                                           No. 05-427

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 309N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

TIMOTHY TISCHLER,

              Defendant and Appellant.


APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DC 03B153
                     Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     R. Stan Peeler, Peeler Law Office, Bozeman, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
                     Assistant Attorney General, Helena, Montana

                     Marty Lambert, Gallatin County Attorney; Todd Whipple,
                     Deputy County Attorney, Bozeman, Montana



                                                   Submitted on Briefs: April 5, 2006

                                                              Decided: November 29, 2006


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result in this Court=s quarterly list of nonciteable cases

published in the Pacific Reporter and Montana Reports.

¶2     Timothy W. Tischler appeals from the judgment and sentence entered by the

Eighteenth Judicial District Court, Gallatin County, on his convictions of the felony offenses

of theft and theft of identity. We affirm.

¶3     The restated issue on appeal is whether the District Court erred in ordering restitution

in the amount of $28,781.26.

                                      BACKGROUND

¶4     The State of Montana charged Tischler by information with the felony offenses of

theft and theft of identity in May of 2003. The information subsequently was amended in a

manner unrelated to the issue on appeal. According to Chief Deputy Gallatin County

Attorney Todd S. Whipple’s affidavit of probable cause, the investigation leading to the

charges occurred as follows. Steven Vejtasa, part owner of the cellular telephone business

Wireless Solutions, learned that a payment intended for Wireless Solutions had been

deposited into a Heritage Bank account, although Wireless Solutions had its checking

account with First Security Bank. Thereupon, Vejtasa reported his suspicion that two former

employees—Tischler and Raynaldo Thompson—had diverted funds from the business.
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Subsequently, Bozeman Police Detective Charley Gappmayer discovered a Heritage Bank

account under the name “Timothy W. Tischler DBA Wireless Solutions,” for which Tischler

and Thompson were the authorized signatories. Gappmayer learned $28,781.26 in checks

payable to Wireless Solutions had been deposited into the Heritage Bank account, along with

other amounts including unexplained cash deposits. In addition, Gappmayer’s investigation

revealed Thompson had used Vejtasa’s personal information, without permission, to obtain

two credit cards that had balances totaling approximately $15,000. Gappmayer also

discovered Tischler had used one of the credit cards to reserve a rental car.

¶5     Tischler ultimately pled no contest to the charges. The District Court accepted the

plea and ordered a presentence investigation report (PSI). The PSI recommended that

Tischler pay $60,558.14 in restitution to Vejtasa and to Wireless Solutions’ previous owner,

Craig Del Grande. The amount represented the deposited checks, unexplained cash deposits

and credit card charges, minus a credit and payments to the credit card accounts and a deposit

from one of the credit card accounts to the Heritage Bank account.

¶6     Thompson having also entered a no contest plea regarding charges against him, the

District Court held a consolidated sentencing hearing for both Thompson and Tischler.

Gappmayer, Vejtasa, and Del Grande testified for the State, and the State entered several

exhibits into evidence, including images of the checks deposited into the Heritage Bank

account and Gappmayer’s summary of that account. Thompson and certified public

accountant James Simons testified for the defense. Among other things, Thompson and

Simons discussed certain amounts paid from the Heritage Bank account, allegedly in relation

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to Thompson’s telephone refurbishing “side business”—also called, like the victims’

business—Wireless Solutions.

¶7     The State represented that, contrary to the PSI recommendation, it was not seeking

restitution for $19,591 in unexplained cash deposits because it could not establish those

amounts were stolen from Wireless Solutions. Moreover, the State did not seek restitution

from Tischler regarding the credit cards because he only used one credit card to reserve a

rental car and subsequently paid for the car rental by other means.

¶8     The District Court deferred imposition of Tischler’s sentence for six years, subject to

certain conditions. In addition, the court ordered that Tischler pay $28,781.26 in restitution,

for which Tischler would be jointly and severally liable with Thompson.

¶9     Tischler appeals. We set forth additional facts below.

                                STANDARD OF REVIEW

¶10    We review a criminal sentence for legality. We review a district court’s findings of

fact, including those regarding the amount of restitution in a criminal sentence, to determine

whether they are clearly erroneous. State v. Heath, 2004 MT 126, ¶ 13, 321 Mont. 280, ¶ 13,

90 P.3d 426, ¶ 13 (citations omitted). A finding is clearly erroneous if it is not supported by

substantial evidence, the district court misapprehended the effect of the evidence, or a review

of the record leaves this Court with the definite and firm conviction that the district court

made a mistake. The standard is not whether the evidence could support a different finding;

nor does this Court substitute its judgment for the finder of fact regarding the weight of the

evidence or witness credibility. See In re T.L., 2005 MT 256, ¶ 18, 329 Mont. 58, ¶ 18, 122

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P.3d 453, ¶ 18 (citations omitted).

                                       DISCUSSION

¶11    Did the District Court err in ordering restitution in the amount of $28,781.26?

¶12    Tischler does not dispute that the checks totaled $28,781.26. He also does not

advance authority or argument for the proposition that the checks do not constitute

substantial credible evidence. Tischler argues, however, that the appropriate amount of

restitution is lost profits based on the diversion of customers from the victims’ business, and

Simons’ testimony established that amount to be $12,687.81.

¶13    Simons prepared a restitution spreadsheet, which was entered into evidence. He

accepted the PSI’s bank account-related figures that the deposited checks totaled $28,781.26

and the unexplained cash deposits totaled $19,591, for a sum of $48,372.26. Simons testified

he then reviewed Tischler and Thompson’s claims that most of the checks drawn on the

Heritage Bank account and certain credit card charges were related to Thompson’s side

business, determining several of those claimed expenses were “not obviously . . . related” to

the side business. Ultimately, he concluded $35,684.45 was related to the side business,

subtracted that amount from the PSI’s bank account-related figure of $48,372.26, and opined

the appropriate amount of restitution was $12,687.81.

