State v. Mullendore: Clarifying Child-Restraint Negligence, Intervening Causes, Expert Testimony, and Lost-Wage Restitution in Montana Homicide Cases

I. Introduction

In State v. Mullendore, 2025 MT 282, the Montana Supreme Court affirmed the convictions and sentence of Kaylea L. Mullendore for negligent homicide, criminal endangerment, and driving while her license was suspended. The case arises from a tragic two-collision sequence in Billings in which one of Mullendore’s children, Spencer (age 5), died and another, A.R. (age 6), was rendered paraplegic.

Beyond its heartbreaking facts, the decision is doctrinally important. It clarifies:

• How Montana’s child-restraint statutes interact with criminal negligence and causation in a negligent homicide prosecution.
• The definition and limits of intervening, superseding cause in criminal cases involving multi-vehicle crashes.
• The standards for ineffective assistance of counsel when counsel does not object to child-restraint evidence or seek certain causation instructions.
• When law-enforcement officers with modest crash-investigation training may testify as experts on speed and trajectory, and how cross-examination can “open the door” to additional expert-like testimony.
• The standard for mistrial based on inadvertent violation of a Rule 404(b)–type in limine order concerning parental rights.
• Most significantly, that lost wages of a homicide victim’s immediate family member are recoverable as criminal restitution under § 46-18-243(1)(a), MCA, where such damages would be available in a civil wrongful-death action—clarifying the reach of State v. Barrick, 2015 MT 94.

The Opinion, authored by Justice McKinnon and joined unanimously, thus consolidates and modestly extends several strands of Montana criminal and restitution jurisprudence.

II. Summary of the Opinion

The Court addressed five issues and resolved them as follows:

1. Sufficiency of the evidence for negligent homicide (Issue One).
   The Court held that a rational juror could find beyond a reasonable doubt that:
   • Mullendore acted negligently within the meaning of § 45-2-101(43), MCA, and
   • Her conduct was a “but-for” cause of Spencer’s death under § 45-2-201(3)(b), MCA.
   Noncompliance with the child safety restraint statute, § 61-9-420, MCA, did not alone constitute negligence, but was admissible as part of the negligence proof when combined with her other driving conduct. Duncan’s rear-ending of the vehicle was not an intervening, superseding cause.
2. Ineffective assistance of counsel (Issue Two).
   Applying Strickland v. Washington and Montana cases such as State v. Santoro and State v. Howard, the Court rejected claims that counsel was ineffective for:
   • Failing to object to the State’s car-seat and seatbelt evidence; and
   • Failing to request more detailed causation and intervening-cause jury instructions.
   The Court concluded that the objections would have been meritless and that the jury instructions, read as a whole, fully and fairly conveyed the required causal link.
3. Admission of testimony by Officers Cook and DeNio (Issue Three).
   The Court held that:
   • Officer Cook had sufficient specialized training to testify as an expert under M. R. Evid. 702 about vehicle speed and trajectory, and could testify as a lay witness under M. R. Evid. 701 about whether seatbelts appeared to have been used.
   • Officer DeNio’s redirect testimony on the physical feasibility of the “coasting” theory was proper because defense cross-examination “opened the door” to that subject, and the testimony complied with the court’s pretrial limitations.
4. Denial of mistrial based on mother’s adoption testimony (Issue Four).
   Even though the statement that A.R. had been adopted violated a pretrial order limiting parental-rights evidence, the Court held there was no reasonable possibility it contributed to the conviction, particularly given:
   • The brief, unsolicited nature of the remark;
   • The stronger, properly-admitted evidence of motive (the existing court order prohibiting unsupervised contact); and
   • Defense counsel’s strategic decision to decline a curative instruction.
5. Restitution for lost wages (Issue Five).
   The Court affirmed an award of $9,458.19 in lost wages to Spencer’s father, holding that:
   • Lost income can qualify as “pecuniary loss” under § 46-18-243(1)(a), MCA, where the loss would be recoverable as special damages in a civil action arising from the criminal conduct;
   • A wrongful-death action against Mullendore would permit recovery of such damages under §§ 27-1-513 and 27-1-323, MCA and In re Estate of Bennett; and
   • Barrick limits recovery of lost wages under subsection (1)(d) (out-of-pocket expenses), but does not preclude recovery under subsection (1)(a).

