State v. Nigh

[Cite as State v. Nigh, 

.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :                No. 15AP-813
                                                                (C.P.C. No. 13CR-6211)
v.                                                  :
                                                             (REGULAR CALENDAR)
Ronald E. Nigh, Jr.,                                :

                 Defendant-Appellant.               :




                                              D E C I S I O N

                                           Rendered on May 5, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
                 Gilbert, for appellee.

                 On brief: Yeura R. Venters, Public Defender, and David L.
                 Strait, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Ronald E. Nigh, Jr., defendant-appellant, appeals the judgment of the
Franklin County Court of Common Pleas in which the court, upon remand from this court
in State v. Nigh, 10th Dist. No. 14AP-866, 

, ordered appellant to pay
$13,348.21 in restitution.
        {¶ 2} In May 2013, appellant's fiancée or girlfriend, Cathy St. Meyer, was in the
hospital due to heart problems when appellant took her vehicle without her permission.
Around the time appellant took the vehicle, St. Meyer stopped making payments on the
loan. Appellant was subsequently involved in a high-speed chase with police while driving
No. 15AP-813                                                                                2

St. Meyer's vehicle, resulting in a crash and damage to the vehicle. The lienholder paid
$1,200 to remove the car from impoundment and sold it at auction for $2,000.
       {¶ 3} In a September 26, 2014 judgment entry, the trial court found appellant
guilty of theft, in violation of R.C. 2913.02, a fourth-degree felony; sentenced appellant to
18 months of incarceration, to be served consecutive to a term in a related attempted
failure to appear on recognizance case; and ordered restitution of $7,100. Appellant
appealed, and in Nigh, this court sustained appellant's first assignment of error finding
that the hearing before the trial court did not provide the information necessary for the
trial court to accurately ascertain the actual financial loss resulting from the theft and who
sustained that loss. We remanded the matter to the trial court for a determination of an
appropriate order of restitution.
       {¶ 4} On remand, the trial court held a restitution hearing. On July 28, 2015, the
trial court issued a judgment entry ordering restitution of $13,348.21 be paid to St. Meyer.
This amount, $13,348.21, represents the sum that the lienholder testified to at the
restitution hearing that St. Meyer owes the lienholder based on a civil judgment against
her. Appellant appeals the judgment of the trial court, asserting the following assignment
of error:
               The trial court erred by ordering restitution in an amount in
               excess of the economic loss sustained by the victim.

       {¶ 5} In his sole assignment of error, appellant argues that the trial court erred
when it ordered restitution in an amount in excess of the economic loss sustained by the
victim. Appellant argues that the trial court ordered him to pay restitution to St. Meyer in
the amount of $13,348.21, but the amount actually represents the amount of the
obligation St. Meyer owes to the lienholder. Appellant asserts that the appropriate
amount of restitution would be the amount to make St. Meyer whole, or the cost of repairs
to the vehicle or the diminution in value of the vehicle resulting from appellant's conduct.
Appellant contends that St. Meyer's default on the car loan is distinct from the amount of
economic loss she sustained as a result of appellant's conduct.
       {¶ 6} R.C. 2929.18(A)(1) permits a court to award restitution as part of a sentence
to compensate the victim for economic loss, but the amount ordered cannot be greater
than the amount of economic loss suffered as a direct and proximate result of the
No. 15AP-813                                                                                3

commission of the offense. Here, the State of Ohio, plaintiff-appellee, concedes that the
trial court erred in its award of restitution and could not base restitution on the amount of
the judgment against St. Meyer. The amount of the judgment, the state agrees, does not
reflect the amount of economic loss proximately caused by appellant's conduct because
the judgment was based on several factors unrelated to the crime, such as St. Meyer's
interest rate, down payment, and the amount of payments she had made prior to the
theft. Appellant and the state agree that the economic loss would be measured by the cost
of repairs directly attributable to appellant's conduct, or the diminution in the value of the
vehicle resulting from that conduct. Given the state's concession, we sustain appellant's
assignment of error and find the trial court erred in its restitution order.
       {¶ 7} Accordingly, appellant's single assignment of error is sustained, the
judgment of the Franklin County Court of Common Pleas is reversed, and this matter is
remanded to that court for proceedings in accordance with law, consistent with this
decision.
                                                  Judgment reversed and cause remanded.

                         DORRIAN, P.J., and SADLER, J., concur.

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