[Cite as State v. Thornsley,
2025-Ohio-5129.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO Case No. 2025 AP 04 0014
Plaintiff - Appellee Opinion and Judgment Entry
-vs- Appeal from the Tuscarawas County Court of
Common Pleas, Case No. 2023 CR 01 0018
ASHLEY THORNSLEY
Judgment: Affirmed
Defendant – Appellant
Date of Judgment Entry: November 12, 2025
BEFORE: William B. Hoffman, Robert G. Montgomery, Kevin W. Popham, Appellate
Judges
APPEARANCES: Ryan D. Styer, Prosecuting Attorney, Tuscarawas County
Prosecutor’s Office, Kristine W. Beard, Assistant Prosecuting Attorney, for Plaintiff-Appellee; Nicole R. Stephen, Tuscarawas County Public Defender for Defendant-Appellant
OPINION
Hoffman, P.J.
{¶1} Defendant-appellant Ashley Thornsley appeals the judgment entered by the
Tuscarawas County Common Pleas Court convicting her following jury trial of breaking
and entering (R.C. 2911.13(A)) and grand theft (R.C. 2913.02(A)(1)), sentencing her to
three years of community control, and ordering her to pay restitution jointly and severally
with her co-defendant, Chad Thornsley, in the amount of $34,613.00. Plaintiff-appellee is
the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Furry Trails Pet Transportation Company (hereinafter “Furry Trails”) is a
company in Tuscarawas County, Ohio, which provides transportation services for dog
breeders in the Tuscarawas County area. Dog breeders use Furry Trails to transport
puppies they have sold to buyers throughout the United States. The business employs
three people and subcontracts with numerous drivers who man ten to twelve vans weekly.
The monetary exchange for each puppy upon delivery is typically cash for any amount
remaining due to the breeder for the sale of the puppy, and delivery charges payable to
Furry Trails. Sometimes the drivers collect the balance due in checks, or the amount due
is paid using Venmo. At the end of a trip, drivers park the van in the Furry Trails facility,
leaving the cash and checks they collected in a bag locked inside the van.
{¶3} On August 28, 2022, three individuals broke into Furry Trails through the
bookkeeper’s office window. The perpetrators were inside the business for over three
hours. They broke the window of a company van, stealing cash and checks valued at
over $30,000. Although the perpetrators covered some of the security cameras, video
surveillance captured the movements of the three individuals inside and outside of the
building.
{¶4} Sly Nisley, Furry Trail’s bookkeeper, arrived at work on Monday morning,
August 29, 2022, around 5:30 a.m. He noticed the window to his office had been pried
open and the lock popped off. He saw footprints on his desk, and found a small yellow
flashlight on the floor of his office. Nisley called the Tuscarawas County Sheriff’s
Department.
{¶5} The flashlight was sent to the Bureau of Criminal Identification for DNA
analysis. The major contributor of the DNA was determined to be Appellant. The rarity
of the DNA match on the flashlight to Appellant was one in one trillion.
{¶6} Detective Jeff Moore turned the surveillance tapes into video clips and
individual still photos to aid officers in executing a search warrant for the Thornsley
residence. The photos showed all three people involved in the break-in were wearing
gloves. Other clothing shown in the photographs included a black sweatshirt; black tennis
shoes; a black and grey gator; and black, yellow and red knit gloves. The photos showed
a flashlight with an orange thumb cap. The videos showed three people: a short thin
woman, a much taller man with glasses, and a slender man.
{¶7} During the search of the Thornsley residence, police found a black
sweatshirt; black tennis shoes; a black flashlight with an orange thumb cap; black gloves;
black, red and yellow knit gloves, and a grey and black gator. The clothing found
appeared to match the clothing worn by the perpetrators during the break-in.
{¶8} Appellant and Chad were detained for questioning. Chad told police he had
worked as a driver for Puppy Love Transport. Puppy Love is a similar, competing puppy
transport business located in the area, which was started by former employees of Furry
Trails.
{¶9} To calculate the loss from the break-in, Nisley contacted the breeders to
create a spreadsheet showing the amount of cash and checks located inside the van.
Through conversations with clients of the business, Nisley determined $12,700.00 was
missing for shipping costs owed to Furry Trails, and $21,913.00 was missing for unpaid
balances due to sellers and collected by the drivers upon delivery of the puppies.
