[Cite as State v. Leslie, 2011-Ohio-2727.]

                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      HOCKING COUNTY

STATE OF OHIO,                                     :      Case No. 10CA17
                                                   :               10CA18
        Plaintiff-Appellee,                        :
                                                   :      DECISION AND
        v.                                         :      JUDGMENT ENTRY
                                                   :
FRANK LESLIE,                                      :
                                                   :
        and                                        :      RELEASED 06/01/11

                                      :
SHERRY LESLIE,                        :
                                      :
     Defendants-Appellants.           :
______________________________________________________________________
                            APPEARANCES:

Kyle C. Henderson, Logan, Ohio, for appellants.

Laina Fetherolf-Jordan, Hocking County Prosecutor, and Jonah M. Saving, Hocking
County Assistant Prosecutor, Logan, Ohio, for appellee.
______________________________________________________________________
Harsha, P.J.

        {¶1}     After a bench trial, the court convicted both Frank and Sherry Leslie of

four counts of cruelty to animals. On appeal the Leslies contend the State failed to

prove that they recklessly deprived the animals of necessary sustenance or confined

the animals without supplying them with sufficient food and water. Specifically, they

point to their evidence that: 1.) the animals had improved from an even worse condition

under their care and 2.) they had certain foods for the animals. This argument

essentially contends their testimony was more credible than the State’s evidence.

However, we leave credibility determinations to the trier of fact. The trial court chose to

believe the State’s evidence that the animals were starving when the humane society
Hocking App. Nos. 10CA17 & 10CA18                                                               2

took them, as demonstrated by the animals’ subsequent rapid weight gain upon regular

feeding and minimal medical attention. Thus we cannot say that the trial court clearly

lost its way and created a manifest miscarriage of justice, i.e. the convictions are not

against the manifest weight of the evidence. And this result necessarily includes a

finding that sufficient evidence supported the convictions.

       {¶2}   Mrs. Leslie argues that she received ineffective assistance of counsel.

She claims that she gave her attorney photographs and video footage of the animals

taken at the time she and her husband took possession of them and at various other

times before the humane society took the animals. According to Mrs. Leslie, this

evidence would have shown that the animals improved under the Leslies’ care, but her

attorney failed to introduce the photographs or video footage at trial. Because Mrs.

Leslie’s argument relies on evidence outside the record we cannot address it on direct

appeal; the proper vehicle to raise it is in a petition for post-conviction relief under R.C.

2953.21.

       {¶3}   Finally, the Leslies contend, and the State concedes, that the trial court

committed plain error when it ordered them to pay restitution to the Hocking County

Humane Society for the expenses it incurred in caring for the animals. Because the

expended funds do not constitute a victim’s economic loss under R.C. 2929.28(A)(1),

we reverse the restitution orders. Accordingly, we affirm in part, reverse in part, and

remand for further proceedings.

                                           I. Facts

       {¶4}   After the Leslies were each charged with four counts of cruelty to animals

in violation of R.C. 959.13(A)(1), all second degree misdemeanors, their cases
Hocking App. Nos. 10CA17 & 10CA18                                                          3

proceeded to a bench trial. There, Hocking County Humane Society Officer Sandra

Harvey testified that several people made complaints to the humane society about the

Leslies’ animals but most were reluctant to give statements because of the Leslies’

“supposedly * * * foul nature.” Harvey went to the Leslies’ property on November 8,

2009. She took some photographs the following day, and she secured a search warrant

the humane society executed on November 11. That day, the humane society seized a

horse, two female goats (does), and one male goat (a buck), which the Leslies admitted

they owned. Harvey testified that the Leslies kept the animals in an approximately one

acre fenced area with very short grass. Harvey testified that horses and goats need

longer grass to process food. Harvey admitted that she saw two bales of hay in the

area on November 9, but testified that on November 11, Mr. Leslie told her that the

couple did not have any hay, but they “were going to get some.” Harvey testified that

the water she saw for the animals was green and murky. She did not see hay in the

Leslies’ barn but did see “several bags” of grain, which the humane society concluded

contained an adequate percentage of protein.

       {¶5}   Harvey admitted that she had driven past the horse “from time to time”

before November 8 during her travels but never stopped her vehicle. However, Harvey

only saw the horse “kind [of] out of the corner [of] her eye.” According to Harvey, when

the humane society seized the animals, the horse was dehydrated and lethargic, its ribs

were visible, and it was “in pretty bad health” overall. Harvey was “quite surprised” at

how thin the goats were, though she acknowledged that the buck had “a little more flesh

to him” compared to the other goats. Harvey testified that aside from worming the

animals, the humane society did not give them any treatment beyond regular feeding,
Hocking App. Nos. 10CA17 & 10CA18                                                            4

and the animals gained weight quickly.

       {¶6}   Veterinarian Dr. Kim Stevelt testified that he examined the animals on

November 12 and found that they were “very thin” had “poor hair coats” and “in general

had the appearances of animals that had been * * * starved.” The State introduced into

evidence a copy of Henneke’s nine-point scale for evaluating animal body fat levels.

Although this scale specifically refers to body fat levels in horses, Stevelt used the

number ranking system to rate all of the animals. A score of “1” means the animal is in

poor condition, i.e. it suffers from extreme emaciation. A score of “9” means the

animals is extremely fat. A score of “5” indicates a moderate weight. Stevelt gave all

the animals a “1” except for the buck, which he gave a “2,” explaining that male goats

seem to “be able to weather the storm better” than females.

       {¶7}   Stevelt testified that in his experience a malnourished horse would start to

recover in a “matter of few weeks” and would normally take six months to get back into

good health. Stevelt did not testify to a specific time frame it would take a malnourished

goat to reach good health. However, he examined photographs of the horse taken

approximately one, four, and sixth months after the humane society took the animal. He

also examined photographs of the goats taken approximately six weeks and four

months after the humane society took them. Stevelt testified that the photographs

showed the animals’ progressive weight gain. Within roughly six months the horse

appeared to be in “[v]ery good health.” And within roughly four months, the goats

appeared to be in good health. Stevelt testified that the photographs confirmed his

initial impression that the animals were starved and did not suffer from ill health or old

age. He explained that he did not medically treat the animals but all of them “very
Hocking App. Nos. 10CA17 & 10CA18                                                            5

quickly gained their weight” under the humane society’s care. Stevelt acknowledged

that the mother doe would have lost weight after giving birth to the baby, but he testified

that alone would not have caused the mother’s emaciated condition. Stevelt testified

that in his opinion, before the humane society took the animals, the animals had been

deprived of necessary food or sustenance.

       {¶8}   Anna Ricketts, the Leslies’ neighbor, claimed that the Leslies had the

horse for at least a year before the humane society took it. Ricketts testified that she

thought the Leslies acquired all three goats a short time before they got the horse and

that all the goats were in “good condition” at that time. In addition, Ricketts testified that

when the Leslies received the horse, it looked “[p]retty similar” to how it did in November

2009 and may have actually been “just a little bit fatter” when the Leslies got it. Ricketts

described the Leslies’ field as “dead.” Ricketts called the humane society about the

animals since they “kept getting smaller and smaller and smaller and they weren’t being

taken care of.” She and her husband talked to the Leslies on “several occasions” and

told them they needed to feed the animals. The Leslies just screamed and used

profanities in response. Ricketts admitted that she had trouble with the Leslies in the

past and that the Leslies got a civil protection order to keep her husband from

contacting them.

       {¶9}   Leone Shastine, a friend of the Leslies, testified that the couple got the

horse around the end of May 2009, and at that time, the horse “was pretty starved,”

missing hair, and looked much worse than it did in one of the State’s photographs of the

horse from November 2009. After viewing photos of the mother doe and buck taken in

November 2009, Shastine claimed both goats were skinnier when the Leslies got them.
Hocking App. Nos. 10CA17 & 10CA18                                                              6

Shastine claimed she saw the Leslies feed the horse before and saw her children feed

the horse and goats. Shastine also testified to seeing water out for the animals. In

Shastine’s opinion, the Leslies did not neglect the animals.

