State v. OlsonState v. Olson
FROELICH, J.
{¶ 1} James Olson appeals from orders of restitution imposed by the Montgomery County Court of Common Pleas.
{¶ 2} In 2011, Olson pled guilty to one count of aggravated theft (from the Fred J. Miller Corporation) and pled no contest to one count each of grand theft (from the
{¶ 3} On July 7, 2011, the trial court sentenced Olson to an aggregate term of two years in prison and ordered that he pay restitution to each of the three victims as follows: $115,672.11 to the Fred J. Miller Corporation, $49,139.78 to the Miamisburg Color Guard, and $2,384.34 to the Mid-East Performance Association.1 On appeal, Olson challenges only the court‘s orders of restitution.
{¶ 4} For the following reasons, the judgment of the trial court with respect to restitution owed to the Fred J. Miller Company will be affirmed in part and reversed in part; with respect to Miamisburg Color Guard, the order of restitution will be vacated, and the matter will be remanded for further proceedings; and with respect to the Mid-East Performance Association, the order of restitution will be affirmed.
{¶ 5} Olson raised three assignments of error on appeal.
{¶ 6} Olson‘s first assignment of error states:
{¶ 7} The trial court ordered Olson to pay $115,672.11 in restitution to the Fred J. Miller Corporation (“FJM“). Of this amount, $58,411.41 was related to his theft, and $57,261 was for the reimbursement of accounting and legal expenses incurred by the company as a result of his theft. The company received an additional $100,000 in compensation for the theft from its insurance company; the amount of restitution ordered reflects the company‘s loss attributable to the theft exceeding $100,000.2
{¶ 8} When seeking restitution, the victim has the burden to prove by a preponderance of the evidence the amount of restitution sought from the offender. State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372 (2d Dist.), ¶ 72.
{¶ 9} Olson served as chief operating officer for FJM for several years. The
{¶ 10} Olson admitted that he had misappropriated $52,161.41 from FJM (over and above the $100,000 covered by the company‘s insurance). The State claimed, however, that beyond the $52,161.41 Olson admitted to taking, he had taken an additional $6,250, which correlated to five specific checks that he had written to himself, to “cash“, or to the Miamisburg Winter Guard (a division of the Miamisburg Color Guard). Olson testified that these checks had been for sponsorships, expenses, or other legitimate purposes. The State presented evidence from the president of FJM that the five checks in question had been unauthorized, did not “mak[e] sense” in the context of other expenditures, or were listed as being for activities (such as sponsorships) in which the company did not engage. The trial court implicitly concluded that the disputed checks had not been authorized or for legitimate purposes, and it included these amounts in its order of restitution ($52,161.41 + $6,250 = $58,411.41).
{¶ 11} The credibility of the evidence was for the trial court to determine, because it heard the evidence directly. State v. Myles, 2d Dist. Montgomery No. 25297, 2013-Ohio-2227, ¶ 21. Conflicting evidence was presented. We cannot conclude that the trial court abused its discretion in weighing the evidence as it did or crediting FJM‘s
{¶ 12} Olson also argues that the trial court erred in including items such as accounting and attorney fees, which were incurred by FJM as a result of his theft, in the amount of restitution he was ordered to pay.
{¶ 13} The amount a trial court is authorized to order as restitution can be determined by reading
R.C. 2929.18(A)(1) * * * limits the amount of restitution to the amount of the economic detriment suffered by the victim as a direct and proximate result of the commission of the offense. And although the statute [R.C. 2929.18(A)(1) ] allows the court to base the amount of restitution on an amount recommended by the victim or the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, it does not provide restitution for the costs of preparing such a report. * * *
{¶ 14} In Lalain, the court rejected the victim-company‘s claim for restitution
{¶ 15} The executive vice-president of FJM testified that, after Olson‘s thefts were discovered, the company hired an accounting firm to review and correct the company‘s financial statements for the two previous years, hired a different accounting firm to determine the amount of the theft, and hired a law firm to pursue a civil law suit against Olson. The costs of these services were included on State‘s Exhibit 13 and totaled $57,261. The trial court included these amounts in its order of restitution, specifying $37,185 for accounting fees and $20,076 for legal fees. Because the supreme court held in Lalain that costs associated with documenting a loss and/or pursuing legal action against an offender may not be included in an order of restitution, we must conclude that the trial court erred in including the amounts associated with FJM‘s accounting and legal fees in its order of restitution.
