State v. Dunham , 2014 Ohio 1042 ( 2014 )

[Cite as State v. Dunham, 2014-Ohio-1042.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 13CA26
JOSHUA D. DUNHAM :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2010-
CR-0559D
JUDGMENT: Affirmed in part; Reversed in part;
Remanded
DATE OF JUDGMENT ENTRY: March 14, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. WILLIAM CRAMER
Prosecuting Attorney 470 Olde Worthington Road, Ste. 200
By:JOHN NIEFT Westerville, OH 43082
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Dunham, 2014-Ohio-1042.]
Gwin, P.J.
{¶1} Appellant Joshua D. Dunham [“Dunham”] appeals his convictions and
sentences after a jury trial in the Richland County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Dunham was indicted with one count of vehicular homicide in violation of
R.C. 2903.06 (A)(1)(a) a felony of the first degree, for causing death while driving under
the influence; a second count of vehicular homicide under R.C. 2903.06 (A)(2)(a) a
felony of the second degree, requiring the mental state of recklessness. Dunham was
also indicted with two counts of aggravated vehicular assault, the first a felony of the
third degree under R.C. 2903.08(A)(1)(a) [“OVI”] and the second a felony of the fourth
degree under R.C. 2903.08(A)(2)(b) [“Recklessly”]. Dunham was also indicted with two
counts of operating a vehicle under the influence of alcohol or drugs—both
misdemeanors of the first degree under R.C. 4511.19(A)(1)(a) [“under the influence”]
and 4511.19(A)(1)(b) [“prohibited level”]
{¶3} On June 1, 2011, Dunham changed his plea of not guilty to guilty to all
counts of the indictment. The court referred the matter to the probation department for
the preparation of a presentence investigation report. Dunham appeared for sentencing
on July 11, 2011. Dunham was fined $375.00 and sentenced to a total term of
imprisonment of nine (9) years of mandatory prison time on count one (1), a one (1)
year sentence on count three (3) and a six (6) month sentence on count five (5). The
sentences in counts 2, 4 and 6 were merged into counts 1, 3 and 5.
{¶4} Dunham appealed. This Court held that Dunham’s plea be vacated and
the case be remanded because the trial court did not adequately inform Dunham that
Richland County, Case No. 13CA26 3
the prison sentence imposed was mandatory or that he was ineligible for community
control or probation. State v. Dunham, 5th Dist. Richland No. 2011-CA-121, 2012-Ohio-
2957. [“Dunham I”].
{¶5} Upon remand, Dunham chose a jury trial. The following evidence was
presented to the jury.
{¶6} On August 17, 2010, Dunham, Ryan Miller, Zach Maxey, and Mason
Volkmer went to Buffalo Wild Wings around 8:00 p.m. Dunham was driving his older
SUV. They began drinking and had around six or seven 23-ounce beers over the next
three hours. They also drank one or two shots of hard liquor. While there, Dunham’s
friend Seth Stevens arrived with his girlfriend, Courtney Machuisi. They joined them,
eating and drinking.
{¶7} Around 11:00 p.m., the group decided to go to Joez Lounge to continue
drinking. Dunham drove his SUV with Miller, Maxey, and Volkmer in it; Stevens and
Machuisi went in Stevens' vehicle, but Machuisi drove because she had only had one
shot of liquor so far that evening. Stevens and Machuisi were afraid to ride with Dunham
because he had been drinking heavily.
{¶8} At Joez Lounge, the group had more shots of liquor and hung out for
about an hour. Dunham had three to seven shots and more beer at Joez Lounge within
that hour. Ryan Rush and Aaron Kessler joined this group at Joez Lounge. Kessler had
driven his motorcycle there. Most of the group planned to go to the Top Hat strip club on
US 42 next. Dunham got into his SUV and drove to the door of Joez Lounge, almost
hitting the building as he pulled around. Maxey jumped in the front passenger seat and
Stevens, Machuisi, and Miller got in the back seat. Volkmer attempted to get into the
Richland County, Case No. 13CA26 4
SUV’s back seat, but there was not enough room. Kessler, who was not going to Top
Hat, offered to drop Volkmer off there. Kessler had not been drinking that night. A blood
test taken from Kessler later at the hospital was negative for alcohol. They left around
12:45 a.m. on August 18, 2010.
{¶9} There was disagreement in the testimony regarding whether Dunham in
his SUV or Volkmer and Kessler on the motorcycle left the parking lot first. The sober
Ryan Rush testified that Kessler left first, followed by the SUV. Ryan Rush was not
going to Top Hat that night, so he did not witness the crash. Maxey, Stevens, Machuisi,
and Miller testified that they left first, and the motorcycle followed. Ms. Machuisi was
frightened of Dunham’s jerky driving.
{¶10} Miller, Machuisi, and Maxey testified that the motorcycle passed the SUV
early on Laver Road, and sped ahead out of sight. The SUV crested a hill on Laver
Road near US 42 and saw a stopping or stopped Kessler. Stevens testified that the
motorcycle passed the SUV closer to US 42 and swerved in front of the SUV and
stopped suddenly. They all testified that the SUV was going between 40 and 60 M.P.H.
with music blaring when the accident occurred.
{¶11} Frank Jenkins and off-duty Mansfield Police Officer David Minard were
driving South on US 42 when the crash occurred. They testified that they saw the
motorcycle slowing down to stop at the stop sign on Laver Road at US 42. They saw a
black SUV coming behind it and heard the SUV's motor revving. They testified that the
black SUV never slow down and crash into the motorcycle, throwing Mason Volkmer
into a telephone pole nearly 200 feet away. Aaron Kessler and the motorcycle were
carried as the SUV skidded onto US 42. Kessler fell under the SUV and the SUV was
Richland County, Case No. 13CA26 5
driven to a driveway nearby. The SUV fishtailed through the intersection. Jenkins, who
was driving his truck, had to stop to avoid being struck.
