State v. Arthun

414 Mont. 54

538 P.3d 858

STATE of Montana, Plaintiff and Appellee,

v.Robert Martin ARTHUN, Defendant and Appellant.

DA 21-0356

Supreme Court of Montana.

Submitted on Briefs: June 21, 2023

Decided: November 14, 2023

For Appellant: Chad Wright, Appellate Defender, Tammy A. Hinderman, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana Audrey Cromwell, Gallatin County Attorney, Eric Kitzmiller, Deputy County Attorney, Bozeman, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Robert Martin Arthun appeals from the judgment entered by the Eighteenth Judicial District Court following a trial in which the jury found him guilty of Criminal Mischief, a felony, in violation of § 45-6-101, MCA. Arthun challenges the District Court's restitution order. We consider:

1. Did the District Court err as a matter of law by assessing restitution for the damage caused to five vehicles when the State charged all of the acts under a single count alleging felony criminal mischief with damage of more than $1,500?

2. Did the District Court err in the determination of the amount of restitution to be imposed for damage to the Ford Mustang?

3. Did the District Court commit plain error necessitating review by awarding "full restitution" rather than an amount based upon Arthun's ability to pay?

¶2 We affirm in part, reverse in part, and remand for entry of an amended judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 At the time of the events herein, Arthun drove and lived in a motor home. On March 18, 2019, Arthun was employed with Avis Car Rental in Belgrade, Montana, and after leaving work that day, drove to several locations in the Belgrade area. At about 10:30 p.m., Doug Nelson (Doug), who had previously assisted Arthun in obtaining employment at Avis, heard noise that he described as metal contacting metal, which he thought was his neighbor, a contractor, putting tools in the back of his pickup. Doug testified that, after about ten minutes, he became concerned, turned on his porchlight and looked outside. He saw Arthun standing between Doug's Chevrolet Astro van and his Ford Mustang. Doug testified that when Arthun saw him, Arthun walked to his motor home, which was parked in the middle of the street with the engine running, got in and drove away.

¶4 A couple of hours later, Arthun's motorhome stalled on the street outside the home of Keith Nelsen (Keith), brother to Doug Nelsen. Arthun claimed he did not wish to wake up Keith or his mother, who lived with Keith, and thus simply waited at that location until his brother, Paul, could arrive to "jump start" the motorhome. Keith testified he heard banging and clanging outside his home during the night, and thought it was someone shoveling snow, so did not then investigate. Arthun's brother arrived, jump-started the motorhome, and Arthun drove away.

¶5 In the morning, Doug went outside to start his vehicle and discovered car parts strewn over the parking area, and damage to both his Astro van and Ford Mustang. He described at trial the similar damage inflicted to both vehicles, including that door handles were ripped off, gas caps were missing, pry gouges were made on the Astro van's front hood, snip marks or cuts were made on the fenders of the Mustang, and the wipers and mirrors were bent or broken on both vehicles. The Astro's tires were flat. Also that morning, Keith went outside to start his vehicle and discovered his Dodge Dakota had two flat tires, the door handle had been torn off, the fuel door was bent, and the tailgate latch was broken. Keith's Nissan Sentra was also damaged in a virtually identical fashion, as was Doug's Pontiac Grand Prix, which was parked at Keith's home.

¶6 The brothers reported the damage to law enforcement and took the vehicles to Collison Center of Belgrade (CCB), which provided repair estimates. The shop estimated repair costs to be $4,358.19 (Chevrolet Astro), $5,219.98 (Ford Mustang), $489.50 (Dodge Dakota), and $4,484.56 (Pontiac Grand Prix). CCB deemed the Astro, Grand Prix, and Dakota to be "total losses," meaning that the cost of repairs would exceed the value of the vehicle.¹

¶7 The State charged Arthun with one count of felony criminal mischief, alleging that Arthun "on or about March 18, 2019, ... knowingly or purposely injured, damaged, or destroyed property of another without consent, when he broke and damaged parts of vehicles belonging to Douglas and Keith Nelsen, and by such criminal mischief caused a pecuniary loss of more than $1,500," in violation of § 45-6-101, MCA. The probable cause affidavit filed in support of the Information identified and detailed the damage done to all five of the Nelsen brothers’ vehicles, and estimated the total damage to exceed $20,000. Arthun pled not guilty, and the case proceeded to a jury trial.

