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State v. Finkes3/28/2002
e maximum consecutive prison terms for tampering with evidence, the order of restitution, and a fine, is not supported by the record and is contrary to law. The facts as adduced at trial are as follows. Defendant married Hans Schlotterer in 1965. They divorced in February 1990, but have held themselves out as "common law" marriage partners since late 1990. Defendant was the owner of The Bait Store ("store"), a retail establishment located at 7588 Riverside Drive in Dublin, Ohio. Defendant purchased the business from her father in 1984 and continued his practice of paying employees in cash. The business includes the sale of fishing and boating equipment, convenience store items, cigarettes, beer, wine and lottery tickets; the renting of trailers under license with U-Haul; the installation of trailer hitches; the issuance of fishing and hunting licenses; and the operation of a stocked fishing lake. Defendant also operates a motor vehicle transfer business. The store has a two-bedroom apartment and an office on the second floor. Defendant's long-time friend, Glen Weingarner, lives in the apartment. Defendant became Weingarner's guardian after he suffered a stroke. Weingarner helps out in the store occasionally in exchange for living rent-free in the apartment. Defendant often stays in the apartment when Schlotterer is out of town during the week. Defendant also owns a home adjacent to the store and resides there with Schlotterer on the weekends. Schlotterer works at the store when he is home on weekends. Larry Jones has been employed full time at the store since August 1999. In the fall of 1999, seventeen-year-old James Coyan, III ("Coyan") learned that his girlfriend was pregnant with his child. Soon thereafter, he began disobeying established rules at home and was often truant from school. Coyan and his mother, Donna Simms, argued extensively about Coyan's behavioral problems. After he stole a pair of earrings from her, Simms filed delinquency charges, including a charge of aggravated menacing, against him. As a result, Coyan appeared at a juvenile court hearing in January 2000. According to Simms, the court ordered Coyan to: (1) obtain full- time employment and provide the court with either a letter or a pay stub evidencing such; (2) work toward obtaining a GED; (3) attend drug and alcohol assessment; and (4) follow established rules at home. A second hearing was scheduled for May 1, 2000, at which time Coyan would be required to prove that he had complied with all four of the court's orders. Simms testified that Coyan's behavior improved markedly after his January 2000 court appearance. He began working for defendant part time at the store in late February or early March 2000 and increased his hours to full time in April 2000. Simms further testified that Coyan told her that he was paid approximately $300 per week, usually on Monday. Paul Martin, one of defendant's former employees, testified that sometime in March or April 2000, he sold Coyan a .9 mm handgun. According to Martin, Coyan said he was buying the gun to resell at a profit and that he had to keep the gun at the store because he was not allowed to have it at his home or his girlfriend's house. Several people, including Weingarner, former store employees Jason Mooney and James Smirr, Alan Harding, a frequent store customer, and Dave Finkes, defendant's son, testified that they saw Coyan with the gun at the store in April 2000. Both Jason Mooney and Dave Finkes testified that Coyan asked them not to tell defendant about the gun. Harding testified that when he asked Coyan why he had the gun, Coyan stated that he "expect trouble around [the store]." (Tr. 734.) Weingarner testified that at some point in April 2000, Coyan asked him if he wanted to purchase the gun. When Wei
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