III. Detailed Analysis

A. Negligent Homicide, Child-Restraint Statutes, and Causation

1. Statutory framework and definition of negligence

Mullendore was convicted of negligent homicide under § 45-5-104(1), MCA, which requires that a person “negligently causes the death of another human being.” Negligence for criminal purposes is defined in § 45-2-101(43), MCA, as:

[A] person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

Two elements are thus central:

• Risk awareness or should-have-been awareness of a harmful result; and
• A “gross deviation” from reasonable conduct—not just ordinary carelessness.

Causation for criminal liability is governed by § 45-2-201(3)(b), MCA. The State had to show that Mullendore’s conduct was:

• A “but-for” cause of Spencer’s death; and
• Not “too remote or accidental in its occurrence” to bear on her liability and the gravity of the offense.

The Court relied on State ex rel. Kuntz v. Thirteenth Judicial District Court, 2000 MT 22, ¶ 37, for the proposition that conduct is a cause-in-fact if the event would not have occurred but for that conduct.

2. Child-restraint statutes and evidentiary use

The defense focused heavily on the statutory scheme governing seatbelts and child safety restraints, arguing that noncompliance could not serve as negligence in a criminal case.

Key statutes:

• § 61-9-420, MCA: Requires that passenger children under 6 years and less than 60 pounds be transported in a child safety restraint.
• § 61-9-422, MCA: Provides that failure to comply with § 61-9-420 “does not alone constitute negligence,” and regulates admissibility of such evidence.
• § 61-13-103, MCA: General seatbelt use requirements; references child-restraint obligations when applicable.
• § 61-13-106, MCA: States that failure to comply with § 61-13-103 “does not constitute negligence.”

Mullendore argued broadly that, in light of § 61-13-106, evidence that Spencer was not in a child safety seat could not be used to prove negligence at all. The Court rejected this reading, parsing the statutes carefully:

• § 61-13-106 is a general statute addressing the legal effect of noncompliance with the general seatbelt statute.
• § 61-9-422, in the same chapter as the child-restraint statute, is a more specific provision that says noncompliance “does not alone constitute negligence.”

Relying on State v. Oie, 2007 MT 328, ¶ 17, the Court applied the basic canon that where a general and a specific statute conflict, the specific statute controls. It therefore held:

• The jury could permissibly consider the failure to properly restrain Spencer as one component of negligence; but
• It could not treat that violation standing alone as negligence per se.

This is an important clarification: improper child restraint is not a legally irrelevant fact in a criminal negligence case. It is relevant evidence of risk disregard and gross deviation, but it cannot by itself establish negligence merely by showing a statutory violation.

3. Cause-in-fact and intervening/superseding cause

Mullendore’s central causation argument was that Duncan’s rear-ending of the Acura constituted an intervening, superseding cause that broke the causal chain between her conduct and Spencer’s death. She also argued that her only negligence was in how Spencer was buckled, and that the crash was initiated by Duncan.

The Court’s analysis proceeded in two steps:

1. Identifying the negligent conduct.
   The Opinion emphasizes that the State’s case did not rest solely on the absence of proper child restraints. Evidence showed that, after being rear-ended:
   • The Acura rapidly accelerated down the hill, with engine revving and tire-screeching consistent with “pedal to the floor.”
   • It left the roadway, went into a ditch, then reentered toward oncoming traffic.
   • It crossed into the oncoming lane and collided head-on with the Yukon.
   • There was evidence suggesting possible alcohol influence (though contested).
   Against this factual backdrop, the Court held that a rational juror could find a conscious disregard of a substantial risk of serious harm or death to the children, amounting to a gross deviation from reasonable care.
2. Applying but-for causation and remoteness.
   Under § 45-2-201(3)(b), MCA, the State had to show that but for Mullendore’s negligent operation of the vehicle (improper restraints plus high-speed, wrong-lane driving), Spencer would not have been subjected to the fatal impact.
   
   The Court concluded:
   • The fatal blunt-force trauma was exactly the type of harm that foreseeably results from such conduct.
   • Spencer’s death was therefore neither “too remote” nor purely “accidental” for criminal liability.