{¶12} After the crash, Jenkins turned his truck around to assist. Minard called 9-
1-1 and checked the pulse of Volkmer, noting he had a pulse. Minard next checked
Kessler, who was screaming in pain and confusion. Everyone in the SUV jumped out
and scattered. Maxey and Miller walked toward the woods and took a back way to the
Top Hat, which was nearby on US 42. Stevens took Machuisi into the woods, where
they walked to a gas station and got a ride back to Joez Lounge. They then drove
home. Dunham was going to flee as well, but was stopped by Minard. Minard could
smell the alcohol on Dunham’s person. Dunham told Minard that his life was over and
that he “fucked up.”
{¶13} Paramedics and police officers were dispatched at 12:53 a.m. and arrived
within minutes. Volkmer was unresponsive and in serious condition. Kessler was awake
and in shock. They were both transported to MedCentral Hospital. Volkmer had a skull
fracture, a broken arm, a lacerated lung, liver, spleen, and twisted kidney. Volkmer was
sent on Life Flight to Columbus shortly after arriving at MedCentral, but had a heart
attack shortly after takeoff and died that night. Kessler was injured with a deep wound to
his left ankle and a fractured right ankle as well as other scrapes and bruises. His
injuries required two surgeries, one for each ankle. Kessler had a significant amount of
physical therapy and pain following this injury until his death six months later. Kessler's
father testified that Kessler got another motorcycle in March 2011, a few months after
the accident. Sometime before trial, Kessler was killed in another accident on his new
motorcycle.
Richland County, Case No. 13CA26 6
{¶14} There was some evidence that Kessler only had a temporary motorcycle
permit. If so, then he was prohibited from riding his motorcycle at night and from having
passengers. Additionally, an officer testified that Laver Road has a double yellow line,
which means that vehicles are not permitted to pass.
{¶15} Officers took photographs of the scene of the accident and interviewed
witnesses. Maxey and Miller were found at Top Hat, and after lying about their
involvement twice, were taken to give statements. Trooper James Belcher of the Ohio
State Highway Patrol interviewed Dunham on scene. Trooper Belcher noted the smell of
alcohol on the Dunham. Dunham denied drinking that night.
{¶16} Dunham was read his Miranda rights and wrote out a statement. In that
statement, he admitted he was driving the SUV during the crash and that the accident
was his fault because he was following the motorcycle too closely. Dunham told the
police that the motorcycle slammed on its brakes and there was no indication it was
going to stop, and the accident was his fault because he was not able to stop in time.
Dunham also denied that people were in the SUV and, when confronted with the
statements of Minard and Jenkins, refused to identify anyone else who was in the SUV.
Trooper Belcher tested Dunham with the standard field sobriety tests. [“FST’s”] Dunham
failed all three tests. LEADS also showed that Dunham had an expired license that
night. Dunham refused to take a breath test, urine test, or blood draw to test for alcohol
consumption.
{¶17} Trooper Belcher arrested Dunham, took him to the hospital, and ordered a
blood draw. Dunham’s blood tested at .139 BAC at 4:20 a.m., over three hours after the
Richland County, Case No. 13CA26 7
crash. The video of Dunham in the patrol car between places was shown to the jury,
which included Dunham saying this was the worst mistake of his life.
{¶18} Jeffrey Payne, supervisor for the Ohio Bureau of Motor Vehicles, Records
Request Unit testified regarding Dunham’s license, driving record, and requirement to
take the examination again if he were to apply for a license at the time of the crash.
Payne testified that Dunham’s license expired on his 21st birthday, August 6, 2009, over
a year prior to this crash. Payne testified that, according to the BMV, Dunham would
have been subject to re-examination at the time of the crash.
{¶19} Dr. Robert Forney, a forensic toxicologist, testified regarding Dunham’s
blood alcohol content at the time of the accident. Based upon the .139 BAC at 4:20
a.m., Dr Forney testified to a reasonable degree of scientific certainty, Dunham was
intoxicated at 12:57 a.m., the time of the crash, and that his perception, judgment,
reaction time, and coordination were significantly impaired.
{¶20} Trooper Brian Butler testified as an accident reconstructionist. He
responded to the crash that night and took pictures and measurements. He completed a
field sketch of the crash. Trooper Butler noted that skid marks extended 200 feet on
Laver Road from the point of impact to US 42. The dips on Laver Road, described by
several witnesses, were not near the crash site. Trooper Butler ultimately found that the
crash happened on Laver Road about 200 feet before the intersection of US 42. The
SUV did not leave skid marks before the crash, and skidded and fishtailed for over 200
feet, which took it past the intersection. The SUV parked 256 feet from the point of
accident.
Richland County, Case No. 13CA26 8
{¶21} In February 2013, the jury acquitted Dunham of the first-degree felony
charge of aggravated vehicular homicide (OVI) in count one. The jury found Dunham
guilty of aggravated vehicular homicide (reckless) in count two. The jury also found that
the prosecution proved beyond a reasonable doubt that Dunham was driving without a
valid license and was not eligible for renewal absent an examination. The jury further
found Dunham guilty of aggravated vehicular assault (“OVI”) in count three; aggravated
vehicular assault (“reckless”) in count four; OVI(“prohibited level”) in count five and OVI
(“under the influence”) in count six.
{¶22} At the sentencing hearing held February 13, 2013, the state conceded that
counts 4, 5 and 6 would merge with counts two and three. (Sent. T. Feb 13, 2013 at 9).
The trial court merged count four [aggravated vehicular assault (“reckless”)] into count
three [aggravated vehicular assault (“OVI”)] and count six [OVI (“under the influence”)]
into count five [OVI (“prohibited level”)] as allied offenses. The trial court then imposed a
maximum mandatory prison term of eight years on count two, a consecutive mandatory
term of two years on count three, and a concurrent term of six months on count five, for
an aggregate term of ten years mandatory prison time. The court also imposed a
lifetime driver's license suspension, three years of mandatory post-release control, and
ordered restitution of $11,314.27 for the funeral expenses of Mason Volkmer.
ASSIGNMENTS OF ERROR
{¶23} Dunham raises six assignments of error,
{¶24} “I. APPELLANT WAS DEPRIVED OF DUE PROCESS BECAUSE THERE
WAS INSUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT APPELLANT
Richland County, Case No. 13CA26 9
DID NOT HAVE A VALID DRIVER'S LICENSE AND WAS NOT ELIGIBLE FOR
RENEWAL WITHOUT EXAMINATION.
{¶25} “II. THE TRIAL COURT VIOLATED DUE PROCESS BY OMITTING
RELEVANT JURY INSTRUCTIONS REGARDING CAUSATION.
{¶26} “III. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C.
2929.14(C) (4) BY FAILING TO MAKE THE FINDINGS REQUIRED BY STATUTE
BEFORE IMPOSING CONSECUTIVE SENTENCES.
{¶27} “IV. THE TRIAL COURT VIOLATED DUE PROCESS BY
ERRONEOUSLY IMPOSING A LIFETIME LICENSE SUSPENSION BASED ON THE
MISTAKEN BELIEF THAT THIS WAS A CLASS ONE SUSPENSION, WHEN IT WAS
ONLY A CLASS TWO.
{¶28} “V. THE TRIAL COURT VIOLATED DOUBLE JEOPARDY AND DUE
PROCESS, AND R.C. 2941.25, WHEN IT FAILED TO MERGE THE OVI
CONVICTIONS INTO VEHICULAR HOMICIDE OR ASSAULT.
{¶29} “VI. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C. 2929.18
WHEN IT ORDERED RESTITUTION FOR ECONOMIC LOSSES THAT WERE
PREVIOUSLY PAID BY INSURANCE.”
I.
{¶30} The finding that Dunham did not have a valid driver’s license and was not
eligible for renewal without examination enhanced Dunham’s conviction for aggravated
vehicular homicide. This allegation elevated count one from a second degree felony to a
first degree felony (R.C. 2903.06(B)(2)(b)(i)); elevated count two from a third degree
Richland County, Case No. 13CA26 10
felony to a second degree felony (R.C. 2903.06(B)(3)); and made a prison term
mandatory on count two (R.C. 2903.06(E)).
{¶31} In his first assignment of error, Dunham contends that the state did not
prove he did not have a valid driver's license and that he was ineligible for renewal
without reexamination under R.C. 2903.06(B)(3).
{¶32} The enhancement of R.C. 2903.06(B)(3) and (E)(2) require a finding that
the offender "did not have a valid driver's license . . . and was not eligible for renewal of
the offender's driver's license . . . without examination under section [R.C.] 4507.10."
Relevant to the case at bar, R.C. 4507.10 provides,
(A) Except as provided in section 4507.11 of the Revised Code, the
registrar of motor vehicles shall examine every applicant for a temporary
instruction permit, driver’s license, or motorcycle operator’s endorsement
before issuing any such permit, license, or endorsement.
***
(C) The registrar may waive the examination of any person
applying for the renewal of such a license or endorsement who is on
active duty in the armed forces of the United States or in service with the
peace corps, volunteers in service to America, or the foreign service of the
United States if the applicant has no physical or mental disabilities that
would affect the applicant’s driving ability, had a valid Ohio driver’s or
commercial driver’s license at the time the applicant commenced such
active duty or service, and the applicant’s license is not under suspension
or revocation by this state or any other jurisdiction. The registrar also may
Richland County, Case No. 13CA26 11
waive the examination of the spouse or a dependent of any such person
on active duty or in service if the applicant has no physical or mental
disabilities that would affect the applicant’s driving ability, was an Ohio
licensee at the time the person commenced the active duty or service, and
if the person’s active duty caused the spouse or dependent to relocate
outside of this state during the period of the active duty or service.
(D) Except as provided in section 4507.12 of the Revised Code, the
registrar may waive the examination of any person applying for such a
license or endorsement who meets any of the following sets of
qualifications:
(1) Has been on active duty in the armed forces of the United
States, presents an honorable discharge certificate showing that the
applicant has no physical or mental disabilities that would affect the
applicant’s driving ability, had a valid Ohio driver’s or commercial driver’s
license at the time the applicant commenced the applicant’s active duty, is
not under a license suspension or revocation by this state or any other
jurisdiction, and makes the application not more than six months after the
date of discharge or separation;
(2) Was in service with the peace corps, volunteers in service to
America, or the foreign service of the United States; presents such
evidence of the applicant’s service as the registrar prescribes showing that
the applicant has no physical or mental disabilities that would affect the
applicant’s driving ability; had a valid Ohio driver’s or commercial driver’s
Richland County, Case No. 13CA26 12
license at the time the applicant commenced the applicant’s service, is not
under a license suspension or revocation by this state or any other
jurisdiction, and makes the application no more than six months after
leaving the peace corps, volunteers, or foreign service.
