DA 13-0447

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT 89

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

BENJAMIN WILLIAM ARAGON,

 Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DC 13-224

Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jack E. Sands; Sands Law Office; Billings, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General; Micheal S. Wellenstein, 

Assistant Attorney General; Helena, Montana

Scott Twito, Yellowstone County Attorney; Billings, Montana

Submitted on Briefs: February 19, 2014

 Decided: April 2, 2014

Filed:

__________________________________________

Clerk

April 2 2014
2

Justice Jim Rice delivered the Opinion of the Court. 

¶1 Benjamin Aragon (Aragon) appeals the order of the Thirteenth Judicial District 

Court, Yellowstone County, upholding the Justice Court’s order imposing restitution of 

$1,910.86 following his guilty plea for driving under the influence of alcohol and 

reckless driving, both misdemeanors.

¶2 We reverse and address the following issue:

¶3 Did the District Court err by affirming the Justice Court’s imposition of 

restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On August 24, 2012, while driving under the influence of alcohol in Billings, 

Aragon drove off the road and collided with Barbara Turcotte’s (Turcotte) garage. 

Aragon cooperated with law enforcement and admitted responsibility for the accident. 

Aragon was initially charged with misdemeanor DUI in Justice Court. The State

subsequently charged Aragon with criminal endangerment, a felony, dismissing the 

charge in Justice Court and re-filing with the new charge in District Court. Aragon 

agreed to a plea bargain whereby he would plead guilty to DUI and reckless driving, both 

misdemeanors. Because the felony charge was dropped under the agreement, the State 

dismissed the charge in District Court and re-filed misdemeanor charges in Justice Court.

¶5 On February 28, 2013, Aragon pled guilty in Justice Court to DUI and reckless 

driving, second offense. That same day, the court sentenced him to six months in jail, 

with all but seven days suspended, along with a $1,000 fine and court charges, for the 

DUI offense. The court sentenced him to six months in jail, all suspended, along with a 
3

$300 fine and court charges, for the reckless driving offense, to run concurrently with his 

DUI sentence. The State requested restitution for Turcotte’s property damage, and 

informed the court that, pursuant to a victim’s loss statement prepared for the District 

Court proceedings, the damage was estimated at $3,270. Aragon informed the court it 

was his understanding that his auto insurance had covered the damage. Consequently, a 

restitution hearing was scheduled for March 12, 2013, to resolve the discrepancy.

¶6 Before the restitution hearing, Turcotte wrote a letter addressed to the court 

explaining that she would rather Aragon perform 40 hours of community service in lieu 

of paying restitution to her in order to “provide service to his community to atone for his 

lack of judgment that night.” This letter was dated March 8, 2013, but may have been 

delivered to the prosecutor, as it was not provided to the court until the March 12th 

hearing. Aragon’s briefing indicates that, prior to the hearing, the State advised him “that 

it would not make the restitution claim” in favor of Aragon performing community 

service. However, a citation to the record is not provided and apparently there is no 

record information about when this conversation occurred, whether the court was advised

of the change of position, or whether Aragon advised the State at that time that he would 

object to community service. At the hearing, the State advised the court of Turcotte’s 

new request and submitted her letter. Aragon objected to imposition of any community 

service requirement as he had already been sentenced and the hearing was only for the 

purpose of restitution. The State then renewed its request for imposition of restitution, 

and offered the victim loss statement that Turcotte had prepared while the case was 
4

pending in District Court. This statement estimated the damages to be $3,270, and 

attached an estimate from Absolute Construction, dated September 4, 2012, showing a 

breakdown of $320 to fix the siding and $2,950 to repaint the entire house “to match 

current color.” Also submitted to the court was the repair breakdown provided by 

Aragon’s insurance company, dated September 19, 2012, indicating a total repair cost of 

$1,359.14. This amount included repairs to the siding, painting, and reseeding the 

landscaping, and Turcotte’s loss statement acknowledged this amount had been paid to 

her by the insurance company. Turcotte was not present at the hearing.

¶7 Aragon argued that the request to repaint the entire home was not appropriate 

because Aragon had damaged only the garage. Although the garage was attached to the 

house, Aragon argued there was no evidence demonstrating why the whole house needed 

to be repainted, as opposed to only the garage, which is what the insurance adjuster had 

determined was necessary. The State offered no further information regarding the 

requested amount, stating it didn’t “have any other information besides what’s on the loss 

statement.” The Justice Court expressed concern about the request to repaint the entire 

house, and stated that it “can’t go with [Turcotte’s] letter.” Nonetheless, the court 

ultimately ordered that Aragon owed an additional $1,910.86 in restitution above the 

amount covered by his insurance.

