 [Cite as State v. Dolphin, 2014-Ohio-3434.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 IAN J. DOLPHIN

         Defendant-Appellant


 Appellate Case No.       25695

 Trial Court Case No. 2011-CR-3746


 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........

                                               OPINION

                                 Rendered on the 8th day of August, 2014.

                                               ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JENNIFER D. BRUMBY, Atty. Reg. No. 0076440, 1 South Main Street, Suite 1800, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                               .............

WELBAUM, J.
                                                                                              2




       {¶ 1}     Defendant-Appellant, Ian Dolphin, appeals from his conviction and sentence on

one count of Burglary, a third-degree felony. After pleading no contest to the charge, Dolphin

was sentenced to up to five years of community control, and was ordered to pay the victim,

Ebony Peake, $4,464 in restitution.

       {¶ 2}     Dolphin contends that the trial court erred in overruling his motion to suppress

fingerprint evidence records that were obtained from the Miami Valley Regional Crime Lab

(MVRCL). Dolphin also contends that the trial court abused its discretion in ordering him to

pay $4,464 in restitution.

       {¶ 3}     We conclude that the trial court did not err in overruling the motion to suppress.

 While the release of the fingerprint records may have violated R.C. 2953.53(D), which prohibits

release of sealed records, the fingerprint records fall within an exemption from suppression

contained in R.C. 2953.56(B).

       {¶ 4}     We further conclude that the trial court did not abuse its discretion in awarding

restitution. Although there was no documentation pertaining to the victim’s original purchase of

jewelry that was alleged to have been stolen, the trial court found the victim’s testimony credible,

and the trial court is in the best position to assess credibility. In addition, both the victim and her

jeweler indicated that she had purchased the jewelry from the jeweler.              Accordingly, the

judgment of the trial court will be affirmed.



                                I. Facts and Course of Proceedings

       {¶ 5}     On March 30, 2011, Dayton Police officers responded to a report of a burglary

at 4372 Free Pike, in Dayton, Ohio. During the investigation, an evidence technician obtained
                                                                                          3


latent fingerprints from the residence. No suspect had been named at the time. Subsequently,

Anthony Morelan, who works in the Bureau of Identification for the Dayton Police Department,

entered the latent prints into the Automated Fingerprint Identification System (AFIS), and

received a list of possible suspects. Morelan found one set of prints that he thought matched, but

the demographics had been removed from the system, and the only information available was that

the records had been sealed. Morelan notified the case detective, Matthew Locke, and provided

him with the AFIS number. Morelan also recommended that Locke contact the MVRCL.

       {¶ 6}     When Locke contacted the MVRCL, an unidentified person told him that the

AFIS number came back to an individual named Ian Dolphin. This person additionally said that

the records were sealed and could not be released without a court order. Locke then obtained a

Bureau of Motor Vehicles photo of Dolphin and showed it to Peake, who said she did not know

Dolphin, that he had never been in her home, and that he did not have permission to take her

property.

       {¶ 7}     After talking to Peake, Locke prepared an application and an order and entry for

a court order requesting that the MVRCL records be unsealed. After securing a court order from

a judge in Dayton Municipal Court, Locke obtained Dolphin’s fingerprint card from MVRCL.

He then provided the card to Morelan, who matched the prints on the card to the latent prints

taken from Peake’s home. The original fingerprints had been taken from Dolphin in March

2008, when he was arrested in connection with a prior charge. However, the grand jury returned

a no true bill in that case, and the records were sealed.

       {¶ 8}     After Dolphin was identified, he was indicted by the grand jury on one count of

burglary, a third-degree felony.     Dolphin filed a motion to suppress evidence, which was

overruled in January 2013. Dolphin then pled no contest to the charge, and was sentenced as
                                                                                             4


indicated above. Dolphin now appeals from his conviction and sentence.



                II. Did the Trial Court Err in Overruling the Motion to Suppress?

       {¶ 9}      Dolphin’s First Assignment of Error states that:

                The Trial Court Erred in Overruling the Defendant’s Motion to Suppress

       the Fingerprint Records from the MVRCL under AFIS No. [* * * *].

       {¶ 10}     Under this assignment of error, Dolphin contends that the trial court should have

suppressed the fingerprint records because courts have no discretion or ability to unseal criminal

records beyond the statutory exceptions listed in R.C. 2953.53(D). In contrast, the State argues

that even if the MVRCL erred in releasing Dolphin’s fingerprint records, they are not subject to

suppression, based on R.C. 2953.56(B).

       {¶ 11}     The standards for reviewing decisions on motions to suppress are well

established. In ruling on motions to suppress, “the trial court assumes the role of the trier of fact,

and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the

witnesses.” State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994),

citing State v. Clay, 34 Ohio St.2d 250, 298 N.E.2d 137 (1973). Accordingly, when we review

suppression decisions, “we are bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence.            Accepting those facts as true, we must

independently determine as a matter of law, without deference to the trial court's conclusion,

whether they meet the applicable legal standard.” Id.

