In re Z.N., 2014–L–030.

29 N.E.3d 1016

In the Matter of Z.N., Delinquent Child.

No. 2014–L–030.

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

March 31, 2015.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Painesville, OH, for Plaintiff–Appellee.

Charles R. Grieshammer, Lake County Public Defender, and Michael L. Gabelman, Assistant Public Defender, Painesville, OH, for Defendant–Appellant.

OPINION

THOMAS R. WRIGHT, J.

{¶ 1} This appeal is from the Lake County Court of Common Pleas, Juvenile Division. Appellant Z.N. pled “true” to attempted trespass in a habitation in violation of R.C. 2911.12(B), a charge which would be a fifth-degree felony if committed by an adult. At the restitution hearing, Z.N. was ordered to pay $1,458 for the installation of a new security system at the victim's house. On appeal, Z.N. argues ordering restitution for the cost of installing a new security system violates R.C. 2152.20, the applicable restitution statute. We agree. For the following reasons, we reverse and remand.

{¶ 2} At the restitution hearing, the victim Terri Findlay–Jones testified that the day after Z.N. broke into her home, she and her husband purchased a security system. She testified that after the break-in, she was extremely afraid, was up throughout the night and no longer felt safe in her home. She further testified that but for Z.N.'s conduct, she would not have purchased the security system, that the security system provided the maximum amount of peace of mind that could be expected and that without the security system she could not be home alone without her husband. An alarm certificate showed that the cost of installing the security system was $199 and monthly fees would amount to $34.95 plus tax. The term of the security system agreement is for three years.

{¶ 3} In his closing argument, Z.N. argued the purchase of a security system was not a direct and proximate result of the Z.N.'s conduct and that the purchase of the security system was not an economic loss. The trial court found otherwise and ordered Z.N. to pay restitution for the amount of the security system. This appeal follows.

{¶ 4} As his sole assignment of error, Z.N. alleges:

{¶ 5} “The juvenile court erred to the prejudice of the delinquent child-appellant when it ordered him to pay restitution for an alarm system installed by a homeowner after he trespassed in her home 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.”

{¶ 6} Although Z.N.'s assignment claims his constitutional rights were violated his brief solely argues that the trial court's restitution order violates R.C. 2152.20. Furthermore, at the restitution hearing, Z.N.'s objections to restitution were solely based upon R.C. 2152.20, not the U.S. or Ohio constitutions. Z.N.'s failure to raise constitutional arguments before the trial court, results in waiver. Russin v. Shepherd, 11th Dist. Geauga No. 2006–G–2708, 2007-Ohio-3206, 2007 WL 1810503, ¶ 32. Consequently, we will only address the statutory arguments.

{¶ 7} Z.N. argues that the cost of installing the security system is not an economic loss as defined under R.C. 2152.02(L) for two reasons: (1) the installation of a security system does not fall within the exhaustive items defined to constitute an economic loss and (2) the impetus for the purchase of the security system (i.e. the loss of security in the victim's home) is nonpecuniary in nature.

{¶ 8} Questions of statutory interpretation are reviewed de novo. State v. Best, 7th Dist. Mahoning No. 04 MA 203, 2005-Ohio-4375, 2005 WL 2033082, ¶ 34. “ ‘In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319. Under Ohio law, it is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. Shover v. Cordis (1991), 61 Ohio St.3d 213, 218, 574 N.E.2d 457 ; S.R., supra , 63 Ohio St.3d at 595 [589 N.E.2d 1319]. In interpreting a statute, words and phrases shall be read in context and construed according to the rules of grammar and common usage. Independent Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314, 587 N.E.2d 814 ; R.C. 1.42. Courts do not have authority to ignore the plain and unambiguous language of a statute under the guise of statutory interpretation, but must give effect to the words used. Wray v. Wymer (Sept. 11, 1991), Scioto App. No. 1867 [77 Ohio App.3d 122, 601 N.E.2d 503], unreported, p. 13. In other words, courts may not delete words used or insert words not used. Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 97, 573 N.E.2d 77 [.]’ ” State v. Hiatt, 120 Ohio App.3d 247, 254, 697 N.E.2d 1025 (4th Dist.1997), quoting State v. Boso, 4th Dist. Washington No. 95CA10, 1996 WL 530007, *3 (Sept. 11, 1996).

