[Cite as State v. Dennis, 2013-Ohio-5633.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA6
:
vs. :
: DECISION AND JUDGMENT
CHASE DENNIS, : ENTRY
:
Defendant-Appellant. : Released: 12/13/13
_____________________________________________________________
APPEARANCES:
James T. Boulger, Chillicothe, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Chase Dennis appeals the sentence imposed by the Highland
County Court of Common Pleas after he was convicted of aggravated
assault. Appellant raises two assignments of error on appeal, contending
that the trial court erred in ordering restitution in the absence of competent,
credible evidence of the amount of economic loss incurred by the victim,
and without making a determination of his present and future ability to pay
the ordered amount. Because we conclude that the trial court’s order of
restitution was supported by competent, credible evidence and that the pre-
Highland App. No. 13CA6 2
sentence investigation report considered by the trial court prior to sentencing
contained evidence of Appellant’s present and future ability to pay the
ordered amount, both of Appellant’s assignments of error are overruled.
Accordingly, the decision of the trial court is affirmed.
FACTS
{¶2} By a complaint filed on August 29, 2012, Appellant was
originally charged with one count of felonious assault, a second degree
felony in violation of R.C. 2903.11(A)(2). The complaint stemmed from an
incident that occurred between Appellant and John Soards, the victim. It
appears from the record that the parties were involved in an altercation
outside of a Subway restaurant, which was caught on video. The incident
arose based upon an earlier dispute between Appellant and Soards related to
money owed by Appellant for roof work that Soards had performed. When
Soards approached Appellant from behind, allegedly to discuss the matter
with him, Appellant turned with a knife in his hand and struck Appellant
across the neck. Soards sustained injuries which required air transport to
OSU Medical Center.
{¶3} Appellant waived his preliminary hearing and the matter was
bound over to the common pleas court. Appellant was then indicted by a
grand jury on two felony counts, one in violation of R.C. 2903.12(A)(1) and
Highland App. No. 13CA6 3
the other in violation of R.C. 2903.12(A)(2). The indictment mistakenly
identified these crimes as felonious assault, however, a subsequently filed
summons on indictment properly identified both of the crimes charged as
aggravated assault, both fourth degree felonies. Appellant pled not guilty
and the matter proceeded to a jury trial on January 17, 2013.
{¶4} The jury eventually returned a verdict of not guilty on count one
and instead found Appellant guilty of a lesser included offense of assault on
that count, a first degree misdemeanor. The jury further found Appellant
guilty as charged on count two, aggravated assault, a second degree felony.
The trial court filed an entry of conviction on January 22, 2013, and ordered
that a presentence investigation be performed prior to Appellant’s sentencing
hearing. A sentencing hearing was held on February 8, 2013. Appellant
was sentenced to a fifteen-month term of imprisonment and was ordered to
pay restitution in the amount of $50,141.11, as well as fines and costs.
{¶5} Appellant objected to the amount of the restitution order at the
hearing. As a result, further evidence was introduced to support the
restitution amount, including admission into evidence of the victim’s
medical bills, as well as the victim and his wife’s testimony regarding the
outstanding amounts of the bills and whether Appellant had insurance
coverage at the time. A final judgment entry was filed on February 8, 2013,
Highland App. No. 13CA6 4
and it is from this order than Appellant now brings his timely appeal,
assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN ORDERING RESTITUTION IN
THE ABSENCE OF COMPETENT AND CREDIBLE EVIDENCE
OF THE AMOUNT OF ECONOMIC LOSS INCURRED BY THE
VICTIM.
II. THE TRIAL COURT ERRED IN ORDERING RESTITUTION
WITHOUT MAKING A DETERMINATION OF THE
DEFENDANT’S PRESENT AND FUTURE ABILITY TO PAY
THE ORDERED AMOUNT.”
ASSIGNMENT OF ERROR I
{¶6} In his first assignment of error, Appellant contends that the trial
court erred in ordering restitution in the absence of competent and credible
evidence of the amount of economic loss incurred by the victim. Appellant
specifically seems to challenge the accuracy of the medical bills that were
entered into evidence, arguing that they were not properly authenticated
under the rules of evidence. In making this argument, however, Appellant
concedes that “the rules may not apply at a sentencing hearing.” Appellant
further argues that there was conflicting testimony over whether Appellant
had medical insurance and that this conflict should have resulted in a
separate hearing being held on the issue of restitution. Appellee responds by
arguing that the restitution order was premised upon billings for medical
Highland App. No. 13CA6 5
services contained in the record, as well as the testimony of the victim
himself, and that Appellant had the opportunity to cross examine the victim
with respect to the billing records that were introduced as exhibits.
