State v. Coluccio

August 17 2009

DA 08-0110

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 273

STATE OF MONTANA,

Plaintiff and Appellee,

v.

MICHAEL JAMES COLUCCIO, II,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-07-279
Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Koan Mercer, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana

Submitted on Briefs: January 7, 2009

Decided: August 17, 2009

Filed:

__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court

¶1 After trial by jury, Michael James Coluccio, II, was convicted in the Fourth

Judicial District Court, Missoula County, of the offense of vehicular homicide while

under the influence. Coluccio appeals the following issues:

¶2 Issue 1: Did the District Court err in instructing the jury on the element of

criminal negligence?

¶3 Issue 2: Did the District Court err in denying Coluccio’s motion to dismiss for

insufficient evidence?

¶4 Issue 3: Did the District Court err in imposing restitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Around 4:30 p.m. on July 14, 2007, Coluccio was driving his Chevrolet Suburban

eastbound on Highway 200 east of Missoula. When he reached the intersection with

Johnsrud Road, Coluccio slowed down, activated his turn signal and initiated a left turn.

Coluccio turned into John Troyer, who was travelling westbound on his motorcycle.

Troyer died as a result of the collision.

¶6 After the collision, the motorcycle and Coluccio’s Suburban caught fire.

Witnesses to the crash attended to Troyer. Coluccio led his family and friends, who were

his passengers, a safe distance from the fire. Coluccio then returned to his Suburban to

try to remove his raft from its roof. He did not check Troyer’s condition.

¶7 Highway Patrol Troopers Chad Dever and Sean Finley were dispatched to the

scene to investigate. They testified at trial they smelled alcohol on Coluccio’s breath and

2
his eyes appeared glassy. One hour and forty-five minutes after the accident, Trooper

Finley obtained a blood alcohol test from Coluccio. The test showed Coluccio’s blood

alcohol level was 0.07.

¶8 In a statement to law enforcement, Coluccio said that, prior to leaving his home in

East Missoula around 3:00 p.m., he consumed three beers starting at around 1:00 p.m.

He later testified he may have had four beers. He said the beer had no effect on his

driving because, to him, “Coors Light is like water.”

¶9 Coluccio stated he simply did not see the motorcycle coming until it was too late

and that the accident occurred because, “my guess is that the motorcyclist, he just . . .

must have sped up around that corner and then just flew by not, you now, really paying

attention to what he was doing. . . .”

¶10 The State charged Coluccio with felony vehicular homicide while under the

influence, misdemeanor driving while his license was suspended, and failure to carry

proof of liability insurance. Coluccio pled guilty to the misdemeanor charges and not

guilty to vehicular homicide.

¶11 At trial, occupants of the vehicle travelling behind Coluccio for the ten miles

before the crash testified he was not driving erratically and did not exceed the speed limit.

The driver directly behind Troyer at the time of the crash testified that Coluccio “cut off

the motorcyclist.” A couple waiting at the stop sign at Johnsrud Road testified they saw

the motorcycle coming around the bend of Highway 200, an estimated 75 yards from the

intersection, and it appeared to be going the speed limit. Trooper Mike Burman, an

3
accident reconstructionist who investigated the accident, testified that at the rate of speed

Troyer was travelling, anyone sitting at the intersection would have been able to see him

for about nine seconds before he entered the intersection. Lynn Kurtz, a forensic

toxicologist from the State Crime laboratory testified Troyer did not have any alcohol or

drugs in his system that would affect his ability to drive safely.

¶12 The prosecutor posed a hypothetical question to Kurtz asking him to assume the

following facts: the crash occurred at approximately 4:30 p.m.; authorities drew a blood

sample from Coluccio almost two hours after the crash, showing that his blood alcohol

content was 0.07; Coluccio did not consume any alcohol within those two hours;

Coluccio weighs approximately 190 pounds; and, Coluccio told a trooper he consumed

three beers between noon and 3:00 p.m.1 Kurtz was then asked if he had an opinion as to

whether Coluccio’s blood alcohol content would have changed between the time of the

crash and when the blood test was administered.

