State v. Holmes

545 P.3d 57

2024 MT 57

STATE of Montana, Plaintiff and Appellee,

v.Kaitlyn Rebecca HOLMES, Defendant and Appellant.

DA 22-0699

Supreme Court of Montana.

Submitted on Briefs: January 3, 2024

Decided: March 19, 2024

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-21-525C, Honorable John C. Brown, Presiding Judge

For Appellant: Herman A. Watson, Attorney at Law, Bozeman, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, 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 Kaitlin Holmes appeals the sentence imposed by the Eighteenth Judicial District Court, Gallatin County, which held Holmes responsible for the disappearance of social security cards from a theft victim’s personal belongings, and ordered Holmes to pay restitution equating to the cost of LifeLock memberships for the victim and her children. Holmes admitted to stealing only the victim’s credit cards, and therefore contends that restitution related to the missing social security cards is improper. We affirm in part and reverse in part, addressing the following issues:

1. Did the District Court err by concluding Holmes was criminally liable for damages arising from, the missing social security cards?

2. Did the District Court erroneously include the cost of long-term LifeLock memberships in the restitution order?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Holmes worked as a nurse at a Bozeman medical clinic when, on December 10, 2021, multiple employees reported that credit cards and other personal items had been stolen from their belongings. Records demonstrated that, on the same day the credit cards were stolen, purchases were made using a stolen card in the amounts of $1,007.94 at a nearby REI store and $534.59 at a Bob Ward’s store. Holmes had left work early that day without notice. She was subsequently arrested and found in possession of eleven stolen credit cards, a stolen driver’s license, and multiple amphetamine pills. After initially being charged with two felonies (Deceptive Practices by Common Scheme and Criminal Possession of Dangerous Drugs) and a misdemeanor (Criminal Trespass to Property), Holmes entered into a plea agreement in which she pled guilty to Count 1 as charged:

Theft, by Common Scheme, a Felony, in violation of § 45-6-301, MCA, committed during December, 2021, when the defendant, Kaitlin Rebecca Holmes, purposely or knowingly obtained or exerted unauthorized control over property belonging to Samantha Moran, Julie Topping, Brooke Templeton, Tricia Augeri, and Julie Wambecke in Gallatin County, Montana, to wit: credit/debit/gift cards and other items containing personal identifying information and had the purpose to deprive them of the property. The pecuniary loss caused by the theft as part of the common scheme was in excess of $1,500.

¶3 Victim Brooke Templeton claimed that Holmes had stolen her and her three children’s social security cards, and requested restitution in the amount of $11,667.74 to cover the cost of a LifeLock membership for each of her children until they reached twenty-one years of age, at a cost of $11,667.74. During the pre-sentence investigation by the Department of Corrections, Holmes explained that, at the time of the theft, she had experienced a "manic episode" as a product of her then-undiagnosed bi-polar disorder, which "manifested in stealing." According to Holmes, she remembered stealing items from the victims’ belongings and then going shopping, but did not recall taking any social security cards. Police did not recover any social security cards. Consequently, Holmes opposed assessment of any restitution related to the social security cards.

¶4 At the restitution hearing, defense counsel stated that he "didn’t anticipate a restitution request for about $13,000," and objected to being ordered to pay for the Lifelock memberships, arguing, "based on the ruling in [State v. Barrick, 2015 MT 94, ¶ 21, 378 Mont. 441, 347 P.3d 241] and restitution law in Montana, as it currently sits, this kind of anticipated, not-even-purchased expense, that has not been documented, and we have no reason to believe that it’s even going to happen, doesn’t fall within the restitution."

¶5 In its Sentencing Order, the District Court concluded that, "based on the evidence," Holmes was "responsible for the disappearance of the social security cards." The District Court further concluded that "Templeton is a victim who suffered a pecuniary loss" and that her requested "cost of identity theft protection is reasonably related to obtaining services that are now required due to the loss of the social security cards, and as such, constitute a pecuniary loss to Templeton." Accordingly, the District Court ordered Holmes to pay the amount requested by Templeton, which constituted the bulk of the amount ordered in restitution. The court also imposed a 10% administrative restitution fee in the amount of $1,200. Holmes appeals.

STANDARD OF REVIEW

[1–4] ¶6 "Restitution awards are mixed questions of law and fact that this Court reviews de novo" State v. Arthun, 2023 MT 214, ¶ 11, 414 Mont. 54, 538 P.3d 858. We review a restitution order to determine whether the district court’s decision to award restitution was correct, and whether the court’s findings regarding the amount awarded were clearly erroneous. State v. Cleveland, 2018 MT 199, ¶ 7, 392 Mont. 338, 423 P.3d 1074; Arthun, ¶ 11. "A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the lower court has misapprehended the effect of the evidence, or if our review of the record leaves us with the firm conviction that a mistake has been made." Cleveland, ¶ 7. Evidence is deemed substantial if "a reasonable mind might accept [it] as adequate to support a conclusion; it consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance." Arthun, ¶ 11 (quoting State v. Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841).

DISCUSSION

¶7 1. Did the District Court err by concluding that Holmes is criminally liable for damages arising from the missing social security cards?

[5, 6] ¶8 Section 46-18-201(5), MCA, provides that, upon the defendant being found guilty of an offense, if any victim suffered a pecuniary loss, "the sentencing judge shall, as part of the sentence, require payment of full restitution and interest to the victim." Pecuniary loss is defined as:

(a) all special damages, but not general damages, substantiated, by evidence in the record, that a person could recover against the offender in a civil action arising out of the facts or events constituting the offender’s criminal activities, including without limitation out-of-pocket losses, such as medical expenses, loss of income, expenses reasonably incurred in obtaining ordinary and necessary services that the victim would have performed if not injured, expenses reasonably incurred in attending court proceedings related to the commission of the offense, and reasonable expenses related to funeral and burial or crematory services;

(b) the full replacement cost of property taken, destroyed, harmed, or otherwise devalued as a result of the offender’s criminal conduct;

(c) future medical expenses that the victim can reasonably be expected to incur as a result of the offender’s criminal conduct, including the cost of psychological counseling, therapy, and treatment; and (d) reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.

Section 46-18-243, MCA (emphasis added). The awarding of restitution functions to "engraft 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 (internal quotations omitted). "[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." Brownback, ¶ 20.

¶9 Holmes contends the District Court’s finding of this "causal relation" between her actions and the disappearance of the Templetons’ social security cards was in error because "there is no record evidence that [she] stole or was in possession of the social security cards." Conversely, the State argues that sufficient circumstantial evidence existed to establish the "causal connection" and therefore hold Homes accountable for the missing cards.

[7, 8] ¶10 "The sentencing court may find the requisite causal nexus for restitution, between an offender’s admitted or adjudicated criminal conduct and the asserted victim loss, upon an admission, by implication from proof of the elements of the charged offense, upon victim affidavits included with a PSI, or upon other evidence presented at or incident to sentencing." State v. Pierre, 2020 MT 160, ¶ 13, 400 Mont. 283, 466 P.3d 494. Templeton submitted a restitution request in which she...