{¶7} As a financial sanction, R.C. 2929.18(A)(1) allows the trial
court to order a felony offender to make restitution to the victim of the
offender's crime in an amount based on the victim's economic loss. R.C.
2929.18(A)(1) specifically provides as follows:
“If the court imposes restitution, the court may base the amount
of restitution it orders on an amount recommended by the
victim, the offender, a presentence investigation report,
estimates or receipts indicating the cost of repairing or
replacing property, and other information, provided that the
amount the court orders as restitution shall not exceed the
amount of the economic loss suffered by the victim as a direct
and proximate result of the commission of the offense.”
Further, “ ‘A trial court abuses its discretion when it orders restitution in an
amount that has not been determined to bear a reasonable relationship to the
actual loss suffered as a result of the defendant's offense.’ ” State v. Rizer,
4th Dist. Meigs No. 10CA3, 2011-Ohio-5702, ¶ 53; quoting State v.
Johnson, 4th Dist. Washington No. 03CA11, 2004-Ohio-2236, ¶ 11.
Highland App. No. 13CA6 6
{¶8} Although a broad reading of both Rizer and Johnson may
indicate that courts are required to apply the rules of evidence to restitution
hearings, “Evid.R. 101(C)(3) makes it clear that it excludes the rules of
evidence from sentencing proceedings.” State v. Bulstrom, --- N.E.2d ----,
2013-Ohio-3582, ¶ 20. As such, it is due process, rather than strict
application of the rules of evidence, that controls what proofs the court can
consider in determining restitution. Id.
{¶9} Here, the State introduced multiple billing records into evidence
in support of the request for restitution. The bills were broken down by
provider and while some indicated insurance coverage through a provider
named Molina, the bills also indicated a zero payment by the provider and
that coverage was not in effect. In order to clarify this issue, both the victim
and his wife testified. The victim’s wife’s testimony was the most helpful.
She testified that she is the one who handles the family insurance, that
Appellant’s coverage had lapsed at the time of his injury, that she had
spoken with the providers personally and that these amounts were the
amounts owed by the victim. The trial court also considered a presentence
investigation report which included the total amount of the victim’s medical
bills as well. The report included an earlier figure, which was higher, and
Highland App. No. 13CA6 7
then an updated figure that corresponds with the trial court’s restitution order
of $50,141.11.1
{¶10} A review of the record indicates that Appellant objected to the
trial court’s consideration of the medical bills, citing the holding in State v.
Purnell, 171 Ohio App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, claiming
that the court in that case found that “unverified and authenticated medical
billings to be insufficient to constitute competent, credible evidence to
support an order of restitution.” However, we find Appellant’s
representation of the reasoning of Purnell to be inaccurate. In Purnell, the
court issued an initial restitution order and then held another hearing at the
request of the State two months after the case had been concluded. Id at. ¶
3. The victim testified and introduced several medical bills “that were
unverified as the amount actually owed.” Id. Based upon this evidence and
testimony, the court increased the restitution award by more than 500%. Id.
On appeal, the case was reversed, not because of the trial court’s reliance
upon “unverified” medical bills, but due the trial court’s lack of jurisdiction
to reconsider its prior award. Id. at ¶ 6
{¶11} Further, other cases have affirmed orders of restitution based
upon “unauthenticated” records, coupled with the victim’s testimony as to
1
The amounts listed by the four medical providers actually total $50,141.17; however, because the State
has not raised an issue with respect to this slight error, which actually favors Appellant, we see no need to
address it.
Highland App. No. 13CA6 8
the amounts owed. See State v. Riley, 184 Ohio App.3d 211, 2009-Ohio-
3227, 920 N.E.2d 388, ¶ 22 (court accepted victim’s testimony regarding
medical and hospital bills without any indication they had been
authenticated in any manner aside from the victim’s explanation of the
amounts owed.); In re Hatfield, 4th Dist. Lawrence No. 03CA14, 2003-
Ohio-5404, ¶ 9 (court accepted theft victim’s testimony alone to establish
economic loss, without resort to documentary evidence). Thus, in light of
the foregoing, we conclude that the record contains competent, credible
evidence to support the trial court’s order of restitution.