On the alleged intervening cause, the Court invoked Sizemore v. Montana Power Co., 246 Mont. 37, 803 P.2d 629 (1990), which defines a superseding, intervening event as an unforeseeable event that occurs after the defendant’s original act of negligence. Here:

• Duncan’s rear-ending occurred before, not after, the sequence of negligent acts the Court highlighted (post-impact acceleration, ditch excursion, reentry into oncoming traffic).
• By definition, then, Duncan’s act could not be a superseding event as to those later negligent acts.

The Court therefore rejected the intervening-cause theory as inconsistent with the temporal logic of superseding causation and with the factual record.

4. Precedents on sufficiency of evidence and causation

The Opinion situates its reasoning within established Montana sufficiency and causation doctrine:

• State v. Bowen, 2015 MT 246, ¶ 30.
  The Court reiterates that, when addressing sufficiency challenges, it:
  • Assumes every fact the jury could have deduced;
  • Does not re-weigh conflicting evidence; and
  • Recognizes that even a single witness’s believed testimony can prove any fact.
• State v. Christensen, 2020 MT 237, ¶ 11.
  Provides the standard: whether any rational trier of fact could have found essential elements beyond a reasonable doubt when viewing evidence in the light most favorable to the prosecution.
• State ex rel. Kuntz, 2000 MT 22, ¶ 37.
  Supplies the “but-for” causation test used to define cause-in-fact.
• Sizemore, 246 Mont. 37.
  Supplies civil-law definition of superseding, intervening cause, imported to the criminal context to show why Duncan’s earlier impact cannot break the causal chain.
• Oie, 2007 MT 328.
  Provides the canon that specific statutes control over general ones when reconciling child-restraint statutes with general seatbelt-neglect provisions.

These authorities allowed the Court to reaffirm a relatively traditional “but-for plus foreseeability” approach, while clarifying that a sequence of negligent acts after an initial collision can support criminal liability regardless of who caused the initial impact.

5. Significance on negligent homicide prosecutions

For future Montana prosecutions:

• Prosecutors may rely on child-restraint noncompliance as relevant evidence of negligence, but should not argue that such violations automatically equal negligence.
• Defense arguments that another driver’s impact was an intervening cause will likely fail where:
  • The defendant engages in subsequent independent negligent driving; and
  • The resulting harm (e.g., high-speed head-on collision) is the very type of risk their conduct created.
  • The threshold for sufficiency remains deferential to jury verdicts, especially when multiple eyewitnesses describe recklessness.

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  B. Ineffective Assistance of Counsel

  1. The Strickland framework and Montana practice

  The Court applies the familiar two-prong test from Strickland v. Washington, 466 U.S. 668 (1984), as adopted in Montana cases such as State v. Santoro, 2019 MT 192:

  1. Deficient performance – counsel’s actions must fall below an objective standard of reasonableness; and
  2. Prejudice – a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

  Montana decisions (e.g., Howard, Sartain, Rukes) stress:

  • A strong presumption that counsel’s conduct is within the wide range of reasonable professional assistance.
  • Direct-appeal review is limited to record-based claims; if the record does not show “why” counsel acted as they did, postconviction relief is often the proper vehicle—unless there is clearly no plausible justification.
  • Counsel is not ineffective for failing to make meritless objections. (Howard, ¶ 26.)

  The Court also cites State v. Dubois, 2006 MT 89, ¶ 48, to reaffirm that courts may start with the prejudice prong if it is easier to resolve the claim that way, and State v. Parker, 2025 MT 92, ¶ 21, for the articulation that the defendant must show a reasonable probability of a different outcome.

  2. Failure to object to seatbelt evidence

  Mullendore argued that counsel should have objected to the State’s car-seat and seatbelt evidence and requested a jury instruction that her method of buckling Spencer “does not constitute negligence,” relying on § 61-13-106, MCA.

  The Court rejected this in two steps:

  1. It reaffirmed, as discussed above, that evidence of noncompliance with § 61-9-420 may be considered as part of the negligence analysis, though it is insufficient by itself to prove negligence.
  2. Because the seatbelt evidence was therefore admissible and the proposed instruction inaccurate (it would have transformed “does not alone constitute negligence” into “does not constitute negligence at all”), any objection would have been meritless.

