State v. PeckState v. Peck
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YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Aaron Peck, appeals from his conviction in the Fremont Municipal Court of one count of receiving stolen property. We affirm, in part, and reverse, in part.
{¶ 2} On August 16, 2012, a criminal complaint was initiated against appellant, charging him with one count of receiving stolen property in violation of
{¶ 3} Eventually, the matter proceeded to a jury trial. At trial, the state called Randy Beckley. Beckley owns a pawn shop in Fremont. Beckley testified that sometime in early July 2012, appellant‘s wife, Ashlee Peck, called Beckley near closing time and asked him to stay open for a little while longer so that they could bring in an item to pawn. Beckley stated that appellant and Ashlee arrived together and sold him a Harley Davidson knife for $5. He explained that the knife did not have any special characteristics, and that he valued the knife at $10. Beckley testified that Fox arrived a few days later and recognized the knife as her own. Beckley then sold the knife to Fox for $5 and wrote a receipt at Fox‘s request which stated, “Bought a Franklin Mint Harley Davidson Knife from Aaron Peck that he stole from Joann Fox[.] Paid $5.00 for it.” Beckley later explained on cross-examination that he wrote what Fox wanted him to write and that he did not have any evidence to prove whether the knife was stolen or who stole it.
{¶ 5} Following the state‘s presentation of evidence, appellant moved for a
{¶ 6} Thereafter, appellant called Ashlee as his only witness. Ashlee testified that she does not have much of a relationship with her mother. She further testified that Fox has called children‘s services on her before, and that Fox believes she should not have her
{¶ 7} Following closing arguments, the case was turned over to the jury. The jury deliberated for a short time, and then returned its verdict of guilty. The trial court proceeded immediately to sentencing, and after receiving statements from appellant‘s probation officer, the state, appellant‘s attorney, and appellant himself, the court sentenced appellant to 180 days in jail. In addition, the court ordered appellant to pay Fox $200.
B. Assignments of Error
{¶ 8} Appellant has timely appealed, and now raises four assignments of error for our review:
- Appellant‘s conviction for receiving stolen property in violation of
Ohio Rev. Code § 2913.51(A) was against the manifest weight of the evidence. - The trial court erred when it denied appellant‘s motion for acquittal under
Crim.R. 29 because the City of Fremont failed to present evidence to establish beyond a reasonable doubt the elements necessary to support the conviction. Appellant‘s convictions [sic] were against the sufficiency of the evidence. - The trial court abused its discretion when it ordered appellant to pay the victim money for her lost wages for her participation in a pre-trial.
II. Analysis
{¶ 9} For ease of discussion, we will address appellant‘s assignments of error out of order.
A. Sufficiency of the Evidence
{¶ 10} Because an appellate court reviews a ruling on a
{¶ 11} Appellant was convicted of receiving stolen property in violation of
{¶ 12} We disagree with appellant‘s characterization of the evidence. Here, in addition to Beckley‘s testimony that appellant and Ashlee sold the knife to him, the state presented Fox‘s testimony that appellant was in the house with Ashlee at the time the knife and other valuables were stolen. When viewed in a light most favorable to the prosecution, we conclude that evidence showing appellant was with his wife both when the knife was stolen and when it was sold could lead a rational trier of fact to find beyond a reasonable doubt that appellant knew or should have known that the knife was stolen. Therefore, we hold that his conviction is based on sufficient evidence.
{¶ 13} Accordingly, appellant‘s second and third assignments of error are not well-taken.
B. Manifest Weight
{¶ 14} Similarly, in his first assignment of error, appellant claims that his conviction is against the manifest weight of the evidence because the evidence does not demonstrate that he knew or should have known that the knife was stolen.
[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting Thompkins, 78 Ohio St.3d at 387.
{¶ 16} For the same reasons stated above, we do not think this is the exceptional case in which the evidence weighs heavily against appellant‘s conviction. Here, appellant did not present any evidence to contradict Fox‘s testimony that he was present with his wife when the items were stolen. Further, Beckley unequivocally testified that appellant was present with his wife when the knife was sold. Upon our review of the record, and our weighing of the evidence and all reasonable inferences, we conclude that the jury did not clearly lose its way when it found that appellant knew or reasonably should have known that the knife was stolen. Therefore, we hold that appellant‘s conviction is not against the manifest weight of the evidence.
{¶ 17} Accordingly, appellant‘s first assignment of error is not well-taken.
{¶ 18} In his fourth and final assignment of error, appellant argues that the trial court committed plain error when it ordered him to pay Fox $200 as compensation for the time she missed from work to attend a pretrial at which appellant did not appear. In particular, he argues that the time Fox missed from work to attend the pretrial is not a direct and proximate result of his commission of the offense. Further, appellant contends that there was no testimony, report, or receipt offered to show how long the victim was at the courthouse or how much she made hourly or daily.
{¶ 19} Generally, we review a trial court‘s decision to award restitution for an abuse of discretion. State v. Perna, 2012-Ohio-5557, 982 N.E.2d 1312, ¶ 40 (6th Dist.). However, because appellant did not object to the restitution order during sentencing, he has waived all but plain error. See State v. Griffin, 6th Dist. Lucas No. L-11-1283, 2013-Ohio-411, ¶ 43, citing State v. Alexander, 4th Dist. Scioto No. 10CA3402, 2012-Ohio-2041, ¶ 9.
{¶ 20}
If the court imposes restitution, the court shall determine the amount of restitution to be paid 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.
Id.
Notably, “economic loss” is defined as
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.
R.C. 2929.01(L) .
{¶ 21} To be a lawful order, “the amount of restitution must be supported by competent, credible evidence from which the court can discern the amount of the restitution to a reasonable degree of certainty.” State v. Alcala, 6th Dist. Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 30, citing State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999). “When an award of restitution is not supported by such evidence, it is an abuse of discretion by the court that alters the outcome of the proceeding, thus constituting plain error.” Id., citing State v. Marbury, 104 Ohio App.3d 179, 181, 661 N.E.2d 271 (8th Dist.1995).
{¶ 23} Accordingly, appellant‘s third assignment of error is well-taken.
III. Conclusion
{¶ 24} For the foregoing reasons, the judgment of the Fremont Municipal Court is affirmed, in part, and reversed, in part. The portion of the sentence ordering appellant to pay $200 in restitution to Fox is reversed and vacated. The remaining portions of the judgment are affirmed in their entirety. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.