State v. Hillard , 258 N.C. App. 94 ( 2018 )

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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