[Cite as State v. Hodge,
2020-Ohio-901.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. CT2019-0038
:
JOSEPH D. HODGE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2019-0119
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
DATE OF JUDGMENT ENTRY: March 9, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX OHIO PUBLIC DEFENDER
MUSKINGUM CO. PROSECUTOR CRAIG M. JAQUITH
27 North Fifth St 250 East Broad St., Ste. 1400
P.O. Box 189 Columbus, OH 43215
Zanesville, OH 43702
Muskingum County, Case No. CT2019-0038 2
Delaney, J.
{¶1} Appellant Joseph D. Hodge appeals from the April 17, 2019 Entry of the
Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on October 28, 2018, when Miranda Thomas discovered
two people were living in her house. During the ensuing series of extraordinary events,
appellant and his girlfriend Nikki Eblin attempted to steal the house from Thomas by,
among other things, recording a fake deed.
{¶3} In early 2017, Miranda Thomas was living with her mother in her mother’s
house on North Main Street in Roseville, Muskingum County. Thomas’ mother bought
the house in 2010 but was now in ill health and required the services of a nursing home.
Thomas’ mother therefore transferred title to the house to Thomas and her brother,
Marshall Sanderson. A few months later, due to Medicare/Medicaid complications, the
title was transferred into the name of Thomas alone. In early April 2017, Thomas’ mother
passed away.
{¶4} Thomas continued to live at the house with her two young children. All of
her own property was in the house, along with that of her mother and father. Thomas’
father passed away a few weeks after her mother. Items belonging to Sanderson were
also still in the house. Around August 2017, Thomas received a notice of delinquent taxes
on the property, and she paid them. In October 2017, she was served with a lawsuit by
her mother’s former nursing home, which sought to foreclose against the home to recover
fees for her mother’s care. Thomas hired an attorney specializing in real estate, Derrick
Moorehead, to represent her in the lawsuit.
Muskingum County, Case No. CT2019-0038 3
{¶5} Thomas periodically had problems with the boiler in the house, and in
January 2018 it stopped working altogether. Because it was winter and the house had
no heat, Thomas moved into her father’s former residence a few blocks away. Thomas
continued to drive by the house regularly and intended to eventually reside there.
{¶6} In June 2018, Thomas moved into her fiancé’s residence in Coshocton.
She continued to work in Crooksville, which allowed her to drive by and check on the
house regularly. At the end of July, however, her car broke down, and she stopped
working in Crooksville. She therefore drove by the Roseville residence less frequently.
She continued to check on the residence approximately every two weeks, however, when
her fiancé’s children had visitation.
{¶7} In mid-October, Moorehead advised Thomas that the nursing home
dismissed the lawsuit and was no longer pursuing the house; therefore, Thomas owned
the house free and clear. Thomas signed a note and Moorehead took a mortgage on the
property to cover his fees of $1900.
{¶8} On October 28, 2018, Thomas and her mother-in-law Wendy Yocum drove
together to drop off the children after visitation, and took the opportunity to check on the
Roseville house. The women were shocked to find the garage door open and an
unfamiliar truck parked in the driveway. A box truck and a smaller trailer were also parked
near the house. Thomas and Yocum dropped the children off before investigating further,
and called the Muskingum County Sheriff’s Department.
{¶9} While waiting for deputies to arrive, Thomas looked in the garage and found
it unrecognizable. The garage had previously been divided in half, functioning as a music
studio for her fiancé and a garage where Thomas stored her motorcycle. The motorcycle
Muskingum County, Case No. CT2019-0038 4
and the fiancé’s drums and music equipment were gone, replaced with property Thomas
didn’t recognize.
{¶10} Thomas proceeded into the house through an unlocked door, and found
more of the same inside. Some of the property of Thomas and her family was still present,
but most was missing and the house was unrecognizable. There was unfamiliar stuff
everywhere. Appliances were missing, there were holes in the walls, and entire
bathrooms had been ripped out. Thomas encountered appellant and his girlfriend, Nikki
Eblin, coming down the stairs. Thomas did not know either of them, and demanded to
know why they were in the house and where her property was. Appellant said this wasn’t
her house and she needed to get out. He said he bought the house on land contract and
Thomas demanded to know from who.
