[Cite as State v. Cook, 2017-Ohio-1503.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
CYNTHIA RAE COOK                             :       Case No. 16-CA-28
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 15-CR-209




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    April 21, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ANDREA K. GREEN                                      SCOTT P. WOOD
239 West Main Street                                 120 ½ East Main Street
Lancaster, OH 43130                                  Lancaster, OH 43130
Fairfield County, Case No. 16-CA-28                                                         2

Wise, Earle, J.

        {¶ 1} Defendant-Appellant, Cynthia Rae Cook, appeals the July 21, 2016

judgment entry of the Court of Common Pleas of Fairfield County, Ohio, ordering

restitution in the amount of $6,304.00 to the victim. Plaintiff-Appellee is the state of

Ohio.

                        FACTS AND PROCEDURAL HISTORY

        {¶ 2} On June 5, 2015, the Fairfield County Grand Jury indicted appellant on

one count of theft in violation of R.C. 2913.02. Said charge arose from monies stolen

while appellant was an employee of OB/GYN Associates of Lancaster, Inc.

        {¶ 3} A bench trial commenced on June 22, 2016. By entry filed June 24, 2016,

the trial court found appellant guilty as charged, and found the amount of the theft to be

$3,804.00.

        {¶ 4} A sentencing hearing was held on July 13, 2016. During the hearing, the

office manager for OB/GYN Associates testified to the amount of overtime paid

($2,500.00) to employees to investigate the amount of the loss. By judgment entry filed

July 21, 2016, the trial court sentenced appellant to two years of community control, and

ordered her to pay restitution in the amount of $3,804.00 for the loss associated with the

theft offense and an additional 2,500.00 for the expenses incurred for the investigation.

        {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

        {¶ 6} "THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT OF

RESTITUTION."
Fairfield County, Case No. 16-CA-28                                                     3


                                              I

       {¶ 7} In her sole assignment of error, appellant claims the trial court erred in

ordering restitution in the amount of $6,304.00. Specifically, appellant claims the trial

court erred in including the costs associated with investigating the theft and determining

the amount of the loss ($2,500.00). We agree.

       {¶ 8} We review restitution orders under an abuse of discretion standard. State

v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio-7389, ¶ 40, citing State

v. Williams, 34 Ohio App.3d 33, 516 N.E.2d 1270 (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, 450 N.E.2d 1140 (1983).

       {¶ 9} R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the

following in pertinent part:



              (A) * * * 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 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
Fairfield County, Case No. 16-CA-28                                                     4


      not exceed the amount of the economic loss suffered by the victim as a

      direct and proximate result of the commission of the offense.



      {¶ 10} "Economic loss" is defined in R.C. 2929.01(L) and 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.



      {¶ 11} In fashioning the restitution award, the trial court stated the following (T.

at 27-28):



             Here's what the Court's finding with regard to restitution.

             The Court found during the trial that the State was able to prove

      $3,804 was taken. So I'm ordering that you pay that.

             Also, I'm ordering that you pay $2,500 for overtime to the staff.

      Yes, there's an argument that that was a fee that was derived as a result

      of preparation for trial. But also, the company wanted to know how much

      money it was out, and I think they had a right to bring in accountants or do

      an internal audit, or what have you, to find out the full extent of the theft
Fairfield County, Case No. 16-CA-28                                                       5


       that did occur over a period of time. And so the Court does not believe

       this to be an unreasonable amount and will also award this as part of

       restitution.

              The total amount is $6,304.



       {¶ 12} Appellant argues the trial court erred by including the $2,500.00 in the

restitution order.

       {¶ 13} In support of her argument, appellant cites the case of State v. Lalain, 136

Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, wherein an employee stole electronic

files, documents, and equipment from his employer. "In this case the victim submitted a

letter seeking to recover the cost of an expert report on the value of its loss and the time

spent by employees trying to identify and value the items taken—all of which were

returned. It sought $63,121 as restitution for expenses not incurred as the direct and

proximate result of the commission of the offense." Lalain at ¶ 4.

       {¶ 14} The Lalian court cited R.C. 2929.18(A)(1), and explained the following at ¶

22:



              R.C. 2929.18(A)(1) therefore limits the amount of restitution to the

       amount of the economic detriment suffered by the victim as a direct and

       proximate result of the commission of the offense.        And although the

       statute allows the court to base the amount of restitution on an amount

       recommended by the victim or the offender, a presentence investigation

       report, estimates or receipts indicating the cost of repairing or replacing
Fairfield County, Case No. 16-CA-28                                                     6


       property, and other information, it does not provide restitution for the costs

       of preparing such a report. * * *



       {¶ 15} The Lalain court concluded the following at ¶ 25:



              In this case, Aero–Instruments sought restitution of $55,456 "for the

       time spent by its employees in support of this case" and an additional

       $7,665 for the report "to provide the County Prosecutor's Office with an

       accurate valuation of the property that was recovered."         Thus, these

       expenditures are not the direct and proximate result of the commission of

       the theft offense; rather, they are consequential costs incurred subsequent

       to the theft to value the property that had been taken from and later

       returned to Aero–Instruments. * * * Thus, the trial court lacked authority to

       order $63,121 in restitution in these circumstances.



       {¶ 16} Appellee argues the trial court did not abuse its discretion in ordering

additional restitution of $2,500.00 because OB/GYN Associates "took steps to

determine which patient accounts were affected not only to assist in the investigation,

but also to determine how much money needed to be reimbursed to patients."

Appellee's Brief at 6.

       {¶ 17} During the sentencing hearing held on July 13, 2016, the office manager

for OB/GYN Associates, Deborah Leith, testified to the employer's economic loss. Ms.

Leith stated appellant stole $4,140.00, and the office paid "two staff members overtime
Fairfield County, Case No. 16-CA-28                                                        7


the month following the theft, and that came to $2,500."             T. at 9.   The amount of

overtime equaled "two staff members a minimum of four hours a day" "for three weeks

to pull evidence." T. at 10. On cross-examination, the following exchange occurred (T.

at 17-18):



                Q. * * * Now, with regard to the overtime for accounting, would you

         agree that that amount is something that you incurred in preparation for

         the criminal case?

                A. Not me, but other employees.

                Q. But it was in sole preparation for the criminal case.

                A. Correct.

                Q. That was in lieu of, say, a detective doing it, or somebody from

         the Prosecutor's Office, or an expert hired by the State.

                A. The detective requested the information.

                Q. Okay.

                A. That's why we did it.



         {¶ 18} We find, as did the Lalain court as cited above, "these expenditures are

not the direct and proximate result of the commission of the theft offense; rather, they

are consequential costs incurred subsequent to the theft to value the property that had

been taken." Pursuant to the Supreme Court of Ohio's decision in Lalain, we find the

trial court abused its discretion in including the $2,500.00 amount in the restitution

order.
Fairfield County, Case No. 16-CA-28                                               8


       {¶ 19} The sole assignment of error is granted.

       {¶ 20} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby reversed, and the matter is remanded to said court to amend the restitution

order consistent with this opinion.

By Wise, Earle, J.

Delaney, P.J. and

Wise, John, J. concur.



EEW/sg 405
