September 28 2011
DA 10-0608
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 242
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ANGELA KAY O’CONNELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC 09-166
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Jennifer A. Hurley, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant
Attorney General; Helena, Montana
William E. Fulbright, Ravalli County Attorney; Hamilton, Montana
Submitted on Briefs: July 27, 2011
Decided: September 28, 2011
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Angela O’Connell (O’Connell) appeals from the judgment and sentence imposed
by the Twenty-First Judicial District, Ravalli County, requiring her to pay lost profits in
addition to the replacement value of stolen goods as part of her restitution obligation.
She also challenges a sentencing condition that prohibits her from entering bars. The
State concedes that the restitution determination was not supported by substantial
evidence. We reverse in part and affirm in part and remand for recalculation of
restitution. We address the following issues on appeal:
¶2 1. Did the District Court err by ordering payment of lost profits, in addition to the
replacement value of the stolen goods, as part of O’Connell’s restitution obligation?
¶3 2. Did the District Court abuse its discretion by prohibiting O’Connell from
entering bars as a condition of her sentence?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 O’Connell and her husband were involved in a theft scheme whereby O’Connell’s
husband would steal property from a local business and sell the stolen goods for cash.
The Hunting Shack, Inc. is a Ravalli County business that buys and refurbishes expended
brass bullet casings. O’Connell’s husband would sneak into the fenced storage area of
The Hunting Shack, collect the casings in containers, roll the containers back under the
fence, and load them into O’Connell’s vehicle. O’Connell would then drive to a
recycling company where her husband would sell the casings as scrap metal. From April
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to October of 2009, the couple stole 33,815 pounds of expended brass casings and
received $32,179.25 in payments from the sale of the casings.
¶5 O’Connell pled guilty to Accountability for Theft (Common Scheme) under
§§ 45-2-301 and 45-6-301 (1)(a), MCA (2007),1 pursuant to a plea agreement.
O’Connell’s husband was charged with felony theft and sentenced to 10 years in prison
for his part in the scheme. O’Connell’s Presentence Investigation Report (PSI) revealed
that she is an illegal drug user, indulging in marijuana daily without a medical marijuana
card and using hard drugs with frequency in the past. The PSI indicated that, although
her current use of alcohol is rare, O’Connell had alcohol problems in her teenage years
and received a Minor in Possession of Alcohol citation during that time. O’Connell had
previously participated in two outpatient chemical dependency programs.
¶6 The District Court imposed a two-year deferred imposition of sentence with
various conditions, including prohibitions on entering bars, entering casinos, and on
consumption of alcohol. During the oral imposition of sentence, the District Court stated:
“With regard to . . . entry into bars, I think it would be extremely unseemly for the
Defendant to be . . . having a good time in a bar when she’s owing $159,000 to a business
that she stole from, and so I will implement those recommendations.” In addition,
O’Connell was ordered to pay restitution to The Hunting Shack in the amount of
$159,606.80, representing both the cost and the lost profits for the stolen brass casings.
1
Although the defendant’s acts continued until October 3, 2009, and § 45-6-301, MCA, was
amended effective October 1, 2009, the language of the subsection pertinent to the charge here
was not revised. The 2007 version of the MCA was in effect when most of the acts in the
common scheme occurred.
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The amount designated as profits lost on the casings was provided by the manager of The
Hunting Shack, with little explanation of how the amount was calculated. O’Connell
contests the condition prohibiting her from entering bars and the portion of the restitution
amount attributed to The Hunting Shack’s lost profits.
STANDARD OF REVIEW
¶7 We review factual findings regarding restitution to determine if they are clearly
erroneous. State v. Essig, 2009 MT 340, ¶ 12, 353 Mont. 99, 218 P.3d 838 (citing State
v. Heath, 2004 MT 126, ¶ 13, 321 Mont. 280, 90 P.3d 426). Factual findings are clearly
erroneous when they are not supported by substantial evidence. State v. Coluccio, 2009
MT 273, ¶ 40, 352 Mont. 122, 214 P.3d 1282, (citing State v. Breeding, 2008 MT 162,
¶ 11, 343 Mont. 323, 184 P.3d 313). Evidence is substantial if a reasonable mind might
accept it as adequate to support a conclusion. Coluccio, ¶ 40 (citing Johnston v. Palmer,
2007 MT 99, ¶ 26, 337 Mont. 101, 158 P.3d 998). Conclusions of law regarding the
measure of restitution are reviewed for correctness. State v. Pritchett, 2000 MT 261,
¶ 18, 302 Mont. 1, 11 P.3d 539.