(3) Is the spouse or a dependent of a person on active duty in the
armed forces of the United States, or in service with the peace corps,
volunteers in service to America, or the foreign service of the United
States; presents such evidence as the registrar prescribes showing that
the applicant has no physical or mental disabilities that would affect his
driving ability; presents such evidence as the registrar prescribes showing
that the applicant relocated outside of Ohio as a result of the person’s
active duty or service; was an Ohio licensee at the time of the relocation;
and makes the application not more than six months after returning to
Ohio. (Emphasis added).
{¶33} Dunham argues in the case at bar the state did not properly prove that he
was required to retest because he may have had some active military service before the
crash. Dunham argued that it was the state's burden to prove that he was not eligible for
renewal without examination.
{¶34} It is clear from an examination of the provisions R.C. 4507.10, that a
waiver of the examination requirement is discretionary not mandatory. The word “shall”
is usually interpreted to make the provision in which it is contained mandatory. Dorrian
v. Scioto Conservancy District, 27 Ohio St. 2d 102, 107, 271 N.E.2d 834 (1971). In
contrast, the use of the word “may” is generally construed to make the provision in
Richland County, Case No. 13CA26 13
which it is contained optional, permissive, or discretionary. Id. The words “shall” and
“may” when used in statutes are not automatically interchangeable or synonymous. Id.To give the “may” as used in a statute a meaning different from that given in its ordinary
usage, it must clearly appear that the Legislature intended that it be so construed from a
review of the statute itself. Id. at 107– 108, 271 N.E. 2d 834. In re: McClanahan, 5th
Dist. Tuscarawas No. 2004AP010004, 2004–Ohio–4113, ¶ 17.
{¶35} Further, the Legislature has made it the duty of the individual who is
asking the registrar to waive the examination to prove and present evidence that he or
she meets the requirements necessary for the register to waive examination.
{¶36} R.C. 2901.05(D)(1) defines an affirmative defense as either "a defense
expressly designated as affirmative," or "a defense involving an excuse or justification
peculiarly within the knowledge of the accused, on which the accused can fairly be
required to adduce supporting evidence." Because Dunham would be required to
present sufficient proof to the register that he was either on active duty or had been on
active duty in order for the register to consider waiving the examination requirement, we
find Dunham “can fairly be required to adduce supporting evidence” on this issue. There
is no duty on the part of the register to contact each branch of the military to determine if
Dunham was on active duty or had been on active duty. If Dunham does not prove his
status to the register’s satisfaction, the examination would not be waived.
{¶37} Dunham’s first assignment of error is overruled.
II.
{¶38} In his second assignment of error, Dunham alleges the trial court did not
provide the jury adequate instructions regarding intervening causation.
Richland County, Case No. 13CA26 14
{¶39} On the issue of causation, the trial court instructed the jury as follows,
Cause is an essential element of the offense. Cause is an act or
failure to act which in a natural and continuous sequence directly
produced the [accident] and without which it would not have occurred. Mr.
Dunham's responsibility is not limited to the immediate or most obvious
result of his act or failure to act. He is also responsible for the natural and
foreseeable results that follow in the ordinary course of events from the
act or failure to act. There may be more than one cause of an event.
However, if Mr. Dunham's act or failure to act was one cause, then the
existence of other causes is not a defense. Mr. Dunham is responsible for
the natural consequences of his unlawful act or failure to act, even though
the death was caused by the act or failure to act of another person.
{¶40} In his second assignment of error, Dunham claims the last sentence of
the instruction was misleading because it omitted two words necessary to convey the
concept of intervening causation. Dunham argues Ohio Jury Instructions, Section
417.25, states,
The defendant is responsible for the natural consequences of the
defendant's unlawful act or failure to act, even though (death) (physical
harm to [person] [property]) was also caused by the intervening act or
failure to act of another (person) (agency).
{¶41} Dunham contends by omitting the italicized words "also" and "intervening,"
the trial court's instruction removed the concept of an intervening cause. Rather than
Richland County, Case No. 13CA26 15
dealing with multiple causes, the instruction literally says that Dunham is responsible for
what happened even if it was entirely caused by someone else.
{¶42} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462(3rd Dist. 1993). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be
reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).
{¶43} Crim.R. 30(A) governs instructions and states as follows:
At the close of the evidence or at such earlier time during the trial
as the court reasonably directs, any party may file written requests that the
court instruct the jury on the law as set forth in the requests. Copies shall
be furnished to all other parties at the time of making the requests. The
court shall inform counsel of its proposed action on the requests prior to
counsel's arguments to the jury and shall give the jury complete
instructions after the arguments are completed. The court also may give
some or all of its instructions to the jury prior to counsel's arguments. The
court need not reduce its instructions to writing.
On appeal, a party may not assign as error the giving or the failure
to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the
Richland County, Case No. 13CA26 16
grounds of the objection. Opportunity shall be given to make the objection
out of the hearing of the jury.
{¶44} Dunham did not object to the trial court's jury instructions. Based upon
Dunham’s failure to object to the instructions and bring the issue to the trial court's
attention for consideration, we must address this assignment under the plain error
doctrine.
{¶45} In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d
35(1999) the United State Supreme Court held that because the failure to properly
instruct the jury is not in most instances structural error, the harmless-error rule of
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies to a failure to
properly instruct the jury, for it does not necessarily render a trial fundamentally unfair or
an unreliable vehicle for determining guilt or innocence.