¶13 Kurtz said, based on the assumptions given to him, Coluccio’s blood alcohol level

would have peaked around 4:00 p.m. and, although elimination rates depend on various

factors that were not in evidence or assumed, he would estimate Coluccio’s blood alcohol

content at the time of the crash to have been between 0.095 and 0.135. Kurtz also opined

that a person with a blood alcohol content between 0.095 and 0.135 would have problems

with reasoning and judgment, hearing, performing divided attention tasks, and would

have tunnel vision. On cross-examination, Kurtz said his estimates for Coluccio’s blood

1
Coluccio told police and testified at trial that he started drinking at 1:00 p.m.
4
alcohol content at the time of the crash were extrapolated and he would need further facts

to determine Coluccio’s exact level of blood alcohol content when the crash occurred.

¶14 The jury found Coluccio guilty of vehicular homicide while under the influence.

The District Court sentenced him to 30 years at Montana State Prison, with 15 suspended.

At the sentencing hearing, the State sought restitution, the details of which are discussed

below.

STANDARD OF REVIEW

¶15 We review jury instructions to determine whether the instructions, taken as a

whole, fully and fairly instruct the jury as to the applicable law and whether the district

court abused its discretion. State v. Nick, 2009 MT 174, ¶ 8, 350 Mont. 533, 208 P.3d

864. If the instructions are erroneous in some aspect, the mistake must prejudicially

affect the defendant’s substantial rights in order to constitute reversible error. Nick, ¶ 8.

¶16 We review a district court’s denial of a motion to dismiss for insufficient evidence

de novo if the court based its denial on a conclusion of law. State v. Swann, 2007 MT

126, ¶ 16, 337 Mont. 326, 160 P.3d 511.

DISCUSSION

¶17 Issue 1: Did the District Court err in instructing the jury on the element of

criminal negligence?

¶18 A person commits the offense of vehicular homicide while under the influence if

he negligently causes the death of another human being while operating a vehicle under

the influence of alcohol. Sections 45-5-106(1), 61-8-401(1), MCA. In order to be

5
convicted of negligent vehicular homicide, a defendant must be found to be both under

the influence and criminally negligent.

¶19 Coluccio does not appeal from the jury’s factual conclusion that he drove under

the influence of alcohol. He argues that the court improperly instructed the jury

concerning the element of criminal negligence. Section 45-2-101(43), MCA, provides:

“Negligently”-- a person acts negligently with respect to a result or to a
circumstance described by a statute defining an offense when the person
consciously disregards a risk that the result will occur or that the
circumstance exists or when the person disregards a risk of which the
person should be aware that the result will occur or that the circumstance
exists. The risk must be of a nature and degree that to disregard it involves
a gross deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation. “Gross deviation” means a deviation
that is considerably greater than lack of ordinary care. Relevant terms, such
as “negligent” and “with negligence”, [sic] have the same meaning.

¶20 After the close of the evidence, the District Court told the jury in Instruction 12

that in order to convict Coluccio of vehicular homicide while under the influence, it must

find the State had proved Coluccio was: (1) driving or in actual physical control of a

vehicle; (2) upon the roadways of this state open to the public; (3) while under the

influence of alcohol; and, (4) negligently caused the death of John Eric Troyer.

¶21 The District Court’s Instruction 17 reads:

In a criminal case, a person acts negligently when an act is done with a
conscious disregard of the risk, or when the person should be aware of the
risk by driving a motor vehicle after consuming alcohol and failing to yield
the right of way to oncoming traffic on a highway.

