[Cite as State v. Philbeck,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 26466; 26467 : v. : T.C. NO. 14CR2147; 14CR1660/1 : BRAD PHILBECK : (Criminal appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the ___21st___ day of ____August___, 2015.

...........

DYLAN SMEARCHECK, Atty, Reg. No. 0085249, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 2541 Shiloh Springs Road, Dayton, Ohio 45426 Attorney for Defendant-Appellant

.............

DONOVAN, J.

{¶ 1} Defendant-appellant Brad Philbeck appeals his conviction and sentence for

the following offenses from two separate cases that were consolidated for the purposes of

the instant appeal1, to wit: 1) one count of disrupting public services, in violation of R.C.

1 Montgomery County Case Nos. 2014-CR-1660/1 and 2014-CR-2147. We also note -2- 2909.04(A)(1), a felony of the fourth degree; 2) one count of engaging in a pattern of

corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of the second degree; 3)

eighteen counts of breaking and entering, in violation of R.C. 2911.13(A), all felonies of

the fifth degree; and 4) one count of receiving stolen property (RSP), in violation of R.C.

2913.51(A), a misdemeanor of the first degree. Philbeck filed a timely notice of appeal in

both cases with this Court on November 12, 2014.

Case No. 2014 CR 1660/1 / CA 26467

{¶ 2} On June 18, 2014, Philbeck was indicted for one count of engaging in a

pattern of corrupt activity, nineteen counts of breaking and entering, ten counts of RSP (at

least $1,000.00, but less than $7,500.00), one count of RSP (motor vehicle), and eight

counts of misdemeanor RSP. At his arraignment on July 18, 2014, Philbeck stood mute,

and the trial court entered a plea of not guilty on his behalf.

{¶ 3} On August 6, 2014, Philbeck filed a motion to suppress any incriminating

statements he made to police after he was arrested. A hearing was held on said motion

on September 24, 2014. On the same day, the trial court issued a decision overruling

Philbeck’s motion to suppress.

{¶ 4} On September 25, 2014, Philbeck pled guilty to one count of engaging in a

pattern of corrupt activity, eighteen counts of breaking and entering, and one count of

misdemeanor receiving stolen property. All of the remaining counts were dismissed by

the State. A restitution hearing was held on October 31, 2014. On November 5, 2014,

the trial court sentenced Philbeck to an aggregate sentence of eight years in prison.

Although Philbeck pled guilty to Count 33, breaking and entering, the trial court

that Philbeck’s co-defendant in Case No. 2014 CR 1660/1 was Wilson, who was one of the two victims in Case No. 2014 CR 2147. -3- overlooked that count at the sentencing hearing and in the judgment entry of conviction.

The trial court also ordered Philbeck to pay restitution to eighteen separate victims in

varying amounts based on their claimed losses. Philbeck’s restitution order totaled

$19,835.25.

Case No. 2014 CR 2147 / CA 26466

{¶ 5} The incident which forms the basis for the appeal in this case occurred in the

early morning hours of May 25, 2014, when Philbeck went to the residence of Brittany

Wilson which is located at 2511 Oneida Avenue in Dayton, Ohio. Philbeck had

previously lived at the house with Wilson, but he moved out a short time earlier. At the

time of the incident, Wilson was living with her friend, Tashi Oliver.

{¶ 6} Wilson and Oliver had returned to 2511 Oneida Avenue after a night out

drinking in the Oregon District in downtown Dayton to discover that Philbeck was inside

the residence. Oliver and Philbeck immediately got into a verbal altercation. Oliver

attempted to hit Philbeck with a lamp. Philbeck, however, sprayed Oliver in the face with

pepper spray. Oliver testified that although she was unable to see clearly, she felt her

way to the telephone and attempted to call 911. Philbeck snatched the telephone away

from Oliver and tore the phone wires out of the wall. Oliver then left the residence,

crawled across the street to a neighbor’s home, and asked the neighbor to call the police.

