                                                                                              April 9 2013


                                          DA 12-0399

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 93



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BRIAN KEITH JENT,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Dawson, Cause No. DC-11-075
                        Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Joseph P. Howard, Attorney at Law, Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Olivia Norlin-Rieger, Dawson County Attorney, Glendive, Montana



                                                    Submitted on Briefs: February 27, 2013

                                                               Decided: April 9, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Brian Keith Jent pleaded guilty to the aggravated assault of his wife, Nancylee

Cadorette. As part of his sentence, the Seventh Judicial District Court, Dawson County,

ordered Jent to pay $44,112.74 in restitution, including $19,866.69 for Cadorette’s

medical expenses arising from her suicide attempt two and a half months after Jent’s

assault.   Jent appeals only that portion of his sentence involving the $19,866.69 in

restitution.   He claims that Cadorette, in respect to her suicide attempt, cannot be

considered a “victim” of his offense for restitution purposes, and that there was no causal

connection between his criminal conduct and the medical expenses associated with the

suicide attempt. We affirm the District Court’s order of restitution.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     Jent and Cadorette, husband and wife, have what can be characterized as a

tumultuous and often violent relationship. On October 27, 2011, Jent and Cadorette got

into a drunken argument. Jent struck Cadorette in the face, fracturing the orbital wall of

her right eye socket. Cadorette was initially treated at Glendive Medical Center and

subsequently underwent surgery in Billings. Jent also damaged Cadorette’s vehicle,

television, and computer.

¶3     On November 18, 2011, the State charged Jent with aggravated assault and two

counts of felony criminal mischief.      On January 13, 2012, Jent pleaded guilty to

aggravated assault pursuant to a plea agreement which recommended a sentence of eight

years to the Department of Corrections, with six years suspended, and various conditions,

including restitution. Jent agreed to pay restitution for Cadorette’s medical bills in an


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amount to be determined prior to sentencing. The State moved to dismiss the criminal

mischief counts.

¶4    On the same day that Jent pleaded guilty, Cadorette ingested a bottle of Ambien

and two bottles of Crown Royal whiskey. This occurred two days after Cadorette’s

January 11, 2012 meeting with the prosecutor and defense counsel where the criminal

proceedings against Jent were discussed. As a result of her suicide attempt, Cadorette

spent the next several days in a behavioral health unit and accumulated medical expenses

totaling $19,866.69.

¶5    A probation/parole officer prepared a presentence investigation report (PSI) for

sentencing.   The Restitution section of the PSI identifies $19,866.69 as “the costs

associated with [Cadorette’s] medical care due to her mental health issues occurring after

the instant offense.” Cadorette also prepared an Affidavit of Victim’s Pecuniary Loss,

which the District Court admitted into evidence over Jent’s objection. In addition to

other amounts claimed as restitution, which are not at issue in this appeal, the affidavit

included the $19,866.69 in medical expenses related to her suicide attempt.

¶6    In the Victim’s Impact section of the PSI, the probation/parole officer notes that

she spoke with Cadorette on March 5, 2012. Cadorette told the officer that she had

attempted suicide on two separate occasions since Jent’s offense, the most recent on

January 13. Cadorette stated that she had attempted suicide “because she felt guilty about

what happened and was blaming herself for the instant offense.” Cadorette also stated

that she felt Jent’s plea agreement with the State was “harsh” and that he “just needs

anger treatment.” The probation/parole officer reiterated these facts during her testimony


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at Jent’s sentencing hearing. She testified that at their March 5 meeting, Cadorette

“voiced a lot of guilty feelings, feelings that she was somehow at fault for this.”

Cadorette “blamed herself a lot in the instant offense.” Jent did not refute the officer’s

testimony in this regard.

¶7     Cadorette also testified at the sentencing hearing.          She explained that her

relationship with Jent was “pretty rocky” and often violent, and that two of Jent’s prior

offenses involved assaults against her. She admitted responsibility for participating in

some of the marital disputes. Regarding the instant offense, Cadorette testified that she

had not asked Jent to pay her medical expenses arising out of her January 13, 2012

suicide attempt. Nevertheless, she agreed that her suicide attempt was “directly related”

to Jent’s assault against her eleven weeks earlier, and that her meeting with the

prosecutor and defense counsel on January 11 had “drudged up” her memories of the

assault. Cadorette further testified that her therapist had reached the conclusion that

Cadorette’s suicide attempt was “directly correlated” to the assault.