  Under Howard, counsel cannot be declared ineffective for failing to raise an objection that would properly have been overruled. Thus, the first Strickland prong (deficiency) was not met.

  3. Jury instructions on causation and intervening cause

  Mullendore next alleged that counsel was ineffective for failing to:

  • Object to the negligence instruction’s omission of the clause “that the result will occur” from § 45-2-101(43), MCA; and
  • Request an instruction defining intervening, superseding cause.

  The District Court instructed the jury that:

  • “A person acts negligently when an act is done with a conscious disregard of the risk, or when the person should be aware of the risk,” with “risk” further defined in terms of gross deviation (Instruction 16).
  • “A person commits the offense of negligent homicide if the person negligently causes the death of a human being” (Instruction 28).
  • To convict of negligent homicide, the State must prove:
    1. That the Defendant caused the death of Spencer; and
    2. That the Defendant acted negligently (Instruction 29).

  Under State v. Marfuta, 2024 MT 245, and State v. Strizich, 2021 MT 306, the Court reviews instructions “as a whole” for whether they fully and fairly state the applicable law and considers prejudice to substantial rights.

  The Court reasoned:

  • While the negligence definition did not literally repeat “that the result will occur,” the separate causation and elements instructions made clear that the State had to prove that Mullendore’s negligent conduct caused Spencer’s death, and that each element must be proven beyond a reasonable doubt.
  • When read together, the instructions adequately conveyed that the relevant “result” for purposes of negligence was Spencer’s death.
  • There was thus no reasonable probability that adding more explicit causal language would have changed the verdict.

  On the failure to request an intervening-cause instruction, the Court simply reiterated its earlier conclusion that Duncan’s impact was not legally an intervening, superseding cause. Because the underlying legal theory was meritless, counsel was not deficient under Strickland’s first prong.

  4. Practical takeaways for defense counsel

  • Attempts to exclude child-restraint evidence entirely on the basis of § 61-13-106, MCA are unlikely to succeed; counsel should instead focus on minimizing its weight and ensuring the jury understands it cannot alone establish negligence.
  • Challenges to causation instructions must be evaluated in light of the entire instruction set; a missing phrase in one instruction may not create reversible error if other instructions adequately address the point.
  • Intervening-cause theories must be carefully grounded in the timeline and foreseeability analysis, or they will not support either a jury instruction or an IAC claim.

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  C. Expert and Lay Testimony: Crash Reconstruction and “Opening the Door”

  1. Qualification of Officer Cook as an expert on speed and trajectory

  Mullendore argued that Officer Cook was not properly qualified as an expert to testify about:

  • Estimated speed of the Acura at impact; and
  • Its trajectory after being rear-ended.

  Under M. R. Evid. 702, a witness may testify as an expert if:

  scientific, technical, or other specialized knowledge will assist the trier of fact … and the witness is qualified as an expert by knowledge, skill, experience, training, or education.

  Montana cases provide several guideposts:

  • State v. Harris, 2008 MT 213, ¶ 6. District courts have broad discretion; abuse occurs only if they act arbitrarily or beyond reason.
  • State v. Clausell, 2001 MT 62, ¶ 21. The degree of an expert’s qualifications goes to weight, not admissibility.
  • Hulse v. DOJ, Motor Vehicle Division, 1998 MT 108, ¶ 48. Rule 702 implicitly requires a foundation of special training/education and adequate knowledge.
  • Goodnough v. State, 199 Mont. 9, 647 P.2d 364 (1982). A highway patrolman with 12 years’ experience and accident-investigation training could estimate speed from skid marks and damage.
  • State v. James, 2024 MT 109, ¶ 16. In complex accident investigations, the record should clearly demonstrate that an officer is qualified as an expert.
  • McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 23. Courts should liberally admit even “shaky” expert testimony, leaving weaknesses to cross-examination and competing evidence.

  The record showed that:

  • Cook had been a Billings officer for about three years.
  • He had specific crash-investigation training that included speed calculations.
  • He consulted his crash-investigation instructor and training reference materials in calculating speed.
  • This was his first real-world speed calculation, and he candidly acknowledged limitations in his analysis.