{¶10} Appellant and Chad were indicted by the Tuscarawas County Grand Jury
with breaking and entering and grand theft. The Thornsleys were both represented by
the same attorney. Appellant and Chad filed a joint notice of alibi, claiming they were at
an address in Canton at the time of the crimes, and listing an alibi witness.
{¶11} On October 10, 2023, one day before trial, the State filed a motion to amend
the indictment. The indictment alleged the date of the crimes was August 29, 2022. The
State asked to amend the indictment to allege the crimes occurred on August 28, 2022.
The trial court granted the motion to amend the date of the indictment on the morning of
trial.
{¶12} Before trial began, the trial court addressed Appellant concerning the joint
representation of herself and her husband by the same attorney. The court advised both
Appellant and Chad he would appoint separate counsel if they so desired. Counsel
represented to the court they had the same claim of innocence and did not intend to testify
against each other. The trial court personally addressed each defendant, and both
Appellant and Chad indicated they had no concerns about joint representation.
{¶13} Following jury trial, Appellant and Chad were both found guilty of both
counts. The trial court convicted them upon the jury’s verdict. The trial court sentenced
each defendant to three years of community control and ordered the defendants to pay
$30,000 in restitution jointly and severally, subject to a later restitution hearing.
{¶14} Appellant and Chad both appealed. This Court found the trial court’s
judgment of conviction and sentence in each case was not a final, appealable order
because of the trial court’s failure to determine an amount of restitution. State v. Ashley
Thornsley, 2024-Ohio-5726 (5th Dist.); State v. Chad Thornsley,
2024-Ohio-5727 (5th
Dist.). Upon remand, the trial court held a restitution hearing. The trial court issued a
new sentencing entry, sentencing Appellant and Chad to three years of community
control, and ordering them to pay restitution jointly and severally in the amount of
$34,613.00.
{¶15} It is from the March 24, 2025 judgment of conviction and sentence Appellant
prosecutes her appeal, assigning as error:
I. COUNSEL’S REPRESENTATION OF BOTH APPELLANT AND
HER CO-DEFENDANT AT A JOINT TRIAL WAS A CONFLICT OF
INTEREST THAT VIOLATED HER RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL.
II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ALLOWED THE STATE TO AMEND ITS INDICTMENT MOMENTS
BEFORE THE JURY ENTERED THE COURTROOM TO BEGIN THE
TRIAL DESPITE OBJECTION BY THE APPELLANT AND TIMELY
NOTICE OF ALIBI DEFENSE.
III. THE TRIAL COURT ERRED BY ADMITTING HEARSAY
EVIDENCE THAT WAS NOT AN EXCEPTION TO OHIO RULES OF
EVIDENCE 802 WHICH MATERIALLY AFFECTED THE OUTCOME OF
THE TRIAL.
IV. APPELLANT’S CONVICTIONS OF BREAKING AND ENTERING
AND THEFT WERE NOT SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE.
V. APPELLANT’S CONVICTIONS OF BREAKING AND ENTERING
AND THEFT WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
VI. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
ORDERED RESTITUTION IN AN AMOUNT THAT WAS NOT
SUPPORTED BY COMPETENT AND CREDIBLE EVIDENCE.
VII. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT
FAILED TO TAKE JUDICIAL NOTICE THAT THE COMPLAINANT’S
STATEMENTS WERE FACTUALLY IMPOSSIBLE GIVEN INFORMATION
THAT WAS READILY AVAILABLE TO THE PUBLIC BY FAILING TO TAKE
JUDICIAL NOTICE OF INFORMATION READILY AVAILABLE TO THE
TRIAL COURT.
I.
{¶16} In her first assignment of error, Appellant argues the trial court erred in
allowing her to be represented by the same attorney who represented her husband and
co-defendant, Chad. We disagree.
{¶17} In order to establish a Sixth Amendment violation due to a conflict of
interest, a defendant who failed to object at trial must demonstrate an actual conflict of
interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335,
348. A possible conflict of interest exists where the "interests of the defendants may
diverge at some point so as to place the attorney under inconsistent duties."
Id. at 356.
An actual conflict of interest exists if, "during the course of the representation, the
defendants' interests do diverge with respect to a material factual or legal issue or to a
course of action."
Id. A lawyer represents conflicting interests "when, on behalf of one
client, it is his duty to contend for that which duty to another client requires him to oppose."
