[Cite as State v. Estes, 2011-Ohio-5740.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 13-11-14

        v.

DAVID M. ESTES,                                            OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                             Trial Court No. 08CR0149

                                       Judgment Affirmed

                           Date of Decision: November 7, 2011




APPEARANCES:

        Jonathan G. Stotzer for Appellant

        Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-11-14



SHAW, J.

      {¶1} Defendant-appellant, David M. Estes (“Estes”), appeals the March 31,

2011 judgment of the Seneca County Court of Common Pleas ordering him to

pay: $2,725.00 in restitution to Fifth-Third Bank; $8,388.86 in restitution to GM

Credit (aka HSBC Bank Nevada); and $2,093.61 in restitution to Chase Card

Member Services.

      {¶2} In October of 2007, Rebecca Rishty, Estes’ ex-wife, noticed that

someone had opened credit cards in her name when she received monthly billing

statements for credit accounts that she did not authorize. One of the statements

indicated a balance had been accrued of over $10,000.00. At that time, she

recently had her mail forwarded to her mother’s address. Before then, her mail

was sent to the former marital home in Tiffin, Ohio, where Estes was residing.

The billing statements of these credit cards indicated that the majority of the

purchases were made in the Tiffin area. Based on their history together, Rishty

suspected Estes’ involvement in the opening of these credit card accounts in her

name. Because Rishty was living abroad at the time, she asked her mother to

notify law enforcement.

      {¶3} Rishty and Estes were divorced in September of 2007. The record

indicates that, as part of the divorce agreement, their home in Tiffin would remain

in Rishty’s name, however, Estes was permitted to live there rent-free for eighteen

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months in lieu of Rishty paying him spousal support. Estes moved into their

Tiffin home prior to the divorce at the end of April of 2007. Rishty had not lived

with Estes since January of 2006 because she worked and lived abroad in South

Africa for extended periods of time. When Rishty returned to the country, she

lived in Bethesda, Maryland.

       {¶4} Lt. Det. Michelle Craig of the Tiffin Police Department received the

initial call from Rishty’s mother and began investigating the case. Det. Lt. Craig’s

investigation revealed that in June 2007, while he was living alone in their Tiffin

home, Estes used Rishty’s personal identifying information, without her consent or

approval, to apply for two credit cards in Rishty’s name—a GM Flex credit card

and a Chase MasterCard. Once the new credit cards were approved, Estes used

them to purchase property and services in the amount of $10,763.33 on the GM

Flex credit card and $2,378.06 on the Chase MasterCard. Estes initially denied

any involvement in fraudulently establishing these credit cards in Rishty’s name.

       {¶5} However, Lt. Det. Craig obtained surveillance video, depicting Estes

making specific purchases documented on the credit card billing statements. In

addition, one of the store clerks was able to identify Estes and recalled him

making a particular purchase. Pursuant to a properly executed search warrant, Lt.

Det. Craig also recovered several items purchased by Estes with the credit cards at

issue, receipts and billing statements corresponding to the credit cards, as well as

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the actual credit cards fraudulently procured by Estes. These items included two

bicycles, a PlayStation 3 video game console and video games, a computer and

printer, a digital camera and other photography related items. All of these items

were found in the former marital home where Estes continued to reside. Estes

eventually admitted to Lt. Det. Craig that he opened the credit card accounts in

Rishty’s name because he ran out of money and needed basic necessities.

       {¶6} Several months later, in January of 2008, Risthy’s mother again

contacted Lt. Det. Craig advising that Estes was “up to his old tricks.” This time,

Estes, without Rishty’s consent or approval, drafted three courtesy checks

connected to an existing line of credit Rishty had with Fifth-Third Bank. Estes

named himself as payee, forged Rishty’s signature and deposited the proceeds of

the checks into his bank account. The record indicates that Estes obtained these

checks while living in the former marital home. The checks were drafted in the

amounts of $175.00, $2,000.00, and $550.00.            Once confronted by law

enforcement, Estes admitted to forging these checks, explaining that he ran out of

money.

       {¶7} On July 16, 2008, the Seneca County Grand Jury indicted Estes on

Count One: identity fraud in violation of R.C. 2913.49(B)(1), (I)(2), a third degree

felony; Count Two: misuse of credit cards in violation of R.C. 2913.21(B)(2),

(D)(3), a fourth degree felony; Count Three: grand theft in violation of R.C.

