State v. Aragon

2014 MT 89, 321 P.3d 841, 374 Mont. 391, 2014 Mont. LEXIS 170, 2014 WL 1306738

Opinions

JUSTICE RICE

delivered the Opinion of the Court.

¶1 Benjamin Aragon (Aragon) appeals the order of the Thirteenth Judicial District Court, Yellowstone County, upholding the Justice Court’s order imposing restitution of $1,910.86 followinghis guilty plea for driving under the influence of alcohol and reckless driving, both misdemeanors.

¶2 We reverse and address the following issue:

¶3 Did the District Court err by affirming the Justice Court’s imposition of restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On August 24,2012, while driving under the influence of alcohol in Billings, Aragon drove off the road and collided with Barbara Turcotte’s (Turcotte) garage. Aragon cooperated with law enforcement and admitted responsibility for the accident. Aragon was initially charged with misdemeanor DUI in Justice Court. The State subsequently charged Aragon with criminal endangerment, a felony, dismissing the charge in Justice Court and re-filing with the new charge in District Court. Aragon agreed to a plea bargain whereby he would plead guilty to DUI and reckless driving, both misdemeanors. Because the felony charge was dropped under the agreement, the State dismissed the charge in District Court and re-filed misdemeanor charges in Justice Court.

¶5 On February 28,2013, Aragon pled guilty in Justice Court to DUI and reckless driving, second offense. That same day, the court sentenced him to six months in jail, with all but seven days suspended, along with a $1,000 fine and court charges, for the DUI offense. The court sentenced him to six months in jail, all suspended, along with a $300 fine and court charges, for the reckless driving offense, to run concurrently with his DUI sentence. The State requested restitution for Turcotte’s property damage, and informed the court that, pursuant to a victim’s loss statement prepared for the District Court proceedings, the damage was estimated at $3,270. Aragon informed the court it was his understanding that his auto insurance had covered the damage. Consequently, a restitution hearing was scheduled for March 12,2013, to resolve the discrepancy.

¶6 Before the restitution hearing, Turcotte wrote a letter addressed to the court explaining that she would rather Aragon perform 40 hours of community service in lieu of paying restitution to her in order to “provide service to his community to atone for his lack of judgment that night.” This letter was dated March 8, 2013, but may have been delivered to the prosecutor, as it was not provided to the court until the March 12th hearing. Aragon’s briefing indicates that, prior to the hearing, the State advised him “that it would not make the restitution claim” in favor of Aragon performing community service. However, a citation to the record is not provided and apparently there is no record information about when this conversation occurred, whether the court was advised of the change of position, or whether Aragon advised the State at that time that he would object to community service. At the hearing, the State advised the court of Turcotte’s new request and submitted her letter. Aragon objected to imposition of any community service requirement as he had already been sentenced and the hearing was only for the purpose of restitution. The State then renewed its request for imposition of restitution, and offered the victim loss statement that Turcotte had prepared while the case was pending in District Court. This statement estimated the damages to be $3,270, and attached an estimate from Absolute Construction, dated September 4,2012, showing a breakdown of $320 to fix the siding and $2,950 to repaint the entire house “to match current color.” Also submitted to the court was the repair breakdown provided by Aragon’s insurance company, dated September 19, 2012, indicating a total repair cost of $1,359.14. This amount included repairs to the siding, painting, and reseeding the landscaping, and Turcotte’s loss statement acknowledged this amount had been paid to her by the insurance company. Turcotte was not present at the hearing.

¶7 Aragon argued that the request to repaint the entire home was not appropriate because Aragon had damaged only the garage. Although the garage was attached to the house, Aragon argued there was no evidence demonstrating why the whole house needed to be repainted, as opposed to only the garage, which is what the insurance adjuster had determined was necessary. The State offered no further information regarding the requested amount, stating it didn’t “have any other information besides what’s on the loss statement.” The Justice Court expressed concern about the request to repaint the entire house, and stated that it “can’t go with [Turcotte’s] letter.” Nonetheless, the court ultimately ordered that Aragon owed an additional $1,910.86 in restitution above the amount covered by his insurance.