¶8 Aragon appealed to the District Court, which reviewed the record and questions of 

law pursuant to § 3-10-115, MCA. The District Court upheld the restitution order, noting 
5

that Turcotte was a victim who had suffered a pecuniary loss and who had submitted a 

signed, notarized affidavit supporting the amount of the loss. This appeal followed.

STANDARD OF REVIEW

¶9 “The appropriate measure of restitution is a question of law, which we review for 

correctness.” State v. David C. Johnson, 2011 MT 116, ¶ 13, 360 Mont. 443, 254 P.3d 

578. A district court’s finding of fact as to the amount of restitution is reviewed under 

the clearly erroneous standard. David C. Johnson, ¶ 13. A finding of fact 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 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

¶10 Did the District Court err by affirming the Justice Court’s imposition of 

restitution?

¶11 Aragon raises several arguments challenging the Justice Court’s order of 

restitution. First, Aragon argues that under M. R. Evid. 901, a foundation was required to 

be laid before the Justice Court could accept the victim’s loss statement as evidence. 

Second, he argues that the request for restitution was not “based upon the best evidence 

available under the circumstances” in violation of our holdings in State v. O’Connor, 
6

2009 MT 222, ¶ 14, 351 Mont. 329, 212 P.3d 276, and State v. Benoit, 2002 MT 166, 

¶ 29, 310 Mont. 449, 51 P.3d 495. Specifically, Aragon argues that a victim’s affidavit, 

with no foundation or explanation, is not sufficient to meet the “best evidence” 

requirement. Third, Aragon argues the State failed to meet its burden of proof for a

restitution award pursuant to § 26-1-401, MCA. Fourth, he argues that Turcotte’s 

affidavit was not properly considered by the court because it contained hearsay within 

hearsay, and there was no evidence that it, or the attached estimates, were based on 

personal knowledge. Finally, Aragon argues the District Court erred by upholding the 

Justice Court order without the necessary “meaningful review” of the record as required 

by § 3-10-115, MCA.

¶12 A sentencing court is required to impose a restitution obligation on a criminal 

defendant if the defendant’s crime resulted in a pecuniary loss to a victim. Section 

46-18-201(5), MCA. The rules of evidence do not apply at sentencing. M. R. Evid. 

101(c)(3); State v. Collier, 277 Mont. 46, 63, 919 P.2d 376, 387 (1996). We have also 

held that “[n]othing in the controlling restitution statutes . . . requires a court or a victim 

to substantiate a restitution calculation with documentation.” State v. McMaster, 2008 

MT 268, ¶ 29, 345 Mont. 172, 190 P.3d 302. However, a defendant has a due process 

right to “explain, argue, and rebut any information” presented at sentencing. State v. 

Roedel, 2007 MT 291, ¶ 65, 339 Mont. 489, 171 P.3d 694.

¶13 Because the rules of evidence did not apply to the restitution hearing, and the 

restitution request was not required to be supported by additional documentation, we 
7

reject Aragon’s arguments on these issues. We also reject Aragon’s argument that the 

request was not based on the “best evidence available,” as our prior holdings on this issue 

are not applicable here. The cases upon which Aragon relies involved losses that were 

not capable of being determined with certainty. See Benoit, ¶¶ 5, 30 (employee pled 

guilty to theft from employer through falsely voided transactions and inappropriately 

discounted sales); O’Connor, ¶¶ 4, 16 (employee pled nolo contendre to theft for 

falsifying merchandise returns). In these cases it was not possible to determine the exact 

amount of the losses, but we upheld the awards of restitution because “the losses were 

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

circumstances.” Benoit, ¶ 29 (employer calculated losses by estimating the average void 

transactions and discount sales of other employees and subtracting from the amounts 

processed by defendant); see also O’Connor, ¶ 16 (employer calculated loss by analyzing 

each questionable return and excluding returns processed while defendant was not on 

shift). Here, there is no contention that the extent of the property damage is incapable of 

being determined with certainty. Rather, the dispute is about the difference between 

Aragon’s insurance company’s estimate of the damage and Turcotte’s estimate.

¶14 We have upheld awards of restitution where the only evidence in the record was 

the victim’s affidavit or testimony regarding the amount of pecuniary loss. See State v. 

