*1 122 MONTANA,
STATE OF Appellee, Plaintiff and v.
MICHAEL JAMES COLUCCIO, II, Appellant.
Defendant
No. DA 08-0110.
January
on Briefs
Submitted
2009.
August
Decided
2009.
273.
¶2 negligence? criminal element of motion to denying Did Court err in Coluccio’s Issue 2: the District
¶3 for insufficient evidence? dismiss Court restitution? imposing 3: Did the District err
¶4 Issue FACTUAL AND PROCEDURAL BACKGROUND July driving his p.m. Around 4:30 on Coluccio was ¶5 on 200 east of Missoula. Highway Chevrolet Suburban eastbound Road, Coluccio he reached the intersection with Johnsrud When down, turn. his turn and initiated a left signal slowed activated Troyer, travelling who on his turned into John was westbound Coluccio Troyer a result of collision. motorcycle. died as the collision, motorcycle caught the and Coluccio’s After Suburban family Troyer. to attended Coluccioled his fire. Witnesses the crash to friends, distance the fire. passengers, who were his a safe from to raft from try Coluccio then returned to his Suburban to remove his He did not condition. its roof. check Finley Chad and Sean were Highway Troopers Patrol Dever investigate. they trial They to testified at dispatched scene eyes appeared glassy. on One smelled alcohol Coluccio’sbreath and his accident, forty-five Trooper Finley after the obtained hour and minutes alcohol from Coluccio. The test showed Coluccio’s blood blood test alcohol level was 0.07. enforcement, that, prior Coluccio said In a statement to law p.m., Missoula 3:00 he consumed
leaving his home in East around starting p.m. 1:00 later he have three beers at around He testified because, driving He had on his had four beers. said the beer no effect him, Light like water.” ‘Coors motorcycle until coming did not simply Colucciostated he see because, ‘hayguess is it too late and that the accident occurred was just... sped up he corner motorcyclist, must have around that not, just you now, paying then what he really flew attention to doing....” was homicide charged felony The State vehicular while influence, driving misdemeanor while his license was
suspended, carry liability proof and failure insurance. Coluccio guilty to and not pled charges guilty the misdemeanor to vehicular homicide. trial, At occupants travelling of the vehicle behind Coluccio for ten driving erratically miles before the crash testified he was not speed Troyer did not directly exceed the limit. The driver behind
at time of the crash testified that Coluccio off the “cut motorcyclist.” A couple waiting stop sign at the at Road Johnsrud they motorcycle coming Highway testified saw the around the bend of intersection, an yards estimated from the appeared and it to be going speed Trooper Burman, limit. Mike an accident accident, investigated reconstructionist who at testified that speed Troyer rate of travelling, anyone sitting at the intersection have been to see him nine able for about seconds before Lynn Kurtz, entered the intersection. toxicologist a forensic from the laboratory Crime Troyer State testified did not any have alcohol *3 drugs system in his ability safely. that would affect his drive prosecutor The a posed hypothetical question asking ¶12 Kurtz him following assume the facts: the crash occurred at approximately 4:30 a p.m.; authorities blood sample drew from Coluccio almost hours two crash, showing after the 0.07; that his blood alcohol content was any Coluccio did not consume hours; alcohol within those two weighs approximately and, 190 pounds; trooper Coluccio told a he p.m.1 consumed three beers between noon 3:00 and Kurtz was then if he opinion asked had an as to whether Coluccio’s alcohol blood changed content would have between time of the the crash and when blood the test was administered. said, Kurtz him, based on the assumptions given to
¶13 Coluccio’s alcohol peaked and, blood level would have 4:00 p.m. although around elimination on depend rates various that factors were not in evidence assumed, he estimate Coluccio’s blood at alcohol content the time crash to have been between 0.095 and 0.135. Kurtz also opined a with a blood content alcohol between 0.095 and 1 police p.m. drinking Coluccio told testified at and trial that started at 1:00