¶8 Aragon appealed to the District Court, which reviewed the record and questions of law pursuant to § 3-10-115, MCA. The District Court upheld the restitution order, noting that Turcotte was a victim who had suffered a pecuniary loss and who had submitted a signed, notarized affidavit supporting the amount of the loss. This appeal followed.

STANDARD OF REVIEW

¶9 “The appropriate measure of restitution is a question of law, which we review for correctness.” State v. David C. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 578. A district court’s finding of fact as to the amount of restitution is reviewed under the clearly erroneous standard. David C. Johnson, ¶ 13. Afinding of fact is clearly erroneous if “it is not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed.” State v. Spina, 1999 MT 113, ¶ 12, 294 Mont. 367, 982 P.2d 421. Substantial evidence “is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance.” State v. Jent, 2013 MT 93, ¶ 10, 369 Mont. 468, 299 P.3d 332.

DISCUSSION

¶10 Did the District Court err by affirming the Justice Court’s imposition of restitution?

¶11 Aragon raises several arguments challenging the Justice Court’s order of restitution. First, Aragon argues that under M. R. Evid. 901, a foundation was required to be laid before the Justice Court could accept the victim’s loss statement as evidence. Second, he argues that the request for restitution was not “based upon the best evidence available under the circumstances” in violation of our holdings in State v. O’Connor, 2009 MT 222, ¶ 14, 351 Mont. 329, 212 P.3d 276, and State v. Benoit, 2002 MT 166, ¶ 29, 310 Mont. 449, 51 P.3d 495. Specifically, Aragon argues that a victim’s affidavit, with no foundation or explanation, is not sufficient to meet the “best evidence” requirement. Third, Aragon argues the State failed to meet its burden of proof for a restitution award pursuant to § 26-1-401, MCA. Fourth, he argues that Turcotte’s affidavit was not properly considered by the court because it contained hearsay within hearsay, and there was no evidence that it, or the attached estimates, were based on personal knowledge. Finally, Aragon argues the District Court erred by upholding the Justice Court order without the necessary “meaningful review” of the record as required by § 3-10-115, MCA.

¶12 A sentencing court is required to impose a restitution obligation on a criminal defendant if the defendant’s crime resulted in a pecuniary loss to a victim. Section 46-18-201(5), MCA. The rules of evidence do not apply at sentencing. M. R. Evid. 101(c)(3); State v. Collier, 277 Mont. 46, 63, 919 P.2d 376, 387 (1996). We have also held that “£n]othing in the controlling restitution statutes ... requires a court or a victim to substantiate a restitution calculation with documentation.” State v. McMaster, 2008 MT 268, ¶ 29, 345 Mont. 172, 190 P.3d 302. However, a defendant has a due process right to “explain, argue, and rebut any information” presented at sentencing. State v. Roedel, 2007 MT 291, ¶ 65, 339 Mont. 489, 171 P.3d 694.

¶13 Because the rules of evidence did not apply to the restitution hearing, and the restitution request was not required to be supported by additional documentation, we reject Aragon’s arguments on these issues. We also reject Aragon’s argument that the request was not based on the “best evidence available,” as our prior holdings on this issue are not applicable here. The cases upon which Aragon relies involved losses that were not capable of being determined with certainty. See Benoit, ¶¶ 5, 30 (employee pled guilty to theft from employer through falsely voided transactions and inappropriately discounted sales); O’Connor, ¶¶ 4,16 (employee pled nolo contendré to theft for falsifying merchandise returns). In these cases it was not possible to determine the exact amount of the losses, but we upheld the awards of restitution because “the losses were calculated by use of reasonable methods based on the best evidence available under the circumstances.” Benoit, ¶ 29 (employer calculated losses by estimating the average void transactions and discount sales of other employees and subtracting from the amounts processed by defendant); see also O’Connor, ¶ 16 (employer calculated loss by analyzing each questionable return and excluding returns processed while defendant was not on shift). Here, there is no contention that the extent of the property damage is incapable of being determined with certainty. Rather, the dispute is about the difference between Aragon’s insurance company’s estimate of the damage and Turcotte’s estimate.

¶14 We have upheld awards of restitution where the only evidence in the record was the victim’s affidavit or testimony regarding the amount of pecuniary loss. See State v. Kuykendall, 2006 MT 110, 332 Mont. 180, 136 P.3d 983; State v. Charley Johnson, 2011 MT 286, 362 Mont. 473, 265 P.3d 638.¹ However, while a victim’s affidavit or her testimony may be sufficient, if credited by the court, to support an award of restitution, we have also rejected restitution where the evidence before the court was insufficient to support the amount awarded. State v. Coluccio, 2009 MT 273, ¶ 45, 352 Mont. 122, 214 P.3d 1282 (overruled on other grounds by State v. Kirn, 2012 MT 69, , 364 Mont. 356, 274 P.3d 746) (assumptions and speculative calculations offered in victim’s testimony were “insufficient information upon which” to base a restitution award); State v. Brown, 263 Mont. 223, 226, 867 P.2d 1098, 1100 (1994) (superseded by statute on other grounds as stated in Kuykendall, ¶ 11) (an estimated $150,000 in medical expenses for seriously injured victim and an estimated loss based solely on wage earned by another victim prior to her death were “minimal assertions” insufficient to support award). The Dissent characterizes the issue as one of causation and relies on restitution cases where either the causal connection to the offense or the definition of “victim” was challenged. Dissent, ¶¶ 24, 32 (citing State v. LaTray, 2000 MT 262, ¶¶ 21-22, 302 Mont. 11, 11 P.3d 116 (challenge to whether towing and ambulance services were “direct victims”); Jent, ¶ 18 (challenge to caused connection between assault and victim’s later suicide attempt)). Neither of these issues is central here, as the parties agree that Turcotte is a victim of Aragon’s offense and that her damages constitute a pecuniary loss causally connected to the offense. The specific issue raised is whether the State met its burden of proof as to the correct amount of those damages.

¶15 The Dissent argues that Aragon never claimed the evidence was insufficient to support the awarded restitution or that the requested amount was an “unreasonable cost of completing the repairs,” Dissent, ¶ 28, and implies that this Court “devise[s] evidentiary theories that the defendant himself failed to develop,” Dissent, ¶ 30. Although not with these words, the arguments Aragon made to the Justice Court and to this Court encompass the reasonable necessity of repainting the entire house and whether there was sufficient proof of the extent of the damages in light of the conflicting estimates. Aragon argued that the only damage he caused was to Turcotte’s garage, that the insurance coverage had compensated Turcotte, and that he was aware of nothing indicating the entire house needed to be repainted. The restitution hearing was set up to resolve this issue. In his brief to this Court, Aragon argues that

[n]o explanation was provided of why Aragon should be expected to repaint the victim’s house when he had merely damaged the garage.... The affidavit showed that Aragon’s insurance company had adjusted and paid for the damage to the victim’s house; there was no indication that it inadequately repaired the damage.

Aragon’s arguments incorporate the contention that the higher estimated cost was not reasonably necessary or sufficiently proven.

¶16 Restitution “engrafts a civil remedy onto a criminal statute, creating a procedural shortcut for crime victims who would be entitled to a civil recovery against the offender.” State v. Brownback, 2010 MT 96, ¶ 19, 356 Mont. 190, 232 P.3d 385 (citation omitted). As a pecuniary loss is defined to be those damages that would be recoverable in a civil action, § 46-18-243(l)(a), MCA, there must be a preponderance of the evidence supporting the restitution award. See State v. Hilgers, 1999 MT 284, ¶ 4, 297 Mont. 23, 989 P.2d 866; § 26-1-403(1), MCA. In addition to the due process right to explain or rebut any information presented at the hearing, Roedel, ¶ 65, the defendant may assert any defense to a request for restitution “that the [defendant] could raise in a civil action for the loss for which the victim seeks compensation,” § 46-18-244(2), MCA. Presented with the differing estimates, the court was required to make a determination as to what amount of restitution was supported by a preponderance of the evidence.

