State v. Cartwright

2017 Ohio 7212

• Court: Ohio Court of Appeals
• Decided: August 14, 2017
• Docket: CA2016-11-018
• Status: Published

Opinion

[Cite as State v. Cartwright, 2017-Ohio-7212.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, : CASE NO. CA2016-11-018 Plaintiff-Appellee, : OPINION : 8/14/2017 - vs - :

LOREN A. CARTWRIGHT, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI20160078

Michael DeWine, Ohio Attorney General, Robert Cheugh and Henrique Geigel, 30 East Broad Street, 25th Floor, Columbus, Ohio 43215, for plaintiff-appellee

Scott & Nolder Co., LPA, Michelle N. Eiler and Steven S. Nolder, 65 East State Street, Suite 200, Columbus, Ohio 43215, for defendant-appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Loren Cartwright, appeals a judgment of the Fayette

County Court of Common Pleas ordering him to pay restitution to the state of Ohio following

his conviction for open dumping.

{¶ 2} Appellant owns and operates Cartwright Salvage Company, a residential

hauling company located on Bogus Road in Washington Court House. The company has Fayette CA2016-11-018

contracts with approximately 1000 customers to collect their refuse on a weekly basis and

haul it to a solid waste landfill for disposal. Appellant and his family have operated the

business for over 50 years.

{¶ 3} In 2009, the Fayette County Health Department ("FCHD") learned that

appellant had been dumping refuse on his Bogus Road property. FCHD notified appellant of

the improper dumping. Over the next several months, appellant removed the refuse from the

property. Appellant subsequently began experiencing financial problems. Unable to pay the

landfill to take the refuse, appellant once again began dumping refuse on his property. The

refuse pile eventually grew to be 100 feet long, 70 feet wide, and 15 to 20 feet high.

{¶ 4} In the early morning hours of April 21, 2015, the local fire department

responded to a large fire on appellant's property caused by the spontaneous combustion of

the refuse pile. FCHD subsequently inspected the property, confirmed the improper

dumping, and discovered there was a rat infestation on the property. FCHD contacted the

Ohio Environmental Protection Agency ("OEPA"). The ensuing investigation revealed that

after appellant was notified that dumping refuse on the property was illegal, he and his

employees dug several pits on the property and buried a substantial amount of refuse in an

attempt to conceal it from the authorities. Appellant eventually worked with the authorities to

remove the refuse from the property and remedy the environmental hazard. However, as the

refuse dwindled, rats began migrating to neighboring properties.

{¶ 5} Due to this public health emergency situation, FCHD applied to OEPA for a

grant to clean up the property and abate the rat infestation. OEPA awarded FCHD a

$100,000 grant from the Environmental Protection Remediation Fund.1 FCHD used the grant

1. The Environmental Protection Remediation Fund is a fund promulgated under R.C. 3734.281. Pursuant to the statute, money collected from judgments for the state may be paid into the state treasury to the credit of the fund. R.C. 3734.281 provides that OEPA "shall use the moneys in the fund only for the purpose of remediating conditions at a * * * solid waste facility * * * or another location at which the director has reason to believe there is a substantial threat to public health or safety or the environment." -2- Fayette CA2016-11-018

to hire two separate companies to exterminate the rats and remove the refuse. FCHD spent

$105,741.69 in remediating the property.

{¶ 6} Appellant was indicted in April 2016 on one count of open dumping and two

counts of operating a solid waste facility without a license. Appellant subsequently pled guilty

to one count of open dumping in violation of R.C. 3734.03, an unclassified felony. The trial

court requested briefing on whether it could order restitution for the costs of remediating the

property. On October 13, 2016, following a sentencing hearing and upon finding that

appellant's egregious conduct had created a significant health hazard that demanded

immediate attention, the trial court sentenced appellant to one year of community control and

ordered him to pay $84,486.69 in restitution to the state of Ohio to the benefit of the

Environmental Protection Remediation Fund and a $10,000 fine.

{¶ 7} Appellant now appeals, raising one assignment of error:

{¶ 8} THE TRIAL COURT ERRED BY AWARDING RESTITUTION.

