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DA 21-0606

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 7N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

COREY MICHAEL KELLY,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. DDC-2020-638

Honorable Christopher D. Abbott, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Haley Connell Jackson, Helena, 

Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant 

Attorney General, Helena, Montana

Kevin Downs, Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: November 15, 2023

 Decided: January 16, 2024

Filed:

__________________________________________

Clerk

01/16/2024

Case Number: DA 21-0606
2

Justice Beth Baker delivered the Opinion of the Court.

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

Rules, we decide this case by memorandum opinion. It 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 Following trial, a jury convicted Corey Michael Kelly of mitigated deliberate 

homicide for the shooting death of Mark Luther (Mark). As part of Kelly’s sentence, the 

District Court imposed $13,495 in restitution for repairs to the interior of Mark’s home. 

Kelly appeals this portion of his sentence. We reverse and remand for recalculation of the 

restitution award.

¶3 In the early morning of November 20, 2020, deputies with the Lewis and Clark 

County Sheriff’s Department responded to a reported shooting at a residence near Helena. 

When they arrived on the scene, deputies found Mark dead on his living room floor with a 

single gunshot wound in his chest. Following an investigation, Kelly was charged with 

deliberate homicide for Mark’s death.

¶4 Mark’s home, which he rented from his parents (the Luthers), consisted of a 

bedroom on one end connected by a long hallway to a living room and kitchen. Detectives 

determined that Kelly shot Mark in the living room. The bullet traveled through Mark’s 

body into a living room wall, exited an adjacent wall in the hallway, and struck a bookcase. 
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Relevant to this appeal, the only property damage directly caused by the bullet was two 

small holes in the wood-paneled walls and a small defect in the bookcase.

¶5 Prior to Kelly’s sentencing hearing, the State submitted an affidavit from the Luthers

claiming $13,495 in damages to the property. The affidavit included a proposal from Team 

Builders, Inc., describing the necessary repairs as “[re-paneling] hallway, bedroom, living 

room and adjoining walls of kitchen . . . [Placing] new window, door, ceiling and floor 

trim.” Neither the Luthers’ affidavit nor the attached estimate provided a detailed or 

line-item accounting of the necessary repairs and associated costs. While stating his 

willingness to agree to a portion of the requested restitution, Kelly objected to the Luthers’ 

request as unsupported by record evidence and constituting a “windfall” for the Luthers. 

Kelly did not, however, produce any evidence to refute the Luthers’ estimate.

¶6 The District Court awarded the Luthers the full amount requested for repairs to the 

home. During its sentencing pronouncement, the District Court stated:

The tricky one for me is the rental property repairs. It’s difficult for me 

because there isn’t, unfortunately, the itemization. There isn’t itemization. 

There also isn’t anything in the record, other than just complaining in that 

it’s not itemized, in that it seems like it might be excessive, there isn’t 

anything really to suggest this is wrong or there isn’t anything from the 

contractor’s proposal on, you know, a registered contractor who has 

estimated this is the work done. I did see the photos at trial, and I don’t think 

it’s unreasonable, there has to be some things done to get that place up to a 

saleable condition just because of the disorder and the mess caused by this 

incident.

So I do think there’s substantial evidence for it and I do think that it could be 

established in a civil action based on the evidence I have before me. So I am 

going to award $13,495 for that.
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¶7 The appropriate measure of restitution is a question of law that we review for 

correctness. State v. Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841. A district 

court’s factual findings as to the amount of restitution owed will be disturbed only if they 

are clearly erroneous. Aragon, ¶ 9. A finding is clearly erroneous if “it is not supported 

by substantial evidence, the court has misapprehended the effect of the evidence, or our 

review of the record convinces us that a mistake has been committed.” State v. Spina, 1999 

MT 113, ¶ 12, 294 Mont. 367, 982 P.2d 421. Substantial evidence is evidence that a 

reasonable person could accept as sufficient to support a conclusion. State v. Jent, 2013 

MT 93, ¶ 10, 369 Mont. 468, 299 P.3d 332 (citing Johnston v. Palmer, 2007 MT 99, ¶ 26, 

337 Mont. 101, 158 P.3d 998). An inkling or mere scintilla of evidence is not sufficient to 

constitute substantial evidence. Jent, ¶ 10. 