{¶46} Crim.R. 52(B) provides that, “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
“Notice of plain error under Crim.R. 52(B) is to be taken 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. In
order to find plain error under Crim.R. 52(B), it must be determined, but for the error, the
outcome of the trial clearly would have been otherwise. Id. at paragraph two of the
syllabus.
{¶47} The defendant bears the burden of demonstrating that a plain error
affected his substantial rights. United States v. Olano, 507 U.S. at 725, 734, 113 S.Ct.
1770, 123 L.Ed.2d 308(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643,
Richland County, Case No. 13CA26 17
646(2004). Even if the defendant satisfies this burden, an appellate court has discretion
to disregard the error and should correct it only to ‘prevent a manifest miscarriage of
justice.'” State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002), quoting State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus. Perry,
supra, at 118, 802 N.E.2d at 646.
{¶48} Proximate cause does not require that the conduct of one defendant be
the sole cause of a legal injury. As a matter of law, there may be more than one
proximate cause of an injury. Taylor v. Webster, 12 Ohio St.2d 53, 231 N.E.2d
870(1967) and Strother v. Hutchinson, 67 Ohio St.2d 282, 423 N.E.2d 467(1981). The
plaintiff need only prove “some reasonable connection” between the act or omission and
the damage suffered or prove that the conduct is a substantial factor in bringing about
the injury in order to satisfy the requirement of proximate cause. See R.H. Macy & Co.
v. Otis Elevator Co., 51 Ohio St.3d 108, 110, 554 N.E.2d 1313(1990) (some reasonable
connection required to prove proximate cause in products liability case); see, also,
Person v. Gum, 7 Ohio App.3d 307, 311, 455 N.E.2d 307(8th Dist. 1983); Restatement
of the Law, Torts 2d (1965), Section 431; Prosser & Keeton, Law of Torts (5 Ed.1984)
268, Section 41 (conduct qualifies as proximate cause if it is a substantial factor in
bringing about plaintiff’s injury).
{¶49} It is well established that the definition of “cause” in criminal cases is
identical to the definition of “proximate cause” in civil cases. State v. Chambers, 53 Ohio
App.2d 266, 373 N.E.2d 266(9th Dist. 1977); State v. Bendycki, 8th Dist. Cuyahoga No.
42813, 1981 WL 4957; State v. Cruse, 1st Dist. Hamilton No. C-811031, 1982 WL 8765;
State v. Jacobs, 8th Dist. Cuyahoga No. 51693, 1987 WL10047. The general rule is that
Richland County, Case No. 13CA26 18
a defendant’s conduct is the proximate cause of injury or death to another if the
defendant’s conduct (1) is a “substantial factor” in bringing about the harm and (2) there
is no other rule of law relieving the defendant of liability. See Pang v. Minch, 53 Ohio
St.3d 186, 559 N.E.2d 1313(1990); Keleman v. Williams, 10th Dist. Franklin No. 92 AP-
1205, 1993 WL 55171; Pancoe v. Dye, 9th Dist. Lorain No. 15546, 15583, 1992 WL
308553.
{¶50} Further, it is well settled that any contributory negligence of the decedent
cannot be a defense to vehicular homicide, unless it is the sole proximate cause of the
accident. State v. Langenkamp, 137 Ohio App.3d 614, 620, 2000-Ohio-1831, 739
N.E.2d 404, 409 (3rd Dist. 2000); State v. Garland, 116 Ohio App.3d 461, 468, 688
N.E.2d 557, 562(12th Dist. 1996); State v. Vansickle, 5th Dist. Licking No. CA-3682,
1992 WL 61579; State v. McGraw 3rd Dist. Shelby No. 17-88-2, 1989 WL 153589; State
v. Royer, 3rd Dist. Logan No. 8-80-20, 1981 WL 6723; State v. Grant, 11th Dist. Lake
No. 92-L-037, 1993 WL 273402; Cleveland v. Calhoun, 8th Dist. Cuyahoga No. 59413,
1991 WL 238924; State v. Dailey, 5th Dist. Morrow No. 2006-CA-0012, 2007-Ohio-
2544.
{¶51} The trial court’s instructions adequately informed the jury that Dunham’s
act of operating a motor vehicle under the influence of alcohol had to be the direct
cause of Volkmer’s death and without which the death would not have happened. The
instructions adequately informed the jury that Dunham would be criminally responsible
for his acts even if other “causes” came into play. As long as the state proved beyond a
reasonable doubt that Dunham’s actions were a cause of death, it is irrelevant whether
there were any other contributory causes.
Richland County, Case No. 13CA26 19
{¶52} Based upon the record, we find that Dunham has failed to demonstrate
that the trial court’s misstatement to the jury affected his substantial rights.
{¶53} Dunham’s second assignment of error is overruled.
III.
{¶54} In his third assignment of error, Dunham claims that the trial court failed to
make the required statutory findings when it imposed consecutive sentences.
{¶55} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2)
states as follows:
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court’s standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (E)(4) of section
2929.14, or division (H) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶56} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
Richland County, Case No. 13CA26 20
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences. R.C. 2929.14(C)(4) provides, in relevant part:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses the court may require the offender to
serve the prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
(Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
Richland County, Case No. 13CA26 21
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.
{¶57} Regarding consecutive sentences, in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, the Ohio Supreme Court held that because R.C.
2929.14(E)(4) and 2929.41(A) require judicial fact-finding before a court can impose
consecutive sentences, they are unconstitutional and ordered them to be severed.
