[Cite as State v. Lang,
2024-Ohio-3157.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
CASE NO. 16-23-10
PLAINTIFF-APPELLEE,
v.
AMBER L. LANG, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 22-CR-0125
Judgment Affirmed
Date of Decision: August 19, 2024
APPEARANCES:
Howard A. Elliott for Appellant
Alicia A. Lentz-Conley for Appellee
Case No. 16-23-10
MILLER, J.
{¶1} Defendant-Appellant, Amber L. Lang (“Lang”), appeals the December
21, 2023 judgment issued by the Wyandot County Court of Common Pleas
following her guilty plea. This appeal concerns whether the trial court properly
computed the amount of restitution arising from Lang’s theft conviction. Lang
claims that at least some of the restitution awarded includes amounts for offenses
she did not commit and includes amounts for which the victim was separately
reimbursed by a third party. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Indictment, Plea, and Sentence
{¶2} On November 9, 2022, Lang was indicted for theft, in violation of R.C.
2913.02(A)(1). The Indictment charged that, on or about June and July of 2022,
Lang deprived Ridi’s Convenience Stores (“Ridi’s”) of lottery tickets with a value
in an amount greater than $7,500 but less than $150,000, without Ridi’s consent.
Given the alleged value, the charged offense was a fourth-degree felony.
{¶3} Lang subsequently pleaded guilty to the offense. The trial court
sentenced Lang to serve three years of community control, serve 45 days in jail, and
pay restitution to Ridi’s in an amount to be determined after a hearing. The
restitution hearing took place on August 18 and November 28, 2023.
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B. Evidence Presented at the Restitution Hearing
{¶4} Lang worked for Ridi’s, which owns several convenience stores. She
was the district manager in charge of the store at the Carey, Ohio location—which
is where the theft occurred. Among her other duties, Lang was responsible for
“handling the lottery,” i.e., overseeing the lottery reconciliation at the store.
(Hearing Tr. at 139-144).
{¶5} Importantly, the lottery tickets at issue in this case were scratch-off
tickets. Witnesses explained that, in the usual course of business, the Ohio Lottery
Commission (“Commission”) sends a pack of lottery tickets to a store; the store
makes the lottery tickets available for purchase to customers; a purchased ticket is
rung up and activated, and the store collects the ticket’s purchase price—which is
printed on the ticket’s face; and, the store is charged by the Commission for the pack
of lottery tickets once the last ticket in the pack is sold. Thus, at the time the last
ticket in a pack is sold, the number of tickets a store purchased should correspond
with the number of tickets the store sold.
{¶6} The Commission has a point-of-sale (POS) system that tracks all ticket
sales and activated tickets electronically, thereby relieving the store of having to
inform the Commission of its sales. Using its POS system, the Commission
generates and sends out weekly invoices showing a store’s sales and pay-outs (for
winnings). Thus, the weekly invoices showed Ridi’s what its sales were at the store
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on a weekly basis and how much money the Commission would take out of Ridi’s
bank account for payment.
{¶7} Bonnie Ignat (“Ignat”) was the controller and accountant for Ridi’s.
She had a bachelor’s degree in accounting and 25 years of experience working at a
certified public accountant firm. Ignat explained that she recorded all lottery sales
and winnings based on what was entered in the store’s own POS system, which was
separate from the Commission’s POS system.
{¶8} Ignat realized something was wrong when she discovered that Ridi’s
bank account had a negative balance because the Commission had pulled out more
money than the account contained, i.e., it overdrew the account. Upon reviewing
the store’s records, the recorded lottery ticket sales were insufficient to justify the
amount of money the Commission had withdrawn from the account. The store’s
owner testified that, upon questioning Lang about the discrepancy between the two
POS systems, Lang admitted to stealing lottery tickets.
