                                                                                           July 8 2014


                                          DA 13-0134

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 175



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MICHAEL WESLEY SIMPSON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Ninth Judicial District,
                       In and For the County of Toole, Cause No. DC-11-011
                       Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; Nicholas C. Domitrovich,
                       Assistant Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
                       Assistant Attorney General; Helena, Montana

                       Merle Raph, Toole County Attorney; Shelby, Montana



                                                   Submitted on Briefs: May 21, 2014
                                                              Decided: July 8, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Michael Simpson appeals an order for restitution entered by the Montana Ninth

Judicial District Court, Toole County, on December 13, 2012. We address the following

issues on appeal:

¶2     1. Whether Simpson preserved his objection to the award of restitution for two
victims based on their lack of affidavits or testimony.

¶3    2. Whether the District Court’s restitution order was supported by substantial
evidence.

¶4     We affirm in part, reverse in part, and remand for further proceedings.

                    PROCEDURAL AND FACTUAL BACKGROUND

¶5     On July 16, 2012, Simpson pleaded guilty to a single count of theft by common

scheme arising from the theft of property from a salvage yard owned by Robert Appley.

In exchange for the guilty plea, the State agreed to dismiss the remaining charges against

him. Pursuant to the plea agreement, the State recommended a five-year commitment,

suspended, to the Department of Corrections and restitution to be determined by the

District Court. The agreement specifically provided that Simpson would be liable for

restitution “to any victim on the charges that were dismissed pursuant this plea

agreement.”

¶6     The court ordered a pre-sentence investigation (PSI) in part to determine an

appropriate amount of restitution. The officer completing the PSI noted that restitution

had been a “nightmare” to calculate, in large part because it was difficult to determine the

value of the various scrap items. The PSI calculated Appley’s restitution request to be

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$30,460.59 for the various vehicle parts and scrap metal. The PSI also included amounts

for two other alleged victims of thefts Simpson had committed, Archie Johnson and Kyle

Coder. Johnson requested $500 for the insurance deductible for Simpson’s theft and

damage of a flatbed trailer, and Coder requested $360 to reimburse him for his purchase

from Simpson of a stolen Oldsmobile. Both items were recovered in Pondera County.

Simpson’s plea agreement resulted in dismissal of the charges for these thefts, but

Simpson agreed to pay restitution for the dismissed charges.

¶7     The District Court held a sentencing and restitution hearing on September 4, 2012.

Near the end of the hearing, Simpson’s counsel raised objections to the evidence

presented. He disputed Appley’s claimed amount of losses and argued that $8,000 would

be a more appropriate amount of total restitution in this case. The court sentenced

Simpson pursuant to the plea agreement on September 25, 2012. On December 13, 2012,

it issued its order for restitution, ordering Simpson to pay a total of $31,878.78 to the

victims. Simpson appeals the court’s order for restitution.

                              STANDARD OF REVIEW

¶8     A criminal sentence is reviewed for legality. State v. Benoit, 2002 MT 166, ¶ 18,

310 Mont. 449, 51 P.3d 495. “Findings of fact regarding the amount of restitution

ordered as part of a criminal sentence are reviewed to determine whether they are clearly

erroneous.” State v. Coluccio, 2009 MT 273, ¶ 40, 352 Mont. 122, 214 P.3d 1282,

overruled in part on other grounds, State v. Kirn, 2012 MT 69, 364 Mont. 356, 274 P.3d

746. A finding of fact is clearly erroneous if it is not supported by substantial evidence.

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City of Billings v. Edward, 2012 MT 186, ¶ 18, 366 Mont. 107, 285 P.3d 523.

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

¶9     1. Whether Simpson preserved his objection to the award of restitution for two
victims based on their lack of affidavits or testimony.

¶10    A sentencing court is required to order an offender to pay full restitution to any

victim who has sustained a pecuniary loss. Section 46-18-241, MCA. The court must

comply with statutory requirements in determining an amount of restitution. Benoit,

¶ 23. Simpson contends that the District Court erred by ordering him to pay restitution to

Johnson and Coder when the PSI did not include affidavits detailing their loss and they

did not testify at the restitution hearing. He alleges that the court failed to comply with

the statutory procedural requirements that a PSI include “an affidavit that specifically

describes the victim’s pecuniary loss and the replacement value in dollars of the loss,

submitted by the victim.” Section 46-18-242(1)(b), MCA. The State responds that

Simpson failed to object to the amounts requested by Johnson and Coder and that he has

waived his right to appeal the court’s order of restitution for these two victims.

