[Cite as State v. Olson, 2013-Ohio-4403.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25452
v. : T.C. NO. 10CR3369
JAMES OLSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
: ..........
OPINION
Rendered on the 4th day of October , 2013.
..........
CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 2000, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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 2
Miamisburg Color Guard) and theft (from the Mid-East Performance Association); he was
found guilty of all three offenses. The plea agreement provided for the payment of
restitution, but not the specific amounts. The trial court conducted a hearing on restitution
before imposing its sentence.
{¶ 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:
1 Subsequent to the court’s July 7, 2011 termination entry, in which these amounts of restitution were imposed, the trial court filed two additional entries in which it modified the amounts of restitution. The entries of July 14 and 27 slightly lowered the restitution amounts due to Fred J. Miller Corp. and Miamisburg Color Guard, without explanation. 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). [Cite as State v. Olson, 2013-Ohio-4403.] THE TRIAL COURT ABUSED ITS DISCRETION ON ITS JULY 7TH
TERMINATION ENTRY, WHEN ORDERING THE
DEFENDANT-APPELLANT TO PAY RESTITUTION IN THE AMOUNT
OF $115,672.11 TO THE FRED J. MILLER CORPORATION.
{¶ 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. R.C.
2929.28(A)(1) grants broad discretion to the trial court to “base the amount of restitution it
orders” on new information presented at the restitution hearing, which can be from the
victim, the offender, a presentence investigation report, estimates, receipts, or “any other
information.” We review a trial court’s order of restitution under an abuse of discretion
standard. State v. Johnson, 2d Dist. Montgomery No. 24288, 2012-Ohio-1230, ¶ 11; State
v. Naylor, 2d Dist. Montgomery No. 24098, 2011-Ohio-960, ¶ 22.
{¶ 9} Olson served as chief operating officer for FJM for several years. The 2 In 2004, R.C. 2929.18(A)(1), regarding the imposition of financial sanctions, was amended to delete a provision allowing reimbursement “to third parties for amounts paid to or on behalf of the victim * * * for economic loss resulting from the offense.” See State v. Martin, 1st Dist. Hamilton No. C-110204, 2012-Ohio-2441, ¶ 6-7. Thus, Olson was not ordered to reimburse FJM’s insurance company for that payment. 4
company manufactured uniforms for marching bands and their auxiliary units. Olson was
accused of using a signature stamp of the company’s owner, Fred J. Miller, to issue
unauthorized checks to the Mid-East Performance Association (“MEPA”), a non-profit
organization of which he was the treasurer. Olson then issued checks from MEPA to
himself. He was also accused of issuing some unauthorized checks from FJM to himself or
to “cash.”
{¶ 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 5
president’s testimony regarding the disputed checks.
{¶ 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) (authorizing a trial court to impose restitution) in
conjunction with R.C. 2929.01(L)’s definition of “economic loss.” State v. Lalain,
Ohio St.3d , 2013-Ohio-3093, N.E.2d , ¶ 20-22. R.C. 2929.01(L) defines
economic loss as “any economic detriment suffered by a victim as a direct and proximate
result of the commission of an offense. * * * ‘Economic loss’ does not include
non-economic loss or any punitive or exemplary damages.” Based on this definition, the
supreme court recently concluded that an award of restitution is limited as follows:
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. * * *
Lalain at ¶ 22.
{¶ 14} In Lalain, the court rejected the victim-company’s claim for restitution 6
based on “time spent by its employees in support of this case” and “to provide the County
Prosecutor’s Office with an accurate valuation of the property that was recovered.” Id. at ¶
25. (The valuation issues in Lalain were particularly difficult, because the case involved
the theft of intellectual property.) The court held that these expenditures were not the
“direct and proximate result” of the theft offense, but were “consequential costs incurred
subsequent to the theft to value the property that had been taken and later returned.” Id.
{¶ 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). 7
{¶ 17} The first assignment of error is sustained in part and overruled in part.
{¶ 18} The second assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION ON ITS JULY 7TH
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 8
Coleman, go back through the past records,” and the Winter Guard International checks that
were deposited into the account were “unknown to them.” (Moore identified Laura
Coleman as the treasurer of MCG, but she did not testify.) Detective Moore presented a list
and copies of checks that were deposited into the MCG “shadow account” from Winter
Guard International and a copy of the Gateway check; he did not provide comparable
documentation of how the funds deposited into the “shadow account” were spent. He
testified, however, that Olson used the shadow account “for personal needs, paying off his
credit cards, * * * made payments to his American Express card. He also made payments to
BMW Financial for a vehicle.” Detective Moore acknowledged that Olson incurred
“significant legitimate expenses related to the color guard” for which he was entitled to
payment from MCG. He also acknowledged that some members of the MCG board
disagreed with his assertion that Olson stole any money from MCG.
{¶ 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 9
MCG for the materials he sold, and $800 was a fee owed to him for “services rendered.”
Olson deposited the check from Gateway into the second account, then wrote a $1,800 check
from FJM to MCG in payment for the equipment.
{¶ 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 10
International and Gateway High School into the MCG account opened by Olson.
{¶ 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 11
conclusory assertion that Olson used the entire amount deposited into the account for his
personal expenses was not supported by the facts, and it appears internally inconsistent.
{¶ 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). 12
{¶ 34} In this case, we are presented with an unusual situation in which the
officers and former officers of the alleged victim organization, MCG, all testified that they
either did not know whether Olson had misappropriated funds or did not believe that he had;
the representatives of MCG (the victim under the restitution statute) did not assert that the
organization was entitled to any restitution. For his part, Olson argued that he had not
misappropriated any funds from MCG, although he pled no contest to grand theft from the
organization. The State attempted to prove the organization’s loss on the organization’s
behalf, through Detective Moore’s testimony, but Moore overstated the amount owed and
did not provide any basis for his conclusions about Olson’s expenditures by which this court
– or the trial court – could independently evaluate those conclusions. Under these
circumstances, we must conclude that the trial court abused its discretion in adopting the
amount of restitution suggested by the State.
{¶ 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:
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 13
“funnel[ed] through the MEPA” while Olson was treasurer, “basically laundering the FJM
money”; Olson then wrote checks from MEPA to himself. Moore’s conclusions were
based, in part, on conversations with Tim Parker, the president of MEPA, who was
unavailable to testify at the restitution hearing. Detective Moore testified to having
reviewed with Parker “checks that should not have been issued out of [MEPA’s] account”;
the total amount of those checks was $44,184.44. The majority of these funds, or $41,800,
was traceable to the theft from FJM (and included in restitution to FJM). Moore concluded,
however, that the balance of the checks written from the account, or $2,384.44, had been
MEPA’s money.
{¶ 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
3 Section 501(c)(3) of the Internal Revenue Code, or 26 U.S.C. 501(c)(3). 4 Two witnesses with the last name of Miller testified at the restitution hearing. All of the references to “Miller” in this opinion refer to James Miller. 14
of Olson’s alleged thefts, testified that he was aware of allegations that Olson had
misappropriated money through MEPA, but did not have personal knowledge of those
allegations or their veracity. Miller testified that Olson had done “tax preparations” for
MEPA and that he would have been entitled to $1,200-$1,500 in payment for those services.
Miller testified that check number 3654 for $1,500 (State’s Exhibit 9) could have covered
those tax preparation services. Miller further testified that check number 3676 for $2,000
(State’s Exhibit 10) “very well could be” related to expenses incurred from the “MEPA
Experience,” a training event which would have occurred a few months before the check was
issued.
{¶ 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.
Copies mailed to:
Carley J. Ingram 15
Antony A. Abboud Hon. Gregory F. Singer