State v. Bulstrom , 2013 Ohio 3582 ( 2013 )

[Cite as State v. Bulstrom, 2013-Ohio-3582.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, : Case No. 12CA19
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
JERRED BULSTROM, :
: RELEASED 08/14/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Timothy Young, State Public Defender, and Stephen A. Goldmeier, Assistant State
Public Defender, Columbus, Ohio, for appellant.
Keller J. Blackburn, Athens County Prosecutor, and Merry M. Saunders, Athens County
Assistant Prosecutor, Athens, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} After pleading guilty to receiving stolen property, grand theft, and breaking
and entering, Jerred Bulstrom appeals the restitution portion of his sentence. First, he
contends the court failed to consider his present and future ability to pay this sanction.
However, before the court imposed the sanction, it stated that it had reviewed the
record. And because the record contains a presentence investigation report with
pertinent financial information about Bulstrom’s ability to pay, we reject this argument.
{¶2} Next, Bulstrom claims the record does not contain competent, credible
evidence to support the amount of the restitution order imposed for stolen drag racing
parts. However, the record contains a restitution report that supports the amount of the
award. The trial court was free to rely on this evidence and reject Bulstrom’s contention
that the victim should only receive the scrap value of the parts. Therefore, we reject this
Athens App. No. 12CA19 2
argument and affirm the trial court’s judgment.
I. Facts
{¶3} The Athens County grand jury indicted Bulstrom on one count each of
receiving stolen property, grand theft, and breaking and entering. He pleaded guilty to
the charges, and the court ordered a presentence investigation report. At the first
sentencing hearing, the victim, Thomas Fetherolf testified about the drag racing parts
Bulstrom took from him. He testified that at the very least four engines or blocks were
missing from the garage where he stored parts. Some of the blocks had added value
because he paid to have them converted into race motors. Fetherolf claimed this added
value would not be obvious “unless you knew what you were looking for.”
{¶4} The court continued the matter in part to give Fetherolf an opportunity to
produce an itemization of stolen parts and their value. Fetherolf told the court he could
contact Sherman Gerlach1 in Letart, West Virginia because Gerlach used to do machine
work for him. Fetherolf said he would ask Gerlach to “write me an estimate to build me
a motor the way my motor was built before. At least one of my motors. One motor.”
{¶5} After an additional sentencing hearing, the court issued an entry on June
5, 2012, stating in part that “[r]estitution shall be ordered to Tom Fetherolf in amount yet
to be determined.” Although Fetherolf was not present at the subsequent restitution
hearing on June 25, 2012, the State told the court he wanted $576.00 in lost wages
from previously coming to court. The State also submitted a “Restitution Report” from
Stacy Crook, a Victim Advocate. The report contains two communications sent to
Crook, one of which is a four-page fax. Three of the four pages have “GERLACHS
1
In the hearing transcript, this name is spelled “Gerlock.” However, it appears to be misspelled as the
restitution report we discuss below contains an estimate from “Gerlachs” Garage.
Athens App. No. 12CA19 3
GARAGE,” an address in Letart, West Virginia, and a phone number printed at the top.
The first of these pages is titled “Engine Parts List.” It contains a list of quantities, part
numbers, part descriptions, and dollar amounts. The second “GERLACHS GARAGE”
page is a continuance of this list. The third “GERLACHS GARAGE” page is titled “Cyl
Block – Cyl Heads & machine shop work.” It contains a list of quantities, part numbers,
what appears to be a description of machine shop work performed, and dollar amounts.
The total cost of the listed parts and machine work is $9,663.20.
{¶6} The court asked defense counsel if he objected to the court considering
the restitution report as evidence. Counsel responded, “As to what they’ve claimed are
missing [sic], I think it would be evidence of that.” The court responded, “Okay if you’re
okay with that. I mean it hasn’t come in through a witness or anything like that but this
is uh, a restitution type of thing.” The court later said, “[I]f there is no objection I’ll admit
[the restitution report] into evidence as State’s exhibit 1.” The court again asked
defense counsel if he was “okay with that?” Counsel responded, “No objection as to
that’s what they are claiming is missing your honor.”
{¶7} In its presentation, the defense called Donnie Osborne, an employee at
McKee Auto Parts in New Marshfield, Ohio as a witness. Osborne testified that
Bulstrom sold motor parts to McKee for $368.50, and the defense introduced into
evidence receipts from McKee for that amount. Bulstrom got paid by the pound for the
parts. Osborne testified that the parts looked like junk to him.
{¶8} Subsequently, the court issued an entry that states in part:
At a February 27 hearing, Fetheroff [sic] described the drag racing
equipment which the Defendant had stolen. * * * He testified that engine
blocks, heads, pistons and numerous items associated with drag racing
were stolen. Fetheroff [sic] explained that these items were machined
Athens App. No. 12CA19 4
which added value to them.
Fetheroff [sic] testified that a person who is not knowledgeable
about machined drag racing equipment may not recognize the value of
these items. He stated that people who operate junk yards pay based on
the weight and not the quality of the items which they purchase. Following
the hearing, Fetheroff [sic] provided the State with a list and value of the
stolen items in the sum of $9,663.00. (State Exh. 1).
