State v. Barrick

• Decision Date: 31 March 2015
• Docket Number: No. DA 14–0242.,DA 14–0242.
• Citation: 2015 MT 94,378 Mont. 441,347 P.3d 241
• Parties: STATE of Montana, Plaintiff and Appellee, v. Michael L. BARRICK, Defendant and Appellant.
• Court: Montana Supreme Court

378 Mont. 441

347 P.3d 241

2015 MT 94

STATE of Montana, Plaintiff and Appellee

v.Michael L. BARRICK, Defendant and Appellant.

No. DA 14–0242.

Supreme Court of Montana.

Submitted on Briefs Nov. 13, 2014.

Decided March 31, 2015.

For Appellant: Craig R. Buehler, Attorney at Law; Lewistown, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Assistant Attorney General; Helena, Montana. Thomas P. Meissner, Fergus County Attorney; Lewistown, Montana.

Opinion

Justice JIM Rice delivered the Opinion of the Court.

¶ 1 Michael L. Barrick (Barrick) appeals from the order of the Tenth Judicial District Court, Fergus County, requiring him to pay restitution in the amount of $9,357.14 following his conviction of Cruelty to Animals and Criminal Mischief. We affirm in part and reverse in part.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err by ordering Barrick pay restitution to the victims for lost wages?

¶ 4 2. Did the District Court err by ordering Barrick pay restitution for a victim's medical bills?

¶ 5 3. Did the District Court abuse its discretion by denying Barrick's motion to produce records?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 On September 20, 2013, a jury convicted Barrick of Criminal Mischief and Cruelty to Animals for fatally shooting the family dog of Brett Tuss, Ann Tuss, and Anika Tuss (collectively, the Tuss Family). Although Barrick and the Tuss Family disagreed as to the circumstances surrounding the animal's death, Barrick acknowledges that he fatally shot the dog.

¶ 7 During the sentencing phase, the Tuss Family requested restitution in the amount $9,357.14 arising from the loss of the animal and attendant criminal proceedings. Their claim included the replacement cost of the dog, medical bills for Brett Tuss, lost wages for time spent by the Tuss Family cooperating in the prosecution of the offenses, and their travelling expenses associated with the prosecution of the offenses.

¶ 8 In response to the Tuss Family's restitution claim, Barrick filed a motion to produce records, seeking production of all the medical records of Brett Tuss for the last five years; federal income tax returns for Brett and Ann Tuss for the last two years; pay stubs from Ann and Anika Tuss from October 15, 2012; and a release of information to authorize Barrick to obtain Ann and Anika Tuss' employment information. The District Court ultimately denied Barrick's motion to produce records.

¶ 9 The District Court conducted a restitution hearing at which members of the Tuss Family testified. Brett Tuss testified to the replacement value of the dog, the loss of time he sustained by participating in the prosecution, medical bills he sustained due to the stress of losing the family dog, and traveling expenses incurred in participating in the prosecution. Ann and Anika Tuss similarly testified that they lost wages as a result of leaving work to cooperate in the prosecution of the offenses.

¶ 10 The District Court determined that Brett Tuss' medical expenses were reasonably related to the offenses committed by Barrick, and that the Tuss Family was entitled to lost wages “for time invested in participating in the prosecution.” The District Court ordered that Barrick pay the entire $9,357.14 claimed in restitution.¹

STANDARDS OF REVIEW

¶ 11 We review a district court's factual findings regarding restitution to determine if they are clearly erroneous. State v. O'Connell, 2011 MT 242, ¶ 7, 362 Mont. 171, 261 P.3d 1042. Factual findings are clearly erroneous if they are not supported by substantial evidence. O'Connell, ¶ 7. Evidence is substantial if a reasonable mind might accept it as adequate to support a conclusion. State v. Coluccio, 2009 MT 273, ¶ 40, 352 Mont. 122, 214 P.3d 1282. Conclusions of law regarding the measure of restitution are reviewed for correctness. State v. Pritchett, 2000 MT 261, ¶ 18, 302 Mont. 1, 11 P.3d 539.

¶ 12 We review a district court's order granting or denying discovery for abuse of discretion. City of Billings v. Peterson, 2004 MT 232, ¶ 13, 322 Mont. 444, 97 P.3d 532. A district court abuses its discretion when it acts “arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” Henricksen v. State, 2004 MT 20, ¶ 29, 319 Mont. 307, 84 P.3d 38 (citations omitted).

¶ 13 We review a district court's interpretation and construction of a statute de novo. Dick Irvin, Inc. v. State, 2013 MT 272, ¶ 18, 372 Mont. 58, 310 P.3d 524.

DISCUSSION

¶ 14 1. Did the District Court err by ordering Barrick pay restitution to the victims for lost wages?

