State v. Ailer

390 Mont. 200

410 P.3d 964

2018 MT 18

STATE of Montana, Plaintiff and Appellee,

v.Matthew Ryan AILER, Defendant and Appellant.

DA 16-0240

Supreme Court of Montana.

Submitted on Briefs: December 6, 2017

Decided: February 6, 2018

For Appellant: Nick K. Brooke, Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant Attorney General, Helena, Montana, Daniel Guzynski, Mary E. Cochenour, Special Deputy Lewis and Clark County Attorneys, Helena, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 This is an appeal from a First Judicial District Court order denying Matthew Ailer's (Ailer) motion in limine to exclude evidence at trial that his wages were being garnished, and an order requiring Ailer to pay $64,025.34 in restitution plus statutory and administration fees. We affirm.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court erred when it denied Ailer's ineffective assistance of counsel claim.

2. Whether evidence that Ailer's wages were being garnished is a "bad act" and inadmissible character evidence pursuant to M. R. Evid. 404(b).

3. Whether the District Court had substantial evidence to support its restitution order.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In May 2011, Ailer was involved in an accident on Highway 93 while driving a van for Garden City Janitorial as one of its janitors. Garden City Janitorial has a workers' compensation insurance policy from the Montana State Fund (State Fund). On May 18, 2011, Ailer filed a claim with the State Fund, reporting that he injured his arm in the crash. Ailer asserted his symptoms worsened even after receiving continued medical treatment. Ailer was ultimately released to full-duty employment by Dr. Stephen Powell on October 4, 2011.

¶4 On October 6, 2011, Ailer began seeing a physical therapist, Kristen Green. Ailer asked Green for a note to give to his employer that would restrict him from lifting a heavy floor burnisher while at work. Green wrote a letter and Ailer gave it to his employer, Cory Miller. The day after receiving this letter, Miller trained Ailer and Ailer's coworker, Jeff Russell, to safely lift the burnisher and unload it from the back of the work truck using a ramp.

¶5 Ailer filed a second workers' compensation claim with the State Fund, reporting that his arm went numb as he was lifting the burnisher into the work truck on October 16, 2011, and it fell on him. Russell and Chelsea Chafee, another coworker and Ailer's fiancée at the time, were with Ailer when this accident occurred. Russell and Chafee took Ailer to the emergency room at Community Medical Center in Missoula. Ailer complained of pain, numbness and a pin-pricking sensation in his neck and back. During the months following the accident, Ailer complained to doctors that he was in extreme pain, could not use his right arm and leg, and could not walk without the use of a cane. The State Fund accepted Ailer's claim.

¶6 On March 12, 2012, Russell told Miller that Ailer's accident with the burnisher was staged. Russell reported to Gaylen Buchanan, a Special Investigator for the State Fund, that Ailer and Chafee asked Russell to put the burnisher on top of Ailer after they finished a job cleaning the O'Reilly's auto parts store in Missoula. Russell stated that Ailer wanted it to look like an accident so that Ailer could file a workers' compensation claim. Russell was reluctant but agreed to help after Ailer and Chafee promised to pay Russell $20,000 from the settlement of Ailer's claim. Russell stated that the three of them drove a few blocks away from the auto parts store to carry out the plan. Russell and Chafee placed the burnisher on Ailer's chest and rolled it back and forth to create an injury. However, Ailer was not satisfied with the result and asked Russell to punch Ailer several times. After doing so, Russell and Chafee took Ailer to the Community Medical Center.

¶7 Buchanan began to investigate Russell's claim that the accident was staged. Buchanan discovered evidence that Ailer's complaints and claims did not align with his physical symptoms, or lack thereof. The State Fund referred the case to the Montana Department of Justice, Division of Criminal Investigations for further investigation. DCI Agent Butch Huseby was assigned the case. Agent Huseby focused on Ailer's medical reports and interviewed many of the doctors and medical staff that had treated Ailer since his injury in October 2011. Agent Huseby noted that all of the doctors agreed Ailer showed no medical signs of trauma or injury.

