State v. Moore

[Cite as State v. Moore, 2022-Ohio-4261.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 22 CA 000007
JOSHUA A. MOORE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from Guernsey County
Court of Common Pleas, Case No. 21 CR
309
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 29, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON R FARLEY JOSHUA A. MOORE #A798-410 Pro Se
Assistant Prosecutor North Central Correctional Complex
627 Wheeling Avenue Box 1812
Cambridge, OH 43725 Marion, OH 44301-1812
Guernsey County, Case No. 22 CA 000007 2
Gwin, P.J.
{¶1} Appellant Joshua A. Moore appeals from the March 30, 2022 judgment
entry of the Guernsey County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} A homeowner placed sheets of aluminum awning on the back porch of her
unoccupied home on July 21, 2021. When she went to check on the house the next day,
the aluminum awning was gone, as were a toolbox and tools that were inside the home.
The police determined appellant stole the aluminum awning and tools. Appellant took the
aluminum awning to Lowry Metal Recycling to scrap. The receipt from Lowry Metal shows
appellant was paid $140.00. The receipt also shows a picture of a black Ford pick-up
truck occupied by appellant with sheets of aluminum in the rear bed.
{¶3} Appellant was indicted on September 21, 2021, with one count of burglary,
in violation of R.C. 2911.12(A)(3) and R.C. 2911.12(D), a felony of the third degree.
{¶4} The trial court held a plea and sentencing hearing on March 29, 2022. Prior
to the start of the hearing, appellee moved to amend the charge to one count of theft
pursuant to R.C. 2913.02(A)(1) and R.C. 2913.029(B)(2), a felony of the fifth degree.
Counsel for appellant had no objection. The trial court granted the motion. The trial court
then conducted a plea colloquy, and found appellant’s guilty plea was voluntary, knowing,
and intelligent. The court accepted the plea of guilty, and sentenced appellant to a stated
prison term of six months under the terms of a negotiated plea. The six months is to be
served consecutively to prison terms from two other cases appellant had pending.
{¶5} As part of the negotiated plea, the parties agreed appellant would pay
restitution to the victim, but that the parties would present evidence as to the appropriate
Guernsey County, Case No. 22 CA 000007 3
amount of restitution at the sentencing hearing. At the hearing, appellee introduced
documentary evidence showing the estimate obtained by the victim from Dura-Bilt Patio
Awning for new awning was $4,755. Further, appellee stated the victim had a deductible
of $500, and that the victim’s insurance company sent the victim a check for $2,035.75.
Accordingly, appellee requested restitution in the amount of $2,719.25 (estimate of
$4,755 minus $2,035.75 check from insurance). Counsel for appellant argued the $4,755
was only one estimate, it was too high an estimate, and the victim should have obtained
at least three estimates to replace the awning. Further, that because the insurance
company only valued the claim at $2,035.75, the victim should only receive the deductible
amount of $500.00 because the $2,035.75 the victim received from his insurance
company adequately compensated the victim. The trial court found the appropriate
amount of restitution was $2,719.25.
{¶6} The trial court entered a judgment entry of sentence on March 30, 2022.
Appellant appeals the March 30, 2022 judgment entry of the Guernsey County Court of
Common Pleas, and assigns the following as error:
{¶7} “I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS
DETERMINATION AS TO THE AMOUNT OF RESTITUTION ORDERED UPON THE
APPELLANT.
{¶8} “II. THE CONVICTION IS INSUFFICIENT AS A MATTER OF LAW AS THE
STATE FAILED TO ESTABLISH THE VALUE OF THE PROPERTY STOLEN.”
I.
{¶9} In his first assignment of error, appellant contends the trial court committed
error in ordering him to pay restitution of $2,719.25 because the quote from the awning
Guernsey County, Case No. 22 CA 000007 4
company was too high, and the trial court should have limited the restitution amount to
the amount of the victim’s deductible.
{¶10} R.C. 2929.18(A)(1) governs restitution orders and provides as follows:
(A) Except as otherwise provided in this division and in addition to imposing
court costs * * * 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 * * * [f]inancial 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, 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. * * *
{¶11} We review restitution orders under an abuse of discretion standard. State
v. Sheets, 5th Dist. Licking NO. 17 CA 44, 2018-Ohio-996. An order of restitution must
be supported by competent and credible evidence from which the trial court can discern
Guernsey County, Case No. 22 CA 000007 5
the amount of restitution to a reasonable degree of certainty. State v. Spencer, 5th Dist.
Delaware No. 16 CAA 04 0019, 2017-Ohio-59. Furthermore, a trial court abuses its
discretion if it orders restitution in an amount that does not bear a reasonable relationship
to the actual loss suffered. Id.{¶12} The evidence which supports a court’s restitution order “can take the form
of either documentary evidence or testimony.” State v. Jones, 10th Dist. Franklin No.
14AP-80, 2014-Ohio-3740.
{¶13} This Court has previously held that a victim is not entitled to reimbursement
from a defendant for damage that was paid for by the victim’s insurance carrier. State v.
Castaneda, 168 Ohio App.3d 686, 2006-Ohio-5078, 861 N.E.2d 601 (5th Dist. Ashland).
However, in this case, the victim’s insurance carrier did not pay the full amount needed
to repair the awning as per the estimate submitted by the victim. Thus, there is no double
recovery or “windfall” to the victim. Rather, $2,719.25 is the amount of economic loss
suffered by the victim as a direct and proximate result of the commission of the theft
offense. State v. Frank, 5th Dist. Muskingum No. CT2017-0102, 2018-Ohio-5148; see
also R.C. 2929.01(L).
{¶14} We find there is competent and credible evidence to support the amount of
restitution imposed by the trial court under R.C. 2929.18(A)(1). Appellee presented
uncontroverted documentary evidence that it would cost the victim $4,755 to replace the
awning, and the insurance company covered $2,035.75 of that amount, making the
difference $2,719.25. The trial court determined this documentary evidence was credible.
Further, R.C. 2929.18(A) specifically provides that the trial court may base the amount of
restitution on “estimates indicating the cost of repairing or replacing the property.”
Guernsey County, Case No. 22 CA 000007 6
{¶15} Based on the foregoing, we find the trial court did not abuse its discretion in
ordering appellant to pay $2,719.25 in restitution. Appellant’s first assignment of error is
overruled.
II.
{¶16} In his second assignment of error, appellant argues the evidence was not
sufficient to support the theft conviction because the value of the property stolen is less
than $1,000.
{¶17} However, appellant entered a plea of guilty in this case. A guilty plea waives
a defendant’s right to challenge the sufficiency of the evidence to support a conviction.
State v. Schnarr, 5th Dist. Licking No. 18 CA 0035, 2019-Ohio-29; State v. Dickerson, 5th
Dist. Richland No. 2022 CA 0027, 2022-Ohio-3012.
{¶18} Accordingly, appellant’s second assignment of error is overruled.
{¶19} Based on the foregoing, appellant’s assignments of error are overruled.
Guernsey County, Case No. 22 CA 000007 7
{¶20} The March 30, 2022 judgment entry of the Guernsey County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur