[Cite as State v. Tolle,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA964 : vs. : : DECISION AND JUDGMENT CHRISTOPHER TOLLE, : ENTRY : Defendant-Appellant. : Released: 12/11/13 _______________________________________________________ APPEARANCES:

Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant State Public Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecuting Attorney, and Michele L. Harris, Assistant Adams County Prosecutor, West Union, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} Christopher Tolle appeals his convictions and sentences for

breaking and entering, a fifth degree felony in violation of R.C. 2911.13(A),

and theft, a first degree misdemeanor in violation of R.C. 2913.02(A)(1)

imposed by the Adams County Court of Common Pleas after he was found

guilty by a jury. On appeal, Appellant contends that 1) his convictions for

breaking and entering and theft were supported by insufficient evidence in

violation of his right to due process; 2) his convictions for breaking and Adams App. No. 13CA964 2

entering and theft were against the manifest weight of the evidence and in

violation of his right to due process; and 3) the trial court erred when it

ordered restitution in the amount of $630.00 when the only economic loss

contained in the record was estimated to be $230.00. Having determined

that Appellant’s convictions were supported by sufficient evidence and were

not against the manifest weight of the evidence, Appellant’s first and second

assignments of error are overruled. Further, having found no plain error in

the trial court’s award of restitution, Appellant’s third assignment of error is

overruled. Accordingly, Appellant’s convictions and sentences are affirmed.

FACTS

{¶2} At 9:00 a.m. on February 28, 2012, Jeanne Wilson arrived at

Crossroads Dairy Bar in Seaman, Ohio, to find the back door open. Jeanne

Wilson is the daughter of Melissa Hupp, owner of Crossroads Dairy Bar.

Upon entering, Wilson noted there were footlongs thrown in the pizza oven,

ice cream that had been run out of the machine, and there were “pop and

cups sitting around.” Wilson further noted potato chips, ice cream, a bucket

of pennies and change from the cash register were missing. Also missing

were baby shower gifts being stored there. Wilson later noted that the

backdoor’s screen window had been removed and was on the ground near Adams App. No. 13CA964 3

the store. Deputy Mark Brewer responded to the call about the break-in.

Upon arriving he took photographs and made a report.

{¶3} Subsequently, on October 18, 2012, Christopher Tolle was

indicted on one count of breaking and entering, a fifth degree felony in

violation of R.C. 2911.13(A), and one count of theft, a first degree

misdemeanor in violation of R.C. 2913.02(A)(1), both stemming from the

incident at the Crossroads Dairy Bar. The matter was tried to a jury on

March 25, 2013. The State presented four witnesses, which included

Melissa Hupp, Jeanne Wilson, Deputy Mark Brewer, and Christopher

Abbott.

{¶4} Jeanne Wilson testified to arriving at the dairy bar on the day in

question to find the back door open and items missing and in disarray.

Melissa Hupp testified regarding being the owner of the business. She

testified that the door had been locked and that no one had been given

permission to enter the building or remove property from the building. She

also testified to the value of certain items that were taken, which amounted

to approximately $230.00. Deputy Brewer testified that he responded to the

call regarding the break in that occurred at the dairy bar and that when he

arrived he noted that “[s]omebody had jimmied with the screen on the back

door and reached through and unlocked it and went inside.” Adams App. No. 13CA964 4

{¶5} He further testified to what he found inside, which indicated

evidence that someone had ransacked the bathroom, as well as eaten some

food and ice cream. He stated that he took photographs of his findings. At

that time eight photographs were entered into evidence, which consisted of

the state of the dairy bar after the break-in, as well as a photograph of the

bathroom area where there appeared to be some blue latex gloves laying on

the floor. Lastly, Deputy Brewer testified that he was familiar with

Appellant and identified him by name as being present in the courtroom.

{¶6} Finally, Christopher Abbott testified on behalf of the State.

