In re M.A.

61 N.E.3d 630

In the Matter of M.A., Delinquent Child.

No. 2015–L–075.

Court of Appeals of Ohio, Eleventh District, Lake County.

March 21, 2016.

Charles E. Coulson, Lake County Prosecutor, Alana A. Rezaee, Assistant Prosecutor, and Eric J. Foisel, Assistant Prosecutor, Painesville, OH, for Appellee, State of Ohio.

Charles R. Grieshammer, Lake County Public Defender, Vanessa R. Clapp, Assistant Public Defender, and Joseph R. Medici, Assistant Public Defender, Painesville, OH, for Appellant, M.A.

OPINION

DIANE V. GRENDELL, J.

{¶ 1} Appellant, M.A., appeals from the judgment of the Lake County Court of Common Pleas, Juvenile Division, ordering him to pay restitution to the Wickliffe City School District, the Wickliffe Police Department, and the Wickliffe Fire Department. The issue to be determined by this court is whether the police, fire department, and a school district are “victims” who suffered economic harm for the purposes of restitution, given that they are governmental entities, when a bomb threat was made, giving rise to a delinquency finding of Attempted Inducing Panic. For the following reasons, we affirm in part, reverse in part, and affirm as modified the decision of the court below.

{¶ 2} On February 18, 2015, a Complaint was filed, alleging M.A. to be delinquent of one count of Inducing Panic, in violation of R.C. 2917.31(A)(1), a felony of the second degree if committed by an adult; one count of Making False Alarms, in violation of R.C. 2917.32(A)(1), a felony of the fifth degree if committed by an adult; and one count of Telecommunications Harassment, in violation of R.C. 2917.21(A)(1), a misdemeanor of the first degree if committed by an adult.

{¶ 3} On March 2, 2015, M.A. admitted to an amended charge of Attempted Inducing Panic, in violation of R.C. 2923.02, a felony the third degree if committed by an adult. The remaining charges were dismissed.

{¶ 4} A Dispositional Hearing was held on April 2, 2015. M.A. was ordered to serve a term in the Ohio Department of Youth Services, which was suspended. He was also ordered to be held in the Lake County Juvenile Detention Facility for 90 days and placed on probation.

{¶ 5} A Restitution Hearing was held on May 27, 2015. Prior to the presentation of testimony on the issue of restitution, M.A.'s counsel noted that the only “victims” set forth in the complaint were the Wickliffe City School District, as well as two other private schools, and that “the only restitution order that can be given is to Wickliffe City Schools.”¹ He also argued that compensation should not be ordered for “the ordinary cost of doing government business.”

{¶ 6} Joseph Spiccia, the superintendent of the Wickliffe City School District, testified about the events giving rise to the present matter, which occurred on February 17, 2015. On that date, the school received a call from the Wickliffe Police Department indicating that a “nonspecific” bomb threat had been made to the schools, resulting in the evacuation of all Wickliffe schools. Regarding the resulting economic loss, he and other school officials determined that losses directly resulting from the bomb threat totaled $4,035.27. This figure related to “personnel and facility financial expense.” This included the cost of transporting students, with bus drivers having to be called in, as well as “the cost of overtime, if any, incurred for [the] staff that had to stay and wait for students to be picked up.”

{¶ 7} Fire Chief James Powers testified that on February 17, students evacuated to the fire station where it was necessary to “find a way to get all those children reunited with their parents.” Regarding economic harm, he stated: “we had to commit all our resources and the resources of another community to help us with the onslaught of all those students coming over to our station.” No additional employees were called in to help and no overtime was incurred, but the employees shifted their duties to help handle the children. The restitution request was for $1,255.25.

{¶ 8} Lieutenant Pat Hengst, a detective with the Wickliffe Police Department, testified that dispatch had received a call on the afternoon of February 17 that there was a bomb in “the school,” with no specific school stated. The police department “incurred the cost of both managing the evacuation and searches and the investigation itself.” Hengst compiled a report showing the costs to the Police Department, which totaled $2,730. This figure was based on the hours worked by the officers, including some overtime. He noted that the officers participating were all on duty, with the exception of an officer from the bomb squad.

{¶ 9} Pursuant to a Judgment Entry filed on May 28, 2015, M.A. was ordered to pay restitution to the Wickliffe City School District in the amount of $3,963.27. The court found that $561.15 in restitution was owed to the Wickliffe Fire Department “for the cost of the services of the Chief and two (2) administrators.” Finally, it ordered restitution to the Wickliffe Police Department in the amount of $760.50.