       {¶10} Sherry Leslie testified that the couple acquired the mother doe and the

buck in April 2009, that they got the horse in May 2009, and that the mother doe had the

baby doe approximately two or three months after the couple acquired the mother. Mrs.

Leslie testified that the older goats were “muddy, skinny, dirty, and not very happy"

when the Leslies got them. According to Mrs. Leslie, the horse was in “horrible

condition.” She claimed he had “hoof prints on his body and open wounds on his

snout[.]”

       {¶11} Mrs. Leslie claimed the couple provided food and water for all four animals

and they gained weight under the Leslies’ care. She testified that the couple kept the

animals in a two and a half acre pasture where the grass was taller than her, i.e. over

five feet high, before their animals ate it down. Mrs. Leslie claimed that at some point

the couple filled the entire barn with hay to prepare for winter, but the animals ate it all

so they were “getting ready to buy more.” She also claimed that she and her husband

had “hundreds and hundreds of pounds of grain” in the garage when the humane

society came. But according to Mrs. Leslie, the buck “always had a round droopy

tummy and his spine was always showing[,]” and he had “always been hippy[,]” which

she thought was normal. She claimed the buck was “strong as an ox” and dragged Mr.

Leslie around the yard “many times.” Mrs. Leslie testified that the mother doe “was

always more slender” and started to put on weight from October to November since the

baby had been weaned. Mrs. Leslie claimed she took the buck and mother doe to a
Hocking App. Nos. 10CA17 & 10CA18                                                           7

trade show in October 2009, i.e. the month before the humane society took them away,

that they were the “two prettiest goats in the whole area,” and that they “won the prize of

compliments all throughout Lucasville, people would comment and look at them.”

       {¶12} The trial court found the Leslies guilty on all counts. After sentencing the

Leslies filed their appeals, which we sua sponte consolidated.

                                 II. Assignments of Error

       {¶13} Mr. Leslie assigns three errors for our review:

       1. The evidence is insufficient to support conviction of cruelty to animals.

       2. The conviction on four counts of cruelty to animals was against the
          manifest weight of evidence.

       3. The trial court erred in imposing the payment of restitution to the
          Hocking County Humane Society.

       {¶14} Mrs. Leslie assigns four errors for our review:

       1. The evidence is insufficient to support conviction of cruelty to animals.

       2. The conviction on four counts of cruelty to animals was against the
          manifest weight of evidence.

       3. Trial counsel’s failure to submit exculpatory evidence provided to
          counsel by defendant was ineffective assistance of trial counsel that
          prejudiced defendant resulting in conviction.

       4. The trial court erred in imposing the payment of restitution to the
          Hocking County Humane Society.

                        III. Manifest Weight of the Evidence and
                               Sufficiency of the Evidence

       {¶15} In their first and second assignments of error, the Leslies contend that

their convictions were against the manifest weight of the evidence and that insufficient

evidence exists to support their convictions. “When an appellate court concludes that

the weight of the evidence supports a defendant’s conviction, this conclusion
Hocking App. Nos. 10CA17 & 10CA18                                                                         8

necessarily includes a finding that sufficient evidence supports the conviction.” State v.

Puckett, --- N.E.2d ---, 2010-Ohio-6597, at ¶34. “Thus, a determination that [a]

conviction is supported by the weight of the evidence will also be dispositive of the issue

of sufficiency.” Id., quoting State v. Lombardi, Summit App. No. 22435, 2005-Ohio-

4942, at ¶9, in turn, quoting State v. Roberts (Sept. 17, 1997), Lorain App. No.

96CA006462, 1997 WL 600669.1 Therefore, we first consider whether the Leslies’

convictions were against the manifest weight of the evidence.

        {¶16} “In determining whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its

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

reversed.” State v. Brown, Athens App. No. 09CA3, 2009-Ohio-5390, at ¶24, citing

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A

reviewing court “may not reverse a conviction when there is substantial evidence upon

which the trial court could reasonably conclude that all elements of the offense have

been proven beyond a reasonable doubt.” State v. Johnson (1991), 58 Ohio St.3d 40,

42, 567 N.E.2d 266, citing State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304,

at paragraph two of the syllabus.

        {¶17} We must still remember that the weight to be given evidence and the

credibility to be afforded testimony are issues to be determined by the trier of fact. State

v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing State v.

1
 However, the inverse proposition is not always true, i.e. a conviction may pass a sufficiency analysis yet
still fail to satisfy a manifest weight of the evidence challenge. State v. Thompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, 678 N.E.2d 541.
Hocking App. Nos. 10CA17 & 10CA18                                                             9

Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The fact finder “is best

able to view the witnesses and observe their demeanor, gestures, and voice inflections,

and use these observations in weighing the credibility of the proffered testimony.”

Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (per

curiam). Thus, we will only interfere if the fact finder clearly lost its way and created a

manifest miscarriage of justice.

       {¶18} R.C. 959.13(A)(1) provides: “No person shall * * * [t]orture an animal,

deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate

or kill, or impound or confine an animal without supplying it during such confinement

with a sufficient quantity of good wholesome food and water[.]” “The culpability required

for a R.C. 959.13(A)(1) violation is recklessness.” State v. Nichols, Hocking App. No.

07AP10, 2007-Ohio-1327, at ¶14, citing State v. Clark, Lake App. No. 2007-L-010,

2007-Ohio-5209, at ¶4. “A person acts recklessly when, with heedless indifference to

the consequences, he perversely disregards a known risk that his conduct is likely to

cause a certain result or is likely to be of a certain nature. A person is reckless with

respect to circumstances when, with heedless indifference to the consequences, he

perversely disregards a known risk that such circumstances are likely to exist.” R.C.

2901.22(C).

       {¶19} The State did not contend that the Leslies tortured, beat, mutilated or

killed the animals in question. The alleged misconduct here relates to food, water and

shelter. The Leslies argue that the State failed to prove that they recklessly deprived

the animals of necessary sustenance or impounded or confined the animals without

supplying them with a sufficient quantity of good wholesome food and water. They
Hocking App. Nos. 10CA17 & 10CA18                                                           10

claim that the testimony from Shastine and Mrs. Leslie shows the animals were in a

poor condition when the Leslies took possession of them and actually improved under

their care. The Leslies point to evidence of food and water they provided for the

animals. They argue that the pasture they confined the animals in had short green

grass and claim that the animals could survive in such a pasture. In addition, the

Leslies point to testimony from Harvey that there were two bales of hay and greenish

water in a trough for the animals when she came to their property. They also contend

that Harvey testified that the grain taken from their barn was of “sufficient quality.”

       {¶20} As we explained in State v. Murphy, Ross App. No. 07CA2953, 2008-

Ohio-1744, at ¶31: “It is the trier of fact’s role to determine what evidence is the most

credible and convincing. The fact finder is charged with the duty of choosing between

two competing versions of events, both of which are plausible and have some factual

support. Our role is simply to insure the decision is based upon reason and fact. We

do not second guess a decision that has some basis in these two factors, even if we

might see matters differently.”

       {¶21} Here, the trial court chose to believe the State’s version of events, and we

will not substitute our judgment for that of the finder of fact under these circumstances.

The evidence reasonably supports the conclusion that the Leslies recklessly deprived

the animals of necessary sustenance or confined the animals without supplying them

with a sufficient quantity of good wholesome food and water. Having heard the

testimony and having observed the demeanor of the witnesses, the trial court could

choose to believe all, part, or none of the testimony presented by any of these
Hocking App. Nos. 10CA17 & 10CA18                                                          11

witnesses. State v. Parish, Washington App. Nos. 05CA14 & 05CA15, 2005-Ohio-

7109, at ¶15.

