{¶ 2} Between 1990 and 2005, defendant, her daughter, Lisa, and her live-in boyfriend, Roger Neff, allegedly engaged in a pattern of corrupt activity, including a retail refund scheme and welfare fraud. Further facts of the case will be discussed as they relate to defendant's assignments of error.
{¶ 3} On January 19, 2006, defendant was charged as follows: Count 1, engaging in a pattern of corrupt activity in violation of R.C.
{¶ 4} The case was tried to the court beginning on March 15, 2007. On May 8, 2007, the court found defendant guilty of all counts and subsequently sentenced her to an aggregate of seven years in prison. Additionally, the court imposed the following financial sanctions: Restitution under R.C.
{¶ 5} Defendant now appeals, raising six assignments of error for our review.
{¶ 6} "I. R.C.
{¶ 7} In the instant case, Count 14 of the indictment against defendant is labeled as a violation of R.C.
{¶ 8} Defendant first argues that there was no evidence that she acted on behalf of an organization pursuant to subsection (C)(1) of R.C.
{¶ 9} "An indictment meets constitutional requirements if it `first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction *5
in bar of future prosecutions for the same offense.'" State v.Childs,
{¶ 10} Defendant next argues that there was insufficient evidence to sustain a conviction of welfare fraud. When reviewing sufficiency of the evidence, an appellate court must determine "[w]hether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991),
{¶ 11} According to the record, there is sufficient evidence that defendant accepted and possessed $16,249 worth of food stamps that she was not entitled to. Brian Semethy, an investigator for the Cuyahoga County Department of Employment and Family Services, testified that defendant received food stamp benefits from May 1, 1995 through December 27, 2005 in the amount of $16,249. Additionally, Semethy testified that defendant lied on her applications, stating that she did not have any assets, such as cash, credit cards, or a house. However, the record shows that during this time frame, she owned a home in Westlake, had multiple credit and debit cards, and had over $1 million in cash in safety deposit boxes.
{¶ 12} Finding that there was sufficient evidence to show that defendant committed welfare fraud, her first assignment of error is overruled. *6
{¶ 13} "II. A charge of theft of between $100,000 and $500,000 under R.C.
{¶ 14} Defendant first argues that there was insufficient evidence as to the specific amount of money each retailer lost, thus the court erred by convicting her of aggravated theft of an amount between $100,000 and less than $500,000, which is a third-degree felony pursuant to R.C.
{¶ 15} A review of the record shows that Derrick Carlson, a regional investigations manager for loss prevention at TJX, which is the parent company of TJ Maxx and Marshalls stores, testified that the total amount of transactions between 1998 and 2005 on credit or debit cards in the three defendants' names was $184,524.65. Keith Thompson, a manager of investigations at Sears, testified that in that same time period, the defendant's receipts at Sears totaled $19,865.44. This consisted of 43 returns, 17 exchanges, and 5 sales. The above samplings are just two examples of the 54 witnesses who testified in this case. Additionally, between 1998 and 2005, the defendants charged $61,310.33 to credit and debit cards; had $313,781.51 in credits to those accounts; and took out cash withdrawals of $245,225.42. *7
{¶ 16} According to the court's August 16, 2007 judgment entry determining restitution, which will be analyzed in more detail under defendant's third assignment of error, the State proved beyond a reasonable doubt that defendant stole $258,941.34 from the following entities: TJX Corporation, Sears, Saks Fifth Avenue, J.C. Penney, and the Ohio Department of Human Services (food stamps and Medicaid).
{¶ 17} Looking at this evidence in a light most favorable to the State, the court could have found that theft of over $100,000 occurred in the instant case.
{¶ 18} Defendant next argues that there was not sufficient evidence that the court had proper jurisdiction to convict her of thefts that occurred outside the state of Ohio.
{¶ 19} R.C.
{¶ 20} In the instant case, testimony from the various retailers indicates that much of defendant's criminal conduct occurred in the state of Ohio. Additionally, defendant and Neff resided in Westlake, which is located in Cuyahoga County. Carlson, the investigator for TJX, testified that he reviewed TJ Maxx and Marshalls merchandise that was recovered from defendant's home, much of it still with price tickets attached, and valued this merchandise at $174,978.05. Additionally, over $1 million in cash and countless pieces of jewelry were found in safety deposit boxes rented out in defendant's name at various banks in the Cleveland area.
{¶ 21} Given these facts, there was sufficient evidence to show that a large part of this retail fraud scheme took place in Ohio. See State v.Ahmed, Cuyahoga App. No. 84220,
{¶ 22} Assignment of Error II is overruled.
{¶ 23} "III. Restitution is only valid when it is statutorily authorized. Between July 1, 1996 and March 23, 2000, R.C.
Since Ms. Hall's conduct did not impose a threat of personal injury or death, the trial court erred by ordering restitution for her offenses during that period."
{¶ 24} As support for her argument that the court erred by ordering restitution for non-violent offenses that occurred before the 2000 amendments to R.C.
{¶ 25} "A sentencing court's authority to order restitution is governed by R.C.
{¶ 26} "When read together, these statutes provide that restitution is a valid sanction only to compensate for crimes that pose the threat of personal injury or death." (Internal notes omitted.) *10
{¶ 27} See, also, State v. Quandt, Cuyahoga App. No. 80222,
{¶ 28} The State, on the other hand, argues that the legislative intent behind R.C.
{¶ 29} We also note that defense counsel did not object to this alleged error during trial. "Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v.Long (1978),
{¶ 30} In the instant case, defendant was convicted of multiple counts of theft-related offenses, including engaging in a pattern of corrupt activity, which occurred over a 15-year span. As a result of the convictions, the court ordered $258,941.34 in restitution, with a break-down corresponding to the victims. No objection was made by defendant to further break down this total by date. Due to the ongoing nature of *11 defendant's criminal scheme, we find this case distinguishable fromWard and Quandt, supra.
{¶ 31} Assignment of Error III is overruled.
{¶ 32} "IV. The amount of restitution awarded by the trial court is not supported by the record. By imposing that restitution without a sufficient factual basis, the court violated Ms. Hall's rights to due process under the
{¶ 33} Pursuant to R.C.
{¶ 34} We review court-ordered restitution for an abuse of discretion. "To establish the amount of restitution within a reasonable certainty, there must be some competent, credible evidence. Sufficient evidence of the amount of restitution may appear in the record. Where evidence of the appropriate amount of restitution does not appear in the record, an evidentiary hearing is required." State v. Carrino (May 11, 1995), Cuyahoga App. No. 67696, citing State v. Warner (1990),
{¶ 35} In the instant case, due to the length of time the indictment covered (15 years), the sheer amount of transactions in question, and the multiple ways in which defendant perpetrated her "refunding," it was difficult to ascertain a hard and fast dollar amount during the trial. As such, the court held a restitution hearing, at which *12 Carlson of TJX testified and was subject to cross-examination, as to specific details of economic losses for TJ Maxx and Marshalls, which he totaled at $158,468. At the close of this hearing, the court stated the following regarding restitution:
{¶ 36} "It has been quite an undertaking in the view of the Court here because in a very frustrated manner I mentioned it was kind of a moving target. I have taken, after great thought, I have taken Exhibit No. 10. I believe it is in addition to some of the other exhibits in the trial and the record will go to the Court of Appeals in the event there is an appeal, but feel that the record supports the restitution pursuant to 2929.18(A)(1) as follows. This will apply to Joan as she has been found guilty of the theft and the other activities.
{¶ 37} "For TJ Maxx I have found restitution in the amount of $159,322.28. This is after working with the numbers at great time and expense to the Court I might add. The Court will also at the request of this particular victim, there is a storage locker which I know for a fact is being used as I have with counsel have seen that locker to the tune of $5,376. The Court will award that as a component of the restitution and also $2,156.04 for truck rental. The rest of the request will be denied.
{¶ 38} "Sears after crunching the numbers, the Court finds restitution in an amount of $17,449.27. For Saks restitution, which is supported in the record, of $5,074.40. J.C. Penney, $34,679 and $34,679.11, and the Ohio Department of Human Services for the food stamps, $16,249 and for the Medicaid benefits, $18,635.24. Restitution totals $258,941.34." *13
{¶ 39} A review of the record shows these various amounts are supported by competent, credible evidence in the form of trial testimony, volumes of receipts and credit and debit card statements, and State's Exhibit 10, which consists of summary sheets for defendant's accounts, as well as pie charts and graphs.
{¶ 40} Assignment of Error IV is overruled.
{¶ 41} "V. Courts have authority to order fines only as empowered by statute. RICO violations under R.C.
{¶ 42} Defendant specifically argues that the trial court should vacate the $20,000 fine it ordered on Count 1, pursuant to R.C.
{¶ 43} R.C.
{¶ 44} "Notwithstanding the financial sanctions authorized by section
{¶ 45} "(a) In lieu of the fine authorized by that section, impose a fine not exceeding the greater of three times the gross value gained or three times the gross loss caused ***; *14
{¶ 46} "(b) In addition to the fine described in division (B)(2)(a) of this section and the financial sanctions authorized by section
{¶ 47} "(c) In addition to the fine described in division (B)(2)(a) of this section and the financial sanctions authorized by section
{¶ 48} In State v. Nasrallah (2000),
{¶ 49} "The statute raises the cap of the fine which may be imposed from the $20,000 maximum which may be levied against a first degree felon acting on his own, to a more fluid amount premised on either the harm caused or the benefit derived from a pattern of corrupt activity. This is a reasonable provision considering that there is a substantial risk that the damage caused by an ongoing criminal activity or performed in concert with others will be greater than the damage precipitated by an individual. Moreover, this more severe financial penalty provision is in conformity with the parallel purposes of Ohio's act and the federal RICO statute, see State v. Schlosser (1997),
{¶ 50} See, also, State v. Burge (1992),
{¶ 51} This Court has held that "[w]ords used in a statute are to be taken in their usual, normal, and customary meaning. Further, unless a statute is ambiguous, the court must give effect to the plain meaning of a statute." City of Cleveland Heights v. Jones, Cuyahoga App. No. 86313,
{¶ 52} In the instant case, the court imposed a $20,000 fine for defendant's violation of R.C.
{¶ 53} A plain reading of R.C.
{¶ 54} Assignment of Error V is sustained for the limited purpose of reducing the conventional R.C.
{¶ 55} "VI. Courts are authorized to order fines under R.C.
{¶ 56} In the instant case, defendant did not object to the statutory fines at sentencing; therefore, we review this argument for plain error. At the sentencing hearing, the court ordered fines under R.C.
{¶ 57} In the court's August 16, 2007 judgment entry, Counts 7, 27-46, 48-56, and 58-76 are listed as $2,500 each, rather than $500 each. In addition, the journal entry shows a $2,500 fine for counts 77 and 78, which were not mentioned at all during the hearing. Finally, the journal entry lists no fines for counts 16-26. The entry totals the R.C.
{¶ 58} Assignment of Error VI is sustained and the cause is remanded for the limited purpose of correcting the journal entry.
{¶ 59} Judgment affirmed as to convictions and restitution; reversed and remanded as to the calculation of fines.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, A.J., and JAMES D. SWEENEY, J.*, CONCUR.