       {¶ 12}     As was noted, the grand jury returned a no bill in connection with Dolphin’s

prior charge. In such situations, R.C. 2953.52(A)(2) allows defendants to apply to the court for

an order sealing the official records in the case.   Under R.C. 2953.51, “ ‘Official records’ means
                                                                                              5


all records that are possessed by any public office or agency that relate to a criminal case,

including, but not limited to: * * * all fingerprints and photographs * * *.”

       {¶ 13}     R.C. 2953.53(D) further provides that:

                Upon receiving a copy of an order to seal official records pursuant to

       division (A) or (B) of this section or upon otherwise becoming aware of an

       applicable order to seal official records issued pursuant to section 2953.52 of the

       Revised Code, a public office or agency shall comply with the order and, if

       applicable, with the provisions of section 2953.54 of the Revised Code, except

       that it may maintain a record of the case that is the subject of the order if the

       record is maintained for the purpose of compiling statistical data only and does not

       contain any reference to the person who is the subject of the case and the order.

                A public office or agency also may maintain an index of sealed official

       records, in a form similar to that for sealed records of conviction as set forth in

       division (F) of section 2953.32 of the Revised Code, access to which may not be

       afforded to any person other than the person who has custody of the sealed official

       records.

       {¶ 14}     R.C. 2953.53(D) also provides that “[t]he sealed official records to which such

an index pertains shall not be available to any person * * * .” However, the sealed records may

be made available to the following persons:

                (1) To the person who is the subject of the records upon written

       application, and to any other person named in the application, for any purpose;

                (2) To a law enforcement officer who was involved in the case, for use in

       the officer's defense of a civil action arising out of the officer's involvement in that
                                                                                           6


       case;

                (3) To a prosecuting attorney or the prosecuting attorney's assistants to

       determine a defendant's eligibility to enter a pre-trial diversion program

       established pursuant to section 2935.36 of the Revised Code;

                (4) To a prosecuting attorney or the prosecuting attorney's assistants to

       determine a defendant's eligibility to enter a pre-trial diversion program under

       division (E)(2)(b) of section 4301.69 of the Revised Code.

R.C. 2953.53(D)(1)-(4).

       {¶ 15}    Dolphin maintains that these exceptions are strictly limited, and that the Dayton

Municipal Court could not have issued an order overruling the order of the prior court that sealed

the records. A recent decision of the First District Court of Appeals has concluded that “a court

possesses inherent authority to unseal records that have been sealed, and may exercise that

authority in unusual and exceptional cases.” State v. Vanzandt, 2013-Ohio-2290, 990 N.E.2d

692, ¶ 1 (1st Dist.). Vanzandt is not of particular assistance to the case before us, however,

because it involved a motion filed in the same case and in the same court that had granted the

defendant’s motion to seal the record. Id. at ¶ 2-3. The State in that case asked to unseal the

record because the defendant, although acquitted of the original charge, was being prosecuted for

retaliating against a confidential informant only three days after the records of the case had been

sealed. Id. at ¶ 3.

       {¶ 16}    In contrast, the case before us involves a rather unorthodox situation in which a

police detective filed a request to unseal records with a different court than the one which issued

the order sealing the records. The police detective, by his own testimony, appears to have been

unaware of the existence of statutes pertaining to sealing of records. Furthermore, even if we
                                                                                                                            7


agreed with the reasoning in Vanzandt, the case before us does not involve any unusual or

exceptional circumstances. Instead, it was a routine police investigation.1

         {¶ 17}       Despite the procedural irregularities, we agree with the trial court that it could

not grant the motion to suppress even if a violation did occur. In this regard, R.C. 2953.56

provides that:

                   Violations of sections 2953.31 to 2953.61 of the Revised Code shall not

         provide the basis to exclude or suppress any of the following evidence that is

         otherwise admissible in a criminal proceeding, delinquent child proceeding, or

         other legal proceeding:

                   (A) DNA records collected in the DNA database;

                   (B) Fingerprints filed for record by the superintendent of the bureau of

         criminal identification and investigation;

                   (C) Other evidence that was obtained or discovered as the direct or indirect

         result of divulging or otherwise using the records described in divisions (A) and

         (B) of this section.

         {¶ 18}       Dolphin argues that this section does not apply to the case before us, because the

fingerprint records were kept by the MVRCL, not the Bureau of Criminal Identification and

Investigation (BCII).            However, we disagree.                   Although the records were disclosed by

MVRCL, the testimony at the suppression hearing indicated that fingerprint records gathered at

the Montgomery County Jail are automatically transferred to both the MVRCL and BCII. Thus,


           1
               We note that the Supreme Court of Ohio has accepted an appeal in Vanzandt, but no decision has yet been issued. See State
 v. Vanzandt, 136 Ohio St.3d 1491, 2013-Ohio-4140, 994 N.E.2d 462 (Table).
                                                                                          8


the fingerprint records in the case before were fingerprints filed for record with BCII, and fall

within the exemption from suppression under R.C. 2953.56(B). In addition, the information

used to prosecute Dolphin was discovered by using the fingerprint records, and was likewise, not

subject to suppression under R.C. 2953.56(C).

