State v. Welch

[Cite as State v. Welch, 2017-Ohio-7887.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105158
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GISELE WELCH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-605237-A
BEFORE: Jones, J., Laster Mays, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: September 28, 2017
ATTORNEYS FOR APPELLANT
Joseph C. Patituce
Carli R. Citraro
Catherine Meehan
Patituce & Associates
26777 Lorain Road, Suite 1
North Olmsted, Ohio 44070
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Hannah Smith
Christopher D. Schroeder
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Gisele Welch (“Welch”) challenges the trial court’s
decision to order her to pay restitution in the amount of $20,482. For the reasons that
follow, we affirm.
{¶2} In April 2016, Welch was charged with one count of grand theft, a
fourth-degree felony, and four counts of tampering with records, third-degree felonies.
The charges stemmed from Welch’s role as payee of social security benefits she received
for the benefit of her developmentally disabled minor niece, Y.W. The indictment
alleged that the value of the stolen property or services was more than $5,000 and less
than $100,000.
{¶3} In June 2016, she pleaded guilty to one charge — Count 1, grand theft,
amended from a fourth-degree felony to a fifth-degree felony. On the date scheduled for
sentencing, however, the plea was vacated, and the matter was set for trial.
{¶4} In October 2016, Welch again pleaded guilty to an amended Count 1, a
fifth-degree grand theft charge. The assistant prosecuting attorney stated at the hearing
that the state was going to be seeking $21,682 in restitution from Welch, “just like we
were doing * * * before.” Both defense counsel and Welch indicated that that was their
understanding of the plea agreement. At the conclusion of the plea hearing, the assistant
prosecuting stated the following:
Your Honor, just so the record is clear, Count 1 is a felony of the 4th
degree, grand theft. We were amending it down to — just so it can be a
felony of the 5th degree, by lowering the value being $1,000 to $7,500, just
so the record is clear even though we are seeking the actual amount of
$21,682.
{¶5} The trial court then asked defense counsel if he “approved” the amendment
knowing that the state was “seeking the greater amount,” to which counsel responded
“yes.”
{¶6} At the sentencing hearing, the assistant prosecuting attorney stated that the
restitution amount the state was seeking had been slightly lowered to $20,482. Defense
counsel stated that he and Welch disputed the restitution amount and contended that issue
in the case was more about the social security funds being commingled by Welch, rather
than stolen. He contended that the accurate amount of the theft that occurred was
“closer to $4,700.” The court held a hearing on the issue of restitution, and at the
conclusion of the hearing, ordered Welch to pay restitution to the Social Security
Administration in the amount of $20,482. The more detailed facts of the case, which
were elicited at the restitution hearing, are as follows.
{¶7} As mentioned, Y.W. is developmentally delayed and was a minor at all
relevant times. Her mother, D.W., is also developmentally delayed, and as a result of
their circumstances, they were receiving services from the Welcome House, a social
services agency, to help with day-to-day activities. One of the workers from the
Welcome House believed that the daughter and mother were eligible for social security
benefits, so the worker inquired about it with the Social Security Administration. The
worker learned that Welch had been receiving benefits on behalf of Y.W., who is her
niece, for approximately five years. The Welcome House worker referred the matter to
Jeff Starr (“Starr”), an investigator with the Board of Developmental Disabilities, who
began an investigation.
{¶8} Starr testified that he spoke with D.W. numerous times during his
investigation, and learned that during the approximate five-year period that Welch had
been receiving funds on Y.W.’s behalf, Welch had given D.W. and Y.W. a flat screen
television and had taken them out to eat two or three times a year. Starr concluded that
Welch had misappropriated the Social Security funds.
{¶9} D.W., Y.W.’s mother, also testified. According to D.W., she and Y.W.
would see Welch once or twice a year. Other than bringing them Christmas gifts, taking
them out to eat once or twice, paying for Y.W. to get her hair braided a couple of times,
and once buying back-to-school clothes for Y.W., Welch did not support or give money
to D.W. for Y.W.’s care. D.W. admitted that Welch’s sister, another of Y.W.’s aunts,
brought gifts for Y.W. and took her clothes shopping from time to time. D.W. testified
that, until the investigation began in this case, she was unaware that Welch was receiving
money from the Social Security Administration for Y.W.’s care.
