State v. Alexander

[Cite as State v. Alexander, 2012-Ohio-2041.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 10CA3402
:
vs. : Released: May 3, 2012
:
DANIEL ALEXANDER, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
APPEARANCES:
Robert A. Cassity, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecutor, and Joseph L. Hale, Scioto County
Assistant Prosecutor, Portsmouth, Ohio, for Appellee.
McFarland, J.:
{¶1} Appellant Daniel Alexander appeals his conviction in the Scioto
County Court of Common Pleas after a jury found him guilty of one count of theft
from an elderly person and one count of breaking and entering. Appellant raises
two assignments of error, arguing 1) the trial court erred in assessing restitution
without hearing evidence as to the amount of restitution, and 2) the trial court erred
because Appellant’s conviction was against the manifest weight of the evidence.
Having reviewed the record, we sustain Appellant’s first assignment of error,
overrule his second assignment of error, and remand the case for further
proceedings.
Scioto App. No. 10CA3402 2
FACTS
{¶2} On December 14, 2009, Harold Carey (“Carey”) entered his garage and
noticed his lawn trimmer (also referred to as a “weedeater”), a drill, and a pair of
vice grips were missing. Carey called the police and Deputy Paul Bloomfield
(“Dep. Bloomfield”) of the Scioto County Sheriff’s Office responded. Dep.
Bloomfield examined the garage, but found no signs of forced entry.
{¶3} Carey explained to Dep. Bloomfield his suspicion it was Appellant, his
neighbor and occasional employee, who had taken the items. Carey had previously
employed Appellant to mow his lawn and shovel snow from his property. To enter
his garage, Carey would unlock the side door, and often leave it unlocked, but
closed, throughout the day if he planned to use the garage frequently. Carey would
permit Appellant to enter his garage if necessary, but permission to do so was
always limited and Carey monitored Appellant.
{¶4} Dep. Bloomfield explained he could not proceed without more
evidence. Carey then inquired whether he could pretend he had a video camera in
his garage to catch Appellant red-handed, and Dep. Bloomfield responded, “Please
do.” (Tr. at 24.)
{¶5} After Carey spoke to Dep. Bloomfield, Appellant’s fiancé came to
Carey’s home to use the phone. Carey told her he was missing several items from
his garage and he had a photo of Appellant taking one of them. Appellant spoke to
Scioto App. No. 10CA3402 3
Carey about his accusation. According to Carey, Appellant admitted he had taken
the items and promised to repay Carey by early January. The following day, the
lawn trimmer appeared on Carey’s property.
{¶6} Appellant, however, denies he admitted taking the items. Appellant
was aware Carey serendipitously regained possession of his lawn trimmer, but
disclaimed being the one who had returned it.
{¶7} Appellant proceeded to trial and the jury convicted him of theft from an
elderly person and breaking and entering. The trial court sentenced Appellant to
11 months on each count, to be served concurrently. Appellant now appeals.
ASSIGNMENTS OF ERROR
I. “The Trial Court Erred in Assessing Restitution without hearing
Evidence as to the Amount of Restitution.”
II. “The Trial Court Erred because the Appellant’s Conviction was
against the Manifest Weight of the Evidence.”
LEGAL ANALYSIS
A. Restitution
{¶8} In his first assignment of error, Appellant argues the trial court erred
when it imposed restitution of $250 without receiving any evidence of the value of
the unreturned items. We agree.
{¶9} A defendant who fails to object to the amount of restitution waives all
but plain error. State v. Johnson, 4th Dist. No. 03CA11, 2004-Ohio-2236, at ¶ 8-9.
Scioto App. No. 10CA3402 4
“[T]here are ‘three limitations on a reviewing court’s decision to correct [a waived
error]. First, there must be an error, i.e., a deviation from a legal rule. * * *
Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R.
52(B), an error must be an ‘obvious’ defect in the trial proceedings. * * * Third,
the error must have affected ‘substantial rights.’ [The Supreme Court of Ohio has]
interpreted this aspect of the rule to mean that the trial court’s error must have
affected the outcome of the trial.” State v. Lynn, Slip Opinion No. 2011-Ohio-
2722, at ¶ 13, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759
N.E.2d 1240. Regarding the third limitation, “reversal is warranted only when the
outcome of the trial clearly would have been different without the error.” Beebe, at
¶10, citing State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph
two of the syllabus.
{¶10} Yet “[e]ven when all three prongs are satisfied, a court still has
discretion whether or not to correct the error.” Lynn at ¶ 14, citing State v. Noling,
98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 62. Courts are “to notice
plain error ‘with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’” Id. at ¶ 14, quoting Barnes at 27,
quoting Long at paragraph three of the syllabus.
{¶11} “If the court imposes restitution, the court may base the amount of
restitution it orders on an amount recommended by the victim * * * and other
Scioto App. No. 10CA3402 5
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. 2929.18(A)(1). The
court need only hold a hearing is the amount of restitution is disputed, R.C.
2929.18(A)(1), but a hearing to determine the offender’s ability to pay is
discretionary. R.C. 2929.18(E).
{¶12} “A trial court abuses its discretion when it orders restitution in an
amount that has not been determined to bear a reasonable relationship to the actual
loss suffered as a result of the defendant’s offense.” Johnson at ¶ 11, citing State v.
Martin, 140 Ohio App.3d 326, 2000-Ohio-1942, 747 N.E.2d 318 and State v.
Williams (1986), 34 Ohio App.3d 33, 34, 516 N.E.2d 1270. “[T]he amount of the
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.” Johnson at ¶ 10, citing State v. Sommer, 154 Ohio App.3d 421, 424,
2003-Ohio-5022 at ¶ 12 and State v. Gears (1999), 135 Ohio App.3d 297, 300, 733
N.E.2d 683. “Since the amount of restitution must bear some reasonable
relationship to the loss suffered, it logically follows that there must be some factual
findings in the record to substantiate the figures.” State v. Poole (Oct. 6, 1992),
4th Dist. No. 522. See, also, State v. Poole (Apr. 14, 1994), 4th Dist. No. 563
Scioto App. No. 10CA3402 6
(reversing and remanding case when there was no evidence in the record to
substantiate a restitution order).
{¶13} Here, the trial court proceeded to sentencing immediately after the
jury returned its verdict. When considering the issue of restitution, the trial court
heard only the following from the prosecutor: “Our file has noted that the drill and
vice grips that defendant was accused of stealing had a total value of $250. The
weedeater was returned.” (Tr. at 136.) There was nothing else in the record
bearing upon the value of the stolen goods.
{¶14} With no evidence in the record regarding the value of the drill and
vice grips, we cannot find the trial court’s order of $250 restitution bears a
reasonable relationship to the actual loss Carey suffered as a result of Appellant’s
offenses. Thus, we sustain Appellant’s first assignment of error. We vacate the
portion of Appellant’s sentence that ordered him to pay $250 restitution and
remand the case to the trial court to determine the proper amount of restitution due
Carey.
B. Manifest Weight
{¶15} In his second assignment of error, Appellant argues his convictions
are against the manifest weight of the evidence. Specifically, Appellant argues he
successfully impeached Carey’s testimony by demonstrating Carey had lied about
having photographic evidence of Appellant’s guilt, and by demonstrating Carey
Scioto App. No. 10CA3402 7
continued to employ Appellant for odd jobs after the alleged theft occurred. We
find no merit to Appellant’s argument.
{¶16} “In determining whether a criminal conviction is against the manifest
weight of the evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed.” State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, at ¶ 24,
citing State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. A
reviewing court “may not reverse a conviction when there is substantial evidence
upon which the [trier of fact] could reasonably conclude that all elements of the
offense have been proven beyond a reasonable doubt.” State v. Johnson (1991), 58
Ohio St.3d 40, 42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d
56, 526 N.E.2d 304, at paragraph two of the syllabus.
{¶17} We must still remember that the weight to be given evidence and the
credibility to be afforded testimony are issues to be determined by the trier of fact.
State v. Frazier (1995), 73 Ohio St.3d 323, 339, 652 N.E.2d 1000, citing State v.
Grant (1993), 67 Ohio St.3d 465, 477, 620 N.E.2d 50. The trier of fact “is best
able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proffered
Scioto App. No. 10CA3402 8
testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461
N.E.2d 1273. “Moreover, ‘[t]o reverse a judgment of a trial court on the weight of
the evidence, when the judgment results from a trial by jury, a unanimous
concurrence of all three judges on the court of appeals panel reviewing the case is
required.’” State v. Blevins, 4th Dist. No. 10CA3353, 2011-Ohio-3367, at ¶ 17,
quoting Thompkins, supra, at paragraph four of the syllabus (construing and
applying Section 3(B)(3), Article IV Ohio Constitution).
{¶18} R.C. 2913.02 provides:
“(A) No person, with purpose to deprive the owner of property * * *, shall
knowingly obtain or exert control over * * * the property * * * in any of the
following ways:
“(1) Without the consent of the owner or person authorized to give consent.
***
“(B)(1) Whoever violates this section is guilty of theft.
***
“(3) * * * [I]f the victim of the offense is an elderly person * * *, a violation
of this section is theft from an elderly person * * *, and division (B)(3) of this
section applies.”
Scioto App. No. 10CA3402 9
R.C. 2911.13 provides:
“(A) No person by force, stealth, or deception, shall trespass in an
unoccupied structure, with purpose to commit therein any theft offense, as defined
in section 2913.01 of the Revised Code, or any felony.