State v. Gillard,
78 Ohio St. 3d 548, 552-553 (1997).
{¶18} In the instant case, the trial court addressed Appellant personally regarding
joint representation of counsel:
THE COURT: All right. Next, housekeeping matter before we bring
in the jury and in this case, while Ashley and Chad are clearly, they were
indicted as co-defendants. They have actually been assigned two different
case numbers that I have read into the record. I just want to confirm on the
record a couple of things. Number one, and my comments are to Ashley
and Chad, I think we had brought this up once before but I just wanted to
confirm that it is, Ashley, your wish, your desire, because everyone in a
felony case is entitled to hire counsel of their choice but there are – It is
unusual that two defendants would have the same lawyer, not impossible,
but it doesn’t happen a lot. Usually there would be two different lawyers but
you also have a fundamental right to select who you want as your counsel
as well. Ashley, is there any reason that you would feel in any way
concerned at all about having the same lawyer in this matter as your
husband?
MS. THORNSLEY: No, Your Honor.
THE COURT: Okay, you’re comfortable with having Brian represent
both you and Chad in this matter?
MS. THORNSLEY: Yes, I am.
{¶19} Tr. (1) 14-15.
{¶20} Because Appellant did not object to the dual representation, she must
demonstrate an actual conflict of interest. Appellant argues the overwhelming amount of
evidence against Chad misled the jury into convicting her based on nothing more than
guilt by association.1 She argues separate counsel could have emphasized the evidence
pointed to Chad rather than to her. She argues there was evidence the break-in was an
“inside job,” and Chad had inside knowledge of the workings of Puppy Love, a similar
competing business to Furry Trails. She argues separate counsel could have
emphasized her lack of knowledge about Furry Trails operations, and also could have
1 We note Chad Thornsley makes a similar argument in his brief, claiming the evidence was stronger against
Appellant.
argued Chad took the flashlight from their home, which happened to have her DNA on it.
She argues because of counsel’s representation of both parties, he could not emphasize
the evidence pointed to Chad rather than to Appellant.
{¶21} The State presented evidence clothing similar to the clothing worn by the
woman in the video was seized from Appellant’s home, and the jury had the opportunity
to compare the size and stature of the woman in the video to Appellant’s size and stature.
Appellant has not set forth a legal argument she would have been entitled to a separate
trial from Chad, nor has she demonstrated evidence of her husband’s inside knowledge
of Furry Love would have been inadmissible against her at trial. Appellant argued at trial
the flashlight with her DNA could have been taken from her home, and left at the scene
by a perpetrator.
{¶22} At trial, Appellant and Ashley did not attempt to cast blame on the other, but
rather attacked the credibility and sufficiency of the State’s evidence generally. They had
a mutual defense at trial, both claiming they were not present and did not participate in
the break-in and theft. We find the record does not demonstrate an actual conflict of
interest simply because separate counsel could have emphasized the evidence against
Chad was potentially stronger than the evidence against Appellant.
{¶23} The first assignment of error is overruled.
II.
{¶24} In her second assignment of error, Appellant argues the trial court erred in
granting the State’s motion to amend the date of the indictment. We disagree.
{¶25} Crim. R. 7(D) provides in pertinent part:
The court may at any time before, during, or after a trial amend the
indictment, information, complaint, or bill of particulars, in respect to any
defect, imperfection, or omission in form or substance, or of any variance
with the evidence, provided no change is made in the name or identity of
the crime charged.
{¶26} An appellate court reviews a trial court’s decision to allow the amendment
of an indictment for an abuse of discretion. State v. Boyd, 2025-Ohio-617, ¶ 11 (8th Dist.).
An abuse of discretion implies a court's ruling is unreasonable, arbitrary, or
unconscionable, and is more than a mere error of law or judgment. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶27} In the instant case, the indictment alleged the offenses occurred “on or
about” August 29, 2022. The State filed a written motion to amend the indictment the day
before trial to change the date to August 28, 2022. Appellant responded, arguing she
would be prejudiced by the amendment due to her intention to present an alibi defense.
{¶28} The parties argued the motion to the court prior to voir dire. The State
represented Appellant was aware of the August 28, 2022 date because the evidence
provided in discovery spoke to the August 28 date, rather than to August 29. The State
represented the appropriate remedy would be not to deny the motion, but to grant a
continuance to allow the defense to prepare appropriately. The State represented to the
extent the defendants were prejudiced by the amendment, it would not oppose a motion
to continue.
