April 2 2014
DA 13-0447
IN THE SUPREME COURT OF THE STATE OF MONTANA 2014 MT 89
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BENJAMIN WILLIAM ARAGON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 13-224 Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jack E. Sands; Sands Law Office; Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Helena, Montana
Scott Twito, Yellowstone County Attorney; Billings, Montana
Submitted on Briefs: February 19, 2014 Decided: April 2, 2014
Filed:
__________________________________________ Clerk Justice Jim 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 following his 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 2 $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
3 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
4 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. A finding 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, 5 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
6 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 contendre 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
7 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, ¶ 8, 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 causal 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 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). 8 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).
9 As a pecuniary loss is defined to be those damages that would be recoverable in a civil
action, § 46-18-243(1)(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
10 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
11 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.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT
12 Justice Laurie McKinnon, dissenting.
¶23 I respectfully dissent from the Court’s decision. I believe the Court has misstated
the issue in this case. Moreover, I believe that the evidence in the record supports the
Justice Court’s restitution award and that the Court misapplies the restitution statutes in
reaching a contrary conclusion.
¶24 The Court asserts that Aragon has not challenged the “causal connection” between
his offense and Turcotte’s restitution claim. Opinion, ¶ 14. This assertion is perplexing,
given that the Court acknowledges in the very next paragraph that “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.” Opinion, ¶ 15 (emphasis added). The existence of a causal
relationship between Aragon’s criminal conduct and Turcotte’s request to have her entire
house repainted is the only issue Aragon raised—albeit, as the Court points out, “not with
these [exact] words.” Opinion, ¶ 15. Unfortunately, in addressing and resolving this case
based on an evidentiary matter that Aragon did not raise, the Court has fundamentally
increased the burden on crime victims to establish their right to restitution.
¶25 At the hearing held February 28, 2013, Aragon entered pleas of guilty to reckless
driving and to driving under the influence of alcohol. The Justice Court then proceeded
with sentencing. Near the end of the proceeding, the prosecutor indicated that the State
was requesting $3,270.00 in restitution. As support for this amount, the prosecutor
referred to the Victim’s Affidavit in Support of Property Financial Loss, which Turcotte
13 had submitted three months earlier. Aragon’s only objection to the requested restitution
was: “I thought [my automobile] insurance covered that. . . . [W]hat I understood was
that my insurance . . . paid for the damages.” The prosecutor explained that the insurance
had covered “part” of the loss, and the parties agreed that a restitution hearing would be
needed to determine how much of Turcotte’s loss remained unpaid.
¶26 At the March 12, 2013 restitution hearing, Aragon’s counsel argued as follows:
[Aragon’s] insurance company went out, assessed the valuation, did all the repairs that were required of it, and the garage was completely repaired. And it was all covered with his insurance. Now, in her loss statement, she’s asked their entire house be repainted. And, you know, that’s not part of restitution for damage to a garage, even though the house -- the garage was attached to the house. So, restitution has been made. It’s been made in full in this case. And there’s no reason that he should be responsible for repainting a house.
The Justice Court rejected this argument. The court concluded that Aragon was liable for
the full amount of restitution set forth in Turcotte’s affidavit (i.e., $3,270.00). The court
found that Aragon’s insurer had “paid part of the $3,2[70]” and that Aragon, therefore,
owed the difference (i.e., $1,910.86).1
¶27 Significantly, Aragon never argued that, if his restitution obligation did encompass
repainting Turcotte’s entire house, there was insufficient evidence supporting an award of
$1,910.86 for that purpose. And, in fact, there is sufficient evidence in the record. As
1 It is important to clarify that when the Justice Court stated that it “can’t go with [Turcotte’s] letter,” see Opinion, ¶ 7, the court was not referring to Turcotte’s restitution affidavit. Rather, the court was referring to a March 8, 2013 letter Turcotte had sent the court indicating that she would be satisfied if Aragon did 40 hours of community service in lieu of restitution. Aragon objected to this disposition, and the Justice Court agreed with him that community service would not be appropriate in lieu of restitution. 14 noted, Turcotte submitted an affidavit (pursuant to § 46-18-242, MCA) in which she
described her pecuniary loss and the replacement value of that loss.2 According to the
affidavit, the “[f]ull replacement value / repair cost of property taken, destroyed, harmed,
or otherwise devalued” is $3,270.00. Although she was not required to substantiate this
amount with documentation, see State v. McMaster, 2008 MT 268, ¶¶ 27, 29, 345 Mont.
