State v. Barrick

State v. Barrick, 2015 MT 94 (March 31, 2015) (Rice, J.; Cotter, J., concurring & dissenting) (4-1, aff’d & rev’d)

Issue: (1) Whether district court properly ordered restitution for lost income; (2) whether evidence supported restitution for victim’ medical bills incurred as a result of defendant shooting victim’s family dog; and (3) whether the district court abused its discretion in denying defendant’s request for victim’s financial and medical records.

Short Answer: (1) No; (2) yes, and (3) no.

Affirmed (2 & 3) and reversed (1) and remanded to amend the judgment

Facts: In September 2013, a jury convicted Barrick of criminal mischief and cruelty to animals for fatally shooting the Tuss family’s dog. During sentencing, the Tuss family asked for restitution of $9,357.14 to pay for the replacement cost of the dog, medical bills for Brett Tuss, lost wages for family members spent cooperating with the prosecution, and travel expenses associated with the prosecution of the offenses.

In response, Barrick moved for the production of medical and income records of Brett and Ann Tuss. The district court denied the motion. 

Procedural Posture & Holding: After a restitution hearing, the district court determined that Brett Tuss’s medical expenses were reasonably related to Barrick’s offenses, and that the family was entitled to lost wages for their time invested in the prosecution, and ordered Barrick to pay the entire $9,357.14. Barrick appeals, and the Supreme Court affirms in part and reverses in part.

Reasoning: (1) Section 46-18-243(1)(d) allows restitution for an out-of-pocket expense incurred by the victim as a result of the defendant’s criminal conduct. This section does not authorize recovery of lost wages. Subsection (a) allows restitution for damages that could be recovered in a civil action arising out of the criminal act. The state provides no authority for its contention that time spent assisting the prosecution would be compensable in a civil action. The restitution award for lost wages is reversed.

(2) The district court did not err in finding that Brett Tuss’s medical bills arose out of Barrick’s criminal conduct.

(3) Barrick’s discovery requests were very broad. He failed to demonstrate a substantial need for such broad discovery, and the district court did not abuse its discretion in denying the motion.

Justice Cotter’s concurrence/dissent: Justice Cotter writes to identify internal inconsistencies in § 46-18-243, MCA, and suggest the statute be redrafted. She concurs that the victim must expend funds before he or she may make a recovery under this section. Justice Cotter suggests the state be amended to distinguish between “losses” and “expenses” that are recoverable, with examples, and to clearly delineate those items of loss that are tethered to what the victim could recover in a civil action arising out of the same events, and those items that are not.