¶8     The District Court sentenced Jent to eight years at the Department of Corrections,

with three years suspended. The court ordered Jent to pay $44,112.74 in restitution,

including $19,866.69 for Cadorette’s medical expenses related to her suicide attempt.

Jent now appeals the imposition of the $19,866.69 in restitution.

                              STANDARDS OF REVIEW

¶9     Pursuant to § 46-18-201(5), MCA, if a person has been found guilty of an offense,

whether by a verdict of guilty or by a plea of guilty or nolo contendere, and the

sentencing judge finds that a “victim” has sustained a “pecuniary loss,” as defined in


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§ 46-18-243, MCA, then the sentencing judge shall, as part of the sentence, require

payment of full restitution to the victim, as provided in §§ 46-18-241 through -249,

MCA. Such analysis requires the sentencing judge to apply the statutory definitions of

“victim” and “pecuniary loss” to the factual circumstances of the case. This constitutes a

mixed question of law and fact. State v. Warclub, 2005 MT 149, ¶ 21, 327 Mont. 352,

114 P.3d 254 (“mixed questions of law and fact are those in which the historical facts are

admitted or established, the rule of law is undisputed, and the issue is whether the facts

satisfy the statutory standard” (internal quotation marks omitted)).

¶10    In reviewing such questions on appeal, the sentencing court’s factual findings will

not be disturbed unless they are clearly erroneous, but whether those facts satisfy the

legal standard is reviewed de novo. Warclub, ¶ 23; State v. Weaver, 2008 MT 86, ¶ 10,

342 Mont. 196, 179 P.3d 534. A finding of fact is clearly erroneous if it is not supported

by substantial evidence, if the district court has misapprehended the effect of the

evidence, or if a review of the record leaves this Court with a definite and firm conviction

that a mistake has been made. State v. Breeding, 2008 MT 162, ¶ 11, 343 Mont. 323, 184

P.3d 313. 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. Johnston v. Palmer, 2007 MT 99, ¶ 26, 337

Mont. 101, 158 P.3d 998.

                                      DISCUSSION

¶11    Did the District Court err by requiring Jent to pay restitution for medical
       expenses arising from Cadorette’s suicide attempt?



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¶12    As noted, when a criminal defendant pleads guilty to an offense, the sentencing

court must impose restitution if the offender’s criminal conduct resulted in pecuniary loss

to a victim. Section 46-18-201(5), MCA. The restitution must be “full” and to “any

victim who has sustained pecuniary loss, including a person suffering an economic loss.”

Section 46-18-241(1), MCA. 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. This Court has determined that 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. See State v.

LaTray, 2000 MT 262, ¶¶ 12-14, 302 Mont. 11, 11 P.3d 116. The plain language of the

restitution statutes “does not limit restitution to victims defined in terms of the offense for

which the defendant was convicted or to losses arising directly from the defendant’s

criminal conduct.” LaTray, ¶ 12; see also State v. Ness, 2009 MT 300, ¶ 20, 352 Mont.

317, 216 P.3d 773.

¶13    The victim, for purposes of restitution, may be any person who suffers loss of

property, bodily injury, or death “as a result of” the offender’s criminal conduct, and may

also include a governmental entity that suffers loss of property “as a result of” the

commission of the offense. Section 46-18-243(2)(a)(i), (iii), MCA. Moreover, pecuniary

loss includes special damages that a person could recover against the offender in a civil

action “arising out of” the offender’s criminal activities. Section 46-18-243(1)(a), MCA.

It also includes the full replacement cost of property taken, destroyed, harmed, or

otherwise devalued “as a result of” the offender’s criminal conduct, and future medical


                                              6
expenses that the victim can reasonably be expected to incur “as a result of” the

offender’s criminal conduct. Section 46-18-243(1)(b), (c), MCA. Thus, 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. City of Billings

v. Edward, 2012 MT 186, ¶ 26, 366 Mont. 107, 285 P.3d 523; Brownback, ¶ 20;

Breeding, ¶ 13. Further, a pecuniary loss may be so attenuated as to no longer be

considered “a result of” the offense. Ness, ¶ 20; LaTray, ¶ 14; Brownback, ¶ 20 n. 1.

