State v. Thorpe

State v. Thorpe, 2015 MT 14 (Jan. 20, 2015) (Baker. J.) (5-0, rev’d)

Issue: Whether the district court’s restitution order was proper.

Short Answer: No. The Court remands for a determination of a causal relation between the criminal conduct and the counseling.

Vacated and remanded

Facts: Erika, mother of then-four-year-old AL, sought an order of protection in 2009 to restrain Thorpe from being near AL based on AL’s statements suggesting Thorpe sexually abused her. A temporary order issued, and was made permanent in March 2012. From December 2009-December 2012, AL received counseling for the alleged abuse.

Several times in the spring of 2012, Erika saw Thorpe’s car parked outside a house near AL’s school, and called 9-1-1. Thorpe explained to the police that his girlfriend lived at that house.

Procedural Posture & Holding: The state charged Thorpe with six counts of violating the order of protection. After a bench trial the district court found Thorpe guilty of one count and dismissed the rest. The court sentenced Thorpe to six months’ incarceration with all suspended, and ordered Thorpe to pay $3,143 in restitution for all of AL’s counseling. Thorpe appeals the restitution order, and the Supreme Court reverses.

Reasoning: A district court has statutory authority to order a defendant to pay restitution to a victim who has suffered a pecuniary loss. Thorpe contends he was convicted for conduct occurring on April 25, 2012, but ordered to pay restitution for counseling that began in December 2009. The alleged sexual abuse for which AL received counseling is not part of the facts constituting the crime for which Thorpe was convicted. A causal relation between the criminal conduct and the pecuniary loss is the touchstone in determining whether a person is a victim entitled to restitution. Because no finding regarding a causal relation were made here, the Court remands for consideration of that factual issue and a restitution order consistent with those findings.