{¶29} Counsel for Appellant represented at this point in time, he was unsure if the
alibi witness would testify or not. He acknowledged he had not subpoenaed the alibi
witness. The trial court asked counsel how the change in date prejudiced the defense.
Counsel responded he had not yet had an opportunity to speak to the alibi witness to see
if he would testify he was with the defendants on the August 28. The trial court questioned
counsel further as follows:
THE COURT: Okay. Well, him aside, other than talking with him, do
you see any other way – How does this, because especially in light of the
fact that the Indictment is framed in a way of On or About and we’re talking
about the difference of the Twenty-Ninth or the Twenty-Eighth? Is there
something other than, that you know of, that this would prejudice –
MR. BENBOW: No.
THE COURT: - the Defendants in this case?
MR. BENBOW: No, other than just not having a whole – having
enough time to talk to the actual witness. That’s it.
{¶30} Tr. (1) 11-12.
{¶31} The trial court granted the motion to amend the indictment, allowing
Appellant to present an alibi witness for the new date if so desired.
{¶32} We find the trial court did not abuse its discretion in allowing the State to
amend the indictment. Appellant did not dispute the State’s representation she received
discovery which indicated the date of the offenses was actually August 28, not August 29.
The alibi witness had not been subpoenaed, and Appellant did not request a continuance
to prepare for the change in the date, instead representing counsel could make a phone
call and have the alibi witness in court the same day. The amendment did not prejudice
Appellant in calling the witness, as the trial court specifically stated Appellant would be
permitted to call her alibi witness as to the amended date. Counsel represented the only
prejudice to Appellant was not having time to talk to the alibi witness; however, Appellant
did not request a continuance, which would have been unopposed by the State, to give
counsel more time to prepare.
{¶33} The second assignment of error is overruled.
III.
{¶34} In her third assignment of error, Appellant argues the trial court erred in
admitting the spreadsheet prepared by Syl Nisley pursuant to Evid. R. 803(6). We
disagree.
{¶35} “A trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271(1991).
{¶36} Evid. R. 803(6) provides the following are not excluded by the hearsay rule:
(6) Records of Regularly Conducted Activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, or conditions, made
at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The term
“business” as used in this paragraph includes business, institution,
association, profession, occupation, and calling of every kind, whether or
not conducted for profit.
{¶37} To qualify for admission under Rule 803(6), a business record must have
four essential elements: (i) the record must be one regularly recorded in a regularly
conducted activity; (ii) it must have been entered by a person with knowledge of the act,
event or condition; (iii) it must have been recorded at or near the time of the transaction;
and (iv) a foundation must be laid by the custodian of the record or by some other qualified
witness. State v. Davis, 2008-Ohio-2, ¶ 171. Even if these elements are established, a
business record may be excluded from evidence if “the source of information or the
method or circumstances of preparation indicate lack of trustworthiness.”
Id.
{¶38} Appellant first argues the spreadsheet created by Nisley to determine the
amount of money lost in the theft from the cargo van was not kept in the course of a
regularly conducted business activity, and it was not the regular practice of Furry Trails
to make the report.
{¶39} Nisley testified he did not have records regarding the amount of money
which should have been present in the envelope in the van. Rather, the receipts were
kept in the cash envelope. Nisley testified regarding his regular practice as bookkeeper
of the business when the envelope was returned to him:
Q. So, if someone contracts with you and the order is made – so
you’ve had contact with seller and buyer and know the details of the
transaction, correctly – is that correct?
A. Yes.
Q. Okay. This would include I guess who’s paying the delivery fee
and what money needs to be collected from the purchaser or buyer when
you get there?
A. Correct.
Q. And is there a record of this at Furry Trails?
A. After it comes back. After everything comes back and the routes
come back with all that paperwork because things can change along the
way.
Q. Okay. Is there records of that order though for them to know, you
know, where – who the seller is, what’s being delivered and who the buyer
is
A. Yes.
Q. Okay but ultimately at the end when the driver returns there’s
additional paperwork done?
A. Yes.
{¶40} Tr. (1) 151.