The risk must be of a nature and degree that to disregard it involves a gross
deviation from the standard of conduct that a reasonable person would
observe in the actor’s situation. “Gross deviation” means a deviation that is
considerably greater than lack of ordinary care.
6
¶22 Coluccio argues on appeal that Instruction 17 erroneously told the jury he was

criminally negligent if he drove a vehicle after drinking alcohol and then failed to yield to

an oncoming vehicle, omitting the requirement that the jury conclude he was criminally

negligent. He claims the jury was, in effect, told it need not consider whether he grossly

deviated from ordinary care in disregarding the risk or in failing to be aware of the risk he

took in driving while under the influence. Coluccio argues that Instruction 17 took away

his defense that, while he drove after drinking, he was not criminally negligent in doing

so.

¶23 Considering Instruction 17, the jury could find Coluccio was criminally negligent

by driving after drinking alcohol. As the dissent notes, it is not necessary under this

particular instruction that the jury conclude he was under the influence to be criminally

negligent. However, considering the instructions as a whole, in particular Instruction 12,

it was necessary for the jury to conclude Coluccio was indeed under the influence in

order to convict him of the charged offense.

¶24 We conclude that Instruction 17, when considered in conjunction with the

instructions as a whole, is not misleading. The language in Instruction 17 that Coluccio

complains of: “when the person should be aware of the risk by driving a motor vehicle

after consuming alcohol and failing to yield the right of way to oncoming traffic,” defines

the risk taken under the specific circumstances of this case. The jury was then instructed

that taking this risk must be a gross deviation from reasonable conduct. When read in

conjunction with the requirement in Instruction 12--that the State must prove that his
7
negligence caused Troyer’s death--the court fully and fairly instructed the jury that in

order to convict, it must find Coluccio was both under the influence and criminally

negligent.

¶25 After the District Court instructed the jury, the prosecutor argued that Coluccio

was both under the influence and criminally negligent as his conduct constituted a gross

deviation from the standard of care. Coluccio’s counsel pointed out to the jury that not

only did the State have to prove Coluccio was at fault, but had to also prove his conduct

was a gross deviation from the standard of care. Coluccio was not deprived of the

defense that he was not criminally negligent. We cannot conclude the District Court

erred in instructing the jury.

¶26 Issue 2: Did the District Court err in denying Coluccio’s motion to dismiss for

insufficient evidence?

¶27 After the State presented its case-in-chief, Coluccio moved to dismiss for

insufficient evidence, asserting that no reasonable jury could conclude beyond a

reasonable doubt that he was either under the influence of alcohol or criminally negligent.

Coluccio renews his argument on appeal, asserting the State failed to introduce evidence

he was impaired by alcohol and that his actions grossly deviated from ordinary care.

¶28 A motion to dismiss for insufficient evidence must be granted if, viewing the

evidence in a light most favorable to the prosecution, there is no evidence upon which a

rational trier of fact could find the essential elements of the crime exist beyond a

reasonable doubt. Swann, ¶ 16. Here, the essential elements at issue are whether

8
Coluccio was under the influence of alcohol and whether he was criminally negligent.

Sections 45-2-101(43), 45-5-106(1), 61-8-401(1), MCA.

¶29 It was undisputed Coluccio’s blood alcohol content was 0.07 two hours after the

crash. That fact, combined with the facts that Coluccio admitted he drank three, maybe

four, beers immediately before he started driving; his breath smelled like alcohol and his

eyes were glassy; typically a person with a 0.07 level of blood alcohol would have at

least a 0.08 blood alcohol level two hours earlier; and alcohol affects a person’s ability to

operate a motor vehicle, forces the conclusion that the State presented sufficient evidence

for a rational trier of fact to determine Coluccio drove while under the influence of

alcohol. Further, the crash itself is circumstantial evidence that Coluccio’s safe driving

abilities were diminished.

¶30 Coluccio is incorrect that a reasonable juror could not conclude his actions rose to

the level of criminal negligence simply because failing to yield to another vehicle when

making a left turn is a minor traffic violation. Coluccio drank at least three beers just

before getting behind the wheel of his car. He turned in front of a visible oncoming

motorcycle. Three other drivers testified they could see the motorcycle coming. His

consumption of alcohol and his driving are sufficient evidence for a reasonable juror to

conclude that turning in front of Troyer was a gross deviation from ordinary care. The

District Court did not err in denying Coluccio’s motion to dismiss for insufficient

evidence.