Abbott testified that he was with Appellant on the night of the dairy bar

break-in, and that he was the lookout while Appellant entered the dairy bar

through the back. He testified that he also entered the dairy bar to tell

Appellant to hurry up. He further testified that their purpose in entering the

dairy bar was to take stuff, and that they took pop, ice cream and chips. He

testified that he saw Appellant take some gift bags and that when the two got

back into Appellant’s car, Appellant had approximately twenty dollars worth

of loose change. Abbott also testified that Appellant wore blue latex gloves

while he was in the dairy bar, which he had seen Appellant use previously

while tattooing. Abbott identified the blue latex gloves in the photos as the

ones Appellant was wearing. Abbott further testified that he was currently Adams App. No. 13CA964 5

on probation as a result of being convicted of breaking and entering into the

Crossroads Dairy Bar. He stated that he was not promised any “deals” for

testifying.

{¶7} At the close of the State’s evidence, Appellant moved for

acquittal pursuant to Crim.R. 29, which was denied by the trial court.

Appellant then rested his case, without presenting any evidence or witnesses.

The jury ultimately found Appellant guilty of both charges, breaking and

entering and theft. As a result, the trial court sentenced Appellant to an

eleven month term of imprisonment on the felony charge and a six month

term of local incarceration on the misdemeanor charge, to be served

concurrently. The trial court further ordered Appellant to pay $630.00 in

restitution, as well as the costs of prosecution.1 It is from these convictions

and sentences that Appellant now brings his timely appeal, assigning the

following errors for our review.

ASSIGNMENTS OF ERROR

“I. CHRISTOPHER TOLLE’S CONVICTIONS FOR BREAKING AND ENTERING AND THEFT WERE SUPPORTED BY INSUFFICIENT EVIDENCE IN VIOLATION OF TOLLE’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. 1 The restitution order specified as follows: “The defendant is further ordered to pay restitution to the victim, Michelle Hupp, in the amount of $630.00, jointly and severally with convicted co-defendant, Christopher Abbott. Adams App. No. 13CA964 6

II. CHRISTOPHER TOLLE’S CONVICTIONS FOR BREAKING AND ENTERING AND THEFT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF TOLLE’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITIED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION

III. THE TRIAL COURT ERRED WHEN IT ORDERED RESTITUTION IN THE AMOUNT OF $630 WHEN THE ONLY ECOMONIC LOSS CONTAINED IN THE RECORD WAS ESTIMATED TO BE $230.”

ASSIGNMENT OF ERROR I

{¶8} In his first assignment of error, Appellant contends that his

convictions for breaking and entering and theft were supported by

insufficient evidence and therefore violated his right to due process. An

appellate court's function when reviewing the sufficiency of the evidence to

support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average

mind of the defendant's guilt beyond a reasonable doubt. State v. Dennison,

4th Dist. Washington No. 06CA48,

. See, e .g. State v.

Jenks,

,

(1991), paragraph two of the

syllabus (superseded on other grounds by constitutional amendment). See

State v. Smith,

,

(1997). The relevant

inquiry is whether, after viewing the evidence in a light most favorable to Adams App. No. 13CA964 7

the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. Id.; citing Jackson

v. Virginia,

,

(1979).

{¶9} A sufficiency of the evidence challenge tests whether the state's

case is legally adequate to satisfy the requirement that it contain prima facie

evidence of all elements of the charged offense. See State v. Martin,

,

(1st Dist. 1983), and Carter v. Estell (CA

5, 1982),

. It is a test of legal adequacy, rather than a test of

rational persuasiveness.

.

{¶10} The sufficiency of the evidence test “raises a question of law

and does not allow us to weigh the evidence,” State v.

.

Instead, the sufficiency of the evidence test “gives full play to the

responsibility of the trier of fact [to fairly] resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.” State v. Thomas,

,

(1982); State v. DeHass,

,

(1967),

paragraph one of the syllabus.

{¶11} Here, Appellant was charged with breaking and entering in

violation of R.C. 2911.13(A) and theft in violation of R.C. 2913.02(A)(1).