***
* * * Fetheroff’s [sic] testimony was credible. He documented the
value of the items stolen. Also, he is entitled to reimbursement in the sum
of $576.00 as his expenses associated with his court appearance.
{¶9} The court ordered Bulstrom to pay $10,239.20 in restitution to Tom
Fetherolf ($9,663.20 for parts and machine work + $576.00 for lost wages) within 12
months. This appeal followed.
II. Assignments of Error
{¶10} Bulstrom assigns the following errors for our review:
1. The trial court erred when it imposed an amount of restitution without
competent, credible evidence of the amount of restitution owed. (June
28, 2012 Restitution Entry.)
2. The trial court abused its discretion in imposing restitution without
making a determination of Mr. Bulstrom’s ability to pay. (June 28,
2012 Restitution Entry.)
III. Restitution
{¶11} In both of his assigned errors, Bulstrom challenges the restitution portion
of his sentence. In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, the Supreme Court of Ohio announced the standard for appellate review of felony
sentences. Generally, we employ a two-step analysis. First, we “must examine the
sentencing court’s compliance with all applicable rules and statutes in imposing the
sentence to determine whether the sentence is clearly and convincingly contrary to law.”
Athens App. No. 12CA19 5
Kalish at ¶ 4. If the sentence is not clearly and convincingly contrary to law, we review
the trial court’s sentence for an abuse of discretion. Id. The term “abuse of discretion”
implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶12} Here, Bulstrom does not argue that the court’s restitution award is clearly
and convincingly contrary to law. Instead, he argues that the court abused its discretion
in various ways when it imposed the order.
A. Offender’s Ability to Pay
{¶13} For ease of analysis we address Bulstrom’s assignments of error out of
order. In his second assignment of error Bulstrom contends the court erred when it
ordered him to pay restitution without making a determination of his ability to pay.
Bulstrom suggests his inability to pay is demonstrated by the fact that the court found
him indigent and appointed counsel for him.
{¶14} 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. 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 * * *.” 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. Rizer, 4th Dist. No. 10CA3, 2011-Ohio-5702, ¶ 49,2 quoting
State v. Rickett, 4th Dist. No. 07CA846, 2008-Ohio-1637, ¶ 4.
2
In Rizer, we analyzed former R.C. 2929.19(B)(6). Because the language of that provision now appears
verbatim in R.C. 2929.19(B)(5), we find the principles in Rizer regarding restitution apply equally to the
current version of R.C. 2929.19(B)(5).
Athens App. No. 12CA19 6
{¶15} Our analysis is sometimes made more difficult because “ ‘[a]lthough
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. No. 06CA2893, 2007-Ohio-1884, ¶ 42. “If 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. Petrie,
4th Dist. No. 12CA4, 2013-Ohio-887, ¶ 5.
{¶16} Here, the trial court never explicitly stated that it considered Bulstrom’s
present and future ability to pay restitution. Nor did the court explicitly state that it
considered a presentence investigation report (“PSI”) when it imposed restitution.
However, in one sentencing entry the court stated that it “considered the record” when it
sentenced Bulstrom and stated that “[r]estitution shall be ordered to Tom Fetherolf in
amount yet to be determined.” In a subsequent entry, the court set the amount of
restitution.
{¶17} The “record” includes a PSI that contains information about Bulstrom’s
age, education, military service, physical and mental health, and employment history.
Furthermore, the PSI describes his “financial condition,” detailing his income and
expenses. Because the PSI contains pertinent information about Bulstrom’s financial
situation, the totality of the record supports the conclusion that the trial court sufficiently
considered Bulstrom’s present and future ability to pay restitution. And contrary to what
Bulstrom suggests, the fact that the court found him indigent and appointed counsel for
Athens App. No. 12CA19 7
him did not preclude the court from finding he had the ability to pay the sanction in the
future. See State v. Williams, 4th Dist. No. 08CA3, 2009-Ohio-657, ¶ 25. Accordingly,
we overrule the second assignment of error.
B. Amount of Restitution
{¶18} In his first assignment of error, Bulstrom claims the record does not
contain competent, credible evidence to support the amount of the restitution order.
Although he phrases the assignment of error broadly, his argument is narrower, i.e.,
Bulstrom only challenges the amount of the restitution order for the stolen parts. He
does not specifically challenge the amount of the order for the victim’s lost wages.
Therefore, we do not consider that issue. See App.R. 16(A)(7).
{¶19} R.C. 2929.18(A)(1) provides that: “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.”
“ ‛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.’ ” Rizer, 4th Dist. No. 10CA3, 2011-Ohio-5702, at ¶ 53,
quoting State v. Johnson, 4th Dist. No. 03CA11, 2004-Ohio-2236, ¶ 11.
{¶20} We recognize that both Rizer and Johnson contain broader language that
might be interpreted to require courts to apply the rules of evidence to restitution
hearings. See Rizer at ¶ 53 and Johnson at ¶ 10. However, Evid.R. 101(C)(3) makes it
Athens App. No. 12CA19 8
clear that it excludes the rules of evidence from sentencing proceedings. Thus, due
process, rather than strict application of the rules of evidence, controls what proofs the
court can consider in determining restitution.
