State v. Chaney , 106 N.E.3d 79 ( 2018 )

[Cite as State v. Chaney, 2018-Ohio-552.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2017-07-118
Plaintiff-Appellee, :
OPINION
: 2/12/2018
- vs -
:
DOUGLAS C. CHANEY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 16CR32454
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, 520 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
Lisa M. Wells, 401 Madison Avenue, Covington, Kentucky 41011, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Douglas C. Chaney, appeals from the decision of the
Warren County Court of Common Pleas ordering him to pay restitution in the amount of
$83,783.96 to Procter & Gamble after he pled guilty to one count of grand theft.1 For the
reasons outlined below, we affirm.
1. Pursuant to Loc.R. 6(A), the court hereby sua sponte removes this case from the accelerated calendar for
purposes of issuing this opinion.
Warren CA2017-07-118
{¶ 2} On January 3, 2017, the Warren County Grand Jury returned an indictment
charging Chaney with one count of grand theft in violation of R.C. 2913.02(A)(2), a fourth-
degree felony, when, pursuant to R.C. 2913.02(B)(2), "the value of the property or services
stolen is seven thousand five hundred dollars or more and is less than one hundred fifty
thousand dollars * * *." The charge arose after it was discovered Chaney, a subcontractor
employed at the Procter & Gamble headquarters located in Mason, Ohio, had stolen
hundreds of items from Procter & Gamble between April 24, 2012 to March 4, 2016 that he
then sold to buyers over the internet. Once an item was sold, Chaney would then package
and ship the stolen item to the buyer using Procter & Gamble's packaging and shipment
services. The items Chaney stole from Procter & Gamble included, but were not limited to,
interface cards, ink cartridges, ink sets, adapters, and other business equipment Chaney
had access to as part of his employment at the Procter & Gamble headquarters.
{¶ 3} On January 20, 2017, Chaney was arraigned and subsequently released on
bond after entering a plea of not guilty. Approximately two months later, on March 9, 2017,
Chaney appeared before the trial court and entered a guilty plea to the one count of grand
theft as charged. After conducting the necessary Crim.R. 11 plea colloquy, the trial court
accepted Chaney's guilty plea and scheduled the matter for a sentencing hearing. The trial
court then stated, as it relates to the issue of restitution and the need for a restitution
hearing, the following:
We had a discussion about what the restitution should be in
the case. There appears to be a dispute about what the
restitution should be, which means we may have to have a
hearing. If we have two sets of numbers, Mr. Chaney that the
sides present to me, normally that's how it works and I just
either pick between the numbers or pick my own number
regarding restitution, but it may be in this case, that we have
to have a hearing on the issue of restitution, which does not
really affect your sentence in terms of what kind of community
control sanctions that you receive but the law in the State of
Ohio says that I have to make restitution part of the sentence
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Warren CA2017-07-118
so we will continue the sentencing if necessary in progress, if
we have to have a longer restitution hearing sometime in
excess of the time allotted * * *.
{¶ 4} On April 19, 2017, after accepting sentencing memorandum from both parties,
the trial court held a restitution hearing to determine the proper amount of restitution Chaney
owed to Procter & Gamble, if any. At this hearing, the state submitted a binder to the trial
court labeled Exhibit 1 that contained receipts and account records dating April 24, 2012
through March 4, 2016 that showed Chaney had netted a grand total of $83,783.96 by
selling the hundreds of items he had stolen from Procter & Gamble to buyers over the
internet. Chaney stipulated to the authenticity of the receipts and account records
contained within Exhibit 1, raised no objection to the trial court's decision to admit the
receipts and account records contained within Exhibit 1 as evidence, and otherwise failed
to present any opposing evidence contrary to the receipt and account records contained
within Exhibit 1 on his own behalf. Besides raising a legal challenge regarding the amount
of restitution he owed, Chaney rested and the trial court took the matter under advisement.
{¶ 5} The following day, the trial court issued a decision finding the proper amount
of restitution Chaney owed to Procter & Gamble was the state's requested amount of
$83,783.96 finding that sum represented the economic loss Procter & Gamble incurred as
a result of Chaney's actions. Upon entering its decision on restitution, the trial court then
sentenced Chaney to serve five years of community control, the conditions of which
required Chaney to serve 90 days in jail, pay the restitution order to Procter & Gamble in
full, and successfully complete a corrective thinking class. The trial court also ordered
Chaney to pay court costs.
{¶ 6} Chaney now appeals from the trial court's decision ordering him to pay
$83,783.96 in restitution to Procter & Gamble, raising the following single assignment of
error for review.
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Warren CA2017-07-118
{¶ 7} THE TRIAL COURT ERRED BY ORDERING RESTITUTION IN THE
AMOUNT OF $83,783.96.
{¶ 8} In his single assignment of error, Chaney argues the trial court's decision was
improper in that it was not supported by sufficient evidence. Specifically, Chaney argues
that "without an actual accounting for the replacement cost of the stolen property with new
property of like kind and quality, the trial court did not possess the requisite information it
needed to order restitution." We disagree.
{¶ 9} At the outset, we note that Chaney challenges the trial court's decision finding
the parties improperly directed it to apply R.C. 2913.61(D) to determine the specific amount
of restitution he owed to Procter & Gamble. Pursuant to that statute:
The following criteria shall be used in determining the value of
property or services involved in a theft offense:
(1) The value of an heirloom, memento, collector’s item,
antique, museum piece, manuscript, document, record, or
other thing that has intrinsic worth to its owner and that either
is irreplaceable or is replaceable only on the expenditure of
substantial time, effort, or money, is the amount that would
compensate the owner for its loss.
(2) The value of personal effects and household goods, and
of materials, supplies, equipment, and fixtures used in the
profession, business, trade, occupation, or avocation of its
owner, which property is not covered under division (D)(1) of
this section and which retains substantial utility for its purpose
regardless of its age or condition, is the cost of replacing the
property with new property of like kind and quality.
(3) The value of any real or personal property that is not
covered under division (D)(1) or (2) of this section, and the
value of services, is the fair market value of the property or
services. As used in this section, "fair market value" is the
money consideration that a buyer would give and a seller
would accept for property or services, assuming that the buyer
is willing to buy and the seller is willing to sell, that both are
fully informed as to all facts material to the transaction, and
that neither is under any compulsion to act.
{¶ 10} According to Chaney, the trial court was required to conduct an analysis
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pursuant to R.C. 2913.61(D) to properly determine the amount of restitution he owed to
Procter & Gamble, if any. That statute, however, generally applies to questions involving
the degree of the theft offense the offender can be convicted of based on the value of the
property or services involved in the crime. In turn, just as the trial court found, while the trial
court must look to R.C. 2913.61(D) to evaluate the overall economic loss involved in
determining the maximum amount of restitution that can be awarded, which, in this case,
was $150,000, the trial court "is not limited to the strict criteria contained in that statute in
calculating the restitution figure."2 See State v. Miller, 12th Dist. Butler No. CA2007-11-
295, 2008 Ohio 5661, ¶ 9. Therefore, contrary to Chaney's claim otherwise, and as aptly
noted by the state, "[t]he court did not refuse to consider R.C. 2913.61(D) in determining
restitution. The court merely stated its analysis was broader than R.C. 2913.61(D)."
{¶ 11} Although the trial court must look to R.C. 2913.61(D) in determining the
maximum amount of restitution that can be awarded, it is R.C. 2929.18(A)(1) that "grants a
trial court the authority to order restitution by an offender to the victim, or any survivor of the
victim, in an amount commensurate with the victim's economic loss." State v. Geldrich,
12th Dist. Warren No. CA2015-11-103, 2016-Ohio-3400, ¶ 7. As defined by R.C.
2929.01(L), the term "economic loss" means "any economic detriment suffered by a victim
as a direct and proximate result of the commission of an offense * * *," including any property
loss. "Economic loss," however, does not include "non-economic loss or any punitive or
exemplary damages." R.C. 2929.01(L).
{¶ 12} Due process "requires that the amount of restitution ordered bear a
reasonable relationship to the actual loss suffered by the victim." State v. Stamper, 12th
2. As noted above, Chaney was charged with grand theft in violation of R.C. 2913.02(A)(2), a fourth-degree
felony, when, pursuant to R.C. 2913.02(B)(2), "the value of the property or services stolen is seven thousand
five hundred dollars or more and is less than one hundred fifty thousand dollars * * *."
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Dist. Butler No. CA2009-04-115, 2010-Ohio-1939, ¶ 17. In turn, the amount of restitution
that may be awarded to the victim is limited to the "actual loss or damage caused by the
offender and must be established to a reasonable degree of certainty." State v. Collins,
12th Dist. Warren No. CA2014-11-135, 2015-Ohio-3710, ¶ 32, citing State v. Dyer, 12th
Dist. Butler No. CA2005-05-109, 2006-Ohio-3537, ¶ 30. In determining such an award,
R.C. 2929.18(A)(1) permits the trial court to base its decision on an amount recommended
by the victim, the offender, a presentence investigation report, estimates or receipts
indicating the cost of repairing or replacing property, or any other information, so long as
the amount does not exceed the actual economic loss suffered by the victim.
{¶ 13} After a thorough review of the record, we find no error in the trial court's
decision ordering Chaney to pay $83,783.96 in restitution to Procter & Gamble. Although
Chaney claims otherwise, the record firmly supports the trial court's decision based on the
receipts and account records contained within Exhibit 1 – an exhibit which Chaney
stipulated to authenticity and did not otherwise object to its admission at the trial court's
restitution hearing – showing Chaney netted that exact amount by selling hundreds of items
he had stolen from Procter & Gamble to buyers over the internet between April 24, 2012 to
March 4, 2016. This is true despite the fact that Procter & Gamble did not submit a victim
impact statement to the trial court or conduct an actual accounting of the replacement cost
of the hundreds of items Chaney sole. It is well-established that a victim's actual economic
loss can be established through documentary evidence or testimony, including that of the
victim. Geldrich, 2016-Ohio-3400 at ¶ 10.
{¶ 14} In so holding, we once again note that R.C. 2929.18(A)(1) permits the trial
court to base its decision on the amount of restitution to award on an amount recommended
by the victim, the offender, as well as a presentence investigation report, estimates or
receipts indicating the cost of repairing or replacing property, or any other information, so
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long as the amount does not exceed the actual economic loss suffered by the victim. That
is exactly what occurred here. Therefore, because we find no error in the trial court's
decision ordering Chaney to pay $83,783.96 in restitution to Procter & Gamble – an amount
that is surely less than the true economic loss suffered by Procter & Gamble when
considering Chaney also used Procter & Gamble's packaging and shipment services to
package and ship the hundreds of stolen items he stole from Procter & Gamble to his buyers
– Chaney's single assignment of error is without merit and overruled.
{¶ 15} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.
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