State v. Young , 2020 Ohio 4943 ( 2020 )

[Cite as State v. Young, 2020-Ohio-4943.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1189
Appellee Trial Court No. CR0201901089
v.
Nicole L. Young DECISION AND JUDGMENT
Appellant Decided: October 16, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Drew E. Wood, Assistant Prosecuting Attorney, for appellee.
Laurel A. Kendall, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Nicole L. Young, appeals the August 16, 2019
judgment of the Lucas County Court of Common Pleas, convicting her of theft and
ordering restitution to the victim of $49,014. For the following reasons, we affirm the
trial court judgment; however, we remand this matter to the trial court to enter a nunc pro
tunc judgment correcting the amount of restitution to $49,114, as calculated in the court’s
August 7, 2019 order.
I. Background
{¶ 2} The victim in this case, J.P., is a 50-year-old woman who was born with
cerebral palsy. She is employed as a college-level English instructor, but she has
physical limitations, rendering her in need of assistance with such things as
transportation, household chores, errands, and some personal care. In 2014, J.P.
advertised for a caregiver on her church Facebook page. Nicole Young responded, and
J.P. hired her.
{¶ 3} J.P. orally agreed to pay Young $200 per week. Once a week, she and
Young went to an ATM so J.P. could withdraw cash to pay Young. Because it was
difficult for J.P.—who is wheelchair bound—to reach the machine and make the
withdrawal herself, she would give Young her bank card and personal identification
number (“PIN”), and Young would make the withdrawal for her. J.P. would ask Young
to withdraw $300—she gave $200 to Young and kept $100 for spending money. Of that
$100 spending money, J.P. paid $60 a week to a woman who cleaned her house. J.P.’s
other bills and expenses were paid either electronically or via credit card. J.P. did most
of her shopping on Amazon and other websites, and for some period of time, she used a
grocery delivery service.
{¶ 4} As J.P. grew to trust Young, she would allow Young to take her bank card
and go to the ATM by herself to make the weekly $300 withdrawal. Young would give
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J.P. the cash and the receipt, and J.P. would give $200 to Young. Perhaps once or twice a
month, J.P. may have needed additional cash for such things as dinner, trips to the movies
with friends, or for very infrequent travel—she estimated that she went on weekend trips
no more than three or four times over the four-year period she employed Young. Young
was the only person who had access to J.P.’s bank card and PIN.
{¶ 5} In March of 2018, J.P. suffered a depressive episode for which she took a
three-month leave of absence from work. She became very weak and her health declined
to the point that she could no longer live independently. In July of 2018, she was
admitted to a rehabilitation center and prepared to move into an assisted living facility.
At this point, she no longer required Young’s services.
{¶ 6} In preparation for moving into an assisted living facility, J.P.’s brother and
niece reviewed her finances to determine how she would pay her living expenses. They
brought to her attention that the balance in her bank account was much lower than it
should have been, and they noticed numerous suspicious ATM withdrawals. J.P.’s niece
reviewed her monthly bank statements line-by-line and discovered that cash was being
withdrawn far more frequently than once a week. She flagged the suspicious transactions
on the bank statements, and J.P. reviewed them to determine which transactions were
authorized and which were not.
{¶ 7} J.P. contacted the Oregon police department. Young was questioned and
admitted to stealing money from J.P. The Oregon police also brought to J.P.’s attention
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additional suspicious use of her bank card for the purchase of such things as groceries
and Halloween costumes.
{¶ 8} Young was indicted on January 17, 2019, on one count of theft from a
person in a protected class, a violation of R.C. 2913.02(A)(2) and (B)(3), a felony of the
second degree. On June 3, 2019, Young entered a plea of guilty to the lesser included
offense of theft, a violation of R.C. 2913.02(A)(2) and (B)(2), a felony of the fourth
degree. The trial court requested a presentence investigation report and continued the
matter for a restitution hearing, which took place on August 5, 2019.
{¶ 9} On August 7, 2019, the trial court issued a detailed order, concluding that
J.P.’s economic loss was proven to be $49,114. The matter proceeded to sentencing on
August 15, 2019, at which time it sentenced Young to three years’ community control
and ordered her to pay restitution to the victim of $49,014.1 Young’s conviction and
sentence were memorialized in a judgment journalized on August 16, 2019.
{¶ 10} Young appealed. She assigns the following errors for our review:
I. The trial court abused its discretion when it ordered restitution
based on indefinite information, and did not provide a detailed explanation
of the basis for its decision.