{¶21} Bulstrom complains that the only evidence of Fetherolf’s losses “came
from [Fetherolf’s] testimony and the self-serving documentation that he submitted to the
State.” (Appellant’s Br. 4). Bulstrom claims Fetherolf “couldn’t say for sure what parts
were missing or taken.” (Appellant’s Br. 4). He argues that Fetherolf testified the stolen
parts added up to “ ‘at least’ four engines” but could not “specifically identify which parts
of those engines were taken, as the engines were disassembled.” (Appellant’s Br. 4-5).
In addition, Bulstrom complains that Fetherolf did not submit receipts for the parts or
labor invested into those parts. Bulstrom argues that Fetherolf had an incentive to
inflate his losses, and Fetherolf cannot be deemed credible without this type of
documentation. And Bulstrom suggests that the parts could not be as valuable as
Fetherolf claimed because Fetherolf did not bother to insure them.
{¶22} In addition, Bulstrom complains that the portion of the restitution report
that lists values for parts and labor does not “bear any signatures or certifications” and
is not “a receipt, an inventory, or an invoice[.]” (Appellant’s Br. 5). He contends that
Fetherolf “described [the list] merely as a recreation of what engines like the ones he
asserts were taken would cost to build.” (Appellant’s Br. 5). Bulstrom describes the list
as “nothing more than Mr. Fetherolf’s uncorroborated assertions as to the contents of
his garage and a projection of what it would cost to recreate the four engines he was
attempting to build.” (Appellant’s Br. 5).
{¶23} In addition, Bulstrom claims that he presented credible, objective evidence
Athens App. No. 12CA19 9
through Osborne’s testimony that shows the “true value” of the stolen parts was only
$368.50. (Appellant’s Br. 5). Bulstrom describes Osborne as a “professional that deals
with scrapped auto parts” and highlights Osborne’s testimony that the parts looked like
junk to him. (Appellant’s Br. 5). Bulstrom points to the receipts from McKee as
additional proof of the parts’ low value.
{¶24} Initially, we reject Bulstrom’s suggestion that the court had to accept
Osborne’s testimony on the value of the stolen parts because he is “objective” and a
“professional.” The court was free to believe the victim’s testimony that the parts had
value beyond their weight. And the court was free to conclude Osborne lacked the
knowledge to identify the value in machined drag racing equipment. See Harrington v.
Harrington, 4th Dist. No. 08CA6, 2008-Ohio-6888, ¶ 11, quoting In re A.E., 2d Dist. No.
2006 CA 153, 2008-Ohio-1864, ¶ 15 (“ ‘The factfinder may accept or reject all, part, or
none of the testimony of each witness.’ ”).
{¶25} We also disagree with Bulstrom’s contention that the victim testified he
could not say for sure what parts were taken. Fetherolf testified that he had been racing
since 1990 so he had “shelves upon shelves of parts.” Fetherolf suggested that many
things may have been taken, but he was “just going by * * * what I can remember * * *
was actually taken.” And Fetherolf never stated he could not “specifically identify which
parts of [the] engines were taken, as the engines were disassembled.” Instead, he
testified that at least four complete motors were taken but simply alerted the court to the
fact that some of the engines were disassembled at the time Bulstrom took them and
“just needed put back together basically.”
{¶26} As to Bulstrom’s remaining arguments, R.C. 2929.18(A)(1) does not
Athens App. No. 12CA19 10
provide that a theft victim can only prove his losses through receipts for the stolen
items. In fact, the statute specifically provides that the court may base the amount of
restitution on “estimates” and “other information” for replacing property. That is exactly
what the victim provided in this case. He told the court he would contact his mechanic
and have him prepare an estimate on the cost to replace at least one of the stolen
motors. The State introduced into evidence a restitution report that contains a detailed
estimate for $9,663.20 from Gerlachs Garage. Defense counsel never complained that
the estimate lacked “signatures or certifications.” In fact, counsel made no objection to
the restitution report and agreed that: “As to what they’ve claimed are missing [sic], I
think it would be evidence of that.” If in fact counsel wished to preserve an objection
concerning valuation, he should have expressly done so. In light of the fact that he did
not, we fail to see why the court could not rely on the estimate in the report to set the
amount of the restitution award for stolen parts at $9,663.20.
{¶27} The fact that Fetherolf had an incentive to inflate his losses to receive a
higher amount of restitution does not make him so incredible that the court had to
disregard his testimony and documentary evidence. And the court did not have to
disregard the estimate Fetherolf provided simply because he did not insure his parts.
The fact that someone does not insure his property does not prove it is worthless.
{¶28} Because the record contains credible evidence to support the restitution
award for the stolen parts, we overrule the first assignment of error.3 And having
overruled both assignments of error, we affirm the judgment below.
JUDGMENT AFFIRMED.
3
In doing so, we note the appellant has not raised any issue concerning the interplay between the
admission of hearsay evidence and the right of confrontation.
Athens App. No. 12CA19 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Court of Common Pleas 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.
McFarland, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
William H. Harsha, 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.