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2913.02(A)(3), (B)(2), a fourth degree felony; and Count Four: forgery in

violation of R.C. 2913.31(A)(1), a fifth degree felony.

        {¶8} On October 9, 2008, Estes entered pleas of guilty to all four counts in

the indictment pursuant to a written plea agreement. The trial court found Estes

guilty of the four counts based on his pleas of guilty.

        {¶9} On August 13, 2009, and October 1, 2009, the trial court held

restitution hearings to determine the amount of restitution Estes owed to the

victim.

        {¶10} On March 31, 2011, the trial court filed a judgment entry of re-

sentencing ordering Estes to pay: $2,725.00 in restitution to Fifth-Third Bank;

$8,388.86 in restitution to GM Credit (aka HSBC Bank Nevada); and $2,093.61 in

restitution to Chase Card Member Services.1

        {¶11} Estes now appeals, asserting the following assignments of error.

                           ASSIGNMENT OF ERROR NO. I

        THE TRIAL COURT ERRED BY ORDERING THE
        APPELLANT TO PAY RESTITUTION TO BANKS AND
        CREDIT CARD COMPANIES.




1
  We note that on May 24, 2010 and November 29, 2010, this Court dismissed Estes’ appeals based upon
jurisdictional grounds that the judgment entries of sentence failed to comply with Crim.R. 32(C).


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                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED IN DETERMINING THE
       AMOUNT OF RESTITUTION TO BE PAID BY THE
       APPELLANT.

                              First Assignment of Error

       {¶12} In his first assignment of error, Estes argues that the trial court erred

in ordering him to pay restitution to GM Credit, Chase Card Member Services and

Fifth-Third Bank. Specifically, Estes contends that Rishty is the only victim in

this case because she is the party who suffered economic loss as a result of Estes’

conduct.    Therefore, Estes maintains that GM Credit, Chase Card Member

Services and Fifth-Third Bank are not entitled to restitution because they are not

the victims of his crimes.

       {¶13} An appellate court reviews a trial court’s decision to impose

restitution under an abuse of discretion standard. State v. Rohrbaugh, 191 Ohio

App.3d 117, 944 N.E.2d 1230. An abuse of discretion implies that the trial court’s

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶14} Section 2929.18 of the Revised Code governs restitution and

provides, in relevant part:

       (A) Except as otherwise provided in this division and in
       addition to imposing court costs pursuant to section 2947.23 of
       the Revised Code, the court imposing a sentence upon an

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        offender for a felony may sentence the offender to any financial
        sanction or combination of financial sanctions authorized under
        this section * * *. Financial sanctions that may be imposed
        pursuant to this section include, but are not limited to, the
        following:

        (1) Restitution by the offender to the victim of the offender’s
        crime or any survivor of the victim, in an amount based on the
        victim’s economic loss.

Initially, we note that on appeal Estes mischaracterizes the nature of the facts in this

case as a marital issue that should have been resolved in the divorce. Estes further

labels GM Credit, Chase Card Members Services and Fifth-Third Bank as

“tangentially involved institutions.” However, a thorough review of the facts in

this case reveals that GM Credit, Chase Card Members Services and Fifth-Third

Bank are the victims who directly suffered the economic loss as a result of Estes’

wrongdoing, and are not third parties seeking reimbursement for money paid out to

an injured party, such as in the case of a typical insurance settlement.

        {¶15} With respect to the particular claims of GM Credit and Chase Card

Members Services, this is not a case where a soon-to-be ex-husband went on a

shopping spree using his wife’s credit cards to incur a joint debt. Rather, the

record demonstrates that Estes deceived these credit card companies by purporting

to be Rishty and forging her authorization on the applications. It is solely because

of Estes’ actions of fraudulently holding himself out to be Rishty that GM Credit

and Chase Card Members Services extended lines of credit in Rishty’s name,

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which Estes used to incur a debt in the amount of $13,141.39. GM Credit and

Chase Card Members Services, not Rishty, paid each transaction charged by Estes

on those lines of credit. Based upon Estes’ admissions and the evidence gathered

during the course of the investigation, it is evident that Rishty never legally

established a consumer relationship with GM Credit and Chase Card Members

Services.   Thus, the record demonstrates that Rishty was not a party to the

transaction procuring lines of credit from these entities.