9
¶31 Issue 3: Did the District Court err in imposing restitution?

¶32 At the sentencing hearing and in its written judgment, the District Court imposed

restitution in the amount of $1,400,000. Coluccio complains that the amount of

restitution imposed upon him by the District Court is neither allowed by statute nor

substantiated by evidence in the record, as required by § 46-18-243(1)(a), MCA.

¶33 The State responds, first, that Coluccio failed to object to the amount of restitution

at the hearing, thus waiving his right to appeal. Second, if we conclude Coluccio did

preserve his right to appeal, we should defer to the District Court’s judgment of Robyn

Troyer’s credibility and conclude her testimony substantiated the restitution award.

¶34 Generally, this Court will not hear issues raised for the first time on appeal.

However, we may review a sentence’s legality even if the defendant raises no objection

in the district court. State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. A

sentence is not legal if it does not fall within statutory parameters. Kotwicki, ¶ 13. An

illegal sentence is void to the extent it exceeds statutory authority; only the portion of the

sentence beyond the district court’s statutory authority is illegal. State v. White, 2008 MT

464, ¶ 25, 348 Mont. 196, 199 P.3d 274 (citing DeShields v. State, 2006 MT 58, ¶ 11, 331

Mont. 329, 132 P.3d 540 (stating “[a] sentence in excess of one prescribed by law is not

void ab initio because of the excess, but is good insofar as the power of the court extends

and is invalid only as to the excess”)).

¶35 Objectionable sentences are those where a defendant challenges the application of

a sentencing statute to his particular case. State v. Strong, 2009 MT 65, ¶¶ 14-15, 349

10
Mont. 417, 203 P.3d 848 (citing State v. Mainwaring, 2007 MT 14, ¶ 20, 335 Mont. 322,

151 P.3d 53). We do not hear an issue that is objectionable, rather than illegal, unless it

is objected to in the district court. Strong, ¶ 13.

¶36 In Montana, a victim who has sustained pecuniary loss can obtain restitution as a

part of a criminal sentence. Section 46-18-241(1), MCA. Pecuniary loss means,

(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(1), MCA. A “victim” is the estate of a deceased or incapacitated

victim or a member of the immediate family of a homicide victim. Section 46-18-

243(2)(a)(ii), MCA. If the court believes a victim may have sustained a pecuniary loss,

the court shall order a probation officer to prepare a presentence report and include a list

of the defendant’s assets and an affidavit specifically describing the victim’s pecuniary

loss and the replacement value in dollars. Section 46-18-242(1), MCA.
11
¶37 Coluccio’s presentence report included a restitution list prepared by the deceased

John Troyer’s wife, Robyn, concerning which Ms. Troyer testified at the sentencing

hearing. We deem Ms. Troyer’s sworn testimony at the sentencing hearing to satisfy the

affidavit requirement of § 46-18-242(1), MCA.

¶38 Ms. Troyer claimed restitution for expenses incurred by her friends in travelling to

attend the trial and the sentencing hearing. We conclude that awarding restitution for

travel costs incurred by friends of a victim to lend moral support is outside of the

statutory parameters of § 46-18-241, MCA, and § 46-18-243(1), (2), MCA. The

remainder of the restitution amounts Coluccio complains about--counseling services,

home repair services, and lost wages--may be imposed under § 46-18-243(1)(a), (c),

MCA.

¶39 At the sentencing hearing, the prosecutor was not prepared to offer testimony

concerning the amount of restitution claimed. The District Court advised it would require

testimony to substantiate the amount claimed. The State moved to continue the hearing

as it related to restitution. Coluccio’s counsel objected to any continuance. Ms. Troyer

was examined and cross-examined concerning restitution. Upon examination of the

record, we conclude that Coluccio sufficiently objected to the restitution amounts for

counseling services, home repair services, and Troyer’s lost wages to preserve them for

appeal.