¶14    In determining Jent’s restitution obligation for Cadorette’s medical expenses, we

must examine the causal relation between his offense of aggravated assault (fracturing the

orbital wall of Cadorette’s right eye socket) and Cadorette’s suicide attempt.          Jent

maintains that Cadorette’s losses were self-inflicted and did not result from his breaking

her right orbital socket. Jent thus argues that Cadorette cannot be considered a “victim”

for purposes of determining pecuniary loss.        Although Jent does not dispute that

Cadorette was a victim of his aggravated assault, he argues that she cannot be considered

a victim in relation to her own suicide attempt because any losses she suffered were not

“as a result of . . . the commission of an offense.” Section 46-18-243(2)(a)(i)(A), MCA.

Jent’s analysis of the meaning of “victim,” however, ignores the consideration of a causal

connection between his underlying offense and Cadorette’s suicide attempt. If such

connection is established, the losses sustained by Cadorette were “as a result of” Jent’s

offense.

¶15    This Court previously examined the nature of the causal connection between an

injury and a subsequent suicide in the context of a workers’ compensation proceeding. In


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Campbell v. Young Motor Co., 211 Mont. 68, 70-71, 684 P.2d 1101, 1102 (1984), we

refused to recognize suicide as an intentional act that automatically breaks the chain of

causation to defeat a claim for death benefits. Favorably quoting a case from Delaware,

we stated:

       “In applying this [chain of causation] test, death by suicide would be
       compensable if it is caused by severe pain and despair which proximately
       results from a compensable accident, and is of such a degree as to override
       normal and rational judgment.         A suicide committed under such
       circumstances cannot be said to be ‘intentional’ even though the act itself
       may be volitional.” [Delaware Tire Center v. Fox, 401 A.2d 97, 100 (Del.
       Super. 1979).] This chain of causation rule recognizes that the injury and
       the post-injury trauma, mental as well as physical, may take a path
       anticipated by no one, but nonetheless be traceable to the injury itself.

Campbell, 211 Mont. at 72, 684 P.2d at 1103 (first brackets in original, paragraph break

omitted).

¶16    Cadorette’s suicide attempt occurred on the same day Jent pleaded guilty, and two

days after she had discussed the criminal proceedings against Jent with the prosecutor

and defense counsel. Cadorette testified that this discussion “drudged up” her feelings

about the assault. She felt guilty about what had happened, was blaming herself for

Jent’s offense, and felt responsible for the harsh penalty she believed Jent was receiving.

Given the relatively short timespan of eleven weeks between Jent’s criminal conduct and

Cadorette’s subsequent suicide attempt, it appears that the deterioration in her mental

health was related to the events in Jent’s criminal proceedings, the nature of the particular

offense, and the dynamics of the parties’ marital relationship. Most importantly, in

response to questioning by the sentencing judge, Cadorette testified that the suicide

attempt was “directly related” to Jent’s assault upon her. The record supports the District


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Court’s determination that a causal connection exists between Jent’s offense and

Cadorette’s suicide-related medical expenses.

¶17   This conclusion is consistent with our prior decisions regarding an offender’s

restitution obligation and an asserted attenuated loss. In State v. Grindheim, 2004 MT

311, ¶¶ 55-56, 323 Mont. 519, 101 P.3d 267, we affirmed the district court’s order that

the defendant, who had been found guilty of sexual intercourse without consent, pay the

victim’s future counseling costs. In State v. Perkins, 2009 MT 150, 350 Mont. 387, 208

P.3d 386, we concluded that the childcare costs incurred by P.M. (the child-victim’s aunt)

were recoverable as restitution because the behavior of the defendant (Perkins) had

caused the child (C.C.) to be removed from the mother’s home and placed in P.M.’s care.

We observed that “Perkins’ conduct was the precipitating event in the youth in need of

care proceedings that led to removal of C.C. from her mother’s home and placement with

P.M.” Perkins, ¶ 10. In Ness, the defendant tampered with evidence by washing his

vehicle following a hit-and-run accident. We determined that his action of striking the

victim with his vehicle created the evidence with which he ultimately tampered. Had he

not struck the victim, the charge of tampering with the evidence from that incident would

not have arisen. Ness, ¶ 16. The victim died from the injuries she received when Ness’s

vehicle struck her, thus incurring funeral expenses. We held that these expenses resulted

from Ness’s actions. Ness, ¶ 21. Lastly, we held in LaTray that towing and ambulance

services, which had responded to the scene of the defendant’s offense, were entitled to

restitution for their expenses. We observed that “Montana’s restitution statute does not

confine restitution to the amount by which a defendant enriches himself at the victim’s


                                            9
expense but[,] rather, empowers courts to impose restitution for economic loss as a result

of the crime.” LaTray, ¶ 21. We specifically held 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. The expenditures incurred by the ambulance

and towing services were a result of LaTray’s crime.” LaTray, ¶ 22.