       {¶16} The record also indicates that both GM Credit and Chase Card

Members Services worked with law enforcement during the investigation to

recoup their losses as a result of Estes’ conduct. Moreover, Chase Card Members

Services specifically requested that it be considered the victim and that it receive

restitution in the final disposition of the case. Despite Estes’ bald assertions, there

is no evidence to support his claim that Rishty is the victim who suffered

economic loss as a result of his criminal conduct, nor does he cite any authority

which would preclude GM Credit and Chase Card Members Services from being

entitled to restitution under these facts. Accordingly, we conclude that the trial

court did not abuse its discretion when it identified GM Credit and Chase Card

Members Services as the victims suffering economic loss as a direct result of

Estes’ wrongdoing.



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       {¶17} We also find no error in the trial court’s order of restitution to Fifth-

Third Bank for the convenience checks Estes’s forged on Rishty’s existing line of

credit with the bank. Again, the evidence in the record demonstrates that Fifth-

Third paid these funds to Estes and, therefore, suffered the economic loss as a

result of his forgery. Absent any evidence to the contrary, we decline to indulge

Estes’ argument claiming that Rishty is the victim in this instance, which he again

makes with no citation to authority or to the record.

       {¶18} In sum, we conclude that the record supports the trial court’s

determination that GM Credit, Chase Card Members Services and Fifth-Third

Bank are the victims who suffered economic loss as a direct result of Estes’

criminal conduct. Accordingly, we find that the trial court did not abuse its

discretion in concluding that GM Credit, Chase Card Members Services and Fifth-

Third Bank are entitled to restitution. Estes’ first assignment of error is overruled.

                          The Second Assignment of Error

       {¶19} In his second assignment of error, Estes claims that the trial court

erred in determining the amount of restitution to be paid. Specifically, Estes

challenges the adequacy of the evidence presented by the prosecution, which the

trial court relied on to determine the amount of restitution ordered.

       {¶20} “In an order of restitution, the amount of restitution must bear a

reasonable relationship to the loss suffered.” State v. Marbury (1995), 104 Ohio

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App.3d 179, 181, 661 N.E.2d 271; see, also, R.C. 2929.18(A)(1). Thus, it is held

that restitution is limited to the actual loss caused by the defendant’s criminal

conduct for which he was convicted. State v. Brumback (1996), 109 Ohio App.3d

65, 82, 671 N.E.2d 1064. There must be competent and credible evidence in the

record from which the court may ascertain the amount of restitution to a

reasonable degree of certainty. In addition, the trial 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.” R.C. 2929.18(A)(1).

        {¶21} At the restitution hearings, the prosecution presented the testimony

of Lt. Det. Craig, who provided evidence of the economic loss suffered by GM

Credit, Chase Card Members Services and Fifth-Third Bank as a result of Estes’

criminal conduct. Lt. Det. Craig testified regarding three exhibits submitted by the

prosecution. Lt. Det. Craig identified State’s Exhibit 1 as copies of the three

checks she received from Fifth-Third Bank. These were courtesy checks attached

to Risthy’s line of credit with the bank that were drawn for $2,000.00, $550.00,

and $175.00—for a total of $2,725.00. The record demonstrates that Estes had

forged Rishty’s signature on these particular checks, identified himself as the

payee, and deposited the money into his own checking account at Fifth-Third

Bank.

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        {¶22} Lt. Det. Craig identified State’s Exhibit 2 as documents she received

from GM Credit, which detailed the items and services charged by Estes on the

credit card before his criminal activity was discovered. The documents stated the

final debit incurred by Estes was $10,763.33. Lt. Det. Craig identified State’s

Exhibit 3 as documents she received from Chase Credit Services, which indicated

that the total balance on the credit card for the items and services Estes purchased

with the card was $2,378.06.

        {¶23} Next, the prosecution submitted evidence regarding the values of the

items confiscated by law enforcement from Estes’ residence, which he purchased

with the GM and Chase credit cards.2 The current values of these items were

intended to be used to offset the final balances listed in State’s Exhibits 2 and 3

because, following the disposition of case, the appropriate items would be turned

over to the credit card companies.