{¶ 16} When it ordered restitution to FJM in the amount of $115,672.11, the trial court improperly included $57,261 that was attributable to accounting and legal fees. Thus, the trial court‘s award will be affirmed in part and reversed in part, such that the amount of restitution to FJM is $58,411.41, the same amount discussed in ¶ 7, supra ($115,672.11 - $57,261 = $58,411.41).
{¶ 18} The second assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION ON ITS JULY 7TH TERMINATION ENTRY, WHEN ORDERING THE DEFENDANT-APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $49,178.78 TO THE MIAMISBURG COLOR GUARD/WINTER GUARD.
{¶ 19} Olson contends that the order of restitution to the Miamisburg Color Guard (“MCG“) in the amount of $49,178.78 was unsupported by the evidence.
{¶ 20} Olson was the director of the MCG. MCG had one operating account, on which Olson was not an authorized signatory; to obtain reimbursement from that account, the president or treasurer would have to be involved. Olson opened a second MCG account, on which he was the only signatory. The funds deposited in that account came primarily from an international organization, Winter Guard International, and represented MCG‘s share of ticket sales from competitions; one additional check from Gateway High School was also deposited into the account. Conflicting evidence was presented as to whether the officers of the MCG knew of the existence of the second account.
{¶ 21} Detective Matthew Scott Moore of the Miami Township Police Department investigated Olson‘s thefts. Moore presented a list of checks from Winter Guard International that had been deposited into MCG‘s “shadow account” between 2002 and 2009. These checks totaled $46,305.95.
{¶ 22} Detective Moore testified that he had MCG “representatives, being Laura
{¶ 23} Olson testified that no MCG funds had been misappropriated and that the funds in the second account were used for MCG expenses “that were outside the budget.” He also asserted that he had been entitled to “the majority” of the money that was missing from the MCG account as reimbursement for expenses.
{¶ 24} No specific evidence was offered by either party as to whom the funds in this account were distributed.
{¶ 25} Olson also deposited a $2,600 check from Gateway High School into the second MCG account, bringing the total deposited into the account to $48,905.95. According to Detective Moore, the Gateway check was to cover Gateway‘s purchase of “guard tarps and flags” from MCG. Olsen testified that, of the $2,600, $1,800 was owed to
{¶ 26} Detective Moore testified that, by his calculation, Olson‘s handling of the Gateway check and his reimbursement of MCG using an $1,800 check from FJM constituted a theft of $4,400 ($2,600 from MCG and $1,800 from FJM).
{¶ 27} Several current and former officers of the MCG testified that they were unsure whether Olson owed any money to the organization; others testified that he did not owe the organization any money and that, in fact, MCG owed him money. The treasurer and past-president of MCG testified that the organization‘s “books are balanced” for the period in question and that she “did not find any mishandling of any funds.” Some of the past officers testified that they had known of the existence of the second account opened by Olson for MCG, but others testified that they had not known of the second account. These witnesses testified that, to their knowledge, Olson had used the proper expense reimbursement procedure of submitting receipts and getting payments through the MCG operating account. Some of the MCG officers testified that Olson did not always seek reimbursement for his expenses and advanced monies to MCG by paying for things on his credit card if the group did not have the funds to cover an expense at the time it was incurred. Several MCG representatives also testified that the organization still owed Olson money for expenses that had not been reimbursed.
{¶ 28} The trial court ordered Olson to pay restitution to the MCG in the amount of $48,905.05. This number is based on the total deposits originated with Winter Guard
{¶ 29} Olson contends that the trial court erred in awarding an “egregious amount of restitution” to MCG, when the victims of the alleged theft claimed that the organization was not owed any money. The State argues that the trial court could have found the witnesses from MCG unreliable, because some of them were friends of Olson or could not fully explain why he had handled money the way he did. The State further asserts that, because the State‘s witnesses and the defense witnesses came to different conclusions about what was owed, the trial court could have reasonably resolved the conflicts in the evidence in favor of the State.
{¶ 30} Detective Moore‘s documentary evidence focused entirely on the deposits into MCG‘s second account; no documentary evidence was presented as to how the funds were expended. Although Moore testified that Olson spent the funds on “personal needs, paying off credit cards,” and payments on a car, Moore also acknowledged that Olson had incurred legitimate expenses related to MCG. The officers of the organization testified that Olson often paid these expenses upfront, using his credit cards, and sought reimbursement when the organization had the money to pay him. The State did not refute the MCG officers’ or Olson‘s assertions that he used his personal credit cards for MCG expenses.
