        [Cite as State v. Lynn, 2016-Ohio-2849.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NO. C-150569
                                                       TRIAL NO. 15CRB-18803
    Plaintiff-Appellee,                            :
                                                            O P I N I O N.
  vs.                                              :

BRITTANY LYNN,                                     :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 6, 2016


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Sierra
Williams, Assistant City Prosecutor, for Plaintiff-Appellee,

Derek W. Gustafson, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     This is an appeal of a trial court’s restitution order following a

defendant’s guilty plea to unauthorized use of a vehicle. The defendant claims that she

should not have to pay restitution for damage to the victim’s truck because the victim did

not prove that the damage to her truck occurred as a result of the defendant’s use of it.

We conclude that the trial court did not abuse its discretion in ordering restitution, so we

affirm the judgment.

       {¶2}     Brittany Lynn pled guilty to using Jasmine Rutherford’s truck without

consent. Prior to sentencing her, the court conducted a hearing on restitution. Ms.

Rutherford told the court that, after police officers recovered her truck following Lynn’s

unauthorized use of it, there was damage to the front and back end of the car. Some

personal belongings were also missing from the car. The car was a total loss. Ms. Lynn,

on the other hand, maintained that the truck was damaged before she drove it, and that

there had been no personal items in it. Following the hearing, the court sentenced Lynn

accordingly and ordered that she pay restitution of $500—an amount equal to

Rutherford’s insurance deductible for the damage to the truck.

       {¶3}     In her sole assignment of error, Ms. Lynn challenges the court’s

restitution order. She argues that the state did not prove that the damage to the truck

was attributable to her unauthorized use of it.

       {¶4}     R.C. 2929.28(A)(1) provides that the trial court may order a defendant to

pay restitution to the victim of a misdemeanor. The amount is limited to “the amount of

the economic loss suffered by the victim as a direct and proximate result of the

commission of the offense.” Id. The victim must prove the loss by the preponderance of

the evidence. Id. We review the trial court’s restitution order under an abuse-of-




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                     OHIO FIRST DISTRICT COURT OF APPEALS



discretion standard. State v. Olson, 2d Dist. Montgomery No. 25452, 2013-Ohio-

4403, ¶ 8.

       {¶5}    Ms. Lynn does not dispute that Rutherford’s truck was damaged.

Instead, she argues that Rutherford did not show that the damage was a “direct and

proximate result” of Lynn’s unauthorized use of the truck. She points out that her

conviction for unauthorized use of a vehicle did not require proof that the vehicle was

damaged. But nothing in R.C. 2929.28(A)(1) limits the award of restitution to those

offenses that include an element of economic damage. See State v. Byrd, 7th Dist.

Belmont No. 04 BE 40, 2005-Ohio-2720, ¶ 5. The victim need only show the loss

occurred as a result of the defendant’s commission of the crime.

       {¶6}    Rutherford’s story was simple: the truck was not damaged when she

reported it stolen, and it was damaged when police recovered it. Ms. Lynn, on the

other hand, maintained that the truck was damaged before she used it without

consent. It was for the trial court to determine which version was more credible.

       {¶7}    Ms. Lynn argues that, even if the damage occurred sometime while

the truck had been reported stolen, Rutherford cannot prove that it happened as a

result of Lynn’s use of the car. Ms. Lynn likens this case to State v. Littlefield, 4th

Dist. Washington No. 02CA19, 2003-Ohio-863, in which the appellate court

determined that a defendant convicted of receiving stolen property (a car) was

improperly ordered to pay restitution for damage done during the theft of the car.

But by the very definition of the crime for which the defendant was convicted in

Littlefield, the car had been stolen at the time he received it, so the damage had

occurred prior to the defendant’s involvement. Here, there was no evidence that the

damage to the truck had happened before Lynn used it.




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       {¶8}    The court found credible Rutherford’s account that the truck was

undamaged when taken by Lynn, and totaled when it was returned. Thus, it was

reasonable for the court to conclude that the damage occurred while Lynn was using

the truck, and that, but for Lynn’s unauthorized use, the truck would not have been

damaged. The court did not abuse its discretion in ordering Lynn to pay $500 in

restitution. The assignment of error is overruled, and the judgment of the court is

affirmed.

                                                                  Judgment affirmed.


C UNNINGHAM , P.J., and M OCK , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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