{¶11} As they argued, appellant and Eblin said they would call the police and
Thomas said police were already en route. Appellant stated, “Then I’ll shoot you and your
family,” pulling up his shirt and revealing what Thomas believed to be a firearm in his
waistband. Thomas said she, too, had a concealed-carry permit and a firearm, although
she had left it in the vehicle outside.
{¶12} Yocum and Sanderson were with Thomas; they exited the house and
Thomas called the sheriff again to tell them the person in her house had a gun. Deputies
arrived on the scene and questioned everyone. Appellant insisted he was buying the
house on land contract. Deputies were unable to determine who was in lawful possession
of the house, told the parties it was a “civil matter,” and suggested Thomas should file an
eviction. The first deputy on the scene testified at trial that his report writing on this case
Muskingum County, Case No. CT2019-0038 5
was “poor,” admitting that Yocum and Thomas told him appellant had a firearm but he
neglected to document the allegation in the report.
{¶13} The parties remained on the scene after deputies left. Thomas and Yocum
were in front of the house and Yocum leaned on the fence. Appellant came out of the
house and put something under the front seat of his truck. He angrily demanded that
Yocum move her car, and when she was slow to respond, he picked up what Yocum
described as a “tire thumper” and menaced her with it, striking the fence close to her.
Deputies returned to the scene and warned Thomas and Yocum that a civil matter could
become criminal if they didn’t leave.
{¶14} Thomas arrived at Derrick Moorehead’s office early the next day (October
31) and he prepared a three-day eviction notice for her. Thomas returned to the house
with a police officer to post the three-day notice. Three days later, the occupants had not
vacated the premises. Thomas drove by the property and noticed more of her own
personal property stacked up outside in a fire pit. She drove to the Roseville police
department, which is only a half-block from the house. The house is visible from the
parking lot; as Thomas spoke to Chief Carr, they observed heavy black smoke coming
from the backyard of the residence. Carr found appellant in the backyard with a very
large fire. Carr demanded that appellant put the fire out but had to call the fire department
because the fire became too big for appellant to contain. The fire consumed a large
amount of Thomas’ personal property.
{¶15} Appellant was angry that the fire department was involved. Carr told
appellant he was “squatting” at the residence, but appellant told him to speak to his
Muskingum County, Case No. CT2019-0038 6
girlfriend because they were legally entitled to be there. Eblin claimed the utilities were
in their names, and produced a gas bill as confirmation.
{¶16} The eviction hearing was not scheduled until November 21. Prior to the
hearing, Moorehead spoke to appellant in the hallway and asked why he thought he was
entitled to remain in possession of the property. To Moorehead’s astonishment, appellant
produced a deed to the property, signed by Thomas as grantor and appellant as grantee,
purporting to have transferred the property in April 2018.
{¶17} Thomas denied all knowledge of the deed and told Moorehead she never
sold the property to anyone. She pointed out that she could not have sold the property
even if she wanted to in light of first the nursing-home lawsuit and then Moorehead’s
mortgage on the property. Thomas insisted it was not her signature on the deed, but her
purported signature was notarized.
{¶18} As Moorehead and Thomas discussed the deed, Thomas was served with
an ex-parte civil protection order obtained against her by Eblin. The immediate effect of
the C.P.O. was that Thomas was not permitted to be in the courtroom during the eviction
proceeding and she had to surrender her firearms.
{¶19} Meanwhile, Judge Scott Raskin of the Muskingum County Court of
Common Pleas presided over the eviction hearing and was also surprised when appellant
produced the deed establishing ownership of property. Judge Raskin treated the deed
as a motion to dismiss the eviction. Moorehead moved to continue the eviction so he
could investigate further, despite the fact that a continuance would enable appellant and
Eblin to remain in the house. Judge Raskin agreed to continue the eviction.
