In re Hatfield
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[Cite as In re Hatfield, 2003-Ohio-5404.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY IN THE MATTER OF: : : ROBERT HATFIELD, : Case No. 03CA14 : ALLEGED DELINQUENT CHILD : DECISION AND JUDGMENT ENTRY : : Released 10/3/03 ________________________________________________________________ APPEARANCES: Frederick C. Fisher, Jr., Ironton, Ohio, for Appellant. Kevin Waldo, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. ________________________________________________________________ Harsha, J. {¶1} Robert Hatfield appeals the Lawrence County Common Pleas Court's, Probate-Juvenile Division, judgment ordering him to pay restitution in the delinquency adjudication. not present record does documentary not contain restitution amount. amount of $74,800, following his He argues that because the victim did proof to substantiate sufficient evidence her to loss, the support the Because, at the restitution hearing, the victim specifically explained the amount of her loss, the record contains sufficient evidence decision to restitution impose to support in the the trial court's amount of $74,800. Therefore, we disagree with appellant's argument and affirm the trial court's judgment. In {¶2} delinquency (burglary, February complaint a of 2003, alleging second-degree appellant that he felony), admitted violated R.C. R.C. 2913.02 to a 2911.12 (theft, a fourth-degree felony), and R.C. 2911.31 (safecracking, a fourth degree felony). At a hearing, appellant admitted that he took money from the victim, but disputed the amount. He requested the trial court to hold a restitution hearing. {¶3} At the restitution hearing, the victim, testified that appellant broke into her safe. June Huff, She stated that a week before the burglary, she counted $100,000 in the safe. She explained that she had saved the money for approximately twentyfive years in order to build a restaurant and that the week before the burglary, she had contacted the man who was to build the restaurant to inform him that she had the money to pay him. Huff stated that after the burglary, meaning that $92,000 had been taken. only $8,000 remained, She testified that (1) the sheriff recovered $17,000, which she received, (2) she had to pay a $1,000 deductible to her insurance company, and (3) she received $200 from her insurance company. Huff thus asserted that she lost $74,800. {¶4} that he Appellant did not testified steal any that other he took money only that $18,500, was and missing. Appellant implied that his co-defendant must have taken the remaining money that Huff alleged was stolen. {¶5} The court subsequently ordered appellant to pay $74,800 in restitution, finding that he is jointly and severally liable with the co-defendant. The court found that limiting the amount to $18,500, the amount that appellant claimed to have personally taken, to be inconsistent with Ohio law. {¶6} Appellant timely appealed the trial court s judgment and raises the following assignment of error: "The trial court committed reversible error by ordering the defendant/appellant to pay restitution to the alleged victim in the amount of $74,800.00, which was speculative and arbitrary to the alleged victim's actual loss." {¶7} In his sole assignment of error, appellant argues that the trial court erred by ordering him to pay restitution in the amount of $74,800. He complains that "no credible evidence was presented" to support that amount. documentary proof was presented of Appellant asserts that "no the total actual damages suffered by the alleged victim" and that the only evidence to support the amount is the victim's "unsubstantiated testimony." 1 We disagree with appellant. 1 In its appellate brief, appellee notes that appellant's defense during the trial court's restitution hearing appeared to be that he should not be jointly and severally liable with his co-defendant but instead, should only be held responsible for the amount of money that he claimed to steal. A {¶8} restitution trial to court the 2151.355(A)(2); may victim see, order of also, a a delinquent theft R.C. child offense. to See 2929.18(A)(1). pay R.C. However, restitution is limited to the actual loss that the offender's criminal conduct caused. See State v. Brumback (1996), 109 Ohio App.3d 65, 82, 671 N.E.2d 1064. Additionally, the amount of restitution must bear a reasonable relationship to the victim's loss. See State v. Marbury (1995), 104 Ohio App.3d 179, 181, 661 N.E.2d 271. credible Furthermore, the record must contain competent, evidence to show the amount of restitution to a State v. Warner (1990), 55 Ohio reasonable degree of certainty. St.3d 31, 69, 564 N.E.2d 18; Brumback, 109 Ohio App.3d at 83. Thus, the victim's loss must documentary evidence or testimony. be substantiated through See Marbury, 104 Ohio App.3d at 181; see, also, State v. Scott, Lucas App. No. L-01-1337, 2003-Ohio-1402, at ¶35; State v. Barnes (Mar. 8, 2002), Hancock App. No. 5-01-40. Here, appellant asserts that the victim's testimony, {¶9} standing alone, order. Appellant amount of her cannot support argues loss that through the trial the victim documentary court's must restitution establish evidence. the However, Marbury and subsequent cases have stated that the victim may However, appellant has not raised this argument on appeal, and, therefore, we will not address it. establish the loss through documentary evidence or testimony. No absolute requirement exists that the victim demonstrate the loss through documentary evidence, and we see no valid reason for imposing such a requirement. {¶10} In this case, the victim testified at the restitution hearing as to the amount of her loss. The trial court obviously found her testimony to be credible, and we will not second-guess its credibility determination. See, e.g., State v. Williams, 99 Ohio St.3d 435, 2003-Ohio-4164, 793 N.E.2d 449, at ¶36. Thus, the record contains competent, credible evidence to support the trial court's restitution order. {¶11} Appellant nevertheless contends that Marbury requires us to reverse the court's restitution order. We do not agree. In Marbury, the defendant was convicted of stealing money from the pizza shop where he worked. ordered the calculating following defendant this to amount, evidence: (1) pay the a The trial court subsequently $12,000 trial videotape in court restitution. relied showing the upon In the defendant taking $310 during a one-week period; and (2) a comparison of revenues between the six months that the defendant stole from the pizza shop and the same six-month period of the following year. The victim never testified at a restitution hearing. On appeal, the court reversed, finding that the restitution amount was speculative. {¶12} Contrary to appellant's suggestion, this case is not similar to Marbury. In Marbury, the victim did not testify at the restitution hearing. state presented speculative. restitution $74,800. In hearing The Additionally, the evidence that the regarding this and amount of the case, the specifically money that restitution victim testified explained the amount victim how at she lost is was the lost not speculative. {¶13} Therefore, we overrule appellant's sole assignment of error and affirm the trial court's judgment. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that Appellee recover of 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 Lawrence County Common Pleas Court, ProbateJuvenile Division, to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. & Kline, J.: Concur in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
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