        {¶24} Lt. Det. Craig presented testimony regarding the value of these items.

Estes’ counsel objected to Lt. Det. Craig’s qualifications for providing such

testimony. The trial court overruled the objection. On the stand, Lt. Det. Craig

testified that there were twenty-nine items seized from Estes’ residence. These

items included a PlayStation 3 video game console, a high-end digital camera, two



2
  Notably, many of the charges on the billing statements reflected Estes’ purchase of food, alcohol,
groceries and gas, which were items that he consumed and therefore were not recoverable.

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high-quality bicycles, a desktop computer with monitor, keyboard and webcam, a

printer, a minidisk player, and several other miscellaneous items.

       {¶25} Instead of using the retail values indicated on the receipts and billing

statements confiscated during the investigation, Lt. Det. Craig found the current

selling values of these items on EBay, an online marketplace, because these items

had been used by Estes and were no longer in retail condition. Lt. Det. Craig

testified that she found a “high value” and a “low value” of what these items were

selling for on an open market. Using the EBay values presented by Lt. Det. Craig,

the trial court asked the prosecution to determine the “middle value” of the items

and used those numbers to offset the restitution Estes owed to GM Credit and

Chase Card Members Services. After the “middle values” of the items were

assessed, Estes’ restitution order was reduced to $8,388.86 in restitution to GM

Credit and $2,093.61 to Chase Card Member Services.

       {¶26} Estes now argues that the trial court erred in permitting Lt. Det.

Craig to testify to the values of the confiscated items. Specifically, he argues Lt.

Det. Craig’s testimony violated the rules of evidence because she had a lack of

personal knowledge, was not an expert on valuation and relied on hearsay in her

testimony. Notably, Estes did not object to Lt. Det. Craig’s method of valuation at

the restitution hearing.



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      {¶27} Contrary to Estes’ contentions on appeal, Evid.R. 101(C)(3)

specifically provides that the Ohio Rules of Evidence, other than with respect to

privileges, do not apply to miscellaneous criminal proceedings including

sentencing. State v. Cook (1998), 83 Ohio St.3d 404, 425, 700 N.E.2d 570;

Evid.R. 101(C)(3). Ohio appellate courts have ruled that because the rules of

evidence do not apply to sentencing, they also do not apply to evidentiary hearings

concerning restitution by offenders to victims of crimes. State v. Riley, 184 Ohio

App.3d 211, 2009-Ohio-3227, ¶ 28, 920 N.E.2d 388; State v. Potts, 7th Dist. No.

07 HA 4, 2008-Ohio-643, 2008 WL 435005, ¶ 11; State v. Tuemler, 12th Dist. No.

CA2004-06-068, 2005-Ohio-1240, ¶ 17. Consequently, the trial court was not

restricted by the Rules of Evidence, including the prohibition on hearsay, in

determining the amount of a restitution order. Moreover, R.C. 2929.18(A)(1), the

statute governing restitution, expressly permits the trial court to consider

“estimates or receipts indicating the cost of repairing or replacing property, and

other information” to be used in determining the amount of restitution owed by the

offender.

      {¶28} It must also be noted that Estes did not suffer any prejudice as a

result of the trial court’s decision to use the “middle value” of the items

confiscated from his residence to offset the total amount of restitution owed by

him. For example, the trial court could have ordered Estes to retain the items, in

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order to alleviate the victims of having to incur the time and expense of selling the

items at fair market value, and instead hold Estes responsible for the entire debit

he accrued on the credit cards as a result his criminal activity.

       {¶29} Accordingly, we conclude that the record contained competent and

credible evidence from which the trial court was able to ascertain the amount of

restitution to a reasonable degree of certainty. In addition, the record also supports

that the amount of restitution ordered by the trial court bore a reasonable

relationship to the loss suffered by the victims and that the amount ordered did not

exceed the actual loss caused by Estes’ criminal conduct for which he was

convicted.    Based on the foregoing, we find no error in the trial court’s

determination of the amount of restitution. Estes’ second assignment of error is

overruled.

       {¶30} For all these reasons, the judgment of the Seneca County Court of

Common Pleas is affirmed.

                                                                    Judgment Affirmed

ROGERS, P.J. and PRESTON, J., concur.

/jlr




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