       {¶22} The trial court discredited some of Ricketts’ testimony, such as her claim

that the Leslies had the animals for a year before the humane society took them and

that the pasture grass was dead. The court concluded the pasture had “rather short”

grass and also recognized evidence of other food the Leslies had, such as some grain

and hay. The court also noted that “there seems to be agreement to some degree that

the animals were not in particularly good shape” when the Leslies took them.

Nonetheless, the court concluded that the animals were starved when the humane

society took them. The court found the testimony of Stevelt and Harvey credible. Both

testified about the animals’ poor condition when the humane society seized them.

Stevelt testified that once he observed (via photographic evidence) the animals’ rapid

weight gain under the humane society’s care, which only involved worming and regular

feeding, his initial suspicion that the couple starved the animals was confirmed.

Moreover, the court was free to discredit Mrs. Leslie’s testimony that the couple fed

these emaciated animals an over five-foot high pasture of grass and barn full of hay.

       {¶23} Thus, after reviewing the entire record, we cannot say that the trial court

lost its way or created a manifest miscarriage of justice when it found the Leslies guilty

of four counts of cruelty to animals. Therefore, we overrule the Leslies’ second

assignments of error. And because this conclusion necessarily includes a finding that

sufficient evidence supports the Leslies’ convictions, we also overrule their first

assignments of error. See Puckett, supra, at ¶34.

                          IV. Ineffective Assistance of Counsel
Hocking App. Nos. 10CA17 & 10CA18                                                            12

       {¶24} In her third assignment of error, Mrs. Leslie contends that her trial counsel

rendered ineffective assistance. To prevail on a claim of ineffective assistance of

counsel, an appellant must show that: 1.) his counsel’s performance was deficient, and

2.) the deficient performance prejudiced his defense so as to deprive him of a fair trial.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, at ¶205,

citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674. To establish deficient performance, an appellant must show that trial counsel’s

performance fell below an objective level of reasonable representation. State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶95. To establish

prejudice, an appellant must show a reasonable probability exists that, but for the

alleged errors, the result of the proceeding would have been different. Id. The

appellant has the burden of proof on the issue of counsel’s ineffectiveness because a

properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶62.

       {¶25} Mrs. Leslie argues that the “crux” of her defense was that she and her

husband rescued the animals when they were in very poor condition and that the

animals had in fact improved under their care. She claims that she and Mr. Leslie took

photographs and video footage of the animals when they received them and on various

occasions afterwards, and this evidence supported her defense. Mrs. Leslie contends

she gave this evidence to her attorney, but her attorney failed to offer it at trial. Mrs.

Leslie also appears to complain that her attorney failed to forward the evidence to her

husband’s attorney.
Hocking App. Nos. 10CA17 & 10CA18                                                              13

         {¶26} As proof of the existence of this evidence, Mrs. Leslie points to some of

her testimony at trial in which she mentioned having photographs of the goats from

October 2009 and asked the prosecutor if he looked at the video she provided.

However, the record does not contain these alleged photographs or video footage, let

alone any evidence that Mrs. Leslie in fact gave these items to her attorney. Because

Mrs. Leslie’s claim depends upon evidence outside the record, it cannot be adjudicated

on direct appeal, and the proper vehicle to raise it is in a petition for post-conviction

relief under R.C. 2953.21. State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448

N.E.2d 452 (per curiam). Accordingly, we overrule Mrs. Leslie’s third assignment of

error.

                                    V. Restitution Orders

         {¶27} In Mr. Leslie’s third assignment of error and Mrs. Leslie’s fourth

assignment of error, the couple contends that the trial court erred when it ordered them

to pay restitution to the Hocking County Humane Society. Because the Leslies failed to

object to the restitution order at the trial level, they have waived all but plain error.

“Plain errors or defects affecting substantial rights may be noticed although they were

not brought to the attention of the court.” Crim.R. 52(B). “A silent defendant has the

burden to satisfy the plain-error rule[,] and a reviewing court may consult the whole

record when considering the effect of any error on substantial rights.” State v. Davis,

Highland App. No. 06CA21, 2007-Ohio-3944, at ¶22, citing United States v. Vonn

(2002), 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90.

         {¶28} For a reviewing court to find plain error: 1.) there must be an error, i.e., “a

deviation from a legal rule”; 2.) the error must be plain, i.e., “an ‘obvious’ defect in the
Hocking App. Nos. 10CA17 & 10CA18                                                          14

trial proceedings”; and 3.) the error must have affected “substantial rights,” i.e., it must

have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27,

2002-Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has

admonished courts that notice of plain error under Crim.R. 52(B) is to be taken “with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id., quoting State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d

804, at paragraph three of the syllabus.

       {¶29} R.C. 2929.28(A)(1) provides:

       (A) In addition to imposing court costs pursuant to section 2947.23 of the
       Revised Code, the court imposing a sentence upon an offender for a
       misdemeanor * * * may sentence the offender to any financial sanction or
       combination of financial sanctions authorized under this section. If the
       court in its discretion imposes one or more financial sanctions, the
       financial sanctions that may be imposed pursuant to this section include,
       but are not limited to, the following:

       (1) Unless the misdemeanor offense is a minor misdemeanor or could be
       disposed of by the traffic violations bureau serving the court under Traffic
       Rule 13, restitution by the offender to the victim of the offender’s crime or
       any survivor of the victim, in an amount based on the victim’s economic
       loss. * * * If the court requires restitution, the court shall order that the
       restitution be made to the victim in open court or to the adult probation
       department that serves the jurisdiction or the clerk of the court on behalf of
       the victim.

       If the court imposes restitution, the court shall determine the amount of
       restitution to be paid by the offender. If the court imposes restitution, the
       court may base the amount of restitution it orders on an amount
       recommended by the victim, the offender, a presentence investigation
       report, estimates or receipts indicating the cost of repairing or replacing
       property, and other information, provided that the amount the court orders
       as restitution shall not exceed the amount of the economic loss suffered
       by the victim as a direct and proximate result of the commission of the
       offense. If the court decides to impose restitution, the court shall hold an
       evidentiary hearing on restitution if the offender, victim, or survivor
       disputes the amount of restitution. * * *

       {¶30} The Leslies argues that under the circumstances in this case, the costs
Hocking App. Nos. 10CA17 & 10CA18                                                           15

the humane society incurred in caring for the animals do not constitute “property

damage” for which restitution could be ordered. They cite State v. Bybee (1999), 134

Ohio App.3d 395, 731 N.E.2d 232 and State v. Hileman (1998), 125 Ohio App.3d 526,

708 N.E.2d 1078 in support of their argument. The State concedes that the Leslies

cited “current” case law for this assignment of error which “does not support the

restitution ordered in the case.” The State does not present any authority in support of

the restitution order but encourages us to consider the humane society’s “function as a

charitable organization in ruling on whether restitution was proper.”

       {¶31} We agree that the restitution order in this case was improper but for a

different reason than the Leslies submit. The Bybee and Hileman courts interpreted

former R.C. 2929.21(E), which stated: “The court may require a person who is

convicted of or pleads guilty to a misdemeanor to make restitution for all or part of the

property damage that is caused by the offense * * *.” The current statute, R.C.

2929.28(A)(1), does not contain specific language limiting restitution to “property

damage” but instead refers to restitution to victims for their “economic loss.”

       {¶32} Although the humane society certainly suffered an economic loss by

providing care to the Leslies’ animals, it is not a “victim” of the Leslies’ crimes under

R.C. 2929.28(A)(1). In previous decisions construing R.C. 2929.18(A)(1), the provision

for restitution in felony cases, which is similar to R.C. 2929.28(A)(1), we explained that a

“victim” is “generally defined as the person who was ‘the object’ of the crime-e.g. the

victim of the robbery is the person who was robbed.” State v. Frazier, Pickaway App.