  The Court held that this training and methodology were enough to clear Rule 702’s admissibility threshold. Any concerns about his relative inexperience went to weight, addressed through:

  • Defense cross-examination highlighting formula choices, assumptions about weight and impacts, and Cook’s own concession that there could have been a more accurate calculation; and
  • Defense presentation of its own crash-reconstruction expert with a different speed estimate.

  Notably, the Court found “no meaningful distinction” between qualifications necessary to opine on speed and those necessary to opine on trajectory: both arise from the same crash-investigation training and scene observations.

  2. Lay opinion on seatbelt use under Rule 701

  Cook also testified about whether the children appeared to have been wearing seatbelts, based on his inspection of the seatbelts and vehicle interior. The defense argued this was improper expert testimony.

  M. R. Evid. 701 allows lay opinion testimony that is:

  1. Rationally based on the witness’s perception; and
  2. Helpful to understanding the testimony or determining a fact in issue.

  Relying on James, the Court held that Cook’s observations—viewing the condition and position of seatbelts as part of his investigation—fit comfortably within Rule 701. He was explaining what he observed and its ordinary implications, not offering technical, specialized analysis.

  3. Officer DeNio’s redirect testimony and “opening the door”

  Before trial, the court limited Officer DeNio from providing undisclosed numerical calculations of speed or momentum. On direct examination, an attempt to elicit her own calculations was blocked by a sustained defense objection.

  However, during cross-examination, defense counsel:

  • Asked detailed questions about the grade of the hill and how it affects acceleration;
  • Probed Newtonian physics concepts; and
  • Pressed the theory that the Acura could have simply “rolled” or coasted into the collision position after being rear-ended.

  On redirect, the State asked whether the Acura could have rolled onto the street as suggested. Over defense objections that this called for undisclosed expert testimony, the District Court allowed DeNio to:

  • Explain, using general physical principles (Newton’s laws), why additional propulsion would have been required to bring the car back from its off-road path into oncoming traffic; and
  • Describe the angle and forces involved in the vehicle’s movement, without introducing new numerical speed calculations.

  The Court invoked the doctrine of “opening the door,” citing:

  • State v. Guill, 2010 MT 69, ¶ 39 and State v. Veis, 1998 MT 162, ¶ 18: when one party broaches an otherwise off-limits topic, the other party may respond with rebuttal evidence on that topic.
  • Cline v. Durden, 246 Mont. 154, 803 P.2d 1077 (1990): a party may effectively overcome its own earlier objection by later asking about the same subject on cross, thereby opening the door to further inquiry on redirect.

  Given:

  • The defense’s deep dive into physics and hill-grade on cross; and
  • The limited, non-numerical nature of DeNio’s redirect answers;

  the Court found no abuse of discretion. The redirect was reasonably within the scope of matters opened by cross and within the pretrial limitations on undisclosed calculations.

  4. Implications for expert practice

  • Officers with basic, formal crash-investigation training can be qualified as experts on speed and trajectory even early in their careers; challenges will largely go to weight, not admissibility.
  • Defense counsel who choose to engage an officer in detailed technical or physical cross-examination should anticipate that they may thereby “open the door” to further clarifying testimony on redirect—even where pretrial orders had narrowed expert topics.
  • Distinguishing between Rule 701 lay opinion and Rule 702 expert testimony remains fact-specific; observations about physical conditions and commonsense inferences are likely admissible as lay opinion.

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  D. Mistrial Motion and Rule 404(b)-Type Parenting/Adoption Evidence

  1. The in limine ruling and motive theory

  Before trial, the defense sought to exclude evidence of Mullendore’s involvement with Child Protective Services and her restricted parenting rights. The State argued that:

  • A prior court order barred her from unsupervised contact with her children; and
  • This restriction supplied a motive for fleeing the crash scene after being rear-ended—she did not want to be discovered violating the order.

  The District Court held that this parenting-order evidence was not barred by M. R. Evid. 404(b) because it went to motive, knowledge, and absence of mistake or accident, not to character or propensity. Because such evidence risked prejudice, the court limited it to a jointly-drafted instruction read during the State’s case-in-chief, informing the jury:

  • That a court order prohibited unsupervised contact on November 23, 2019, and
  • That this evidence could only be used to assess motive, knowledge, and absence of mistake, not for character or punishment for uncharged conduct.