Kuykendall, 2006 MT 110, 332 Mont. 180, 136 P.3d 983; State v. Charley Johnson, 2011 
8

MT 286, 362 Mont. 473, 265 P.3d 638.

1

 However, while a victim’s affidavit or her 

testimony may be sufficient, if credited by the court, to support an award of restitution, 

we have also rejected restitution where the evidence before the court was insufficient to 

support the amount awarded. State v. Coluccio, 2009 MT 273, ¶ 45, 352 Mont. 122, 214 

P.3d 1282 (overruled on other grounds by State v. Kirn, 2012 MT 69, ¶ 8, 364 Mont. 356, 

274 P.3d 746) (assumptions and speculative calculations offered in victim’s testimony 

were “insufficient information upon which” to base a restitution award); State v. Brown, 

263 Mont. 223, 226, 867 P.2d 1098, 1100 (1994) (superseded by statute on other grounds 

as stated in Kuykendall, ¶ 11) (an estimated $150,000 in medical expenses for seriously 

injured victim and an estimated loss based solely on wage earned by another victim prior 

to her death were “minimal assertions” insufficient to support award). The Dissent 

characterizes the issue as one of causation and relies on restitution cases where either the 

causal connection to the offense or the definition of “victim” was challenged. Dissent, 

¶¶ 24, 32 (citing State v. LaTray, 2000 MT 262, ¶¶ 21-22, 302 Mont. 11, 11 P.3d 116 

(challenge to whether towing and ambulance services were “direct victims”); Jent, ¶ 18 

(challenge to causal connection between assault and victim’s later suicide attempt)). 

Neither of these issues is central here, as the parties agree that Turcotte is a victim of 

Aragon’s offense and that her damages constitute a pecuniary loss causally connected to 

 

1

It is notable in these cases that the defendant either failed to object to the amount or 

reasonableness of restitution, or there was no contrary evidence in the record. Kuykendall, ¶¶ 7, 

13 (only evidence in record was victim’s testimony and statement in PSI, and defendant was 

contesting only technical statutory requirements); Charley Johnson, ¶ 14 (defendant did not 

object to restitution when it was discussed and imposed at hearing); State v. Schmidt, 2009 MT 

450, ¶ 75, 354 Mont. 280, 224 P.3d 618 (defendant did not object to amount or calculation of 

restitution, and had admitted that restitution was appropriate).
9

the offense. The specific issue raised is whether the State met its burden of proof as to

the correct amount of those damages.

¶15 The Dissent argues that Aragon never claimed the evidence was insufficient to 

support the awarded restitution or that the requested amount was an “unreasonable cost of 

completing the repairs,” Dissent, ¶ 28, and implies that this Court “devise[s] evidentiary 

theories that the defendant himself failed to develop,” Dissent, ¶ 30. Although not with 

these words, the arguments Aragon made to the Justice Court and to this Court

encompass the reasonable necessity of repainting the entire house and whether there was 

sufficient proof of the extent of the damages in light of the conflicting estimates. Aragon 

argued that the only damage he caused was to Turcotte’s garage, that the insurance 

coverage had compensated Turcotte, and that he was aware of nothing indicating the 

entire house needed to be repainted. The restitution hearing was set up to resolve this 

issue. In his brief to this Court, Aragon argues that

[n]o explanation was provided of why Aragon should be expected to 

repaint the victim’s house when he had merely damaged the garage. . . . 

The affidavit showed that Aragon’s insurance company had adjusted and 

paid for the damage to the victim’s house; there was no indication that it 

inadequately repaired the damage.

Aragon’s arguments incorporate the contention that the higher estimated cost was not 

reasonably necessary or sufficiently proven.

¶16 Restitution “engrafts a civil remedy onto a criminal statute, creating a procedural 

shortcut for crime victims who would be entitled to a civil recovery against the offender.” 

State v. Brownback, 2010 MT 96, ¶ 19, 356 Mont. 190, 232 P.3d 385 (citation omitted). 
10

As a pecuniary loss is defined to be those damages that would be recoverable in a civil 

action, § 46-18-243(1)(a), MCA, there must be a preponderance of the evidence 

supporting the restitution award. See State v. Hilgers, 1999 MT 284, ¶ 4, 297 Mont. 23, 

989 P.2d 866; § 26-1-403(1), MCA. In addition to the due process right to explain or 

rebut any information presented at the hearing, Roedel, ¶ 65, the defendant may assert 

any defense to a request for restitution “that the [defendant] could raise in a civil action 

for the loss for which the victim seeks compensation,” § 46-18-244(2), MCA. Presented 

with the differing estimates, the court was required to make a determination as to what 

amount of restitution was supported by a preponderance of the evidence.

