Opinion
No. 106287
06-14-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. DAVID E. EICHELSERFER DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT John F. Corrigan 19885 Detroit Road, #335 Rocky River, Ohio 44116 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Ashley B. Kilbane Mary M. Frey Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-617166-A BEFORE: Laster Mays, J., McCormack, P.J., and E.T. Gallagher, J. ATTORNEY FOR APPELLANT
John F. Corrigan
19885 Detroit Road, #335
Rocky River, Ohio 44116 ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor By: Ashley B. Kilbane
Mary M. Frey
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant David E. Eichelserfer ("Eichelserfer") appeals the trial court's restitution award to the victim, David Nieders ("Nieders"), and asks this court to vacate the award and adjust the total restitution award accordingly. We affirm.
{¶2} Eichelserfer pleaded guilty to one count of burglary, a fourth-degree felony, in violation of R.C. 2911.12(B). He was sentenced to one year of community control sanctions and ordered to pay restitution in the amount of $4,393.
I. Facts
{¶3} Eichelserfer was caught attempting to break into a value transfer machine ("VTM"), located in an apartment building, that allowed tenants to pay for laundry services in the building. The tenants would insert cash into the VTM unit, and the unit would credit the tenant's VTM card. The tenant then could use that card to operate the washers and dryers located in the building's basement. Eichelserfer attempted to burglarize the VTM unit to steal the cash that the machine contained. In his attempt to gain access, Eichelserfer damaged the VTM unit.
{¶4} During the restitution hearing, the trial court allowed Nieders, the owner of the building to explain how the VTM unit was damaged and the costs associated with the damage. Taking into account Nieders's testimony, the trial court ordered restitution in the amount of $4,393, which included replacement of the damaged padlock, the VTM unit and installation, and the labor for the woodwork around the door that Eichelserfer damaged. Eichelserfer disagreed with the court's restitution order and filed this appeal assigning one error for our review:
I. The trial court abused its discretion in ordering restitution in an amount that did not bear a reasonable relation to the actual loss suffered.
II. Restitution
{¶5} In Eichelserfer's sole assignment of error, he argues that the restitution amount ordered by the trial court is not reasonable because the VTM unit only suffered cosmetic damage and is still functioning as it was intended. We review an order of restitution under the abuse of discretion standard. State v. Lalain, 8th Dist. Cuyahoga No. 95857, 2011-Ohio-4813, ¶ 9. A restitution award lies within the discretion of the trial court and will not be disturbed unless the trial court commits an abuse of discretion. State v. Welch, 8th Dist. Cuyahoga No. 105158, 2017-Ohio-7887, ¶ 19. An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶6} R.C. 2929.18(A)(1) states, in part,
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.
{¶7} Eichelserfer does not dispute that he damaged the wooden door and surrounding wood trim to gain access to the rear of the VTM unit. He also admits to using a saw to break the padlock, and using the saw on the VTM unit, in an attempt to break it open. However, he argues that because the VTM unit is still functioning, he should not have to pay the cost to replace it, but rather the costs of repairs.
In determining restitution, a trial court "'is free to accept or reject all, part, or none of the testimony of each witness.'" State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 24 (4th Dist.), quoting In re A.E., 2d Dist. Greene No. 2006-CA153, 2008-Ohio-1864, ¶ 15. Moreover, a trial court is under no duty to itemize or otherwise explain how it arrived at the amount of restitution it orders, so long as the trial court can discern the amount of restitution to a reasonable
degree of certainty from competent, credible evidence in the record. State v. Perkins, 3d Dist. Marion No. 9-13-52, 2014-Ohio-2242, ¶ 23; State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725, ¶ 20 (3d Dist.)State v. Welch, 8th Dist. Cuyahoga No. 105158, 2017-Ohio-7887, ¶ 22.
{¶8} The VTM unit cannot be repaired. (Tr. 46-47.) The company that supplied the unit reviewed the damage and determined that the unit would have to be replaced. Id. We find that the trial court did not abuse its discretion in its restitution order. The amount of restitution was reasonable and did not exceed the economic losses of Nieders.
{¶9} Therefore, Eichelserfer's sole assignment of error is overruled.
{¶10} Judgment is affirmed.
It is ordered that the appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
ANITA LASTER MAYS, JUDGE TIM McCORMACK, P.J., and
EILEEN T. GALLAGHER, J., CONCUR