{¶ 9} R.C. 2152.20(A)(3) provides that “[i]f a child is adjudicated a delinquent child * * * 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 * * *.” R.C. 2152.20(A)(3) also prevents restitution orders from exceeding “the amount of the economic loss suffered by the victim as a direct and proximate result of the delinquent act * * *.”

{¶ 10} Economic loss is defined under R.C. 2152.02(L), and it states that: “ ‘Economic loss' means any 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.” 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 * * * including, but not limited to, pain and suffering; loss of society, consortium, companionship, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, or education; mental anguish; and any other intangible loss.”

{¶ 11} First, Z.N. argues that the enumerated list of items in R.C. 2152.02(L) (i.e. that 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 be considered an economic loss) demonstrates an intent to exclude all other items as non-economic losses under the statutory construction rule known as expression unius exclusion alterius. That rule of construction holds that when a law specifies certain items in a list, there is an intention to exclude all others items from that list. State v. Barksdale, 11th Dist Lake No. 12–117, 1987 WL 32733, at *2 (Dec. 31, 1987), quoting Black's Law Dictionary, 521 (5 Ed. Rev. 1979). Because installing a new security system is not on the list of items included in the definition of an economic loss, Z.N. argues the installation of the security system is not considered an economic loss.

{¶ 12} The state responds by arguing that the word “include” or “including” indicates the legislature's intent to be illustrative, rather than exhaustive. Specifically, in Gilman v. Hamilton County Board of Revision, 127 Ohio St.3d 154, 2010-Ohio-4992, 937 N.E.2d 109, ¶ 15, the Ohio Supreme Court interpreted a list of items in R.C. 323.151(A)(2)'s definition of the word “owner” to be merely illustrative rather than exhaustive. There, the court noted that under the statute's definition, owner “would not even have included the holder of full legal title to property that was not subject to a purchase agreement, land contract, mortgage, or joint tenancy.” Id. Therefore, “the creation of an exhaustive list was not the intent of the General Assembly.” Id.

{¶ 13} Similarly, in Trans Rail Am., Inc. v. Enyeart, 123 Ohio St.3d 1, 2009-Ohio-3624, 913 N.E.2d 948, ¶ 28, the Ohio Supreme Court had to consider whether an agency's determination that a licensing application was incomplete could be appealed even though the list of decisions that could be appealed were enumerated to (only) include “the issuance, denial, modification, or revocation of a license.” The Ohio Supreme Court concluded, without further explanation, that the word “includes” indicates that the list was merely illustrative rather than exhaustive.

{¶ 14} The issue here however does not turn on whether the word “includes” denotes an exhaustive or illustrative list. An economic loss is generally defined as “any economic detriment suffered by a victim of a delinquent act * * * as a direct and proximate result of the delinquent act * * * and includes [the enumerated list of items].” (Emphasis added.) By having the list in question connected to the first clause through the use of a conjunction, the General Assembly has indicated that an economic loss is principally defined as “any economic detriment suffered by a victim * * * as a direct and proximate result of the delinquent act” and that the listed items that follow are examples of items that meet the criteria laid out in the first clause. As such, determining whether a financial expenditure is an economic loss does not depend upon whether the state can fit a purported loss into one of the categories after the conjunction; rather, the determination turns on whether the loss is economic detriment suffered by the victim that is the proximate result of the juvenile's conduct. Therefore, we reject Z.N.'s argument that the listed items are exhaustive of the types of recoverable expenses.

{¶ 15} Z.N. also argues the economic loss definition excludes the cost of the security system because the security system was purchased to ameliorate...