STATE OF OHIO v. TAJUANA THORNTON
APPEAL NO. C-160501
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 31, 2017
[Cite as State v. Thornton, 2017-Ohio-4037.]
TRIAL NO. B-1506313
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: May 31, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.
{1} Defendant-appellant Tajuana Thornton appeals from the judgment of the trial court convicting her of theft under
Background
{2} While living at the home of John and Merri Gerke, Thornton, without permission, used a check belonging to the Gerkes to pay her rent at another location, and used their bank account to pay several bills. The Gerkes reported the funds stolen to Fifth Third Bank, which reimbursed the Gerkes $5,454.01, the full amount stolen by Thornton.
{3} Thornton was indicted for two counts of theft, one count of forgery, and two counts of telecommunications fraud. The Gerkes were the only victims listed in the indictment. Thornton waived her right to a jury trial and pleaded guilty to one count of theft in violation of
{4} At Thornton‘s sentencing hearing, after reviewing the victim-impact statement, the trial court recognized that Fifth Third Bank had reimbursed the Gerkes for their loss. The trial court initially ordered that Thornton pay restitution
{5} Thornton filed a motion to stay the order of restitution pending appeal. The trial court denied her motion. Thornton also filed a motion to stay the execution of her sentence with this court, which was also denied.
Assignment of Error
{6} In her sole assignment of error, Thornton alleges that the trial court abused its discretion in ordering her to pay $5,454.01 in restitution. Thornton argues that the Gerkes did not suffer an economic loss, because Fifth Third Bank had, prior to her sentencing, reimbursed them for the entire amount.
Standard of Review
{7}
{8} In reviewing challenges to felony sentences pursuant to
{9} In March 2016, the Supreme Court of Ohio held that “appellate courts may not apply the abuse-of-discretion standard in sentencing-term challenges.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10. The Supreme Court noted
that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
{11} However, the Eighth and Fifth Appellate Districts have continued to apply an abuse-of-discretion standard of review. See State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 73, fn. 4 (8th Dist.); State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019, 2017-Ohio-59, ¶ 44. In Nitsche, the Eighth District recognized Marcum‘s holding that appellate courts may not apply the abuse-of-discretion standard in reviewing sentences, but reasoned that Marcum was limited to sentencing-term challenges, and therefore, did not apply to orders of restitution. Nitsche at ¶ 73, fn. 4.
{12} After reviewing Marcum, the cases from the other Ohio appellate districts, and
Economic Loss
{13} Because Thornton was convicted of a felony and can only appeal her sentence under
{14} A trial court may sentence an offender to any financial sanction or combination of financial sanctions, including restitution.
{15} The victim of the offense is “[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
{16} The trial court “may base the amount of restitution it orders on an amount recommended,” but the 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.”
{17} There is no question that the Gerkes were victims of Thornton‘s crime. Thornton challenges the trial court‘s finding that the Gerkes had suffered economic loss, because Fifth Third Bank had reimbursed them for the full amount prior to her sentencing.
{18} Ohio appellate courts have addressed the issue of whether a victim has suffered an economic loss after being reimbursed by a third party. See State v.Martin, 140 Ohio App.3d 326, 326-327, 747 N.E.2d 318 (4th Dist.2000) (holding that the victim “did not suffer any ‘economic detriment,’ since he was fairly compensated for his losses by his insurance carrier“); see also State v. Crum, 5th Dist. Delaware No. 12 CAA 08 0056, 2013-Ohio-903, ¶ 12 (holding that “[i]f a victim is reimbursed by a third-party, the victim has not suffered an economic loss“); State v. Nickens, 8th Dist. Cuyahoga No. 104670, 2017-Ohio-1448, ¶ 8 (holding that “[i]f the victim has insurance that reimbursed her for part or all of the loss that occurred as a result of the offender‘s criminal conduct, the victim has not suffered an economic loss for the purposes of imposing restitution“); State v. Bowman, 181 Ohio App.3d 407, 2009-Ohio-1281, 909 N.E.2d 170, ¶ 12 (2d Dist.) (holding that “the evidence introduced to demonstrate the actual economic loss suffered by the victim must take account of any offsets to the victim‘s economic loss and any mitigation of damages in the form of compensation received for the loss“); State v. Hebb, 5th Dist. Ashland No. 2010-COA-038, 2011-Ohio-4566, ¶ 90-92 (holding that “the trial court is to determine the actual economic loss suffered by the victim and to [take] into account any offsets to the victim‘s economic loss and any mitigation of damages in the form of compensation received for the loss from, for example, insurance, civil judgments against the defendant or civil judgments against any party responsible for any part of the loss“).
{19} In analyzing economic loss in regards to restitution, the Second, Fifth, and Eighth Appellate Districts have adopted the reasoning that
because
R.C. 2929.18(A)(1) states that the trial court‘s order of restitution shall not exceed the amount of economic loss suffered by the victim, and double recovery would amount to an impermissible economic windfall for the victim, the evidence introduced todemonstrate the actual economic loss suffered by the victim must take account of any offsets to the victim‘s economic loss and any mitigation of damages in the form of compensation received for the loss from, for example, insurance, the Ohio Title Defect Rescission Fund, or civil judgments against the defendant.
See Bowman at ¶ 12, citing Martin, and State v. Christy, 3d Dist. Wyandot No. 16-06-01, 2006-Ohio-4319; State v. Clayton, 2d Dist. Montgomery No. 22937, 2009-Ohio-7040, ¶ 56; Hebb at ¶ 90; State v. Dunham, 5th Dist. Richland No. 13CA26, 2014-Ohio-1042, ¶ 82; State v. Waiters, 191 Ohio App.3d 720, 2010-Ohio-5764, 947 N.E.2d 710, ¶ 18 (8th Dist.).
{20} After reviewing the record, we find that the trial court erred in ordering restitution to the Gerkes. Prior to Thornton‘s sentencing hearing, Fifth Third Bank had reimbursed the Gerkes, who were the only identified victims, for the full amount stolen by Thornton. This fact was documented in the victim impact statement. Ordering restitution to the Gerkes would result in an impermissible windfall and would frustrate the purposes of restitution. See Bowman at ¶ 12. Although we understand that the trial court imposed the restitution because it did not want to promote theft, the judiciary has the duty to interpret the words provided by the General Assembly, and to refrain from deleting or inserting words to achieve a particular result. State v. Gonzales, 150 Ohio St.3d 261, 2017-Ohio-777, 81 N.E.3d 419, ¶ 13, citing Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441 (1988), paragraph three of the syllabus. Because the Gerkes had been reimbursed, and therefore, had not suffered an economic loss, we clearly and convincingly find that the trial court‘s order of restitution was contrary to law. We sustain Thornton‘s sole assignment of error.
{21} Because the Gerkes had not suffered an economic loss pursuant to
Judgment affirmed as modified.
Mock, P.J., concurs separately.
Myers, J., concurs separately.
Моск, Р.Ј., concurring separately.
{22} While I disagree that the Gerkes did not suffer an economic loss as a result of Thornton‘s criminal acts, I must accept the result that the award of restitution in this case was contrary to law.
{23} I do not believe that Thornton should reap the benefit of her illegal activity and avoid having to pay restitution in this case, but the Ohio General Assembly eliminated the language in
{24} I write separately because some of the cases cited by the majority to support the proposition that reimbursement precludes a restitution order involved reimbursement from an insurance company. I disagree with those cases and believe our recent case involving restitution and insurance coverage remains good law in this
{25} In Berlinger, this court upheld an award of restitution to a victim who had been reimbursed by an insurance company. The court held that the victim had suffered an economic loss because premiums had been paid to secure the coverage in an amount that would cover the theft. Id. at ¶ 7. Berlinger is therefore distinguishable from this case because our record contains nothing to indicate the Gerkes suffered another form of economic loss other than the $5,454.01 vanishing from their bank account. If the record had shown that the Gerkes had a subrogation agreement with Fifth Third or had suffered another form of collateral economic damage from Thornton‘s criminal wrongdoing, my decision in this case would be different.
Myers, J., concurring separately.
{26} I too, concur. There is no question that at the time of the theft, the Gerkes were victims and suffered an “economic loss” as defined by
{27} While this leaves Thornton with no criminal restitution obligation, the result is required by the clear language of the statutes. The bank retains any rights it has to pursue Thornton civilly.
Please note:
This court has recorded its own entry this date.