[Cite as State v. Ping,
2019-Ohio-2458.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-612
v. : (C.P.C. No. 17CR-5103)
Brandon Ping, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 20, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Yeura Venters, Public Defender, and Robert D.
Essex, for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
KLATT, P.J.
{¶ 1} Defendant-appellant, Brandon Ping, appeals the portion of the judgment and
sentence of the Franklin County Court of Common Pleas that imposed restitution to Chase
Bank. Because Chase Bank is not a victim of appellant's offense under R.C. 2929.18(A)(1),
we reverse.
FACTS AND PROCEDURAL HISTORY
{¶ 2} A Franklin County Grand Jury indicted appellant with one count of receiving
stolen property, a felony of the fifth degree. The indictment alleged in relevant part that on
or about April 12, 2017, appellant received, retained, or disposed of a credit card, the
property of Kelly Ireland, knowing or having reasonable cause to believe that the property
had been obtained through the commission of a theft offense and that the property involved
was a credit card.
No. 18AP-612 2
{¶ 3} Appellant pled not guilty and the case proceeded to a jury trial. At trial, it was
undisputed that appellant went to a retail establishment and purchased a bottle of e-liquid
(liquid that goes into a vaping pen) for $32.25 after tax. Appellant made this purchase with
a credit card belonging to Ireland. Appellant testified he was given the card by a friend
named Sebastian Kral and that he never looked at the card. He further testified he did not
know or have reasonable cause to know the card was obtained through a theft offense.
Apparently, Chase Bank credited the cardholder's account and bore the loss of appellant's
conduct.
{¶ 4} The jury returned a guilty verdict. At the sentencing hearing, the trial court
imposed (1) two years of community control with basic supervision; (2) six additional days
in the Franklin County Jail; (3) court costs; and (4) restitution to Chase Bank in the amount
of $32.25.
{¶ 5} Appellant appeals, assigning the following error:
The trial court erred in ordering restitution to Chase Bank as
they were not a "victim" under R.C. 2929.18.
LEGAL ANALYSIS
{¶ 6} In his sole assignment of error, appellant argues the trial court erred when it
ordered him to pay restitution to Chase Bank because Chase Bank was not the victim of his
offense under R.C. 2929.18(A)(1). Appellant points out that the indictment alleged that he
received the property (credit card) of Ireland. Appellant contends that, although Chase
Bank is a third-party who ultimately suffered a financial loss, it nevertheless was not the
victim of his offense. Based upon this court's recent decision in State v. Allen, 10th Dist.
No. 17AP-296, 2018-Ohio-1529, we agree.
{¶ 7} "[W]hen the issue is to whom restitution can be awarded, we apply a de novo
standard of review." Id. at ¶ 11, citing State v. Johnson, 10th Dist. No. 14AP-336, 2014-
Ohio-4826, ¶ 5.
{¶ 8} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as follows:
(A) Except as otherwise provided in this division and 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 felony may sentence the offender to any financial
sanction or combination of financial sanctions authorized
under this section or, in the circumstances specified in section
2929.32 of the Revised Code, may impose upon the offender a
No. 18AP-612 3
fine in accordance with that section. Financial sanctions that
may be imposed pursuant to this section include, but are not
limited to, the following:
(1) 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 imposes restitution, the
court shall order that the restitution be made to the victim in
open court, to the adult probation department that serves the
county on behalf of the victim, to the clerk of courts, or to
another agency designated by the court. If the court imposes
restitution, at sentencing, the court shall determine the amount
of restitution to be made 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 a hearing on restitution if the
offender, victim, or survivor disputes the amount. All
restitution payments shall be credited against any recovery of
economic loss in a civil action brought by the victim or any
survivor of the victim against the offender.
{¶ 9} The above-quoted statutory provision indicates that a trial court can order
restitution to four possible payees: the victim, the adult probation department that serves
the county on behalf of the victim, the clerk of courts, or another agency designated by the
court. The restitution order cannot exceed the victim's economic loss. "Economic loss" is
"any economic detriment suffered by a victim as a direct and proximate result of the
commission of an offense …." R.C. 2929.01(L); Allen at ¶ 13. Because a bank is not an
adult probation department, clerk of court, or another agency designated by the court, the
trial court could only order appellant to pay Chase Bank restitution if it was a "victim" of
his offense.
{¶ 10} R.C. 2929.18 does not define "victim." " 'The Ohio Revised Code contains a
number of different definitions for "victim" at various junctures in the Code, but at no point
is there promulgated a generally applicable definition that applies to the entire Revised
No. 18AP-612 4
Code or even to the state's criminal code, found in Title 29.' " Allen at ¶ 14, quoting State v.
Orms, 10th Dist. No. 14AP-750, 2015-Ohio-2870, ¶ 15.1
{¶ 11} As we noted in Allen, the majority of appellate courts have concluded that a
bank that reimburses its customer for this type of financial loss is not a victim for purposes
of R.C. 2929.18, and therefore, cannot be awarded restitution from a defendant. Allen at
¶ 16, citing Harris at ¶ 8; State v. Crum, 5th Dist. No. 12 CAA 08 0056, 2013-Ohio-903,
¶ 12; State v. Stump, 4th Dist. No. 13CA10,
2014-Ohio-1487, ¶ 12; State v. Kaiser, 2d Dist.
No. 24419,
2011-Ohio-5551, ¶ 16.2 This court in Allen expressly agreed with these appellate
decisions. Although recognizing that a third-party bank that reimburses a customer for a
financial loss due to forgery or credit card fraud has suffered an economic loss, the court in
Allen found that the third-party bank is not a victim of the offense. Therefore, a trial court
cannot order a defendant to pay restitution to such a third-party bank under R.C. 2929.18.
Allen.
{¶ 12} The state acknowledges that Allen is controlling authority on the issue
presented in this case and, based on that decision, we should reverse the order of the trial
court to eliminate the restitution order. We agree that Allen supports this result. Therefore,
we sustain appellant's sole assignment of error.
{¶ 13} For the foregoing reasons, we reverse the judgment of the Franklin County
Court of Common Pleas and vacate that portion of the judgment that orders appellant to
pay restitution to Chase Bank.
Judgment reversed; restitution order vacated.
SADLER and LUPER SCHUSTER, JJ., concur.
1 Some Ohio courts have relied on R.C. 2930.01(H)(1) to determine who qualifies as a victim for purposes of
restitution. See, e.g., State v. Thornton, 1st Dist. No. C160501, 2017-Ohio-4037, ¶ 15; State v. Hunter, 2d Dist.
No. 25521,
2013-Ohio-3759; State v. Harris, 6th Dist. No. WD-14-069,
2015-Ohio-4412, ¶ 9. That section
defines "victim" as "[a] person who is identified as the victim of a crime or specified delinquent act in a police
report or in a complaint, indictment, or information that charges the commission of a crime and that provides
the basis for the criminal prosecution." R.C. 2930.01(H)(1). However, other appellate districts have declined
to use this definition outside of R.C. Chapter 2930, noting that the definitions section expressly applies to that
chapter only. Allen at ¶ 14, citing State v. Cartwright, 12th Dist. No. CA2016-11-018,
2017-Ohio-7212, ¶ 13.
2 We note, however, in State v. Estes, 3d Dist. No. 13-11-14,
2011-Ohio-5740, the court appears to reach a
contrary result in finding that a third-party bank that ultimately bore the financial loss was a victim under
R.C. 2929.18.