Muskingum County, Case No. CT2019-0038 7
{¶20} Appellant presented the deed for filing at the Muskingum County Recorder’s
Office and it was duly recorded. As of the date of trial, appellant was still the record owner
of the property. Moorehead testified that he would have to file a declaratory judgment
action on Thomas’ behalf to have the deed struck from the chain of title.
{¶21} Throughout the eviction proceeding Moorehead was genuinely puzzled
because he believed Thomas to be a truthful person, but her signature on the purportedly
fake deed was notarized. Moorehead contacted the notary, Amy Adams, who said she
remembered notarizing Thomas’ signature and that she always asks to see a signatory’s
identification. She added, though, that she would not recognize Thomas if she saw her
again. Moorehead found the conversation strange and began to suspect it was possible
that the notary worked with appellant to falsify the deed.
{¶22} Moorehead was convinced the deed was fake when he obtained the report
of the Muskingum County Sheriff’s Department from the confrontation at the house on
October 28. At that time, appellant and Eblin claimed they bought the house on land
contract from a mortgage company; now, a month later, they produced a fake deed and
claimed they purchased the house from Thomas in April.
{¶23} Moorehead contacted Detective Ross to urge further investigation of
Thomas’ allegations, finally yielding results. On December 6, 2018, Thomas was restored
to possession of her home. Unfortunately, the home was full of someone else’s property
and very little of Thomas’ possessions remained. She found some of her property for
sale on Facebook Marketplace by appellant and Eblin, including her fiancé’s drum set
and guitar, her own china cabinet, her mother’s hospital bed, and her stepson’s golf bag.
Muskingum County, Case No. CT2019-0038 8
{¶24} Throughout the house, Thomas found legal reference books about real
estate, property transfers, and deeds. She found notebooks containing attempts to
reproduce her signature.
{¶25} Amy Adams, the notary, testified on appellee’s behalf at trial. She is a
longtime friend of Eblin and also knows appellant. Eblin purportedly sold her own home
and had nowhere to live with her children; she told Adams she and appellant “found” an
abandoned home which they planned to move into and “flip.” Eblin told her that if they
moved into the house and took care of it, it would be theirs because no one else wanted
it. At one point Eblin brought Adams to the house and she looked around inside. Then
Adams learned someone came forward to assert ownership of the house, and appellant
therefore needed a deed. He and Adams had several conversations about Adams falsely
notarizing the signature of the grantor but at first Adams was “on the fence.” Eventually
she agreed to notarize the signature, however, because she was doing appellant and
Eblin a favor. Adams learned there were problems surrounding the deed when an
attorney [Moorehead] contacted her to ask about the circumstances of Thomas’
signature. At trial Adams admitted she lied to Moorehead and Detective Ross, telling
both that Thomas was present in front of her when she signed the deed. Adams admitted
this was not true and acknowledged she would be charged with a crime for misuse of her
notary.
{¶26} Appellant was charged by indictment with one counts of aggravated
burglary pursuant to R.C. 2911.11(A)(1), a felony of the first degree [Count I]; one count
of aggravated burglary pursuant to R.C. 2911.11(A)(2), a felony of the first degree [Count
II]; one count of forgery pursuant to R.C. 2913.31(A)(1), a felony of the fifth degree [Count
Muskingum County, Case No. CT2019-0038 9
III]; one count of vandalism in an amount greater than $7500 and less than $150,000
pursuant to R.C. 2909.05(A), a felony of the fourth degree [Count IV]; one count of arson
in an amount over $1000 pursuant to R.C. 2909.03(A)(1), a felony of the fourth degree
[Count V]; one count of tampering with evidence pursuant to R.C. 2921.12(A)(2), a felony
of the third degree [Count VI]; one count of uttering pursuant to R.C. 2913.31(A)(3), a
felony of the fifth degree [Count VII]; one count of tampering with records pursuant to R.C.
2913.42(A)(2), a felony of the third degree [Count VIII]; one count of engaging in a pattern
of corrupt activity pursuant to R.C. 2923.32(A)(1), a felony of the first degree [Count IX];
and one count of engaging in a pattern of corrupt activity pursuant to R.C. 2923.32(A)(2),
a felony of the first degree [Count X]. Counts I and II were accompanied by firearm and
repeat-violent-offender (R.V.O.) specifications. Counts IX and X were accompanied by
firearm specifications.
