             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-437

                              Filed: 20 February 2018

Rowan County, No. 14 CRS 55850

STATE OF NORTH CAROLINA

            v.

ERIC E. HILLARD


      Appeal by defendant from order entered 26 October 2016 by Judge Christopher

W. Bragg in Rowan County Superior Court. Heard in the Court of Appeals 13

November 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Andrew O.
      Furuseth, for the State.

      Vitrano Law Offices, PLLC, by Sean P. Vitrano, for defendant.


      ELMORE, Judge.


      Eric E. Hillard (“defendant”) pled no contest to one count of misdemeanor

cruelty to animals.   On appeal, defendant argues that the trial court erred by

imposing a $10,693.43 restitution award because that amount was not supported by

sufficient competent evidence regarding injuries and damages that arose directly and

proximately out of the offense committed by defendant. Defendant also contends that

the trial court abused its discretion by ordering restitution without regard for

defendant’s ability to pay the amount ordered.
                                  STATE V. HILLARD

                                  Opinion of the Court



      Because there was sufficient competent evidence to support the amount of

restitution ordered by the trial court, and because the trial court properly considered

defendant’s financial circumstances and found the restitution award to be within his

ability to pay, we hold that the trial court neither erred nor abused its discretion in

imposing a $10,693.43 restitution award.

                                           I.

      On 7 February 2014, defendant shot Carl and Karen Haussmann’s 3-year-old

beagle in the neck with a .22 rifle, leaving the dog paralyzed after surgery failed to

restore his mobility.   Defendant had no prior history with or connection to the

Haussmanns, who kept all of their animals contained within a five-foot-tall fence

surrounding their property.     No motive whatsoever was offered to explain why

defendant approached the Haussmann’s backyard that morning and shot their dog

through their fence.

      Based on the incident with the Haussmann’s dog, defendant was indicted on 9

February 2015 on one count of felony cruelty to animals. His case came on for trial

on 24 October 2016. Pursuant to a plea arrangement with the State, defendant

entered a no-contest plea to one count of misdemeanor cruelty to animals on 25

October 2016.    The trial court accepted defendant’s plea and proceeded to the

sentencing portion of the hearing.




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                                 STATE V. HILLARD

                                 Opinion of the Court



      At the outset of the sentencing hearing, the State indicated that the

Haussmanns had provided an itemized worksheet of their expenses arising from the

incident (“the expense worksheet”). The expense worksheet was accompanied by

supporting documentation that included surgery bills, veterinary bills, letters, and

receipts for supplies and other necessaries purchased since the incident. The trial

court stood at ease while defendant reviewed the information provided.

      In addition to the expense worksheet and supporting documentation, the

Haussmanns had previously submitted written victim impact statements. Both Mr.

and Mrs. Haussmann were present at the sentencing hearing and requested to make

oral statements as well. The trial court asked defendant if he planned to cross-

examine the Haussmanns, in which case the trial court would have them sworn, but

defendant stated that he did not think he needed to do so. The trial court then

addressed the Haussmanns directly, explaining that he had read their written

statements and inviting each of them to be heard. Mrs. Haussmann first described

how she had altered her daily routine to accommodate the dog’s special needs,

elaborated on the figures presented in the expense worksheet, and explained that she

could not bring herself to “put down” the dog simply because he had become an

inconvenience. Mr. Haussmann added that the expense worksheet was accurate, but

that the total amount of damages had likely been underreported.




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                                  STATE V. HILLARD

                                  Opinion of the Court



      Following the oral victim impact statements, defendant was sworn and

testified regarding his financial circumstances. Defendant was 49 years old at the

time of the hearing and lived with his mother in the home she owned. He had various

health issues related to diabetes and several orthopedic surgeries, and he claimed to

owe “hundreds of thousands” of dollars in medical bills, but he was not making any

payments on those bills. Defendant previously worked in car sales, but he had not

been employed full-time since 2012. He owned a riding lawn mower and regularly

mowed two yards, for which he earned approximately $180.00 per month, and had

collected scrap metal for additional income in the past. Defendant received financial

assistance from his mother, including free housing, utilities, and food, and he had a

16-year-old son whose mother helped provide for that young man as well. Defendant

estimated that he had the ability to pay $50.00 per month in restitution.

      The trial court reviewed the evidence overnight and announced the next day

that in determining the amount of restitution to be paid, it had considered the

expense worksheet, supporting documentation, and all matters pertaining to

defendant’s financial resources and abilities.           The trial court also addressed

defendant directly, stating that “while you have a limited capacity to earn money, you

do have that capacity to earn money, and you’ve not been declared disabled at this

point in time.” The trial court then ordered defendant to pay $10,693.43 in restitution

and serve 60 months of probation, with payments at that rate amounting to $178.22



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                                  STATE V. HILLARD

                                  Opinion of the Court



per month. The trial court went on to inform defendant that his probation could be

extended for a total of 96 months, which would lower the payments to $111.39 per

month. Defendant gave notice of appeal in open court.

