      [Cite as State v. Guthrie, 2020-Ohio-501.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NO. C-180661
                                                       TRIAL NO. 18CRB-25280A
      Plaintiff-Appellee,                          :

      vs.                                          :     O P I N I O N.

JILL GUTHRIE,                                      :

      Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 14, 2020




Paula Boggs Muething, City Solicitor, William T. Horsely, Interim City Prosecutor,
and Scott Crowley, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

         {¶1}   In an apparent road-rage incident with Beverley Renadette,

defendant-appellant Jill Guthrie was charged with criminal damaging and menacing.

After a bench trial, Guthrie was acquitted of the menacing charge, but was convicted

of criminal damaging and was ordered to pay restitution.

         {¶2}   In two assignments of error, Guthrie argues that the trial court abused

its discretion in ordering restitution without conducting a hearing on the amount of

restitution under R.C. 2929.08(A)(1), and that her conviction for criminal damaging

was based on insufficient evidence and against the manifest weight of the evidence.

We overrule Guthrie’s assignments of error and affirm the judgment of the trial

court.

                                 Factual Background


         {¶3}   Renadette testified that she was attempting to merge onto Columbia

Parkway when Guthrie sped around her and attempted to get in front of her, nearly

causing a collision.     Renadette claimed that Guthrie then got out of her car,

approached Renadette’s car, and started beating on her driver’s side window.

Renadette testified that Guthrie “slammed” Renadette’s driver’s side mirror, causing

the plastic covering around the mirror to break. Guthrie got back into her car and

drove away. Renadette testified that her mirror had a crack in the plastic covering

prior to her encounter with Guthrie, but that Guthrie’s actions caused the previously

cracked plastic covering to break apart.

         {¶4}   Officer Pete Faillace testified that Renadette came to the police station

to file a report a few days after the incident. He examined her car briefly and noted



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the damage to the mirror, although he could not remember what the damage looked

like.

        {¶5}   Guthrie testified that Renadette was sitting in the middle of the road

not paying attention, and so she tried to go around Renadette. Guthrie testified that

Renadette “rammed” Guthrie’s car twice before slamming into the back of it. Guthrie

testified that she got out of her car in order to get Renadette’s insurance information.

She denied having any physical contact with Renadette’s car. Guthrie drove away

and filed a report with her insurance company, but not the police. At trial, Guthrie

produced photos of the alleged damage to her vehicle, which consisted of a “little

bump.”

         Sufficiency of the Evidence/ Manifest Weight of the Evidence


        {¶6}   For ease of discussion, we analyze Guthrie’s assignments of error out

of order. In Guthrie’s second assignment of error, she argues that her conviction for

criminal damaging was based upon insufficient evidence and against the manifest

weight of the evidence.

        {¶7}   The test for determining if the evidence was sufficient to sustain a

conviction is whether “after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any

rational trier of fact could have found all the essential elements of the offense beyond

a reasonable doubt.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-

Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983). It is a question of law for the court to determine, the court is not to

weigh the evidence. MacDonald at ¶ 12.




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         {¶8}   To convict Guthrie of criminal damaging, the state was required to

prove that Guthrie knowingly caused, or created, a substantial risk of physical harm

to Renadette’s property without Renadette’s consent. See R.C. 2909.06(A)(1).

         {¶9}   Guthrie argues that the state failed to prove beyond a reasonable doubt

that she acted knowingly. A person acts knowingly when the person “is aware that

the person’s conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware

that such circumstances probably exist.” R.C. 2901.22(B).

         {¶10} Guthrie contends that Renadette’s testimony shows that Guthrie

pushed Renadette’s driver’s side mirror inward in accordance with normal use, i.e.,

side mirrors are designed to fold inward. She argues that she could not have known

that pushing the mirror inward would probably cause the plastic covering to break

apart.

         {¶11} However, we must look at the evidence and inferences reasonably

drawn therefrom in the light most favorable to the prosecution. Although Renadette

testified that Guthrie “pushed [the mirror] into the car,” she also testified that

Guthrie “slammed in the [mirror],” which can be inferred to not be in accordance

with normal use. The state also presented photographic evidence of the damaged

mirror. See State v. Lowe, 1st Dist. Hamilton Nos. C-170494, C-170495, C-170498

and C-170505, 2018-Ohio-3916, ¶ 15 (despite defendant’s testimony that he did not

act knowingly, the court held that his criminal-damaging conviction was based upon

sufficient evidence where the state offered the testimony of the victim and produced

photographic evidence of damage).




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         {¶12} Once we determine that there was sufficient evidence presented to

sustain the conviction, we consider Guthrie’s manifest-weight-of-the-evidence claim.

In doing so, “we review the record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether the trier of fact

‘clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned.’ ” MacDonald, 1st Dist. Hamilton No. C-180310,

2019-Ohio-3595, at ¶ 24, quoting Martin 20 Ohio App.3d at 175, 485 N.E.2d 717.

Reversal of a conviction and a grant of a new trial should only be done in

“exceptional cases in which the evidence weighs heavily against the conviction.”

MacDonald at ¶ 24.