1
The state made a $100 mathematical error in one of the exhibits admitted at the
restitution hearing. This error was acknowledged at the hearing, and the trial court took it
into account in its August 7, 2019 order when it found economic loss of $49,114. But it
appears that this was overlooked in its August 16, 2019 judgment. This error can be
corrected in a nunc pro tunc entry.
4.
II. The restitution ordered by the court was based on insufficient
evidence, and/or was against the manifest weight of the evidence.
II. Law and Analysis
{¶ 11} Young raises two assignments of error, in essence asking us to review the
trial court’s restitution order under three separate standards of review: abuse of
discretion, sufficiency of the evidence, and manifest weight of the evidence. We begin
by clarifying that “the proper standard of review for analyzing the imposition
of restitution as a part of a felony sentence is whether the sentence complies
with R.C. 2953.08(G)(2)(b).” State v. Collins, 2015-Ohio-3710, 41 N.E.3d 899, ¶ 31
(12th Dist.). This means that “in reviewing the order for restitution, we must determine
whether the restitution imposed was contrary to law, rather than reviewing for an abuse
of discretion.” State v. Cantrill, 6th Dist. Lucas No. L-18-1047, 2020-Ohio-1235, ¶ 87;
State v. Becraft, 2017-Ohio-1464, 89 N.E.3d 218, ¶ 19 (2d Dist.) (“[I]nstead of applying
an abuse of discretion standard, * * * the proper standard of review for analyzing the
imposition of restitution as a part of a felony sentence is whether * * * it is clearly and
convincingly contrary to law.”).
{¶ 12} Under R.C. 2929.18(A)(1), a “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
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proximate result of the commission of the offense.” If the offender, victim, or survivor
disputes the amount of restitution, the court must hold a hearing. Id. At the restitution
hearing, the victim bears the burden of proving by a preponderance of the evidence the
amount of economic loss attributable to the offender’s conduct. State v. Isaacs, 2d Dist.
Montgomery No. 27414, 2017-Ohio-7637, ¶ 10. See also State v. Scurlock, 6th Dist.
Lucas No. L-15-1200, 2017-Ohio-1219, ¶ 53 (recognizing that victim bears burden to
prove, by a preponderance of the evidence, the amount of restitution to which he or she is
entitled). The offender must be permitted to cross-examine witnesses concerning the
amount of restitution sought. State v. Benko, 9th Dist. Lorain No. 18CA011388, 2019-
Ohio-3968, ¶ 10.
{¶ 13} “To be a lawful order, the amount of the restitution must be supported by
competent, credible evidence from which the court can discern the amount of the
restitution to a reasonable degree of certainty.” (Internal citations and quotations
omitted.”) State v. Wright, 6th Dist. Lucas No. L-17-1242, 2018-Ohio-2599, ¶ 18. The
victim’s loss may be supported through documentary evidence or testimony, including
that of the victim. Collins at ¶ 33. The victim’s testimony alone may be sufficient to
establish his or her economic loss. Benko at ¶ 10.
{¶ 14} Because Young advances the same arguments in support of both
assignments of error—simply tailoring her arguments based on the various erroneous
standards of review she asserts—we will address both assignments together under the
proper standard.
6.
A. The state presented testimony and documentary evidence
in support of J.P.’s economic loss.
{¶ 15} At the restitution hearing, the trial court heard testimony from J.P., Young,
and R.F.—Young’s neighbor who helped care for J.P. to some degree when Young was
suffering from a hernia. Additionally, the state offered into evidence J.P.’s itemized
monthly bank statements (Exhibits 1-4) and a spreadsheet summarizing authorized and
unauthorized withdrawals made from J.P.’s accounts during 2016, 2017, and 2018
(Exhibit 5).
{¶ 16} At the hearing, J.P. provided the information summarized above in the
background section. She also went through her bank statements month-by-month and
explained which withdrawals she deemed “authorized,” which she deemed
“unauthorized,” and her reasons for characterizing them as such.
{¶ 17} J.P. testified that the first unauthorized withdrawal occurred in February of
2016, approximately two years after Young’s employment began. While J.P. conceded
that she could not be absolutely certain which transactions were authorized and which
were unauthorized, she described the method she used for identifying the unauthorized
transactions. Briefly stated, J.P. assumed that one weekly withdrawal of $300 was
authorized. Generally, where more than one withdrawal occurred in a day or when
multiple withdrawals took place very close in time, she deemed those withdrawals
unauthorized. Because she acknowledged that she may at times have needed more cash
during any given month, she allowed for at least one additional cash withdrawal as being
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potentially “authorized.” Also, the majority of the withdrawals were in increments of
$200 or $300; where a smaller amount was withdrawn, she assumed it was authorized.