¶8 Kelly argues that the evidence in the case is insufficient to support the District 

Court’s award of restitution. Evidence introduced by the State showed that the bullet fired 

by Kelly damaged two wall panels and a bookcase. The State provided no evidence 

showing why the damage caused by the bullet required repaneling the entire living room. 

Even if it was necessary to replace all of the panels in the rooms where the shooting 

occurred, Kelly points to the absence of evidence that the bedroom and kitchen also had to 

be repaneled. Kelly further argues that there was no evidence to show that the damages 

caused by the bullet necessitated replacing wall, door, and window trim throughout the 

home. Because the State did not submit sufficient evidence, Kelly argues, the District 

Court abused its discretion in its award of restitution.
5

¶9 In response, the State argues that the Luthers’ affidavit and accompanying estimate 

constitute substantial evidence of the damage caused by Kelly’s criminal conduct. Because 

Kelly failed to provide any evidence to the contrary, it was reasonable for the District Court 

to rely on the Luthers’ affidavit. Despite damaging only two wood panels, the State argues, 

it is reasonable to assume that a contractor would need to replace the entirety of the 

paneling to achieve a matching result and that doing so would require installing all new 

trim. Because evidence showed that the kitchen shared common walls and had the same 

paneling as the living room, the State maintains that substantial evidence supported 

replacing all of the paneling.

¶10 A sentencing court must require the defendant to pay restitution to any victim in an 

amount “sufficient to fully compensate the victim[] for all pecuniary loss substantiated by 

record evidence to have been caused by the defendant’s conduct.” State v. Cole, 2020 MT 

259, ¶ 11, 401 Mont. 502, 474 P.3d 323 (quoting State v. Pierre, 2020 MT 160, ¶¶ 12-13, 

400 Mont. 283, 466 P.3d 494). Because pecuniary loss is “those damages that would be 

recoverable in a civil action,” an award of restitution must be supported by a preponderance 

of the evidence. Aragon, ¶ 16 (citing State v. Hilgers, 1999 MT 284, ¶ 4, 297 Mont. 23, 

989 P.2d 866). An award of restitution requires a causal nexus between the defendant’s 

conduct and the victim’s damages, which may be established “by implication from proof 

of the elements of the charged offense, upon victim affidavits included with a [presentence 

investigation], or upon other evidence presented at or incident to sentencing.” Pierre, ¶ 13
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(citing §§ 46-18-241(1), -242(1)(b), (2), MCA). The State bears the burden of proving the 

causal link between a defendant’s conduct and the restitution claimed. Pierre, ¶ 13.

¶11 Victim testimony alone, if found credible by the district court, may be sufficient to 

support a restitution award. See Aragon, ¶ 14 (citing State v. Kuykendall, 2006 MT 110, 

332 Mont. 180, 136 P.3d 983 (overruled on other grounds)). Such evidence, however, still 

must be sufficient to support the award. Aragon, ¶ 14. In Aragon, a criminal defendant 

crashed into a garage while driving under the influence of alcohol. Aragon, ¶ 4. The State 

introduced a victim loss statement that included an estimate of $3,270 in damages, 

including $2,950 to repaint the entire house to ensure a color match. Aragon, ¶ 6. The 

defendant’s insurance company provided a repair breakdown indicating total repair costs 

of $1,359.14. Aragon, ¶ 6. The district court, relying on the victim loss statement, ordered 

the defendant to pay an additional $1,910.86—the difference between the victim’s estimate 

and the amount covered by insurance. Aragon, ¶ 7. This Court reversed, concluding that 

the district court’s award was not supported by substantial evidence. Aragon, ¶ 20.

