      [Cite as State v. Kiser, 2016-Ohio-5307.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                               PICKAWAY COUNTY

STATE OF OHIO,                                    :
                                                  :     Case No. 15CA25
      Plaintiff-Appellee,                         :
                                                  :
      vs.                                         :     DECISION AND JUDGMENT
                                                  :     ENTRY
JOHN J. KISER,                                    :
                                                  :
      Defendant-Appellant.                        :     Released: 07/29/16

                                         APPEARANCES:

Timothy Young, Ohio State Public Defender, and Peter Galyardt, Assistant State
Public Defender, Columbus, Ohio, for Appellant.

Gary D. Kenworthy, Circleville City Law Director, Circleville, Ohio, for Appellee.


McFarland, J.

      {¶1} John J. Kiser, II appeals the judgment of the Circleville Municipal

Court entered on September 6, 2015. Appellant was convicted of theft, a violation

of R.C. 2913.02, after a jury trial. On appeal, Appellant asserts two assignments of

error: (1) prosecutorial misconduct deprived him of a fair trial and due process of

law; and (2) the trial court erred with the imposition of restitution for undamaged,

reclaimed property. Having reviewed the record, we find no merit to his

arguments. As such, we overrule both assignments of error and affirm the

judgment of the trial court.
Pickaway App. No. 15CA25                                                         2

                FACTUAL AND PROCEDURAL BACKGROUND

       {¶2} Appellant was charged with a misdemeanor theft offense in violation

of R.C. 2913.02(A)(1). The charge arose from events which occurred on April 18,

2013 at Walmart in Circleville, Ohio. On that date, Kylie Williams accidentally

left her Apple iPhone 5 smartphone at the Walmart self-checkout counter before

she left the store. Returning to the store shortly thereafter, Kylie saw Appellant

and another person standing at the same self-checkout counter. Both denied seeing

the phone.

       {¶3} Don Barton, an asset protection officer with Walmart, testified at trial

that Walmart surveillance tape demonstrated that Appellant had picked up the

phone from the counter and placed it in his pocket. Barton later gave the video to

the Pickaway County Sheriff’s Office. Sgt. John Schleich of the sheriff’s office

testified he had viewed the surveillance video and observed Appellant, behind

Kylie in the checkout line, placing the phone in his pocket. Schleich testified when

he asked the secretaries in the office to find the video for trial, they were unable to

locate it.

       {¶4} Schleich testified he questioned Appellant days later at his home.

Appellant admitted he placed the phone in his pocket but stated he thought it

belonged to his step-daughter. He went into the girl’s room, retrieved the phone,
Pickaway App. No. 15CA25                                                       3

and gave it to Schleich. Schleich testified “He told me he didn’t have a charger to

fit it anyhow when I picked it up.”

      {¶5} Appellant testified on his own behalf at trial. He admitted when he

learned he was mistaken, he did not return the cell phone to Walmart or contact

authorities. Kylie Williams and Sgt. Schleich identified Appellant as the person on

the surveillance video who picked up Kylie’s phone. Don Barton identified

photographs, which he gave to the sheriff’s office, of Appellant inside the store and

in his vehicle in the parking lot at the relevant time. The photographs were

properly admitted into evidence. Additional facts elicited from the witnesses will

be set forth below, where relevant.

      {¶6} A jury trial was scheduled for April 2, 2014. Appellant failed to appear

and a warrant for his arrest was issued. Appellant was later arrested on the warrant

and the trial was rescheduled for September 16, 2015. Appellant was convicted

and sentenced to 90 days in jail with 85 days suspended. He was further ordered to

a period of 12 months of probation and ordered to pay restitution. Appellant has

filed a timely appeal.

                         ASSIGNMENT OF ERROR ONE

      “I. PROSECUTORIAL MISCONDUCT DEPRIVED JOHN KISER
      OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS.”