172, 190 P.3d 302, Turcotte nevertheless attached a September 4, 2012 estimate from
Absolute Construction in the amount of $3,270.00, which included the cost of repainting
2,500 square feet of the house “to match current color.” The parties agreed that Aragon’s
insurance company had covered repairs to the garage itself in the amount of $1,359.14.
Thus, Turcotte sought merely the difference between the Absolute Construction bid and
what the insurance company had already covered—equaling $1,910.86—to cover
repainting the remainder of the house.
¶28 Accordingly, the Court’s suggestion that this case is about “conflicting” repair
estimates for which there is no “context or explanation,” Opinion, ¶¶ 15-20, is incorrect.
No one raised the questions that the Court now poses at ¶ 18 of the Opinion regarding
each line item of the two estimates. The parties and the Justice Court understood why
there was a difference between the Absolute Construction estimate and the insurance
adjuster’s estimate: the former included the cost of repainting the entire house, not just
the garage. Aragon never argued that the Justice Court needed to choose one estimate
over the other. He never claimed that the evidence before the court was insufficient to
2 In this regard, I agree with the Court’s rejection of Aragon’s arguments regarding the adequacy of Turcotte’s affidavit. Opinion, ¶ 13. 15 establish the cost of repainting the entire house. And he never claimed that $1,910.86
was an unreasonable cost of completing the repairs that Turcotte was claiming.
¶29 What Aragon argued, rather, was that the remaining repairs—repainting the rest of
the house—were simply “not part of restitution for damage to a garage.” The substance
of his argument is clearly that the damages caused by Aragon’s offenses did not include
the house. See State v. Jent, 2013 MT 93, ¶ 13, 369 Mont. 468, 299 P.3d 332 (“a causal
relation between the offender’s criminal conduct and the pecuniary loss is the touchstone
for determining whether a person or entity is a victim entitled to restitution”). Hence, the
Court’s attempt to reframe the issue as whether there is sufficient evidence supporting the
amount of the restitution award is unpersuasive. The issue Aragon raised is whether his
restitution obligation extended beyond repairs to the garage to include repairs to other
parts of the house—which everyone understood would cost him an additional $1,910.86
in restitution. More specifically, the issue is whether the cost of repainting the remainder
of Turcotte’s house is part of “the full replacement cost of property taken, destroyed,
harmed, or otherwise devalued as a result of [Aragon’s] criminal conduct.” Section
46-18-243(1)(b), MCA. The Justice Court found that it was, and I believe the evidence in
the record supports this finding.
¶30 Aragon concedes he unlawfully drove his vehicle recklessly and while under the
influence of alcohol. Aragon concedes he drove his vehicle off the road and crashed into
Turcotte’s garage. Aragon concedes he thereby caused damage to the structure. The
notion that the damage could not have extended beyond the garage is wholly implausible,
16 given that the garage was physically attached to Turcotte’s house. Absolute Construction
estimated the repairs at $3,270.00. This included repainting the house “to match current
color.” Obviously, Turcotte wanted the color of her house to match the color of the
repainted garage. The Court opines that there may not have been any need to repaint the
rest of the house to match the color of the garage. Opinion, ¶ 19. But even if this were
true, it was Aragon’s responsibility to make this argument at the restitution hearing and to
present such evidence refuting Turcotte’s claim—neither of which he did, or even
attempted to do. It is not this Court’s prerogative to devise evidentiary theories that the
defendant himself failed to develop. State v. Whalen, 2013 MT 26, ¶ 32, 368 Mont. 354,
295 P.3d 1055; Citizens for Balanced Use v. Maurier, 2013 MT 166, ¶ 15, 370 Mont.
410, 303 P.3d 794. Nor was it Turcotte’s or the prosecutor’s responsibility to produce
any documentation other than her restitution affidavit. McMaster, ¶¶ 27, 29.
¶31 “In reviewing findings of fact, the question is not whether there is evidence to
support different findings, but whether substantial evidence supports the findings actually
made.” Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 21, 353 Mont. 507, 222 P.3d
595 (emphasis in original); accord In re K.J.B., 2007 MT 216, ¶ 23, 339 Mont. 28, 168
P.3d 629. We thus have explained that
[a] finding . . . is not clearly erroneous simply because there is evidence in the record supporting a different finding. Rather . . . , a finding is clearly erroneous if it is not supported by substantial evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made.
17 State v. Lally, 2008 MT 452, ¶ 22, 348 Mont. 59, 199 P.3d 818. Here, the only evidence
presented to the Justice Court bearing on the issue of restitution—namely, Aragon’s admissions
forming the basis of his guilty pleas, and Turcotte’s affidavit with the two gratuitously attached
estimates—established the following: (1) that Aragon crashed into Turcotte’s garage, (2) that the
garage was physically connected to Turcotte’s house, (3) that Turcotte’s monetary loss totaled
$3,270.00, (4) that Aragon’s insurer provided $1,359.14, and (5) that it would cost an additional
$1,910.86 to complete the repairs.
