CAN A DEFENDANT BE FORCED TO PAY FOR THE INVESTIGATION OF HIS OR HER CRIMINAL CASE (E.G. A THEFT INVESTIGATION)?
The Court of Appeals for the State of Ohio recently held that a trial court may only order restitution in a criminal case that is the “direct or proximate result” of the criminal offense. State v. Cook, 2017-Ohio-1503.
In the Cook case, the Defendant was charged with theft after she stole money from her employer. After her trial, she was found guilty and ordered to pay back her employer the money that she had taken. In addition, the Defendant was also ordered to pay for the cost of the investigation that led to her being charged with a theft offense. The Defendant appealed the order of the court.
RESTITUTION MUST BE LIMITED TO ECONOMIC LOSS SUFFERED BY THE VICTIM AS A DIRECT RESULT OF THE COMMISSION OF THE OFFENSE
Restitution is a legal term that means placing an injured party in the position he or she was in before a certain act took place. In criminal cases for theft, restitution usually means returning money or items that were stolen from the victim of the crime, or paying for items stolen that are not recoverable.
Ohio law also governs the process of restitution and how a court can order a Defendant to repay a victim in a particular case. Ohio Revised Code 2929.18 states that a court may order for a defendant to pay restitution based on a victim’s economic loss but must limit the amount to be repaid to the “economic loss suffered by the victim as a direct and proximate result of the commission of the offense.”
In Cook, the trial court determined the economic loss of the victim to be the amount stolen from the business, and also the cost of the investigation incurred to determine it was the Defendant who was responsible for taking the money.
COSTS FOR PREPARING A THEFT INVESTIGATION CANNOT BE INCLUDED IN RESTITUTION
The Court of Appeals disagreed with the trial court’s reasoning in Cook. The Court of Appeals stated a trial court might base the amount of restitution on an amount recommended by the victim, an investigation report, or estimates or receipts. But a trial court may not base restitution on the cost of preparation of any investigations or estimates. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423
The Court stated, “these [investigation reports] are not the direct and proximate result of the commission of the theft offense; rather, they are consequential costs incurred subsequent to the theft to value the property that had been taken.” Supra
In Cook, the Court of Appeals used the same reasoning as the Lalain case when determining the cost of the investigation was not a direct or proximate result of the theft, but was only incurred by the victim to determine who cause the theft. The Court therefore reasoned the Defendant could not be made to repay the cost of the investigation.