State v. Hoy , 2021 Ohio 4098 ( 2021 )

[Cite as State v. Hoy, 2021-Ohio-4098.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 21 CAC 03 0013
ANDREW D. HOY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County
Municipal Court, Case No. 20CRB00901
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 15, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EMMA M. MIRLES-JONES ALICIA HARRIS
Mirles-Jones Law Office Assistant City Prosecutor
175 S. Sandusky Street, Suite #375 City of Delaware Prosecutor’s Office
Delaware, Ohio 43015 70 North Union Street
Delaware, Ohio 43015
Delaware County, Case No. 21 CAC 03 0013 2
Hoffman, J.
{¶1} Defendant-appellant Andrew D. Hoy appeals the February 1, 2021
Judgment Entry on Restitution entered by the Delaware County Municipal Court, ordering
him to pay restitution in the amount of $1,984.42, after he had entered a no contest plea
to criminal damaging. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On July 15, 2020, Delaware County Sheriff’s Deputy K. Griffith filed three
complaints in the Delaware County Municipal Court, charging Appellant with assault, in
violation of R.C. 2903.13(A), a misdemeanor of the first degree; criminal damaging, in
violation of R.C. 2909.06(A)(1), a misdemeanor of the second degree; and disorderly
conduct, in violation of R.C. 2917.11(A)(1), a misdemeanor of the fourth degree.
Appellant entered not guilty pleas to the charges on July 24, 2020.
{¶3} On September 14, 2020, Appellant entered a plea of no contest to the
criminal damaging charge. The criminal damaging charge arose from Appellant’s
scratching the full length of one side of Emily Olvera’s car with a key. The state dismissed
the assault and disorderly conduct charges. The trial court accepted Appellant’s plea and
found him guilty. The trial court scheduled a hearing on restitution and sentencing for
September 18, 2020.
{¶4} The parties appeared for the scheduled hearing and discussed multiple
issues. The trial court continued the hearing in order for the parties to brief the issues.
The parties filed their respective briefs on October 5, 2020. The issues briefed included
the amount of restitution, whether Appellant was entitled to an offset of Olvera’s insurance
deductible, and whether Olvera had to have her vehicle repaired prior to Appellant being
Delaware County, Case No. 21 CAC 03 0013 3
ordered to pay restitution. After continuances filed by both parties, the trial court
conducted the hearing on December 18, 2020.
{¶5} At the hearing, Emily Olvera testified Appellant “keyed” her Honda Civic
“from front bumper to end bumper all the way down.” Transcript of Dec. 18, 2020 Hearing
at 24. Olvera acknowledged the vehicle had old damage, “scratches and stuff on the
bumper,” caused by her grandmother, who was the previous owner. Id. She added the
old damage was easily distinguishable from the damage caused by Appellant. The
damage caused by Appellant was “a key mark going all the way across.” Id. Olvera
added, “I believe he started from the front end of the car and keyed the entire side to the
bumper.” Id. at 25.
{¶6} When Olvera brought the vehicle to the auto body shop for an estimate, she
“showed them only where the key marks were, and I told them that’s what the Court
wanted to know.” Id. at 27. The mechanic explained to Olvera “since the scratch is deep
enough that he would have to take off the entire left side panels, like, the doors, the
bumpers and everything to fix it.” Id. at 26. Olvera reiterated the estimate she was given,
in the amount of $1,984.42, was only for the key damage. Id. Olvera identified pictures
of the vehicle depicting the damage done to her vehicle. Several times during her
testimony, Olvera stated the vehicle damaged by Appellant was her vehicle.
{¶7} On cross-examination, defense counsel questioned Olvera regarding each
line item on the estimate. Olvera had difficulty understanding and answering the majority
of questions asked by defense counsel. When asked about the damage caused by her
grandmother, Olvera noted the damage was “towards the back, not where -- . . . – the
Delaware County, Case No. 21 CAC 03 0013 4
scratch was.” Id. at 40. On redirect examination, Olvera repeated the scratch caused by
Appellant and the damage caused by her grandmother were “clearly different.” Id. at 41.