{¶41} Whether created after delivery using the receipts in the cash envelope in
order to determine how the money is to be distributed between the dog breeders and
Furry Trails, or whether created in the instant case to determine the amount of loss from
the theft of the cash envelope, the regular practice of the business required paperwork to
be completed to determine the distribution of the money in the envelope. In the instant
case, due to the loss of the receipts in the envelope, Nisley employed a different
procedure to determine the amounts due the breeders and due Furry Trails. While the
circumstance was not “regular” because theft is not a regular occurrence, it was the
regular procedure of Nisley to complete paperwork to determine the distribution of funds
after a van is returned. We find the trial court did not err in finding Nisley compiled the
information in the spreadsheet in the regular course of the business of Furry Trails, and
it was the regular practice of the business to complete such paperwork.
{¶42} Appellant also argues the court erred in admitting the exhibit because it was
based on information provided by the breeders who were clients of Furry Trails, and not
from Nisley’s knowledge. Appellant argues the circumstances demonstrate a lack of
trustworthiness because Nisley relied on information provided by the clients of the
business. The Court of Appeals for the First District addressed a similar argument by
looking to federal case law:
Fed.R.Evid. 803(6) and Ohio's version of the rule are substantially
similar. Staff Notes to Evid.R. 803(6). We find federal case law to be
instructive on this issue. A number of circuit courts have held that exhibits
can be admitted as business records of an entity, even when that entity was
not the maker of those records, provided that the other requirements of
Fed.R.Evid. 803(6) are met and the circumstances indicate that the records
are trustworthy. See United States v. Childs (C.A.9, 1993), 5 F.3d 1328,
1333, see, also, United States v. Travers (C.A.9, 2004),
92 Fed.Appx. 489,
494, citing
Childs, supra (“Records need not actually be prepared by the
business to constitute business records, so long as they are received,
maintained, and relied upon in the ordinary course of business”); United
States v. Jakobetz (C.A.2, 1992), 955 F.2d 786, 801 (“Even if the document
is originally created by another entity, its creator need not testify when the
document has been incorporated into the business records of the testifying
entity”); Saks Internatl. Inc. v. M/V Export Champion (C.A.2, 1987), 817 F.2d
1011, 1013–14 (documents may properly be admitted as business records
even though they are the records of an entity other than one of the parties,
and even though the foundation for their receipt is laid by a witness who is
not an employee of the entity that owned and prepared them, provided that
there are sufficient indicia of the records' reliability and trustworthiness).
{¶43} Great Seneca Financial v. Felty, 2006-Ohio-6618, ¶ 14 (1st Dist.).
{¶44} Although received via phone call in the instant case, we find Furry Trails
incorporated the business records of their clients into the spreadsheet. Throughout
Nisley’s testimony, it was apparent the business must regularly rely on information
provided by the sellers of the puppies as to the amounts they expect to receive on delivery
of the puppies. We find the trial court did not err in finding the records had sufficient
indicia of reliability and trustworthiness.
{¶45} The third assignment of error is overruled.
IV., V.
{¶46} In her fourth and fifth assignments of error, Appellant argues the judgment
convicting her of breaking and entering and grand theft is not supported by sufficient
evidence and is against the manifest weight of the evidence. We disagree.
{¶47} The term “manifest weight of the evidence” relates to persuasion. Eastley
v. Volkman, 2012-Ohio-2179, ¶ 19. It concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
(Emphasis deleted.) State v. Thompkins,
78 Ohio St.3d 380, 387 (1997), superseded by
constitutional amendment on other grounds as stated in State v. Smith,
80 Ohio St.3d 89,
102 n.4 (1997); State v. Martin,
2022-Ohio-4175, ¶ 26.
{¶48} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” Id.
{¶49} When conducting a manifest weight review, the question is whether the jury
clearly lost its way in resolving conflicts, resulting in a manifest miscarriage of justice,
even if the evidence is legally sufficient. Id.; State v. Issa, 93 Ohio St.3d 49, 67 (2001).
Appellate courts have traditionally presumed the jury's assessment is correct, given its
ability to observe witnesses’ demeanor, gestures, and tone, all critical factors in
evaluating credibility. Eastley,
2012-Ohio-2179, at ¶ 21; Seasons Coal Co., Inc. v.
Cleveland,
10 Ohio St.3d 77, 80 (1984).
{¶50} A manifest-weight claim succeeds only in “the exceptional case in which the
evidence weighs heavily against the conviction.” (Internal quotations omitted.)
Thompkins, 78 Ohio St.3d at 387. To reverse a conviction on manifest-weight grounds,
all three judges on the appellate panel must concur. Ohio Const., Art. IV, § 3(B)(3); Bryan-
Wollman v. Domonko,
2007-Ohio-4918, ¶¶ 2-4, citing Thompkins, syllabus ¶ 4.