  2. The adoption statement and mistrial standard

  At trial, when asked if she knew A.R., Mullendore’s mother answered: “I adopted her. She was my granddaughter and now she’s—” before being cut off by objection. This answer breached the spirit (and likely the letter) of the in limine order by suggesting a deeper alteration of parental rights.

  Defense counsel objected under Rule 404(b); the objection was sustained. At day’s end, counsel moved for mistrial based solely on the mother’s adoption remark.

  Under State v. Bollman, 2012 MT 49, ¶ 33, a mistrial is appropriate when:

  there is a reasonable possibility that inadmissible evidence might have contributed to the conviction.

  The Court considers:

  1. The strength of the prohibited statement;
  2. The prejudicial effect; and
  3. Whether a curative instruction could cure the prejudice.

  The Court’s analysis:

  • Strength of the statement.
    • The adoption remark was not “strong” in the sense used in State v. Partin, 287 Mont. 12, where prohibited evidence was the only link to guilt.
    • Here, the link between the adoption status and culpability for negligent homicide was weak; the prosecution’s case rested primarily on driving behavior and crash evidence.
    • Although the jury later asked about the custody agreement, that question does not show that the adoption remark was the linchpin of their verdict.
  • Prejudicial impact.
    • The remark was spontaneous, brief, and not elicited by the State.
    • The jury already knew, via a limiting instruction, that a court order restricted unsupervised contact—conveying a serious existing issue with parental rights.
    • The adoption detail did not materially transform the picture so as to deny a fair trial.
    • The standard of prejudice is denial of a substantial right; the Court found that standard unmet.
  • Curative instruction.
    • The trial court offered a curative instruction.
    • Defense counsel declined, explaining that he did not want to emphasize the comment further by repeating it in instructions.
    • As in Bollman, the Court refused to fault the trial judge for not giving an instruction the defense declined to request.

  The Court concluded there was no reasonable possibility that the adoption remark contributed to the conviction, and thus no abuse of discretion in denying a mistrial.

  3. Lessons for Rule 404(b) practice

  • Even where a Rule 404(b)-type in limine order is violated, mistrial is a remedy of last resort; courts will consider whether the statement actually mattered to the verdict given the totality of admissible evidence.
  • Defense counsel’s strategic choices about curative instructions can be outcome-determinative; declining such an instruction makes it challenging to argue on appeal that the prejudice was incurable.
  • When motive evidence about parental restrictions is admissible, additional, more detailed references (e.g., adoption) may be viewed as cumulative rather than transformative, depending on context.

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  E. Restitution for Lost Wages of a Homicide Victim’s Parent

  1. Statutory framework: §§ 46-18-241 and 46-18-243, MCA

  Montana’s restitution statutes require sentencing courts to order “full restitution” to any victim who has sustained a “pecuniary loss.” Key definitions:

  • § 46-18-241(1), MCA: Courts must order restitution for pecuniary loss.
  • § 46-18-243(2)(a)(ii), MCA: “Victim” includes “a member of the immediate family of a homicide victim.” Thus, Spencer’s father, Spencer Sr., is a statutory victim.
  • § 46-18-243(1)(a), MCA: “Pecuniary loss” includes “all special damages, but not general damages, substantiated by evidence in the record, that a person could recover against the offender in a civil action,” including “loss of income.”
  • § 46-18-243(1)(d), MCA: Also includes “reasonable out-of-pocket expenses incurred by the victim in filing charges or in cooperating in the investigation and prosecution of the offense.”

  The sentencing court awarded Spencer Sr. $9,458.19 based on 191.5 hours of lost work at $49.39/hour. Mullendore conceded the calculation but argued that lost wages are not “out-of-pocket” and thus not compensable as restitution.

  2. Barrick, Lowry, Lodahl, and the meaning of “lost wages”

  In State v. Barrick, 2015 MT 94, the Court addressed restitution for wages allegedly lost because family members attended hearings in a case involving the killing of the family dog. The Court:

  • Analyzed subsections (1)(a) and (1)(d) separately;
  • Held that subsection (1)(d) covers “expenses involving a cash payment or outlay;” and
  • Concluded that lost income the family was prevented from earning (but never actually paid out) was not an “out-of-pocket expense” under subsection (1)(d).