{¶27} Appellant entered pleas of not guilty and the matter proceeded to trial by
jury, wherein appellant was found guilty as charged. The jury did find, however, that
appellee failed to prove appellant had a firearm on or about his person while committing
the offenses, and appellant was thus cleared of all four firearm specifications. The trial
court convicted appellant of both R.V.O. specifications. The trial court continued the
matter for sentencing. Appellant appeared for sentencing and the trial court imposed a
total aggregate prison term of 20 years.
{¶28} Appellant now appeals from the judgment entry of his convictions and
sentence.
Muskingum County, Case No. CT2019-0038 10
{¶29} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶30} “I. PROSECUTORIAL MISCONDUCT DENIED MR. HODGE A FAIR
TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HIS FIFTH, SIXTH, AND
FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATE CONSTITUTION,
ARTICLE I, SECTIONS 10 AND 16, OF THE OHIO CONSITUTION.”
{¶31} “II. MR. HODGE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.”
{¶32} “III. THE TRIAL COURT’S RESTITUTION ORDER FOR $184,900 WAS
NOT ADEQUATELY SUPPORTED BY THE RECORD.”
ANALYSIS
I.
{¶33} In his first assignment of error, appellant argues prosecutorial misconduct
deprived him of a fair trial. We disagree.
{¶34} The test for prosecutorial misconduct is whether the prosecutor's remarks
and comments were improper and if so, whether those remarks and comments
prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d
160, 166,
555 N.E.2d 293 (1990), cert. denied,
498 U.S. 1017,
111 S.Ct. 591,
112 L.Ed.2d
596 (1990). In reviewing allegations of prosecutorial misconduct, we must review the
complained-of conduct in the context of the entire trial. Darden v. Wainwright,
477 U.S.
168, 184,
106 S.Ct. 2464,
91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not
provide a basis for reversal unless the misconduct can be said to have deprived appellant
Muskingum County, Case No. CT2019-0038 11
of a fair trial based on the entire record.
Lott, supra,51 Ohio St.3d at 166,
555 N.E.2d
293. Appellant points to a number of instances of alleged prosecutorial misconduct and
argues that the cumulative effect of these examples deprived him of a fair trial.
{¶35} Appellant cites a number of instances of alleged prosecutorial misconduct
during opening statement, closing argument, and direct examination of Thomas. We note
appellant did not object to the alleged improper comments at trial. If trial counsel fails to
object to the alleged instances of prosecutorial misconduct, the alleged improprieties are
waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22, 1998–Ohio–363,
693
N.E.2d 772 (1998), citing State v. Slagle,
65 Ohio St.3d 597, 604,
605 N.E.2d 916 (1992).
{¶36} We therefore review appellant's allegations under the plain-error standard.
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” The rule places
several limitations on a reviewing court's determination to correct an error despite the
absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a
legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious'
defect in the trial proceedings,” and (3) the error must have affected “substantial rights”
such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,
5th Dist. No.2008–CA–00137, 2009–Ohio–1688, citing State v. Morales, 10 Dist. Nos.
03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19. The decision to correct a plain error is
discretionary and should be made “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53
Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus.
Muskingum County, Case No. CT2019-0038 12
{¶37} First, appellant argues the prosecutor undermined the presumption of
innocence in opening statement with the assertion that “just because we are down here
and having a trial does not mean that there is a great big mystery to solve,” a comment
that was repeated in closing argument. We disagree with appellant’s characterization
and find the comment to be innocuous in the context of the entire opening statement and
closing argument. Appellant further argues the prosecutor vouched for Thomas’
credibility by reminding the jury that Moorehead found Thomas to be a truthful person,
and inflamed the jury with reference to appellant’s “outrageous conduct.” In the context
of the trial as a whole, we find appellant’s argument to be overstating the import of these
comments. The prosecutor’s statements were also accurate summaries of the evidence.