                            STANDARD OF REVIEW

      {¶7} “The test for prosecutorial misconduct is whether the conduct was
Pickaway App. No. 15CA25                                                          4

improper and, if so, whether the rights of the accused were materially prejudiced.”

State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, at ¶ 16,

quoting State v. Purdin, 4th Dist. Adams No. 12CA944, 2013-Ohio-22, ¶ 31;

quoting State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶ 36;

citing State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45, in

turn citing State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “The

‘conduct of a prosecuting attorney during trial cannot be grounds for error unless

the conduct deprives the defendant of a fair trial.’ ” Purdin at ¶ 31; quoting State v.

Givens, 4th Dist. Washington No. 07CA19, 2008-Ohio-1202, ¶ 28; quoting State v.

Gest, 108 Ohio App.3d 248, 257, 670 N.E.2d 536 (8th Dist.1995). Accord State v.

Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). “Prosecutorial

misconduct constitutes reversible error only in rare instances.” Purdin, supra;

quoting State v. Edgington, 4th Dist. Ross No. 05CA2866, 2006-Ohio-3712, ¶ 18;

citing State v. Keenan, 66 Ohio St.3d 402, 406, 613 N.E.2d 203 (1993). The

“touchstone analysis * * * is the fairness of the trial, not the culpability of the

prosecutor. * * * The Constitution does not guarantee an ‘error free, perfect trial.’ ”

Purdin at ¶ 31; quoting Leonard at ¶ 36; quoting Gest at 257.

                                 LEGAL ANALYSIS

      {¶8} Appellant first contends the State improperly testified to facts not in

evidence. Appellant’s defense was mistake of fact. He contends his evidence
Pickaway App. No. 15CA25                                                          5

would have been fairly contrasted against the victim’s, the security guard’s, and

the police officer’s testimony, but for the prosecutor’s improper remarks.

Appellant argues the prosecutor filled in the “holes” in the State’s case with the

prosecutor’s own testimony. Appellant first directs us to this comment during the

State’s opening statement:

      “And unfortunately it’s taken a couple of years to get to this point in
      trial because the defendant, a couple of times this was set for trial and
      the defendant did not appear so it’s kind of drug on.”

      {¶9} Appellant argues the fact that he did not appear at previous hearings

had no relevance to his guilt or innocence, and that it was a more prejudicial than

probative statement. We begin by noting that Appellant failed to object to any of

the comments to which he now directs our attention on appeal. Failure to object to

an alleged error waives all but plain error. State v. Canterbury, supra, at ¶ 15; State

v. Keeley, 4th Dist. Washington No. 11CA5, 2012-Ohio-3564, ¶ 28. See State v.

D'Ambrosio, 73 Ohio St.3d 141, 143-144, 652 N.E.2d 710 (1995). Notice of

Crim.R. 52(B) plain error must be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice. State v.

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6; State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

To find plain error, the outcome of trial must clearly have been otherwise. State v.

McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507, ¶ 15; State v.
Pickaway App. No. 15CA25                                                          6

Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 50. As such, we

will analyze the prosecutor’s comments under the plain error standard of review.

      {¶10} We have found no case on all fours with the one sub judice.

However, State v. Jones, 2nd Dist. Greene No. 2005-CA-01, 2004-Ohio-5910,

concerns a prosecutor’s addressing a failure to appear during his opening

statement. The prosecutor stated as follows at ¶ 5:

       “The Defendant is then placed in the county jail where he makes
      bond. He's out on bond. And during the course of this process the
      Defendant is scheduled to have a trial on this matter in August of
      2004, specifically, I believe, August 31, 2004. The Defendant decides
      he doesn't want to come to trial, and he decides to leave, and fails to
      appear for his Court appearances and check-in, and has to be arrested
      by Court warrant to bring him here today.”

In Jones, the prosecutor not only made the allegedly improper comment in

opening, but also presented evidence on the sub-issue of Jones’ failure to appear.

The prosecutor called a pre-trial release specialist and cross-examined Jones' father

about the failure to appear at trial. The trial court also instructed the jury about the

fact that evidence that Jones failed to appear had been presented, and emphasized

that Jones had not been charged with any crime involving his failure to appear.

      {¶11} On appeal, Jones insisted that evidence of his failure to appear for his

first scheduled trial date had no possible relevance to his guilt or innocence.

However, the appellate court observed that Ohio courts have concluded that a

defendant's failure to appear for trial may indicate consciousness of guilt. Id. at 11.
Pickaway App. No. 15CA25                                                            7

See State v. Hagwood (June 2, 1995), Lake App. No. 94-L-016 (holding that

evidence of a defendant's failure to appear for trial is admissible because it is

probative of consciousness of guilt and that the prejudicial effect of such evidence

does not substantially outweigh its probative value); State v. Fain (Aug. 22, 1990),

Summit App. No. 14578 (Flight from justice, and its analogous conduct, have

always been indicative of a consciousness of guilt. * * * ); State v. Behun (Sept.

20, 1985), Portage App. No. 1490, quoting McCormick, Evidence (2nd Ed.1972),

655, Section 271 (“ ‘Many acts of the defendant after the crime seeking to escape

the toils of the law are uncritically received as admissions by conduct constituting

circumstantial evidence of consciousness of guilt and hence of the fact of guilt

itself. In this class are * * *, forfeiture of a bond by failure to appear * * *.’ ”).

      {¶12} In resolving the appeal, the Jones court held:

       “In light of the case law set forth above, we cannot say that the trial
      court abused its discretion in admitting evidence of Jones' failure to
      appear for trial and the forfeiture of his bond. Id. at 13. * * * In our
      view, [], the State was entitled to argue that Jones' failure to appear
      was tantamount to flight, concealment, or related conduct to avoid
      prosecution for his third domestic violence offense, and that it tended
      to show consciousness of guilt. Although the jury was free to accept
      or reject this argument, Jones' failure to appear for trial was relevant
      to his guilt or innocence. Moreover, we are unpersuaded that the
      probative value of testimony on the failure-to-appear issue was
      substantially outweighed by the danger of unfair prejudice. Thus, the
      opening statement, trial testimony, and jury instruction were
      permissible. Hagwood, supra; Fain, supra; Behun, supra; Collins,
      supra.”

The Jones court further stated:
Pickaway App. No. 15CA25                                                          8

       “[E]ven assuming arguendo that Jones had demonstrated some error,
      we would find it was harmless beyond a reasonable doubt. * * * In
      our view, however, the evidence of domestic violence is
      overwhelming, and any possible error in the prosecutor's opening
      statement, the testimony about Jones' failure to appear, and the jury
      instruction on the issue was harmless beyond a reasonable doubt.”

      {¶13} While we note that the State did not present evidence of Appellant’s

failure to appear in court earlier, we find it reasonable for the State to explain to the

jury why an incident which had occurred in April 2013 was belatedly brought to

trial in September 2015. And here, the prosecutor made no specific argument as in

Jones, that Appellant’s failure to appear was suggestive of his guilt. We also note

that the trial court instructed the jury that the evidence did not include the opening

statements or closing arguments of counsel. The trial court stated: “Mr. Kiser as

you know and you’ve been told this several times, has been charged with one count

of theft.” The record shows no indication the jury was confused about the nature

of Appellant’s charge.

      {¶14} Both the prosecution and the defense have wide latitude during

opening and closing arguments. Canterbury, supra, at ¶ 22. State v. Waters, 4th

Dist. Vinton No. 13CA693, 2014-Ohio-3109, at ¶ 33. In light of the other

evidence presented, which we will discuss below, we do not find that plain error

occurred.

      {¶15} In addition to the testimony of Kylie Williams, her mother, Vickie

Williams, Don Barton, and Sgt. Schleich, Appellant testified in his own defense.
Pickaway App. No. 15CA25                                                         9

He testified that he was at Walmart with his girlfriend’s daughter Kierra. When he

came through the self-checkout, he saw the cell phone lying on the counter and he

thought it looked just like Kierra’s, so he picked it up and placed it in his pocket.

He got home before he realized that Kierra had her own phone, so he placed the

phone on a stand until Sgt. Schleich came for it. He testified he really didn’t know

how to turn the phone on. He testified “I think I told my step-daughter to try to see

if she could figure out whose it was but I think it wouldn’t, it wasn’t charged or

wouldn’t come on or something so.”

      {¶16} Appellant testified he didn’t return the phone because he was working

as a contractor on a “big job,” was “way behind” and working from “dusk til

dawn.” He was also having problems with his girlfriend and was “kind of staying

with another person here and there” and “it just slipped my mind. I mean, I just

forgot to take it back, I mean.” Appellant denied using the phone.

      {¶17} On cross-examination, Appellant testified he did not recall Kylie

asking them about the phone. When asked if he was the person identified in the

photograph, he testified “I couldn’t tell you to be honest. I mean, I don’t know.”

He stated he wasn’t sure he had plaid pants like the person in the photograph.

      {¶18} Appellant testified when he left with Kierra, he didn’t ask her if it was

her phone because “[S]he leaves it lay around a lot and I just thought it would be

funny to see how long it took before she realized it was missing. * * * Cause she
Pickaway App. No. 15CA25                                                          10

really freaks out when she loses her cell phone.” He admitted she didn’t “freak

out” on the way home. Appellant realized when they arrived at home that the cell

phone he picked up was not Kierra’s. When asked if he looked at the phone he

testified “It wasn’t on. Or it wasn’t on or I don’t.” He did not recall telling Sgt.

Schleich that he “[d]idn’t have a charger to fit it anyway.” He testified he had “no

clue” as to why all the content on the cell phone was removed before the phone

was returned.

      {¶19} On redirect, Appellant clarified he realized the cell phone wasn’t

Kierra’s when he saw Kierra’s phone in her hand. On recross, Appellant explained

he didn’t go immediately back to Walmart because “[W]e were on our way to do

something. I think I might even have been on lunch break. I’m not sure.” At that

point, the State called Sgt. Schleich in rebuttal. He testified the incident occurred

around 5:00 in the afternoon.

      {¶20} Appellant next points to these statements made during the State’s

closing argument:

      “And if anyone has had cell phones before, it doesn’t wipe the
      information out just because you deactivate it. That information is
      still there, it’s just you can’t use the cell phone and they take the sim
      card out or whatever they are using, that particular company. So I
      think that’s probably the most significant factor is, if you’re not going
      to keep the cell phone, if you don’t intend to keep it from her
      possession, why would you wipe her information out? I think those
      are aspects you need to keep in mind when you deliberate this
      particular matter [be]cause those all go to the knowing element and
      the intent to deprive the owner in this case * * * of her cell phone.”
Pickaway App. No. 15CA25                                                        11


      {¶21} Appellant contends the statement about the impact of the phone

companies’ terminating coverage was, again, testimony by the prosecutor and

nothing which came into evidence at trial. While the jury members could rely on

their own experiences with cell phones, prosecutor testimony to that specific fact

was improper. Further, Appellant argues the testimony was also inaccurate and

misleading. If the phone was not in the physical possession of the phone company,

as described here, that company could not remove the sim card.

      {¶22} A prosecuting attorney has wide latitude to summarize the evidence

and zealously advocate the State's position during closing argument. Hunter, supra,

at ¶ 35. See State v. Richey, 64 Ohio St.3d 353, 362, 595 N.E.2d 915 (1992). The

propriety of a specific remark by a prosecutor must not be judged in isolation, but

in light of the tenor and context of the entire closing argument. See State v. Slagle,

65 Ohio St.3d 597, 607, 605 N.E.2d 916 (1992). State v. Keenan (1993), 66 Ohio

St.3d 402, 613 N.E.2d 203. The court has held that wide latitude is appropriate for

both sides in their closing “as to what the evidence has shown and what reasonable

inferences may be drawn therefrom.” Lott, 51 Ohio St.3d at 165, 555 N.E.2d 293,

quoting State v. Stephens, 24 Ohio St.2d 76, 263 N.E.2d 773 (1970). Reversal is

warranted only if the prosecutorial misconduct “permeates the entire atmosphere of

the trial.” United States v. Warner (C.A.6, 1992), 955 F.2d 441, 456. See, also,

State v. Tumbleson (1995), 105 Ohio App.3d 693, 664 N.E.2d 1318.
Pickaway App. No. 15CA25                                                         12

      {¶23} Vickie Williams testified she called Sprint the night the phone was

stolen and advised them to “kill it,” i.e. shut it down. Kylie testified after she left

Walmart the day her phone was missing, she went directly to the Sprint store in

Circleville. She was hoping a Sprint representative could locate the phone and

possibly turn it off. Her phone had a locating device which she believed was

turned on at the time her phone was missing, but when she arrived at the store, it

was apparently not turned on. Kylie advised Sprint to deactivate the phone. When

the phone was returned to her two weeks later, Kylie testified her contacts, cover

page, text messages, and photos were completely erased. Nothing was erased

when she took it into Walmart with her the day of the alleged theft. On cross-

examination, Kylie admitted she was not familiar with Sprint’s process for shutting

down her phone. Then on redirect, when Kylie was questioned if she could still

get contact information off her phone once it was deactivated, she responded

affirmatively.

      {¶24} The prosecutor’s argument about the cell phone suggested Appellant

cleared the information out of the phone because he intended to keep it. There was

some testimony on this point from Kylie’s mother. The prosecutor’s statement is

in the nature of testimony to be properly admitted from a representative of the cell

phone store or some other representative of the cell phone company with expertise

in the operation of the cell phone and the sim card. It appears Appellant’s
Pickaway App. No. 15CA25                                                           13

argument that the prosecutor was actually testifying about a fact is a fair one.

However, given other evidence of Appellant’s guilt in the record, we do not find

these comments rise to the level of plain error.

      {¶25} The trial court instructed the jury on credibility. It is well-settled that

the weight and credibility of evidence are to be determined by the trier of fact.

State v. Owens, 2016-Ohio-176, - - N.E.3d. - -. State v. Kirkland, 140 Ohio St.3d

73, 2014-Ohio-1966, 14 N.E.3d 818, at ¶ 132. “A jury, sitting as the trier of fact, is

free to believe all, part or none of the testimony of any witness who appears before

it.” Owens, supra, quoting State v. West, 4th Dist. Scioto No. 12CA3507, 2014-

Ohio-1941, ¶ 23. Appellant’s explanation for his mistake and failing to return the

phone were apparently not credible to the jurors.

      {¶26} As set forth above, Appellant testified he picked up the phone and

placed it in his pocket at the checkout. Kylie Williams testified she came back in

while Appellant and his step-daughter were still there, and asked if they had seen

the phone. They denied seeing a phone and Appellant denied recollection of being

questioned by Kylie in the store. Again, the jury made a credibility determination.

      {¶27} Officer Schweich testified when Appellant retrieved the phone, he

went on to state that “it didn’t even have a charger anyway.” Appellant denied

making this statement. Again, the jury was free to choose which testimony to

believe.
Pickaway App. No. 15CA25                                                          14

      {¶28} Appellant’s reason for taking the phone in the first place seems

nonsensical. But even if it were to be believed, his reason for not returning the

phone promptly was not credible. Kylie testified she came immediately back into

the store and questioned him. Why didn’t Appellant simply pull the phone out of

his pocket to check it at the time? Appellant’s reason for not returning the phone

also did not seem credible. He testified he was “too busy” and he might have even

been on a lunch break. Yet, Sgt. Schleich testified the incident occurred around

5:00 p.m. Again, Appellant’s credibility is lacking. In addition, Appellant’s

refusal to identify himself in the pictures taken at Walmart, when Kylie Williams

and Sgt. Schleck clearly identified him, is incredible.

      {¶29} Appellant next takes issue with these comments during rebuttal:

      “Now while it[’]s unfortunate that the tape is no longer available, keep
      in mind this happened over two years ago, but that’s because the
      defendant failed to appear for trial two times and this case has been
      drug on for two years. Unfortunately, those things over a period of
      time get misplaced or they’re over there someplace but can’t be
      located so it’s not that we’re trying to hide anything.”

      ***

      “And then and maybe most importantly, if you didn’t intend to keep
      the cell phone, why do you wipe the information out. Now whether
      they turn the phone off or not, you still have the ability to recover the
      information you got on there as far as your contacts, your emails, text
      messages and so forth. These were all gone. Her background’s gone.
      Everything’s wiped clean. If you didn’t intend to keep the phone why
      do you wipe it clean. So I think all of those things you have to
      consider when you make the determination was this a mistake or was
      this an attempt to keep this property.”
Pickaway App. No. 15CA25                                                       15


      {¶30} In essence, these comments are similar to the ones previously

discussed above. Again, we find it reasonable, not unfair or prejudicial, that the

prosecutor would want to explain why it took the State of Ohio two years to bring

a matter to trial and further, to explain why a key piece of evidence, the

surveillance tape, was not offered into evidence. And while the prosecutor appears

to be testifying to a factual matter regarding the workings of the cell phone and its

sim card, based upon other evidence in the record, we do not find that the

prosecutor’s comments affected the outcome of the trial so as to allow a manifest

miscarriage of justice.

      {¶31} Finally, Appellant further contends that the State may not vouch for a

victim’s credibility. Because the verdict rested solely on Appellant’s mistake

defense, he argues the impact of vouching was instrumental and not curable

through general jury instructions. The State commented during closing:

      “[The victim] I think has come up, testified to you very honestly at
      what she saw and what she didn’t, there’s no reason to doubt her
      testimony here.”

      {¶32} As a general matter, “[i]t is improper for an attorney to express his or

her personal belief or opinion as to the credibility of a witness.” Canterbury, supra,

at ¶ 25, quoting State v. Thompson, 141 Ohio St.3d 254, 292, 2014-Ohio-4751, 23

N.E.3d 1096; quoting State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646
Pickaway App. No. 15CA25                                                         16

(1997). “Vouching occurs when the prosecutor implies knowledge of facts outside

the record or places his or her personal credibility in issue.” Canterbury, supra, at

¶ 31; Topping, supra, at 85; quoting State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, 880 N.E.2d 31, ¶ 232; citing State v. Jackson, 107 Ohio St.3d 53, 2005-

Ohio-5981, 836 N.E.2d 1173, ¶ 117. The prosecutor is however, permitted to

fairly comment upon the testimony and evidence. Topping, supra; State v. Mundt,

115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 119. While a prosecutor is

not allowed to express an opinion concerning the credibility of evidence, they “can

argue that the character, quality, or consistency of particular evidence or witnesses

should be considered when assessing credibility.” Canterbury, supra, at 33; State

v. Hostacky, 8th Dist. Cuyahoga No. 100003, 2014-Ohio-2975, ¶ 47; citing State v.

Cody, 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 35.

      {¶33} Generally, prosecutorial misconduct will not provide a basis for

overturning a criminal conviction, unless, on the record as a whole, the misconduct

can be said to have deprived the appellant of a fair trial. State v. Hunter, 1st Dist.