¶18    In the instant proceeding, Cadorette’s suicide attempt is causally related to Jent’s

action of fracturing her right orbital socket. There is a definite connection between the

underlying aggravated assault and Cadorette’s mental health. This is reflected not only in

the parties’ violent and tumultuous marital relationship, which is a factor bearing on the

existence of a causal connection in this case, but also in Cadorette’s testimony that her

suicide attempt was “directly related” to Jent’s assault. Jent’s conduct created a situation

which resulted in medical expenses arising from the compromised mental health of his

victim.   Accordingly, there is a causal connection between Jent’s offense and the

restitution requirement for Cadorette’s suicide attempt.

¶19    Jent additionally asserts that there was no “nexus or correlation” between his

offense and the restitution requirement. We find this argument to be without merit. The

nexus requirement is based on our cases interpreting §§ 46-18-201(4) and -202(1), MCA.

See Ness, ¶¶ 10-11; City of Bozeman v. Cantu, 2013 MT 40, ¶ 20, 369 Mont. 81, 296 P.3d

461. Given our conclusion that the medical expenses relating to Cadorette’s suicide

attempt are causally connected to Jent’s underlying offense of aggravated assault, we

have little difficulty in also concluding that there is a nexus between Jent’s offense and

his obligation to pay restitution for those medical expenses. Cf. Ness, ¶ 17 (“Restitution


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for Sherman’s funeral expenses has ‘some correlation or connection to the underlying

offense’ for which Ness was sentenced. . . . Thus, there is a nexus or correlation between

the crime and the restitution requirement.”).

¶20    Finally, Jent argues that Cadorette’s medical expenses would not have been

recoverable in a civil action against him. He cites § 46-18-243(1)(a), MCA, which

defines “pecuniary loss” as “all special damages . . . , substantiated by evidence in the

record, that a person could recover against the offender in a civil action” (emphasis

added). He also relies on § 46-18-244(2), MCA, which states that “[i]n the proceeding

for the determination of the amount of restitution, the offender may assert any defense

that the offender could raise in a civil action for the loss for which the victim seeks

compensation.” Jent contends that there was not any substantial evidence demonstrating

that his conduct was the “proximate cause” of Cadorette’s suicide attempt. He also

contends that Cadorette had a duty to mitigate her damages by seeking psychological

counseling, rather than attempting suicide.

¶21    Jent had the opportunity to assert mitigation in the District Court. He did not do

so, and we will not review that question for the first time on appeal. State v. Ferguson,

2005 MT 343, ¶ 38, 330 Mont. 103, 126 P.3d 463. As for Jent’s evidentiary argument,

the District Court considered Cadorette’s Affidavit of Victim’s Pecuniary Loss, as

permitted by § 46-18-242, MCA. No evidence was presented that would dispute the

accuracy or correctness of the amount of medical expenses set forth in the affidavit. The

District Court also considered, and accepted, Cadorette’s testimony that her suicide

attempt was directly related to Jent’s instant offense. Given this testimony, as well as


                                              11
Cadorette’s feelings of guilt and self-blame arising out of the incident, the timing of her

suicide attempt, and the nature of the parties’ relationship, we simply are not persuaded

by Jent’s contention that Cadorette’s desperate act was “too far removed” from Jent’s

assault to have been (as he puts it) “proximately caused” by the assault.

¶22    Based on the foregoing discussion, we hold that the District Court did not err in

determining that Cadorette’s suicide attempt was “a result of” Jent’s criminal conduct.

We further conclude that substantial evidence in the record supports the restitution

obligation. We thus uphold the District Court’s restitution order totaling $44,112.74,

which includes $19,866.69 for medical expenses incurred as a result of the suicide

attempt.

¶23    Affirmed.


                                                 /S/ LAURIE McKINNON


We Concur:

/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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