State v. Mikesell

• Decision Date: 08 June 2004
• Docket Number: No. 02-789.,02-789.
• Citation: 2004 MT 146,91 P.3d 1273
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas Wayne MIKESELL, Defendant and Appellant.
• Court: Montana Supreme Court

91 P.3d 1273

2004 MT 146

STATE of Montana, Plaintiff and Respondent, v. Thomas Wayne MIKESELL, Defendant and Appellant.

No. 02-789.

Supreme Court of Montana.

Submitted on Briefs August 28, 2003.

Decided June 8, 2004.

For Appellant: John Houtz, Forsyth, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; Michael B. Hayworth, Rosebud County Attorney, Mark Murphy, Special Deputy County Attorney, Forsyth, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Thomas Wayne Mikesell (Mikesell) was charged by information, in the Sixteenth Judicial District, Rosebud County, with five counts of felony theft in violation of § 45-6-301(1)(a)(7)(b) and five counts of illegal branding in violation of § 45-6-327. In the alternative, he was charged with one count of felony theft as part of a common scheme in violation of § 45-6-301(1)(a)(8) and five counts of illegal branding in violation of § 45-6-327. Mikesell eventually pled guilty to three counts of illegal branding. The District Court deferred sentencing for three years and ordered restitution in the amount of $42,181.81.¹ Mikesell appeals from the restitution award. We affirm in part and remand for clarification.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Whether Mikesell should pay for the loss of fifty-five head of cattle.

¶ 4 2. Whether Mikesell is responsible for the feed bill.

¶ 5 3. Whether the District Court erred in determining that Mikesell has the ability to pay restitution.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Mikesell leases a ranch, Canyon Creek Ranch, south of Birney. As part of his business operations, he enters into grass or pasture permit agreements with some cattle owners, and calf-share agreements with other cattle owners. Under the calf-share agreements, the other party would run cattle on Mikesell's land; Mikesell would be responsible for the cattle's care; then, when the cows had calves, Mikesell would brand the calves with the other party's brand. After accounting for all cattle, the other party would give Mikesell a bill of sale for a percentage of the calves.

¶ 7 In June of 1998, Bill McKinney (McKinney), a neighbor of Mikesell's and a deputy brand inspector for the Montana Department of Livestock, while on Mikesell's land with permission to retrieve a bull, noticed that a number of cows with assorted brands were paired with calves that had Mikesell's brand. McKinney reported this to the District Livestock Inspector, Gary Gatrin, who contacted the District Brand Inspector, Pat Anderson (Anderson), and advised Anderson of McKinney's findings. Anderson contacted one of the brand owners, the Hannums, and Mrs. Peary Hannum told Anderson that she and her husband had never given Mikesell a bill of sale for any cattle. Based on this information, Anderson obtained a search warrant and conducted a search on Mikesell's land. In addition to the group of cattle the deputy brand inspector observed, Anderson found other cattle with brands other than Mikesell's.

¶ 8 All of the cattle were seized and taken to the Miles City Livestock Commission (the Livestock Commission). Mikesell was charged by information on October 18, 1999, with five counts of felony theft in violation of § 45-6-301(1)(a)(7)(b) and five counts of illegal branding in violation of § 45-6-327. In the alternative, he was charged with one count of felony theft as part of a common scheme in violation of § 45-6-301(1)(a)(8) and five counts of illegal branding in violation of § 45-6-327. In October of 2001, after an initial trial date had been vacated in an attempt, by the parties, to resolve the matter without a trial, Mikesell pled guilty to three counts of illegal branding: Count VI, Count VIII, and Count X.

¶ 9 Count VI was for branding the calf of a cow belonging to Loren Brooks (Brooks).² Brooks had a pasture permit agreement with Mikesell. When Brooks retrieved his cattle from Mikesell's land, Brooks noticed that one of the cows in the bunch retrieved from Mikesell's Ranch was not Brooks' so he returned the cow to Mikesell. Mikesell testified that the cow was Brooks' and that Mikesell had tried to return it but Brooks insisted the cow was not his. At the change of plea hearing, Anderson testified that Brooks after looking at a picture of the seized cow, had told him that the cow Anderson had seized "absolutely was a different cow than" the cow Mikesell had tried to return to Brooks.

¶ 10 Count VIII was for branding the calf of a cow belonging to Pete Muri (Muri). Muri's cows were pastured with cattle belonging to Peary Hannum (Hannum) on Mikesell's land. When the cattle were shipped out, Mikesell held back some of Hannum's cattle for money Hannum owed Mikesell and Mikesell held back one of Muri's cows. Mikesell testified that he did not know the cow was Muri's and that had he known that the cow was Muri's, he would not have kept the cow.