125 hearing, judgment, reasoning problems have 0.135 would On tasks, have tunnel vision. and would performing divided attention alcohol cross-examination, his estimates for Coluccio’sblood Kurtz said need and he would extrapolated the time of the crash were content at level of alcohol Coluccio’s exact blood further facts to determine content when the crash occurred. under guilty of homicide while jury The found Coluccio vehicular at years The Court him to 30
the influence. District sentenced hearing, Prison, At the suspended. State with 15 Montana restitution, are below. sought the the details of which discussed State OF REVIEW
STANDARD the review instructions to determine whether jury We instructions, whole, fully jury as to fairly taken a instruct the the law and district court abused its discretion. applicable whether 8, 533, If the Nick, 174, v. 2009 MT Mont. P.3d ¶ State must aspect, are in some mistake instructions erroneous rights in order to prejudicially affect the defendant’s substantial Nick, 8. constitute reversible error. ¶ of a motion to dismiss for We review district court’s denial novo if based its denial on
insufficient evidence de the court Swann, of law. conclusion
DISCUSSION instructing jury 1: Did the Court err in on Issue District negligence criminal ? element of under A the offense of homicide person commits vehicular while influence human negligently if he causes the death another
being operating while a vehicle under the influence alcohol. Sections 45-5-106(1), 61-8-401(1), negligent InMCA. order to be convicted of homicide, defendant must found to be vehicular both criminally negligent. influence that he appeal jury’s Colucciodoes not from factual conclusion argues under the influence of He
drove alcohol. jury criminal improperly concerning instructed the element of *4 45-2-101(43), MCA, provides: Section negligence. respect result or
“Negligently”-*person negligently acts to a defining a when to a circumstance described statute an offense disregards risk that the result will occur person consciously the a disregards a person that the circumstance exists or when the or risk should be that the result occur person of which the aware will must or that the circumstance exists. The risk be of a nature degree disregard gross it a deviation from the that to involves person that a would in the standard of conduct reasonable observe that actor’s situation. ‘Gross deviation” means a deviation is terms, considerably ordinary than lack care. greater of Relevant “negligent” [sic] such as and “with have the same negligence”, meaning. evidence, jury After the in the close of the District Court told the order to of
Instruction that in convict Coluccio vehicular homicide influence, under the it must find the State had Coluccio proved while (1) (2) physical vehicle; in of a driving was: actual control (3) roadways open of public; this state while under the influence (4) alcohol; and, negligently Troyer. death of caused the John Eric The District Court’s Instruction reads: case, In a person criminal a acts negligently when an act done risk, disregard with a conscious or when person should be aware of driving consuming the risk a motor vehicle after failing yield right way alcohol and to oncoming traffic on highway. degree The risk must of a nature disregard it gross involves a deviation from standard of conduct that a observe in actor’s situation. ‘Gross considerably deviation” means deviation greater that is than lack ordinary care. argues appeal Coluccio on that Instruction 17 told erroneously he
jury criminally negligent was if drinking he drove vehicle after yield alcohol and oncoming vehicle, then failed to to an omitting the requirement jury that the conclude he criminally negligent. He was, effect, the jury claims in told it not need consider whether he grossly ordinary deviated from disregarding care in the risk or in failing to be aware of the risk he driving took in while under the influence. argues away 17 took Instruction his defense that, while he after drinking, criminally drove he was negligent doing so. Considering Instruction could jury find Coluccio was
criminally negligent by driving drinking after alcohol. As the dissent notes, necessary it is not particular jury instruction that the criminally negligent. conclude was under influence to be However, whole, as a considering particular instructions necessary Instruction it was for the jury conclude Coluccio was *5 charged him the in order convict of the influence to indeed offense. conjunction considered in conclude that Instruction when We in whole, misleading. language a is not The