{¶8} Olvera did not ask the mechanic to look for mechanical issues with the
vehicle, adding she asked them to give her “a quote on the scratch…Only the scratch.”
Id. When asked to describe where the scratch started and where it ended, Olvera
answered at “[t]he flat side near the headlight, the front headlight to the -- . . . – past my
gas tank to the almost back bumper.” Id. at 42.
{¶9} The trial court provided the parties with an opportunity to brief the issue of
whether the rules of evidence apply to restitution hearings. On December 31, 2020,
Appellant filed a written objection to the trial court’s consideration of the testimony of Emily
Olvera as well as the written estimate. Therein, Appellant asserted the state failed to
demonstrate Olvera was the actual victim. Appellant maintained there was no evidence
Olvera was the actual owner of the vehicle. The state filed its response on January 7,
2021.
{¶10} On February 1, 2021, Appellant appeared before the trial court for
sentencing. The trial court sentenced Appellant to 90 days in jail with credit for 16 days
time served. The trial court suspended the remaining 74 days and placed Appellant on
probation for a period of one year. As terms of his probation, Appellant was ordered to
have no contact with Olvera and complete an anger management course. The trial court
ordered Appellant to pay restitution in the amount of $1,984.42, fines in the amount of
$250.00, and court costs, but advised Appellant it would suspend the entire fine upon
payment of restitution. The trial court memorialized Appellant’s sentence via Judgment
Entry filed February 1, 2021.
Delaware County, Case No. 21 CAC 03 0013 5
{¶11} Via Judgment Entry on Restitution also filed February 1, 2021, the trial court
ordered Appellant to pay restitution to Olvera in the amount of $1,984.42. The trial court
found Olvera was the victim, noting “she [was] designated in the complaint to which
[Appellant] pled and was found guilty.” Feb. 1, 2021 Judgment Entry at 2, unpaginated.
The trial court found Olvera to be credible. The trial court admitted the estimate, finding
such to be fair and credible.
{¶12} It is from these judgment entries Appellant appeals, raising the following
assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
IMPROPERLY SWITCHED THE BURDEN OF THE VICTIM TO
ESTABLISH BOTH THE TYPE AND AMOUNT OF RESTITUTION TO BE
PAID TO THE DEFENDANT IN VIOLATION OF R.C. 2929.28.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING
A LAYPERSON WITHOUT PERSONAL KNOWLEDGE ABOUT WHICH
VEHICLE BODY PARTS NEEDED TO BE REPLACED, WHY THEY WERE
NEED [SIC] OR HOW THE ESTIMATE FOR REPAIRS WAS COMPOSED
WHEN THE WITNESS HAD NO KNOWLEDGE ABOUT THE ESTIMATE
NOR COULD SHE IDENTIFY THE PARTS OF THE CAR THAT
CORRESPONDED TO THE ESTIMATE.
III. THE COURT COMMITTED PLAIN ERROR WHEN IT
REPEATEDLY REFERRED TO “ECONOMIC HARM” INSTEAD OF
“ECONOMIC LOSS” WHEN EXPLAINING ITS RATIONALE FOR NOT
Delaware County, Case No. 21 CAC 03 0013 6
ALLOWING COUNSEL TO INQUIRE ABOUT MS. OLVERA’S ECONOMIC
LOSSES. THIS ISSUE WAS PREVIOUSLY BRIEFED AS WELL.
IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. HOY
WHEN IT SENTENCED HIM TO PAY RESTITUTION BEFORE RULING
ON SEVERAL PENDING OBJECTIONS WHICH WERE BRIEFED IN
WRITING BUT HAD NO DECISION RENDERED IN VIOLATION OF
ARTICLE I SECTION 1, OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION.
I.
{¶13} In his first assignment of error, Appellant maintains the trial court abused its
discretion by improperly placing the burden of establishing the type and amount of
restitution on Appellant rather than on the victim.