No. 10CA15, 2011-Ohio-1137, at ¶18, quoting State v. Samuels, Washington App. No.

03CA8, 2003-Ohio-6106, at ¶5. For example, we have held that a law enforcement
Hocking App. Nos. 10CA17 & 10CA18                                                           16

agency is not a “victim” under R.C. 2929.18(A)(1) when it voluntarily expends its own

funds to pursue a drug buy through an informant. Id., citing Samuels at ¶5, ¶10. Thus,

the spent funds cannot constitute a “victim’s economic loss” under the statute. Id. And

we have found that a trial court committed plain error when it ordered a defendant to

pay restitution for such expenditures because the restitution was not authorized by

statute. Id., citing Samuels at ¶9.

       {¶33} The humane society does not constitute a victim, i.e. the object, of the

crime of cruelty to animals under R.C. 2929.28(A)(1). Therefore, we conclude the

orders of restitution to the humane society amount to plain error. Accordingly, we

sustain Mr. Leslie’s third assignment of error and Mrs. Leslie’s fourth assignment of

error, reverse the restitution orders, and remand for further proceedings. This decision

renders moot the Leslies’ additional arguments that the amount of the restitution orders

was excessive.

       {¶34} Interestingly, the Revised Code contains provisions that provide financial

assistance for humane societies in cases such as this. R.C. 959.13(C) provides: “All

fines collected for violations of [R.C. 959.13] shall be paid to the society or association

for the prevention of cruelty to animals, if there be such in the county, township, or

municipal corporation where such violation occurred.” The Hocking County Humane

Society may qualify as such an organization and be entitled to the fines collected from

the Leslies. Moreover, R.C. 959.99(D) provides that when a person violates R.C.

959.13(A), as the Leslies did, the court “may order the offender to forfeit the animal or

livestock and may provide for its disposition, including, but not limited to, the sale of the

animal or livestock. If an animal or livestock is forfeited and sold pursuant to this
Hocking App. Nos. 10CA17 & 10CA18                                                        17

division, the proceeds from the sale first shall be applied to pay the expenses incurred

with regard to the care of the animal from the time it was taken from the custody of the

former owner. The balance of the proceeds from the sale, if any, shall be paid to the

former owner of the animal.” (Emphasis added). Here, the trial court ordered the

Leslies to forfeit the animals. The trial court did not specifically provide for their

disposition, but it could have ordered the sale of the animals, which would have helped

the humane society recoup some or all of its expenditures.

       {¶35} Accordingly we reverse the order of restitution and remand for imposition

of an appropriate order.

                                                         JUDGMENT AFFIRMED IN PART,
                                                                 REVERSED IN PART,
                                                              AND CAUSE REMANDED.
Hocking App. Nos. 10CA17 & 10CA18                                                           18

                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellants and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.

                                            For the Court

                                            BY: ________________________________
                                               William H. Harsha, Presiding Judge

                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.


       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                ______________________

                SAMUEL M. JAMES,
                 Claimant-Appellant,

                           v.

   Eric K. Shinseki, SECRETARY OF VETERANS
                     AFFAIRS,
                 Respondent-Appellee.
               ______________________

                      2012-7129
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2539, Judge Alan G. Lance Sr.
                ______________________

                 Decided: May 9, 2013
                ______________________

  SAMUEL M. JAMES, of King George, Virginia, pro se.

   CORINNE A. NIOSI, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and CLAUDIA BURKE, Assistant Director. Of counsel
on the brief were DAVID J. BARRANS, Deputy Assistant
2                               SAMUEL JAMES   v. SHINSEKI

General Counsel, and MARTIN J. SENDEK, Attorney, Unit-
ed States Department of Veterans Affairs, of Washington,
DC. Of counsel was MICHAEL J. TIMINSKI, Attorney.
                ______________________

    Before DYK, BRYSON, and REYNA, Circuit Judges.
PER CURIAM.
    Samuel M. James appeals from an order of the Court
of Appeals for Veterans Claims (“Veterans Court”) dis-
missing his appeal for lack of jurisdiction. Because Mr.
James has not identified any issues within our jurisdic-
tion, we dismiss his appeal.
                     BACKGROUND
    On August 10, 2011, Mr. James filed a notice of ap-
peal to the Veterans Court requesting appeal from a final
Board of Veterans’ Appeals (Board) decision dated April
12, 2011. The government responded that according to
the Board’s appeal tracking system, there was no final
Board decision for Mr. James on that date. It observed
that the Roanoke Regional Office of the Department of
Veterans Affairs had sent a letter to Senator Jim Webb
regarding Mr. James on that date, and conjectured that it
might be this letter that Mr. James was attempting to
appeal. Because there was no final Board decision from
which Mr. James could appeal, the government moved to
dismiss.
    On November 28, 2011, the Veterans Court ordered
Mr. James to identify the decision from which he was
appealing and to provide a copy of that decision. Mr.
James’ response did not identify any decision subject to
the Veterans Court’s jurisdiction. Accordingly, the court
dismissed the appeal for lack of jurisdiction.
    Subsequently, Mr. James filed a motion for reconsid-
eration. In this motion, Mr. James argued that on April
12, 2011, the Board denied his January 17, 2011 motion
 SAMUEL JAMES   v. SHINSEKI                              3
to reconsider a March 2004 decision that declined to
reverse a 2001 final decision. The Veterans Court denied
the motion for reconsideration, observing that a 2011
motion to reconsider could not toll the 120-day time to
appeal a decision from 2004 or 2001.
                        DISCUSSION
     This court has jurisdiction to review the validity of a
decision of the Veterans Court to decide “any challenge to
the validity of any statute or regulation or any interpreta-
tion thereof brought under this section, and to interpret
constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C. §
7292(c). Absent a constitutional issue, however, this court
may not review challenges to factual determinations or
challenges to the application of a law or regulation to
facts. 38 U.S.C. § 7292(d)(2).
    Mr. James identified one statute he claims was inter-
preted incorrectly: 10 U.S.C. § 1218. This statute deals
with claims for compensation upon release from the
military. But the Veterans Court’s decision did not men-
tion or rely upon this statute, and we are therefore with-
out jurisdiction to address it.
    The Veterans Court’s decision rests solely on its fac-
tual determination that Mr. James identified no final
decision from which he was appealing, thereby failing to
satisfy the requirement of 38 U.S.C. § 7266(a). Because
we do not have jurisdiction to review the Veterans Court’s
factual determinations or application of the law to facts,
we are also without jurisdiction to review the propriety of
its decision to dismiss the case. We have considered Mr.
James arguments and find them unpersuasive. Accord-
ingly, this appeal is
                       DISMISSED


                    [NOT FOR PUBLICATION]

               UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

No. 96-1704

                       UNITED STATES,

                          Appellee,

                             v.

                      STEPHEN V. WOLFF,

                    Defendant, Appellant.

        APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Juan M. Perez-Gimenez, U.S. District Judge]

                           Before

                  Selya, Boudin and Lynch,
                       Circuit Judges.

Kevin G. Little on brief for appellant.
Guillermo
                      Gil, United States Attorney,    Joseph
                                                             J.
                                                                 Frattallone,
Assistant United States Attorney, and
                                             Jose A. Quiles
                                                          , Senior Litigation
Counsel, on brief for appellee.

                       AUGUST 5, 1997

     Per
                     Curiam. We have carefully reviewed the parties'

briefs and the record, and we affirm. Appellant challenges his

sentence on two grounds. First, he claims the district court

should have departed downward from the sentence suggested by

U.S.S.G. S2F1.1 because, appellant claims, he was not the sole

cause of the victims' losses. Appellant failed to raise this

issue below, so the failure to depart is not subject to review,

except for plain error (which does not appear here).   United

States
                   v.
                       Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992).