J.P. noted that her card had been used at grocery stores in amounts that far exceeded her
usual grocery store spending, but she did not seek restitution for those charges. And
where she was unsure whether a withdrawal was authorized or unauthorized, she gave
Young the benefit of the doubt. She insisted that she had not asked for restitution in an
amount greater than what Young stole from her.
{¶ 18} The exhibits admitted by the state showed that when Young first began
stealing from J.P. in 2016, there were months where no unauthorized withdrawals
occurred. Where there were unauthorized withdrawals in 2016, they ranged from $200 to
$1,500 per month. In 2017, there was one month with no unauthorized withdrawals. The
remainder of the year, the monthly unauthorized withdrawals ranged from $900 to $3,800
per month. And in 2018, there were unauthorized withdrawals every month, ranging
from $2,100 to $3,600 per month. J.P. could think of no reason that she would need this
much extra money in a month.
{¶ 19} Significantly, J.P. testified that during her three-month depressive episode
that started in March of 2018, she rarely left the house; she mainly stayed home watching
television or staring at the wall. Nonetheless, $300 withdrawals were being made
numerous times a week, totaling anywhere from $2,400 to $3,600 per month.
{¶ 20} Young testified that while she has no idea how much money she stole from
J.P., she did not steal the amount claimed. She maintained that by 2016, J.P. had
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increased her compensation to $300 per week instead of $200—an assertion that J.P.
denied. Young also claimed that she suffered from a hernia that ultimately required
surgery, and for “a good solid year,” her neighbor, R.F., assisted in J.P.’s care. Young
insisted that J.P. agreed to pay R.F. $50 per day approximately four days a week during
that time, totaling $10,400. J.P. agreed that R.F. helped care for her “a couple of times”
and was paid, but it was not on a regular basis—it was occasional.
{¶ 21} Young also claimed that she shopped for groceries for J.P. and paid cash.
She estimated paying $500 to $800 per month in cash for J.P.’s groceries. She conceded
that for some period of time, J.P. had a grocery service, and J.P.’s bank statements
showed some grocery purchases on her bank card. In fact, J.P.’s bank statements showed
grocery purchases every month except one for the period of January of 2017, until
Young’s termination. And contrary to Young’s testimony, J.P. testified that she only
“occasionally” paid cash for groceries.
{¶ 22} R.F. testified that about a year and one-half ago, Young asked her if she
wanted to go to work with her. R.F. said she would. For the most part, she did not help
care for J.P.—“[Young] did it kind of on her own”; R.F. “was just kind of there.”
Sometimes R.F. would help Young transfer J.P. from the car into her wheelchair or help
take off her shoes and put them away. She gave J.P. a shower during her depressive
episode. And she sometimes helped shop for J.P.; she claimed that when she did,
groceries were paid for in cash. R.F. explained that while recovering from hernia
surgery, Young still went to J.P.’s home, but R.F. just did more than she usually did.
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R.F. did this for about a year and was paid roughly $200 per week. She never spoke with
J.P. about being compensated—she spoke with Young who said she would talk to J.P.
about it. R.F. was never paid directly by J.P.—she was paid by Young.
B. The trial court issued a detailed decision explaining its restitution order.
{¶ 23} The trial court issued a detailed order on August 7, 2019, summarizing the
evidence and making numerous findings of fact and assessments of the witnesses’
credibility. It observed that J.P.’s testimony was “cogent, credible, and frank,” and she
admitted when she did not know an answer with certainty. The court found that it was
more likely than not that J.P.’s figures were true. She “was able to identify by use of the
bank records which withdrawals were for [Young’s] compensation, and gave [Young] the
benefit of the doubt on various monthly withdrawals.”
{¶ 24} The court explained that it had granted “little weight” to Young’s
testimony, and it specifically rejected Young’s claim that by 2016, J.P. agreed to pay her
$300 per week. The court found that J.P. had rebutted this assertion. It emphasized that
Young offered no basis for establishing and calculating the amount that she stole from
J.P., whereas J.P. was able to identify these amounts based on bank records.
{¶ 25} Additionally, the court said that it had attributed “little weight” to R.F.’s
testimony. It found that the $200 per week that R.F. received was the same $200 per
week that J.P. testified was the agreed-upon compensation for her caregiver, and it
observed that R.F. had admitted that Young always paid her. In other words, the trial
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court did not believe that J.P. agreed to pay two caregivers when Young was unable to
work.
{¶ 26} The court concluded that J.P.’s economic loss was $49,114—$49,104 as
reflected in the state’s amended Exhibit 5, plus $10 for ATM fees that were not included
in Exhibit 5 but which appeared in the bank statements.