{¶9} The police got involved, with Charles Seeley of the Upper Sandusky
Police Department (“Detective Seeley”) leading the investigation. During Detective
Seeley’s interview of Lang, she did not deny stealing lottery tickets. According to
Detective Seeley, he confronted her about playing 53 lottery tickets a day during the
height of her theft, asked if that would surprise her, and she said “no.” Lang told
him “that she had been going through a lot of life issues and that she had started . .
. taking lottery tickets and scratching them as a way of relieving her stress and
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anxiety.” (Hearing Tr. at 9). Lang said that things in her life had recently gotten
worse, and she started taking more and more lottery tickets in the past couple of
months.
{¶10} In her interview with Detective Seeley, Lang denied there was anyone
else involved in the theft. Although Lang said two other people were present when
she scratched off some of the tickets, she did not know if they would have
understood whether the tickets had been paid for or stolen. Based on Detective
Seeley’s investigation, there was nothing to indicate anyone else was involved in
the theft.
{¶11} At the request of Ridi’s owner, Ignat conducted a formal accounting
of profits and losses for the store’s lottery sales. Using accounting software, she
compared the sales numbers from the store’s POS system to the Commission’s
invoices for the bank withdrawals—which indicated what the Commission
maintained the store had sold. Ignat also created a spreadsheet that showed a side-
by-side comparison of the store’s numbers with the Commission’s numbers. The
spreadsheet covered the time period from the beginning of January 2022 through
the end of July 2022. Although what the store collected and sold should have
matched what the Commission said the store collected and sold, Ignat said that was
not the case. The discrepancies between the two significantly increased in June and
July of 2022. Ignat subtracted the difference between the Commission’s numbers
and the store’s numbers to come up with a figure for the store’s loss. Based on her
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analysis and accounting, the amount Ignat deemed attributable to the theft of lottery
tickets was approximately $117,000.1
{¶12} Ignat testified that Ridi’s had paid that entire amount to the
Commission. Doing so required Ridi’s to move money into its deficient bank
account from other sources. Ridi’s and Detective Seeley also contacted the
Commission for information regarding the amount of winnings paid out. Ticket
sales are distinguishable from winnings distributed for a winning ticket. Stores are
reimbursed by the Commission for winnings that a store provides to a customer with
a winning ticket, but not for the purchase price of a ticket. Ignat explained that the
Commission had “compensated [the store] for any winnings, winning ticket that was
turned in,” but the store was “not compensated for the cost of the original ticket that
was not purchased because it was stolen.” (Hearing Tr. at 57). Ignat clarified that
the $117,000 figure was the cost to Ridi’s of the stolen tickets; that figure did not
include any winnings reimbursed by the Commission to Ridi’s.
{¶13} The following exchange took place during Ignat’s testimony regarding
the spreadsheet she made:
Q: … How much of this spreadsheet can you attribute to
Amber Lang based on your accounting?
A: Based on my accounting, all I can attribute is that we
lost 117,000. As to who took that money, I cannot
1
Among other exhibits admitted during the hearing were the profit-and-loss statement, the spreadsheet, and
a statement of weekly invoices from the Commission from January 2022 through July 2022.
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account for that. . . . All I know is that is what we are
missing.
Q: And do you -- is it your testimony that that missing
amount is due to theft?
A: Yes.
Q: Okay. And how do you know that?
A: Because if it wasn’t theft, I would have the cash in the
bank account.
Q: And I just want to be clear on this. You were
compensated for winnings?
A: Yes.
Q: Not the cost of tickets?
A: Correct.
(Id. at 74). Ignat further explained: “[I]f the tickets were actually sold, [Ridi’s]
would have collected the money and [Ridi’s] would have had the money in hand to
pay the lottery” and its “bank account would not have come up negative week after
week.” (Id. at 60).
{¶14} Ignat also explained how Lang could have committed the theft: the
Commission will not “pay out a winning ticket if [it] can’t say that this winning
ticket was purchased,” so after she scratched off the ticket, Lang “had to have
scanned the [winning] lottery tickets saying that they were sold with the lottery,”
but “[s]he just did not put the cash in [the store’s] register and if [it was] a losing
ticket, she threw it away.” (Id. at 77). On cross-examination, Ignat admitted it was
possible some of the discrepancy between the store’s and the Commission’s sales
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numbers could be from an accounting error or from an employee forgetting to scan
a ticket.