Further, a district court's refusal to depart downward is not

appealable unless the district court misinterprets the law as

set out in the Sentencing Guidelines.
                                                 United States v. Lauzon
                                                                        ,

938 F.2d 326, 330 (1st Cir. 1991). There is no indication in

the record that the district court misinterpreted the

Guidelines, so its decision will stand.

     Second, appellant contends the district court erred in

failing to consider his financial circumstances when it ordered

him to pay restitution to his victims. The Pre-Sentence Report

did address the appellant's financial circumstances in detail,

and this is sufficient under our prior decisions.      United

States v. Savoie, 985 F.2d 612, 619 (1st Cir. 1993).

     Affirmed.

                             -2-


985 So.2d 546 (2008)
ARISTIDE
v.
STATE.
No. 4D08-1697.
District Court of Appeal of Florida, Fourth District.
June 25, 2008.
Decision without published opinion. Affirmed.


465 B.R. 901 (2011)
In re 8699 BISCAYNE, LLC, Debtor.
8699 Biscayne, LLC, Debtor in Possession, Plaintiff,
v.
Indigo Real Estate, LLC, as assignee of WESTLB AG, & WESTLB AG, a Foreign Corporation Builderfinancial, Corp., a Florida corporation Builder Funding, LLC, a Delaware limited liability company, BFSPE, LLC, a Delaware limited liability company, BFWEST, LLC, a Delaware limited liability company, Defendants.
Bankruptcy No. 08-22814-BKC-AJC. Adversary No. 08-1749-BKC-AJC-A.
United States Bankruptcy Court, S.D. Florida, Miami Division.
September 6, 2011.
*902 James W. Carpenter, Angelo & Banta, P.A., Fort Lauderdale, FL, for Defendants.

MEMORANDUM ORDER GRANTING DEFENDANTS', BFWEST, LLC, BFSPE, LLC, BUILDER FUNDING, LLC AND BUILDERFINANCIAL CORP.'S MOTION FOR SUMMARY FINAL JUDGMENT ON USURY ISSUES AND DENYING PLAINTIFF, 8699 BISCAYNE, LLC'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND SUPPLEMENTAL MOTION FOR FINAL SUMMARY JUDGMENT ON COUNT III USURY
A. JAY CRISTOL, Bankruptcy Judge.
THIS CAUSE came before the Court for hearing on June 20, 2011 upon Defendants', BFWEST, LLC, BFSPE, LLC, BUILDER FUNDING, LLC, and BUILDERFINANCIAL CORP.'s (collectively, the "Defendants") Motion for Summary Final Judgment on Usury Issues ("Defendants' Motion") [D.E. 289]. Additionally, Plaintiff, 8699 BISCAYNE, LLC ("Plaintiff" or "8699 BISCAYNE") previously filed its Cross-Motion for Partial Summary Judgment (Plaintiff's "Cross-Motion") [D.E. 72] and Supplemental Motion for Final Summary Judgment on Count III Usury (Plaintiff's "Supplemental Motion") [D.E. 291] for which the Court accepted argument during the June 20, 2011 hearing. The Court, after having reviewed Defendants' Motion as well as Plaintiff's Cross-Motion and Supplemental Motion, the record and file in this case, and otherwise being fully familiar in the circumstances makes the following finding and conclusions, and enters the following relief set forth herein as to Defendants' Motion, Plaintiff's Cross-Motion and Supplemental Motion for the reasons set forth herein.

I. PROCEDURAL HISTORY

1. Following the filing of an Amended Complaint dated February 11, 2009 seeking declaratory relief in conjunction with allegations of usury relating to a certain promissory note, mortgage and other loan documents as executed between Plaintiff and Defendants, on April 2, 2009, Plaintiff filed its Response to Defendants, WESTLB AG and INDIGO REAL ESTATE, LLC's (collectively, "WESTLB Defendants") Motion to Dismiss Debtor's Amended Complaint and Cross-Motion for Partial Summary Judgment [D.E. 72].
2. On August 31, 2009, Plaintiff submitted and this Court subsequently granted its motion seeking leave to file a Second *903 Amended Complaint alleging causes of action for usury relating to that certain promissory note, mortgage and other loan documents attached to its Amended Complaint ("Motion to File Second Amended Complaint") [D.E. 132, 140].
3. Upon this Court's approval of the settlement between the Plaintiff and INDIGO REAL ESTATE, LLC, as assignee of WESTLB AG and WESTLB AG [D.E. 250], Plaintiff's alleged usury claims against the Defendants which were set forth under Count III of the Second Amended Complaint became the sole remaining issues in this adversary action.
4. On April 29, 2011, Defendants filed their Motion for Summary Final Judgment on Usury Issues and Supporting Memorandum of Law moving the Court pursuant to Federal Rule of Civil Procedure 56 for an order granting summary judgment in favor of the Defendants on the grounds that there is no genuine issue as to any material fact that the loan referenced under Plaintiff's Second Amended Complaint violated criminal usury laws [D.E. 289].
5. Plaintiff subsequently filed its Supplemental Motion for Summary Final Judgment on Count III Usury and Response in Opposition to Defendants' Motion For Summary Final Judgment on Usury Issues and Memorandum of Law [D.E. 290 and 291]. On June 20, 2011, Defendants filed their Response to Plaintiff's Supplemental Motion for Final Summary Judgment on Count III Usury [D.E. 306]. The Court heard oral argument on the above-referenced motions on June 20, 2011.

II. FINDINGS OF FACT

6. On or about January 12, 2006, Jason Vance, Tamara Vance, and Michael Scaglione, on behalf of themselves and an entity to later be formed (which became 8699 BISCAYNE), originally requested from BUILDERFINANCIAL CORP. a loan for the acquisition and development of certain real property in Miami-Dade County. As a result of such request, the parties negotiated and agreed to the terms set forth in a Commitment Letter, dated January 12, 2006, that established the terms of the contemplated loan and expressed the agreed conditions under which BUILDERFINANCIAL CORP. would make the contemplated loan to 8699 BISCAYNE (the "Commitment Letter") [D.E. 132, Exh. 3, Exh. 1].
7. Among other items, the Commitment Letter provided for the issuance of a loan to the Plaintiff by BUILDERFINANCIAL CORP., through its affiliated entity, BUILDER FUNDING, LLC, and dictated that the maximum collective amount of the loan advances thereunder would total $4,247,150.00 over a term of twenty-seven (27) months with a stated interest rate of eight percent (8%) per annum [D.E. 132, Exh. 3, Exh. 1].
8. On or about January 20, 2006, consistent with the provisions of the Commitment Letter, and consistent with the earlier request of Jason Vance, Tamara Vance, and Michael Scaglione on behalf of 8699 BISCAYNE, BUILDERFINANCIAL CORP., through its affiliated entity, BUILDER FUNDING, LLC, entered into a loan agreement which provided that a loan would be made to 8699 BISCAYNE in the original principal sum of $4,247,150.00 (the "Loan") [D.E. 132, Exh. 3, Exh. 2]. The Loan was evidenced by that certain Promissory Note dated as of January 20, 2006, executed by Jason Vance and Michael Scaglione as managers of 8699 BISCAYNE and made payable to BUILDER FUNDING, LLC, in the original principal amount of $4,247,150.00 (the "Note") [D.E. 132, Exh. 3, Exh. 4].
*904 9. The Loan Closing Statement, dated January 20, 2006, reflected the following loan expenses being owed by Plaintiff for the Loan:

 Commitment Fee[1]              = $    5,000.00
 Discount Points[2]             = $  613,400.00
 Facility Fee[3]                = $   53,750.00
 Origination Fee[3]             = $  700,000.00
 Lot Inspection Fee[3]          = $      100.00
 Construction Administration
  Fee[3]                              = $      500.00
 Underwriting Fee[3]            = $      500.00
 Project Fee[3]                 = $      500.00
                                    _______________
Total Fees                          = $1,373,750.00