Foster, supra, paragraph three of the syllabus. In striking down these and other parts of
Ohio’s sentencing scheme, the Foster court held that “[t]rial courts have full discretion to
impose a prison sentence within the statutory range and are no longer required to make
findings or give their reasons for imposing maximum, consecutive, or more than the
minimum sentences.” Id., paragraph seven of the syllabus.
{¶58} The United States Supreme Court in Oregon v. Ice, 555 U.S. 160, 129
S.Ct. 711, 172 L.Ed.2d 517 (2009), subsequently held that the right to a jury trial under
the Sixth Amendment to the United States Constitution does not preclude states from
requiring trial court judges to engage in judicial fact-finding prior to imposing
consecutive sentences. Ice, supra, at 171–172.
Richland County, Case No. 13CA26 22
{¶59} Thereafter, in State v. Hodge, 128 Ohio St.3d 1, 2010–Ohio–6320, 941
N.E.2d 768, the Ohio Supreme Court addressed “whether, as a consequence of the
decision in Ice, Ohio trial courts imposing consecutive sentences must first make the
findings specified in R.C. 2929.14(E)(4) in order to overcome the presumption for
concurrent sentences in R.C. 2929.41(A).” Hodge, supra, at ¶ 9. In answering the
question in the negative, the court held: (1) the Sixth Amendment right to a jury trial
does not preclude states from requiring trial court judges to engage in judicial fact-
finding prior to imposing consecutive sentences; (2) Ice does not revive Ohio’s former
consecutive-sentencing statutes held unconstitutional in Foster; and (3) trial court
judges are not obligated to engage in judicial fact-finding prior to imposing consecutive
sentences unless the General Assembly enacts new legislation requiring that such
findings be made. Id., paragraphs one, two, and three of the syllabus. Trial judges have
“‘the discretion and inherent authority to determine whether a prison sentence within the
statutory range shall run consecutively or concurrently.’” Id. at ¶12, quoting State v.
Bates, 118 Ohio St.3d 174, 2008–Ohio–1983, 887 N.E.2d 328, ¶¶18–19.
{¶60} The Hodge court further explained that Foster merely took away a trial
judge’s duty to make findings before imposing consecutive sentences and that Ice did
not directly overrule Foster. Hodge, supra, at ¶ 17, 37. The court indicated, “Although
the Ice decision holds that it is constitutionally permissible for a judge to engage in
judicial fact-finding to impose consecutive sentences, there is no constitutional
requirement that a judge make findings of fact before imposing consecutive sentences.”
Id. at ¶ 26. 2011 Am.Sub.H.B. No. 86, which became effective on September 30, 2011,
revived the language provided in former R.C. 2929.14(E) and moved it to R.C.
Richland County, Case No. 13CA26 23
2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.
No. 86 now require a trial court to make specific findings when imposing consecutive
sentences.
{¶61} The First District Court of Appeals has observed,
The consecutive-sentence findings required by R.C. 2929.14(C) are
not the same as those required by former R.C. 2929.19(B)(2), which
provided that the trial court “shall impose a sentence and shall make a
finding that gives its reasons for selecting the sentence * * * (c) If it
imposes consecutive sentences .” (Emphasis added.) See State v. Comer,
99 Ohio St.3d 463, 2003–Ohio–4165, 793 N.E.2d 473, ¶ 14–16. In 2003,
the Ohio Supreme Court held that the requirement that a trial court give its
reasons for selecting consecutive sentences was “separate and distinct
from the duty to make the findings,” and it imposed an obligation on trial
courts to articulate the reasons supporting their findings at the sentencing
hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The trial court's obligation to “give
its reasons” is now gone from the sentencing statutes. Gone with it, we
hold, is the requirement that the trial court articulate and justify its findings
at the sentencing hearing. A trial court is free to do so, of course. But
where, as here, there is no statutory requirement that the trial court
articulate its reasons, it does not commit reversible error if it fails to do so,
as long as it has made the required findings. See Phillips, 1st Dist. No. C–
960898, 1997 Ohio App. LEXIS 2615, 1997 WL 330605.
Richland County, Case No. 13CA26 24
State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18. Accord,
State v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.
{¶62} “The trial court is not required to give reasons explaining these findings,
nor is the court required to recite any ‘magic’ or ‘talismanic’ words when imposing
consecutive sentences.” State v. Roush, 10th Dist. No. 12AP–201, 2013–Ohio–3162, ¶
76, citing State v. Frasca, 11th Dist. No. 2011–T–0108, 2012–Ohio–3746, ¶ 57.
“Nevertheless, the record must reflect that the court made the findings required by the
statute.” Id.; Accord, State v. Murrin, 8th Dist. No. 83714, 2004–Ohio–3962, ¶ 12; State
v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶ 22. Likewise, “under H.B. 86, a
trial court is not required to articulate and justify its findings at the sentencing hearing
when it imposes consecutive sentences as it had to do under S.B. 2.” State v. Redd, 8th
Dist. Cuyahoga No. 98064, 2012–Ohio–5417, ¶12. However, the record must clearly
demonstrate that consecutive sentences are not only appropriate, but are clearly
supported by the record. See State v. Bonnell, 5th Dist. Delaware No. 12CAA3022,
2012–Ohio–51501; State v. Wampler, 5th Dist. Fairfield No. 13-CA-3, 2014-Ohio-37. An
appellate court may only sustain an assignment of error challenging the imposition of
consecutive sentences under R.C. 2929.14 if the appellant shows that the judgment
was clearly and convincingly contrary to law. R.C. 2953.08(G). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118(1954), paragraph three of the syllabus.
1
We note that the Ohio Supreme Court has accepted this issue for review. State v. Bonnell, 135
Ohio St.3d 1412, 2013-Ohio-1622, 986 N.E.2d 29.