{¶ 10} M.A. timely appeals and raises the following assignment of error:

{¶ 11} “The juvenile court erred to the prejudice of the delinquent child-appellant when it ordered restitution payments to several government entities not authorized by restitution statutes in violation of his due process rights, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.”

{¶ 12} While a decision to award restitution is generally evaluated under an abuse of discretion standard of review, the issue raised by M.A. relates to the interpretation and application of the statute to certain entities. Such issues of law are reviewed under a de novo standard. State v. Fortune, 11th Dist., 2015-Ohio-4019, 42 N.E.3d 1224, ¶ 16. De novo standards of review have been applied in matters determining who is a victim under the restitution statutes, as well as in deciding what constitutes an “economic loss.” In re Z.N., 2015-Ohio-1213, 29 N.E.3d 1016, ¶ 8 (11th Dist.) ; State v. Harris, 6th Dist., 2015-Ohio-4412, 46 N.E.3d 198, ¶ 8.

{¶ 13} R.C. 2152.20(A)(3) provides that, if a child is adjudicated delinquent, “the court may * * * require the child to make restitution to the victim of the child's delinquent act * * * in an amount based upon the victim's economic loss caused by or related to the delinquent act.” It also provides that restitution orders cannot exceed “the amount of the economic loss suffered by the victim as a direct and proximate result of the delinquent act * * *.”²

{¶ 14} Economic loss is defined under R.C. 2152.02(L) as:

[A]ny economic detriment suffered by a victim of a delinquent act * * * as a direct and proximate result of the delinquent act * * * and includes any loss of income due to lost time at work because of any injury caused to the victim and any property loss, medical cost, or funeral expense incurred as a result of the delinquent act * * *. ‘Economic loss' does not include non-economic loss or any punitive or exemplary damages.

{¶ 15} Non-economic loss is defined under R.C. 2152.02(DD) as “nonpecuniary harm suffered by a victim of a delinquent act * * * as a result of or related to the delinquent act” which includes items such as pain and suffering, loss of consortium, mental anguish, and other intangible losses.

{¶ 16} The statute does not define victim. This court has noted that “[a] victim of a crime is defined as the person or entity that was the ‘object’ of the crime.” (Citations omitted.) State v. Pietrangelo, 11th Dist. Lake No. 2003–L–125, 2005-Ohio-1686, 2005 WL 820526, ¶ 15.

{¶ 17} M.A. argues that his due process rights were violated through the order to pay restitution. The State notes that no such constitutional violation was raised below and thus, cannot be raised here. As this court has previously explained, failure to object at the restitution hearing on constitutional grounds rather than statutory grounds results in waiver of the constitutional arguments and allows this court to consider only statutory arguments. Z.N., 2015-Ohio-1213, 29 N.E.3d 1016, at ¶ 6.

{¶ 18} Regarding the restitution ordered to the Wickliffe Police and Fire Departments, M.A. argues that they were not victims of the crime, nor did they suffer any economic loss. He contends that the costs they expended were the “ordinary cost of doing government business.”

{¶ 19} We do not find that the Police and Fire Departments were victims of the crime that suffered an economic loss as contemplated under R.C. 2152.20(A)(3). As an initial matter, the State concedes that the Wickliffe Fire Department “although seriously inconvenienced and economically harmed, was not a ‘victim’ entitled to restitution,” based on the fact that the employees who were already on duty merely had to perform different tasks than they otherwise would if not for the bomb threat.

{¶ 20} Importantly, while government entities have been considered victims of a crime in situations where money or property belonging to the entity were stolen or destroyed, scenarios where these entities are merely performing their duties in responding to emergencies or crimes do not entitle them to restitution. State v. Samuels, 4th Dist. Washington No. 03CA8, 2003-Ohio-6106, 2003 WL 22704409, ¶ 5 (government can be a victim “if appellant embezzled money from a county department, or vandalized one of its vehicles”). “[T]he majority of state courts * * * have likewise concluded that the government is not a victim entitled to restitution where public moneys are expended in pursuit of solving crimes, as these expenditures represent normal operating costs.” (Citation omitted.) Pietrangelo, 2005-Ohio-1686, 2005 WL 820526, at ¶ 17. Similarly, the argument that a police department “that expends funds and/or other resources in responding to a false alarm should be reimbursed somehow for its expenditure of resources” has been rejected given the legislature's use of the word ...