[Cite as State v. Pagan, 2010-Ohio-833.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY



STATE OF OHIO,                                            CASE NO. 3-09-13

   PLAINTIFF-APPELLEE,

  v.

ELIAS A. PAGAN,                                             OPINION

   DEFENDANT-APPELLANT.



                Appeal from Crawford County Common Pleas Court
                           Trial Court No. 09-CR-0032

                                      Judgment Affirmed

                             Date of Decision: March 8, 2010




APPEARANCES:

        Shane M. Leuthold for Appellant

        Clifford J. Murphy for Appellee
Case No. 3-09-13



ROGERS, J.

           {¶1} Defendant-Appellant, Elias Pagan, appeals the judgment of the

Court of Common Pleas for Crawford County convicting him of burglary and

ordering him to pay $34,886 in restitution to the burglary victim. On appeal,

Pagan asserts that the trial court erred in ordering him to pay restitution and in

failing to instruct the jury pursuant to R.C. 2945.11. Based upon the following,

we affirm the judgment of the trial court.

           {¶2} In March 2009, the Crawford County Grand Jury indicted Pagan on

one count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second

degree. The indictment contained a one-year firearm specification pursuant to

R.C. 2941.141. Thereafter, Pagan entered a plea of not guilty. The indictment

stemmed from an incident during which Pagan and co-defendants Darren M.

Conley and Steven R. Kopp burglarized the home of victim Steven Sipes.

           {¶3} In June 2009, the case proceeded to trial.1 Thereafter, the jury found

Pagan not guilty of burglary in violation of R.C. 2911.12(A)(2), but found him

guilty of the lesser-included offense of burglary in violation of R.C.

2911.12(A)(3), a felony of the third degree.

           {¶4} In August 2009, the trial court sentenced Pagan to a four-year prison

term and ordered him to pay $34,886 in restitution to the victim, owed jointly and



1
    We note that Pagan did not provide a transcript of the trial proceedings.


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severally with his co-defendants. At the sentencing hearing, Sipes discussed many

of the items that were taken from his home in the burglary and had not been

recovered, including food, jewelry, clothing, Christmas gifts, multiple firearms,

and cash. Additionally, the trial court stated that the document presented by the

prosecution pertaining to restitution would be made a part of the record.2

        {¶5} It is from this judgment that Pagan appeals, presenting the following

assignments of error for our review.

                                   Assignment of Error No. I

        THE TRIAL COURT ERRED WHEN IT ORDERED THE
        DEFENDANT TO PAY RESTITUTION IN THE AMOUNT OF
        $34,886.

                                   Assignment of Error No. II

        THE COURT ERRED BY FAILING TO INSTRUCT THE
        JURY PURSUANT TO RC 2945.11.

                                    Assignment of Error No. I

        {¶6} In his first assignment of error, Pagan argues that the trial court erred

when it ordered him to pay Sipes restitution in the amount of $34,886.

Specifically, Pagan argues that there was no testimony presented at sentencing that

Sipes suffered a $34,886 loss due to the burglary, and that Sipes’ statement that he

had compiled a list detailing his losses and the corresponding document were


2
 Although the trial court asserted at the sentencing hearing that the restitution document would be made a
part of the record, and although the document is attached to Pagan’s appellate brief, the document does not
appear in the record.


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insufficient to establish what items were stolen and the value of those items. We

disagree.

       {¶7} An appellate court reviews a trial court’s decision to impose

restitution under an abuse of discretion standard. State v. Griffus, 3d Dist. No. 14-

08-39, 2009-Ohio-304, ¶7, citing State v. Lamere, 3d Dist. No. 1-07-11, 2007-

Ohio-4930, ¶¶6-7. An abuse of discretion implies that the trial court’s decision is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219. Under this standard of review, an appellate court may not

simply substitute its judgment for that of the trial court. Id. “However, the

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.” (Citations omitted.) State v. Didion, 173 Ohio

App.3d 130, 2007-Ohio-4494, ¶20.