¶ 11 Count X was for branding the calf of a cow belonging to Larry Grantier (Grantier). Mikesell testified at the change of plea hearing, that he had purchased a heifer calf from Grantier for $375 but failed to get a bill of sale. Mikesell further testified, that he later branded the heifer's calf knowing that he did not have a bill of sale for the heifer and that he legally could not brand the calf. Anderson testified that Grantier had sold Mikesell ten head of cows, that there was a brand inspection and bill of sale on file for that sale, and that the heifer in question was not a part of the sale.

¶ 12 A pre-sentencing investigation (PSI) was conducted by John Uden (Uden). Uden had to complete the PSI report without Mikesell's 1999 and 2000 tax returns because the returns had not been prepared. As a result of this, Uden noted in the PSI report, under the financial portion of the report, that he was "not able to make an educated determination as to the Defendant's financial status relative to paying the restitution...." However, under evaluation/recommendation, Uden stated that Mikesell "does have the ability to pay the restitution...." In addition, the plea agreement read that the State would be allowed to recommend restitution for "[f]eed and pasturage bills for cattle retained," [for] "feed as evidence," [and for] "[u]p to a maximum of restitution." At the change of plea hearing on October 29, 2001, "the maximum restitution the State [would] ask for [was] $10,000."

¶ 13 The District Court held a sentencing hearing on April 29, 2002, and awarded $10,000 to the Miles City Livestock Commission for the seized cattle's feed bill; $1,636.36 to Muri for three cows; $545.45 to Brooks for one cow; and $30,000 to Grantier for fifty-five head of Grantier's cattle that were missing after being pastured on Mikesell's land. Mikesell appeals the amount of the restitution award.

STANDARD OF REVIEW

¶ 14 Determination of the appropriate measure of restitution is a question of law. The standard of review of a district court's conclusions of law is whether the court's interpretation of the law is correct. State v. Pritchett, 2000 MT 261, ¶ 18, 302 Mont. 1, ¶ 18, 11 P.3d 539, ¶ 18.

DISCUSSION

ISSUE ONE

¶ 15 Whether Mikesell should pay for the loss of fifty-five head of cattle.

¶ 16 Mikesell argues that under § 46-18-243(1)(a), MCA, the loss of Grantier's fifty-five head of cattle did not "arise out of" the illegal branding of Grantier's calf. The State maintains that because Mikesell did not argue that the loss of the cattle was not related to the Count to which he pled guilty and instead argued that the matter concerning the lost fifty-five head of cattle was a civil matter, he waived his right to object on appeal.

¶ 17 "We have held that a criminal defendant is liable for restitution for offenses to which the defendant has admitted, as a defendant is required to make full restitution for pecuniary losses `arising out of the facts or events constituting the offender's criminal activities,' pursuant to §§ 46-18-241(1), MCA (1997), and §§ 46-18-243(1)(a), MCA (1997)." State v. Benoit, 2002 MT 166, ¶ 27, 310 Mont. 449, ¶ 27, 51 P.3d 495, ¶ 27. The loss of Grantier's fifty-five head of cattle from possible drowning, or other untimely demise,³ is not a pecuniary loss that arose from Mikesell's illegally branding Grantier's calf. Mikesell, as far as these proceedings are concerned, is not responsible for the restitution of Grantier's fifty-five head of cattle.

¶ 18 As to the State's argument that Mikesell did not use the appropriate language in protesting restitution for the fifty-five head of cattle, we conclude that it is without merit. First, Mikesell testified that he thought the matter concerning the fifty-five head of cattle was a civil dispute. In addition, Mikesell's attorney, during closing arguments, argued that "[t]he Grantier matter ... is a civil dispute." Lastly, it is interesting to note that Grantier testified that he had considered bringing a civil suit against Mikesell due to the loss of the fifty-five head. It is obvious to this Court that if a party argues that a particular issue is a civil matter, and thus not within the criminal proceeding, that such an argument is the same as arguing that the matter did not "aris[e] out of the facts or events constituting the offender's criminal activities...." Section 46-18-243(1)(a), MCA.

¶ 19 Accordingly, because the loss of Grantier's fifty-five head of cattle did not arise out of Mikesell's illegally branding Grantier's calf, we reverse that portion of the District Court's order awarding Grantier $30,000.

ISSUE TWO

¶ 20 Whether Mikesell is responsible for the feed bill.

¶ 21 Mikesell argues that he is not responsible for the feed bill because, as early as February of 1999, Mikesell had requested that the cattle be released from the Livestock Commission. The State insists that Mikesell is responsible for the feed bill because the State wanted the cattle released to the...