¶11    “[W]e will not put a district court in error for failing to address an issue or an

argument that was not made before it.” State v. David C. Johnson, 2011 MT 116, ¶ 21,

360 Mont. 443, 254 P.3d 578.            “Above all else, the rationale underlying the
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timely-objection rule is judicial economy and ‘bringing alleged errors to the attention of

each court involved, so that actual error can be prevented or corrected at the first

opportunity.’” State v. West, 2008 MT 338, ¶ 17, 346 Mont. 244, 194 P.3d 683 (quoting

City of Missoula v. Asbury, 265 Mont. 14, 20, 873 P.2d 936, 939 (1994)). Although the

Court will review an unpreserved claim that a criminal sentence is illegal, State v.

Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979), “a sentencing court’s failure to

abide by a statutory requirement rises to an objectionable sentence, not necessarily an

illegal one . . . .” State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892. In

David C. Johnson, we affirmed a district court’s restitution order despite the lack of

victim affidavits where the defendant had not objected on that ground at the time of

sentencing.   David C. Johnson, ¶¶ 19-21.        Soon thereafter, we reiterated that a

defendant’s failure to object to restitution imposed at sentencing forfeits his claim on

appeal that the PSI did not contain adequate information to support a restitution award.

State v. Charley Johnson, 2011 MT 286, ¶ 14, 362 Mont. 473, 265 P.3d 638.

¶12   Here, Simpson made a general objection at the restitution hearing to the lack of

evidence presented for Appley’s requested restitution. He did not object to the amounts

requested by Johnson and Coder or to the basis for their awards. As we held in David C.

Johnson and Charley Johnson, the District Court’s alleged failure to require evidentiary

support for these victim losses results in a merely objectionable sentence. Because

Simpson failed to object on this ground, he has waived this issue for consideration on

appeal.

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¶13 2. Whether the District Court’s restitution order was supported by substantial
evidence.

¶14   A victim who sustains pecuniary loss from a defendant’s criminal action is entitled

to recover all special damages substantiated by evidence in the record that are

recoverable in a civil action. Section 46-18-243(1)(a), MCA. Offenders are liable for

restitution only for those offenses of which they have been found guilty or to which they

have admitted or agreed to pay restitution. State v. Breeding, 2008 MT 162, ¶ 19, 343

Mont. 323, 184 P.3d 313. Even if actual losses are uncertain, they may be recoverable if

they are calculated by use of reasonable methods based on the best evidence available

under the circumstances. Benoit, ¶ 29. Reasonable methods include “a reasonably close

estimate of the loss.” State v. Dodson, 2011 MT 302, ¶ 12, 363 Mont. 63, 265 P.3d 1254

(internal citations omitted). We have held that “‘[n]othing in the controlling restitution

statutes . . . requires a court or a victim to substantiate a restitution calculation with

documentation.’”    State v. Aragon, 2014 MT 89, ¶ 12, 374 Mont. 391, 321 P.3d 841

(quoting State v. McMaster, 2008 MT 268, ¶ 29, 345 Mont. 172, 190 P.3d 302). A

sentencing court accordingly may award restitution in reliance on victim testimony.

Aragon, ¶ 14. A defendant has a due process right to “‘explain, argue, and rebut any

information’ presented at sentencing.” Aragon, ¶ 12 (quoting State v. Roedel, 2007 MT

291, ¶ 65, 339 Mont. 489, 171 P.3d 694).          When a Defendant does not present

contradictory evidence, the District Court does not err in relying on a victim’s estimates

of loss. Dodson, ¶ 14.


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¶15    Simpson challenges the court’s calculation of restitution for Appley, asserting that

its calculations were not supported by substantial evidence in the record. He also objects

to the court’s reliance on Appley’s estimates of loss. We address each specific argument

in turn.

       a.     Total weight of the scrap metal

¶16    The District Court ordered Simpson to reimburse Appley for the cost of fourteen

tons of scrap metal, amounting to $2,800.00 in damages.         Simpson argues that the

evidence in the record does not support the allegation that he stole this much scrap metal.

Simpson points to receipts obtained from Pacific Steel and Recycling, attached to the

PSI, which account for only approximately seven tons of scrap metal.

¶17    To support its findings regarding the amount of scrap metal, the District Court

relied on Appley’s testimony that he had ten tons of scrap located in one area of the

property and four tons in another area. Appley testified as to the items that were missing

from the two locations. He also completed a lengthy hand-written affidavit of these

items, which was attached to the PSI. The officer who completed the PSI testified that

the receipts from Pacific Steel and Recycling were from the Pondera County Attorney’s

initial investigation and that they may be incomplete. Later, when she was compiling the

PSI, the officer was unable to obtain any records from Pacific Steel because of the

amount of time that had passed.        Additionally, although law enforcement’s initial

investigation revealed that Simpson also scrapped metal at another recycling plant, there

are no receipts from that center included in the PSI.