       {¶8} Restitution is governed by R.C. 2929.18, which provides that courts

may impose financial sanctions in certain cases including, in pertinent part:

       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 * *
       *. 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,


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       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 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.

(Emphasis added.) R.C. 2929.18(A)(1).           Accordingly, R.C. 2929.18(A)(1)

specifically provides that “the court may base the amount of restitution it orders on

an amount recommended by the victim.” See, e.g., State v. Policaro, 10th Dist.

No. 06AP-913, 2007-Ohio-1469, ¶8; State v. Anderson, 1st Dist. Nos. C-050785,

C-050786, 2006-Ohio-4602, ¶9; State v. Gregg, 11th Dist. No. 2006-A-0013,

2007-Ohio-1201, ¶58; State v. Morgan, 11th Dist. No. 2005-L-135, 2006-Ohio-

4166, ¶¶26-30; In re Hatfield, 4th Dist. No. 03CA14, 2003-Ohio-5404, ¶12.

       {¶9} Initially, we note that Pagan failed to object to the restitution award

and failed to request a hearing on restitution. As he failed to object, Pagan has

waived all but plain error regarding the restitution findings. See State v. Miller, 3d

Dist. No. 1-09-32, 2009-Ohio-6157, ¶5, citing State v. Stewart, 3d Dist. No. 16-

08-11, 2008-Ohio-5823; State v. Marbury (1995), 104 Ohio App.3d 179, 181. In

order to have plain error under Crim.R. 52(B), there must be an error, the error

must be an “obvious” defect in the trial proceedings, and the error must have

affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.



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Plain error is to be used “with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” Id. Plain error exists only

in the event that it can be said that “but for the error, the outcome of the trial

would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 431, 1997-

Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-Ohio-825.

      {¶10} Further, we note that the State has pointed out that Pagan failed to

provide a transcript of the trial on appeal. The State further contends that the

transcript demonstrates the evidence at trial established that the amount of

restitution was justified. An appellant bears the burden of furnishing a record to

the appellate court that is sufficient to disclose the error of which he complains.

App.R. 9(B); State v. Deal, 3d Dist. No. 5-08-15, 2008-Ohio-5408, ¶7.

Consequently, “[w]hen portions of the transcript necessary for resolution of

assigned errors are omitted from the record, the reviewing court has nothing to

pass upon and thus, as to those assigned errors, the court has no choice but to

presume the validity of the lower court’s proceedings, and affirm.” See Knapp v.

Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; Deal, 2008-Ohio-5408, at

¶7.

      {¶11} Here, because Pagan failed to provide a transcript of the trial

proceedings, which the State avers contains evidence substantiating the items

Sipes lost and the items’ values, we must presume regularity in the trial



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proceedings and that competent, credible evidence existed to support the $34,886

restitution award. See Knapp, 61 Ohio St.2d at 199.

       {¶12} Accordingly, we overrule Pagan’s first assignment of error.

                             Assignment of Error No. II

       {¶13} In his second assignment of error, Pagan argues that the trial court

erred by failing to instruct the jury on the range of available punishments for each

degree of felony burglary. Specifically, Pagan argues that R.C. 2945.11 requires

the trial court to instruct juries on punishment in cases of burglary of inhabited

dwellings, and that, had the jury been aware that the potential penalty for R.C.

2911.12(A)(3) was a five-year prison term, it would not have found him guilty

since he alleged he never entered Sipes’ home.

       {¶14} Initially, we note that Pagan did not request a jury instruction on the

range of available punishments for each degree of felony burglary. As this alleged

error was not brought to the attention of the trial court, Pagan has waived all but

plain error. Crim.R. 52(B); Crim.R. 30(A); State v. Bridge, 3d Dist. No. 1-06-30,

2007-Ohio-1764, ¶¶19-20.        As discussed in our analysis of Pagan’s first

assignment of error, plain error exists only in the event that it can be said that “but

for the error, the outcome of the trial would clearly have been otherwise.” Biros,

78 Ohio St.3d at 436; see Johnson, supra.

       {¶15} R.C. 2945.11, on which Pagan relies, provides that:



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       In charging the jury, the court must state to it all matters of law
       necessary for the information of the jury in giving its verdict.
       The court must also inform the jury that the jury is the exclusive
       judge of all questions of fact. The court must state to the jury
       that in determining the question of guilt, it must not consider the
       punishment but that punishment rests with the judge except in
       cases of murder in the first degree or burglary of an inhabited
       dwelling.