  However, as later clarified:

  • State v. Lowry, 2019 MT 191, ¶ 17 and State v. Lodahl, 2021 MT 156, ¶ 17 emphasize that only subsection (1)(d) is limited to out-of-pocket cash outlays; subsection (1)(a) is broader and hinges on whether the loss is a type of special damage recoverable in a civil action.

  The key question under § 46-18-243(1)(a) is therefore:

  Would the victim be able to recover this type of loss in a civil lawsuit arising out of the same facts?

  If so, and if substantiated by evidence, it can be ordered as restitution—even if it is not literally a cash outlay already made.

  3. Wrongful death as the underlying civil action

  The Court identified the relevant civil analogue as a wrongful death action under §§ 27-1-513 and 27-1-323, MCA:

  • § 27-1-513, MCA: Creates the wrongful death cause of action.
  • § 27-1-323, MCA: In wrongful death actions, “such damages may be given as under all the circumstances of the case may be just.”

  In In re Estate of Bennett, 2013 MT 230, the Court described Montana’s wrongful death regime as:

  • A “general loss” statute, meaning damages focus on survivors’ personal losses; and
  • Encompassing damages related to the survivors’ own losses rather than just the decedent’s economic value.

  Applying this to restitution:

  • Spencer Sr., as surviving parent, could bring a wrongful death action against Mullendore.
  • Under § 27-1-323, MCA and Bennett, he could seek damages including his own lost income stemming from dealing with his son’s death or the resulting proceedings.
  • Such lost wages thus qualify as “special damages … that a person could recover … in a civil action” within § 46-18-243(1)(a), MCA.

  Therefore, the Court held that restitution for his lost income was proper under subsection (1)(a), and Barrick did not bar such an award; Barrick was confined to subsection (1)(d)’s narrower category of out-of-pocket prosecution-related expenses.

  4. New precedent: Affirmative authorization of lost-wage restitution in homicide cases

  The Opinion’s most significant doctrinal move is to explicitly state that:

  • Lost wages of a homicide victim’s immediate family member may be ordered as restitution under § 46-18-243(1)(a), MCA, so long as those wages are a type of special damage recoverable in a civil wrongful-death action and are substantiated in the record.

  This:

  • Clarifies that Barrick does not categorically prohibit lost-wage restitution; it only limits claims under subsection (1)(d).
  • Aligns criminal restitution more tightly with civil-damages principles in the wrongful-death context.
  • Expands the practical scope of restitution in serious violent offenses, particularly homicide, to include time missed from work by immediate family members dealing with the death and related proceedings.

  5. Practical implications for sentencing practice

  • For prosecutors:
    • Document victim-family lost wages carefully, including hours missed, wage rates, and causal connection to the crime or its aftermath.
    • Frame such requests explicitly under § 46-18-243(1)(a), MCA as “special damages” that would be recoverable in wrongful-death litigation.
  • For defense counsel:
    • Focus objections on:
      • Whether the lost wages are adequately substantiated;
      • Whether they would truly be recoverable in a civil action (causation, remoteness, mitigation); and
      • Ensuring that general, non-pecuniary grief or emotional-distress components are not mislabeled as “lost wages.”

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  IV. Complex Concepts Simplified

  1. Negligent homicide and criminal negligence

  Negligent homicide in Montana requires:

  1. You caused someone’s death; and
  2. You did so by acting with criminal negligence—that is, you disregarded a serious risk of the death in a way far more careless than an ordinary mistake.

  It is not enough that death followed your actions; the State must prove that your risk-taking behavior was grossly unreasonable and that this conduct actually caused the death.

  2. Cause-in-fact and intervening/superseding cause

  • Cause-in-fact (“but-for” cause): The simplest question: If the defendant had acted reasonably instead of negligently, would the harmful result likely have been avoided? If yes, her conduct is a but-for cause.
  • Intervening/superseding cause: A later, unexpected event that:
    • Occurs after the defendant’s negligence; and
    • Is so unforeseeable and dominant that it breaks the chain of legal responsibility.
    In this case, the first rear-end collision came before much of the defendant’s negligent driving, so it could not be a superseding cause as to those later acts.