{¶12} However, our inquiry does not end here. Though not a
separately argued assignment of error, Appellant seems to argue in the body
of his brief that he was entitled to a separate hearing on the issue of
restitution. First, we note that it appears that the transcript in the record was
just that, a hearing on the issue of restitution. Medical billing statements
were introduced into evidence. Both the victim and his wife testified as to
the amounts of the bills. Appellant’s counsel was permitted to cross
examine both of them with respect to the outstanding amounts of the bills
and also with respect to the issue of insurance coverage. When offered the
opportunity to introduce evidence on the issue, Appellant’s counsel advised
Highland App. No. 13CA6 9
the court that they had no evidence to present, but simply objected to the use
of the billing records.
{¶13} A court only need to hold a hearing on restitution if the
offender or victim disputes the amount. State v. Johnson, 4th Dist.
Washington No. 03CA11, 2004-Ohio-2236, ¶ 10. Here, once the amount of
the requested restitution was entered into the record, Appellant stated that he
did not concede to the accuracy of the amount. However, he did not, at that
time, even request a hearing. Nonetheless, based upon this response, the
court went on to essentially hold a hearing on the issue of restitution, as
discussed above. We believe that in this situation, the trial court adequately
afforded Appellant an opportunity to be heard on the issue of restitution and
we see no error on the part of the trial court in failing to hold a later, separate
hearing. In light of the foregoing, Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
{¶14} In his second assignment of error, Appellant contends that the
trial court erred in ordering restitution without making a determination of his
present and future ability to pay the ordered amount. Before imposing a
financial sanction under R.C. 2929.18, the court “shall consider the
offender's present and future ability to pay the amount of the sanction * * *.”
Highland App. No. 13CA6 10
R.C. 2929.19(B)(5). “ ‘[W]hen a trial court has imposed a financial sanction
without even a cursory inquiry into the offender's present and future means
to pay the amount imposed, the failure to make the requisite inquiry is an
abuse of discretion.’ ” State v. Bulstrom at ¶ 15; quoting State v. Rizer at ¶
49 and State v. Rickett, 4th Dist. Adams No. 07CA846, 2008-Ohio-1637, ¶
4.
{¶15} “ ‘Although preferable for appellate review, a trial court need
not explicitly state in its judgment entry that it considered a defendant's
ability to pay a financial sanction. Rather, courts look to the totality of the
record to see if this requirement has been satisfied.’ ” Rizer at ¶ 49; quoting
State v. Smith, 4th Dist. Ross No. 06CA2893, 2007-Ohio-1884, ¶ 42. Thus,
“ ‘[i]f the record shows that the court considered a presentence investigation
report that provides pertinent information about the offender's financial
situation and his ability to pay the financial sanction, it has met its obligation
under R.C. 2929.19(B)(5).’ ” State v. Bulstrom at ¶ 15; quoting State v.
Petrie, 4th Dist. Meigs No. 12CA4, 2013-Ohio-887, ¶ 5.
{¶16} Here, although the trial court never explicitly stated that it
considered Appellant’s present and future ability to pay restitution, as set
forth above, the trial court did state that it considered a presentence
investigation report when it imposed restitution. The presentence
Highland App. No. 13CA6 11
investigation report reviewed by the trial court indicated that Appellant was
a twenty-seven-year-old, physically and mentally healthy, high school
graduate. Although the report indicated Appellant was unemployed and had
been unemployed since 2008, it also included Appellant’s employment
history, which indicated Appellant was capable of various types of physical
labor. Further, Appellant’s reasons for leaving his prior jobs seemed to be of
his own volition, rather than an inability to work.
{¶17} Because the presentence investigation contains pertinent
information about Appellant’s financial situation, the totality of the record
supports the conclusion that the trial court sufficiently considered his present
and future ability to pay restitution. Thus, Appellant’s second assignment of
error is overruled. Having overruled both of Appellant’s assignments of
error, the decision of the trial court is affirmed.
JUDGMENT AFFIRMED.
Highland App. No. 13CA6 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: __________________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.