Shortly thereafter, Montgomery County Sheriff’s Deputy Brian Crowe responded to

Wilson’s address based on a 911 hang-up that originated from Oliver’s earlier attempt to

call the police.

{¶ 7} On July 29, 2014, Philbeck was indicted for one count of disrupting public

services and one count of misdemeanor assault. On August 5, 2014, the State filed a “B” -4- indictment additionally charging Philbeck with aggravated burglary, a felony of the first

degree.

{¶ 8} Philbeck waived his right to a jury trial, and on October 31, 2014, a bench trial

was held. At the close of evidence, Philbeck made a Crim.R. 29 motion for acquittal with

respect to the misdemeanor assault charge, which was subsequently granted by the trial

court. Thereafter, the trial court found Philbeck guilty of disrupting public services, but

not guilty of aggravated burglary. The trial court sentenced Philbeck to twelve months

imprisonment for disrupting public services, and ordered that the sentence be served

concurrent to his sentence in Case No. 2014 CR 1660/1.

{¶ 9} It is from this judgment that Philbeck now appeals.

{¶ 10} Philbeck’s first assignment of error is as follows:

{¶ 11} “THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY

OF DISRUPTING PUBLIC SERVICES, WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”

{¶ 12} In his first assignment, Philbeck contends that the trial court’s decision

finding him guilty of disrupting public services in Case No. 2014 CR 2147 was against the

manifest weight of the evidence. Although stated in terms of a challenge to the manifest

weight of the evidence, in the body of his assignment he argues that the trial court’s guilty

verdict was not supported by sufficient evidence. Thus, we will address Philbeck’s

argument under both legal standards.

{¶ 13} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a -5- reasonable doubt.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark No. 2007 CA 99,

.

{¶ 14} “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.” State v. McKnight,

,

,

. “A claim that a jury verdict is against the

manifest weight of the evidence involves a different test. ‘The court, reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered. The discretionary power to grant a new trial should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.’” Id. at ¶ 71.

{¶ 15} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder’s determinations of credibility. The 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.

Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997).

{¶ 16} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in -6- arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03,

(Oct. 24, 1997).

{¶ 17} Philbeck was found guilty of disrupting public services in violation of R.C.

2909.04(A)(1), which provides:

(A) No person, purposely by any means or knowingly by damaging or

tampering with any property, shall do any of the following:

(1) Interrupt or impair television, radio, telephone, telegraph, or other mass

communications service; police, fire, or other public service

communications; radar, loran, radio, or other electronic aids to air or marine

navigation or communications; or amateur or citizens band radio

communications being used for public service or emergency

communications;

* * *.

{¶ 18} Oliver testified that after she was pepper sprayed in the face by Philbeck,

she found the telephone and attempted to call 911. Before Oliver could complete the

call, she testified that Philbeck snatched the phone away from her and tore the phone

wires out of the wall, thereby rendering the phone inoperable. Oliver then left the

residence, crawled across the street to a neighbor’s home, and asked the neighbor to call

the police. Deputy Crowe testified that he responded to Wilson’s address based on a

911 hang-up from that location.

{¶ 19} Construing the evidence presented in a light most favorable to the State, as

we must, we conclude that a rational trier of fact could find all of the essential elements of

the crime of disrupting public services to have been proven beyond a reasonable doubt. -7- Philbeck’s conviction for disrupting public services is therefore supported by legally

sufficient evidence.

{¶ 20} Philbeck also suggests that his conviction for disrupting public services is

against the manifest weight of the evidence because Wilson’s testimony contradicted

Oliver’s testimony on the subject of who was attempting to use the telephone. Philbeck

asserts that since Wilson was more sober than Oliver at the time of the incident, Wilson’s

testimony should have been given more weight by the trial court. Specifically, Wilson

testified that Philbeck never took the phone away from Oliver, but rather it was taken from

her. Oliver, on the other hand, testified that she was attempting to use the telephone.

{¶ 21} Nevertheless, the testimony of both women supports Philbeck’s conviction

for disrupting public services. Both Wilson and Oliver testified that Philbeck grabbed the

telephone and threw it when someone was attempting to call the police with it. From the

record, it is clear that the trial court gave more weight to Oliver’s testimony when it found

that “throwing the phone, which prevented [Oliver] from using the phone to complete the

911 call, that *** constituted [disrupting public services].” In State v. Thomas, 2d Dist.

Montgomery No. 19435,

, we held that a defendant who had ripped

a telephone from the victim’s wall and left her apartment with the telephone in his

possession had violated the statute. The victim “was forced to contact the police from a

pay phone,” implying that she had no other telephone service in her apartment.

Lastly, we note that photographs of the crime scene were admitted which depicted that

Wilson’s landline telephone was broken and inoperable, and the phone line had been

pulled from the wall, thus supporting Oliver’s version of the events which occurred at the

time of incident. -8- {¶ 22} Thus, having reviewed the record, we find no merit in Philbeck’s

manifest-weight challenge. It is well settled that evaluating witness credibility is primarily

for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27,

.

A trier of fact does not lose its way and create a manifest miscarriage of justice if its

resolution of conflicting testimony is reasonable.

Here the trial court quite reasonably

could have credited Oliver’s testimony that Philbeck snatched the phone away from her

and tore the phone wires out of the wall, thereby rendering the phone inoperable.

Accordingly, the trial court did not lose its way and create a manifest miscarriage of justice

in reaching a guilty verdict for disrupting public services.

{¶ 23} Philbeck’s first assignment of error is overruled.

{¶ 24} Philbeck’s second assignment of error is as follows:

{¶ 25} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED

ITS DISCRETION BY CONCLUDING THAT THE APPELLANT HAD THE PRESENT OR

FUTURE ABILITY TO PAY RESITUTION HEREIN.”

{¶ 26} In his second assignment, Philbeck argues that the trial court erred when it

failed to consider his current and future ability to pay before ordering restitution in the

amount of $19,835.25. Specifically, Philbeck argues that the trial court was unable to

determine his present or future ability to pay because no pre-sentence investigation (PSI)

report was ordered. Therefore, Philbeck asserts that the trial court did not have before it

sufficient information regarding his ability to pay before ordering the restitution amount.

As previously discussed, the trial court held a restitution hearing on October 31, 2014, in

order to determine the amount of restitution to be paid.

{¶ 27} R.C. 2929.19(B)(5) imposes a duty upon the trial court to “consider the -9- offender’s present and future ability to pay” before imposing any financial sanctions under

R.C. 2929.18. See State v. Martin,

,

(4th

Dist. 2000). However, the statute establishes no particular factors for the court to take

into consideration, nor is a hearing necessary before making this determination.

Moreover, although it is preferable, a court imposing financial sanctions need not

expressly state on the record that it considered an offender’s ability to pay. State v.

Parker, 2d Dist. Champaign No. 03CA0017,

. Where the trial court

fails to make an explicit finding on a defendant’s relative ability to pay, this court has

observed that a trial court’s consideration of this issue may be “inferred from the record

under appropriate circumstances.”

{¶ 28} In State v. Ayers, 2d Dist. Greene No. 2004CA0034,

, this

court held a trial court’s order of restitution was contrary to law because there was nothing

in the record indicating the trial court considered the defendant’s ability to pay the ordered

amount.

Information contained in a presentence investigation report relating to

defendant’s age, health, education and employment history, coupled with a

statement by the trial court that it considered the presentence report, has

been found sufficient to demonstrate that the trial court considered

defendant’s ability to pay a financial sanction. (Citations omitted) Here,

although the trial court stated that it had reviewed the presentence report,

that document has not been included in the files and records presented to

this court. Neither does the State rely on its contents to refute Defendant’s

contention. Without knowledge of the contents of that presentence report, -10- we cannot infer from it that the trial court considered Defendant’s present

and future ability to pay a financial sanction.

Ayers, at ¶25.

{¶ 29} At Philbeck’s sentencing hearing, the trial court stated the following with

respect to the restitution order:

The Court: All right. Now going to the issue of restitution, again,

restitution being only an issue in [Case No.] 2014-CR-1660/1. I note that,

as I’ve already stated, that the general concepts of restitution apply,

obviously, to your case as well as Ms. Wilson’s case. And I have taken

those matters into consideration when arriving at the decision that a

restitution order is appropriate. Also, obviously, I must consider your –

both your present and future ability to pay before imposing a restitution

order. I do want to confirm one thing. You just turned thirty-three; is that

correct?

Philbeck: Yes.

***

The Court: Now I did not obtain a [PSI] regarding Mr. Philbeck,

because I knew what the sentence was going to be. But based upon –

going first to Mr. Philbeck’s present ability to pay, I note that in State versus

Croom, ***

, the Second Appellate District in that case

reaffirmed the conclusions stated in an earlier decision regarding Mr.

Croom, regarding restitution. And that previous Croom decision can be

found electronically at

. And that conclusion is that a -11- Defendant’s ability to work while in prison is a factor that a trial court may

consider in determining the Defendant’s present ability to pay restitution.

And Mr. Philbeck, as noted, is thirty-three. He certainly had the physical

ability to commit the offenses to which he has entered guilty pleas. And

based upon his age, his obvious mental capacity, and his ability to work, I

note that he will have the opportunity to work while incarcerated. And that

does constitute, under the case, as indicated, evidence of a present ability

to pay restitution.

Going into the issue of the future ability to pay restitution, Mr.

Philbeck, upon his release from prison, will be forty years old, almost

forty-one years old. That’s still a relatively young age. At this age, he will

have the ability to work and, therefore, the ability to pay restitution,

especially since the restitution, though not insignificant, is slightly under

$20,000.00. Therefore, I’m going to order restitution as follows. *** And

again, this restitution – these restitution amounts were based upon the

testimony presented at the October 31st [2014,] hearing, the testimony

presented this morning, and all of the exhibits which were admitted at both

the October 31st hearing and today’s hearing. ***

{¶ 30} In light of the foregoing, it is clear that the trial court expressly considered

Philbeck’s present and future ability to pay before ordering restitution. Although no PSI

was ordered, the trial court had ample opportunity to observe and interact with Philbeck

throughout the course of a bench trial in one case and plea hearing in a second case.

Based on its observations, the trial court explicitly found that Philbeck, at age thirty-three, -12- had the present physical and mental ability to work while in prison, and therefore

contribute to paying towards his restitution order. Furthermore, the trial court noted that

Philbeck would only be forty years old when he was released from prison. Accordingly,

the trial court found that Philbeck would have the future ability to work, and therefore pay,

towards his restitution order. Under these circumstances, we conclude that the trial

court did not fail to consider Philbeck’s present or future ability to pay restitution.

{¶ 31} Philbeck’s second assignment of error is overruled.

{¶ 32} Philbeck’s third and final assignment of error is as follows:

{¶ 33} “THE TRIAL COURT ERRED WHEN IT NEGLECTED TO SENTENCE

THE APPELLANT ON COUNT 33: BREAKING AND ENTERING.”

{¶ 34} In his final assignment, Philbeck asserts, and the State concedes, that the

trial court neglected to sentence him for Count 33, breaking and entering, in violation of

R.C. 2911.13(A), a felony of the fifth degree, to which he pled guilty on September 25,

2014, in Case No. 2014 CR 1660/1. Upon review of the transcript of the sentencing

hearing and the judgment entry of conviction in Case No. 2014 CR 1660/1, we find that

the trial court did, in fact, overlook Count 33 when imposing Philbeck’s prison sentence.

Because of this oversight on the part of the trial court, the case must be remanded for

sentencing on Count 33.

{¶ 35} Philbeck’s third and final assignment of error is sustained.

{¶ 36} Philbeck’s third assignment of error having been sustained, this matter is

remanded to the trial court for proceedings consistent with this opinion. In all other

respects, the judgment of the trial court is affirmed.

.......... -13- FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Dylan Smearcheck Christopher A. Deal Hon. Michael L. Tucker