{¶14} R.C. 2929.28(A)(1) authorizes the trial court to order a defendant to pay
restitution to the victim of a misdemeanor in an amount based on the victim's economic
loss. The court may base the amount of restitution on, among other things, estimates
indicating the cost of repairing or replacing property, so long as the amount ordered as
restitution does “not exceed the amount of economic loss suffered by the victim as a direct
and proximate result of the commission of the offense.” R.C. 2929.28(A)(1). If the court
holds an evidentiary hearing on restitution, the victim has the burden to prove by a
preponderance of the evidence the amount of restitution sought from the offender. Id.
Delaware County, Case No. 21 CAC 03 0013 7
{¶15} “Economic loss” is defined as “any economic detriment suffered by a victim
as a direct and proximate result of the commission of an offense and includes any loss of
income due to lost time at work because of any injury caused to the victim, any property
loss, medical cost, or funeral expense incurred as a result of the commission of the
offense.” R.C. 2929.01(L).
{¶16} Appellant initially argues Olvera and the state failed to establish Olvera was
the actual victim of the offense. We disagree.
{¶17} Appellant entered a plea of no contest to one count of criminal damaging.
{¶18} Crim. R. 11(B)(2) provides:
The plea of no contest is not an admission of defendant's guilt, but is
an admission of the truth of the facts alleged in the indictment, information,
or complaint, and the plea or admission shall not be used against the
defendant in any subsequent civil or criminal proceeding. (Emphasis
added).
{¶19} By entering a plea of no contest, Appellant admitted the truth of the facts
alleged in the complaint. Therefore, Appellant not only admitted he “did cause physical
harm to the victim’s car by using an unknown instrument to damage the paint,” but also
admitted Olvera was the victim as the complaint identified “Emily Brenna Olvera” as the
victim. July 15, 2020 Criminal Complaint, Record at 1. Accordingly, we find the state did
not fail to establish Olvera was the actual victim of the offense.
Delaware County, Case No. 21 CAC 03 0013 8
{¶20} Appellant further asserts, assuming Olvera was the “legitimate victim of
criminal damaging, then she failed to provide credible evidence or testimony about any
economic loss that she may have incurred and any amount [Appellant] should have to
pay in restitution.” Brief of Appellant at 5. Appellant adds, “Olvera failed to demonstrate
she suffered any loss at all as the vehicle was not rendered unusable, nor had she
attempted to repair the vehicle.” Id. We disagree.
{¶21} Contrary to Appellant's assertion, we find Olvera proved by a
preponderance of the evidence she was entitled to restitution in the amount of $1,984.42,
for repairs to her vehicle. By pleading no contest, Appellant admitted he caused “physical
harm to the victim’s car by using an unknown instrument to damage the paint.” Olvera
identified the damage caused to her vehicle by Appellant and testified the estimate she
received was to repair only the damage caused by Appellant. The fact the vehicle was
not rendered unusable and the damage was only “cosmetic” does not negate the fact
Olvera suffered an economic loss.
{¶22} Appellant’s first assignment of error is overruled.
II
{¶23} In his second assignment of error, Appellant contends the trial court abused
its discretion in allowing a layperson to testify regarding the estimate of repairs when the
witness was without personal knowledge as to which vehicle parts needed to be replaced,
why the replacements were needed, or how the estimate was calculated.
{¶24} We review restitution orders under an abuse of discretion standard. State
v. Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996, ¶ 15. (Citation omitted); State
v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio-7389, ¶ 40. An order of
Delaware County, Case No. 21 CAC 03 0013 9
restitution must be supported by competent and credible evidence from which the trial
court can discern the amount of restitution to a reasonable degree of certainty. Sheets,
supra. (Citations omitted). Furthermore, a trial court abuses its discretion if it orders
restitution in an amount that does not bear a reasonable relationship to the actual loss
suffered. Id. (Citations omitted). The Rules of Evidence do not apply to hearings held to
determine the amount of restitution. Sheets, supra, citing State v. Burgess, 5th Dist. Stark
No. 2013CA00070, 2013–Ohio–4691; State v. Estes, 3d Dist. Seneca No. 13-11-14,
2011-Ohio-5740, ¶ 27; State v. Potts, 7th Dist. Harrison No. 07 HA 4, 2008–Ohio–643, ¶
11; State v. Tuemler, 12th Dist. Warren No. CA2002-06-068, 2005-Ohio-1240, at ¶ 17.