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¶18    “‘The credibility of witnesses and the weight to be given their testimony are

determined by the trier of fact, whose resolution of disputed question of fact and

credibility will not be disturbed on appeal.’” State v. Heath, 2004 MT 126, ¶ 52, 321

Mont. 280, 90 P.3d 426 (quoting State v. Hilgers, 1999 MT 284, ¶ 12, 297 Mont. 23, 989

P.2d 866). Here, the District Court chose to believe Appley’s assessment of how much

scrap iron was on his property and awarded him that amount rather than a reduced

amount tied solely to the receipts attached to the PSI. Simpson does not support his

contention that the attached receipts establish conclusively how much scrap iron Simpson

stole from Appley’s property. The District Court acted within its discretion in relying on

Appley’s testimony.     The District Court’s determination of how much restitution to

award for the scrap iron is not clearly erroneous.

       b.     Other parts

¶19    Simpson next disputes the court’s order of restitution for $400 in miscellaneous

parts. Again, the District Court relied largely on Appley’s testimony to determine the

value of loss for these items. Appley testified that he had parts in a shed that were taken

by Simpson, including some “bell housings and transmissions.”           A court may use

reasonable methods to calculate restitution, including estimates, if it is reasonable under

the best evidence available under the circumstances presented. Benoit, ¶ 29. Simpson

argues that Appley’s request of $400 for these items was nothing more than complete

guess work.     Although there was confusion at the hearing when discussing the

miscellaneous parts, Appley testified as to what was missing and, as written in his

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inventory, estimated that the missing items were worth $400. The District Court is in the

best position to judge the credibility of witnesses and weigh the evidence before it.

Heath, ¶ 52. Appley’s testimony and inventory attached to the PSI comprise sufficient

evidence to support the $400 in restitution for the miscellaneous parts. We do not find

clear error in this portion of the District Court’s order.

       c.     Radiators

¶20    Simpson next disputes the court’s imposition of restitution for the radiators stolen

from vehicles in Appley’s yard. Simpson first argues that he did not take the radiators.

The charging documents specifically list radiators as items stolen from Appley. The

District Court sentenced Simpson pursuant to a plea agreement in which he agreed to pay

restitution for losses related to any of the charges against him.       Although Simpson

disputes the number of radiators he stole, the District Court was entitled to reject his

testimony. Imposing restitution for the radiators was proper. Breeding, ¶ 19.

¶21    Alternatively, Simpson alleges that the court did not have sufficient evidence to

calculate the worth of the radiators to be $7,420.70.        The District Court relied on

Appley’s testimony in conjunction with receipts attached to the PSI from Appley’s car

repair business.    Simpson argues that Appley’s receipts were an improper tool for

calculation because they included the cost of removing the radiator from the vehicle,

which was already done. Appley testified to the necessity for the labor cost at the

hearing, stating that when Simpson took out the radiators, he caused damage to the inside

of the vehicles, making it more difficult to replace the radiators. Again, the District Court

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weighed the evidence before it and chose to believe Appley’s estimate over Simpson’s

objections. Simpson does not point to more reliable or accurate information in the record

that the District Court ignored. The District Court relied on testimony from Appley, who

works in car repairs, and the documentation that he provided. We conclude that there is

sufficient evidence in the record to support the District Court’s order for $7,420.70 in

radiator replacement costs.

       d.     Road repairs

¶22    Simpson next disputes the cost for repair of Appley’s road. The District Court

found that Simpson severely damaged the half-mile driveway to Appley’s salvage yard

when he attempted to haul the stolen goods out in muddy conditions. The court ordered

Simpson to pay $9,000 for repair of the road. The court based this amount on testimony

from Appley and from Sam Nickol, an independent contractor who gave an estimate on

repairing Appley’s road. Nikol’s estimate also is attached to the PSI.

¶23    Simpson argues that this order for restitution provides a windfall to Appley by

improving the road beyond the condition it was in before Simpson damaged it. Simpson

points to Appley’s testimony that the road was only a dirt road, arguing that the amount

of restitution will result in upgrading “what was essentially a dirt path” into an improved

gravel road. Simpson also testified as to his opinion that the amount of gravel in the

estimate was unnecessary to improve the road. Nikol contradicted Appley’s statement

that the road was only a dirt road, stating “Whether or not [Appley] remembers it, there’s

been truckloads of gravel dumped in mud holes and that kind of stuff on and on and on

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. . . . He said it was a dirt trail. Actually, it wasn’t. I mean it was an access road. In

order to repair that, you have to replace that to where it will stand back up.” Simpson did

not introduce contrary evidence of what would constitute a reasonable amount of repair.

