                                                                                        October 21 2014


                                       DA 13-0215

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2014 MT 283N



IN THE MATTER OF:

D.D.M.,

          Youth and Appellant.



APPEAL FROM:        District Court of the Eighth Judicial District,
                    In and For the County of Cascade, Cause No. BDJ-12-029
                    Honorable Julie Macek, Presiding Judge


COUNSEL OF RECORD:

             For Appellant:

                    Wade Zolynski, Chief Appellate Defender, Kristen L. Larson, Assistant
                    Appellate Defender, Helena, Montana

             For Appellee:

                    Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                    Assistant Attorney General, Helena, Montana

                    John Parker, Cascade County Attorney, Jennifer L. Quick, Deputy County
                    Attorney, Great Falls, Montana



                                                Submitted on Briefs: September 24, 2014
                                                           Decided: October 21, 2014


Filed:




                                 _____________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     D.D.M. appeals an order of the Youth Court, Eighth Judicial District, Cascade

County, requiring her to pay restitution in the amount of $1,164.70 for damage done to a

vehicle. D.D.M. argues there was insufficient evidence to support the finding that she

caused the damage and that the Youth Court failed to correctly consider the youth’s

ability to pay. We affirm.

¶3     On January 6, 2012, D.D.M. was attempting to locate her boyfriend, when her

vehicle crossed paths with B.F.’s car. D.D.M.’s boyfriend was inside B.F.’s vehicle.

Angry about her boyfriend’s presence in B.F.’s car, D.D.M. followed B.F. until both cars

stopped at a friend’s home. Upon stopping, D.D.M. exited her car, approached B.F.’s

car, and kicked the vehicle. During the altercation, B.F. locked herself inside the vehicle.

D.D.M. is a petite individual and was wearing slippers during the incident.

¶4     The following day, S.F., B.F.’s mother and the owner of the vehicle, photographed

the damage to the vehicle, obtained estimates from two repair shops, and filed a report

with the police. S.F. instructed the shops to assess only the damage pertaining to the rear

quarter of the vehicle, the area she alleged D.D.M. damaged. Mitchell’s Craft Repair


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approximated the damage at $1,164.70.       Procraft Carstar calculated the damage at

$1,261.90, but included other damaged areas in the estimate.          The Youth Court

specifically noted that the Mitchell’s estimate reflected the proper amount of damage and

restitution.

¶5     After the incident involving D.D.M., B.F. caused additional damage to the vehicle.

S.F. is not seeking restitution for these damages. The Youth Court only considered the

portion of damage reflected in the Mitchell estimate and ignored any pre-existing or

after-acquired damage.

¶6     On October 26, 2012, an adjudicatory and restitution hearing was held. S.F.

testified regarding the damage to the vehicle. The Youth Court also heard testimony

from a defense expert who stated that he would expect to see a footprint given the amount

of force necessary to create the large dent.      Ultimately, D.D.M. admitted to the

allegations in the petition, but there was disagreement concerning the amount of damage

inflicted. The Youth Court noted that D.D.M. worked 20 hours a week at $8.10 an hour

and had financial obligations including contributing to groceries, transportation, fines,

and clothing.    On January 17, 2013, at the final disposition, the Youth Court

“incorporated” its earlier findings regarding D.D.M.’s ability to pay and ordered her to

pay $100 a month.

¶7     This Court reviews questions of law, such as the appropriate measure of

restitution, for correctness. In re K.E.G., 2013 MT 82, ¶ 9, 369 Mont. 375, 298 P.3d

1151, overruled on other grounds by In re B.W., 2014 MT 27, ¶ 15, 373 Mont. 409, 318

P.3d 682. We review factual findings to determine whether they are clearly erroneous.

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State v. Weaver, 2008 MT 86, ¶ 9, 342 Mont. 196, 179 P.3d 534. Findings of fact are

“clearly erroneous if they are 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.” Weaver, ¶ 9.

¶8     D.D.M. argues that there was insufficient evidence to support the finding that she

created the dent costing $1,164.70 in damages. As evidence supporting a different result,

D.D.M. points to her small frame, the court’s reliance on S.F’s testimony, and the

absence of a footprint in the dent. D.D.M. maintains that there was insufficient evidence

to show that she caused the new dent in the rear quarter panel, instead arguing that she

kicked an existing dent.

¶9     The Youth Court’s findings are not clearly erroneous and are supported by

substantial evidence. 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. Aragon, 2014 MT

89, ¶ 9, 374 Mont. 391, 321 P.3d 841 (citations omitted). The Youth Court, as the trier of

fact, determines the credibility of witnesses and weighs the testimony given. State v.

Hilgers, 1999 MT 284, ¶ 12, 297 Mont. 23, 989 P.2d 866. The Youth Court was in the

best position to judge the credibility and demeanor of D.D.M. and S.F. The Youth Court

found S.F.’s statement regarding damage to the vehicle to be more reliable than D.D.M.’s

testimony.

¶10    D.D.M. further argues that the Youth Court erred by failing to make a finding

regarding D.D.M.’s ability to pay.         D.D.M. asserts that this failure violates

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§§ 41-5-1521(b) and 45-6-101(2), MCA.              Specifically, D.D.M. takes issue with the

timing of the financial ability inquiry and asserts that the Youth Court erred by not

considering her ability to pay at the final disposition.

¶11    The Youth Court complied with the statutory requirements for imposing

restitution. The Youth Court Act gives the judge discretion when considering restitution.

“[T]he following factors may be considered in addition to any other evidence: . . . (b) the

ability of the youth to pay.” Section 41-5-1521(1), MCA (emphasis added).

¶12    The transcript clearly show that the Youth Court inquired into D.D.M.’s financial

ability at the restitution hearing, before ordering restitution. The Youth Court waited to

rule on the specific amount of restitution until disposition, when it could consider the

length of the sentence and how it would impact the youth’s ability to pay. The restitution

hearing transcript indicates the Youth Court’s intention to “wait for disposition to . . .

incorporate the restitution” into the final disposition.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for memorandum opinions. The Youth

Court’s findings of fact are supported by substantial evidence and the legal issues are

controlled by settled Montana law, which the Youth Court correctly interpreted.

¶14    Affirmed.

                                                     /S/ MIKE McGRATH
We Concur:

/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ JIM RICE

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