¶12 As in Aragon, the State here presented only the victim’s affidavit with the attached 

estimate. Neither included a line-item accounting of costs or explanations for why certain 

repairs were necessary, and no witnesses testified to the necessity of or reasoning for the 

quoted repairs. The State argues it is “reasonable to assume that it would not be possible 

for a contractor to obtain the same paneling that was on the wall” in the home, and it is 

“reasonable to expect that new trim would have to be placed over the new paneling.” The 

State is incorrect, however, that its assumptions are sufficient to support a causal 
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connection between Kelly’s criminal conduct and the estimated damages. Aragon, ¶¶ 14, 

19. “[A]ssumptions, ballpark figures from friends, and purely speculative calculations are 

insufficient information upon which to make findings of fact.” State v. Passwater, 2015 

MT 159, ¶ 14, 379 Mont. 372, 350 P.3d 382 (citing State v. Colluccio, 2009 MT 273, ¶ 45, 

352 Mont. 122, 214 P.3d 1282).

¶13 The State attempts to distinguish between the facts of this case, in which Kelly did 

not present his own estimate of damage to the home, and Aragon, where the defendant did. 

The State points the Court’s attention instead to Passwater, in which we affirmed a 

restitution award that was primarily based on a life care plan estimating the lifetime costs 

associated with an amputation. Passwater, ¶¶ 5, 25. Noting that determining restitution 

awards may involve “some guess work,” we observed that we will sustain an award if it is

based on the best evidence available. Passwater, ¶ 20 (citing State v. O’Connor, 2009 MT 

222, ¶ 14, 351 Mont. 329, 212 P.3d 276). The State’s reliance on Passwater is misplaced. 

The life care plan admitted at Passwater’s sentencing included a categorized line-item 

breakdown of estimates, which allowed the district court to carefully determine a proper 

restitution award. Passwater, ¶ 16. “The [p]lan included citations to scholarly works, 

industry materials, government handbooks, and pricing data” to substantiate each category 

of requested restitution. Passwater, ¶ 16. As noted above, the evidence presented by the 

State in this case includes no similar itemization or further explanation that would support 

the District Court’s award here. 
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¶14 The State further relies on Passwater to argue that the evidence in this case is 

sufficient to sustain the District Court’s decision because Kelly failed to present any 

contradictory evidence. See Passwater, ¶ 22. The absence of competing evidence, 

however, does not relieve the State of its burden to prove by a preponderance of the 

evidence the causal connection between the defendant’s actions and the requested award. 

Pierre, ¶ 13. 

¶15 Montana law does not constrain the Luthers to having a patched bullet hole in the 

walls of their rental property. An offender is responsible “for pecuniary victim 

losses . . . that are directly or indirectly caused by an offense he or she committed or is 

criminally accountable.” Pierre, ¶ 12 (emphasis added) (citations omitted); see also Jent, 

¶ 12 (explaining that restitution is not strictly limited to damages directly caused by the 

defendant’s action) (citing State v. LaTray, 2000 MT 262, ¶¶ 12-14, 302 Mont. 11, 11 P.3d 

116). As the District Court noted, “there has to be some things done to get that place up to 

a saleable condition.” Replacing the panels and trim of the living room, kitchen, and 

bedroom reasonably may be necessary to achieve a satisfactory result. On the record here, 

however, no evidence supports such speculation or conjecture. The State failed to present 

evidence sufficient to prove a causal link between Kelly’s criminal actions and the 

requested restitution. Without more, the Luthers’ affidavit and the undelineated estimate 

do not constitute substantial evidence to support the award of restitution. See Aragon, ¶ 

17. The District Court therefore erred in its award of restitution.
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¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. Under settled law, 

when a district court’s restitution order is not supported by substantial evidence, we remand 

to the trial court “to determine the correct amount of restitution to be imposed in accord 

with . . . applicable law.” Aragon, ¶ 21 (internal quotation omitted). The District Court’s

order is reversed and this case is remanded for the court to determine the proper restitution 

amount. 

/S/ BETH BAKER

We Concur: 

/S/ JIM RICE

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR

/S/ LAURIE McKINNON