¶8 We review probation and sentencing conditions under a two-pronged review.
First, we will review de novo the legality of the probation or sentencing conditions.
Then, we will review the reasonableness of the conditions for abuse of discretion. State
v. Sadowsky, 2008 MT 405, ¶ 10, 347 Mont. 192, 197 P.3d 1018; State v. Stiles, 2008 MT
390, ¶ 7, 347 Mont. 95, 197 P.3d 966; State v. Brotherton, 2008 MT 119, ¶ 10, 342 Mont.
511, 182 P.3d 88; State v. Ashby, 2008 MT 83, ¶ 9, 342 Mont. 187, 179 P.3d 1164.
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DISCUSSION
¶9 1. Did the District Court err by ordering payment of lost profits, in addition to the
replacement value of the stolen brass casings, as part of O’Connell’s restitution
obligation?
¶10 O’Connell argues that “the district court erred as a matter of law when it
determined that lost profits was a proper measure of restitution,” and, alternatively, that
even if lost profits were proper, the amount awarded was not supported by substantial
evidence in this case. O’Connell points to the invoices used by The Hunting Shack’s
manager in determining the cost of the stolen casings. The manager admitted he used the
wrong invoices for the calculation and that those invoices were from different shipments
than those from which the casings were stolen. Noting the calculus the manager used for
lost profits, O’Connell argues the manager did not explain how the factors that went into
the calculus were determined, did not offer testimony regarding the proper sale price of
the casings, and did not provide testimony regarding the cost of labor. The manager
admitted his figures were based on the assumption that all the stolen casings would have
been remanufactured and that he did not account for casings that would be found to be
unsuitable for remanufacture.
¶11 To the extent that O’Connell argues lost profits were not a proper measure of
restitution as a matter of law, the State argues future lost profits may be an appropriate
measure of damages for a restitution award, citing to State v. Kalal, 2009 MT 103, ¶ 2,
350 Mont. 128, 204 P.3d 1240. The State also argues that lost profits need not be
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calculable with precision, citing to State v. Benoit, 2002 MT 166, ¶ 29, 310 Mont. 449, 51
P.3d 495 (lost profits are recoverable so long as “the losses were calculated by use of
reasonable methods based on the best evidence available under the circumstances.”).
¶12 A sentencing court must “require an offender to make full restitution to any victim
who has sustained pecuniary loss, including a person suffering an economic loss.”
Section 46-18-241 (1), MCA. Pecuniary loss is defined as “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 . . . .” Section 46-18-243 (1)(a), MCA. The definition of
pecuniary loss was amended in 2003 to include “the full replacement cost of property
taken, destroyed, harmed, or otherwise devalued as a result of the offender’s criminal
conduct.” Section 46-18-243 (1)(b), MCA. Because the definition of “pecuniary loss”
includes damages that could be recovered in a civil action, we look to precedent in tort
and contract law to determine the proper measure of restitution. Kalal, ¶ 9.
¶13 In Stensvad v. Miners and Merchants Bank of Roundup, 196 Mont. 193, 640 P.2d
1303 (1982), a breach of contract case, we stated that damages for lost profits may be
awarded if they are not speculative. Stensvad, 196 Mont. at 206, 640 P.2d at 1310;
Silfvast v. Asplund, 99 Mont. 152, 161-62, 42 P.2d 452, 456 (1935). In Trifad Ent., Inc.
v. Anderson, 2001 MT 227, 306 Mont. 499, 36 P.3d 363, a conversion case, we remanded
for determination of damages, including possible damages for “future lost income and
profits . . . .” Trifad, ¶ 45. We have also held that, if the circumstances warrant, “loss of
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future profits, although often speculative, are recoverable . . . .” Benoit, ¶ 29. These
cases demonstrate that, as a matter of law, lost profits can be ordered as part of a
restitution condition within a criminal sentence.
