State v. Burgess

2013 Ohio 4691

Opinion

[Cite as State v. Burgess, 2013-Ohio-4691.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2013CA00070 FRANCESCA BURGESS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2012CR0064

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 21, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN FERRERO SAMUEL FERRUCCIO, JR. Stark County Prosecutor JEFFRY SERRA BY: FREDERIC R. SCOTT 220 Market Avenue South 110 Central Plaza South 400 Huntington Plaza Ste. 510 Canton, OH 44702 Canton, OH 44702 [Cite as State v. Burgess, 2013-Ohio-4691.]

Gwin, P.J.

{¶1} Appellant Francesca Burgess [“Burgess”] appeals the March 21, 2013

entry of the Stark County Court of Common Pleas ordering her to pay restitution in the

amount of $72, 535.00.

Facts and Procedural History

{¶2} Burgess was formerly a manager and bookkeeper for Stark Mold and

Pattern, Inc., a small manufacturer in Canton, Ohio. In October 2010, the company

president, Paul Dougherty, became aware of discrepancies in the company's

accounting. After further investigation by law enforcement officials, Burgess was

indicted by the Stark County Grand Jury on criminal charges stemming from her theft of

company funds as a continuing course of conduct between May 2003 and October

2010.

{¶3} On March 2, 2012, Burgess pled no contest to one count of grand theft

(R.C. 2913.02(A)(1) and/or (A)(2) and/or (A)(3)), a felony of the fourth degree, and one

count of tampering with records (R.C. 2913.42(A)(1)(B)(3)(c)), also a felony of the fourth

degree. Thereafter, the trial court found Burgess guilty of both offenses. See Judgment

Entry, March 13, 2012.

{¶4} On April 4, 2012, Burgess returned to court for sentencing. On April 12,

2012, the trial court sentenced her to four days in jail, with three years of community

control. One of the conditions of community control was restitution in an amount to be

determined, with the provision that appellant “shall receive credit for $9,400 already paid

to [the] victim.” Sentencing Entry, April 12, 2012, at 6. A restitution hearing was therein

ordered for May 16, 2012. Id. Stark County, Case No. 2013CA00070 3

{¶5} The court thereafter duly held a hearing to determine the amount of

restitution to be paid by Burgess. On May 24, 2012, the trial court issued a judgment

entry addressing restitution as follows:

This matter comes before the Court for a determination of

restitution. After hearing the evidence in the within matter, the Court

orders restitution in the amount of Seventy-two Thousand Five Hundred

Thirty-five and no/100 Dollars ($72,535.00). From this, the Court would

deduct any amounts that have been pre-paid by the defendant as part of

the criminal case. The Court, therefore, orders that restitution will be set at

Seventy-two Thousand Five Hundred Thirty-five and no/100 Dollars

($72,535.00) minus any amount that has been re-paid during the

pendency of the Court matter.”

Judgment Entry, May 24, 2012.

{¶6} On June 21, 2013, Burgess filed an appeal. This Court dismissed that

appeal and remanded the case to the trial court for the issuance of a final conviction,

sentencing and restitution entry in compliance with State v. Baker, 119 Ohio St.3d 197,

201, 2008-Ohio-3330, 893 N.E.2d 163 and State v. Lester, 130 Ohio St.3d 303, 2011-

Ohio-5204, 958 N.E.2d 142. See State v. Burgess, 5th Dist. Stark No. 2012 CA 00119,

2013-Ohio-234. On March 21, 2013, the trial court issued a judgment entry in

compliance with this Court’s remand.

Assignments of Error

{¶7} Burgess raises two assignments of error, Stark County, Case No. 2013CA00070 4

{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE

APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $63,143.57 AS SET

FORTH IN THE TRIAL COURT'S JUDGMENT ENTRY DATED MARCH 21, 2013.

{¶9} “II. THE TRIAL COURT ERRED BY FAILING TO ESTABLISH THE

AMOUNT OF RESTITUTION TO A DEGREE OF CERTAINTY, WHICH REFLECTS A

REASONABLE RELATIONSHIP TO THE ACTUAL LOSS SUFFERED.”

I & II

{¶10} Burgess’ first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together. In her two

Assignments of Error, Burgess contends the trial court erred or abused its discretion in

ordering Burgess to pay certain restitution.

