December 22 2015
DA 15-0035
Case Number: DA 15-0035
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 347N
IN THE MATTER OF:
D.G.J.,
A Youth.
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Pondera, Cause No. DJ 14-02
Honorable Robert G. Olson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wendy Holton, Attorney at Law, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
Attorney General, Helena, Montana
Mary Ann Ries, Pondera County Attorney, Conrad, Montana
Submitted on Briefs: October 21, 2015
Decided: December 22, 2015
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and 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 D.G.J. appeals from disposition of the Ninth Judicial District Court, Pondera
County, awarding restitution. D.G.J. argues on appeal that he was denied due process
when the State did not provide either an affidavit or testimony from the victims regarding
the amount of restitution; that the District Court relied on replacement cost instead of
market value; and that D.G.J.’s ability to pay was not considered. We affirm.
¶3 Conrad City Police Department (CPD) began investigating a series of vehicle
break-ins occurring over a period between approximately July 31 and August 6, 2014. It
was apparent that individuals were entering unlocked vehicles, without permission, and
removing money and other valuable items. A rifle, cash, prescription pills, cologne, two
iPods, a pair of sunglasses, and a wallet were reported missing from various vehicles.
Additionally, one person reported her car window had been broken and another reported
a cooler full of alcoholic beverages had been taken from his front porch.
¶4 D.G.J. was spotted in the area of Conrad where many of the break-ins were
reported and was detained after being found sleeping in a vehicle with a rifle matching
the description of the earlier reported stolen weapon. During several interviews with
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CPD, D.G.J. and another youth, T.D., admitted to “car-hopping” over the summer, or
traveling around searching for unlocked vehicles containing valuables.
¶5 On September 3, 2014, the State filed a Petition alleging D.G.J. perpetrated
conduct which, if committed by an adult, would constitute felony Theft by
Accountability, in violation of §§ 45-2-301 and 45-6-301, MCA, (Count I); misdemeanor
Criminal Trespass to Vehicles by Accountability, in violation of §§ 45-2-301 and
45-6-202, MCA, (Count II); and misdemeanor Theft by Accountability, in violation of
§§ 45-2-301 and 45-6-301, MCA, (Count III). Upon an agreement, the State dismissed
felony Count I and D.G.J. pled True to misdemeanor Counts II and III. The District
Court determined D.G.J. was a Delinquent Youth and ordered he be jointly and severally
liable for full restitution totaling $888.00. The District Court’s disposition on restitution
is the subject of this appeal.
¶6 D.G.J. argues on appeal that the District Court violated his right to due process
when it imposed a restitution award in contravention of §§ 46-18-241 and -242, MCA,
because the State failed to present either a sworn affidavit describing the victims’
pecuniary losses or testimony from the victims at the sentencing hearing. D.G.J. also
argues that the District Court erred in relying on replacement value instead of market
value and in failing to consider his ability to pay restitution.
¶7 At the restitution hearing, instead of providing an affidavit or testimony from the
victims, the State presented evidence of the victims’ losses through testimony of the
CPD’s Chief of Police, Gary Dent. Chief Dent testified using a compilation chart he
created that listed the items reported missing between July 31 and August 6, 2014 and an
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estimate of the item’s value. The value estimations were taken from police reports.
D.G.J. made no objection or argument regarding the State’s evidence on the basis that the
values were based on replacement value, rather than market value. Consequently, the
District Court did not consider whether imposition of replacement value as compared to
market value was appropriate. D.G.J. also did not object or question his ability to pay the
amount of restitution imposed by the court.
¶8 The State argues D.G.J. failed to preserve his arguments on appeal. This Court
“generally refuse[s] to review on appeal an issue to which the party failed to object to at
the trial court.” State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892
(citation omitted). In order to preserve an issue for appeal, a party has an obligation to
make the basis and grounds of the objection clear to the trial court. State v. Vukasin,
2003 MT 230, ¶ 27, 317 Mont. 204, 75 P.3d 1284. The principle of this rule is not to
place a “trial court in error where that court has not been given the opportunity to rule on
the admissibility of evidence and to correct itself.” Vukasin, ¶ 29. Here, D.G.J. objected
to Chief Dent’s testimony related to restitution amounts based on “best evidence, hearsay,
[and] confrontation” and the District Court granted him a standing objection on those
grounds. However, 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), and it was
incumbent upon D.G.J. to state his reasons for objecting to the testimony. None of the
arguments currently advanced on appeal were ever presented for the District Court’s
consideration. The general one-word objections D.G.J. used did not notify the District
Court of the grounds now raised on appeal: that the failure of the victims to file
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affidavits or testify in person at the hearing violated his constitutional right to due
process; that the District Court relied upon replacement value instead of market value;
and failed to consider his ability to pay. D.G.J. has failed to preserve his alleged errors
for appeal.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶10 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ JIM RICE
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