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

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

credibility will not be disturbed on appeal.” Hilgers, ¶ 12. This is logical because “[t]he 

trial court is in the best position to judge the credibility and demeanor of witnesses and 

their testimony.” Langford v. State, 2013 MT 265, ¶ 17, 372 Mont. 14, 309 P.3d 993 

(citing State v. Lally, 2008 MT 452, ¶ 24, 348 Mont. 59, 199 P.3d 818). However, the 

sentencing court here did not judge the credibility or demeanor of witnesses or their 

testimony, as there were none. Rather, the court was presented only with two estimates 

with significantly differing amounts, entirely devoid of context or explanation about the 

difference between the two. 

¶18 The insurance adjuster’s estimate detailed specific repairs to the siding, masonry, 

trim, drywall, and landscaping, as well as for painting. The adjuster estimated there was
11

approximately $1,100 in physical damage, and only $240 necessary for painting. 

Turcotte’s estimate listed only repairs for siding and trim, with a total cost of $320, along 

with $2,950 to “repaint 2,500 SQ feet of home to match current color.” The Justice Court 

itself expressed concern over the request for repainting the entire house absent any 

explanation of why it was necessary. The victim was not present to explain this request 

or to be cross-examined by the defendant about the necessity of repainting the entire 

house when only the garage had been damaged. 

¶19 It is notable that the Absolute Construction estimate for repainting the entirety of 

the house was completed some two weeks before the insurance adjustment was 

completed. The Dissent assumes that the painting of the home was necessary to match

the repaired garage, Dissent, ¶ 30, but there is no evidence that, once repaired, the garage

would not or did not match the house. For this reason, we cannot conclude there is 

substantial evidence to support the higher amount of restitution. A reasonable mind

could not conclude, solely from the two estimates, that one was more appropriate than the 

other. 

¶20 We do not depart from our prior holdings that a victim’s sworn affidavit 

explaining the amount of loss is ordinarily sufficient to support an order of restitution. 

See Jent, ¶ 21 (concluding substantial evidence supported the restitution obligation when 

“the District Court considered [the victim’s affidavit of loss], as permitted by 

§ 46-18-242, MCA[, and n]o evidence was presented that would dispute the accuracy or 

correctness of the amount[s] . . . set forth in the affidavit.”). Nor do we depart from our 
12

prior cases holding that documentation supporting the claimed loss is not generally 

required. See McMaster, ¶ 29. However, we conclude that substantial evidence does not 

support the award of restitution here, where the evidence before the court is conflicting 

and no other testimony or evidence was available to be examined or reviewed as to the 

discrepancy.

¶21 When an order for restitution is improperly entered upon legal error, we generally 

remand to the trial court for correct application of §§ 46-18-241 through -249, MCA. See 

State v. Hunt, 2009 MT 265, ¶ 23, 352 Mont. 70, 214 P.3d 1234; State v. Ariegwe, 2007 

MT 204, ¶ 182, 338 Mont. 442, 167 P.3d 815; see also State v. Heafner, 2010 MT 87, 

¶¶ 11-13, 356 Mont. 128, 231 P.3d 1087. Similarly, we have remanded in cases where 

restitution is unsupported by substantial evidence “to determine the correct amount of 

restitution to be imposed in accord with this opinion and applicable law.” Coluccio, ¶ 46. 

Therefore, we reverse the restitution award entered herein and remand this matter to the 

Justice Court for a determination of the proper amount of restitution.

¶22 Reversed and remanded for further proceedings consistent herewith.

/S/ JIM RICE

We concur: 

/S/ MIKE McGRATH

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT
13

Justice Laurie McKinnon, dissenting.

¶23 I respectfully dissent from the Court’s decision. I believe the Court has misstated 

the issue in this case. Moreover, I believe that the evidence in the record supports the 

Justice Court’s restitution award and that the Court misapplies the restitution statutes in 

reaching a contrary conclusion.

¶24 The Court asserts that Aragon has not challenged the “causal connection” between 

his offense and Turcotte’s restitution claim. Opinion, ¶ 14. This assertion is perplexing, 

given that the Court acknowledges in the very next paragraph that “Aragon argued that 

the only damage he caused was to Turcotte’s garage, that the insurance coverage had 

compensated Turcotte, and that he was aware of nothing indicating the entire house 

needed to be repainted.” Opinion, ¶ 15 (emphasis added). The existence of a causal 

relationship between Aragon’s criminal conduct and Turcotte’s request to have her entire 

house repainted is the only issue Aragon raised—albeit, as the Court points out, “not with 

these [exact] words.” Opinion, ¶ 15. Unfortunately, in addressing and resolving this case 

based on an evidentiary matter that Aragon did not raise, the Court has fundamentally 

increased the burden on crime victims to establish their right to restitution.

¶25 At the hearing held February 28, 2013, Aragon entered pleas of guilty to reckless 

driving and to driving under the influence of alcohol. The Justice Court then proceeded 

with sentencing. Near the end of the proceeding, the prosecutor indicated that the State 

was requesting $3,270.00 in restitution. As support for this amount, the prosecutor 

referred to the Victim’s Affidavit in Support of Property Financial Loss, which Turcotte 
14

had submitted three months earlier. Aragon’s only objection to the requested restitution 

was: “I thought [my automobile] insurance covered that. . . . [W]hat I understood was 

that my insurance . . . paid for the damages.” The prosecutor explained that the insurance 

had covered “part” of the loss, and the parties agreed that a restitution hearing would be 

needed to determine how much of Turcotte’s loss remained unpaid.

¶26 At the March 12, 2013 restitution hearing, Aragon’s counsel argued as follows:

[Aragon’s] insurance company went out, assessed the valuation, did all the 

repairs that were required of it, and the garage was completely repaired. 

And it was all covered with his insurance. Now, in her loss statement, 

she’s asked their entire house be repainted. And, you know, that’s not part 

of restitution for damage to a garage, even though the house -- the garage 

was attached to the house. So, restitution has been made. It’s been made in 

full in this case. And there’s no reason that he should be responsible for 

repainting a house.

The Justice Court rejected this argument. The court concluded that Aragon was liable for 

the full amount of restitution set forth in Turcotte’s affidavit (i.e., $3,270.00). The court 

found that Aragon’s insurer had “paid part of the $3,2[70]” and that Aragon, therefore, 

owed the difference (i.e., $1,910.86).1

¶27 Significantly, Aragon never argued that, if his restitution obligation did encompass 

repainting Turcotte’s entire house, there was insufficient evidence supporting an award of 

$1,910.86 for that purpose. And, in fact, there is sufficient evidence in the record. As 

 

1

It is important to clarify that when the Justice Court stated that it “can’t go with 

[Turcotte’s] letter,” see Opinion, ¶ 7, the court was not referring to Turcotte’s restitution 

affidavit. Rather, the court was referring to a March 8, 2013 letter Turcotte had sent the court 

indicating that she would be satisfied if Aragon did 40 hours of community service in lieu of 

restitution. Aragon objected to this disposition, and the Justice Court agreed with him that 

community service would not be appropriate in lieu of restitution.
15

noted, Turcotte submitted an affidavit (pursuant to § 46-18-242, MCA) in which she 

described her pecuniary loss and the replacement value of that loss.2 According to the 

affidavit, the “[f]ull replacement value / repair cost of property taken, destroyed, harmed, 

or otherwise devalued” is $3,270.00. Although she was not required to substantiate this 

amount with documentation, see State v. McMaster, 2008 MT 268, ¶¶ 27, 29, 345 Mont. 

172, 190 P.3d 302, Turcotte nevertheless attached a September 4, 2012 estimate from 

Absolute Construction in the amount of $3,270.00, which included the cost of repainting 

2,500 square feet of the house “to match current color.” The parties agreed that Aragon’s 

insurance company had covered repairs to the garage itself in the amount of $1,359.14. 

Thus, Turcotte sought merely the difference between the Absolute Construction bid and 

what the insurance company had already covered—equaling $1,910.86—to cover 

repainting the remainder of the house.

¶28 Accordingly, the Court’s suggestion that this case is about “conflicting” repair 

estimates for which there is no “context or explanation,” Opinion, ¶¶ 15-20, is incorrect. 