with the instructions as the be complains 17 that of:“when should Instruction Coluccio consuming alcohol by driving the risk a motor vehicle after aware of traffic,” the yield way oncoming defines failing right and the to jury of this case. The specific taken under the circumstances risk gross risk a from taking then instructed that must be deviation in conjunction requirement conduct. read the reasonable When his caused prove negligence 12-that the State must in Instruction that in fully fairly jury death-the instructed the convict, it find both under the influence order to must Coluccio was criminally negligent. jury, After the Court the pros.ecutor District instructed criminally the influence and argued Coluccio was both under negligent gross as his conduct constituted a deviation from care. to the that not pointed jury standard of Coluccio’s counsel out fault, prove did the State Colucciowas at but had to also only have care. prove gross his conduct was a deviation from standard of criminally not he was deprived Coluccio was defense that instructing erred negligent. We cannot conclude District Court jury. denying 2: Did Court err motion to Issue the District Coluccio’s dismiss evidence? insufficient for case-in-chief, After the its moved to presented State evidence, asserting jury for insufficient that no reasonable dismiss beyond could conclude a reasonable doubt that he was either under criminally his negligent. influence alcohol or Coluccio renews appeal, asserting on failed to argument State introduce evidence impaired by grossly and that actions from he was alcohol his deviated ordinary care. if, must granted A motion to dismiss for insufficient evidence
viewing light prosecution, in a most there evidence favorable evidence a rational trier of fact find the is no which could crime beyond elements a doubt. essential exist Swann, Here, the essential elements at issue are whether he was Coluccio was under the influence of alcohol whether 61-8-401(1), 45-2-101(43), 45-5-106(1), criminally negligent. Sections MCA. undisputed It was Coluccio’s blood alcohol content was 0.07 two fact,
hours after the crash. That combined with the facts that Coluccio three, four, admitted drank maybe immediately beers before he driving; started his breath eyes smelled like alcohol and his were glassy; typically person with a 0.07 level of blood alcohol would have at least a 0.08 blood earlier; alcohol level two hours and alcohol affects person’s ability vehicle, operate motor forces the conclusion that presented the State 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. *6 Coluccio is incorrect that a juror
¶30 reasonable could not conclude his actions rose to the level of negligence criminal simply because failing yield to another vehicle making when a left turn is a minor traffic violation. Coluccio drank at just least three beers before getting behind the wheel of his car. He turned in front of a visible oncoming motorcycle. Three other drivers they testified could motorcycle see the coming. consumption His of alcohol and driving his are sufficient evidence for a juror reasonable to conclude turning that in front of Troyer gross was a deviation from ordinary care. The District Court did not err in denying Coluccio’s motion to dismiss for insufficient evidence. Issue 3: Did the District Court err in imposing restitution? At the sentencing hearing and in its judgment, written
District Court imposed restitution in the $1,400,000. amount of complains that the amount him restitution by the District Court is neither by allowed statute nor substantiated by record, evidence in the required by as §46-18-243(l)(a), MCA. first, The State responds, object Coluccio failed to amount of restitution at the hearing, waiving thus his right appeal. Second, if we conclude Coluccio did preserve right his to appeal, we should defer to the District judgment Robyn Court’s credibility and conclude her testimony substantiated the restitution award. Generally, this Court will not hear issues raised for the first time
on appeal. However,
we
review a
legality
sentence’s
even if the
defendant
objection
raises no
in the district court.
Kotwicki,
State v.
17, 8,
2007 MT
344,
335
¶
Mont.
129
464,
196,
White,
25,
348 Mont.
v.
2008
illegal. State
authority
¶
is
State,
11, 331
2006 MT
Mont.
(citing DeShields v.