{¶25} Consequently, the trial court was not restricted by the Rules of Evidence,
including the prohibition on hearsay, in determining the amount of the restitution order.
Additionally, as quoted, supra, R.C. 2929.18(A)(1) 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.
{¶26} Appellant asserts Olvera had “so little understanding of the names of the
parts of the car, she [was] completely incompetent and not credible to effectuate the
admission of any car estimate, let alone the estimate which is hotly contested.” Brief of
Appellant at 8. Appellant adds:
Ms. Olvera was not sure what the repairs were for. Ms. Olvera could
not identify the parts of the car, could not identify the parts in the pictures,
stating she was not a car expert. Tr. 28-43. Ms. Olvera failed to
Delaware County, Case No. 21 CAC 03 0013 10
demonstrate that she even understood the repairs that needed to be done
or the cost of any such repairs which was contrary to the whole reason for
having a Restitution Hearing in the first place. Id.
{¶27} We disagree with Appellant’s characterization of Olvera’s testimony and
find there was competent, credible evidence to support the trial court’s calculation of
restitution.
{¶28} As set forth in our Statement of the Case and Facts, supra, Olvera testified
Appellant “keyed” her Honda Civic “from front bumper to end bumper all the way down.”
Id. at 24. Olvera acknowledged the vehicle had old damage, “scratches and stuff on the
bumper,” caused by her grandmother, but the old damage was easily distinguishable from
the damage caused by Appellant. Id. The damage caused by Appellant was “a key mark
going all the way across,” starting “from the front end of the car and keyed the entire side
to the bumper.” Id. at 24-25. The mechanic, who prepared the estimate, explained to
Olvera “since the scratch is deep enough that he would have to take off the entire left side
panels, like, the doors, the bumpers and everything to fix it.” Id. at 26. Olvera identified
pictures of her vehicle which depicted the damage caused by Appellant.
{¶29} Defense counsel asked Olvera about the estimate for the front lamps, to
which Olvera answered, “He probably, I’m guessing, needs to fix this, because he has to
take my entire left side of my car apart to get the scratch out.” Id. at 39. When defense
counsel questioned Olvera as to why the estimate included the rear lamps and rear
bumpers when she (Olvera) had already testified these areas were already damaged,
Delaware County, Case No. 21 CAC 03 0013 11
Olvera explained the damage caused by her grandmother was “towards the back, not
where -- . . . – the scratch was.” Id. at 40.
{¶30} Although Olvera had difficulty answering many of the questions asked by
defense counsel on cross-examination, we find Olvera’s testimony was clear and
unwavering regarding the damage caused by Appellant and the estimate she obtained.
When Olvera brought the vehicle to the auto body shop for an estimate, she “showed
them only where the key marks were, and I told them that’s what the Court wanted to
know.” Id. at 27. Olvera did not ask the mechanic to look for mechanical issues with the
vehicle, adding she asked them to give her “a quote on the scratch…Only the scratch.”
Id. at 41.
{¶31} The estimate breaks down the work and labor times for each of the
damaged components of Olvera’s vehicle. The estimate also lists the work to be
completed. Specifically, (1) “R & I”1 the front bumper cover, the left front lamp assembly,
the left front fender panel, the left front and rear door shells, the left rear lamp assembly,
and the rear bumper; (2) repair the front bumper cover, the left fender panel, the left front
and rear door shells, and the left quarter outer panel; and (3) paint the front bumper cover,
the left fender panel, the left front and rear door shells, and the left quarter outer panel.
