State v. Mizenko, 2006 MT 11 , 330 Mont. 299 , 127 P.3d 458 . Moreover, R.M. made no argument in the trial court that Dahl’s statements might not even qualify as excited utterances.
¶20 The excited utterance exception is one of the recognized exceptions to the hearsay rule. Rule 803(2), M.R.Evid. R.M. failed to articulate his objection to the trial court in a fashion that would have preserved any of his present appeal arguments against Dahl’s testimony which was offered on the basis of the exception to the hearsay rule.
¶21 Given the posture in which this case reaches us on appeal from the proceedings below, I would arrive at the same result as the Court, but on the basis of the well-established rule that this Court will not address an issue raised for the first time on appeal, or a party’s change in legal theory. State v. Buck, 2006 MT 81, ¶ 109 , 331 Mont. 517, ¶ 109 , 134 P.3d 53, ¶ 109 (citations omitted). I would not go any further than that, because of the importance of the arguments being raised here for the first time and because of the fundamental nature of the right to parent which is at issue. In re C.R.O., 2002 MT 50, ¶ 10 , 309 Mont. 48, ¶ 10 , 43 P.3d 913, ¶ 10 .
¶22 I concur in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8029940. Public record. Not legal advice.