¶
(a) damages, general damages, not substantiated special all but record, against in the could recover evidence arising out of the facts or events offender in a civil action activities, including criminal without constituting the offender’s losses, loss out-of-pocket expenses, such as limitation medical ordinary income, reasonably obtaining incurred expenses if necessary performed that the victim would have services attending expenses reasonably incurred in injured, offense, proceedings related to the commission of the crematory to funeral expenses related and burial services;
(b) harmed, replacement taken, destroyed, full ofproperty cost *7 or devalued as a result of the offender’s criminal otherwise conduct;
(c) expenses reasonably future medical the victim can be conduct, as a to incur result of the offender’s criminal expected cost of including psychological counseling, therapy, and treatment; and
(d) out-of-pocket by incurred the victim in expenses in filing charges cooperating investigation and prosecution of the offense. 46-18-243(1), a deceased or
Section MCA. A “victim” is estate of family a incapacitated victim or member of immediate a 46-18-243(2)(a)(ii), Section MCA. If the court believes homicide victim. loss, a the court shall order a pecuniary victim have sustained a list report and include probation prepare presentence officer describing specifically assets an affidavit defendant’s pecuniary victim’s loss and the replacement value dollars. Section 46-18-242(1), MCA. presentence Coluccio’s included a report prepared restitution list wife, Troyer’s Robyn, the deceased John concerning which Ms.
Troyer testified at the hearing. Troyer’s We deem Ms. testimony sworn at the sentencing hearing satisfy the affidavit §46-18-242(1), requirement of MCA. Troyer Ms. claimed restitution for expenses incurred her in travelling
friends to attend the trial and the sentencing hearing. We awarding conclude that restitution for travel costs incurred by friends of a support victim to lend moral statutory is outside ofthe parameters §46-18-241, MCA, §46-18-243(1), (2), MCA. The remainder of complains restitution amounts Coluccio about-counseling services, services, home repair wagesmiay and lost under §46-18- 243(l)(a), (c), MCA. At the sentencing hearing, the prosecutor was not prepared to testimony
offer
concerning the amount of restitution claimed. The
District Court advised it would require testimony to substantiate the
amount claimed. The State moved to
hearing
continue the
as it related
to restitution. Coluccio’s
objected
any
counsel
continuance. Ms.
Troyer was examined and
concerning
cross-examined
restitution. Upon
record,
examination of the
we conclude that
sufficiently
objected to the restitution
services,
amounts for counseling
home
repair services,
wages
lost
to preserve them for appeal.
The Montana
Rules of Evidence do
apply
to a sentencing
101(c)(3).
hearing.
Still,
M. R. Evid.
right
defendant has the
to have
a sentence imposed
based
substantially correct information. State
Herman,
187,
v.
21,
2008 MT
494,
978;
343 Mont.
¶
188 P.3d
Bar-Jonah,
344,
118,
2004 MT
278,
¶
Mont.
would incur as psychological counseling for herself and her children. She based this assumption on a cost of per $100 session awith *8 up the $100 asked how she came with and 150 visits. When counselor a loss. amount, said, actually “On I was at figure, per session she counseling, had approximately a few been to But I asked friends up how I expenses, their and that’s came figure what to based on $10,000 counseling. for The District Court awarded that.” total of per years for 40 for a Troyer calculated month $100 Ms. husband would have $40,000, repairs the cost home her deceased as of if reduced the home counsel asked her she performed. Wftien defense meant. value, she not know what that present to she said did repair her, said, just explained she assumed present value was When “Í somebody to do spend paying $100 I a minimum of a month that would himself.” The Court things that John be able do District $20,000 repairs. her for home awarded her Finally, $2,992,165 Ms. calculated as restitution for Troyer wages. based her calculations on one of
husband’s lost She by jobs.”When Guard and his “other asked paystubs from National $92,472, up salary Court came with an annual of the District how she half-year $27,608, Ms. Troyer’s paystub gross earnings of when showed said, is, jobs. “What I that on he also had other Like Troyer based that, he company. doing for a he wasn’t privately helicopter flew When just for I took that paycheck [National Guard]. worked more So potentially and said this is what he would earn.” Wfiien asked where working came from when he was for the National Guard paychecks his Mexico, Troyer said she did not know. New Ms. Concerning wages, the amount claimed for lost State referred by Troyer prepared attorney-friend to a document hers that Ms. an wages $1,338,504. calculated amount of lost as Defense counsel testifying to Ms. not objected Troyer about a document she did by present, prepare, person who was that concerned a matter The opinion. objection District Court overruled the and awarded $1,338,504 lost wages. for cannot that the for We conclude amounts set District Court services, services,
counseling repair wages home and lost were record, required by in the 46-18- substantiated evidence § 243(l)(a), calculating she Troyer MCA. Ms. stated was “at a loss”when counseling expenses, repair she “assumed”the home her expenses, “potential” $92,000 year, had the to make did not husband and she attorney-friend figures how her lost income she prepared know presented. Assumptions, friends, purely from ballpark figures are insufficient information which speculative calculations by the findings of fact. We conclude the restitution make expenses victim, District Court for counseling services, friends ofthe *9 repair services, home wages and lost must legally factually be reconsidered. The District Court’s imposition of restitution for these items cannot be sustained.