C. The trial court’s restitution award is not clearly and
convincingly contrary to law.
{¶ 27} Young argues that the court’s restitution award should be reduced because
J.P.’s economic loss was unclear and was not proven by a preponderance of the evidence.
She maintains that (1) the court should have accepted Young’s claim that her
compensation was increased to $300 per week in 2016, which, for 124 weeks, would
have reduced J.P.’s economic loss by $12,400; (2) the court should have subtracted out
R.F.’s compensation of $200 per week for a year, which would have reduced the
economic loss by another $10,400; (3) the court should have assigned weight to Young’s
testimony that J.P. paid $75 per week in cash for gas and groceries, totaling $9,300 over a
period of 124 months2; and (4) the court should have excluded from the restitution
amount the $60 per week that J.P. paid in cash to her house cleaner, totaling $7,400 over
a period of 124 months. Young claims that the trial court’s decision “does not describe in
detail how it came to its conclusion as [to] the amount of [J.P.’s] losses.” She insists that
2
Young did not testify to this; this assertion was made in her sentencing memorandum.
11.
the court simply accepted the calculations from the state’s Exhibit 5 “without addressing
the disputed evidence,” and “did not explain what evidence [it] found persuasive.”
{¶ 28} In calculating a victim’s economic loss, “[t]he reliability of the evidence
and the credibility of the witnesses is for the trial court, as trier of fact, to determine.”
Isaacs, 2d Dist. Montgomery No. 27414, 2017-Ohio-7637, at ¶ 10. The trial court need
not “itemize or otherwise explain how it arrived at the amount of restitution it orders, so
long as the trial court can discern the amount of restitution to a reasonable degree of
certainty from competent, credible evidence in the record.” (Internal citations and
quotations omitted.) State v. Patton, 4th Dist. Highland No. 18CA9, 2019-Ohio-2769,
¶ 26.
{¶ 29} Here, despite Young’s arguments to the contrary, the trial court fully
explained how it calculated restitution, and it made specific credibility determinations
that further explained the rationale for its award. In arguing that the court did not
describe its award in detail and did not address the disputed evidence, it appears that
Young has overlooked the trial court’s August 7, 2019 order where it did just that—
described its award in detail and addressed the disputed evidence.
{¶ 30} The court specifically explained that it believed J.P.—not Young—with
respect to the amount of Young’s compensation. It rejected Young’s claim that J.P.
agreed to pay R.F. $200 per week for a year on top of Young’s compensation. The court
believed J.P.’s testimony that her cleaning person was paid $60 per week from her $100
spending money that she withdrew each week. And even Young conceded at the hearing
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that there was no reliable way for her to estimate how much cash she spent on groceries
for J.P.—J.P. had a grocery service for some period of time and Young acknowledged
that she sometimes used a bank card for J.P.’s groceries. In fact, the bank statements
show monthly grocery store purchases for 11 out of 12 months in 2017, and every month
in 2018, ranging from $125 to $1,400 per month.
{¶ 31} In Scurlock, we upheld the amount of a restitution award despite the fact
that the victim “did not know, with certainty, the amount of money in the [safe deposit]
box on the day [the defendant] removed its contents.” State v. Scurlock, 6th Dist. Lucas
No. L-15-1200, 2017-Ohio-1219, ¶ 54. Here, too, J.P. could not say with certainty how
much Young stole from her, but she was certain that she had not overestimated the
amount and, in fact, had likely underestimated it. Moreover, the trial court—which had
the benefit of seeing the witnesses testify—made clear that it did not believe Young or
R.F. Accordingly, we find that its restitution award was supported by competent,
credible evidence, J.P.’s economic loss was proven by a preponderance of the evidence,
and the restitution award was not clearly and convincingly contrary to law.
{¶ 32} We find Young’s two assignments of error not well-taken.
III. Conclusion
{¶ 33} Young’s two assignments of error misstate the applicable standard of
review. Reviewing her arguments under the proper standard—R.C. 2953.08(G)(2)(b)—
we find that the trial court’s restitution award was not clearly and convincingly contrary
to law. The victim’s economic loss was proven by a preponderance of the evidence
13.
based on her testimony and supporting bank statements, and the court’s findings were
supported by competent, credible evidence. We find Young’s assignments of error not
well-taken.
{¶ 34} We affirm the August 16, 2019 judgment of the Lucas County Court of
Common Pleas, but we remand this matter to the trial court so that the court may enter a
nunc pro tunc judgment correcting the amount of restitution to $49,114, as reflected in its
August 7, 2019 order. Young is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
14.