State v. Crum

[Cite as State v. Crum, 2013-Ohio-903.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
RICKY CRUM : Case No. 12 CAA 08 0056
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12CR-I-01-0029
JUDGMENT: Affirmed/Reversed in Part &
Remanded
DATE OF JUDGMENT: March 11, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERIC C. PENKAL JOHN R. CORNELY
140 North Sandusky Street 21 Middle Street
3rd Floor P.O. Box 248
Delaware, OH 43015 Galena, OH 43021
Delaware County, Case No. 12 CAA 08 0056 2
Farmer, J.
{¶1} On January 27, 2012, the Delaware County Grand Jury indicted appellant,
Ricky Crum, on two counts of theft in violation of R.C. 2913.02 and one count of misuse
of credit cards in violation of R.C. 2913.21. Said charges arose from appellant's use of
the company credit card at his place of employment, Thorson's Greenhouse.
{¶2} On April 30, 2012, appellant pled guilty to one of the theft counts, and the
remaining counts were dismissed. By judgment entry filed July 18, 2012, the trial court
sentenced appellant to three years of community control sanctions, and ordered him to
pay restitution to Douglas Thorson in the amount of $1,597.42.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $1,567.51."
I
{¶5} Appellant claims the trial court erred in awarding $1,567.51 in restitution
as the amount was not supported by the evidence and it was unclear from the record
whether the victim was reimbursed by a third-party for the credit card losses. We agree
in part.
{¶6} R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the
following:
Delaware County, Case No. 12 CAA 08 0056 3
(A) Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised Code,
the court imposing a sentence upon an offender for a felony may sentence
the offender to any financial sanction or combination of financial sanctions
authorized under this section or, in the circumstances specified in section
2929.32 of the Revised Code, may impose upon the offender a fine in
accordance with that section. Financial sanctions that may be imposed
pursuant to this section include, but are not limited to, the following:
(1) Restitution by the offender to the victim of the offender's crime
or any survivor of the victim, in an amount based on the victim's economic
loss. If the court imposes restitution, the court shall order that the
restitution be made to the victim in open court, to the adult probation
department that serves the county on behalf of the victim, to the clerk of
courts, or to another agency designated by the court. If the court imposes
restitution, at sentencing, the court shall determine the amount of
restitution to be made by the offender. 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. If the court decides to impose restitution, the court shall hold a
Delaware County, Case No. 12 CAA 08 0056 4
hearing on restitution if the offender, victim, or survivor disputes the
amount. All restitution payments shall be credited against any recovery of
economic loss in a civil action brought by the victim or any survivor of the
victim against the offender.
{¶7} Economic loss is defined in R.C. 2929.01(L) as follows:
"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. "Economic
loss" does not include non-economic loss or any punitive or exemplary
damages.
{¶8} The amount of restitution "must be supported by competent, credible
evidence in the record from which the court can discern the amount of the restitution to
a reasonable degree of certainty." State v. Aliane, 10th Dist. No. 03AP-840, 2004-Ohio-
3730, ¶14. Restitution orders are reviewed under an abuse of discretion standard.
State v. Williams, 34 Ohio App.3d 33 (2nd Dist. 1986). In order to find an abuse of
discretion, we must determine the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217 (1983).
Delaware County, Case No. 12 CAA 08 0056 5
{¶9} Appellant testified he believed he used the company credit card for
unauthorized purchases amounting to $688.00. T. at 26. The state, via the testimony
of Bret Thompson, delivery manager for Thorson's Greenhouse, provided a printout
(State's Exhibit 1) of the unauthorized charges.
{¶10} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of
fact "has the best opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶11} We find there was sufficient credible offered by the victim and
substantiated by the state to support the trial court's decision on the amount of
restitution.
{¶12} Appellant further argues it was unclear from the record whether the victim
was reimbursed by a third-party for the credit card losses. As stated above, restitution
is limited to a victim's economic loss. If a victim is reimbursed by a third-party, the
victim has not suffered an economic loss. Third-parties are "not statutorily entitled to
recover the costs of its decision to reimburse" the victim. State v. Kiser, 2nd Dist. No.
24419, 2011-Ohio-5551, ¶16; State v. Kelly, 4th Dist. Nos. 10CA28 and 10CA29, 2011-
Ohio-4902, ¶7.
{¶13} The evidence presented at the restitution hearing is inconclusive at best.
Mr. Thompson testified to the following on cross-examination at 15:
Delaware County, Case No. 12 CAA 08 0056 6
Q. Are you aware, was any of this money refunded by Wright
Express to your company, because it was a stolen credit card?
A. Not to my knowledge.
Q. You don't know?
A. I don't know.
{¶14} We find the trial court should have determined the issue of third-party
reimbursement.
{¶15} The sole assignment of error is granted in part and denied in part, and
remanded to the trial court to determine if the victim has been reimbursed by a third-
party.
{¶16} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed in part and reversed in part.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney_______________
s/ William B. Hoffman______________
JUDGES
SGF/sg 207
[Cite as State v. Crum, 2013-Ohio-903.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
RICKY CRUM :
:
Defendant-Appellant : CASE NO. 12 CAA 08 0056
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed in part
and reversed in part, and the matter is remanded to said court for determination on the
issue of third-party reimbursement. Costs to be divided equally between appellant and
appellee.
s/ Sheila G. Farmer________________
s/ Patricia A. Delaney_______________
s/ William B. Hoffman______________
JUDGES