State v. Moore-Bennett , 2011 Ohio 1937 ( 2011 )

[Cite as State v. Moore-Bennett, 2011-Ohio-1937.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95450
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KRISTIN MOORE-BENNETT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
MODIFIED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-483911
BEFORE: S. Gallagher, J., Kilbane, A.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT
Michael J. Manuszak
2905 Paxton Road
Shaker Heights, OH 44120
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Erin Stone
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Kristin Moore-Bennett appeals her conviction in the
Cuyahoga County Court of Common Pleas for theft. For the reasons stated
herein, we affirm the conviction but modify the order of restitution, which is
contrary to law.
{¶ 2} Appellant was indicted on one count of theft, in violation of R.C.
2913.02, a felony of the fifth degree with the alleged value of property being
$500 or more but less than $5,000. She entered a plea of not guilty, and the
case proceeded to a bench trial.
{¶ 3} At trial, testimony was presented concerning events that
transpired on May 18, 2006. In the early morning hours of May 18, 2006,
Khaled Jaffal was working his job at a convenience store owned by his
brother. He spoke on the phone with appellant, with whom he previously
had a friendship and sexual relationship. On occasion, Jaffal had given
appellant money to help out with her children and bills. Appellant had since
entered a relationship with Jaffal’s cousin. Jaffal testified that he did not
have any hard feelings.
{¶ 4} Jaffal left work sometime after midnight, and he and appellant
went to a restaurant to eat. Jaffal loaned appellant his jacket. He had
cash, which he was to deposit in the bank for his employer, in the inside
pocket of his jacket. He testified that he made daily deposits for work.
{¶ 5} After leaving the restaurant, the two went to Jaffal’s apartment.
Jaffal claims he offered appellant a place to sleep for the night. After getting
his jacket back, Jaffal removed the cash from his jacket, verified it was all
still there, and transferred it to his pants pocket. He claimed the amount
was $2,800, which was to cover the money orders issued the day before. The
state entered copies of the money order receipts as exhibits at trial.
{¶ 6} Jaffal testified that he folded his pants before going to bed and
placed them next to his bed. He stated that when he awoke, appellant was
gone, his pants were no longer folded the same way, and the money was
missing. There were no other persons in his apartment during the time
frame in question, and there was no sign of forced entry. He made a police
report the same day.
{¶ 7} Appellant testified that she was unaware of the existence of the
money and denied stealing the money. After being arraigned on the theft
charge, she failed to appear in court in November 2006 and a capias was
issued for her arrest. She testified she “was scared” and moved out of state.
She finally was taken into custody on February 2, 2010.
{¶ 8} The trial court denied appellant’s two motions for acquittal,
which were made at the close of the state’s case and the defense’s case. The
trial court found appellant guilty of theft, a misdemeanor of the first degree,
which was an inferior degree of the indicted offense. The court stated that it
believed Jaffal had the money, but it found “the evidence relative to value
unpersuasive.” This was because the receipts submitted by the state, less
money that was not collected, only added up to a value of $2,061, as opposed
to the $2,800 amount that was claimed to be missing by Jaffal.
{¶ 9} The court sentenced appellant to a suspended jail term of six
months, placed her on probation for one year, and ordered her to pay
restitution in the amount of $2,061.72.
{¶ 10} Appellant timely appealed her conviction. She raises four
assignments of error for our review, under which she argues that the trial
court erred in denying her Crim.R. 29 motion for acquittal and that her
conviction was against the sufficiency and manifest weight of the evidence.