Richland County, Case No. 13CA26 25
{¶63} In the case at bar, the record reflects the excessive amount of alcohol
involved, the extreme speed at which Dunham was traveling at the time of the crash,
and the massive impact of the crash. The record also proves the extreme pain and
suffering endured by the victims, Dunham’s attempt to minimize his involvement in the
crash and his decision to not truthfully and fully cooperate with the investigation.
{¶64} Although the trial court in the present matter may not have used the exact
wording of the statute in reaching the findings to support the imposition of consecutive
sentences, courts have found that, in making findings regarding consecutive
sentencing, “a verbatim recitation of the statutory language is not required by the trial
court.” State v. Green, 11th Dist. No. 2003–A–0089, 2005–Ohio–3268 ¶ 26, citing State
v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–5154 ¶ 21. State v. Frasca, supra,
2012-Ohio-3746, ¶ 60. In the case at bar, the trial court noted,
I am making these sentences consecutive because these two
offenses were committed as part of one or more course of conduct [sic.],
the harm caused by the two or more multiple offenses was so great or
unusual that no single prison term for any one of the offenses adequately
reflects the seriousness of your conduct.
What I am saying is that you killed a man and you seriously injured
another. They each deserve recognition in the sentence imposed here.
(Sent. T. Feb. 19, 2013, 22-23).
{¶65} We find that the record adequately reflects consecutive sentences were
necessary to protect the public and to punish Dunham, and that they were not
disproportionate to the seriousness of his conduct and the danger he posed to the
Richland County, Case No. 13CA26 26
public. In addition, the record reflects consecutive sentences were necessary to protect
the public from future crime. The trial court’s decision to run the sentences
consecutively is not clearly and convincing contrary to law.
{¶66} Dunham’s third assignment of error is overruled.
IV.
{¶67} In his fourth assignment of error, Dunham contends that the trial court
erred when it sentenced him to a class one driver license suspension. The state
concedes this error and agrees that Dunham can only be sentenced for a class two
driver license suspension.
{¶68} Dunham’s fourth assignment of error is sustained.
V.
{¶69} In his fifth assignment of error, Dunham argues that his convictions under
R.C. 4511.19(A)(1)(a) should have merged with R .C. 2903.06(A)(1)(a) and
2903.08(A)(1)(a), as they were allied offenses of similar import.
{¶70} Aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) provides:
No person, while operating or participating in the operation of a
motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,
shall cause the death of another * * * [a]s the proximate result of
committing a violation of division (A) of section 4511.19 of the Revised
Code or of a substantially equivalent municipal ordinance[.]
{¶71} Aggravated vehicular assault under R.C. 2903.08(A)(1)(a) provides:
No person, while operating or participating in the operation of a
motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,
Richland County, Case No. 13CA26 27
shall cause serious physical harm to another person * * * [a]s the
proximate result of committing a violation of division (A) of section 4511.19
of the Revised Code or of a substantially equivalent municipal ordinance[.]
{¶72} R.C. 4511.19(A)(1)(a) provides that “[n]o person shall operate any vehicle,
streetcar, or trackless trolley within this state, if, at the time of the operation, * * * [t]he
person is under the influence of alcohol, a drug of abuse, or a combination of them.”
{¶73} R.C. 2941.25, Multiple counts states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all of
them.
{¶74} “[T]he Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.” Missouri v.
Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542(1983). See, also,
State v. Moss, 69 Ohio St.2d 515, 518, 433 N.E.2d 181(1982). In Ohio v. Johnson, 467
U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425(1984), the United States Supreme Court
stated:
Richland County, Case No. 13CA26 28
Because the substantive power to prescribe crimes and determine
punishments is vested with the legislature, United States v. Wiltberger, 5
Wheat. 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy
Clause whether punishments are ‘multiple’ is essentially one of legislative
intent, see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74
L.Ed.2d 535 (1983).
{¶75} The Double Jeopardy Clause of the federal constitution “protects only
against the imposition of multiple criminal punishments for the same offense, * * * and
then only when such occurs in successive proceedings.” (Citations omitted.) Hudson v.
United States, 522 U.S. 93, 99, 118 S.Ct. 488 (1997); State v. Martello, 97 Ohio St.3d
398, 2002–Ohio–6661, ¶ 8. “If pursued in a single proceeding, * * * multiple punishment
may constitutionally be imposed [.]” State v. Gustafson, 76 Ohio St.3d 425, 437, 1996-
Ohio-299, 668 N.E.2d 435.
{¶76} In State v. Bayer, 10th Dist. Franklin No. 11AP–733, 2012–Ohio–5469,
our brethren from the Tenth District addressed whether merger was required in light of
R.C. 2929.41(B)(3) when a defendant is convicted of operating a motor vehicle while
under the influence in violation of R.C. 4511.19 and aggravated vehicular assault in
violation of R.C. 2903.08. The Bayer court considered the language of R.C.
2929.14(B)(3) and held,
The General Assembly thereby clearly reflected its intent that a trial
court may, in its discretion, sentence a defendant for both OVI and AVA.
That intent conflicts with the intent reflected in R.C. 2941.25. That is, R.C.
2929.41 evidences the intent of the legislature that those two offenses
Richland County, Case No. 13CA26 29
should not merge-a conclusion that necessarily follows from the fact that a
trial court could not order sentences to be served consecutively unless the
court had first imposed more than just one sentence. Pursuant to the
merger analysis for allied offenses established by the general rule of R.C.