¶40 The Montana Rules of Evidence do not apply to a sentencing hearing. M. R. Evid.

101(c)(3). Still, a defendant has the right to have a sentence imposed based upon

12
substantially correct information. State v. Herman, 2008 MT 187, ¶ 21, 343 Mont. 494,

188 P.3d 978; State v. Bar-Jonah, 2004 MT 344, ¶ 118, 324 Mont. 278, 102 P.3d 1229.

Findings of fact regarding the amount of restitution ordered as a part of a criminal

sentence are reviewed to determine whether they are clearly erroneous. State v. Heath,

2004 MT 126, ¶ 13, 321 Mont. 280, 90 P.3d 426. Such findings are clearly erroneous,

inter alia, if not supported by substantial evidence. State v. Breeding, 2008 MT 162,

¶ 11, 343 Mont. 323, 184 P.3d 313. Substantial evidence is evidence that a reasonable

mind might accept as adequate to support a conclusion. Johnston v. Palmer, 2007 MT

99, ¶ 26, 337 Mont. 101, 158 P.3d 998.

¶41 Ms. Troyer testified she was entitled to restitution for $35,000 she would incur as

psychological counseling for herself and her children. She based this assumption on a

cost of $100 per session with a counselor and 150 visits. When asked how she came up

with the $100 per session amount, she said, “On that figure, I was actually at a loss. But I

asked a few friends that had been to counseling, approximately what to figure based on

their expenses, and that’s how I came up with that.” The District Court awarded $10,000

for counseling.

¶42 Ms. Troyer calculated $100 per month for 40 years for a total of $40,000, as the

cost of home repairs her deceased husband would have performed. When defense

counsel asked her if she reduced the home repair to present value, she said she did not

know what that meant. When present value was explained to her, she said, “I just

assumed that I would spend a minimum of $100 a month paying somebody to do the

13
things that John would be able to do himself.” The District Court awarded her $20,000

for home repairs.

¶43 Finally, Ms. Troyer calculated $2,992,165 as restitution for her husband’s lost

wages. She based her calculations on one of Troyer’s paystubs from the National Guard

and his “other jobs.” When asked by the District Court how she came up with an annual

salary of $92,472, when Troyer’s paystub showed half-year gross earnings of $27,608,

Ms. Troyer said, “What I based that on is, he also had other jobs. Like he flew privately

for a helicopter company. When he wasn’t doing that, he worked more for the [National

Guard]. So I just took that paycheck and said this is what he would potentially earn.”

When asked where his paychecks came from when he was working for the National

Guard in New Mexico, Ms. Troyer said she did not know.

¶44 Concerning the amount claimed for lost wages, the State referred Ms. Troyer to a

document prepared by an attorney-friend of hers that calculated the amount of lost wages

as $1,338,504. Defense counsel objected to Ms. Troyer testifying about a document she

did not prepare, by a person who was not present, that concerned a matter of opinion.

The District Court overruled the objection and awarded $1,338,504 for lost wages.

¶45 We cannot conclude that the amounts set by the District Court for counseling

services, home repair services, and lost wages were substantiated by evidence in the

record, as required by § 46-18-243(1)(a), MCA. Ms. Troyer stated she was “at a loss”

when calculating the counseling expenses, she “assumed” the home repair expenses, her

husband had the “potential” to make $92,000 a year, and she did not know how her

14
attorney-friend prepared lost income figures she presented. Assumptions, ballpark

figures from friends, and purely speculative calculations are insufficient information

upon which to make findings of fact. We conclude the restitution imposed by the District

Court for expenses of friends of the victim, counseling services, home repair services,

and lost wages must be legally and factually reconsidered. The District Court’s

imposition of restitution for these items cannot be sustained.

