State v. Carson

2024 Ohio 5407

Opinion

[Cite as State v. Carson, 2024-Ohio-5407.]

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

STATE OF OHIO : : Appellee : C.A. No. 30115 : v. : Trial Court Case No. 2023 CRB 00715E : JOHN J. CARSON : (Criminal Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on November 15, 2024

ARVIN S. MILLER, Attorney for Appellant

JAMES D. MILLER, Attorney for Appellee

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HUFFMAN, J.

{¶ 1} Defendant-Appellant John J. Carson appeals from his conviction for criminal

damaging. Specifically, he challenges the trial court’s order of restitution, arguing that the

trial court erred by ordering restitution for damages that were not identified in the criminal -2-

complaint to which he pleaded guilty. For the following reasons, we affirm the judgment

of the trial court.

I. Background Facts and Procedural History

{¶ 2} On October 16, 2023, Carson was arrested at a vacant house on Old

Needmore Road in Riverside, Ohio, after he attempted to unlawfully gain access to the

property by breaking two garage windows. The property owner was present at the time

of Carson’s arrest.

{¶ 3} Carson was charged with one count of possessing criminal tools, one count

of criminal damaging, and one count of criminal trespass. The criminal damaging

complaint stated that Carson unlawfully committed criminal damaging by breaking two

windows of a garage without privilege to do so. During the investigation, however, a

supplemental report was apparently submitted regarding newly identified damage to the

property; the complaint was not amended to reflect the additional damages.

{¶ 4} Following plea negotiations, Carson pleaded guilty to one count of criminal

damaging, a misdemeanor of the second degree, and the other two charges were

dismissed. At the time of the plea, there was no agreement on restitution, and the trial

court referred Carson to the probation department for a presentence investigation.

{¶ 5} A restitution hearing was held on February 27, 2024. The complainant

property owner, Kevin Vlcek, appeared and presented evidence regarding the alleged

damage to his property. Vlcek testified that, in addition to the two broken garage door

windows described in the criminal complaint, Carson broke an additional window and a

storm door while trying to gain access to the property, which were later discovered. Vlcek -3-

stated that the garage door windows were repaired for $450, but he submitted a damage

request to the trial court totaling approximately $3,965, which included the following

exhibits: an estimate related to the storm door, which included an installation fee of $262

($561); another estimate related to the storm door, which also included an installation fee

of $262 ($801.99); an estimate for the other window ($2,335.73); and two receipts from

Lowe’s for additional supplies ($23.61 and $55.56).

{¶ 6} The trial court ordered restitution in the amount of $3,965.89, which was the

total of Vlcek’s exhibits less one $262 installation fee. The court noted, however, that the

criminal complaint was limited to $450 for repairs of the two garage door windows, as

indicated on the face of the complaint. In ordering restitution in an amount greater than

that required to repair the two garage door windows, the trial court reasoned that there

were additional losses to Vlcek resulting from the criminal damaging charge against

Carson, even though those losses were identified later and thus were not incorporated

into the criminal complaint. Carson appeals.

II. Assignment of Error

{¶ 7} Carson asserts the following sole assignment of error:

THE TRIAL COURT ERRED IN ORDERING THE DEFENDANT TO

PAY RESTITUTION FOR DAMAGES NOT IDENTIFIED IN THE

COMPLAINT AND TO WHICH THE DEFENDANT WAS NOT CHARGED

OR FOUND GUILTY OF.

{¶ 8} Carson contends that the trial court erred by ordering restitution for alleged

damages that were not listed in the criminal damaging charge to which he pleaded guilty. -4-

He argues that he agreed to plead guilty to the one count of criminal damaging, which

only included damage to two garage door windows. Specifically, he asserts that the trial

court erred by allowing Vlcek to add additional damages to his request for restitution, as

those damages were not specifically listed in the criminal complaint. We disagree.

{¶ 9} Carson was charged with criminal damaging under R.C. 2909.06(A), a

misdemeanor of the second degree, which states:

(A) No person shall cause, or create a substantial risk of physical harm to

any property of another without the other person’s consent:

(1) Knowingly, by any means;

(2) Recklessly, by means of fire, explosion, flood, poison gas, poison,

radioactive material, caustic or corrosive material, or other inherently

dangerous agency or substance.