{¶51} An appellate court's function when reviewing the sufficiency of the evidence
is to determine whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259,
574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶52} Appellant was convicted of breaking and entering in violation of R.C. R.C.
2911.13(A), which provides, “No person by force, stealth, or deception, shall trespass in
an unoccupied structure, with purpose to commit therein any theft offense, as defined in
section 2913.01 of the Revised Code, or any felony.”
{¶53} She was also convicted of grand theft in violation of R.C. 2913.02(A)(1),
which provides:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent[.]
(B)(2) …If the value of the property or services stolen is seven
thousand five hundred dollars or more and is less than one hundred fifty
thousand dollars, or if the offender has been convicted of or pleaded guilty
to a felony theft offense within the previous three years, a violation of this
section is grand theft, a felony of the fourth degree…
{¶54} Appellant first argues there was insufficient evidence to prove she was one
of the perpetrators of the break-in and theft from Furry Trails, and also the jury lost its way
in finding she participated in the crimes.
{¶55} The State presented the security video and still photos taken from the video,
from which the jury, which had the opportunity to view Appellant in court, could determine
the woman involved was similar in size and stature to Appellant. Sly Nisley testified the
crimes appeared to be committed by someone familiar with the business. Appellant’s
husband and co-defendant admitted to police he worked for Puppy Love Transport, a
similar type of animal-transport business started by former employees of Furry Trails.
DNA on the small flashlight found in Nisley’s office was a definitive match for Appellant.
Clothing and another flashlight seized from Appellant’s home matched the clothing and
flashlight depicted in the surveillance video. While Appellant characterizes the clothing
as “generic,” the number of clothing items viewed collectively, as well as the orange-
capped flashlight, provide evidence Appellant and Chad were two of the three
perpetrators pictured in the video. We find this evidence was sufficient to identify
Appellant as one of the perpetrators of the Furry Trails break-in and theft, and the jury did
not lose its way in convicting Appellant.
{¶56} Appellant also argues the evidence was insufficient to prove the amount of
the theft exceeded $7,000. She argues the spreadsheet created by Nisley, which set
forth the amount of the loss, was inadmissible hearsay. For the reasons set forth in our
discussion of Appellant’s third assignment of error, we disagree. We find the evidence of
loss as set forth in the spreadsheet was sufficient evidence, if believed by the jury, to
support the conviction of grand theft. The jury was aware of the process by which Nisley
telephoned clients to determine the amount of the loss, and we find the jury did not lose
its way in finding the amount to be credible.
{¶57} The fourth and fifth assignments of error are overruled.
VI.
{¶58} In her sixth assignment of error, Appellant argues the trial court’s order of
restitution is not supported by competent, credible evidence. We disagree.
{¶59} A trial court has discretion to order restitution in an appropriate case and
may base the amount it orders on a recommendation of the victim, the offender, a
presentence investigation report, estimates or receipts indicating the cost of repairing or
replacing property, and other information, but the amount ordered cannot be greater than
the amount of economic loss suffered as a direct and proximate result of the commission
of the offense. State v. Lalain, 2013-Ohio-3093, ¶ 27. The evidence which supports a
court's restitution order can take the form of either documentary evidence or testimony.
State v. Moore,
2022-Ohio-4261, ¶ 12 (5th Dist.).
{¶60} Evid. R. 101(D)(3) provides the Rules of Evidence, except with regard to
privilege, do not apply to sentencing proceedings. Because the Rules of Evidence do not
apply to sentencing, they also do not apply to restitution hearings. See, e.g., State v.
Estes, 2011-Ohio-5740, ¶ 27 (3rd Dist.).
{¶61} Nisley testified at the restitution hearing he created a spreadsheet of the
sellers which were missing funds as a result of the theft. He testified the total amount of
shipping fees missing which would have been payable to Furry Trails was $12,700. He
testified the amount due to the puppy sellers which was stolen from the van was $21,
913. He testified Furry Trails paid the sellers the amount due them. We find Nisley’s
testimony sufficient to support the trial court’s restitution order of $34,613, and the trial
court did not abuse its discretion in the restitution order.
{¶62} The sixth assignment of error is overruled.
VII.