{¶15} Lang testified in her defense. She said she never took any money from
Ridi’s except for winnings from the tickets she played. She also did not believe any
of the money “missing in this case” was “winnings from when [she] played” the
lottery at the store. (Hearing Tr. at 149). According to Lang, her coworkers knew
what she was doing, all of them played the lottery while working at the store, and
they played the same way that she played. However, Lang did not identify the time
frame in which her coworkers played the lottery, and she admitted she did not know
whether they ever cashed out at the end of their shift because she was not there the
entire time they played. Lang also admitted on cross-examination that she did not
know how many lottery tickets she played on a daily basis, and she was unsure
whether or not she played more than 50 tickets a day at the height of the theft.
{¶16} Lang called one of her former co-workers, Brandy Rochester
(“Rochester”), to testify. Rochester acknowledged that she and all other employees
played the lottery while working at the store. However, like Lang, she did not
identify the time frame in which they played the lottery. In fact, she admitted that
she did not know when she and Lang started playing the lottery together at work,
and she volunteered that she is “not good with time frames.” (Id. at 172). Notably,
the following exchange occurred during Rochester’s testimony:
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Q: … [Y]ou always paid for your tickets?
A: Yes.
Q: Okay. So there was never any money missing --
A: No.
Q: -- from your playing lottery?
A: No.
Q: And same for Amber as well?
A: As far as I know. What I seen was it was always taken
care of.
Q: Okay. All right. But you knew that there was some
money missing as far as the lottery system was
concerned?
A: When it came to the computer and things being off in
the computer, it was just numbers. I didn’t realize – I
don’t know, I’m kind of dumb like that, but I didn’t
realize that it was actually money.
...
Q: [Y]ou said that everyone played [the lottery while
working at the store]. Was, uh -- Did management
know about this? Did the owners know about this?
A: Not to my knowledge.
Q: But it wasn’t hidden from management, was it?
A: No.
Q: No. And, um, you said at the time you didn’t really
know it was wrong?
A: I didn’t know it was illegal to do that.
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Q: Okay.
A: I mean cause what I seen, it was paid for.
(Id. at 170-171, 177).
{¶17} Detective Seeley testified in rebuttal that he had explored whether or
not there were any other suspects. Ridi’s did not provide him with any other
suspects, and Lang had denied anyone else was knowingly involved.
C. Restitution Order
{¶18} In its judgment entry following the restitution hearing, the trial court
made the following findings and conclusions concerning restitution:
The Court has considered the testimony and review of the Exhibits
and has heard the arguments of Counsel as to the issue of restitution.
...
After reviewing all of the evidence, the Court finds a couple pieces of
evidence compelling. One was the testimony of one of the owners of
the store indicating the great amount of losses were rather late during
the period. This is confirmed by the lottery analysis of the Carey store
that has a review of everything for 2022 beginning the week of
January 8, 2022. Looking at the pattern during that time, figures were
fairly consistent all along. . . .
Before the week ending May 21, 2022, there was an average loss of
about $317.00 a week, which is somewhat consistent with what one
of the owners advised that they would not always balance out, and that
there would be some sort of differences from week to week.
. . . Starting [the week ending May 21, 2022], the losses bec[a]me
much larger and consistent. There were no surpluses after that. It
greatly increased to more than $10,000.00 a week, beginning in July.
All things considered, that is where the clear theft occurred. The
Court is going to base the restitution on the figures from May 21, 2022
through the end of July 2022. When those losses are added up for
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those weeks, that totals $106,013.00. [In comparison,] [t]he total
losses for [all of] 2022 [were] $112,029.00. . . .