        {¶ 19}    In light of the exemptions in R.C. 2953.56(B) and (C), we cannot find that the

trial court erred in refusing to suppress the fingerprint records and the evidence discovered as a

result of their disclosure.

        {¶ 20}    Accordingly, the First Assignment of Error is overruled.



              III. Did the Trial Court Abuse Its Discretion in Ordering Restitution?

        {¶ 21}    Dolphin’s Second Assignment of Error states that:

                 The Trial Court Abused Its Discretion on [sic] its March 18, 2013

        Termination Entry, When Ordering Dolphin to Pay Restitution in the Amount of

        $4,464.00 to Ebony Peake.

        {¶ 22}    Under this assignment of error, Dolphin does not contest the entire amount of

the restitution award; he challenges only the $3,200 ordered as restitution for two pieces of

jewelry – a diamond bracelet and a diamond ring. Regarding these two items, Dolphin contends

that the evidence of the witnesses was inconsistent and that there was a lack of concrete evidence

about the existence of the jewelry and its value.

        {¶ 23}    R.C. 2929.18(A)(1) permits courts to order restitution “to the victim of the

offender's crime or any survivor of the victim, in an amount based on the victim's economic

loss.” This subsection further states that “[i]f the court imposes restitution, the court may base

the amount of restitution it orders on an amount recommended by the victim, the offender, a
                                                                                             9


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.”

       {¶ 24}     The victim has the burden of proving the amount of restitution, by a

preponderance of the evidence.          State v. Olson, 2d Dist. Montgomery No. 25452,

2013-Ohio-4403, ¶ 8, citing State v. Johnson, 164 Ohio App.3d 792, 2005-Ohio-6826, 844

N.E.2d 372 (2d Dist.), ¶ 72. In addition, because R.C. 2929.28 (A)(1) gives trial courts broad

discretion in awarding restitution, we review the court’s order for abuse of discretion. (Citations

omitted.)   Id.   An abuse of discretion “ ‘implies that the court's attitude is unreasonable,

arbitrary or unconscionable.’ ” (Citation omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶ 25}     In the case before us, the victim, Ebony Peake, testified that she purchased the

diamond ring and tennis bracelet from Jai Bharwani, the manager of Gold Mine Jewelers. The

purchases occurred about six years prior to the restitution hearing, which was held on March 15,

2013. Because the purchases were made so long ago, Peake did not have receipts.

       {¶ 26}     At some point prior to the March 2011 burglary, Peake asked Bharwani for an

appraisal of her jewelry. At that time, Peake intended to insure the jewelry, but she did not get

around to insuring it. After the jewelry was stolen, Peake called Bharwani. She told him that

her jewelry had been stolen and that she would need receipts for the two items. However,

Bharwani no longer had documentation concerning these items. As a result, in December 2012,

Bharwani provided Peake with a written appraisal for the items, including the bracelet and ring,

that he had previously evaluated. According to this appraisal, the value of the bracelet and ring,
                                                                                          10


collectively, was $3,200. Peake explained that her delay in obtaining the appraisal report was

caused by the fact that Dolphin’s criminal case took a long time to be resolved.

       {¶ 27}    Bharwani also testified at the restitution hearing. He indicated that Peake and

her fiancé had been customers for a very long time. Bharwani could not recall when the jewelry

in question was purchased, and he was not sure if he had records showing that it was purchased at

his store. He stated that he only kept records for seven years, as required.

       {¶ 28}    Bharwani also could not recall when Peake brought the jewelry in to be

appraised. He first said he had originally appraised it less than two years earlier (which would

mean that the jewelry had not been presented to him before the burglary).      However, Bharwani

later emphatically stated that he had originally appraised the jewelry before Peake called to tell

him that it had been stolen. Bharwani also indicated that he does not take photos when he

appraises jewelry; he makes handwritten notes and gives the jewelry back to the customer.

When Peake asked him to make an evaluation for the court case, he still had all his notes

available and was able to evaluate the missing items.

       {¶ 29}    Although there was little documentation of the purchase, both Peake and

Bharwani indicated that the jewelry had been purchased from Bharwani. The trial judge noted

that Peake had reported the missing jewelry immediately to the police, and specifically stated that

he found Peake credible. “The credibility of the evidence was for the trial court to determine,

because it heard the evidence directly.”           Olson, 2d Dist. Montgomery No. 25452,

2013-Ohio-4403, at ¶11, citing          State v. Myles, 2d Dist. Montgomery No. 25297,

2013-Ohio-2227, ¶ 21. The trial court was in the best position to evaluate credibility, and we

cannot say that the court acted arbitrarily, unreasonably, or capriciously in awarding Peake the

value of the missing items.
                                                                                     11


        {¶ 30}    Based on the preceding discussion, the Second Assignment of Error is

overruled.



                                        IV. Conclusion

        {¶ 31}    All of Dolphin’s assignments of error having been overruled, the judgment of

the trial court is affirmed.




                                        .............

DONOVAN and HALL, JJ., concur.




Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Jennifer D. Brumby
Hon. Timothy N. O’Connell