Hamilton Nos. C-140684, C-140704, and C-140717, 2016-Ohio-123, at ¶ 34. State

v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). Here, based upon a

review of the record and considering the complained of statements within the

context of the entire trial, we cannot conclude that any of the prosecutor’s

statements, in isolation or cumulatively, when reviewed under the plain error
Pickaway App. No. 15CA25                                                        17

standard, rose to the level of prosecutorial misconduct meriting a new trial.

Appellant’s credibility was contrasted not only with Kylie’s, but also with Sgt.

Schleich’s. Appellant’s credibility was found to be lacking. We cannot say the

Appellant would not have been convicted in the absence of the cited statements.

      {¶34} Further, in reaching this decision, we rely on the instructions given to

the jury, which inform the jury that statements of counsel are not to be considered

as evidence. See Canterbury, supra, at 23. For instance, the jury was instructed

that “[t]he evidence does not include * * * the opening or closing arguments of

counsel.” Further, the jury was instructed that “[t]he opening statements and

closing arguments of counsel are designed to assist you. They are not evidence.”

“ ‘A presumption always exists that the jury has followed the instructions given to

it by the trial court.’ ” Canterbury, supra; State v. Murphy, 4th Dist. Scioto No.

09CA3311, 2010-Ohio-5031, ¶ 81; quoting Pang v. Minch, 53 Ohio St.3d 186, 559

N.E.2d 1313 (1990), paragraph four of the syllabus. Based on the trial court's

instructions, as well as the other evidence in the record, we cannot say that the

prosecutors' statements changed the outcome of the trial. For the foregoing

reasons, we find Appellant has failed to demonstrate plain error.

                        ASSIGNMENT OF ERROR TWO

      “II. THE TRIAL COURT ERRED WHEN IT IMPOSED
       RESTITUTION FOR UNDAMAGED, RECLAIMED PROPERTY.”
Pickaway App. No. 15CA25                                                          18

                             STANDARD OF REVIEW

       {¶35} Generally, a decision to award restitution lies in a trial court's sound

discretion and its decision will not be reversed on appeal absent an abuse of

discretion. State v. Shifflet, 2015-Ohio-4250, 44 N.E.3d 966 (4th Dist.), at ¶ 49.

State v. Stump, 4th Dist. Athens No. 13CA10, 2014-Ohio-1487, ¶ 11; see State v.

Dennis, 4th Dist. Highland No. 13CA6, 2013-Ohio-5633, at ¶ 7; State v. Jennings,

8th Dist. Cuyahoga No. 99631, 2013-Ohio-5428, at ¶ 40. An abuse of discretion

suggests the trial court's decision is unreasonable, arbitrary, or unconscionable.

State v. Perkins, 3rd Dist. Marion No. 9-13-52, 2014-Ohio-2242, ¶ 10, citing State

v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). “Under this standard of

review, an appellate court may not simply substitute its judgment for that of the

trial court.” Perkins, supra, quoting State v. Adams, 3rd Dist. Defiance No. 4-0916,

2009-Ohio-6863, ¶ 33. “A trial court abuses its discretion in ordering restitution in

an amount that was not determined to bear a reasonable relationship to the actual

loss suffered.” State v. Portentoso, 173 Ohio App.3d 297, 2007-Ohio-5490, 878

N.E.2d 76, (3rd Dist.), at ¶ 8 (internal citations omitted.). See also State v.

Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 19 (4th Dist.).

                                 LEGAL ANALYSIS

      {¶36} Appellant was ordered to pay a total of $250.84 in restitution to the

victim. Of that amount, $37.35 was compensation for the phone case which was
Pickaway App. No. 15CA25                                                        19

returned to Ms. Williams. Appellant argues because the phone case was returned

to the victim undamaged, it was not a statutory “economic loss,” and the trial court

erred when it ordered restitution for that item. While Appellant did not formally

object, counsel noted for the record that the victim received the original phone and

Otterbox case. The State responds that the trial court clearly followed the dictates

of the sentencing statutes. The State contends that both the original cell phone and

Otterbox case were no longer of any use or value to the victim and she incurred

out-of-pocket expenses of $250.84 as a direct and proximate result of the theft

offense.