{¶10} An investigator from the Social Security Administration, Laura DeGiglio
(“DeGiglio”), testified that Welch received a total of $33,252 from the administration on
Y.W.’s behalf. As part of her investigation, DeGiglio visited D.W. and Y.W. at their
residence on two occasions to talk to them and look around at what possessions they had.
DeGiglio also interviewed Welch and reviewed receipts that Welch provided to her as
proof of purchases made on Y.W.’s behalf, as well as the “representative payee reports”
that Welch submitted to the Social Security Administration detailing the money she
allegedly spent on Y.W.
{¶11} In regard to the receipts Welch provided, DeGiglio tested that, based on her
visits to the home, she did not find them to be a credible representation of merchandise
Welch purchased on behalf of Y.W. In regard to the representative payee reports, the
amount Welch claimed she had spent on Y.W. always ended with an even amount and,
based on her investigation in this case, she found that “odd.”1
{¶12} Based on her investigation, DeGiglio concluded that Welch should be
credited with approximately $1,200 for items she purchased for, and gave to, Y.W.
DeGiglio further testified that after Welch learned of the investigation, she voluntarily
returned approximately $11,000 to the Social Security Administration. After crediting
Welch for the approximate $1,200 she believed she did spend on Y.W., and the
approximate $11,000 Welch returned to the administration, DeGiglio concluded that
Welch misappropriated $20,482 from the Social Security Administration.
{¶13} Welch presented the testimony of David Zuber (“Zuber”), a certified public
accountant who conducted an accounting of the funds disbursed to Welch on behalf of
Y.W. Zuber testified that, relevant to this case, Welch had two banking accounts: one
was a “Key for Kids” account at Key Bank, and the other was an account at a credit
union.
{¶14} Zuber found that all of the disbursements Welch received from the Social
Security administration were deposited in the Key for Kids account, and then withdrawn.
DeGiglio admitted that sometimes payees’ “even out” their figures so as to give a general
1
accounting of the funds they have spent, but based on her visits with D.W. and her review of the
Some of the withdrawn money was then deposited in the credit union account.
{¶15} Zuber testified that he attempted to reconcile the disbursements with the
documentation provided about purchases for Y.W.; he found a deficit, totaling $4,755.
Some of the receipts had Welch’s sister’s name on them, so Zuber interviewed the sister,
and learned that she would spend money on behalf of Y.W. and then seek reimbursement
from Welch. Zuber admitted that he had no knowledge of whether the purchased items
reflected on the receipts were actually given to, or used for the benefit of, Y.W.
{¶16} On this testimony, the trial court found that the social security benefits were
“clearly mishandled.” The court further found that the receipts Welch presented
“actually prove nothing, just that [Welch] bought some things, not that anything was
actually given to the child. It could [have been] for the benefit of any person.”
{¶17} Welch now appeals and sets forth the following assignments of error:
I. The trial court improperly ordered restitution in excess of the victim’s
economic loss.
II. The trial court improperly ordered restitution in an amount not
supported by legally sufficient evidence.
III. The trial court improperly ordered restitution in an amount beyond the
maximum property value indicated by the theft subsection of which
appellant was convicted.
IV. The cumulative error materially prejudiced appellant.
{¶18} The assignments of error are interrelated and therefore will be addressed
together.
{¶19} Generally, a decision to award restitution lies within the sound discretion of
receipts presented by Welch, she found the “evened out” accounting here “odd.”
the trial court and will not be reversed on appeal absent an abuse of discretion. In re
M.A., 2016-Ohio-1161, 61 N.E.3d 630, ¶ 12 (11th Dist.). “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.” State v. Seele, 6th Dist. Sandusky No.