{¶38} Appellant fails to point to any improper statement by the prosecutor which
is not arguably supported by appellee's evidence. State v. Meeks, 5th Dist. No.
2014CA00017, 2015-Ohio-1527,
34 N.E.3d 382, ¶ 103. In closing argument, a
prosecutor may comment on “what the evidence has shown and what reasonable
inferences may be drawn therefrom.”
Id., citing State v. Lott,
51 Ohio St.3d 160, 165,
555
N.E.2d 293 (1990). Appellant argues the prosecutor vouched for Thomas’ credibility
during her direct examination but we again disagree with his characterizations of the
record. Upon our review, we find the cited comments to be reasonable inferences from
the evidence.
{¶39} Finally, appellant has failed to demonstrate prejudice based upon any of the
prosecutor's comments he cites. “Appellant does not identify any connection between the
alleged misconduct and his conviction. …. [T]he trial court clearly believed, and the
record reflects, that the prosecutor's theory of the case was relevant as to certain issues.
Muskingum County, Case No. CT2019-0038 13
Appellant's pure speculation as to how the jury might overreact to this evidence is not the
kind of ‘but for’ argument that will support a finding of misconduct.” Meeks, supra, 2015-
Ohio-1527 at ¶ 105, citing State v. Carmichael, 7th Dist. Columbiana No. 11 CO 23, 2013-
Ohio-2178,
2013 WL 2325849, ¶ 14. None of the evidence or arguments cited by
appellant are improper, and appellant cannot demonstrate, even if they were improper,
“but for” the evidence and arguments he would not have been convicted. Having failed to
demonstrate a causal connection between the alleged misconduct and his resulting
convictions, appellant cannot demonstrate reversible error.
{¶40} If a prosecutor's comments are found to be improper, it is not enough that
there is sufficient evidence to otherwise sustain a conviction. “Instead, it must be clear
beyond a reasonable doubt that absent the prosecutor's comments, the jury would have
found defendant guilty.” State v. Clay, 181 Ohio App.3d 563, 2009–Ohio–1235,
910
N.E.2d 14 at ¶ 49 (8th Dist.), citing State v. Smith,
14 Ohio St.3d 13,
470 N.E.2d 883
(1984). Appellant cannot demonstrate, even if any of the cited comments were improper,
“but for” the comments he would not have been convicted. Appellee presented substantial
uncontroverted evidence of appellant’s guilt. Having failed to demonstrate a causal
connection between the alleged misconduct and his resulting convictions, therefore,
appellant cannot demonstrate reversible error.
{¶41} Appellant’s first assignment of error is overruled.
II.
{¶42} In his second assignment of error, appellant argues he received ineffective
assistance of defense trial counsel. We disagree.
Muskingum County, Case No. CT2019-0038 14
{¶43} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’”
Id. at 689, citing Michel v. Louisiana,
350 U.S. 91, 101,
76 S.Ct. 158
(1955).
{¶44} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.”
Id. at 690.
{¶45} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
{¶46} Appellant first asserts trial counsel was ineffective in failing to object to the
cited instances of alleged prosecutorial misconduct. Trial counsel's failure to object to
the alleged misconduct could be reasonably interpreted as tactical decisions designed to
not bring attention to what may or may not be objectionable matter, so we reject the
assertion that the failure to object is evidence of ineffective assistance of counsel. State
v. Lawson, 5th Dist. Morrow No. 17CA0008, 2018-Ohio-4673, ¶ 41, appeal not
Muskingum County, Case No. CT2019-0038 15
allowed,
155 Ohio St.3d 1405,
2019-Ohio-944,
119 N.E.3d 433. Because this appears
to be a reasonable tactical decision we cannot convert it to a judicial error. Id., citing State
v. Clayton,
62 Ohio St.2d 45, 46–47,
402 N.E.2d 1189 (1980); State v. Noggle,
140 Ohio
App.3d 733, 746,
749 N.E.2d 309 (3d Dist.2000), additional citations omitted.
{¶47} Next, appellant argues defense trial counsel was ineffective in failing to
object to Moorehead’s testimony as a “de facto expert witness.” Evid.R. 701 provides
that a lay witness may provide opinion testimony where the witness's opinion is rationally
based upon the perception of the witness and helpful to a clear understanding of his
testimony or the determination of a fact in issue.