{¶ 10} R.C. 2929.28 governs financial sanctions for misdemeanor offenses and

allows a court to impose sanctions on a criminal offender, including restitution by the

offender to the victim. R.C. 2929.28(A)(1) provides, in part:

The court shall determine the amount of restitution to be paid by the

offender. The victim, victim’s representative, victim’s attorney, if applicable,

the prosecutor or the prosecutor’s designee, and the offender may provide

information relevant to the determination of the amount of restitution. 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 or is required to impose -5-

restitution, the court shall hold an evidentiary hearing on restitution if the

offender, victim, victim’s representative, victim’s attorney, if applicable, or

victim’s estate disputes the amount of restitution. The court shall determine

the amount of full restitution by a preponderance of the evidence.

{¶ 11} “R.C. 2929.28(A)(1) does not contain language limiting restitution to

property damage, but instead, limits restitution to the economic loss suffered by the victim

or his survivors as a result of the offender’s crime.” State v. Carroll, 2015-Ohio-4109, ¶ 11

(2d Dist.). R.C. 2929.01(L) defines the “economic loss” 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, any property

loss, medical cost, or funeral expense incurred as a result of the

commission of the offense, and the cost of any accounting or auditing done

to determine the extent of loss if the cost is incurred and payable by the

victim. “Economic loss” does not include non-economic loss or any punitive

or exemplary damages.

Whether something is an economic loss “is dependent on whether the loss is an economic

detriment suffered by the victim that is the proximate result of the offense at issue.” Carroll

at ¶ 12.

{¶ 12} “The evidence to support a restitution order can take the form of either

documentary evidence or testimony.” Carroll at ¶ 15, quoting State v. Jones, 2014-Ohio-

3740, ¶ 23 (10th Dist.). Moreover, “[t]he trial court is authorized to base the amount of -6-

restitution on an amount recommended by the victim.” Id., quoting State v. Pillow, 2008-

Ohio-6046, ¶ 148 (2d Dist.); R.C. 2929.28(A)(1).

{¶ 13} “R.C. 2929.28(A)(1) grants broad discretion to the trial court to ‘base the

amount of restitution it orders’ on new information presented at the restitution hearing,

which can be from the victim, the offender, a presentence investigation report, estimates,

receipts, or ‘any other information.’ ” State v. Williams, 2017-Ohio-125, ¶ 13 (2d Dist.),

quoting State v. Olson, 2013-Ohio-4403, ¶ 8 (2d Dist.). The amount of restitution “must

be limited to the actual economic loss caused by the illegal conduct for which the

defendant was convicted.” State v. Caldwell, 2023-Ohio-355, ¶ 16 (4th Dist.), quoting

State v. Warner, 55 Ohio St.3d 31, 69 (1990). “The State bears the burden of establishing

the restitution amount.” State v. Moore, 2023-Ohio-3318, ¶ 11 (1st Dist.), citing Caldwell

at ¶ 16.

{¶ 14} “[W]e generally review a trial court’s order of restitution under an abuse of

discretion standard; an abuse of discretion implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.” State v. Wilson, 2015-Ohio-3167, ¶ 11, citing

State v. Naylor, 2011-Ohio-960, ¶ 22 (2d Dist.); State v. Johnson, 2012-Ohio-1230, ¶ 11

(2d Dist.). A trial court abuses its discretion “when it orders restitution that does not bear

a reasonable relationship to the actual financial loss suffered” as a result of the

defendant’s offense and “if the award of restitution is not supported by competent,

credible evidence in the record from which the court can discern the amount of restitution

to a reasonable degree of certainty.” Williams at ¶ 14, citing Johnson at ¶ 11; Olson at

¶ 33; State v. Williams, 34 Ohio App.3d 33 (2d Dist.). -7-

{¶ 15} The crux of Carson’s argument is that, when he pleaded guilty to the charge

of criminal damaging, he only acknowledged that he had broken the two garage door

windows as stated in the complaint. The criminal complaint specifically identified the

damaged property as two broken windows. He argues that the restitution order should,

therefore, have been limited to $450 for the cost of repairing the two garage door windows

and that the trial court erred in ordering restitution in the amount of $3,965.89 for

additional damages.