S-13-025, 2014-Ohio-1455, ¶ 9. A trial court abuses its discretion by ordering
restitution in an amount that does not bear a reasonable relationship to the actual loss
suffered. State v. Portentoso, 173 Ohio App. 3d 297, 2007-Ohio-5490, 878 N.E.2d 76, ¶
8 (3d Dist.); State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 19 (4th Dist.).
{¶20} In her first two assignments of error, Welch contends that because the trial
court did not give her credit for any of the spending evidenced by the receipts she
presented other than the $1,200 DeGiglio credited to her, it “improperly exceeded the
victim’s actual economic loss.” In doing so, Welch argues that the trial court gave too
much weight to the testimony of the mother and the two investigators. We disagree.
{¶21} Under R.C. 2929.18, a victim has the right to restitution for economic loss
suffered as a direct and proximate result of the commission of the offense. It is true,
however, that the restitution ordered must be based on the victim’s economic loss, and
may not exceed the amount of the actual economic loss. R.C. 2929.81(A)(1).
{¶22} After hearing the testimony and reviewing the evidence, the trial court found
that the receipts did not prove that any of the purchased merchandise reflected on them
went for the benefit of Y.W. Thus, the court rejected Zuber’s testimony that all but
$4,755 of the disbursed funds were accounted for. In determining restitution, a trial
court “‘is free to accept or reject all, part, or none of the testimony of each witness.’”
State v. Bulstrom, 997 N.E.2d 162, 2013-Ohio-3582, ¶ 24 (4th Dist.), quoting In re A.E.,
2d Dist. Greene No. 2006-CA153, 2008-Ohio-1864, ¶ 15. Moreover, a trial court is
under no duty to itemize or otherwise explain how it arrived at the amount of restitution it
orders, so long as the trial court can discern the amount of restitution to a reasonable
degree of certainty from competent, credible evidence in the record. State v. Perkins, 3d
Dist. Marion No. 9-13-52, 2014-Ohio-2242, ¶ 23; State v. Didion, 173 Ohio App. 3d
130, 2007-Ohio-4494, 877 N.E.2d 725, ¶ 20 (3d Dist.)
{¶23} Upon review, we find no abuse of discretion and that the trial court’s order
of restitution was supported by competent, credible evidence in the record. The two
investigators in this case, Starr and DeGiglio, interviewed D.W. and visited her home
where she resided with Y.W. They provided competent, credible testimony about the
conclusions they reached as a result of their investigations.
{¶24} On the other hand, the trial court did not find Welch’s receipts credible — as
it was free to do — and there is nothing incredible about that. Some of the receipts, for
example, were for purchases made by Welch’s sister, a person who was not charged as a
payee for the funds. Taken along with other evidence in the record, such as the fact that
D.W. was completely unaware that Welch was even receiving the money for the benefit
of Y.W., the trial court did not abuse its discretion in determining the actual loss suffered
and competent, credible evidence supported its determination. The first and second
assignments of error are overruled.
{¶25} In her third assignment of error, Welch contends that the trial court
improperly ordered restitution in an amount beyond the maximum value indicated under
the theft subsection to which she pleaded. Specifically, under the subsection of theft to
which she pleaded, the value of property or services was $1,000 or more, but less than
$7,500. See R.C. 2913.02(A)(3) and (B)(2).
{¶26} This court addressed this issue in State v. Lalain, 8th Dist. Cuyahoga No.
95857, 2011-Ohio-4813. In Lalain, the defendant pleaded guilty to a fifth-degree theft
charge, which stated that the value of the property or services stolen was $500 or more,
but less than $5,000. The charges resulted from the defendant’s theft of items from his
former employer; the items were recovered by the police and returned to the employer.
The trial court ordered the defendant to pay $63,121 in restitution to the defendant’s
former employer. The amount consisted of $55,456 for the “time spent by [the
company’s] employees in support of [the] case” and $7,665 that the company spent for
accounting services to determine their loss.
{¶27} On appeal to this court, the defendant challenged the restitution order,
contending among other things, that the trial court erred by ordering restitution in an
amount greater than $4,999.99 because he was only convicted of a fifth-degree felony.
