      [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.