Further, a victim is entitled to recover “the full replacement cost of property taken,

destroyed, harmed, or otherwise devalued as a result of the offender’s criminal conduct.”

Section 46-18-243(1)(b), MCA. The State is required to submit evidence of only a

“causal relationship” between an offense and damage before a defendant may be charged

with paying restitution for the damage. Jent, ¶ 13. Here, the evidence supported the

State’s contention that Simpson’s use of a flat-bed trailer on Appley’s property caused

damage to the road. The testimony and documentation in the record supports the $9,000

repair cost. We affirm the road repair cost included in the court’s restitution order.

       e.     Aluminum Boats

¶24    The District Court’s restitution order included $500 for the value of two aluminum

boats Simpson allegedly stole from Appley’s property. Simpson argues that this award

was improper because he was not charged with stealing the boats. Although Simpson

agreed to pay restitution for charges dismissed under the plea agreement, he did not agree

to pay for items that he was never charged with stealing. We have disallowed restitution

for offenses that defendants have not admitted, been found guilty of or agreed to pay.

Breeding, ¶ 19; In re B.W., 2014 MT 27, ¶ 23, 373 Mont. 409, 318 P.3d 682.

¶25    The State charged Simpson with three counts of theft. The information lists the

property he was accused of stealing as “radiators, scrap metal and automobile parts,” and

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“a 1951 GMC Pickup and a 1940 Oldsmobile.” The charging documents include no

reference to the allegedly stolen boats. Appley did not report the boats missing until

approximately a month after the charges were filed against Simpson. When questioned at

the hearing, Simpson denied stealing the boats. The evidence presented regarding the

boats does not establish that Simpson admitted to stealing them or that he agreed to pay

restitution for the loss.   Accordingly, we reverse the District Court’s imposition of

restitution for the two aluminum boats.

       f.     1951 GMC truck

¶26    Simpson finally disputes the court’s valuation of a 1951 GMC truck. The District

Court included $4,000 in restitution for the truck, which Simpson admitted to having

taken from the property. The court relied on Appley’s testimony that he estimated that

the truck was valued at approximately $4,000. Appley based his testimony on the fact

that he found a similar truck, in good condition, worth $17,000. Because his truck was

not in good condition, Appley opined that $4,000 was an acceptable valuation. Appley’s

testimony was not supported by any documentation of a similar make or model truck with

the value he ascribed. Instead, the PSI author explained that she was unable to determine

a specific value for the truck and found advertisements for similar trucks in good

condition being sold for $2,800 and $5,000. The trucks in these advertisements appear to

be in much better condition than Appley’s truck. The defense included as an exhibit at

the restitution hearing a picture of Appley’s truck showing that it was riddled with bullet




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holes. Appley testified that he previously had received restitution for damage to the truck

from that vandalism.

¶27    Although “documentation supporting the claimed loss is not generally required,”

we have held that restitution is not supported by substantial evidence where the evidence

before the court is conflicting and no other testimony or evidence is available to be

examined or reviewed as to the discrepancy. Aragon, ¶ 20. Losses must be calculated by

reasonable methods based on the best information available under the circumstances.

McMaster, ¶ 28. In Aragon, the court was faced with two estimates for repair to a garage

that the defendant damaged in a drunk-driving incident. Aragon, ¶ 6. The estimates were

significantly different because one included the cost of repainting the house “to match the

current color.” Aragon, ¶ 18. We reversed the District Court’s decision to use the more

expensive estimate because there was no evidence indicating that the house needed to be

painted and “[a] reasonable mind could not conclude, solely from the two estimates, that

one was more appropriate than the other.” Aragon, ¶ 19.

¶28    Here, the District Court relied on Appley’s guess that his truck was worth $4,000

and ignored the prices in the advertisements included in the PSI. As in Aragon, the court

did not give context for its decision to choose one estimate over another. A reasonable

mind cannot conclude, from the competing evidence before the District Court, that

Appley’s evidence was more appropriate to use. Accordingly, we reverse the court’s

imposition of restitution for the $4,000 value of the GMC truck and remand for further

factual findings to determine a proper amount of restitution for this item of property.

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                                   CONCLUSION

¶29   We affirm the District Court’s order of restitution to Johnson and Coder because

of Simpson’s failure to preserve the objection he raises on appeal. We also affirm the

Court’s order of restitution to Appley for the value of scrap metal, road repairs,

miscellaneous parts and radiators. We reverse the court’s restitution to Appley for the

aluminum boats and the 1951 GMC truck. We remand for further factual findings

regarding the proper amount of restitution for Appley’s 1951 GMC truck.



                                              /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE




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