[D.E. 132, Exh. 3, Exh. 3].
10. In addition, an interest reserve of $630,000.00 ("Interest Reserve") was created under the Loan by having such funds reserved from the principal Loan amount [D.E. 132, Exh. 3, Exh. 3]. Pursuant to the terms of the Loan, 8699 BISCAYNE was under no obligation to use the funds allocated to the Interest Reserve for the payment of monthly interest on those Loan amounts actually advanced to or on behalf of Plaintiff [D.E. 132, Exh. 3, Exh. 2 and 4].
11. As evidenced by the BUILDERFINANCIAL CORP. Disbursement Log, 8699 BISCAYNE received, on its behalf, $3,617,150.00 of the maximum $4,247,150.00 under the Loan (the "Loan Disbursement Log") [D.E. 307, Page 1]. These sums were also reflected as being disbursed for the benefit of Plaintiff under the Loan Closing Statement, as acknowledged by Plaintiff.
12. The remaining $630,000.00 Interest Reserve under the Loan, was allocated for the sole benefit of Plaintiff for use toward the payment of monthly interest on the initial disbursement of $3,617,150.00, and any such later disbursements made under the Loan [D.E. 307, Page 1].
13. The Note required Plaintiff to make monthly interest payments, with interest payable at a rate of eight percent (8%) per annum [D.E. 132, Exh. 3, Exh. 4]. As evidenced by the Loan Disbursement Log, Plaintiff was obligated to make these monthly interest payments which commenced in January 2006 on the initial disbursement of $3,617,150.00 [D.E. 307, Page 3]. The interest calculation at the time of the initial disbursement of the Loan for January 2006 is as follows:
(Amount Funded * Interest Rate) =  Per Diem * Number of
                                   Days in Billing Cycle = Interest
---------------------------------
            Calendar Days
($3,617,150.00 * 0.08) =  $803.8111 * 11 = $8,841.923
           60[4]14. The January 2006 interest calculation of $8,841.92 was computed using the stated interest rate of eight percent (8%) per annum and based solely on the funds of the Loan which had been advanced and disbursed to or on behalf of Plaintiff, i.e., the $3,617,150.00 sum only.
15. No interest was calculated or charged on the $630,000.00 Interest Reserve.
*905 16. The January 2006 interest payment was paid on behalf of Plaintiff with funds advanced from the $630,000.00 Interest Reserve [D.E. 307, Pages 1 and 3]. Subsequent monthly interest payments due under the Loan were calculated on the funded amount of the Loan which had been then-disbursed to or on behalf of Plaintiff, which included the initial disbursement of $3,617,150.00 and those funds periodically advanced from the Interest Reserve which were advanced to pay on-going monthly interest payments due on the Loan [D.E. 307, Pages 1 and 3].
17. The interest on the Loan for February 2006 and the following months was calculated as follows:
February 2006
 ($3,625,991.92 * 0.08) =  $805.776 * 28 =  $22,561.73
            360
March 2006
 ($3,648.553.65 * 0.08) =  $810.7897 * 31 = $25,134.48
            360
April 2006
 ($3,673,688.13 * 0.08) =  $816.3751 * 30 = $24,491.24
            360
18. As evident from the above interest calculations, the amount funded for the loan increased each month from those totals advanced from the prior months from the Interest Reserve for payment of the monthly interest. It was only after the funds from the Interest Reserve had been advanced for payment of the monthly interest that the eight percent (8%) stated rate of interest on the Loan was charged upon such sums.
19. As of January 31, 2008, the entirety of the Interest Reserve had been disbursed to cover those monthly interest payments due under the Loan and the full $4,247,150.00 face amount of the Note had been advanced to Plaintiff [D.E. 307, Pages 1 and 3].
20. The Plaintiff never paid any interest due under the Loan from its own funds; the only interest paid on this Loan came from the Interest Reserve.

III. CONCLUSIONS OF LAW

21. Under the Note, the parties agreed that its terms and provisions shall be construed and enforced in accordance with Florida law. In accordance with a choice of law provision, Florida law sets forth four (4) elements necessary to substantiate the usurious nature of a transaction. To establish usury, there must be: (1) a loan express or implied; (2) an understanding between the parties that the money lent shall be returned; (3) that for such a loan, a greater rate of interest than is allowed by law shall be paid or agreed to be paid, as the case may be; and (4) there existed a corrupt intent to take more than the legal rate for the use of the money loaned. See Video Trax, Inc. v. NationsBank, N.A., 33 F.Supp.2d 1041, 1056 (S.D.Fla.1998) citing Dixon v. Sharp, 276 So.2d 817, 819 (Fla.1973); See also Pinchuck v. Canzoneri, 920 So.2d 713, 715 (Fla. 4th DCA 2006); Jersey Palm-Gross, Inc. v. Paper, 639 So.2d 664, 666 (Fla. 4th DCA 1994).
22. In the instant case, the parties agree that the first two "essential elements"the existence of a loan and a repayment requirementare established under the undisputed facts of this matter and the loan documents present in the record. However, it is the third and fourth "essential *906 elements" which the parties dispute to be present under the Loan at issue herein.