No one raised the questions that the Court now poses at ¶ 18 of the Opinion regarding 

each line item of the two estimates. The parties and the Justice Court understood why 

there was a difference between the Absolute Construction estimate and the insurance 

adjuster’s estimate: the former included the cost of repainting the entire house, not just 

the garage. Aragon never argued that the Justice Court needed to choose one estimate 

over the other. He never claimed that the evidence before the court was insufficient to 

 

2

In this regard, I agree with the Court’s rejection of Aragon’s arguments regarding the 

adequacy of Turcotte’s affidavit. Opinion, ¶ 13.
16

establish the cost of repainting the entire house. And he never claimed that $1,910.86 

was an unreasonable cost of completing the repairs that Turcotte was claiming.

¶29 What Aragon argued, rather, was that the remaining repairs—repainting the rest of 

the house—were simply “not part of restitution for damage to a garage.” The substance 

of his argument is clearly that the damages caused by Aragon’s offenses did not include 

the house. See State v. Jent, 2013 MT 93, ¶ 13, 369 Mont. 468, 299 P.3d 332 (“a causal 

relation between the offender’s criminal conduct and the pecuniary loss is the touchstone 

for determining whether a person or entity is a victim entitled to restitution”). Hence, the 

Court’s attempt to reframe the issue as whether there is sufficient evidence supporting the 

amount of the restitution award is unpersuasive. The issue Aragon raised is whether his 

restitution obligation extended beyond repairs to the garage to include repairs to other 

parts of the house—which everyone understood would cost him an additional $1,910.86 

in restitution. More specifically, the issue is whether the cost of repainting the remainder 

of Turcotte’s house is part of “the full replacement cost of property taken, destroyed, 

harmed, or otherwise devalued as a result of [Aragon’s] criminal conduct.” Section 

46-18-243(1)(b), MCA. The Justice Court found that it was, and I believe the evidence in 

the record supports this finding.

¶30 Aragon concedes he unlawfully drove his vehicle recklessly and while under the 

influence of alcohol. Aragon concedes he drove his vehicle off the road and crashed into 

Turcotte’s garage. Aragon concedes he thereby caused damage to the structure. The 

notion that the damage could not have extended beyond the garage is wholly implausible, 
17

given that the garage was physically attached to Turcotte’s house. Absolute Construction 

estimated the repairs at $3,270.00. This included repainting the house “to match current 

color.” Obviously, Turcotte wanted the color of her house to match the color of the 

repainted garage. The Court opines that there may not have been any need to repaint the 

rest of the house to match the color of the garage. Opinion, ¶ 19. But even if this were 

true, it was Aragon’s responsibility to make this argument at the restitution hearing and to 

present such evidence refuting Turcotte’s claim—neither of which he did, or even 

attempted to do. It is not this Court’s prerogative to devise evidentiary theories that the 

defendant himself failed to develop. State v. Whalen, 2013 MT 26, ¶ 32, 368 Mont. 354, 

295 P.3d 1055; Citizens for Balanced Use v. Maurier, 2013 MT 166, ¶ 15, 370 Mont. 

410, 303 P.3d 794. Nor was it Turcotte’s or the prosecutor’s responsibility to produce 

any documentation other than her restitution affidavit. McMaster, ¶¶ 27, 29.

¶31 “In reviewing findings of fact, the question is not whether there is evidence to 

support different findings, but whether substantial evidence supports the findings actually 

made.” Knowles v. State ex rel. Lindeen, 2009 MT 415, ¶ 21, 353 Mont. 507, 222 P.3d 

595 (emphasis in original); accord In re K.J.B., 2007 MT 216, ¶ 23, 339 Mont. 28, 168 

P.3d 629. We thus have explained that

[a] finding . . . is not clearly erroneous simply because there is evidence in 

the record supporting a different finding. Rather . . . , a finding is clearly 

erroneous if it is 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.
18

State v. Lally, 2008 MT 452, ¶ 22, 348 Mont. 59, 199 P.3d 818. Here, the only evidence 

presented to the Justice Court bearing on the issue of restitution—namely, Aragon’s admissions 

forming the basis of his guilty pleas, and Turcotte’s affidavit with the two gratuitously attached 

estimates—established the following: (1) that Aragon crashed into Turcotte’s garage, (2) that the 

garage was physically connected to Turcotte’s house, (3) that Turcotte’s monetary loss totaled 

$3,270.00, (4) that Aragon’s insurer provided $1,359.14, and (5) that it would cost an additional 

$1,910.86 to complete the repairs.