CONCLUSION

¶46 With the sole exception of the amount of restitution, the judgment of the District

Court is affirmed. That portion of the judgment determining the amount of restitution for

expenses of friends of the victim, counseling services, home repair services, and lost

wages is reversed. This case is remanded to the District Court to determine the correct

amount of restitution to be imposed in accord with this opinion and applicable law.

/S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE

Justice James C. Nelson dissents.

¶47 I dissent from the Court’s Opinion as to Issues 1 and 3, and since I would reverse

and remand for a new trial on Issue 1, I do not reach Issue 2.

15
¶48 First, I disagree with the Court’s resolution of Issue 1. In my view, Instruction 17

misstates the law. Over objection, the court gave Instruction 17 as follows:

In a criminal case, a person acts negligently when an act is done with
a conscious disregard of the risk, or when the person should be aware of
the risk by driving a motor vehicle after consuming alcohol and failing
to yield the right of way to on-coming traffic on a highway.
The risk must be of a nature and degree that to disregard it involves
gross deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation. “Gross deviation” means a deviation
that is considerably greater than lack of ordinary care. [Emphasis added.]

¶49 The pattern instruction (MCJI 2-105) states: “A person acts negligently when an

act is done with a conscious disregard of the risk, or when the person should be aware of

the risk by [here insert applicable conduct related to the case].” According to the State,

the purpose of inserting language that describes the particular acts alleged to have been

negligently performed is simply to specify those acts that the jurors were required to

review in deciding whether negligence had been proven, not to decide the issue for them.

While that may be true, the bolded language in the court’s Instruction 17 misstates the

law. The applicable conduct which should have been inserted in the instruction was

driving while under the influence of alcohol. DUI is a criminal offense. Driving a motor

vehicle “after consuming alcohol” is not a criminal offense. It becomes a criminal

offense only if, after consuming alcohol, the driver is “under the influence.”

¶50 Instruction 17 informed the jury that it could determine that defendant acted

negligently in one of two ways: (1) if he acted with a conscious disregard of the risk; or

(2) if he should have been aware of the risk of driving a motor vehicle after consuming

alcohol and by failing to yield the right-of-way to oncoming traffic on a highway. The
16
trial evidence was undisputed that the defendant had consumed alcohol at some point

prior to the accident. The evidence was, however, that at the time of the accident his

blood alcohol level could have been as low as 0.07 or as high as 0.13. If his blood

alcohol level was 0.07, then he was presumptively not under the influence, although his

alcohol concentration was properly considered as competent evidence. See

§ 61-8-401(4), MCA.

¶51 I am not persuaded by the Court’s determination, Opinion, ¶ 24, that any error in

giving this instruction was cured by all of the other instructions. Instruction 17 is unlike

any that this Court has ever approved. Since here we approve Instruction 17, now a

defendant can be found criminally negligent if he drives a motor vehicle after consuming

alcohol whether he is under the influence or not. That is not the law, and, accordingly, I

would reverse and remand for a new trial with a proper instruction.

¶52 I address Issue 3 because I strongly disagree with the Court’s determination to

“deem” Robyn Troyer’s sworn testimony at the sentencing hearing as satisfying the

affidavit requirement imposed under § 46-18-242(1), MCA. Opinion, ¶ 37. In one

sentence the Court baldly abrogates a fundamental requirement of the statute and

establishes precedent that will allow prosecutors, probation officers and trial courts across

the state to simply ignore the affidavit requirement of § 46-18-242(1), MCA, and,

instead, substitute sworn testimony at the sentencing hearing.

¶53 A sentencing court is not authorized to impose a condition of restitution on a

sentence until all of the detailed procedures in §§ 46-18-241 to -249, MCA, are satisfied.

17
State v. Pritchett, 2000 MT 261, ¶ 7, 302 Mont. 1, 11 P.3d 539; State v. Benoit, 2002 MT

166, ¶ 23, 310 Mont. 449, 51 P.3d 495; see also State v. Hunt, 2009 MT 265, ¶ 16, ___

Mont. ___, ___ P.3d ___.