      {¶37} R.C. 2929.28 provides the financial sanctions for misdemeanor

offenses. If the court imposes restitution, the court shall determine the amount of

restitution to be paid by the offender, and may base the amount of restitution it

orders on an amount recommended by the victim. R.C. 2929.28(A)(1). 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. Id. If the court decides to impose restitution, the court shall hold an

evidentiary hearing on restitution if the amount of restitution is disputed. Id. The

victim has the burden to prove by a preponderance of the evidence the amount of

restitution sought from the offender. Id.
Pickaway App. No. 15CA25                                                          20

      {¶38} Appellant was convicted of misdemeanor theft. Pursuant to R.C.

2929.01(L), “economic loss” is defined as:

      “[A]ny 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.”

      {¶39} A trial court is under no duty to itemize or otherwise explain how it

arrived at the amount of restitution it orders, so long as the trial court can discern

the amount of restitution to a reasonable degree of certainty from competent,

credible evidence in the record. State v. Perkins, 3rd Dist. Marion No. 9-13-52,

2014-Ohio-2242, at ¶ 23. See State v. Didion, 2007-Ohio-4494, 173 Ohio App.3d

130, (3rd Dist.), at ¶ 20. Moreover, if an appellate court can discern from the

record that the restitution order bears a reasonable relationship to the actual loss

suffered by the victim, it will conclude that the trial court did not abuse its

discretion. See Hipsher, 2012-Ohio-3206, at ¶ 12-14 (affirming the trial court's

restitution order notwithstanding that the trial court did not itemize or explain how

it arrived at the amount of restitution it ordered, because testimony in the record

supported the amount of restitution).

      {¶40} The victim’s cell phone case was an “Otterbox” case. The victim’s

mother testified she bought a new cell phone case at the same time she bought her
Pickaway App. No. 15CA25                                                       21

daughter a new phone, several days after the first one was missing. She testified

the phone was replaced by insurance, but there was a $200.00 out-of-pocket

replacement fee, plus $37.35 for the Otterbox case. Ms. Williams testified as

follows:

      Prosecutor: All right. Did you also buy a case for the phone at the
      time?

      Witness 1: Yes.

      Prosecutor: What type of case was that?

      Witness 1: It was like the Otterbox case.

      Prosecutor: Is that case on there the same one?

      Witness 1: Yes.

      Prosecutor: And since that time you used it on a different phone
      apparently?

      Witness 1: No, I don’t believe she has.

      {¶41} While the victim in this case could use the old cell phone case for her

new phone, at the time her phone was stolen, she did not know it would ever be

returned. It is fair to say that in 2016, many parents and children have cell phones

so that the children have the ability to contact parents in emergency situations or in

order to maintain necessary contact. Kylie’s mother purchased a new phone and

case just a few days after the incident. Had Appellant returned the phone and case
Pickaway App. No. 15CA25                                                        22

in a timely manner, the victim’s mother would not have incurred the additional

out-of-pocket expense.

      {¶42} Other courts have noted that “voluntarily incurred expenses are not

compensable as restitution damages.” Portenso, supra, at ¶ 9, quoting State v.

Beam, 5th Dist. Delaware No. 06CAA030018, 2007-Ohio-386. See also Shifflet,

supra, at ¶ 59. Despite the fact that the old phone case can be used, Appellant’s

actions caused the victim’s mother to involuntarily incur this expense. For the

foregoing reasons, we find the trial court did not abuse its discretion with regard to

the award of restitution. As such, Appellant’s second assignment of error is also

overruled.

                                                       JUDGMENT AFFIRMED.
Pickaway App. No. 15CA25                                                         23

                               JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Circleville Municipal 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.

Abele, J. & Hoover, J.:    Concur in Judgment and 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.