{¶11} R.C.2929.18 states in pertinent part:

(A) Except as otherwise provided in this division and in addition to

imposing court costs pursuant to section 2947.23 of the Revised Code,

the court imposing a sentence upon an offender for a felony may sentence

the offender to any financial sanction or combination of financial sanctions

authorized under this section or, in the circumstances specified in section

2929.32 of the Revised Code, may impose upon the offender a fine in

accordance with that section. Financial sanctions that may be imposed

pursuant to this section include, but are not limited to, the following:

(1) Restitution by the offender to the victim of the offender's crime

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

loss. If the court imposes restitution, the court shall order that the Stark County, Case No. 2013CA00070 5

restitution be made to the victim in open court, to the adult probation

department that serves the county on behalf of the victim, to the clerk of

courts, or to another agency designated by the court. If the court imposes

restitution, at sentencing, the court shall determine the amount of

restitution to be made by the offender. If the court imposes restitution, the

court may base the amount of restitution it orders on an amount

recommended by the victim, the offender, a 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. If the court decides to impose restitution, the court shall hold a

hearing on restitution if the offender, victim, or survivor disputes the

amount. All restitution payments shall be credited against any recovery of

economic loss in a civil action brought by the victim or any survivor of the

victim against the offender.

{¶12} Evid.R. 101(C)(3) specifically provides that the Ohio Rules of Evidence,

other than with respect to privileges, do not apply to miscellaneous criminal proceedings

including sentencing. State v. Cook, 83 Ohio St.3d 404, 425, 700 N.E.2d 570(1998);

Evid.R. 101(C)(3). Ohio appellate courts have ruled that because the rules of evidence

do not apply to sentencing, they also do not apply to evidentiary hearings concerning

restitution by offenders to victims of crimes. State v. Riley, 184 Ohio App.3d 211, 2009–

Ohio–3227, 920 N.E.2d 388, ¶28 (6th Dist.); State v. Potts, 7th Dist. Harrison No. 07 HA Stark County, Case No. 2013CA00070 6

4, 2008–Ohio–643, ¶11; State v. Tuemler, 12th Dist. Warren No. CA2004–06–068,

2005–Ohio–1240, ¶17. Consequently, the trial court was not restricted by the Rules of

Evidence, including the prohibition on hearsay, in determining the amount of a

restitution order. Moreover, R.C. 2929.18(A)(1), the statute governing restitution,

expressly permits the trial court to consider an amount recommended by the victim to

be used in determining the amount of restitution owed by the offender.

{¶13} In the case at bar, the trial court heard from Paul Dougherty, President

and co-owner of Stark County Mold and Pattern. Dougherty testified that Burgess was

paid on an hourly basis and scheduled to work three days a week, for a total of 24

hours. In addition to pay, she was given flextime, a company cell phone, a gas card and

health insurance for her and her family.

{¶14} When the theft was discovered, Burgess was fired and Dougherty followed

her home to retrieve the company laptop computer where Burgess kept the QuickBooks

program of payroll and company records. When she was left alone, however, she

started erasing records. The Company was able to recover some of them but most of

them were not recoverable because of Burgess' action. Specifically, Burgess removed

the records on the electronic funds transfers (EFT).

{¶15} Dougherty then went through the bank records, cancelled checks, bank

statements, transfers and EFTs and was able to compile an incomplete list of the

moneys taken by Burgess. Dougherty thought there was more money taken, but it was

difficult and time consuming to run a business and do an audit at the same time,

Dougherty spent 300 hours trying to conduct an audit. Stark County, Case No. 2013CA00070 7

{¶16} Besides the unauthorized charges to the Company credit card, she took

money through paying herself unauthorized bonuses, unauthorized extra vacation days,

falsified timecards, and wrote checks for postage and office supplies. She even went so

far as to have Dougherty write her a payroll check and then go to his brother, the vice -

president with another payroll check claiming Dougherty forgot to write it.

{¶17} Dougherty compiled a list of the thefts and it was presented to the Court

as State's Exhibit 1. The total of the theft entries compiled by the Company was

$72,576.35. The trial court ordered Burgess to repay that amount less any money she

had previously repaid.

{¶18} Burgess offered no evidence that would refute the testimony of Dougherty

or the exhibit he prepared outlining the various methods she used to defraud the

company.

{¶19} We find this evidence is sufficient to show the amount of actual economic

loss with reasonable certainty.

{¶20} Burgess next argues that the trial court abused its discretion by basing its

restitution award on conduct not contained in the indictment or bill of particulars.

Burgess in essence argues that the unauthorized paycheck issue was an unfair surprise

and the she never would have pleaded no contest to the charge of grand theft and

agreed to restitution knowing that it included her paychecks.

{¶21} In State v. Lalain, the Ohio Supreme Court held,

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 Stark County, Case No. 2013CA00070 8

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.

_ Ohio St.3d_, 2013-Ohio-3093, 2013 WL 3751258(OH Sup. Ct. July 17, 2013). In that

case, the appellant argued,

[T]hat unless there is a specific agreement to the contrary, a

restitution order cannot exceed the maximum property value that

corresponds to the degree of the theft conviction and the trial court here

therefore lacked authority to order restitution in an amount exceeding

$4,999.99 on a conviction for fifth-degree-felony theft. He maintains that

the trial court allowed Aero-Instruments to recover expenditures that were

not the direct and proximate result of his crime, but rather the company

had incurred those costs to investigate the theft, to value the property, and

to prepare for litigation.