CONCLUSION With the sole exception restitution, ofthe amount of judgment of the District Court is affirmed. That portion judgment of the determining the amount of restitution for expenses of friends of the victim, services, counseling services, home repair wages lost is reversed. This case is remanded to the District Court to determine the correct amount ofrestitution to be accord with opinion and applicable law. LEAPHART,
JUSTICES MORRIS and RICE concur. JUSTICE NELSON dissents. I dissent from the Opinion Court’s as to Issues 1 and and since
I would reverse and remand for a new trial on Issue I do not reach Issue 2. First, I disagree with the Court’s view, resolution ofIssue In my
Instruction 17 misstates the objection, law. Over gave Instruction 17 as follows: case,
In a criminal a person acts negligently when an act is done with a disregard risk, conscious of the or when person should be aware of the risk driving a motor vehicle after consuming alcohol and failing yield right way to on- coming traffic highway. on a
The risk must be of a degree nature and that to disregard it gross involves deviation from the standard of conduct that a person would observe in the actor’s situation. ‘Cross deviation” means a deviation considerably that is greater than lack of ordinary [Emphasis care. added.] (MCJI pattern 2-105) The instruction states: “A person acts negligently when an act is done with a conscious disregard risk, when the should be aware of the risk by [here insert applicable conduct related to the case].” According State, purpose inserting language that describes the particular acts alleged to have been negligently performed simply specify those acts that jurors were required to deciding review in negligence whether had proven, been not to decide the issue for them. true, While that the bolded language in the court’s Instruction 17 misstates law. applicable The conduct which should have been inserted in the DUI is a of alcohol. influence under the driving while instruction was alcohol”is consuming “after Driving a motor vehicle criminal offense. if, only after offense a criminal It becomes criminal offense. not a influence.” “under the alcohol, the driver is consuming it could determine jury that 17 informed the Instruction (1) if he acted with ways: in one of two negligently acted defendant (2) aware if he should have been risk; or disregard of the conscious alcohol and consuming vehicle after driving a motor the risk of The highway. oncoming traffic on yield right-of-way failing to had consumed defendant undisputed trial evidence was, however, The evidence to the accident. point prior alcohol at some have been level could his blood alcohol time of the accident that at the 0.07, alcohol level was 0.13. If his blood high or as as as low as 0.07 influence, although his not under the presumptively then he was evidence. competent considered properly concentration was alcohol §61-8-401(4), MCA. See *10 24, determination, Opinion, ¶ the Court’s by I persuaded am not other by instruction all of the was cured any giving error in
that Court has ever any unlike that this Instruction 17 is instructions. 17, a defendant can now approve here we Instruction Since approved. vehicle after if he drives a motor criminally negligent be found influence or not. That is he is under the consuming alcohol whether a new and remand for law, and, accordingly, I would reverse instruction. proper trial with a the Court’s strongly disagree I I Issue 3 because address testimony at Robyn Troyer’s sworn to “deem”
determination requirement satisfying the affidavit sentencing hearing the Court §46-18-242(1), 37. In one sentence Opinion, MCA. ¶ the statute and abrogates requirement a fundamental baldly officers prosecutors, probation allow that will precedent establishes ignore the affidavit simply the state to trial courts across MCA, and, instead, sworn §46-18-242(1), substitute requirement of hearing. testimony sentencing at the a condition of impose authorized to A court is not procedures §§46- until all of the detailed on a sentence
restitution
261,
Pritchett,
MT
2000
-249, MCA,
¶
are satisfied. State v.