                                          II.

      On appeal, defendant assigns error to both the amount of restitution ordered

by the trial court as well as the trial court’s assessment of his ability to pay that

amount. Each assignment of error is addressed in turn.

      A. Amount of Restitution

      Defendant first contends that the trial court erred by ordering him to pay

$10,693.43 in restitution because that amount was not supported by sufficient

competent evidence. We disagree.

      Pursuant to N.C. Gen. Stat. § 15A-1340.34, the trial court is authorized to

order restitution “for any injuries or damages arising directly and proximately out of

the offense committed by the defendant.” N.C. Gen. Stat. § 15A-1340.34(c) (2015). “A

trial court’s award of restitution must be supported by competent evidence in the

record.” State v. Clifton, 125 N.C. App. 471, 480, 481 S.E.2d 393, 399 (1997). Whether

the amount of restitution recommended by the trial court is supported by competent

evidence adduced at trial or sentencing is reviewed by an appellate court de novo.

State v. Wilson, 340 N.C. 720, 72627, 459 S.E.2d 192, 196 (1995). However, the

award does not have to be supported by specific findings of fact or conclusions of law,



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                                 STATE V. HILLARD

                                 Opinion of the Court



and the quantum of evidence needed to support the award is not high. State v. Davis,

167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005). Rather, when there is some evidence

that the amount awarded is appropriate, it will not be overruled on appeal. Id.

      Here, the State provided written victim impact statements to the trial court

during the sentencing hearing.     The trial court also heard oral victim impact

statements from the Haussmanns and received an itemized worksheet of expenses as

well as supporting documentation, including veterinary bills and receipts.

      On appeal, defendant argues these unsworn statements and documentation

constitute incompetent evidence that was insufficient to support the restitution

award. Notably, defendant never objected to this evidence at the sentencing hearing.

Defendant was specifically asked by the trial court if he wanted the Haussmans to be

sworn and cross-examined, but he declined the request. Defendant has thus waived

any argument concerning the unsworn statements for appellate review. See State v.

Hendricks, 138 N.C. App. 668, 671, 531 S.E.2d 896, 899 (2000) (upholding an

aggravating factor where it was supported by an unsworn victim impact statement).

      Notwithstanding the fact that defendant failed to object to the evidence offered

at the sentencing hearing, it is well-settled that the requirement that a witness be

sworn does not apply during such hearings. Id. (citing N.C. Gen. Stat. § 15A-1334(b)

(2015) (“Formal rules of evidence do not apply at the [sentencing] hearing.”)). Thus,

the written victim impact statements, together with the oral victim impact



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                                   STATE V. HILLARD

                                   Opinion of the Court



statements, expense worksheet, and accompanying documentation, constitute

sufficient competent evidence to support the restitution award. Accordingly, the trial

court committed no error as to the amount awarded, and defendant’s argument to the

contrary is overruled.

      B. Ability to Pay

      In his second assignment of error, defendant contends the trial court abused

its discretion by ordering restitution without regard for his ability to pay the amount

ordered. We disagree.

              In determining the amount of restitution to be made, the
              court shall take into consideration the resources of the
              defendant including all real and personal property owned
              by the defendant and the income derived from the property,
              the defendant’s ability to earn, the defendant’s obligation
              to support dependents, and any other matters that pertain
              to the defendant’s ability to make restitution, but the court
              is not required to make findings of facts or conclusions of
              law on these matters. . . .

N.C. Gen. Stat. § 15A-1340.36(a) (2015). Whether the trial court properly considered

a defendant’s ability to pay when awarding restitution is reviewed by this Court for

abuse of discretion. State v. Carter, 186 N.C. App. 680, 652 S.E.2d 72, 2007 WL

3256885, at *2 (2007) (unpublished).

      Here, the trial court properly considered defendant’s financial resources and

ability to pay restitution pursuant to the requirements of N.C. Gen. Stat. § 15A-

1340.36(a).   Specifically, defendant testified regarding his employment history,



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                                   STATE V. HILLARD

                                   Opinion of the Court



assets, dependents, medical bills, and the support he receives from his mother and

others. While defendant argues on appeal that the trial court “ignored” certain

portions of his testimony, nothing in the record suggests the court did not take each

factor of N.C. Gen. Stat. § 15A-1340.36(a) into consideration when determining that

defendant had the ability to pay the restitution award. Thus, the trial court did not

abuse its discretion, and defendant’s second assignment of error is overruled.

                                          III.

      Because the amount of restitution imposed by the trial court was supported by

sufficient competent evidence, and because the trial court properly considered

defendant’s financial resources and ability to pay that amount, the trial court neither

erred nor abused its discretion in imposing a $10,693.43 restitution award.

Accordingly, the order of the trial court is hereby:

      AFFIRMED.

      Chief Judge McGEE and Judge MURPHY concur.




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