R.C. 2911.13(A) provides as follows: Adams App. No. 13CA964 8

“(A) No person by force, stealth, or deception, shall trespass in

an unoccupied structure, with purpose to commit therein any

theft offense, as defined in section 2913.01 of the Revised

Code, or any felony.”

R.C. 2913.02(A)(1) provides as follows:

“(A) No person, with purpose to deprive the owner of property

or services, shall knowingly obtain or exert control over either

the property or services in any of the following ways:

(1) Without the consent of the owner or person authorized to

give consent[.]”

{¶12} Here, Appellant contends that his convictions were supported

by insufficient evidence. In support of his contention, he argues that the

only evidence connecting him to the break-in was the testimony of

Christopher Abbott, who was already found guilty of breaking and entering

into the dairy bar, and who was currently on probation as a result. He also

argues that despite Abbott’s testimony, the State failed to introduce evidence

how Appellant entered the dairy bar or his purpose in entering. Appellant

further points out that the police did not recover any of the stolen items from

him. Adams App. No. 13CA964 9

{¶13} Commonly, there is no direct evidence of a defendant's state of

mind and as such, the State must rely on circumstantial evidence to satisfy

this element of its case. In re Horton, 4th Dist. No. 04CA794, 2005-Ohio-

3502, ¶ 23. A defendant's state of mind may be inferred from the totality of

the surrounding circumstances.

(internal citations omitted).

Circumstantial and direct evidence possess the same probative and

evidentiary value. Id.; citing State v. Jenks,

,

(1991). “When viewing circumstantial evidence, ‘the weight

accorded an inference is fact-dependent and can be disregarded as

speculative only if reasonable minds can come to the conclusion that the

inference is not supported by the evidence.’ ”

quoting Wesley

v. The McAlpin Co., 1st Dist. No. C9305286, need WL cite (May 25, 1994);

citing Donaldson v. Northern Trading Co.,

,

(1992).

{¶14} While Appellant argues there is insufficient evidence to prove

how he entered the dairy bar and what his purpose was in entering, he

disregards Hupp’s testimony that the door was locked and that no one had

been given permission to enter the dairy bar, as well as Deputy Brewer’s

testimony that upon arrival it appeared the screen on the backdoor had been

“jimmied.” He also disregards Abbott’s testimony that the purpose in going Adams App. No. 13CA964 10

there was “to take stuff” and that Abbott served as the look out while

Appellant entered the dairy bar. We believe this evidence passes the

sufficiency test. A reasonable trier of fact could infer that Appellant

trespassed into the dairy bar, an unoccupied structure, by force, with purpose

to commit a theft offense therein, and once inside did, without the consent of

the owner, exert control over her property. Thus, after viewing the evidence

in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crimes proven beyond a reasonable

doubt.

{¶15} With respect to Appellant’s claim that Abbott’s testimony was

not credible, we are mindful the weight of evidence and credibility of

witnesses are issues to be decided by the trier of fact. State v. Dye,

,

(1998); State v. Frazier,

,

(1995); State v. Williams,

,

652 N.E .2d 721 (1995); State v. Vance, 4th Dist. Athens No. 03CA27,

, ¶ 9. We also acknowledge that the trier of fact is in a much

better position than an appellate court to view witnesses and observe their

demeanor, gestures, and voice inflections, and to use those observations to

weigh the credibility of the testimony. See Myers v. Garson,

,

(1993); Seasons Coal. Co. v. Cleveland, 10 Ohio Adams App. No. 13CA964 11

St.3d 77, 80,

(1984); Vance, ¶ 9. Further, the trier of fact

is free to believe all, part or none of the testimony of each witness who

appears before it. See State v. Long,

,

(4th Dist. 1998); State v. Nichols,

,

(4th Dist . 1993); State v. Harriston,

,

(8th Dist. 1989); Vance, ¶ 9.

{¶16} Thus, despite Appellant’s argument that Abbott was not a

credible witness, issues of Abbott’s credibility and weight to be afforded to

his testimony were within the province of the jury. Although the jury was

free to reject Abbott’s testimony, it did not. For the foregoing reasons, we

find there was sufficient evidence that Appellant committed the crimes of

breaking and entering and theft. Accordingly, Appellant’s first assignment

of error is overruled.

ASSIGNMENT OF ERROR II

{¶17} In his second assignment of error, Appellant contends that his

convictions for breaking and entering and theft were against the manifest

weight of the evidence. In determining whether a criminal conviction is

against the manifest weight of the evidence, an appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of witnesses, and determine whether, in resolving conflicts in Adams App. No. 13CA964 12

the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed.

; State v. Thompkins,

,

(1997),

citing State v.

.

{¶18} A reviewing court will not reverse a conviction where there is

substantial evidence upon which the court could reasonably conclude that all

the elements of an offense have been proven beyond a reasonable doubt.

State v. Johnson,

, N.E.2d 266 (1991); State v.

Eskridge,

,

(1988), paragraph two of the

syllabus. We realize that the evidence may pass a sufficiency analysis and

yet fail under a manifest weight of the evidence test.

. See, State v. Brooker,

,

, 2007-

Ohio-588, ¶ 16; citing

{¶19} Appellant raises no new arguments in support of this

assignment of error, but instead relies on the same argument raised in

support of his sufficiency argument above to now argue that his conviction

was against the manifest weight of the evidence. In considering this

assignment of error, we consider the same evidence as we considered in

determining that Appellant’s convictions were supported by sufficient

evidence. As set forth above, although evidence may pass a sufficiency Adams App. No. 13CA964 13

analysis but fail under a manifest weight of the evidence test, we do not find

that situation at play here.

{¶20} Once again, Appellant’s primary dispute seems to be with the

weight the jury afforded the testimony of Christopher Abbott. However,

“[t]he decision whether, and to what extent, to credit the testimony of

particular witnesses is within the peculiar competence of the factfinder, who

has seen and heard the witness.” State v. Lunsford, 12th Dist. Brown No.

CA2010-10-021,

; citing State v. Rhines, 2nd Dist.

Montgomery No. 23486,

, ¶ 39. Furthermore, we note that

there was no conflicting evidence for the jury to consider as Appellant chose

not to testify and presented no witnesses or other evidence in his defense.

Here, the jury opted to believe the State’s version of the events, which

included the testimony of Abbott. We cannot say that the jury lost its way or

created such a miscarriage of justice that Appellant’s conviction must be

reversed. Accordingly, Appellant’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶21} In his third assignment of error, Appellant contends that the

trial court erred in ordering $630.00 in restitution, claiming that the record

only contained economic loss of $230.00. Adams App. No. 13CA964 14

{¶22} In State v. Kalish,

,

,

, the Supreme Court of Ohio announced the standard for

appellate review of felony sentences which involves a two-step analysis.

First, we “must examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether

the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If

the sentence is not clearly and convincingly contrary to law, we review the

trial court's sentence for an abuse of discretion. Id. The term “abuse of

discretion” implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. State v. Adams,

,

(1980).

{¶23} R.C. 2929.18 governs the imposition of financial sanctions and

provides in section (A)(1) as follows:

“(A) Except as otherwise provided in this division and in

addition to imposing court costs pursuant to section 2947.23 of

the Revised Code, the court imposing a sentence upon an

offender for a felony may sentence the offender to any financial

sanction or combination of financial sanctions authorized under

this section or, in the circumstances specified in section

2929.32 of the Revised Code, may impose upon the offender a Adams App. No. 13CA964 15

fine in accordance with that section. Financial sanctions that

may be imposed pursuant to this section include, but are not

limited to, the following:

(1) Restitution by the offender to the victim of the offender's

crime or any survivor of the victim, in an amount based on the

victim's economic loss. If the court imposes restitution, the

court shall order that the restitution 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. If the court imposes

restitution, at sentencing, the court shall determine the amount

of restitution to be made by the offender. 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. If the court decides to impose Adams App. No. 13CA964 16

restitution, the court shall hold a hearing on restitution if the

offender, victim, or survivor disputes the amount. All restitution

payments shall be credited against any recovery of economic

loss in a civil action brought by the victim or any survivor of

the victim against the offender.

If the court imposes restitution, the court may order that the

offender pay a surcharge of not more than five per cent of the

amount of the restitution otherwise ordered to the entity

responsible for collecting and processing restitution payments.

The victim or survivor may request that the prosecutor in the

case file a motion, or the offender may file a motion, for

modification of the payment terms of any restitution ordered. If

the court grants the motion, it may modify the payment terms as

it determines appropriate.”

{¶24} A review of the record indicates that Appellant did not object

to the amount of the restitution ordered below. A defendant who fails to

object to the amount of restitution waives all but plain error. State v.

Johnson, 4th Dist. Washington No. 03CA11,

.

“[T]here are ‘three limitations on a reviewing court's decision to correct [a

waived error]. First, there must be an error, i.e., a deviation from a legal rule. Adams App. No. 13CA964 17

* * * Second, the error must be plain. To be ‘plain’ within the meaning of

Crim.R. 52(B), an error must be an ‘obvious' defect in the trial proceedings.

* * * Third, the error must have affected ‘substantial rights.’ [The Supreme

Court of Ohio has] interpreted this aspect of the rule to mean that the trial

court's error must have affected the outcome of the trial.” State v. Lynn,

,

,

, ¶ 13; quoting State v.

Barnes,

,

,

. Regarding

the third limitation, “reversal is warranted only when the outcome of the trial

clearly would have been different without the error.” State v. Beebe, 4th Dist.

Hocking No. 10CA2,

; citing State v. Long,

,

, at paragraph two of the syllabus (1978).

{¶25} Yet “[e]ven when all three prongs are satisfied, a court still has

discretion whether or not to correct the error.” Lynn at ¶ 14; citing State v.

Noling,

,

,

. Courts

are “to notice plain error ‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’ ” Id. at

¶ 14; quoting Barnes at 27; quoting Long at paragraph three of the syllabus.

Here, Appellant claims that the record only supports a restitution

award of $230.00 rather than $630.00. The record reveals that, in addition to

evidence presented a trial, the trial court relied upon information permitted Adams App. No. 13CA964 18

by R.C. 2929.18(A)(1), specifically, a pre-sentence investigation report

indicating the amount of restitution due. Although the testimony presented

at trial did indicate economic loss of approximately $230.00,2 the PSI relied

upon by the trial court contained more detailed information. Specifically,

the PSI stated as follows with respect to restitution:

“According to records provided by the Adams County

Prosecutors Office additional items were stolen that had not

been reported on the original police report. Employees at the

Dairy Bar were preparing a baby shower for one of the workers

and those gifts in the amount of $200.00 were stolen and not

claimed as a loss on insurance. Insurance covered all the loss

and the owner was required to pay a $250.00 deductible out of

pocket. Since the claim was filed their insurance premium has

increased $45 per month and they are requesting 4 months

reimbursement. Total restitution owed is $630.00 payable to

Melissa Hupp.”

{¶26} “[T]he amount of the restitution must be supported by

competent, credible evidence in the record from which the court can discern

the amount of the restitution to a reasonable degree of certainty.” Johnson at

2 This $230.00 was comprised of the estimated value of the change, ice cream, chips and gifts that were taken from the Dairy Bar. Adams App. No. 13CA964 19

¶ 10; citing State v. Sommer,

,

,

, ¶ 12 and State v. Gears,

,

(1999). We conclude that here, the record contains competent,

credible evidence to support the restitution award and as such, we find no

error, let alone plain error, in the trial court’s restitution order. Accordingly,

Appellant’s third and final assignment of error is overruled.

{¶27} Having found no merit to any of the assignments of error

raised by Appellant, Appellant’s convictions and sentences are affirmed.

JUDGMENT AFFIRMED. Adams App. No. 13CA964 20

JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding 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.