¶8 At trial, the State introduced evidence of the damage done to all of the cars located at Doug and Keith's residences. At the close of the trial, Arthun did not offer an unanimity instruction, but did offer and the District Court gave a continuous conduct instruction, stating in relevant part:

The State accuses Mr. Arthun of Criminal Mischief. You may find Mr. Arthun guilty if the proof shows beyond a reasonable doubt the Defendant committed any one or more of such acts, but in order to find the Defendant guilty, all the jurors must agree that the Defendant committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.

Without objection, the District Court provided a verdict form that asked the jury to find Arthun was guilty or not guilty to the charge of criminal mischief "and causing a pecuniary loss in excess of $1,500," as well as the option of finding Arthun guilty of a lesser offense of misdemeanor criminal mischief if the loss did not exceed $1,500. The jury found Arthun guilty of the felony.

¶9 The District Court conducted a sentencing hearing on May 5, 2021, but continued the hearing to May 24, 2021, to conduct a restitution hearing and receive argument on issues raised by Arthun, including Arthun's ability to pay restitution, and that, because the State chose to charge all acts under one count, the jury only had to find damage in excess of $1,500 to convict, and there was no way to know which "vehicles damaged the jury actually came to a unanimous verdict upon." The District Court clarified that it would take up Arthun's issues and conduct a restitution hearing, but that "[w]e're not retrying the case."

¶10 The District Court ultimately denied Arthun's objections, stating there "was testimony at trial about individual vehicles being damaged," and as such, the State was not barred from seeking restitution for all vehicles even though the charges were all brought under one count. The District Court took evidence about the repair costs for purposes of restitution, and the State provided the original valuations of the Mustang, Astro, Grand Prix and Dakota. The State also provided documentation that Doug had paid $396 in temporary repairs to make the Mustang useable, and a new estimate that updated the cost of repairing the Mustang to be $3,060.91. Defense counsel also presented valuations for the vehicles, three of which had been totaled, and argued that the District Court should determine restitution for the Mustang based upon the new estimate plus the amount for the repairs Doug had made, totaling $3,456. The District Court then heard argument regarding Arthun's ability to pay. The District Court considered Arthun's Presentence Investigation Report, his current living situation within a residence, and his current employment and finances. The District Court concluded the State had made a prima facia showing that Arthun had the ability to pay restitution, and asked Defense Counsel, "Do you dispute that?" Defense Counsel replied that he did not want the District Court to extend a possible sentence for purposes of restitution, and the defense had reviewed Arthun's financial records, "[s]o we will drop that." After deliberation, the District Court ordered restitution in the amount of $11,420.13, including $1,222 for the Dakota and Sentra, $5,219.98 for the Mustang, $1,850 for the Astro, $3,125 for the Grand Prix, and $105.15 in costs for a rental car. The District Court sentenced Arthun to six days in jail, but deferred the sentence conditioned upon successful completion of probation and payment of the restitution over four years. Arthun appeals.

STANDARD OF REVIEW

¶11 Restitution awards are mixed questions of law and fact that this Court reviews de novo . State v. Lodahl , 2021 MT 156, ¶ 11, 404 Mont. 362, 491 P.3d 661. We review a district court's findings of fact regarding the amount of restitution for clear error, noting a finding of fact is only clearly erroneous if it is not supported by substantial evidence, if the lower court has misapprehended the effect of the evidence, or if this Court's review of the record leaves the Court with the firm conviction that a mistake has been made. State v. Cleveland , 2018 MT 199, ¶ 7, 392 Mont. 338, 423 P.3d 1074. We determine evidence to be substantial if it 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. Aragon , 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841 (internal citations omitted).

DISCUSSION

¶12 1. Did the District Court err as a matter of law by assessing restitution for the damage caused to five vehicles when the State charged all of the acts under a single count alleging felony criminal mischief with damage of at least $1,500?

¶13 Arthun argues the District Court erred when it determined restitution based on the damage caused to all five vehicles. He contends that because the State charged him with a single count, the jury only adjudged...