{¶ 9} Appellant argues the trial court erred in awarding restitution to the state for the

costs of cleaning up his property and abating the rat infestation because the state is not a

"victim" of his crime as that term is defined in R.C. 2930.01(H)(1) and applicable case law,

but rather a third party who is not entitled to restitution.

{¶ 10} As part of a defendant's felony sentence, R.C. 2929.18(A)(1) allows a trial court

to order restitution "by the offender to the victim of the offender's crime * * * in an amount

based on the victim's economic loss." If the court imposes restitution, the statute further

provides that restitution may 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."

{¶ 11} The issue of who constitutes a "victim" under R.C. 2929.18(A)(1) or to whom

restitution may appropriately be awarded under the statute is a question of law that is -3- Fayette CA2016-11-018

reviewed de novo. See State v. Shifflet, 4th Dist. Athens No. 13CA23, 2015-Ohio-4250;

State v. Harris, 6th Dist. Wood No. WD-14-069, 2015-Ohio-4412; State v. Maurer, 8th Dist.

Cuyahoga No. 103162, 2016-Ohio-1380; State v. Johnson, 10th Dist. Franklin No. 14AP-336,

2014-Ohio-4826; and In re M.A., 11th Dist. Lake No. 2015-L-075, 2016-Ohio-1161.

{¶ 12} R.C. 2929.18 does not define "victim." In support of his position that the state

is not a victim entitled to restitution, appellant cites R.C. 2930.01(H)(1) which defines a

"victim" as "[a] person who is identified as the victim of a crime * * * in a police report or in a

complaint, indictment, or information that charges the commission of a crime and that

provides the basis for the criminal prosecution * * * and subsequent proceedings to which this

chapter makes reference."

{¶ 13} In the criminal law context, some Ohio appellate districts have relied on R.C.

2930.01(H)(1) in determining who is a victim for purposes of restitution. See, e.g., State v.

Thornton, 1st Dist. Hamilton No. C-160501, 2017-Ohio-4037; State v. Hunter, 2d Dist.

Montgomery No. 25521, 2013-Ohio-3759; Harris, 2015-Ohio-4412; and Maurer, 2016-Ohio-

1380. Other appellate districts have declined to use R.C. 2930.01(H)(1)'s definition of a

"victim" outside of R.C. Chapter 2930, finding that the definition set forth in R.C.

2930.01(H)(1) is "specific only to" R.C. Chapter 2930. See State v. Ritchie, 174 Ohio App.3d

582, 2007-Ohio-6577 (5th Dist.); State v. Goudy, 7th Dist. Belmont No. 15 BE 0046, 2016-

Ohio-5193. We agree with the latter position. R.C. Chapter 2930 governs victims' rights and

the definitions set forth in R.C. 2930.01, including that of a "victim," are specific only to R.C.

Chapter 2930. See R.C. 2930.01 (which specifically states, "As used in this chapter," before

defining several terms). Accordingly, R.C. 2930.01(H)(1)'s definition of "victim" has limited

scope and no application to who a sentencing court may consider a "victim" for purposes of

restitution under R.C. 2929.18(A)(1).

{¶ 14} In support of his position that the state is not a victim entitled to restitution, -4- Fayette CA2016-11-018

appellant further cites several decisions from the Second, Third, Fourth, and Sixth Appellate

Districts. Those cases generally hold that banks and government agencies are third parties

that are not entitled to restitution because they were not actual victims of the defendant's

crimes or were not victims under R.C. 2930.01(H)(1).

{¶ 15} As stated above, R.C. 2929.18(A)(1) sets forth four possible payees to whom a

sentencing court may order restitution to be paid: the victim, adult probation departments,

clerks of courts, and "another agency designated by the court." Thus, "a trial court under the

current version of R.C. 2929.18(A)(1) retains the discretion to order that restitution be paid to

certain third parties, namely, an adult probation department, the clerk of courts, or another

agency designated by the court." State v. Bartholomew, 119 Ohio St.3d 359, 2008-Ohio-

4080, ¶ 14. Had the Ohio General Assembly "truly intended that restitution could be paid

only to a victim, it would have eliminated adult probation departments, clerks of courts, and

other agencies as designated by the court as possible payees" when it amended R.C.