¶54 Section 46-18-242, MCA, provides:

(1) Whenever the court believes that a victim may have sustained a
pecuniary loss or whenever the prosecuting attorney requests, the court
shall order the probation officer, restitution officer, or other designated
person to include in the presentence investigation and report:
(a) a list of the offender’s assets; and
(b) an affidavit that specifically describes the victim’s pecuniary loss
and the replacement value in dollars of the loss, submitted by the victim.
(2) When a presentence report is not authorized or requested, the
court shall accept evidence of the victim’s loss at the time of sentencing.

¶55 An affidavit is defined as “a written declaration under oath, made without notice to

the adverse party.” Section 26-1-1001, MCA; see also Black’s Law Dictionary 62

(Bryan A. Garner ed., 8th ed., West 2004) (An affidavit is “[a] voluntary declaration of

facts written down and sworn to by the declarant before an officer authorized to

administer oaths, such as a notary public.”). The form of an ordinary oath is also defined

in statute as follows:

A n o a t h o r a f f irmation in an action or proceeding may be
administered by the person who swears or affirms expressing that person’s
assent when addressed with “You do solemnly swear (or affirm, as the case
may be) that the evidence you will give in this issue (or matter), pending
between .... and ...., is the truth, the whole truth, and nothing but the truth,
so help you God.”

Section 1-6-102, MCA.

¶56 Quite simply, sworn testimony is not the same thing as a “written declaration

under oath.” See McDermott v. Carie, LLC, 2005 MT 293, 329 Mont. 295, 124 P.3d 168
18
(holding strictly to the requirement that an affidavit must be sworn to on the basis of

personal knowledge). Ms. Troyer’s sworn testimony is not, by definition, an affidavit,

and it cannot be “deem[ed]” as such.

¶57 Presumably the Legislature included the affidavit requirement in the statute so as

to insure the accuracy and basis for restitution claims—to put the affiant under penalty of

perjury or false swearing—and to give the defendant the opportunity to verify the

restitution claims or be prepared to challenge those at the sentencing hearing. Ignoring

the affidavit requirement abrogates those requirements of § 46-18-242, MCA, and,

instead, encourages the sort of crap-shoot sentencing proceeding that occurred in this

case. Ignoring the affidavit requirement also encourages the prosecutor to surprise and

sandbag the defense with restitution evidence and claims presented for the first time at

the sentencing hearing. See State v. McMaster, 2008 MT 268, ¶¶ 47-61, 345 Mont. 172,

190 P.3d 302 (Nelson, J., dissenting).

¶58 While § 46-18-242(2), MCA, allows the court to accept evidence of the victim’s

loss at the time of sentencing where a presentence report is not authorized or requested,

that is not the case here. In this case, there was a presentence report, and under the clear

and unambiguous requirements of the black-letter law, § 46-18-242(1)(b), MCA, the

presentence report was required to include “an affidavit that specifically describe[d] the

victim’s pecuniary loss and the replacement value in dollars of the loss, submitted by the

victim.” There was no such affidavit of Ms. Troyer. Perhaps, if there had been, we

19
would not be addressing the unlawful claims for restitution damages that were admitted

into evidence at the sentencing hearing and which the trial court allowed.

¶59 Instead of simply blowing-off the requirements of § 46-18-242(1)(b), MCA (a

determination for which the Court cites no authority), we should require probation

officers, prosecutors and trial courts to follow the laws which the Legislature has

enacted. When, as here, we simply ignore the law, we encourage sloppy trial practice by

probation officers and attorneys and error by the lower courts—which, of course,

generates more appeals; we gain nothing. I cannot agree with this approach.

¶60 I, too, would reverse the various damage claims referred to in ¶ 46 of the Opinion.

In doing so, I would also require the probation or restitution officer to gather and submit

with an amended PSI, the affidavits which § 46-18-242(1)(b), MCA, requires.

¶61 I dissent.

/S/ JAMES C. NELSON

20