{¶48} In the instant case, Moorehead’s testimony about the authenticity of the
deed, and the significance of the notebooks and legal encyclopedias left behind by
appellant and his accomplice, were based upon his perceptions as a fact witness and
Thomas’ personal real-estate attorney who was involved in the eviction proceeding and
was in a unique position to investigate the alleged sale of Thomas’ residence. His opinion
was helpful in describing the significance of the legal materials found in the house and
the recording of the deed. Appellant does not assert upon what basis defense trial
counsel should have objected to Moorehead’s testimony. Moreover, we find no
reasonable probability that if counsel had objected to Moorehead’s testimony, the result
of the proceeding would have been different.
{¶49} Appellant has not established ineffective assistance of defense trial
counsel. The second assignment of error is overruled.
Muskingum County, Case No. CT2019-0038 16
III.
{¶50} In his third assignment of error, appellant argues the trial court’s restitution
order was not adequately supported by the record. For the following reasons, we agree,
and therefore sustain this assignment of error.
{¶51} We review restitution orders under an abuse-of-discretion standard. State
v. Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996,
2018 WL 1358039, ¶ 15,
citing State v. Cook, 5th Dist. Fairfield No. 16-CA-28,
2017-Ohio-1503,
2017 WL
1436377, ¶ 8; State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio-
7389,
2016 WL 6138888, ¶ 40. We also recently reiterated that an order
of restitution must be supported by competent and credible evidence from which the trial
court can discern the amount of restitution to a reasonable degree of certainty.
Sheets,
supra, citing State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019,
2017-Ohio-59,
2017 WL 90619, ¶ 44 (citations omitted); State v. Frank, 5th Dist. No. CT2017-0102,
2018-Ohio-5148,
127 N.E.3d 363, ¶ 64. Furthermore, a trial court abuses its discretion if
it orders restitution in an amount that does not bear a reasonable relationship to
the actual loss suffered.
Id. (citations omitted).
{¶52} At sentencing, appellant was summarily ordered to pay restitution in the
amount of $184,900, and Thomas is designated as the payee of the restitution order in
the sentencing entry. Appellant asserts this restitution amount is not supported by
competent, credible evidence in the record. Appellee responds that Thomas provided
“receipts and quotes” which the trial court reviewed, but we are unable to find evidence
of this documentation in the record. Appellee has attached the transcript of co-defendant
Eblin’s sentencing hearing at which the issue of restitution was addressed in considerably
Muskingum County, Case No. CT2019-0038 17
more depth. Eblin’s sentencing hearing reveals that the trial court first rejected the
requested restitution amount of $184,900, but then upon reconsideration ordered that
amount because it was “attached to the presentence investigation [of Eblin].” The P.S.I.
in the instant case is not in the record before us, and the trial court did not reference the
P.S.I. in ordering restitution, so we are unaware of what documentation may exist
supporting the ordered amount.
{¶53} We are left with a void of competent, credible evidence supporting the
restitution in the instant case, although such evidence may exist. We are thus unable to
determine whether the trial court abused its discretion in reconsidering the amount which
it first deemed excessive. We find insufficient evidence to support the $184,900
restitution order, grant appellant’s third assignment of error, and remand this matter for a
restitution hearing. State v. LaFever, 5th Dist. Morrow No. 2009CA0003, 2009-Ohio-
5471, ¶ 28.
{¶54} Appellant’s third assignment of error is sustained, the restitution order is
reversed and vacated, and the matter is remanded for a restitution hearing.
Muskingum County, Case No. CT2019-0038 18
CONCLUSION
{¶55} Appellant’s first and second assignments of error are overruled and his third
assignment of error is sustained. The judgment of the Muskingum County Court of
Common Pleas is affirmed in part and reversed in part, and this matter is remanded for
further proceedings.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.