¶32 The Justice Court’s finding—that “the full replacement cost of property taken,
destroyed, harmed, or otherwise devalued as a result of [Aragon’s] criminal conduct,”
§ 46-18-243(1)(b), MCA, included the cost of repainting the entire house—is supported
by our precedents. In State v. LaTray, 2000 MT 262, 302 Mont. 11, 11 P.3d 116, we held
that towing and ambulance services, which had responded to the scene of the defendant’s
offense, were entitled to restitution. We reasoned that “LaTray’s criminal acts created a
situation in which ambulance and towing services were reasonably necessary for public
safety or for the safety of LaTray himself.” LaTray, ¶ 22. Likewise, in Jent, where the
defendant had pleaded guilty to assaulting his wife, we held that his restitution liability
extended to the medical expenses associated with his wife’s suicide attempt. We
explained that “Jent’s conduct created a situation which resulted in medical expenses
arising from the compromised mental health of his victim.” Jent, ¶ 18.
¶33 As we stated in Jent, ¶ 12, “restitution is not to be limited by the definition of the
offense or to only those injuries arising as a ‘direct’ result of the offense.” Here, Aragon
argued that repainting the entire house is “not part of restitution for damage to a garage.” 18 The evidence before the court, however, supported a finding that even if repainting the
entire house was not a “direct” result of Aragon’s offenses, it was an indirect result of
those offenses: but for his crashing into the garage, there would have been no need to
repaint the garage and, so as to match color, the rest of the house to which the garage is
attached. Certainly, Aragon could have attempted to refute this connection by presenting
evidence that there was no need to repaint the entire house or that the need to repaint the
entire house was too “attenuated” from his offense. See Jent, ¶ 13. But Aragon did not
do so. Notably absent from the Justice Court record is any evidence presented by Aragon
that any part of Turcotte’s restitution claim should be bifurcated from the total amount
that she stated under oath are her damages.
¶34 I disagree with the Court’s suggestions that Turcotte should have been “present to
explain” her request and that, because of her absence, Aragon was denied the ability to
cross-examine her. Opinion, ¶ 18. The only evidence Turcotte was required to present,
and did present, is an affidavit describing her pecuniary loss and the replacement value in
dollars of the loss. Section 46-18-242, MCA. We have effectively punished Turcotte for
attaching the estimates from Absolute Construction and Aragon’s insurer by holding that
these documents—which the statute does not require a victim to provide in the first place,
McMaster, ¶¶ 27, 29—somehow created a “conflict” that she should have been “present
to explain.” The fact that “no other testimony or evidence was available to be examined
or reviewed” by the Justice Court, Opinion, ¶ 20, is entirely Aragon’s responsibility, and
he cannot now invoke that omission as a basis for reversing the Justice Court’s restitution
19 award. Aragon had notice of the restitution hearing and notice of the affidavit, and he
could have subpoenaed Turcotte or other witnesses in order to refute the amount of her
claim. Aragon failed, however, to produce any testimony or even to ask that the matter
be continued to secure the necessary evidence. The Court has cited no law requiring
Turcotte or the prosecution to produce any more evidence than they did.
¶35 In the absence of any evidence disputing Turcotte’s claim or a request for time to
secure the same, the Justice Court was constrained to make a decision based on the
evidence before it. In determining that Turcotte should be paid “the full replacement cost
of property taken, destroyed, harmed, or otherwise devalued as a result of [Aragon’s]
criminal conduct,” § 46-18-243(1)(b), MCA, the Justice Court properly followed our
precedent that a victim’s sworn affidavit explaining the amount of loss is sufficient to
support an order of restitution. McMaster, ¶ 27; Jent, ¶ 21. The practical result of
today’s decision will be (1) to discourage victims from attaching documentation to
affidavits of pecuniary loss for fear that this Court might perceive a “conflict” in the
evidence or (2) to require the State to produce evidence and testimony beyond the
victim’s affidavit as a precaution against the defendant’s raising an argument, not
supported by evidence, that the restitution award is unreasonable. Because we have
reviewed the victim’s invoices in this matter, which were not even necessary, and
determined ourselves that the amount or necessity of repainting her house seems
unreasonable, we have altered the rules to be followed in restitution proceedings. The
20 victim’s affidavit is sufficient evidence to validate her claim, in the absence of evidence
to the contrary.
¶36 I dissent.
/S/ LAURIE McKINNON