DocketNumber: No. CA2007-07-160.
Citation Numbers: 2008 Ohio 6567
Judges: WALSH, P.J.
Filed Date: 12/15/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Appellant was charged with breaking and entering and vandalism after he was found in a vacant commercial building in Middletown, Ohio with a duffle bag containing copper tubing and wiring that had been removed from the building. Appellant pled guilty to *Page 2 breaking and entering, a fifth-degree felony, and to the amended charge of attempted vandalism, a first-degree misdemeanor. A restitution hearing was held and the trial court ordered $50,000 in restitution be paid.
{¶ 3} Appellant now appeals the restitution order, setting forth a single assignment of error.
{¶ 4} Assignment of Error:
{¶ 5} "THE TRIAL COURT ERRED IN AWARDING RESTITUTION IN THE AMOUNT OF $50,000 FOR DAMAGES NOT DIRECTLY RELATED TO THE CHARGES AGAINST MOORE."
{¶ 6} Appellant argues the restitution "far exceeds" and "bears no actual relation to the damages occasioned" by his actions. Appellant asserts that he did not cause most of the damage found in the building from the removal of copper. Appellant did not testify at the restitution hearing, but reportedly told police that someone else was inside removing copper before he entered the building. Appellant further argues that even if restitution could be tied to his conviction, the amount cannot exceed $5,000 because he was originally charged with the fifth-degree felony offense of vandalism and the fifth-degree level of that offense involves harm to property of more than $500 but less than $5,000.
{¶ 7} The felony sentencing statute R.C.
{¶ 8} "Economic loss" means 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, and any property loss, medical cost, or funeral expense incurred as a result of the commission of the offense. *Page 3
R.C.
{¶ 9} "If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that 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." R.C.
{¶ 10} The state must prove the amount of this economic loss with competent, credible evidence from which the trial court can calculate the amount of restitution within a reasonable degree of certainty.State v. Borders, Clermont App. No. CA2004-12-101,
{¶ 11} The breaking and entering offense under R.C.
{¶ 12} There was testimony at the restitution hearing that police patrolling the vicinity observed evidence of a forced entrance into the building. Appellant was subsequently discovered inside when the building owner's employee responded to the scene. A large, "heavy" duffle bag containing pieces of copper was located in the area of the building where appellant was found, along with a hacksaw, razor knife, hammer and a flashlight.
{¶ 13} At the conclusion of the restitution hearing, the trial court made a finding based upon the evidence that it would cost in excess of $125,000 to repair the "AC units" in the building [where some of the copper was removed]. Noting that the owner had a $50,000 insurance deductible, the trial court ordered $50,000 in restitution.
{¶ 14} After reviewing the record provided, we disagree with appellant's argument that the restitution was not related to the offenses for which he was convicted. Although the state emphasized the vandalism charge in this case, appellant was charged and convicted of the offense of breaking and entering for the purpose to commit vandalism and theft. The evidence clearly indicates that theft was the controlling factor as appellant trespassed in the building to commit the theft of copper and the property was damaged while appellant was obtaining this copper.
{¶ 15} The statutes dealing with felony sentencing orders of restitution justify the restitution award under the breaking and entering charge as there was competent, credible evidence of the victim's economic loss caused as a direct and proximate result of appellant's trespass into the building for the purpose of removing and stealing copper. Given our finding related to the breaking and entering charge, appellant's second argument in relation to the value of the property or amount of physical harm for the attempted vandalism offense is also not well taken, and his single assignment of error is overruled.
{¶ 16} Judgment is affirmed as modified. The judgment entry of conviction is modified for the attempted vandalism charge to reflect a conviction under R.C.
BRESSLER and POWELL, JJ., concur.