¶ 15 A sentencing court must “require an offender to make full restitution” for “pecuniary loss” sustained by the victim. Section 46–18–241(1), MCA. Pecuniary loss is defined in § 46–18–243(1), MCA. Two subsections of this provision are relevant here, as follows:

(1) “Pecuniary loss” means:

(a) all special damages, but not general damages, substantiated by evidence in the record, that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender's criminal activities, including without limitation out-of-pocket losses, such as medical expenses, loss of income ..., expenses reasonably incurred in attending court proceedings related to the commission of the offense....”

...

(d) reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.

Section 46–18–243(1)(a), (d), MCA.

¶ 16 Barrick contends neither subsection of § 46–18–243(1), MCA, allows the Tuss Family to be compensated for lost wages. Regarding subsection (d), Barrick argues that this provision, by its plain language, does not authorize restitution for lost wages incurred in filing charges or cooperating in the investigation or prosecution of an offense. Rather, Barrick contends that “[o]ut-of-pocket expenses are just that—actual expenditures by the victim. The Tuss family had no financial expenditure when meeting with the County Attorney except a small amount of gas expense.” He asserts the Tuss Family's lost wages or income are not recoverable because they are not an “out-of-pocket expense.” The State answers that lost wages fall “within the ambit of compensable restitutionary losses” permitted by the statute and case law, citing State v. Good, 2004 MT 296, 323 Mont. 378, 100 P.3d 644.

¶ 17 We interpret a statute by first looking to its plain language. Mont. Sports Shooting Ass'n v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003. “We will not interpret the statute further if the language is clear and unambiguous.” Mont. Sports Shooting Ass'n, ¶ 11. An “out-of-pocket expense” is “[a]n expense paid from one's own funds.” Black's Law Dictionary 659 (9th ed.2009); see also Merriam–Webster's Collegiate Dictionary 881 (11th ed.2012) (defining “out-of-pocket” as “requiring an outlay of cash.”); SecurityComm Group, Inc. v. Brocail, 2010 WL 5514333, *4, 2010 Tex.App. LEXIS 10190, *13 (Tex.App.-Houston 14th Dist.2010) ( “Out-of-pocket is commonly defined as calling for the spending of cash, or consisting of or requiring an actual cash outlay.”); Stockton v. Oldenburg, 305 Ill.App.3d 897, 903, 238 Ill.Dec. 1013, 713 N.E.2d 259, 264 (Ill.App.Ct. 4th Dist.1999) (Out-of-pocket expenses “require[s] an outlay of cash.”). In providing restitution for “out-of-pocket expenses,” the Legislature authorized reimbursement of victim expenses that actually required a cash payment or outlay. The State cites our holding in State v. Good affirming an order of restitution for the victim's purchase of video surveillance equipment made at the urging of law enforcement, but that holding involved precisely such an out-of-pocket expense. Good, ¶ 18. Similarly, in State v. Thompson, 2004 MT 131, 321 Mont. 332, 91 P.3d 12, we held that the victim's rekeying of the building because of the defendant's access to the premises was an “out-of-pocket” loss that was compensable as restitution. Thompson, ¶ 16 (overruled on other grounds, State v. Herman, 2008 MT 187, ¶ 12 n. 1, 343 Mont. 494, 188 P.3d 978 ). These cases further illustrate the clear and unambiguous meaning of the statute's wording, which provides for recovery of victim expenses involving a cash payment or outlay. In contrast, the record here demonstrates that the lost wages at issue was income that the Tuss Family claimed it was prevented from earning, not an out-of-pocket expense. Thus, subsection (d) does not provide a basis for the recovery of the claimed wages.

¶ 18 Turning to subsection (a) of § 46–18–243(1), MCA, the parties initially dispute how this provision—an operative definition of “pecuniary loss” as “special damages ... that a person could recover against the offender in a civil action arising out of the facts” of the crime, followed by a list of examples that are “include[ed] without limitation”—is intended to be applied. Barrick argues that restitution is permissible for only those “costs a person could receive in a civil action,” and that reference must be made to a civil action to determine appropriate damages or costs.

¶ 19 The State argues that “[t]he analogy Barrick attempts to make comparing the Tusses to civil litigants pursuing civil litigation is ... flawed in its basic premise” and that Barrick's assertion that “substantive civil law principles control the outcome” misconstrues subsection (a). Rather, the “statute speaks to the type of damages recoverable in a criminal sentencing hearing and does not mandate tort and contract law principles” be dispositive in determining what constitutes a loss. The State argues that Barrick “has read the words ‘civil action’ to mean the full incorporation of civil law defenses into [subsection (a) ].” However, on this last point, the restitution statutes permit exactly that: in a proceeding to determine restitution, “the offender may assert any defense that the offender could raise in a...