¶8 On March 14, 2014, Ailer was charged by Information with Theft, a felony, for purposely and knowingly staging a work accident on October 16, 2011, for the purpose of filing a false workers' compensation insurance claim with the State Fund. Trial commenced on December 7, 2015. On December 11, 2015, a jury found Ailer guilty of Theft, by common scheme, of workers' compensation benefits provided under the Workers Compensation Act exceeding $1,500 in value. Ailer's sentencing hearing was held on March 24, 2016. On April 11, 2016, the District Court deferred sentencing for six years and ordered Ailer to pay restitution in the amount of $70,680.34. The District Court found that the total amount of loss incurred by the State Fund was $64,025.34 and imposed additional statutory and administration fees. Ailer appeals.

STANDARD OF REVIEW

¶9 Ineffective assistance of counsel claims are mixed questions of law and fact, which we review de novo. State v. Lucero , 2004 MT 248, ¶ 12, 323 Mont. 42, 97 P.3d 1106. District courts have broad discretion to determine the admissibility of evidence. State v. Blaz , 2017 MT 164, ¶ 10, 388 Mont. 105, 398 P.3d 247. A district court's ruling on the admissibility of evidence is reviewed for an abuse of discretion, which occurs when the district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Blaz , ¶ 10.

¶10 This Court reviews a district court's restitution award for correctness. State v. Aragon , 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841. We review a district court's findings of fact supporting a restitution award under the clearly erroneous standard. Aragon , ¶ 9. 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

¶11 1. Whether the District Court erred when it denied Ailer's ineffective assistance of counsel claim.

¶12 This Court has adopted a two-part test for ineffective assistance of counsel claims, which was established by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whitlow v. State , 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. A defendant bears the burden to "prove (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense." Whitlow , ¶ 10. Under the first prong, the defendant has the burden to prove that his or her "counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Whitlow , ¶ 10 (citing Strickland , 466 U.S. at 687, 104 S.Ct. at 2064 ). The second prong requires the defendant "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Bomar v. State , 2012 MT 163, ¶ 8, 365 Mont. 474, 285 P.3d 396 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. at 2068 ). Both prongs of the Strickland test must be satisfied for an ineffective assistance of counsel claim to be successful. Whitlow , ¶ 11.

¶13 Ailer alleges his trial counsel was ineffective for three different reasons. First, Ailer argues that his trial counsel was ineffective because counsel failed to object when Agent Huseby testified: "I looked into the statute to see what elements of theft are involved in this case and did he purposely and knowingly commit a crime to get to this end, and I would say he did." Ailer alleges he was prejudiced because Agent Huseby testified to the ultimate issue in the case and Ailer's intent. Second, Ailer argues his trial counsel was ineffective because counsel failed to rebut a "material misstatement of fact" regarding whether Ailer had been treated for conversion disorder.¹ Cecelia Robinson, a claims adjuster for the Montana State Fund, testified that Ailer was never treated for conversion disorder and the State Fund never approved any payments for conversion disorder treatment. Ailer alleges that his trial counsel should have corrected Robinson and pointed to claims review analysis forms that were examined by Robinson and reflected treatment for conversion disorder and approved payments for such. Third, Ailer argues his trial counsel was ineffective because counsel failed to object to the prosecutor asking Ailer on cross examination if other witnesses were lying when Ailer's testimony conflicted with testimony given by the State's witnesses.

¶14 Putting aside the question of whether counsel's approach was deficient, Ailer fails to establish how Ailer's trial counsel's failure to object during Agent Huseby's testimony prejudiced him. Even if counsel had objected to Agent Huseby's statement, Ailer fails to show how the result of the proceeding would have been different. If anything, Agent Huseby's testimony was cumulative and added nothing to what had already been covered by the principal...