The estimate includes an itemization of the costs for body labor ($590.00), paint labor
($765.00), paint supplies ($489.60), and other parts ($10.00).
{¶32} Based upon the foregoing, we find the trial court’s order of restitution is
supported by competent and credible evidence. Furthermore, we find the trial court did
1The abbreviation “R & I” is not explained on the estimate or through testimony. Olvera testified the
mechanic informed her he would have to “take my entire left side of my car apart to get the scratch out.”
Based upon this testimony, we interpret “R & I” to mean “remove and install.”
Delaware County, Case No. 21 CAC 03 0013 12
not abuse its discretion as the order of restitution bears a reasonable relationship to the
actual loss suffered by Olvera.
{¶33} Appellant’s second assignment of error is overruled.
III
{¶34} In his third assignment of error, Appellant submits the trial court committed
plain error by repeatedly referring to “economic harm” rather than “economic loss” when
stating its rationale for not allowing defense counsel to question Olvera about her
economic loss. Appellant avers the trial court “repeatedly and erroneously referenced
‘economic harm’ when referring to the restitution in question.” Brief of Appellant at 9.
{¶35} The trial court’s reference to “economic harm” purportedly occurred during
the October 30, 2020 hearing. On October 30, 2020, the trial court called the case,
adding, “We’re here for sentencing, including a restitution hearing; is that correct?” Tr. of
Oct. 30, 2020 Hearing at 21. Attorney Emma Mirles-Jones, counsel for Appellant, replied,
“It is, Your Honor.” Id. The prosecutor agreed. Id. Attorney Mirles-Jones then asked,
“Your Honor, before we – I know you just went on the record, but I think we kind of wanted
to ask you a question before you got on the record.” Id. The trial court went off the record.
There was no further recording of the October 30, 2020 hearing. Accordingly, we have
no means to review any error which may or may not have occurred during that hearing.
See, generally, Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384,
385 (1980).
{¶36} At the December 18, 2020 hearing, as Attorney Mirles-Jones argued
against the admission of the estimate and the calculation of restitution, the following
discussion occurred:
Delaware County, Case No. 21 CAC 03 0013 13
MS. MIRLES-JONES: * * * if this was purely a cosmetic injury to the
vehicle and it did not affect the car itself, then it’s just the, you know, he
wouldn’t have to pay to have that repaired because it’s purely cosmetic. So
the only loss would be a valuation.
THE COURT: You are suggesting that economic harm does not
include cosmetic damage to a motor vehicle?
MS. MIRLES-JONES: Well, my argument is that it would lessen the
valuation of the vehicle, the value of the dollar, because the Court did not
let me testify – inquire from the witness as to the usability of the vehicle.
THE COURT: It’s irrelevant.
MS. MIRLES-JONES: It is relevant. It is part of economic loss.
THE COURT: They’re not arguing that it – they’re not arguing it
wasn’t operable. I don’t have to consider –
MS. MIRLES-JONES: Well, then – so how does fixing this cosmetic
scratch in any way allow for this vehicle to be used or make any change to
that? The only loss that she’s suffering is purely loss of valuation.
THE COURT: Restitution is economic harm. Economic harm
includes cosmetic –
MS. MIRLES-JONES: It’s economic loss in the Ohio Revised Code,
Your Honor
Tr. of December 18, 2020 Hearing at 56-58.
Delaware County, Case No. 21 CAC 03 0013 14
{¶37} While we find the trial court did, in fact, referred to “economic harm” during
the December 18, 2020 hearing, we find such reference was inadvertent and any error
resulting therefrom was harmless. In its February 1, 2021 Judgment Entry, the trial court
expressly stated:
R.C. 2929.28(A)(1) allows a court to award restitution in an amount
based on a victim’s economic loss. R.C. 2929.01)(K)2 [sic] defines
“economic loss” to be any economic detriment suffered by a victim as a
direct and proximate result of the commission of an offense and includes
any loss of income due to lost time at work because of any injury caused to
the victim, any property loss, medical cost, or funeral expense incurred as
a result of the commission of the offense. “Economic loss” does not include
non-economic loss or any punitive or exemplary damages.