{¶ 16} At the restitution hearing, however, Vlcek testified that Carson had caused

additional damage to his property in the commission of the criminal damaging offense for

which Carson pleaded guilty. Based on Vlcek’s testimony, the additional damages to his

property included another broken window and a storm door, with damages in fact totaling

$3,965.89.

{¶ 17} To support his argument, Carson relies on State v. Folson, 2023-Ohio-55

(1st Dist.). In Folson, the defendant pleaded guilty to hitting the victim’s rear bumper with

her own car. Id. at ¶14. The victim sought restitution for additional damages caused by

syrup in her gas tank and slashed tires, which the trial court granted. Id. On appeal, the

First District reversed, finding that the damages caused by the syrup in the gas tank and

slashed tires did not “flow as a natural and continuous consequence” from the

commission of the offense for which Folson had been charged and to which she pleaded

guilty, as “[t]hose damages were not a direct and proximate result of Folson’s act of hitting

the victim’s rear bumper with her own car.” Id.

{¶ 18} We do not find the facts in Folson to be analogous to this case. Folson -8-

pleaded guilty to rearending the victim’s vehicle, which could not, by itself, result in syrup

in the vehicle’s gas tank and slashed tires. Carson, on the other hand, pleaded guilty to

criminal damaging as a result of his attempt to unlawfully enter Vlcek’s property. The

additional damages sought by Vlcek—namely another broken window and storm door—

did flow as a natural and continuous consequence of Carson damaging Vlcek’s property

in an attempt to enter.

{¶ 19} We do, however, find the reasoning in State v. Brand, 2001-Ohio-2205 (3d

Dist.) to be persuasive. In Brand, the defendant entered a plea of no contest to the charge

of criminal damaging in violation of R.C. 2909.06(A)(1). Id. The defendant was found

guilty by the municipal court and was ordered to make restitution in the amount of

$1,101.80. Id. The defendant appealed the restitution order, arguing that the trial court

had violated R.C. 2929.21(E) by ordering her to pay restitution in an amount more than

the damages contained in the complaint and that she could not be ordered to pay more

in restitution than the $822.14 amount stated in the complaint and to which she pled no

contest. Id. However, the record of the plea hearing revealed that the defendant had

disputed the amount of damage alleged in the complaint, and her counsel had requested

an evidentiary hearing on the amount of restitution for the damage to the victim’s van.

Evidentiary hearings were conducted, and the evidence supported a finding of actual

damages totaling $1,101.80. In Brand, the appellate court upheld the trial court’s order of

restitution, reasoning:

R.C. 2929.21(E) allows a trial court to “require a person who is convicted of

or pleads guilty to a misdemeanor to make restitution for all or part of the -9-

property damage that is caused by the offense . . . that the person

committed.” A plain reading of the statute reveals that the only limitation

imposed is that the amount of the restitution order cannot exceed the

amount of actual damages caused by the offense.

{¶ 20} We conclude that the damages in this case were a direct and proximate

result of Carson damaging Vlcek’s property while attempting to unlawfully gain access to

it and, thus, they bore a reasonable relationship to the actual loss suffered by Vlcek as a

result of the criminal damaging offense for which Carson was convicted. The only

limitation imposed on the trial court in ordering restitution was that the amount could not

exceed the amount of actual damages caused by the offense for which Carson was

convicted, which, based on Vlcek’s testimony, it did not. Therefore, we cannot say that

the trial court abused its discretion by including the cost to fix the additional damages

caused by Carson’s criminal damaging offense as part of its restitution order.

{¶ 21} Carson’s sole assignment of error is overruled.

III. Conclusion

{¶ 22} The judgment of the trial court is affirmed.

WELBAUM, J. and LEWIS, J., concur.