2013-Ohio-3093, ¶ 17. The Supreme Court noted,

In addition, we recognize that the amount of restitution is not

correlated to the degree of the theft offense. For example, R.C.

2913.02(B)(5) states, “If the property stolen is a motor vehicle, a violation

of this section is grand theft of a motor vehicle, a felony of the fourth

degree,” regardless of the value of the motor vehicle. A trial court

choosing to order restitution in a case of grand theft of a motor vehicle is Stark County, Case No. 2013CA00070 9

not restricted to the value corresponding to a fourth-degree felony and

may instead award restitution pursuant to R.C. 2929.18(A)(1).

2013-Ohio-3093, ¶24. In the case at bar, we note that the damages are not greater than

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

commission of the offense. Therefore, the trial court can award them.

{¶22} In addition, we note the purpose of a bill of particulars is “to elucidate or

particularize the conduct of the accused alleged to constitute the charged offense.”

State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E. 2d 781, 784(1985). It also acts to

“inform an accused of the exact nature of the charges against him so that he can

prepare his defense thereto.” State v. Fowler, 174 Ohio St. 362, 364, 189 N.E.2d 133,

134(1963). However, a bill of particulars “is not designed to provide the accused with

specifications of evidence or serve as a substitute for discovery.” Sellars at 171, 478

N.E. 2d 781. Consistent with this purpose, Crim.R. 7(D) allows amendment of a bill of

particulars “before, during, or after a trial,” provided that “no change is made in the

name or identity of the crime charged.” See, also, State v. Brown, 99 Ohio App.3d 604,

610, 651 N.E.2d 470, 474(10th Dist. 1994).

{¶23} In the case at bar, the indictment and bill of particulars provided Burgess

with notice of the substance of the theft charge. Discovery provided by the state

provided her with additional facts concerning the essence of the state’s allegations.

Specifically, the indictment alleged that Burgess knowingly obtained or exerted control

over property belonging to Stark Mold and that the value of said property was more than

$5,000 but less than $100,000. Stark County, Case No. 2013CA00070 10

{¶24} The bill of particulars gave Burgess further details of the crimes alleged in

the indictment,

Defendant worked as an officer manager and bookkeeper at Stark

Mole & Pattern Company, She developed a scheme by which she

electronically transferred company funds to pay off her own debts,

including credit card charges. She also cashed checks to herself and

recorded them in the company's bookkeeping software as funds used to

pay company vendors. Through these and other schemes, defendant took

approximately $66,000 from the company without its consent.

{¶25} On February 14, 2012, Burgess was provided with the reports of the

investigation of the Stark County Sheriff’s Office. These details including the estimate by

the victim-employer that she had stolen through various schemes over $60,000. Indeed,

she was notified that several of the checks showed that she was paid twice for the same

pay period by having the co-owners write her checks for the same pay period. She was

also notified that the allegations included that she wrote checks for days she did not

work including holidays and weekend, and wrote herself checks for bonuses to which

she was not entitled. Indeed, she was provided with a spreadsheet prepared by the

victim that showed extra hours on paychecks she did not work, Response to Request

for Discovery, Feb. 14, 2012.

{¶26} Burgess has failed to demonstrate that her lack of knowledge actually

prejudiced her in her ability to fairly defend herself. State v. Chinn, 85 Ohio St.3d 548,

570, 709 N.E.2d 1166, 1183, 1999–Ohio–288. We find in the case at bar the bill of

particulars as provided by the state, together with the discover provided to Burgess Stark County, Case No. 2013CA00070 11

before she entered her plea in no way precluded or otherwise hindered Burgess from

effectively presenting her defense. Burgess was put on notice of the allegations that she

was paid twice for the same pay period; that she wrote checks for days she did not work

including holidays and weekend, and wrote herself checks for bonuses to which she

was not entitled. Indeed, she was provided with a spreadsheet prepared by the victim

that showed extra hours on paychecks she did not work.

{¶27} Burgess presented no evidence to the contrary. Therefore, the record

simply does not support Burgess' claims that she lacked specific information as to the

particular conduct constituting the offenses charged. Chinn, supra. It is clear, therefore,

that Burgess suffered no prejudice as a consequence of the wording of the indictment or

the bill of particulars.

{¶28} Burgess’ first and second assignments of error are overruled.

{¶29} For the foregoing reasons, the judgment of the Court of Common Pleas for

Stark County, Ohio is affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur _________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. CRAIG R. BALDWIN

WSG:clw 1001 [Cite as State v. Burgess, 2013-Ohio-4691.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : FRANCESCA BURGESS : : : Defendant-Appellant : CASE NO. 2013CA00070

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas for Stark County, Ohio is affirmed. Costs to

appellant.

_________________________________ HON. W. SCOTT GWIN