¶32 The Justice Court’s finding—that “the full replacement cost of property taken, 

destroyed, harmed, or otherwise devalued as a result of [Aragon’s] criminal conduct,” 

§ 46-18-243(1)(b), MCA, included the cost of repainting the entire house—is supported 

by our precedents. In State v. LaTray, 2000 MT 262, 302 Mont. 11, 11 P.3d 116, we held 

that towing and ambulance services, which had responded to the scene of the defendant’s 

offense, were entitled to restitution. We reasoned that “LaTray’s criminal acts created a 

situation in which ambulance and towing services were reasonably necessary for public 

safety or for the safety of LaTray himself.” LaTray, ¶ 22. Likewise, in Jent, where the 

defendant had pleaded guilty to assaulting his wife, we held that his restitution liability 

extended to the medical expenses associated with his wife’s suicide attempt. We 

explained that “Jent’s conduct created a situation which resulted in medical expenses 

arising from the compromised mental health of his victim.” Jent, ¶ 18.

¶33 As we stated in Jent, ¶ 12, “restitution is not to be limited by the definition of the 

offense or to only those injuries arising as a ‘direct’ result of the offense.” Here, Aragon 

argued that repainting the entire house is “not part of restitution for damage to a garage.” 
19

The evidence before the court, however, supported a finding that even if repainting the 

entire house was not a “direct” result of Aragon’s offenses, it was an indirect result of 

those offenses: but for his crashing into the garage, there would have been no need to 

repaint the garage and, so as to match color, the rest of the house to which the garage is 

attached. Certainly, Aragon could have attempted to refute this connection by presenting 

evidence that there was no need to repaint the entire house or that the need to repaint the 

entire house was too “attenuated” from his offense. See Jent, ¶ 13. But Aragon did not 

do so. Notably absent from the Justice Court record is any evidence presented by Aragon 

that any part of Turcotte’s restitution claim should be bifurcated from the total amount 

that she stated under oath are her damages.

¶34 I disagree with the Court’s suggestions that Turcotte should have been “present to 

explain” her request and that, because of her absence, Aragon was denied the ability to 

cross-examine her. Opinion, ¶ 18. The only evidence Turcotte was required to present, 

and did present, is an affidavit describing her pecuniary loss and the replacement value in 

dollars of the loss. Section 46-18-242, MCA. We have effectively punished Turcotte for 

attaching the estimates from Absolute Construction and Aragon’s insurer by holding that 

these documents—which the statute does not require a victim to provide in the first place, 

McMaster, ¶¶ 27, 29—somehow created a “conflict” that she should have been “present 

to explain.” The fact that “no other testimony or evidence was available to be examined 

or reviewed” by the Justice Court, Opinion, ¶ 20, is entirely Aragon’s responsibility, and 

he cannot now invoke that omission as a basis for reversing the Justice Court’s restitution 
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award. Aragon had notice of the restitution hearing and notice of the affidavit, and he 

could have subpoenaed Turcotte or other witnesses in order to refute the amount of her 

claim. Aragon failed, however, to produce any testimony or even to ask that the matter 

be continued to secure the necessary evidence. The Court has cited no law requiring 

Turcotte or the prosecution to produce any more evidence than they did.

¶35 In the absence of any evidence disputing Turcotte’s claim or a request for time to 

secure the same, the Justice Court was constrained to make a decision based on the 

evidence before it. In determining that Turcotte should be paid “the full replacement cost 

of property taken, destroyed, harmed, or otherwise devalued as a result of [Aragon’s] 

criminal conduct,” § 46-18-243(1)(b), MCA, the Justice Court properly followed our 

precedent that a victim’s sworn affidavit explaining the amount of loss is sufficient to 

support an order of restitution. McMaster, ¶ 27; Jent, ¶ 21. The practical result of 

today’s decision will be (1) to discourage victims from attaching documentation to 

affidavits of pecuniary loss for fear that this Court might perceive a “conflict” in the 

evidence or (2) to require the State to produce evidence and testimony beyond the 

victim’s affidavit as a precaution against the defendant’s raising an argument, not 

supported by evidence, that the restitution award is unreasonable. Because we have 

reviewed the victim’s invoices in this matter, which were not even necessary, and 

determined ourselves that the amount or necessity of repainting her house seems 

unreasonable, we have altered the rules to be followed in restitution proceedings. The 
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victim’s affidavit is sufficient evidence to validate her claim, in the absence of evidence 

to the contrary.

¶36 I dissent.

/S/ LAURIE McKINNON