¶14    On cross-examination, Simons testified he had not reviewed any “books” from

Thompson’s side business because no such “books” existed. Simons also stated he did not

correlate any check deposited into the Heritage Bank account with a specific purchase of

product for the side business, but had performed his analysis on an “overall basis.” In

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addition, he admitted he did not know if the amounts spent on product and the deposited

checks were connected. The deputy county attorney inquired whether Simons “[could] tell

me right now how the numbers, the $31,000 [referring to Simons’ adjusted calculation of

outgoing Heritage Bank checks allegedly spent on product], is connected to $28,000

[referring to the deposited checks in the Heritage Bank account], other than the fact that

they’re both Wire—or dealing with cell phones[.]” Simons responded “I cannot tell you

that[,]” and reiterated “[n]o, I can’t.”

¶15    With regard to a sentencing recommendation, Tischler’s counsel stated the “trouble”

in determining restitution was whether the victims’ business lost approximately $28,000 or

“something less than that.” Counsel admitted “we don’t have any numbers or none have

been demonstrated at this point,” but asserted “there would have been some product cost” if

the victims’ business—rather than Tischler and Thompson—had gotten approximately

$28,000 in checks from customers.

¶16    Before sentencing Tischler, the District Court observed the case had been pending a

very long time, due in part to the financial proof that was required, and many questions

remained unanswered because of “minimal bookkeeping and a total absence of records in

some respect.” The court also stated that

               I think in order to further consider what was done with the money . . .
       that the only way to make actual sense of that would have been to have the
       backup documentation to support the amounts that Mr. Simons was trying to
       consider as part of the business enterprises that were being conducted with or
       without consent of the owners of the store. There was no evidence about what
       happened to any of the products that were purchased that Mr. Simons
       identified. I don’t know, when this came down, what happened to those
       things. I don’t know if they were credited or kept, or thrown away. I don’t
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       know, because there are no records, of who was paying the checks for what. I
       mean, we know the source of the payment because of the checks themselves,
       but there’s no receipt for the work that was done or the product that was sold
       to truly identify by the Court fairly that those items were not for new products
       sold through the store, and that they were instead for repair work, as testified
       by Mr. Thompson.

               There is no other evidentiary support for the business concept other than
       the list of transactions going on with the account, which is exactly what Mr.
       Simons was trying to work with and establish that at least a portion of this
       account, he said 50 percent approximately, was used for business purposes as
       he perceived it because the purchases out of the account were made for what
       was identified to be cellular products. But I don’t believe that that assumption
       can be made by the Court for purposes of the hearing and the restitution to be
       awarded. And I’m going to accept that the best proof provided to the Court
       today is, in fact, the checks themselves and that those were made out to
       Wireless Solutions Cell One in the amount of—a total of $28,781.26. And
       because there isn’t supporting evidence to consider other sources or other basis
       for the source of those funds, I am going to accept that amount as the
       appropriate amount of restitution in regard to the Heritage Bank account.

¶17    As stated above, the District Court determined the “best proof” consisted of the checks

deposited in the Heritage Bank account. Tischler advances Heath and State v. Hilgers, 1999

MT 284, 297 Mont. 23, 989 P.2d 866, however, for the proposition that the court had no

basis to reject Simons’ testimony.

¶18    In both Heath and Hilgers, we observed an expert witness had testified at a sentencing

hearing. Heath, ¶ 50; Hilgers, ¶ 11. We also set forth our longstanding rule that we will not

disturb a finder of fact’s determination of witness credibility or the weight to be given to

testimony on appeal. Heath, ¶ 52; Hilgers, ¶ 12. Applying that rule and noting the

sentencing court in each case had either expressly or apparently credited the expert

testimony, we concluded no error had occurred in either award of restitution. Heath, ¶¶ 51-

52; Hilgers, ¶ 12. Here, the District Court was unwilling, without additional documentation,
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to accept the assumptions underlying Simons’ calculations. As in Heath and Hilgers, we will

not disturb the District Court’s determinations regarding the weight and credibility of the

evidence, including Simons’ expert testimony. We conclude the checks constitute substantial

credible evidence supporting the District Court’s findings, the court did not misapprehend the

effect of the evidence, and we discern no mistake in the findings. See In re T.L., ¶ 18.

¶19    Alternatively, Tischler contends the affidavit of probable cause supporting the

information indicated the theft loss amounted to $14,137, based on Wireless Solutions’ sales

invoices totaling $82,515 and deposits into the First Security Bank account totaling $68,378.

Thus, he contends restitution exceeding $14,137 would constitute a windfall for the victims.

¶20    The affidavit of probable cause states Vejtasa provided information regarding deposits

into the First Security Bank account and sales from August 2001 through July 2002—a

different, and significantly shorter, time frame than the deposits into the Heritage Bank

account between October of 2000 and June of 2002. The difference in time frames supports

an inference that the total losses exceeded the $14,137 referenced in the affidavit. In any

event, Tischler advances no authority for the proposition that a statement in an affidavit of

probable cause precludes a court from considering evidence regarding restitution presented at

a sentencing hearing. M. R. App. P. 23(a)(4) requires parties to support positions taken on

appeal with citations to relevant authorities. Absent authority, we decline to address this

assertion further. See State v. Buck, 2006 MT 81, ¶ 28, 331 Mont. 517, ¶ 28, 134 P.3d 53, ¶

28 (citation omitted).

¶21    We hold the District Court did not err in ordering Tischler to pay $28,781.26 in

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restitution.

¶22    Affirmed.


                              /S/ KARLA M. GRAY


We concur:

/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




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