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State v. Lowry

Supreme Court of Montana

August 13, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
BOBBY FRANCIS LOWRY, Defendant and Appellant.

          Submitted on Briefs: June 26, 2019

          APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-15-341-C Honorable John C. Brown, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Robert Stutz, Assistant Attorney General, Helena, Montana

          Martin D. Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County Attorney, Bozeman, Montana.

          OPINION

          BETH BAKER JUSTICE.

         ¶1 Bobby Francis Lowry appeals from the order of the Eighteenth Judicial District Court, Gallatin County, to pay $25, 835.37 in restitution to his former employer, Industrial Automation Consultants ("IAC"), after he pleaded no contest to theft of property by embezzlement in violation of § 45-6-301(7), MCA (2015). Lowry argues that § 46-18-243, MCA, does not authorize $13, 989.31 of the ordered restitution. We agree with Lowry in part. We reverse a portion of the challenged award and remand for recalculation of restitution.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 Lowry began working as a senior project engineer for IAC in March 2015. IAC provided Lowry with a laptop, an external backup hard drive, and an adapter cable for his work. Lowry spent most of his time with IAC on a project to retrofit an existing control system to a new control platform for an IAC client. During his month-long tenure with IAC, Lowry recorded 112.5 hours on IAC client projects, 18.5 hours in internal training, 8 hours at a quarterly meeting and a conference, and 20 hours of paid time off. On or about April 14, Lowry stopped coming to work. Despite IAC's requests to return the laptop and accessories to IAC, Lowry did not return them. IAC reported the theft of the laptop and related equipment to the Gallatin County Sheriff in April 2015. The State charged Lowry with felony theft of property by embezzlement in violation of § 45-6-301(7), MCA (2015), in December 2015.

         ¶3 After Lowry left the company without returning the laptop, IAC refused to send him his last paycheck. Lowry filed a complaint with the Montana Department of Labor & Industry. In August 2016, the parties settled the wage dispute. In the settlement, IAC and Lowry agreed to deduct from Lowry's final paycheck the costs of a missing office key, the laptop, and an unpaid hotel bill that Lowry incurred during his employment and IAC paid on his behalf.

         ¶4 In September 2016, Lowry entered into a plea agreement with the State and pleaded no contest to the charged offense. He admitted that he refused to return the laptop to IAC. The court ajudged Lowry guilty of felony theft of property by embezzlement and scheduled a restitution hearing.

         ¶5 At the hearing, the State submitted an amended restitution request totaling $25, 835.37. The request included the cost of the missing equipment not already deducted from Lowry's final paycheck, the cost of labor to recreate Lowry's work, the lost profits from Lowry's lost work, the cost of Lowry's training and paid time off, and the billable value of the hours the office administrator and president of IAC spent cooperating in the investigation and prosecution of the crime. Charles Wambeke, IAC's president, provided testimony to support the request and laid foundation for receipts for the missing equipment, as well as time sheets from Lowry and from the engineers who recreated Lowry's work.

         ¶6 Wambeke testified that IAC's standard operating procedures required engineers to upload their work product to IAC's server daily, but that Lowry had not done so. Because Lowry did not back up his work to the server or return the laptop, IAC essentially lost all of Lowry's work product when he left the company and had to recreate it. IAC pulled two engineers from other projects to complete the project by the client's deadline. Wambeke testified that the engineers would have been working on other billable projects during this time but for Lowry's theft of the laptop containing the saved work product. Wambeke requested reimbursement to IAC for the wages it paid Lowry for training, meetings, and paid time off, because "it turned out to be a bad investment" and "was of no value" to the company. He also testified that IAC was requesting the billable rate for the 31 hours that he and the office administrator each had spent on the case. He testified that his billable rate was $169 per hour. He did not testify to the office administrator's billable rate, but the restitution request charged her hours at $85 per hour. Wambeke testified that the hours he spent working on this case kept him from billing time to clients.

         ¶7 Lowry also testified during the hearing. Though he acknowledged taking the laptop, he claimed that he had not taken the cable or external hard drive. He further contended that he uploaded his work product to IAC's server and to the client and that IAC did not have to recreate it. In its Findings of Fact, Conclusions of Law, and Order for Restitution, the District Court found Wambeke credible and stated that it had "serious concerns" about Lowry's honesty. It ordered Lowry to pay the entire $25, 835.37 restitution request. At a later sentencing hearing, Lowry was ...


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