A. Interest Reserve for Purposes of Usury Calculations
23. During oral argument on June 20, 2011, the Court primarily focused upon whether to include or exclude the Interest Reserve as additional interest under the Loan, which is required to be "spread" over the term of the Loan pursuant to the usury formulas found in Florida Statute Section 687.03(3) and further enumerated by the Florida Supreme Court in St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982).
24. Defendants have argued that the Interest Reserve should be excluded as additional interest for purposes of usury calculations, because such funds were retained by Defendants for the benefit and convenience of Plaintiff, at closing, to pay ongoing, accrued due interest on the Loan. Defendants contend that no interest was charged against the Interest Reserve at the inception of the Loan and that the only interest charged against the Interest Reserve monies came after such funds were periodically disbursed to pay the monthly interest payments due under the Loan, as contemplated by the parties.
25. Plaintiff contends that the $630,000.00 Interest Reserve, allocated at the Loan's inception, should be considered an advance or additional interest because such funds were advanced by Defendants at closing and had interest charged against such sums pursuant to the stated rate of interest contained in the Note. Plaintiff argues that the full amount of the Interest Reserve thus should be "spread" over the term of the Loan.
26. Based on the record and applicable law, this Court believes the Interest Reserve should not be treated as an advance or as additional interest, and, as such, should be excluded from any usury calculation herein.
27. The methodology for calculating interest in transactions exceeding $500,000.00 is described under the "spreading" provisions of Florida Statute Section 687.03(3), which provides a formula to compute the rate of interest in order to determine if a transaction is usurious and states in part:
... any payment or property charged... as an advance ... which is in the nature of, and taken into account in the calculation of, interest shall be valued as of date received and shall be spread over the stated term of the loan ... for the purpose of determining the rate of interest. The spreading of any such advance... for the purpose of computing the rate of interest shall be calculated by first computing the advance ... as a percentage of the total stated amount of such loan.... This percentage shall then be divided by the number of years, and fractions thereof, of the loan ... according to its stated maturity date, without regard to early maturity in the event of default. The resulting annual percentage rate shall then be added to the stated annual percentage of interest to produce the effective rate of interest for purposes of this chapter."
28. In St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla.1982), the Florida Supreme Court addressed the above "spreading" statute in considering whether the payment by a borrower of a "loan charge" rendered a particular loan usurious under Florida law. In Hamm, the stated principal debt identified on a promissory note was $290,000.00, and the borrower also was required to pay a loan charge of $5,800.00. Id. at 1072. In calculating interest under the spreading statute, the Supreme Court agreed with the trial *907 court's analysis that interest only would be calculated against the face amount (the "stated amount") of the note which may not necessarily be the same as the "actual principal sum received". Id. at 1073-1074. Following Florida Statute Section 687.03, the Supreme Court first computed the advance as a percentage of the total stated amount of the loan, then divided that rate by the term of the loan in years, and then added that figure to the stated annual percentage rate on the loan to calculate the effective rate of interest for purposes of the spreading statute. Id. at 1072-1073.
29. The concept of an "interest reserve" is present when a lender virtually loans money to a borrower to pay the interest on a loan which allows a borrower to defer such interest payment by borrowing from the lender. See Mid-State Federal Savings Bank v. Marketing and Management Associates, Inc., 570 So.2d 1016, 1017 (Fla. 5th DCA 1990). Monies from an interest reserve are usually advanced monthly as long as they are available to pay the interest that is due under the loan. As monies from the interest reserve are advanced, the loan outstanding increases under the facility, as such funds are advanced to pay interest for the benefit of the borrower, as its payment. The interest reserve is not kept in a separate escrow account, but rather a collective account of all interest reserves. Such long-standing concept of construction financing and related law is thoroughly discussed in Practice Under Florida Usury Law, section 4.33 and 4.34 at 114 through 116 (Florida Bar Continuing Legal Education Practice Manual, 1982) as cited by Rebman v. Flagship First National Bank of Highlands County, 472 So.2d 1360, 1363 (Fla. 2d DCA 1985).
30. In Rebman v. Flagship First National Bank of Highlands County, 472 So.2d 1360 (Fla. 2d DCA 1985), the borrower entered into a series of three (3) loans with the lender which involved the deposit of a portion of the loan proceeds into a non-interest bearing escrow account with the deposited funds to be used solely to provide payment for the monthly principal and interest on the loans. Rebman, 472 So.2d at 1361-62. In affirming the trial court's rejection of usury claims, the Second District Court of Appeals of Florida refused to "spread" the monies placed into the escrow account, but rather only applied the escrowed monies as part of the principal, or "stated amount of the loan", for calculating interest under the usury statutes because even though such escrowed monies never passed directly through the borrower's hands, such funds were used exclusively for the borrower's benefit for the payment of her monthly principal and interest obligation. Id. at 1363.
31. As evident from the record herein, the Interest Reserve was not advanced to 8699 BISCAYNE at the Loan's inception. Rather, such funds were held aside by the Defendants for the benefit of 8699 BISCAYNE so it could pay the monthly interest payments to come due under the Loan [D.E. 307, Page 1]. These funds were correspondingly used on a periodic basis to pay Plaintiff's monthly interest obligation on the Loan.
32. The record shows that the Defendants did not charge any interest upon any portion of the Interest Reserve until after such funds were partially disbursed to 8699 BISCAYNE to cover the monthly interest payments due under the terms of the Loan, and even then, only as to the disbursed amount [D.E. 307, Pages 1 and 3]. See Mindlin v. Davis, 74 So.2d 789, 793 (Fla.1954) (the retention of a substantial portion of the loan with a corresponding abatement of interest on the amount retained will not result in such funds being *908 termed interest for usury calculation purposes).
33. Kyle Meyer, President of BUILDERFINANCIAL CORP., stated that the Interest Reserve was held as a bookkeeping entry against the Loan and was used to pay the interest on the outstanding loan balance as required by the monthly interest statements [D.E. 304, Page 15 of 73, Page 46, Lines 11-19]. Mr. Meyer explained that the Interest Reserve only became a part of the funded Loan when such funds were disbursed on behalf of Plaintiff and applied to the monthly interest payments due on the Loan [D.E. 304, Page 14 of 73, Page 44, Lines 17-19]. Interest was charged only after funds were actually disbursed for the benefit of Plaintiff for the payment of monthly interest [D.E. 304, Page 48 of 73, Page 184, Lines 8-12].
34. Additionally, the Note, bearing Plaintiff's endorsement and execution, specifically provided for the retention of $630,000.00 by Defendants as an interest reserve from the proceeds of the Loan from which monthly interest payments on the Loan could be funded [D.E. 132, Exh. 3, Exh. 4]. See Swanson v. Gulf West International Corporation, 429 So.2d 817, 818-19 (Fla. 2d DCA 1983) (finding borrower failed to carry burden of proof to establish usury based in part by the promissory note signed by borrower agreeing to the withholding of interest from the proceeds of the loan to cover monthly interest payments).
35. Therefore, there are no genuine issues of material fact regarding whether the Interest Reserve, herein, referenced in the Commitment Letter, the Note and the Closing Statement should be included as additional interest at the Loan's inception for usury calculation purposes. The Court determines it should not be so included.
36. As dictated under the Supreme Court's Hamm decision and applicable usury statutes, the proper calculation of interest under the Loan is as follows:

Total Amount of Advances       =$1,373,750.00[5]
Total Stated Amount of Loan    =$3,617,150.00[6]
Percentage of Advance          =$1,373,750.00   =37.98%
                                                               $3,617,150.00
Term of Loan                   =2.281 years[7]
Annual Percentage of Advances  =37.98%          =16.65%
                                2.281

*909
Note Rate of Interest          =8%
Effective Rate of Interest     =8% + 16.65%     =24.65%

37. Based upon the foregoing, the Court finds the Loan between the parties is not usurious.
38. 8699 BISCAYNE has argued that recent Florida case law invalidates this analysis, but upon a review of same, such conclusion is misplaced. The cases cited by the Plaintiff Velletri v. Dixon, 44 So.3d 187 (Fla. 2d DCA 2010) and Morales v. Grassy Key Beach Subdivision, Inc., 50 So.3d 639 (Fla. 3d DCA 2010)are inapplicable to instant matter.
39. Velletri v. Dixon involved a loan transaction whereby the borrower obtained a loan with a face amount of $250,000.00 from the lender. Velletri, 44 So.3d at 188-89. After collecting an origination fee and interest from the loan proceeds at closing, the lender withheld an additional $65,000.00 from the face amount of the loan as "construction loan funds", which funds were placed in an escrow account from which the borrower could apply for reimbursement. Id. From the loan's inception, the lender calculated and charged interest on the full face amount of the loan, including the "construction loan funds". Id. In its decision, the Second District Court of Appeals noted that "where a lender retains a substantial portion of the loan proceeds without allowing a corresponding abatement of interest on the amount retained, that retention effectively increases the interest charged on the amounts actually advanced to the borrower, which can render an otherwise proper loan usurious." Id. at 190. In prescribing to the usury calculation provisions set forth in the Hamm decision, the appellate court declared the "construction loan funds" to be additional interest and found the loan to be usurious. Id. at 191-92.
40. Plaintiff's reliance upon Velletri is misplaced as such case involved the retention of "construction loan funds" whose purpose was to reimburse the borrower for renovations on the construction project as costs progressed. The instant matter involves the retention of monies in an interest reserve held for the benefit of Plaintiff to pay the monthly interest payments on the Loan as such interest became due not to "reimburse" the Plaintiff.
41. Moreover, while Defendants reserved the Interest Reserve amounts at closing, Defendants did not charge interest on the Interest Reserve monies until such funds were advanced for the payment of monthly interest on the Loan. See Williamson v. Clark, 120 So.2d 637 (Fla. 2d DCA 1960).
42. The other case relied upon by the Plaintiff, Morales v. Grassy Key Beach Subdivision, Inc., 50 So.3d 639 (Fla. 3d DCA 2010), involved a loan transaction containing a pre-paid interest provision whereby the first nine (9) months of interest on the loan would be paid in advance by the borrower at the inception of the loan. The borrower in Morales was obligated to pay interest upon the pre-paid interest from the inception of the loan because such funds were paid to the full benefit of the borrower at closing [D.E. 294, Page 26]. The appellate court affirmed the trial court's order finding the pre-paid interest to constitute an advance subject to spreading under the usury statutes, and pursuant to the Hamm decision, the loan was criminally usurious. Morales, 50 So.3d at 639.
43. The Morales decision involved a loan transaction containing a provision for the pre-paid of interest which was advanced to the full benefit of the borrower at closing, which is dissimilar from the instant *910 action where an interest reserve was retained by Defendants, until disbursed for the payment of monthly interest charges on the Loan. Additionally, interest was calculated on the pre-paid interest in Morales from the loan's inception because such funds had been considered to be fully advanced to the borrower for its benefit whereas no interest was calculated on the interest reserve in the instant matter, until such funds were disbursed to the benefit of Plaintiff on a monthly basis to cover the required interest payments.
44. This Court concludes that the Interest Reserve found in the present Loan between Plaintiff and Defendants should not be considered as additional interest for purposes of usury calculations under the usury spreading statute. Likewise, the Interest Reserve will not be considered part of the equation for calculating the stated amount of the Loan.