From the $106,013.00, the Court deducted the average loss from
preceding weeks of $317.00 per week, which results in a total
reduction in the amount of $3,483.00.
As a result, the Court finds that restitution is owed in the amount of
$102,530.00 . . .
(Dec. 21, 2023 Judgment Entry at 6-7). This appeal followed.
II. ASSIGNMENT OF ERROR
Lang raises a single assignment of error for our review:
Assignment of Error
The trial court abused its discretion and committed reversible error in
failing [sic], as for order of restitution that it was not supported by
substantial and credible evidence, and did not indicate the actual
economic loss that was directly and proximately related to the criminal
activity of the Defendant/Appellant.
III. DISCUSSION
{¶19} In the assignment of error, Lang argues the trial court did not properly
compute the amount of restitution arising out of her conviction for theft. She
specifically argues that “the court ordered restitution for offenses she did not
commit or alternatively made her responsible for the losses that apparently can be
attributable to everyone else in the store who is playing the lottery.” (Appellant’s
Brief at 12). She asserts that doing so did not comport with legal standards for
imposing restitution and violated her due process rights. She asks that we reverse
the order for restitution and remand the matter to the trial court with instructions to
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impose restitution in the amount of $7,500, i.e., the minimum in the range for fourth-
degree felony theft.
A. Standard of Review
{¶20} “We review a trial court’s order of restitution for an abuse of
discretion.” State v. Dingledine, 2023-Ohio-4256, ¶ 7 (3d Dist.). A trial court
abuses its discretion when its conduct is unreasonable, arbitrary, or unconscionable.
State v. Hill,
2022-Ohio-4544, ¶ 9. A decision is arbitrary if it is made without
consideration of, or regard for, facts or circumstances.
Id. A decision may also be
arbitrary if it is without an adequate determining principle.
Id.
B. Applicable Law
{¶21} “Restitution in Ohio is limited to economic losses suffered by the
victim as a direct and proximate result of the commission of the offense.” State v.
Yerkey, 2022-Ohio-4298, ¶ 1. Specifically, the statute governing financial sanctions
provides, in relevant part:
(A) . . . [T]he court imposing a sentence upon an offender for a felony
. . . shall sentence the offender to make restitution pursuant to this
section and [R.C. 2929.281]. . . . Financial sanctions . . . include, but
are not limited to, the following:
(1) Restitution by the offender to the victim of the offender’s
criminal offense or the victim’s estate, in an amount based on the
victim’s economic loss. . . . At sentencing, the court shall
determine the amount of restitution to be made by the offender.
The victim, victim’s representative, victim’s attorney, if
applicable, the prosecutor or the prosecutor’s designee, and the
offender may provide information relevant to the determination of
the amount of restitution. The amount the court orders as
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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. . . . The court shall hold a hearing on
restitution if the offender, victim, victim’s representative, or
victim’s estate disputes the amount. . . .
R.C. 2929.18(A)(1); see also R.C. 2929.281 (amount of restitution). “Economic
loss” is defined as “any economic detriment suffered by a victim as a direct and
proximate result of the commission of an offense.” R.C. 2929.01(L); see also R.C.
2929.281(A) (non-exhaustive list of items that qualify as “economic loss”). In line
with this law, restitution may be ordered only for those acts constituting the crime(s)
for which the defendant was convicted. State v. Miller, 2009-Ohio-6157, ¶ 3 (3d
Dist.); see also State v. Rohrbaugh,
2010-Ohio-6375, ¶ 17 (3d Dist.) (“[m]any Ohio
courts, including this court, have recognized that restitution must be limited to the
offenses for which a defendant is charged and convicted”).