¶14 However, the State has conceded to O’Connell’s alternative argument—that the
District Court’s determination of lost profits in this matter was based upon speculation
and not supported by substantial evidence. Because the casings were timely replaced,
there was no evidence the profits of the company were actually affected. Further, the
State notes the evidence the manager offered was not sufficient to support the multiplier
he used to calculate the lost profits. Thus, the evidence presented was not calculated by
use of “reasonable methods based on the best evidence available under the
circumstances.” Benoit, ¶ 29. We reverse the restitution award and remand for
recalculation of restitution based upon the replacement value of the casings.
¶15 2. Did the District Court abuse its discretion by prohibiting O’Connell from
entering bars as a condition of her sentence?
¶16 When a district court defers imposition of sentence, as here, it has authority to
impose “any . . . reasonable restrictions or conditions considered necessary for
rehabilitation or for the protection of the victim or society.” Section 46-18-201 (4)(o),
MCA. District courts also have broad authority to order “any . . . limitation reasonably
related to the objectives of rehabilitation and the protection of the victim and society.”
Section 46-18-202 (1)(f), MCA. The condition must have a nexus to either the offender
or the offense. Ashby, ¶ 15. In order to have a nexus to the offender or offense, this
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condition must “relate to rehabilitation or protection of society within the particular
context of an offender’s crime or the unique background, characteristics, or conduct of
the offender.” State v. Zimmerman, 2010 MT 44, ¶ 17, 355 Mont. 286, 228 P.3d 1109.
¶17 O’Connell argues the District Court abused its discretion by imposing the
condition prohibiting her from entering bars because she does not have a recent history of
alcohol abuse. She argues that neither alcohol nor drugs were related to her theft offense,
and therefore, the condition is overly broad. She reasons that the restriction will be
detrimental to her ability to gain employment since she will be unable to work in a bar.
¶18 However, O’Connell admits to recent and chronic drug abuse, stating she uses
marijuana on a daily basis to self-medicate and provide “relief from my anxiety
symptoms,” despite having a prescription for anxiety medication. Her PSI states she has
a long history of hard drug use, including “a whole lot” of methamphetamines, and use of
hash, cocaine, LSD, and mushrooms. O’Connell does not have a medical marijuana card
and is prohibited from using illegal drugs as one of her sentencing conditions, which she
does not challenge.
¶19 In Brotherton, we upheld a condition that prohibited alcohol consumption due to
Brotherton’s background and characteristics of drug use, including a significant history of
illegal drug dependency. Brotherton, ¶¶ 23-24 (internal quotations omitted). We were
persuaded by the State’s argument that “there is a real danger that [he] will simply
replace his addiction for illegal drugs with the legal drug of alcohol.” Brotherton,
¶¶ 22-23. In State v. Kroll, 2004 MT 203, 322 Mont. 294, 95 P.3d 717, we upheld
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conditions that prohibited Kroll from gambling and entering casinos. Kroll, ¶¶ 30-31.
Kroll’s behavior had demonstrated that he was easily lured into money-making schemes,
although he had no previous problems with gambling in casinos. Nonetheless, we upheld
the casino condition because it bore a “sufficient connection” to his offense and furthered
Kroll’s rehabilitation. Kroll, ¶¶ 30-31; see also State v. Greensweight, 2008 MT 185,
¶¶ 26-29, 343 Mont. 474, 187 P.3d 613 (upholding a condition prohibiting alcohol where
defendant had a long history of drug use, but little history of alcohol use).
¶20 The principles stated in these cases are equally applicable to O’Connell and the
bar condition. O’Connell has a long history of illegal drug use and continues to use on a
daily basis. A restriction on entering bars is sufficiently connected to her circumstances
and furthers her rehabilitation by preventing her from being in places where alcohol is
purveyed, which may lessen the chance that she will replace or supplement her use of
illegal drugs with alcohol and thereby hinder her rehabilitation. See Brotherton,
¶¶ 22-23. Although the District Court’s statement that it was imposing the condition for
purposes of appearances was unnecessary, the condition was properly imposed upon
O’Connell. See Ronning v. Yellowstone County, 2011 MT 79, ¶ 8, 360 Mont. 108, 253
P.3d 818 (“We will not reverse a district court where it reached the right result, although
for the wrong reason.”). We affirm the condition.
¶21 Reversed in part, affirmed in part, and remanded for further proceedings consistent
with this opinion.
/S/ JIM RICE
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We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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