                                                                                            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

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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




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victim’s affidavit is sufficient evidence to validate her claim, in the absence of evidence

to the contrary.

¶36    I dissent.


                                                 /S/ LAURIE McKINNON




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