B. Pre-Payment Penalty Clause And Impact on Determination of Usury Issues at Loan Inception
45. 8699 BISCAYNE has alleged that the Note contained a provision whereby Plaintiff would incur a pre-payment penalty equal to the amount of any remaining funds left in the Interest Reserve at the time of such payment prior to maturity. Plaintiff contends that this contract provision serves to define the full amount of the Interest Reserve as additional interest, which should then be spread over the term of the Loan pursuant to the usury spreading statutes and the Hamm decision.
46. The "pre-payment penalty clause" found in the Note specifically reads as follows:
"In the event the Note is prepaid in full prior to the Maturity Date, Maker shall pay Holder a prepayment fee in an amount equal to the amount of the undrawn Interest Reserve, if any, at the time of prepayment"
[D.E. 132, Exh. 3, Exh. 4, Page 71].
47. Plaintiff's characterization of the "pre-payment penalty clause" does not persuade this Court that the Loan is otherwise usurious. "[T]he usurious nature of a transaction is determined at the inception of the transaction". Oregrund Limited Partnership v. Sheive, 873 So.2d 451, 458-59 (Fla. 5th DCA 2004); Rollins v. Odom, 519 So.2d 652, 658 (Fla. 1st DCA 1988); Home Credit Co. v. Brown, 148 So.2d 257, 259 (Fla.1963).
48. The Court has determined that the Loan was not otherwise usurious at its inception based on the Court's decision to exclude the Interest Reserve as additional interest from being spread under such usury calculations, and even excluding the Interest Reserve from the stated amount of the Loan. In analyzing Plaintiff's claim that the pre-payment contract provision of the Note (which could only occur after the Loan's inception) may make an otherwise non-usurious loan usurious, the Court concludes it cannot.
49. In Dezell v. King, 91 So.2d 624 (Fla.1957), the Florida Supreme Court reviewed a lower court ruling granting summary final judgment in favor of the lender in relation to a two (2) count complaint alleging usury by the borrower. The borrower pursued the theory that the promissory note between the parties was not usurious at its inception, but rather was rendered usurious by the payments made thereon and the exercise of the option of the borrower to pay the note in full before maturity, at which time the lender demanded and received the full unaccrued interest. Id. at 627.
50. The Florida Supreme Court held that "[t]he law seems to be well settled that where the contract is not usurious *911 at its inception it is not rendered usurious because of exercise of the option of prepayment by the maker and the demand and receipt of interest by payee for the full length of the contract". Id. Volume 55 of American Jurisprudence states that, if a loan transaction would be free from usury if the loan were paid at the agreed maturity, it is not rendered usurious by its voluntary repayment by the borrower before maturity, even though, by reason of such payment, the amount of interest received by the lender exceeds the lawful interest computed to the date when the loan was paid. A borrower's voluntary payment of a loan before maturity, made pursuant to a prepayment option in the contract, will not render the transaction usurious if the total interest received by the lender does not exceed the interest computed at the maximum lawful rate from the time the loan became available to the borrower to the absolute maturity date specified in the contract, especially where the pre-payment provision is entirely optional with the borrower. Based upon such ruling, this concept would not apply to render the subject loan in the instant matter usurious. Id.
51. The Court also finds persuasive on this issue the cases of Connecticut Mutual Life Insurance Company v. Fisher, 165 So.2d 182, 186 (Fla. 3d DCA 1964) (assuming a loan's default is an improper methodology to use in determining usury, as it would require one to assume that the loan was never intended to be paid back as contracted for, but rather such default was planned) and Benson v. First Trust & Savings Bank, 105 Fla. 135, 134 So. 493, 496 (1931) ("if the loan runs for its full term as agreed on, [and the interest] will not equal or exceed 25 per centum per annum, the legal consequences of such an arrangement must be tested by the results contemplated by the parties on the assumption that both lender and borrower will fully carry out their agreement rather than the special results which may follow, but are not necessarily certain to ensue, when the borrower breaches a covenant").
52. Thus, based upon the relevant Florida case law and related persuasive treatises and supplemental authorities, the "pre-payment penalty clause" under the Loan herein cannot be permitted to influence the usury calculations undertaken by this Court as to the Loan's effective interest rate at inception. Doing so would require this Court to interpret an otherwise non-usurious Loan as charging an unlawful rate of interest, based upon a potential occurrence of a contract provision, which assumes less than full completion of that contract post-inception.
53. The Court need not reach the issue of intent with regard to the usurious nature of the Loan as the Court has determined the Loan itself is not usurious in nature.
54. The Court is compelled to comment that it certainly appeared at the beginning of this case, and throughout, that this was indeed a usurious loan under the laws of the state of Florida. However, after extensive calculations, it appears the Loan comes dangerously close to being usurious but is not usurious under the law. While the terms of the Loan certainly were not advantageous for the Debtor, upon further thought, the borrowers did receive all the benefits of the real property with no money down while the lenders took all the risk.
In conclusion, as illustrated by the Court's usury analysis and computations set forth herein, it is evident Defendants did not subject Plaintiff to an unlawful rate of interest in connection with the Loan. Accordingly, it is
ORDERED AND ADJUDGED that the Defendants', BFWEST, LLC, BFSPE, LLC, BUILDER FUNDING, LLC, and BUILDERFINANCIAL CORP.'s Motion *912 for Summary Final Judgment on Usury Issues is GRANTED and Plaintiff, 8699 BISCAYNE, LLC's Cross-Motion for Partial Summary Judgment and Supplemental Motion for Final Summary Judgment on Count III Usury are both DENIED.
NOTES
[1]  Paid outside of closing to BUILDER FUNDING, LLC.
[2]  Paid to BUILDER FUNDING, LLC.
[3]  Paid to BUILDERFINANCIAL CORP.
[4]  Defendants used the figure of 360 calendar days per year for purposes of computing interest on the Loan, as agreed to by the parties thereto.
[5]  This figure represents the summation of the Commitment Fee ($5,000.00), Discount Points ($613,400.00), Facility Fee ($53,750.00), Origination Fee ($700,000.00), Lot Inspection Fee ($100.00), Construction Administration Fee ($500.00), Underwriting Fee ($500.00), and Project Fee ($500.00). The Court considers these fees to be advances which count as additional interest under the terms of the Loan for the purpose of considering summary judgment, but does not rule as to the extent these fees actually constitute interest.
[6]  Although the Defendants rely on the Hamm decision to support their claim that the face amount of the Note is the figure to use for this analysis, the Court disagrees. Defendants cannot have their cake and eat it too! They cannot exclude the undisbursed amount for part of the calculation but include it for another part of the calculation where it benefits them. The Court believes the more accurate amount to be included as the "stated amount" is the face amount of the Loan, $4,247,150.00, minus the Interest Reserve, $630,000.00, equaling $3,617,150.00.
[7]  Defendants used a figure of 360 calendar days per year for purposes of computing interest on the Loan but even considering a calendar year consisting of 365 days, the calculation produced an effective interest rate of 24.88%.