         {¶13} Guthrie testified that she did not make contact with Renadette’s car,

and that in fact Renadette “rammed” into the back of her car. The trial court was

presented with photographs of the damage to both cars, Officer Faillace’s testimony,

and the conflicting testimonies of Renadette and Guthrie. As discussed above, there

was sufficient evidence for the trial court to find Guthrie guilty beyond a reasonable

doubt.     The evidence presented by Guthrie does not make this one of those

exceptional cases in which the evidence weighs heavily against the conviction. The

trial court did not err in believing Renadatte’s version of events and finding that

Guthrie knowingly damaged Renadette’s mirror. Guthrie’s second assignment of

error is overruled.

                                    Restitution

         {¶14} In her first assignment of error, Guthrie argues that the trial court

abused its discretion by ordering her to pay restitution without conducting a hearing

under R.C. 2929.08(A)(1) to determine the amount of restitution to be paid.




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       {¶15} An appellate court reviews a trial court’s award of restitution in a

misdemeanor case for an abuse of discretion. State v. Adams, 1st Dist. Hamilton No.

C-180337, 2019-Ohio-3597, ¶ 14.

       {¶16} R.C. 2929.28(A)(1) requires that the amount of restitution “not exceed

the amount of economic loss suffered by the victim,” and that an evidentiary hearing

must be conducted by the trial court when the amount of restitution is in dispute.

       {¶17} The state requested $327.55 in restitution for the damage done to

Renadette’s side mirror, based on an estimate obtained by Renadette. The reflective

glass itself was not damaged, but the plastic casing around it was broken. The

estimate obtained by Renadette would put the plastic around the mirror in “new

condition.”

       {¶18} During the sentencing hearing, Guthrie’s attorney argued against

restitution, stating “if the Court is inclined to impose restitution, that again that

restitution be through the appropriate methods of insurance because both of the

parties involved do have insurance.” Later, Guthrie’s attorney stated,

     there’s a dispute here with regard to any damage. I don’t think that,

     although she has an insurance adjustment or estimate made, I think the

     appropriate method for the restitution as in the statute is that if there is a

     dispute, it should be handled through their insurance company and not

     be ordered that cash be handed to Miss Renadette because she had an

     estimate done.

The trial court acknowledged that the “damage was disputed,” but then ordered

Guthrie to pay $327.55 in restitution.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} On appeal, Guthrie argues that $327.55 does not represent the actual

economic loss caused by her actions because the cost covers replacing the mirror and

the plastic, and the mirror itself was not actually damaged. Therefore, Guthrie

argues that she was entitled to present evidence to reflect the cost of the harm she

actually caused. However, Guthrie did not make this argument to the trial court.

       {¶20} In State v. Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-

4664, ¶ 26, this court held that where the defendant did not expressly object to the

amount of restitution ordered, the trial court was not required to hold an evidentiary

hearing. (Emphasis added.) The defendant in Andrews merely objected to the

imposition of restitution because it was not part of the plea deal he agreed to. Id. at ¶

15. Similarly, the state argues that Guthrie only objected to the fact that restitution

was ordered, not the amount of restitution ordered, and therefore, the amount was

not actually in dispute so as to trigger a hearing.

       {¶21} Guthrie cites to State v. Norman, 8th Dist. Cuyahoga No. 104936,

2017-Ohio-752, ¶ 14, for the proposition that any dispute as to damage is sufficient to

put the amount of restitution in dispute. In Norman, the record was devoid of any

evidence to support the court’s award of $1,500 in restitution. Id. at ¶ 15. The

defendant objected, stating “we are disputing any restitution at this time without any

actual proof of what was paid out of pocket for any kind of repairs.” Id. at ¶ 14.

       {¶22} The present case is distinguishable from Norman, and is akin to

Andrews. In the present case, there was evidence in the record, in the form of the

repair estimate obtained by Renadette, supporting the amount of restitution ordered.

Guthrie’s objections concerned the fact that both parties had insurance. She argued

that Renadette should have recovered from the insurance company, not through




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                       OHIO FIRST DISTRICT COURT OF APPEALS



restitution. Although Guthrie argued that there was a question as to “any damage,”

she did not object to the amount of damage. Similarly, the court acknowledged that

the “damage was disputed,” but then found that there was damage. Guthrie failed to

object to the amount of restitution, and so the court was not required to hold an

evidentiary hearing.

       {¶23} Guthrie also argues that the amount of restitution ordered was

improper because $327.55 includes the cost to replace the mirror and the plastic

cover, and that she only damaged the plastic cover.

     A trial court has discretion to order restitution in an appropriate case and

     may base the amount it orders on a recommendation of the victim, the

     offender, a presentence investigation report, estimates or receipts

     indicating the cost of repairing or replacing property, and other

     information, but the amount ordered cannot be greater than the amount

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

     commission of the offense.

State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, paragraph

one of the syllabus; R.C. 2929.28(A)(1).

       {¶24} The trial court found that Guthrie broke Renadette’s side mirror by

smashing it and causing the plastic to break apart. That Guthrie did not break each

individual piece of the mirror (i.e., the reflective glass itself) does not mean that she

should not be held responsible for paying to replace the mirror as a whole. The trial

court based its award on the estimate submitted by Renadette. There is no evidence

that a sufficient repair could have been accomplished for less than $327.55. The




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court’s order that Guthrie pay restitution in the amount of $327.55 was not arbitrary

or unreasonable, and thus was not an abuse of discretion.

                                      Conclusion


       {¶25} Guthrie’s assignments of error are overruled and the judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.



ZAYAS, P.J., and BERGERON, J., concur.



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




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