[Cite as State v. Rucker, 2014-Ohio-3020.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : JOHN A. RUCKER : Case No. 13-CA-00009 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 02-CR-34
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 30, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT JAMES S. SWEENEY Prosecuting Attorney James Sweeney Law, LLC 111 North High Street 341 South Third Street P.O. Box 569 Suite 300 New Lexington, OH 43764 Columbus, OH 43215 Perry County, Case No. 13-CA-00009 2
Baldwin, J.
{¶1} Defendant-appellant John Rucker appeals from the July 31, 2013
Judgment Entry of the Perry County Court of Common Pleas ordering him to pay
restitution in the amount of $142,607.45. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 20, 2002, the Perry County Grand Jury indicted appellant on one
count of aggravated theft in violation of R.C. 2913.02(A)(1), a felony of the third degree.
A warrant was issued for appellant’s arrest.
{¶3} Subsequently, on January 8, 2013, appellant pleaded not guilty to the
charge. On May 1, 2013, appellant withdrew his former not guilty plea and entered a
plea of guilty to grand theft in violation of R.C. 2913.02(A)(1), a felony of the fourth
degree. A sentencing and restitution hearing was held on July 29, 2013. At the hearing,
Greg Jeffries, a forensic account with the Ohio Attorney General’s office Bureau of
Criminal Investigation, testified.
{¶4} Pursuant to a Judgment Entry filed on July 31, 2013, appellant was
sentenced to eighteen (18) months in prison and ordered to pay restitution in the
amount of $142,607.45 to New Lexington Aeries #2070/Fraternal Order of Eagles
where appellant had served as Secretary.
{¶5} Appellant now raises the following assignment of error on appeal:
{¶6} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $142,607.45.
I Perry County, Case No. 13-CA-00009 3
{¶7} Appellant, in his sole assignment of error, argues that the trial court
abused its discretion in ordering him to pay restitution in the amount of $142,607.45. We
disagree.
{¶8} R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the
following:
{¶9} “(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:
{¶10} “(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 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 Perry County, Case No. 13-CA-00009 4
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.”
{¶11} Economic loss is defined in R.C. 2929.01(L) as follows:
{¶12} “‘Economic loss' means any 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.”
{¶13} The amount of restitution “must be supported by competent, credible
evidence in the record from which the court can discern the amount of the restitution to
a reasonable degree of certainty.” State v. Aliane, 10th Dist. No. 03AP–840, 2004–
Ohio–3730, ¶ 15. Restitution orders are reviewed under an abuse of discretion
standard. State v. Williams, 34 Ohio App.3d 33, 519 N.E.2d 1270 (2nd Dist. Clark
1986). A trial court abuses its discretion if it orders restitution in an amount that does not
bear a reasonable relationship to the actual loss suffered. Williams, syllabus. In order to
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Perry County, Case No. 13-CA-00009 5
{¶14} In the case sub judice, Greg Jeffries testified that he reviewed the record
and report compiled by a previous investigator on appellant’s case. He testified that he
prepared a summary which he believed showed that that appellant had stolen from the
New Lexington Eagles. The report was admitted into evidence as an exhibit.
{¶15} Jeffries testified that of the checks listed on the summary, $2,791.35 were
payable to appellant for Secretary fees and $18,264.45 were payable to appellant for
other than such fees. The exhibit also indicated that $124,343.00 were made payable
to cash and that the total of all checks payable to appellant and cash was $145,398.80.
After deducting the $2,791.35 in checks for Secretary fees, Jeffries determined that
appellant had misappropriated $142,607.45.
{¶16} Jeffries testified that appellant was the payee on the series of checks for
other than Secretary fees and that appellant would have endorsed those checks. He
further testified that appellant endorsed the checks made out of cash and that appellant
would have actually been the one who received the cash for those checks. When asked
if, in his opinion, the amount of the misappropriated funds was $142,607.45, Jeffries
responded in the affirmative.
{¶17} Appellant, in his brief, argues that during cross-examination, Jeffries
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[Cite as State v. Rucker, 2014-Ohio-3020.]
COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : JOHN A. RUCKER : Case No. 13-CA-00009 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 02-CR-34
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 30, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT JAMES S. SWEENEY Prosecuting Attorney James Sweeney Law, LLC 111 North High Street 341 South Third Street P.O. Box 569 Suite 300 New Lexington, OH 43764 Columbus, OH 43215 Perry County, Case No. 13-CA-00009 2
Baldwin, J.
{¶1} Defendant-appellant John Rucker appeals from the July 31, 2013
Judgment Entry of the Perry County Court of Common Pleas ordering him to pay
restitution in the amount of $142,607.45. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 20, 2002, the Perry County Grand Jury indicted appellant on one
count of aggravated theft in violation of R.C. 2913.02(A)(1), a felony of the third degree.
A warrant was issued for appellant’s arrest.
{¶3} Subsequently, on January 8, 2013, appellant pleaded not guilty to the
charge. On May 1, 2013, appellant withdrew his former not guilty plea and entered a
plea of guilty to grand theft in violation of R.C. 2913.02(A)(1), a felony of the fourth
degree. A sentencing and restitution hearing was held on July 29, 2013. At the hearing,
Greg Jeffries, a forensic account with the Ohio Attorney General’s office Bureau of
Criminal Investigation, testified.
{¶4} Pursuant to a Judgment Entry filed on July 31, 2013, appellant was
sentenced to eighteen (18) months in prison and ordered to pay restitution in the
amount of $142,607.45 to New Lexington Aeries #2070/Fraternal Order of Eagles
where appellant had served as Secretary.
{¶5} Appellant now raises the following assignment of error on appeal:
{¶6} THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $142,607.45.
I Perry County, Case No. 13-CA-00009 3
{¶7} Appellant, in his sole assignment of error, argues that the trial court
abused its discretion in ordering him to pay restitution in the amount of $142,607.45. We
disagree.
{¶8} R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the
following:
{¶9} “(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:
{¶10} “(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 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 Perry County, Case No. 13-CA-00009 4
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.”
{¶11} Economic loss is defined in R.C. 2929.01(L) as follows:
{¶12} “‘Economic loss' means any 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.”
{¶13} The amount of restitution “must be supported by competent, credible
evidence in the record from which the court can discern the amount of the restitution to
a reasonable degree of certainty.” State v. Aliane, 10th Dist. No. 03AP–840, 2004–
Ohio–3730, ¶ 15. Restitution orders are reviewed under an abuse of discretion
standard. State v. Williams, 34 Ohio App.3d 33, 519 N.E.2d 1270 (2nd Dist. Clark
1986). A trial court abuses its discretion if it orders restitution in an amount that does not
bear a reasonable relationship to the actual loss suffered. Williams, syllabus. In order to
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Perry County, Case No. 13-CA-00009 5
{¶14} In the case sub judice, Greg Jeffries testified that he reviewed the record
and report compiled by a previous investigator on appellant’s case. He testified that he
prepared a summary which he believed showed that that appellant had stolen from the
New Lexington Eagles. The report was admitted into evidence as an exhibit.
{¶15} Jeffries testified that of the checks listed on the summary, $2,791.35 were
payable to appellant for Secretary fees and $18,264.45 were payable to appellant for
other than such fees. The exhibit also indicated that $124,343.00 were made payable
to cash and that the total of all checks payable to appellant and cash was $145,398.80.
After deducting the $2,791.35 in checks for Secretary fees, Jeffries determined that
appellant had misappropriated $142,607.45.
{¶16} Jeffries testified that appellant was the payee on the series of checks for
other than Secretary fees and that appellant would have endorsed those checks. He
further testified that appellant endorsed the checks made out of cash and that appellant
would have actually been the one who received the cash for those checks. When asked
if, in his opinion, the amount of the misappropriated funds was $142,607.45, Jeffries
responded in the affirmative.
{¶17} Appellant, in his brief, argues that during cross-examination, Jeffries
admitted that at the time of the theft by appellant, work was being done on the Eagles
lodge. Appellant also points out that Jeffries conceded that, with respect to the checks
made out to cash, he did not know where the money went and there was no
documentation. He further argues that Jeffries was unable to link checks made out to
cash, with limited exceptions, to any deposit in appellant’s account. Perry County, Case No. 13-CA-00009 6
{¶18} However, as noted by appellee, appellant never provided any explanation
as to why he cashed the checks made payable to cash in the amount of $124,343.00 or
what was done with such funds. Nor did appellant provide any explanation as to what
happened to the funds from the checks in the total amount of $18,264.45 which were
made payable to and cashed by appellant.
{¶19} Based on the foregoing, we find that the trial court did not abuse its
discretion in ordering appellant to pay restitution in the amount of $142,607.45. The trial
court’s decision was not arbitrary, unconscionable or unreasonable.
{¶20} Appellant’s sole assignment of error is, therefore, overruled.
{¶21} Accordingly, the judgment of the Perry County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, J. concur.