This court disagreed, stating that “‘[b]y agreeing to the restitution award in exchange for
pleading guilty, he received the benefit of his bargain: a reduced charge.’” Id. at ¶ 17,
quoting State v. Stewart, 3d Dist. Wyandot No. 16-08-11, 2008-Ohio-5823, ¶ 13.
{¶28} The Ohio Supreme Court reversed the Lalain decision, finding the
expenditures constituting the restitution amount were “not the direct and proximate result
of the commission of the theft offense, rather, they are consequential costs incurred
subsequent to the theft to value the property that had been taken.” State v. Lalain, 136
Ohio St. 3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 25. But the court further stated the
following:
In addition, we recognize that the amount of restitution is not correlated to
the degree of the offense. For example, R.C. 2913.02(B)(5) states, “if the
property stolen is a motor vehicle, a violation of this section is grand theft
of a motor vehicle, a felony of the fourth degree,” regardless of the value of
the motor vehicle. A trial court choosing to order restitution in a case of
grand theft of a motor vehicle is not restricted to the value corresponding to
a fourth-degree felony and may instead award restitution pursuant to R.C.
2929.18(A)(1).
Id. at ¶ 24.
{¶29} Further, it has been held that restitution for damages relating to dismissed
charges where the restitution is part of a defendant’s negotiated agreement is permissible.
State v. Strickland, 10th Dist. Franklin No. 08AP-164, 2008-Ohio-5968, ¶ 12. Thus, a
trial court may order a defendant to pay restitution relating to dismissed counts when:
(1) the defendant entered into a plea agreement in which he or she agreed to
plead guilty to some counts contained in the indictment in exchange for the
dismissal of other counts in the indictment, and (2) the defendant agreed, as
part of the consideration for the plea agreement, to provide restitution to the
victims for the damages caused by his or her conduct for which criminal
charges were dropped under the plea agreement.
Id.
{¶30} Here, the general restitution amount that the state sought was stated at both
plea hearings and Welch stated that she understood and agreed to that approximate
amount. On this record, we find that the trial court did not abuse its discretion in
ordering Welch to pay $20,482 in restitution. The third assignment of error is therefore
overruled.
{¶31} In her final assignment of error, Welch contends that cumulative error
existed because the state’s witnesses lacked competence and credibility.
{¶32} In State v. DeMarco, 31 Ohio St. 3d 191, 509 N.E.2d 1256 (1987), the Ohio
Supreme Court recognized the doctrine of cumulative error. Id. at paragraph two of the
syllabus. Under this doctrine, a conviction will be reversed when the cumulative effect
of errors in a trial deprives a defendant of a fair trial even though each of the numerous
instances of trial court error does not individually constitute cause for reversal. Id. at
196-197; see also State v. Jackson, 141 Ohio St. 3d 171, 2014-Ohio-3707, 23 N.E.3d
1023, ¶ 258.
{¶33} The court has recognized that multiple errors, when aggregated, may violate
a defendant’s right to a fair trial, even when those errors are determined to be harmless
when separately considered. State v. Madrigal, 87 Ohio St. 3d 378, 397, 721 N.E.2d 52
(2000). To find cumulative error, we first must find multiple errors committed at trial,
and secondly, we must conclude that a reasonable probability exists that the outcome of
the trial would have been different but for the combination of the harmless errors. Id. at
398.
{¶34} Upon review, as discussed above, there were not multiple errors committed
here. Thus, the cumulative error doctrine is inapplicable. Further, the credibility of
witnesses and the weight of the evidence are matters primarily for the trier of fact to
assess. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus. It is not incredible on this record that the trial court assigned more
credibility to the state’s witnesses over the defense witness.
{¶35} The fourth assignment of error is therefore overruled.
{¶36} Judgment affirmed.
It is ordered that appellee recover of appellant 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.
LARRY A. JONES, SR., JUDGE
ANITA LASTER MAYS, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR