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State v. Eichelserfer

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DAVID E. EICHELSERFER DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617166-A

          ATTORNEY FOR APPELLANT John F. Corrigan

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Ashley B. Kilbane Mary M. Frey Assistant County Prosecutors

          BEFORE: Laster Mays, J., McCormack, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} Defendant-appellant David E. Eichelserfer ("Eichelserfer") appeals the trial court's restitution award to the victim, David Nieders ("Nieders"), and asks this court to vacate the award and adjust the total restitution award accordingly. We affirm.

         {¶2} Eichelserfer pleaded guilty to one count of burglary, a fourth-degree felony, in violation of R.C. 2911.12(B). He was sentenced to one year of community control sanctions and ordered to pay restitution in the amount of $4, 393.

         I. Facts

         {¶3} Eichelserfer was caught attempting to break into a value transfer machine ("VTM"), located in an apartment building, that allowed tenants to pay for laundry services in the building. The tenants would insert cash into the VTM unit, and the unit would credit the tenant's VTM card. The tenant then could use that card to operate the washers and dryers located in the building's basement. Eichelserfer attempted to burglarize the VTM unit to steal the cash that the machine contained. In his attempt to gain access, Eichelserfer damaged the VTM unit.

         {¶4} During the restitution hearing, the trial court allowed Nieders, the owner of the building to explain how the VTM unit was damaged and the costs associated with the damage. Taking into account Nieders's testimony, the trial court ordered restitution in the amount of $4, 393, which included replacement of the damaged padlock, the VTM unit and installation, and the labor for the woodwork around the door that Eichelserfer damaged. Eichelserfer disagreed with the court's restitution order and filed this appeal assigning one error for our review:

I. The trial court abused its discretion in ordering restitution in an amount that did not bear a reasonable relation to the actual loss suffered.

         II. Restitution

         {¶5} In Eichelserfer's sole assignment of error, he argues that the restitution amount ordered by the trial court is not reasonable because the VTM unit only suffered cosmetic damage and is still functioning as it was intended. We review an order of restitution under the abuse of discretion standard. State v. Lalain, 8th Dist. Cuyahoga No. 95857, 2011-Ohio-4813, ¶ 9. A restitution award lies within the discretion of the trial court and will not be disturbed unless the trial court commits an abuse of discretion. State v. Welch, 8th Dist. Cuyahoga No. 105158, 2017-Ohio-7887, ¶ 19. An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶6} R.C. ...


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