State v. Passmore

State v. Passmore, 2014 MT 249 (Sept. 16, 2014) (6-0) Shea, J.

Issue: Whether the district court abused its discretion by denying Passmore’s petition for remission of restitution.

Short Answer: No.

Affirmed

Facts: Passmore was convicted in 2007 of felony sexual intercourse without consent and felony sexual assault against two sisters, ages 12 and 13 at the time of the offenses. Passmore was designated a Level I sex offender and sentenced to 35 years in prison, with five years suspended. Passmore was also ordered to pay restitution to compensate his victims, i.e., 52 hours of counseling for a maximum amount of $12,000 within five years, based on Passmore’s ability to pay. This Court affirmed the judgment, 2010 MT 34, and also affirmed the denial of Passmore’s petition for postconviction relief. 2013 MT 154N.

In April 2013, Passmore filed a petition for remission of restitution in the Sixth Judicial District. The court held a hearing, at which Passmore appeared by video conference. The state called the two victims and one of their husbands as witnesses. Because of a no-contact order between Passmore and his victims, the camera and video screen were covered with a blanket so Passmore and his victims could not see one another, although Passmore could hear everything in the courtroom. Passmore relayed his cross-examination question to the judge, who then relayed those questions to the victims.

Both victims testified as to the long-term effects of Passmore’s abuse of them, and their difficulty in paying for mental health treatment. The state requested a five-year extension of the restitution condition.

Procedural Posture & Holding: The district court denied Passmore’s petition and extended the time for submission of restitution claims by three years. Passmore appeals, and the Supreme Court affirms.

Reasoning: Passmore contends his victims lied about their inability to pay for treatment, but the district court specifically found the victims’ testimony credible. The Court will not substitute its judgment as to witness credibility. Passmore cites to a civil settlement agreement that is not part of the record on appeal. The Court will not consider it. Passmore also references the victims’ testimony at his trial in which they admit receiving money in a separate settlement of a civil suit against the Church of God. However, he did not raise that argument before the district court so that Court will not consider it.