{¶63} In her seventh assignment of error, Appellant argues the trial court erred in
failing to take judicial notice following the restitution hearing of two facts: (1) the route
Nisley claimed his drivers embarked on in five days was impossible to complete, and (2)
there was no business registered with the Ohio Secretary of State’s office as “A & L Pet
Service,” the official name of the business as testified to by Syl Nisley. We disagree.
{¶64} Evid. R. 201 provides:
(A) Scope of Rule. This rule governs only judicial notice of
adjudicative facts; i.e., the facts of the case.
(B) Kinds of Facts. A judicially noticed fact must be one not subject
to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.
(C) When Discretionary. A court may take judicial notice, whether
requested or not.
(D) When Mandatory. A court shall take judicial notice if requested
by a party and supplied with the necessary information.
{¶65} Appellant did not ask the trial court to take judicial notice of any facts at the
restitution hearing. The trial court allowed the parties to file written closing arguments
following the hearing. In her written closing argument, Appellant asked the trial court to
take notice of the above-referenced facts, attaching documents printed from the internet
in support of her request.
Impossibility of Delivery Route
{¶66} Appellant attached a map printed from the internet and a “route summary”
also printed from the internet to her closing argument. The route summary sets forth a
drive time to complete the route of four days, two hours, and twenty minutes. Appellant
argues the two drivers assigned to the route could not have completed the route from
Monday through Saturday considering the time required to bring the puppies to the Furry
Trails facility for veterinarian checks, make deliveries to buyers, and stop for restroom
and meal breaks.
{¶67} In Rude v. NUCO Edn. Corp., 2011-Ohio-6789 (9th Dist.), a party asked the
appellate court to take judicial notice that “there are no fewer than eleven registered
nursing programs in Northeast Ohio alone.” The court held it could not take judicial notice
of the number of registered nursing programs in Northeast Ohio because the source of
information offered, which was a link to a website for the Ohio Board of Nursing, did not
supply the information in a manner which allowed for judicial notice of a discrete fact
without further inquiry. Id. at ¶ 16.
{¶68} Similarly, in the instant case, the information provided did not provide the
information in a manner which would allow the court to take judicial notice without further
inquiry. The record does not demonstrate the time the drivers began the delivery route
or ended the delivery route. The record does not demonstrate whether the route taken
by the drivers was the same as the route provided in the internet summary, nor does the
record show what traffic conditions were at the time the map was created. There are too
many variables involved in the cross-country trip to determine solely from a map, without
further information, they could not have completed the route. We find the trial court did
not err in failing to take judicial notice. The proper mechanism to challenge Nisley’s
credibility regarding the delivery route at issue in the instant case was by way of evidence
presented at the hearing.
Official Name of the Business
{¶69} Appellant asked the trial court to take judicial notice of the official name of
the business known as Furry Trails. On cross-examination, Nisley testified the registered
name of the business was A & L Pet Services, LLC, but they refer to everything as “Furry
Trails.” Tr. (Restitution) 48. He testified A & L paid the loss to the sellers. Appellant
provided documentation asking the trial court to take judicial notice no such business was
incorporated until after the restitution hearing.
{¶70} We find the actual registered name of the business was not an adjudicative
fact at issue in the case. Appellant argues because Nisley testified A & L paid the sellers
for the money lost in the theft, if A & L did not exist at the time, she could not be required
to pay restitution. We disagree. It is apparent from the record the official name of the
business at the time was immaterial because it was clear the money was paid by the
business known as Furry Trails:
THE COURT: Okay. Before you step down, I have just a couple
questions. One, and I think you just clarified but just to make sure I’m clear,
A and L, it’s called A and L Pet Service?
MR. NISLEY: Correct.
THE COURT: And Andy was the member –
MR. NISLEY: Correct.
THE COURT: -- of it and they do business as Furry Trails?
MR. NISLEY: Correct.
THE COURT: Okay, that’s what I thought, just wanted to make sure
I had that clear. Whether it was A and L doing business as Furry Trails, that
entity, somebody you’re saying paid back the sellers twenty-one thousand
nine hundred and thirteen dollars?
MR. NISLEY: That is correct.
{¶71} Tr. (Restitution) 48-49.
{¶72} We find the trial court did not err in failing to take judicial notice the name of
the business was not incorporated until after the hearing.
{¶73} The seventh assignment of error is overruled.
{¶74} The judgment of the Tuscarawas County Common Pleas Court is affirmed.
Costs are assessed to Appellant.
By: Hoffman, P.J.
Montgomery, J. and
Popham, J. concur