{¶22} “The court shall determine the amount of full restitution by a
preponderance of the evidence.” R.C. 2929.18(A)(1). “A preponderance of the
evidence is defined as that measure of proof that convinces the judge or jury that the
existence of the fact sought to be proved is more likely than its nonexistence.” State
ex rel. Doner v. Zody, 2011-Ohio-6117, ¶ 54. The type of evidence upon which the
sentencing court may rely in determining the amount of restitution is broad. E.g.,
Miller at ¶ 5; State v. Halcomb,
2013-Ohio-1301, ¶ 31 (3d Dist.) (affirming
restitution amount where the prosecution presented competent, credible evidence,
by way of testimony and exhibits, of the actual amount of loss suffered by the victim
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as a result of defendant committing aggravated burglary). “The weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of fact.”
State v. Alexander, 1999 WL 446432, *3 (3d Dist. June 30, 1999) (affirming amount
of restitution ordered by trial court following restitution hearing).
C. Analysis
{¶23} Based on evidence presented during the hearing, and recited above,
there was competent, credible evidence to support the trial court’s finding that the
restitution amount awarded was a direct and proximate result of Lang’s theft. The
trial court’s methodology was reasonable, not arbitrary, and consistent with the
evidence and time frame charged in the Indictment (to which Lang pleaded guilty).
See State v. Perkins, 2019-Ohio-3993, ¶ 8, 11-12, 32 (11th Dist.) (affirming
restitution amount stemming from theft of lottery tickets, where “the amount of
restitution requested by the state is supported by competent, credible evidence in the
form of [the] testimony” from the victim’s part-owner and manager).
{¶24} Lang argues that “any incorporation of winnings on the tickets is not
properly restitution.” (Appellant’s Brief at 11). However, the evidence did not
indicate winnings paid out by Ridi’s and reimbursed by the Commission were
included in the restitution awarded. On the contrary, the evidence indicated that the
reimbursements made by the Commission were specifically not included in the
accounting made by Ignat that the trial court relied on in its decision. Moreover, if
Lang had not stolen those winning scratch-off tickets, then they would have been
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sold to paying customers; Ridi’s would have paid out the winnings to those
customers, and the Commission would have reimbursed Ridi’s for those payments.
In short, the amount of reimbursement from the Commission is different from the
amount awarded in restitution for Ridi’s losses caused by Lang’s theft (i.e., the cost
of the tickets).
{¶25} Finally, we do not agree with Lang that the trial court abused its
discretion in ordering her “to pay restitution for damage arising from a crime of
which [s]he was not convicted.” State v. Williams, 2004-Ohio-2801, ¶ 23-24 (3d
Dist.) (reversing restitution order where the trial court ordered defendant to pay the
amount of two counterfeit checks, because he was only convicted of forgery for one
of the checks). As an initial matter, the trial court was in the best position to judge
the credibility of the witnesses, including Lang and Rochester, and was entitled to
believe some, all, or none of their testimony. State v. Borger,
2023-Ohio-1124, ¶
20-21 (1st Dist.) (affirming restitution amount that involved the trial court making
a credibility determination). If anything, Rochester’s testimony showed she and the
other employees did not commit theft. Rochester said she always paid for her lottery
tickets and, from what she saw, store employees paid for the tickets they played.
Further, neither Lang nor Rochester indicated when Rochester and the other
employees were playing the lottery, including whether it was during the relevant
time period identified in the indictment and by the trial court for purposes of
calculating the amount of restitution. See Perkins,
2019-Ohio-3993, at ¶ 8 (11th
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Dist.) (affirming restitution amount despite victim being uncertain “who had access
to the lottery machines during every instance when tickets were taken” and victim
testifying some of the economic loss could be attributed to the malfunction of the
lottery machine).
{¶26} We find that the trial court did not abuse its discretion in deciding a
preponderance of the evidence established that Ridi’s suffered an economic loss of
$102,530.00 as a direct and proximate result of Lang’s theft.
IV. CONCLUSION
{¶27} For the foregoing reasons, Lang’s assignment of error is overruled.
Having found no error prejudicial to the appellant in the particulars assigned and
argued, we affirm the judgment of the Wyandot County Court of Common Pleas.
Judgment Affirmed.
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.
/jlm
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