¶17 “The credibility of witnesses and the weight to be given their testimony are determined by the trier of fact, whose resolution of disputed questions of fact and credibility will not be disturbed on appeal.” Hilgers, ¶ 12. This is logical because “[t]he trial court is in the best position to judge the credibility and demeanor of witnesses and their testimony.” Langford v. State, 2013 MT 265, ¶ 17, 372 Mont. 14, 309 P.3d 993 (citing State v. Lally, 2008 MT 452, ¶ 24, 348 Mont. 59, 199 P.3d 818). However, the sentencing court here did not judge the credibility or demeanor of witnesses or their testimony, as there were none. Rather, the court was presented only with two estimates with significantly differing amounts, entirely devoid of context or explanation about the difference between the two.

¶18 The insurance adjuster’s estimate detailed specific repairs to the siding, masonry, trim, drywall, and landscaping, as well as for painting. The adjuster estimated there was approximately $1,100 in physical damage, and only $240 necessary for painting. Turcotte’s estimate listed only repairs for siding and trim, with a total cost of $320, along with $2,950 to “repaint 2,500 SQ feet of home to match current color.” The Justice Court itself expressed concern over the request for repainting the entire house absent any explanation of why it was necessary. The victim was not present to explain this request or to be cross-examined by the defendant about the necessity of repainting the entire house when only the garage had been damaged.

¶19 It is notable that the Absolute Construction estimate for repainting the entirety of the house was completed some two weeks before the insurance adjustment was completed. The Dissent assumes that the painting of the home was necessary to match the repaired garage, Dissent, ¶ 30, but there is no evidence that, once repaired, the garage would not or did not match the house. For this reason, we cannot conclude there is substantial evidence to support the higher amount of restitution. A reasonable mind could not conclude, solely from the two estimates, that one was more appropriate than the other.

¶20 We do not depart from our prior holdings that a victim’s sworn affidavit explaining the amount of loss is ordinarily sufficient to support an order of restitution. See Jent, ¶ 21 (concluding substantial evidence supported the restitution obligation when “the District Court considered [the victim’s affidavit of loss], as permitted by § 46-18-242, MCA[, and n]o evidence was presented that would dispute the accuracy or correctness of the amount[s]... set forth in the affidavit.”). Nor do we depart from our prior cases holding that documentation supporting the claimed loss is not generally required. See McMaster, ¶ 29. However, we conclude that substantial evidence does not support the award of restitution here, where the evidence before the court is conflicting and no other testimony or evidence was available to be examined or reviewed as to the discrepancy.

¶21 When an order for restitution is improperly entered upon legal error, we generally remand to the trial court for correct application of §§ 46-18-241 through -249, MCA. See State v. Hunt, 2009 MT 265, ¶ 23, 352 Mont. 70, 214 P.3d 1234; State v. Ariegwe, 2007 MT 204, ¶ 182, 338 Mont. 442, 167 P.3d 815; see also State v. Heafner, 2010 MT 87, ¶¶ 11-13, 356 Mont. 128, 231 P.3d 1087. Similarly, we have remanded in cases where restitution is unsupported by substantial evidence “to determine the correct amount of restitution to be imposed in accord with this opinion and applicable law.” Coluccio, ¶ 46. Therefore, we reverse the restitution award entered herein and remand this matter to the Justice Court for a determination of the proper amount of restitution.

¶22 Reversed and remanded for further proceedings consistent herewith.

CHIEF JUSTICE McGRATH, JUSTICES COTTER and WHEAT concur.

Footnotes

1

It is notable in these cases that the defendant either failed to object to the amount or reasonableness of restitution, or there was no contrary evidence in the record. Kuykendall, ¶¶ 7, 13 (only evidence in record was victim’s testimony and statement in PSI, and defendant was contesting only technical statutory requirements); Charley Johnson, ¶ 14 (defendant did not object to restitution when it was discussed and imposed at hearing); State v. Schmidt, 2009 MT 450, ¶ 75, 354 Mont. 280, 224 P.3d 618 (defendant did not object to amount or calculation of restitution, and had admitted that restitution was appropriate).