  3. Ineffective assistance of counsel (IAC)

  To win an IAC claim, a defendant must show:

  1. Deficiency: That the lawyer’s performance was objectively unreasonable—no competent attorney would have acted that way in the circumstances; and
  2. Prejudice: A reasonable probability that, if the lawyer had acted competently, the outcome would have been different.

  If the “missed objection” would have been overruled because it lacked legal merit, there is no deficiency.

  4. Expert vs. lay testimony

  • Expert testimony (Rule 702): Based on specialized knowledge (training, education, experience) that helps the jury understand technical matters (like crash physics or medical causation).
  • Lay opinion (Rule 701): Based on personal observations and everyday reasoning—for example, observing that a seatbelt looked unused or that a car seemed to be going fast.

  5. “Opening the door”

  If one side introduces a subject or theory in questioning (especially on cross-examination), it often gives the other side a fair chance to respond, even with evidence that might otherwise have been limited. Counsel must weigh the risks of exploring technical areas that could unlock more detailed rebuttal testimony.

  6. Restitution: pecuniary loss, special vs. general damages

  • Restitution: Court-ordered payment from an offender to victims to compensate for financial losses caused by the crime.
  • Pecuniary loss: Actual, measurable monetary losses, such as medical bills, lost wages, or funeral costs.
  • Special damages: Specific financial harms provable with receipts or pay records (e.g., lost income).
  • General damages: Non-economic harms like pain, suffering, or grief—these are not recoverable as restitution under § 46-18-243(1)(a), MCA.

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  V. Broader Impact and Future Litigation

  State v. Mullendore is not a radical departure from Montana law, but it meaningfully refines several doctrines:

  • Causation and negligence in vehicle-related homicides.
    The decision confirms that:
    • Jurors may consider a concatenation of negligent acts (speeding, lane violations, improper child restraints) in assessing criminal negligence;
    • Initial collisions caused by others do not automatically insulate later reckless conduct from criminal liability; and
    • Child-restraint violations, though not negligence per se, remain potent evidence in evaluating risk disregard.
  • Trial management of crash experts.
    The Court gives trial judges considerable room to admit police-derived accident reconstruction, reinforcing that disputes about training level or method are for cross-examination and competing experts, not usually exclusion. This may encourage more reliance on technical crash analysis in criminal prosecutions, coupled with robust defense challenges to methodology.
  • Rule 404(b) and mistrials.
    The Opinion emphasizes proportionality: not every violation of an in limine ruling—especially spontaneous, truncated ones—warrants the nuclear remedy of mistrial, particularly where the defense declines curative instructions and the record contains strong, admissible inculpatory evidence.
  • Restitution expansion in homicide cases.
    Perhaps the most concrete prospective impact is on restitution. Prosecutors in homicide cases now have clear authority to seek restitution for a surviving family member’s lost wages, so long as:
    • The loss is proven with evidence; and
    • It matches what could be recovered as special damages in a wrongful-death action.
    This significantly broadens the financial exposure of defendants in homicide cases and aligns with a victim-centered approach to sentencing.

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  VI. Conclusion

  State v. Mullendore consolidates key principles of Montana criminal law while resolving several contested questions:

  • It affirms that child-restraint noncompliance is relevant, though not dispositive, evidence of criminal negligence in a negligent homicide prosecution.
  • It clarifies that intervening, superseding cause requires a later, unforeseeable event and cannot be invoked where the defendant’s own subsequent negligence is the direct cause of death.
  • It applies a realistic, deferential approach to ineffective assistance and jury-instruction challenges, emphasizing the holistic reading of instructions and the futility of objections without legal basis.
  • It reinforces broad trial-court discretion to admit “shaky but admissible” expert testimony from trained officers, and it warns that defense cross can open the door to additional expert-like clarification.
  • It holds that inadvertent, brief violations of evidentiary limitations—such as a reference to adoption—do not automatically mandate mistrial, especially when defense counsel declines remedial instructions.
  • Most significantly, it confirms that homicide victims’ immediate family members may obtain restitution for lost wages under § 46-18-243(1)(a), MCA, where those losses are comparable to special damages available in a civil wrongful-death action.

  Taken together, these rulings refine the contours of negligence, causation, expert evidence, and restitution in Montana’s criminal-justice system and will guide trial and appellate courts in handling similar issues in future serious-traffic and homicide prosecutions.