***
“(C) Whoever violates this section is guilty of breaking and entering, a
felony of the fifth degree.”
Theft from an elderly person is a theft offense. R.C. 2913.01(K)(1).
{¶19} Regarding theft from an elderly person, an elderly person is anyone at
least 65 years old. R.C. 2913.01(CC). It was undisputed Carey met the definition
of “elderly.”1
{¶20} While Appellant denied taking the items from Carey’s garage, there
was evidence he had. According to Carey, Appellant not only admitted to taking
the property, but he offered to repay Carey for the items he no longer possessed.
Appellant then returned the lawn trimmer. This showed Appellant knowingly
exerted control over Carey’s property without consent. Appellant’s disposition of
two-thirds of the property also leads to the conclusion his purpose was to deprive
Carey of his property. Thus, there was substantial evidence Appellant committed
theft from an elderly person.
1
Carey was 79 when he testified at trial.
Scioto App. No. 10CA3402 10
{¶21} Concerning Appellant’s argument he had thoroughly impeached
Carey, whether that occurred was a matter for the jury to decide. Carey admitted
he lied when he told Appellant and his fiancé he possessed photographic evidence
of Appellant stealing the lawn trimmer. It was the jury’s province to believe Carey
– believe his lie was merely part of a ruse designed to elicit incriminating evidence
from Appellant – or to disbelieve Carey and consider him an untruthful and
incredible witness, or any combination thereof. Based upon the verdict, the jury
obviously gave credence to Carey’s testimony, much to Appellant’s chagrin. We
see no reason to disturb the jury’s determination of Carey’s credibility.
{¶22} Likewise, there was substantial evidence upon which to convict
Appellant of breaking and entering. To prove breaking and entering, the state
needed to show Appellant trespassed in Carey’s garage, by force, stealth, or
deception, and intended to commit a theft offense. As the jury convicted Appellant
of theft from an elderly person, it had already found Appellant had an intent to
commit a theft offense once inside the garage. All that remained to determine was
whether Appellant had consent to enter the garage and whether he entered by
force, stealth, or deception.
{¶23} The jury was rightly instructed, “Force means any violence,
compulsion, effort or constraint exerted or used by any means upon or against a
person or thing to gain entrance.” (Tr. at 122.) See, also, State v. Lane (1976), 50
Scioto App. No. 10CA3402 11
Ohio App.2d 41, 45-47, 361 N.E.2d 541 (holding the effort necessary to open an
unlocked door was sufficient to establish force), followed in State v. Scott (Aug.
12, 1992), 4th Dist. No. 457. Carey testified he generally kept the garage locked,
but sometimes left the side door unlocked and closed if he would be using the
garage throughout the day. Carey was also very insistent no one was permitted in
his garage without his supervision. (Tr. at 45.)
{¶24} Given these facts, a finding that Appellant stole the items necessitates
a finding he also used some effort to open the door, which qualifies as “force.”
Again, Carey had not given Appellant permission to be in the garage when he stole
the items, meaning Appellant was trespassing when he stole the items. Thus, there
was substantial evidence upon the jury convicted Appellant of breaking and
entering.
{¶25} The jury did not lose its way, nor was there a manifest miscarriage of
justice. Accordingly, we find Appellant’s convictions were not against the
manifest weight of the evidence and we overrule his second assignment of error.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION.
Scioto App. No. 10CA3402 12
Harsha, P.J., Concurring in part and Dissenting in part:
{¶26} I agree with the majority that Alexander’s convictions for theft and
breaking and entering are supported by the weight of the evidence. However, I see
no error, plain or otherwise, in the trial court’s order of restitution.
{¶27} R.C. 2929.18(A)(1) permits the court to base the amount of restitution
it orders on various factors, including a generic reference to “other information.”
Here, the prosecutor informed the court that the two unreturned items “had a total
value of $250.” The statute also dispenses with the need for a hearing on the
amount of restitution unless that amount is disputed. Id. Here, the defendant
neither objected to the prosecutor’s statement nor disputed the value stated. In my
view, this silence amounts to forfeiture of the right to contest value provided by the
prosecutor’s “other information.” Thus, the trial court was justified in relying
upon it to issue its order of restitution.
{¶28} Assuming arguendo that the court’s order was an abuse of discretion,
I still would not apply plain error in light of Alexander’s silence at a time when the
court could have corrected such an error. In other words, I see no manifest
miscarriage of justice here. See State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-
68. See, also, Crim.R. 52(B) which states a reviewing court “may” notice plain
error, i.e., a court is not required to do so.
Scioto App. No. 10CA3402 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED
IN PART, AND CAUSE REMANDED and that the Appellee and Appellant split
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
Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Part and Dissents in part with Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.