{¶ 31} Considering this evidence, including the acceptance by all parties that Olson had incurred some “significant legitimate expenses” on his credit cards on behalf of MCG, the MCG officers’ assertions that Olson did not owe the organization any money, and the investigation‘s inability to provide any specific evidence as to how to determine which expenditures from the second account were personal and which related to business, Moore‘s
{¶ 32} Further, the conclusion that Olson‘s handling of the Gateway High School check amounted to a theft of the full amount was incorrect. It was undisputed that Olson deposited a check for $2,600 from Gateway into his MCG account, and then wrote a check to MCG for $1,800 on FJM‘s account to reimburse MCG for the equipment sold to Gateway. In other words, even if Olson misappropriated from MCG the $2,600 attributable to the check from Gateway, MCG received $1,800 from FJM related to that transaction; at most, MCG was deprived of the use of the balance, or $800, and the additional $1,800 was stolen from FJM. MCG was not entitled to restitution of $2,600 for this transaction, because it had not suffered a loss in that amount. Moreover, the unauthorized $1,800 check written by Olson from FJM to MCG was presumably included in the restitution owed to FJM. The court erred in concluding that the full amount of the Gateway check should be included in the calculation of the amount of restitution owed to MCG.
{¶ 33} As stated above, the victim had the burden of proof on its entitlement to restitution. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372 (2d Dist.). The amount of restitution must be supported by competent, credible evidence in the record from which the court can discern the amount of restitution to a reasonable degree of certainty. State v. Sommer, 154 Ohio App.3d 421, 2003-Ohio-5022, 799 N.E.2d 559, ¶ 12 (5th Dist.). When the award is not supported by such evidence, it is an abuse of discretion. State v. Alcala, 6th Dist. Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 30. See also State v. Gears, 135 Ohio App.3d 297, 733 N.E.2d 683 (6th Dist.1999).
{¶ 35} The second assignment of error is sustained; the order of restitution to MCG will be vacated and the matter will be remanded for a determination of the amount of restitution, if any, due MCG.
{¶ 36} Olson‘s third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION ON ITS JULY 7TH TERMINATION ENTRY, WHEN ORDERING THE DEFENDANT-APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $2,384.34 TO MID-EAST PERFORMANCE ASSOCIATION.
{¶ 37} Olson served as the treasurer for MEPA, a non-profit pageantry association. Detective Moore testified that checks Olson had written on FJM‘s accounts were
{¶ 38} Moore‘s testimony focused on two checks, although the sum of those checks does not directly correlate to the amount Moore claimed Olson stole from MEPA. State‘s Exhibit 9 was a check (# 3654) written from MEPA‘s account to Olson for $1,500, signed by Olson, with the word “Taxes” in the memo section. Detective Moore testified, based on his conversations with Parker, that Exhibit 9 could not have been for the payment of taxes because the organization had 501(c)(3)3 status. State‘s Exhibit 10 was a MEPA check (# 3676), written to Olson for $2,000, signed by Olson, with the notation “MEPA Exp” in the memo section. Parker indicated to Moore that there “would never be an even expense like that for $2,000,” and that the issuance of this check had not been approved.
{¶ 39} James Miller,4 past president and vice-president of MEPA during the time
{¶ 40} Although Parker‘s conclusions that MEPA check numbers 3654 and 3676 were unauthorized could have been rejected by the court, we cannot conclude that the trial court abused its discretion in weighing the evidence as it did.
{¶ 41} The third assignment of error is overruled.
{¶ 42} The portion of the trial court‘s judgment that ordered restitution to the Fred J. Miller Corporation will be affirmed in part and reversed in part. The portion ordering restitution to the Miamisburg Color Guard will be vacated, and the portion ordering restitution to the Mid-East Performance Association will be affirmed. The matter will be remanded to the trial court for further proceedings consistent with this opinion.
FAIN, P.J. and WELBAUM, J., concur.
Notes
Olson initially filed a notice of appeal from the last of these entries, which was filed on July 27, 2011. The State moved to dismiss that appeal, arguing that the July 7 order was the final appealable order, and the trial court had no authority to reconsider or modify the amount of restitution after the July 7 order was filed. We agreed with the State and dismissed Olson‘s initial appeal. State v. Olson, 2d Dist. Montogmery No. 24780, Decision & Entry (July 30, 2012). Thereafter, we granted Olson‘s motion for delayed appeal from the July 7, 2011 entry. State v. Olson, 2d Dist. Montgomery No. 25452, Decision & Entry (Nov. 29. 2012).