{¶38} It is well-established a trial court speaks only through its journal entries.
Infinite Sec. Solutions, L.L.C. v. Karam Properties II, Ltd., 143 Ohio St.3d 346, 2015-Ohio-
1101, ¶ 29. Upon review of the record, we find the trial court based its restitution order
upon Olvera’s economic loss, not on economic harm.
{¶39} Within this assignment of error, Appellant also posits “Olvera or whoever is
the appropriate victim is only owed the decrease in financial valuation of the vehicle based
on a before and after calculation or ‘good condition valuation’ minus ‘fair condition
2 The actual subsection is (L).
Delaware County, Case No. 21 CAC 03 0013 15
valuation.’” Brief of Appellant at 10. Appellant asserts the trial court “conflates fair market
value with cost to repair.”
{¶40} R.C. 2929.28(A)(1) permits a trial court to order a defendant to pay
restitution to the victim of a misdemeanor in an amount based upon the victim's economic
loss. “Economic loss” can be ascertained from “an amount recommended by the victim,
the offender, a presentence investigation report, estimates or receipts indicating the cost
of repairing or replacing property.” R.C. 2929.28(A)(1) (Emphasis added).
{¶41} Appellant argues Olvera will receive an economic windfall because the cost
to repair the vehicle exceeds its fair market value. We note, although given the
opportunity, Appellant did not present any evidence at the hearing which established the
fair market value of Olvera’s car either before or after he damaged it. Accordingly, we
find the trial court did not abuse its discretion in using the estimate of the cost of repairing
the vehicle to ascertain economic loss.
{¶42} Appellant’s third assignment of error is overruled.
IV
{¶43} In his final assignment of error, Appellant claims his due process rights were
violated because the trial court sentenced him to pay restitution before ruling on pending
written objections. We disagree.
{¶44} In its February 1, 2021 Judgment Entry on Restitution, the trial court found,
“Ms. Olvera’s testimony to be credible. The Court admits the estimate into evidence. The
Court find the estimate to be fair and credible.” Id. at 2, unpaginated. This language
effectively overruled Appellant’s pending objections to the estimate, Olvera’s testimony in
its entirety, and Olvera’s alleged hearsay testimony. To the extent the February 1, 2021
Delaware County, Case No. 21 CAC 03 0013 16
Judgment Entry on Restitution did not expressly address any other pending objection, we
find such were implicitly overruled by the entry of final judgment. “Ordinarily, any pending
motions the trial court does not expressly rule on when it renders final judgment in a case
will be deemed to have been implicitly overruled.” Am. Business Mtge. Servs., Inc. v.
Barclay, 10th Dist. No. 04AP–68, 2004-Ohio-6725, 2004 WL 2896353, ¶ 8. See, also,
State v. Duncan, 8th Dist. No. 97208, 2012-Ohio-3683, ¶ 4 (motions not ruled on when a
trial court enters final judgment are considered denied); State v. Ryerson, 12th Dist. Butler
No. CA2003-06-153, 2004-Ohio-3353, ¶ 55 (there is a “general rule that pretrial motions
not ruled upon will ordinarily be presumed to have been overruled”).
{¶45} Within this assignment of error, Appellant again argues Olvera and the state
failed “to establish the amount of restitution to a reasonable degree of certainty” and such
“should have negated the restitution order.” This Court has found, supra, the trial court
did not abuse its discretion in ordering Appellant to pay restitution. We have further found,
supra, no error in the amount of the restitution order or the manner in which the trial court
arrived at the figure. Accordingly, we will not address these arguments further.
Delaware County, Case No. 21 CAC 03 0013 17
{¶46} Appellant’s fourth assignment of error is overruled.
{¶47} The judgment of the Delaware Municipal Court is affirmed.
By: Hoffman, J.
Baldwin, P.J. and
Wise, Earle, J. concur