R.C. 2945.11 was codified in 1953 and has not been modified since that time. In

1953, the former R.C. 2907.09 prohibited “burglary in an inhabited dwelling,”

which provided, in pertinent part:

              No person shall in the night season maliciously and
       forcibly break and enter an inhabited dwelling house with intent
       to commit a felony, or with intent to steal property of any value.
              Whoever violates this section shall be imprisoned for life.
       Upon recommendation of mercy by the jury such person shall be
       imprisoned not less than five years nor more than thirty years. *
       **

Baldwin’s Ohio Criminal Law (1954) 297. R.C. 2907.09 was repealed in 1974 and

replaced with R.C. 2911.11, prohibiting aggravated burglary, and R.C. 2911.12,

prohibiting burglary. See State v. Korb, 6th Dist. No. WD-94-054, 1995 WL

232354. R.C. 2911.12, for which Pagan was indicted and convicted, provides, in

pertinent part:

       (A) No person, by force, stealth, or deception, shall do any of
       the following:

       ** *

       (2) Trespass in an occupied structure or in a separately secured
       or separately occupied portion of an occupied structure that is a


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         permanent or temporary habitation of any person when any
         person other than an accomplice of the offender is present or
         likely to be present, with purpose to commit in the habitation
         any criminal offense;

         (3) Trespass in an occupied structure or in a separately secured
         or separately occupied portion of an occupied structure, with
         purpose to commit in the structure or separately secured or
         separately occupied portion of the structure any criminal
         offense;

         ***

         (C) Whoever violates this section is guilty of burglary. A
         violation of division (A)(1) or (2) of this section is a felony of the
         second degree. A violation of division (A)(3) of this section is a
         felony of the third degree. A violation of division (A)(4) of this
         section is a felony of the fourth degree.

         {¶16} The clear reading of 2945.11 requires only that the trial court inform

the jury that, in determining the question of guilt, it may not consider punishment

because punishment is the trial judge’s decision, with the exception of first degree

murder and “burglary of an inhabited dwelling” offenses. R.C. 2945.11. The

offense of “burglary in an inhabited dwelling” under the 1953 version of R.C.

2907.09 is no longer the law in Ohio, and, notably, this former statute imposed a

life sentence for that offense, unless the jury recommended otherwise. See Korb,

supra.    The current statutes prohibiting burglary, including R.C. 2911.12, for

which Pagan was indicted and convicted, do not contain such a provision

permitting jury recommendations in sentencing. Additionally, Pagan has pointed

to no statutory or case law requiring a trial court to instruct a jury on the potential


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penalties for the current offense of burglary. See Korb, supra (finding that R.C.

2945.11 did not require a trial court to instruct the jury on punishment for

aggravated burglary under R.C. 2911.11 because the former version of R.C.

2907.09, prohibiting “burglary in an inhabited dwelling,” was no longer the law,

and R.C. 2911.11 did not include a provision permitting the jury to participate in

sentencing).

       {¶17} Even further, although Pagan baldy asserts that, had the jury been

aware that the potential penalty was a five-year prison term, it would not have

found him guilty of violating R.C. 2911.12(A)(3) because he never entered Sipes’

dwelling, he provides no evidence to support these assertions. Especially given

that Pagan did not provide this Court with a transcript of the trial, we cannot find

that he has demonstrated that, but for the trial court’s failure to instruct the jury on

the range of punishments for each degree of felony burglary, the outcome at trial

would clearly have been different. See Deal, 2008-Ohio-5408, at ¶7; Biros, 78

Ohio St.3d at 431.

       {¶18} Accordingly, we overrule Pagan’s second assignment of error.

       {¶19} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

WILLAMOWSKI, P.J., and SHAW, J., concur.
/jnc


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