{¶ 11} A motion for acquittal under Crim.R. 29(A) is governed by the
same standard used for determining whether a verdict is supported by
sufficient evidence. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417,
847 N.E.2d 386, ¶ 37. “The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a
reasonable doubt. The weight to be given the evidence and the credibility of
the witnesses are primarily for the trier of the facts.” (Citations and
quotations omitted.) Id.{¶ 12} In reviewing a claim challenging the manifest weight of the
evidence, the question to be answered is whether “there is substantial
evidence upon which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt. In conducting this review, we
must examine the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether
the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” (Internal
citations and quotations omitted.) State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶ 13} The offense of theft under R.C. 2913.02(A)(1) provides as follows:
“No person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services in any
of the following ways: (1) Without the consent of the owner or person
authorized to give consent[.]” “Except as otherwise provided * * *, a violation
of this section is petty theft, a misdemeanor of the first degree. If the value
of the property or services stolen is five hundred dollars or more and is less
than five thousand dollars * * * a violation of this section is theft, a felony of
the fifth degree.” R.C. 2913.02(B)(2).
{¶ 14} Jaffal, who was an employee of the convenience store, testified
that he made daily cash deposits; he had a cash deposit with him when he left
work on May 18, 2006; the money was in his pants pocket when he went to
sleep; he and appellant were the only two in his apartment; appellant and the
cash were missing when he awoke; and he made a police report the same day.
The state entered money order receipts as evidence of value.
{¶ 15} Appellant claims that there is no evidence to corroborate Jaffal’s
claim that appellant took money from him or to show that the store was
actually missing any cash. However, the lack of corroborating evidence, by
itself, does not undermine Jaffal’s credibility. His testimony, if believed, was
sufficient to sustain a conviction. Furthermore, upon our review of the entire
record, we do not find the conviction was against the manifest weight of the
evidence.
{¶ 16} Nevertheless, we find the trial court committed an error in law
with respect to the restitution order. After determining that the actual value
of the money order receipts submitted into evidence was less than the $2,800
amount that Jaffal claimed was missing, the trial court found “the evidence
relative to value unpersuasive.” The trial court proceeded to convict
appellant of misdemeanor theft, which requires that the value of the property
or services stolen must be less than $500. See R.C. 2913.02(B)(2). Yet, the
trial court found that the money order receipts totaled $2,061 and ordered
restitution for that amount. There is clearly an inconsistency between the
amount of restitution ordered and the court’s decision to impose a
misdemeanor conviction.
{¶ 17} While we are perplexed by the trial court’s decision to not convict
appellant of a fifth-degree felony as charged, there nonetheless was sufficient
evidence of value stolen to support a first-degree misdemeanor theft offense.
However, by convicting appellant of the inferior-degree offense, the trial court
was limited to ordering restitution in an amount consistent with
misdemeanor theft, which is less than $500.
{¶ 18} R.C. 2929.28(A)(1) requires that when restitution is imposed as
part of a criminal sanction for misdemeanor offenses, “the amount the court
orders as restitution shall not exceed the amount of the economic loss suffered
by the victim as a direct and proximate result of the commission of the
offense.” Ohio courts have recognized that the amount of restitution ordered
by a trial court must bear a reasonable relationship to the loss suffered and is
limited to the actual loss caused by the offender’s criminal conduct for which
he was convicted. State v. Henry, Clermont App. No. CA2009-12-081,
2010-Ohio-4571, ¶ 22; State v. Smith, Butler App. No. CA2004-11-275,
2005-Ohio-6551, ¶ 21; State v. Rivera, Cuyahoga App. No. 84379,
2004-Ohio-6648, ¶ 12; see, also, State v. Hooks (2000), 135 Ohio App.3d 746,
749, 735 N.E.2d 523. A trial court abuses its discretion in ordering
restitution in an amount that exceeds the economic loss resulting from the
defendant’s crime. Rivera at ¶ 12. An appellate court may modify a
sentence when it finds by clear and convincing evidence that the sentence is
contrary to law. R.C. 2953.08(G)(2).
{¶ 19} Because the trial court ordered appellant to pay restitution in an
amount exceeding the value of property set forth for a misdemeanor theft
offense, the trial court’s sentence is contrary to law. Accordingly, we reduce
the restitution order to the amount of $499.99. We remand the matter to the
trial court for the sole purpose of correcting the sentencing entry to comport
with our decision herein.
Conviction affirmed; sentence modified; case remanded.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR