State v. Abdullah , 2012 Ohio 5405 ( 2012 )

[Cite as State v. Abdullah, 2012-Ohio-5405.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24503
vs. : T.C. CASE NOS. 2009 CR 2538
2010 CR 84
MUHAMMAD ABDULLAH :
(Criminal appeal from
Defendant-Appellant : Common Pleas Court)
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OPINION
Rendered on the 21st day of November , 2012.
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MICHELE D. PHIPPS, Assistant Prosecuting Attorney, Atty. Reg. No. 0069829, 301
W. Third Street, 5th floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARCY A. VONDERWELL, Atty. Reg. No. 0078311, 260 North Detroit Street, Xenia,
Ohio 45385
Attorney for Defendant-Appellant
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HENDON, J. (by assignment):
{¶ 1} Defendant-appellant Muhammad Abdullah challenges on appeal the
trial court’s entry ordering him to pay restitution to Rite-Aid Pharmacy and Key Bank.
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Because these entities were victims of Abdullah’s crimes, we find that the trial court’s order
of restitution was proper and we affirm that court’s judgment.
Plea and Sentencing
{¶ 2} Abdullah entered pleas of guilty to carrying a concealed weapon and having a
weapon under disability in the case numbered 09-CR-2538. And Abdullah pled guilty to
possession of heroin and two counts of robbery in the case numbered 10-CR-84. Abdullah
committed the two counts of robbery inside a Rite-Aid Pharmacy and a Key Bank,
respectively.
{¶ 3} Regarding charges in the case numbered 09-CR-2538, the trial court imposed
a sentence of one year’s imprisonment for each offense. These sentences were made
concurrent to each other, but consecutive to the sentences imposed in the case numbered
10-CR-84. In that case, the trial court imposed a sentence of five years imprisonment for
each count of robbery and six months imprisonment for possession of heroin. The robbery
sentences were made consecutive to each other but concurrent to the sentence imposed for
possession of heroin. Abdullah received an aggregate sentence of 11 years imprisonment for
all offenses. The trial court additionally suspended Abdullah’s driver’s license for a term of
six months. And it ordered Abdullah to pay restitution to Rite-Aid Pharmacy in the amount
of $60 and to Key Bank in the amount of $429.
Restitution was Properly Ordered
{¶ 4} In his sole assignment of error, Abdullah argues that the trial court’s order of
restitution was improper because Rite-Aid and Key Bank were third parties, rather than
victims of his crimes. Generally, a trial court’s order of restitution is reviewed for an abuse
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of discretion. State v. Johnson, 2d Dist. Montgomery No. 24288, 2012-Ohio-1230, ¶ 11.
But a de novo standard of review is utilized when determining to whom restitution may
appropriately be awarded. Id.{¶ 5} Pursuant to R.C. 2929.18(A)(1), a trial court may order restitution “to the
victim of the offender’s crime * * * in an amount based on the victim’s economic loss.” The
statute further states that restitution may be made “to the victim in open court, to the adult
probation department that serves the county on behalf of the victim, to the clerk of courts, or
to another agency designated by the court.” Id. Abdullah contends that the trial court’s
award of restitution to both Rite-Aid and Key Bank was improper because these entities did
not qualify as one of the possible payees to whom restitution may be ordered under R.C.
2929.18(A)(1). In support, he relies on the language in his indictment listing the victims of
each robbery as, respectively, “Tuhran Taylor” and “Angela Davis, an employee of Key
Bank.”
{¶ 6} R.C. 2930.01(H)(1) defines a victim as “[a] person who is identified as the
victim of a crime or specified delinquent act in a police report or in a complaint, indictment,
or information that charges the commission of a crime.” We hold that both Rite-Aid and Key
Bank were victims of Abdullah’s crimes.
{¶ 7} First, considering the indictments in this case, we find that Abdullah’s
indictment for the robbery that took place at Key Bank sufficiently labeled the bank as a
victim of the robbery. And Abdullah’s plea colloquy further established that both Rite-Aid
and Key Bank were victims of his crimes. During the colloquy, the prosecutor stated that the
victims of Abdullah’s crimes were Angela Davis and Key Bank, and Rite-Aid Pharmacy and
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its employee Tuhran Taylor. Abdullah did not object to the description of these entities as
victims of his crimes. Further, it is clear from the presentence investigation report that the
money Abdullah took during each robbery belonged to Rite-Aid and Key Bank, rather than the
individual employees of these entities.
{¶ 8} This case is distinguishable from State v. Kiser, 2d Dist. Montgomery No.
24419, 2011-Ohio-5551, in which this court sustained an argument identical to the one raised
in the instant case. In Kiser, the defendant had taken bank cards from two acquaintances
without permission and had made purchases with those bank cards. One victim of Kiser’s
crimes was reimbursed by PNC Bank for the amounts that had been charged to her stolen
card. PNC Bank then sought and was awarded restitution from Kiser. Id. at ¶ 3-5. Kiser
challenged the court’s order of restitution on the grounds that PNC Bank was a third party and
not a victim of the crime. This court reversed the trial court’s award of restitution to PNC
Bank and held that the victims in that case were the individuals to whom the stolen bank cards
belonged. We held that PNC Bank had not been named as a victim in the indictment and was
not the object of Kiser’s offenses. Id. at ¶ 16.
{¶ 9} The facts of this case are easily distinguishable from those in Kiser, and
compel the opposite result. Here, Rite-Aid and Key Bank were the objects of Abdullah’s
offenses. The money taken during the robberies belonged to these entities, and the entities
likewise bore the economic loss. The trial court properly awarded restitution to Rite-Aid and
Key Bank. Abdullah’s sole assignment of error is overruled, and the judgment of the trial
court is accordingly affirmed.
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FAIN, J., and FROELICH, J., concur.
(Hon. Sylvia Sieve Hendon, First District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio)
Copies mailed to:
Michele D. Phipps
Marcy A. Vonderwell
Hon. Dennis J. Langer