18-241
166, 23,
Benoit,
MT
310
539;
2002
1,
¶
11 P.3d
7, 302 Mont.
265, 16,
Hunt,
MT
352
2009
495;
also State v.
51 P.3d
see
Mont.
70,
134
(1) Whenever the court believes that a may victim have pecuniary sustained a prosecuting loss or whenever the attorney requests, officer, the court order probation shall restitution officer, designated or other presentence to include in the investigation report:
(a) assets; a list of the offender’s (b) an that specifically affidavit describes victim’s pecuniary replacement loss and the loss, value in dollars of the by submitted the victim.
(2) presentence When a report is not authorized requested, or the court shall accept evidence of the victim’s loss at the time of sentencing. An affidavit is defined as “awritten oath, declaration under made
without party.”Section 26-1-1001, notice to the adverse MCA;see also 2004) Black’s Law Dictionary (Bryan ed., ed., A. Garner 8th West (An voluntary ‘Ta] affidavit is declaration of facts written down and sworn to the declarant before an officer authorized to administer oaths, notary such as a public.”). The ordinary form of an oath is also defined in statute as follows:
An oath or affirmation an action proceeding may administered the person who swears or expressing affirms person’s (or assent when addressed with ‘You solemnly do swear be) affirm, as the case you the evidence give will in this (or matter), issue pending ...., truth, between .... and is the truth, whole and nothing truth, but the so help you God.” 1-6-102, Section MCA. Quite simply, sworn testimony is not the thing same as a “written Carie,
declaration under oath.” LLC, See McDermott v. (holding P.3d 168 strictly to the requirement that an affidavit must be sworn to on the basis of personal knowledge). Ms. testimony not, sworn by definition, affidavit, an and it “deem[ed]” cannot be as such. *11 Presumably Legislature included the requirement affidavit
the statute so as to insure the accuracy and basis for restitution put claims-to the affiant under penalty perjury of or false swearing-and give to the defendant the opportunity verify to restitution claims or prepared be challenge to those at the sentencing hearing. Ignoring the affidavit requirement abrogates those requirements §46-18-242, MCA, and, of instead, encourages the sort of crap-shoot sentencing proceeding occurred this case. Ignoring the affidavit requirement also encourages prosecutor claims restitution evidence defense with sandbag the surprise and hearing. See sentencing time at the the first for presented P.3d 302 47-61, McMaster, ¶¶ (Nelson, J., dissenting). of MCA, accept evidence §46-18-242(2), allows the court While report presentence sentencing where at the time of
the victim’s loss case, In this the case here. that is not requested, or is not authorized unambiguous under the clear report, and presentence there was 46-18-242(l)(b), MCA, the law, the black-letter requirements § of include “an affidavit required presentence report replacement loss and the pecuniary the victim’s describe[d] specifically no There was loss, by the victim.” of the submitted in dollars value been, we would not if there had Troyer. Perhaps, affidavit of Ms. such damages that were for restitution claims addressing the unlawful the trial hearing and which at the admitted into evidence allowed. 46-18- blowing-off requirements § simply Instead (a cites no for which the Court 242(l)(b), determination MCA officers, and trial prosecutors authority), require probation we should When, as Legislature has enacted. the laws which the courts to follow law, encourage sloppy practice trial here, ignore the we simply we courts-which, by the lower attorneys and error officers and probation agree I cannot gain nothing. we course, generates appeals; more approach. to in 46 damage claims referred I, too, reverse the various would so, require probation I also doing In Opinion. PSI, amended and submit with an gather officer to restitution MCA, §46-18-242(l)(b), requires. affidavits which I dissent.