2929.18(A)(1). Id. at ¶ 15.

{¶ 16} We find that the decisions cited by appellant are distinguishable or inapplicable.

Some decisions involved a bank, and not a governmental agency. See State v. Kiser, 2d

Dist. Montgomery No. 24419, 2011-Ohio-5551; Harris, 2015-Ohio-4412. Other decisions,

while involving law enforcement or other governmental agencies, denied restitution on the

ground the agencies were not victims as the term is defined in R.C. 2930.01(H)(1) or were

simply expending funds or incurring expenses in the performance of their duties. See State

v. Toler, 174 Ohio App.3d 335, 2007-Ohio-6967 (3d Dist.) (sheriff's office not entitled to

restitution for costs incurred in extraditing defendant; restitution available only to the actual

victim of the offense); State v. Steward, 6th Dist. Lucas No. L-14-1083, 2015-Ohio-3081

(state conceded restitution to dog warden for defendant's dogs' boarding and medical

expenses was improper; dog warden was not a victim under R.C. 2930.01[H]); State v. -5- Fayette CA2016-11-018

Samuels, 4th Dist. Washington No. 03CA8, 2003-Ohio-6106 (sheriff's office not entitled to

restitution for voluntarily spending its own funds to pursue a drug buy); Hunter, 2013-Ohio-

3759 (fire department not entitled to restitution for arson investigatory expenses; fire

department was not a victim under R.C. 2930.01[H][1]); and State v. Wolf, 176 Ohio App.3d

165, 2008-Ohio-1483 (3d Dist.) (fire departments not entitled to restitution for expenses

incurred in conjunction with an arson fire; fire departments were not the victims of

defendant's arson offense).

{¶ 17} Black's Law Dictionary defines "victim" as "[a] person harmed by a crime, tort,

or other wrong." Black's Law Dictionary 1598 (8th Ed.2004). Identification of the "victim" of a

crime necessarily implicates a consideration of the immediate interest sought to be defended

by the criminal statute involved. The cases cited by appellant and involving governmental

agencies certainly stand for the proposition that expending funds or incurring expenses in the

performance of a public duty regarding a defendant's offense does not confer "victim" status

to the responding agency. It is apparent that the immediate interest sought to be protected

by the criminal statutes involved in those cases was not the fiscal integrity of the

governmental agencies incurring expenses in performing public duties in response to criminal

activity. For instance, the arson and theft statutes protect the interests of property owners,

not that of responding fire departments and law enforcement agencies. By contrast, the

immediate interest sought to be protected by R.C. 3734.03, which prohibits open dumping, is

the public health and safety. In this sense, the expenses incurred by OEPA to remediate the

threat to the public health and safety caused by appellant's illegal dumping and resulting rat

infestation is not akin to a fire department responding to an arson fire. The trial court could

reasonably have determined that the public, specifically the Washington Court House

community and appellant's neighbors, is the victim of appellant's offense, and that the OEPA

represents the public in this regard. -6- Fayette CA2016-11-018

{¶ 18} We find that R.C. 2929.11(A) supports our position. R.C. 2929.11(A) provides

that

A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

(Emphasis added.) Reading R.C. 2929.11(A) in conjunction with R.C. 2929.18(A)(1)

suggests that restitution to the public under certain circumstances is proper to the extent the

sentencing court reasonably determines that the public is the "victim" of the offense. In

sentencing appellant, the trial court found that appellant's egregious conduct of illegal

dumping and the resulting rat infestation created a significant public health and safety hazard

to the community and appellant's neighbors that demanded immediate and drastic attention.

The trial court, therefore, did not err in ordering appellant to pay restitution to the state. See

State v. Gunn, Franklin C.P. No. 09CR-03-1438, 2009 Ohio Misc. LEXIS 9033 (Nov. 25,

2009) (ordering defendant to pay restitution to the "victim[s]", Franklin County General Health

Fund and OEPA, following defendant's conviction for open dumping, water pollution, and

operating a solid waste landfill without a license).

{¶ 19} Appellant's assignment of error is overruled.

{¶ 20} Judgment affirmed.

HENDRICKSON, P.J., and S. POWELL, J., concur.

-7-