2941.25, the prosecutor in appellant’s case would have been required to
elect between the two allied offenses to which the defendant pled guilty
and then pursued sentencing on only one. This is so because, in applying
the merger of allied offenses rule established in R.C. 2941.25, “the trial
court must accept the state’s choice among allied offenses, ‘merge the
crimes into a single conviction for sentencing, and impose a sentence that
is appropriate for the merged offense.’” (Emphasis added.) State v.
Wilson, 129 Ohio St.3d 214, 2011–Ohio-2669, ¶ 13, citing State v.
Whitfield, 124 Ohio St.3d 319, 2010–Ohio–2, ¶ 24, and State v. Brown,
119 Ohio St.3d 447, 2008–Ohio–4569, ¶ 41. See also Whitfield at ¶ 12
(“[F]or purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict
and the imposition of a sentence or penalty.” (Emphasis sic.)).
In short, we find that, where a defendant is found guilty of operating
a motor vehicle while intoxicated and is also found guilty of aggravated
vehicular assault, that defendant may be found guilty and sentenced on
both. Assuming, arguendo, that OVI and AVA are allied offenses, R.C.
2929.41(B)(3) creates an exception to the general rule provided in R.C.
2941.25 that allied offenses must be merged so that a defendant may be
convicted, i.e., found guilty and sentenced, on either the OVI or the AVA,
Richland County, Case No. 13CA26 30
but not both. Accordingly, the trial court had the discretion, pursuant to
R.C. 2929.419(B)(3), to enter convictions of both OVI and AVA and to
sentence appellant to serve consecutive sentences for those two crimes.
Bayer, 2012-Ohio-5469, ¶¶21-22; Accord State v. Demirci, 11th Dist. Lake No. 2011–L–
142, 2013–Ohio–2399; State v. Kraft, 5th Dist. Delaware No. 13 CAA 03 0013, 2013-
Ohio-4658.
{¶77} We concur with the Bayer analysis, and note the Supreme Court of Ohio
did not accept the appeal for review. State v. Bayer, 136 Ohio St.3d 1453, 2013–Ohio–
3210; State v. Kraft, ¶ 34. We find the rationale expressed in Bayer applies with equal
force to a conviction for aggravated vehicular homicide under R.C. 2903.06(A)(1)(a).
{¶78} Dunham’s fifth assignment of error is overruled.
VI.
{¶79} In his sixth assignment of error, Dunham avers that the trial court
improperly ordered restitution of an amount that had been paid by insurance.
{¶80} R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the
following:
(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 fine in
Richland County, Case No. 13CA26 31
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.
{¶81} 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
Richland County, Case No. 13CA26 32
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, 136 Ohio St.3d 248, 2013-Ohio-3093, 994
N.E.2d 423, paragraph one of the syllabus. A trial court is required to conduct a hearing
on restitution only if the offender, victim, or survivor disputes the amount of restitution
ordered. Id. at paragraph two of the syllabus.
{¶82} R.C. 2929.18(A)(1) states that the trial court's order of restitution shall not
exceed the amount of economic loss suffered by the victim. A double recovery would
amount to an impermissible economic windfall for the victim. Accordingly, the evidence
introduced to demonstrate the actual economic loss suffered by the victim must take
account of any offsets to the victim's economic loss and any mitigation of damages in
the form of compensation received for the loss from, for example, insurance, the Ohio
Title Defect Rescission Fund, or civil judgments against the defendant. State v. Martin,
140 Ohio App.3d 326, 2000-Ohio-1942, 747 N.E.2d 318(4th Dist.); State v. Christy, 3rd
Dist. Wyandot No. 16-06-01, 2006-Ohio-4319.
{¶83} In the case at bar, the state requested restitution for the funeral expenses
of Mason Volkmer at sentencing. Dunham stated that he thought it had been paid by
insurance, but was unsure. The trial court ordered the restitution. Dunham did not ask
for a hearing or to continue the matter to obtain documentation.
{¶84} A defendant who does not dispute an amount of restitution, request a
hearing, or otherwise object waives all but plain error in regards to the order of
restitution. State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d 425(2nd
Richland County, Case No. 13CA26 33
Dist), ¶14. In this case, Dunham did indicate that the court previously determined
restitution was not to be ordered because the expenses had been paid by insurance.
See, Sent. T. July 11, 2011 at 18-19; Sent. T. Feb. 19, 2013 at 21-22. We are
concerned, however, with Dunham’s argument that the trial court awarded funeral
expenses without considering any insurance payments the victim had received. R.C.
2929.18(A)(1) unequivocally states that restitution is to be paid “in an amount based on
the victim’s economic loss.” Since the victim’s economic loss would be total expenses
less any amount paid by the insurance carrier, awarding restitution without considering
any insurance payments was plain error. State v. Mobley-Melbar, 8th Dist. Cuyahoga
No. 92314, 2010-Ohio-3177, ¶41; State v. Colon, 185 Ohio App.3d 671, 2010-Ohio-492,
925 N.E.2d 212, ¶ 7 (“It is well settled that restitution may not exceed a crime victim’s
economic loss and, as a result, must be reduced by any insurance payment received.”).
{¶85} Because the trial court failed to consider any insurance payments made
with regard to the victim’s total funeral expenses, this case must be remanded for a
hearing on restitution.
{¶86} Dunham’s sixth assignment of error is sustained.
Richland County, Case No. 13CA26 34
{¶87} For the forgoing reasons, the judgment of the Richland County Court of
Common Pleas is affirmed in part and reversed in part and this matter is remanded for
proceedings in accordance with our opinion and the law.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur