State v. Collins , 2024 Ohio 5112 ( 2024 )

[Cite as State v. Collins, 2024-Ohio-5112.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240011
TRIAL NO. B-2004916
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
REGINA COLLINS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Conviction Affirmed as Modified, Sentence Vacated,
and Cause Remanded.
Date of Judgment Entry on Appeal: October 25, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Stephanie N. Lape, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Harrell Collins Sr. (“Harrell Sr.”) gave his daughter, defendant-
appellant Regina Collins (“Regina”),1 his power of attorney to make decisions related
to his property. The State indicted Regina for using some of Harrell Sr.’s property
beyond the scope of his consent, alleging that she had spent his social security and
pension payments on her own personal expenses and gambling, rather than on Harrell
Sr.’s nursing home bills. Regina was convicted of third-degree felony theft from a
person in a protected class and ordered to pay restitution to the nursing homes. Regina
now appeals, arguing (1) that the State’s evidence was insufficient, (2) that her
conviction was against the manifest weight of the evidence, (3) that the nursing homes
were not entitled to restitution, and (4) that her trial counsel was ineffective. As we
explain below, Regina is partially correct: the State’s evidence was sufficient only to
convict Regina of a lesser-included degree of theft, and the nursing homes are not
“victims” entitled to restitution. We therefore modify Regina’s conviction, vacate her
sentence and restitution order, and remand this cause to the trial court for
resentencing on the modified conviction.
I. BACKGROUND
{¶2} Regina moved in with her parents in 1993 to help care for her elderly
grandmother. After Regina’s grandmother and mother passed away, she continued to
live with her father, Harrell Sr., as roommates. During their time together, Regina and
Harrell Sr. would often go to the casino. In 2016, Harrell Sr. gave Regina his medical
and general power of attorney.
1 Because this case involves several members of the Collins family, all of whom share a last name,
this opinion will refer to the various family members by their first names.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} From March 8, 2018, until his death in July 2020, Harrell Sr. resided in
long-term nursing care, first at Premier Estates of Three Rivers (“Premier Estates”),
and later at Batavia Healthcare Center (“Batavia Healthcare”). During that time,
Harrell Sr. had a tracheotomy and was on a ventilator. As a result, Harrell Sr. was
unable to speak.
{¶4} Harrell Sr. received income from social security and payments from his
late wife’s pension. Harrell Sr.’s social security payments were deposited into a U.S.
Bank account, which he held jointly with Regina. The U.S. Bank account was closed at
the end of February 2018. The pension payments were deposited into a Chase Bank
account, which was held solely in Regina’s name and remained open at the end of the
period listed in the indictment. Regina routinely withdrew the payments made into
these accounts as soon as they were deposited. She claimed these immediate
withdrawals were necessary because Harrell Sr. was susceptible to being the victim of
various financial scams.
{¶5} During Harrell Sr.’s time at the nursing homes, Regina was responsible
for his finances under his power of attorney. Regina routinely argued with the nursing
homes about the amounts due and refused payment because, she claimed, Harrell Sr.
was not receiving adequate care. Regina claims that she made complaints to various
government agencies about the unacceptable care provided by the nursing homes. At
trial, representatives of Premier Estates and Batavia Healthcare testified that Harrell
Sr. owed $9,275.12 and $6,500 to the two facilities, respectively.
{¶6} Because of Harrell Sr.’s nonpayment, a representative from Premier
Estates filed a complaint with the Medicaid Fraud Control Unit of the Ohio Attorney
General’s Office (“OAG”). An investigator from the OAG eventually reviewed
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OHIO FIRST DISTRICT COURT OF APPEALS
statements from the bank accounts into which Harrell Sr.’s funds were deposited and
found that between August 2016 and November 2019, a total of $48,045.48 in social
security and pension payments had been removed. The investigator attributed these
withdrawals to Regina.
{¶7} Regina was indicted on one count of theft from a person in a protected
class in violation of R.C. 2913.02(A)(2) and one count of unauthorized use of property
in violation of R.C. 2913.04. Relying upon the $48,045.48 figure provided by the OAG,
both crimes were charged as second-degree felonies. The period charged in the
indictment ran from August 1, 2016, to November 19, 2019.
{¶8} Following a bench trial, Regina was convicted of theft from a person in
a protected class, but was found not guilty of unauthorized use of property. Many of
the suspect withdrawals had been in cash, however, and the trial court could not
determine what that cash had been used for. The trial court nevertheless found that
Regina “had no consent, implied or otherwise, to use her father’s property for her own
benefit to the exclusion of paying his most basic bills.” On this theory, the trial court
found that the State had proven that Regina stole $15,775.12—the amount of Harrell
Sr.’s unpaid medical bills—but not all $48,045.48 charged in the indictment. The
decrease in the value of property stolen resulted in a correlate drop in the degree of
Regina’s theft conviction from a second-degree felony to a third-degree felony. Regina
was sentenced to three years of community control and ordered to pay restitution in
the amount of $8,050 to Premier Estates and $5,136.73 to Batavia Healthcare. This
timely appeal followed.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. ANALYSIS
{¶9} On appeal, Regina raises four assignments of error. The first two
contend that the evidence supporting her conviction was insufficient, and that the
conviction was against the manifest weight of the evidence, respectively. The third
assignment of error contends that the nursing homes were not “victims” under Ohio
law, and the trial court therefore erred in ordering Regina to pay them restitution. And
in her fourth assignment of error, Regina asserts that her trial counsel was ineffective
for failing to introduce certain evidence and make certain objections. We will address
each assignment of error in the order presented.
A. Sufficiency & Manifest Weight of the Evidence
{¶10} In her first assignment of error, Regina challenges the legal sufficiency
of the evidence against her. In her second, she argues that her conviction was against
the manifest weight of the evidence. Because these assignments of error both relate to
the evidence used to convict Regina, we consider them together.
{¶11} When reviewing the sufficiency of the evidence, an appellate court asks
whether, viewing the evidence in the light most favorable to the prosecution, a rational
trier of fact could have found the elements of the crime proven beyond a reasonable
doubt. State v. Jones, 2021-Ohio-3311, ¶ 16. Essentially, the court “asks whether the
evidence against a defendant, if believed, supports the conviction.” (Emphasis sic.) Id.{¶12} In reviewing whether a conviction runs counter to the manifest weight
of the evidence, we sit as a “thirteenth juror who may disagree with the factfinder’s
resolution of the conflicting evidence.” (Cleaned up.) State v. Martin,
2022-Ohio-4175, ¶ 26. To do so, we “must review the entire record, weigh the evidence
and all reasonable inferences, and consider the credibility of all the witnesses,” then
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“decide whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed” and a new trial ordered. (Cleaned up.) State v. McKelton, 2016-Ohio-5735,
¶ 328, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶13} Regina was convicted of theft from a person in a protected class in
violation of R.C. 2913.02(A)(2). The relevant provision states that “[n]o person, with
purpose to deprive the owner of property or services, shall knowingly obtain or exert
control over either the property or services . . . [b]eyond the scope of the express or
implied consent of the owner or person authorized to give consent.” R.C.
2913.02(A)(2). If property was so taken, and if the victim of the theft was a member of
a protected class, R.C. 2913.02(B)(3) dictates the level of the offense based on the value
of the stolen property. Relevant here, (B)(3) makes theft from a person in a protected
class a second-degree felony if the property was worth between $37,500 and
$149,999.99, a third-degree felony if it was worth between $7,500 and $37,499.99,
and a fourth-degree felony if it was worth between $1,000 and $7,499.99. The trial
court ultimately found Regina guilty of third-degree felony theft from a person in a
protected class.
{¶14} Regina’s sufficiency and weight arguments rest on two contentions: (1)
that the State did not actually prove the amount of money she stole from Harrell Sr.,
instead using the amounts due to the nursing homes as a proxy for the value stolen;
and (2) that, based on the broad powers conferred on Regina by Harrell Sr.’s power of
attorney, the State failed to prove that Regina’s use of the funds exceeded the scope of
Harrell Sr.’s consent. To determine whether either argument has merit, we must first
address the scope of Harrell Sr.’s consent in his power of attorney.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} “A power of attorney is a written instrument authorizing an agent to
perform specific acts on behalf of the principal.” MacEwen v. Jordan,
2003-Ohio-1547, ¶ 10 (1st Dist.); accord R.C. 1337.22(G). Since 2012, powers of
attorney in Ohio have been governed by the Uniform Power of Attorney Act
(“UPOAA”), R.C. 1337.21-64, as supplemented by those traditional “principles of law
and equity” that the statute did not displace. R.C. 1337.39.
{¶16} To create a power of attorney, the principal must select an agent to act
in their stead—traditionally called an “attorney in fact,” see R.C. 1337.22(A)—who
accepts that authority by exercising it. R.C. 1337.33. Upon acceptance, the agent
assumes a nonwaivable duty to “[a]ct only within the scope of authority granted in the
power of attorney.” R.C. 1337.34(A)(3). When that instrument gives the agent “general
authority” with respect to a matter or subject, the agent may exercise the powers
described for that matter or subject in R.C. 1337.45-58, unless otherwise stated in the
power of attorney. R.C. 1337.43. And a grant of authority “to do all acts that a principal
could do” (or of similar import) confers upon the agent the general authority described
above as to all subjects and matters described in R.C. 1337.45-57. R.C. 1337.42(C).
{¶17} Such a grant of broad general authority, however, does not include the
authority to make gifts, which is described in R.C. 1337.58. The authority to “make a
gift” is one of the powers that an agent must be expressly granted. R.C. 1337.42(A)(2);
accord MacEwen at ¶ 12 (holding, pre-UPOAA, that an agent “may not make
gratuitous transfers of the principal’s assets unless the power of attorney from which
the authority is derived expressly and unambiguously grants the authority to do so”).
And even if an agent is given the authority to make gifts, she may not use that authority
to “create in [herself], or in an individual to whom [she] owes a legal obligation of
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OHIO FIRST DISTRICT COURT OF APPEALS
support, an interest in the principal’s property,” unless the agent is “an ancestor,
spouse, or descendant” of the principal. R.C. 1337.42(B).
{¶18} An agent appointed under a power of attorney “has a fiduciary
relationship with the principal.” MacEwen, 2003-Ohio-1547, at ¶ 10 (1st Dist.). The
UPOAA codifies many of the traditional duties of a fiduciary, including duties of loyalty
and good faith, the duty to keep records, and the duty to avoid conflicts of interest.
R.C. 1337.34(A) and (B); see Andrew H. Hook & Lisa V. Johnson, The Uniform Power
of Attorney Act, 45 Real Property, Trust & Estate L.J. 283, 296-297 (2010).2 With
respect to gifts, R.C. 1337.58 specifies that an agent empowered to make a gift may
only do so as she “determines is consistent with the principal’s objectives if actually
known by the agent and, if unknown, as the agent determines is consistent with the
principal’s best interest based on all relevant factors,” including
(1) The value and nature of the principal’s property;
(2) The principal’s foreseeable obligations and need for maintenance;
(3) Minimization of taxes, including income, estate, inheritance,
generation-skipping transfer, and gift taxes;
(4) Eligibility for a benefit, a program, or assistance under a statute or
regulation;
(5) The principal’s personal history of making or joining in making gifts.
R.C. 1337.58(C).
{¶19} While the UPOAA prescribes numerous civil remedies for an agent’s
breach of duty, those remedies are not exclusive. R.C. 1337.41. An agent’s liability
2 Available at https://www.americanbar.org/content/dam/aba/publications/real_property_
trust_and_estate_law_journal/v45/rpte-journal-v45-2-article-hook-johnson.pdf.
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OHIO FIRST DISTRICT COURT OF APPEALS
under R.C. 1337.37 does not “limit the agent’s liability to [those] amounts,” and where
a state “has enacted separate statutes to deal with financial abuse, an agent may face
additional civil or criminal liability.” Uniform Power of Attorney Act, section 117,
comment (Uniform Law Comm. 2006);3 accord Hook & Johnson at 300. Ohio’s theft
statute imposes just such criminal liability in its use-beyond-consent provision, R.C.
2913.02(A)(2). Prior to the UPOAA’s passage, for example, the Eleventh District
affirmed the conviction of an agent under R.C. 2913.02(A)(2) for giving herself an
unauthorized gift under a power of attorney. State v. Hanusosky, 2009-Ohio-3409,
¶ 65 (11th Dist.).
{¶20} To assess whether the trial court could find Regina guilty of theft,
therefore, we must ask two questions: (1) what was the scope of Regina’s authority to
dispose of the funds under Harrell Sr.’s power of attorney, and (2) based on the State’s
evidence, what portion of Harrell Sr.’s property did Regina “knowingly obtain or exert
control over” to spend beyond the scope of that authorization? The State’s theory,
below and in its briefs, was that Regina used her father’s funds for her own, personal
benefit—including to fund her gambling activities. In other words, the State contends
that Regina made a series of unauthorized self-gifts beyond the scope authorized in
Harrell Sr.’s power of attorney.
1. What Did the Power of Attorney Authorize?
{¶21} The text of Harrell Sr.’s power of attorney was taken from the statutory
form in R.C. 1337.60. Neither the statutory form nor the particular instrument in this
case included an express and unambiguous grant of authority for the agent to make
3 Available at https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?
DocumentFileKey=035bcb2c-b21c-e96d-f80f-5bfa14c2d604.
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gifts, as required by R.C. 1337.42(A)(2). The section entitled “GRANT OF GENERAL
AUTHORITY” gave Regina “general authority to act for” Harrell Sr. with respect to all
the listed classes of assets, but did not contain any provision expressly conferring the
power to give gifts. The “LIMITATION ON AGENT’S AUTHORITY” section merely
restated R.C. 1337.42(B)’s proviso that an agent may not engage in self-dealing unless
they are an “ancestor, spouse, or descendant” or unless otherwise specified. Finally,
the “SPECIAL INSTRUCTIONS” section of Harrell Sr.’s power of attorney, left blank
in the statutory form, contained only the handwritten words “No Limitations.”
{¶22} This instrument clearly conferred upon Regina broad, general authority
to dispose of Harrell Sr.’s assets. It even permitted Regina to engage in some measure
of self-dealing while doing so, both because she was a “descendant[]” and because
Harrell Sr.’s “No Limitations” instruction rejected the default rule. If the power of
attorney gave Regina the authority to make a gift of Harrell Sr.’s property, then, it
would also have given her the power to make such a gift to herself. But no provision in
the instrument—not even the “no limitations” instruction—contained the sort of
specific and express language that R.C. 1337.42(B) and this court require to authorize
an agent to make gratuitous transfers. See MacEwen, 2003-Ohio-1547, at ¶ 12 (1st
Dist.) (requiring principal to “expressly and unambiguously grant[] the authority” to
make gifts). Under settled law, therefore, Harrell Sr.’s power of attorney did not give
Regina the power to make a gift of Harrell Sr.’s property—either to herself or anyone
else.
{¶23} This conclusion is strengthened by the preamble language contained in
Ohio’s statutory form, R.C. 1337.60. The form reminds the signatory that, “[u]nless
expressly authorized and initialed by me in the Special Instructions, this power of
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OHIO FIRST DISTRICT COURT OF APPEALS
attorney does not grant authority to my agent to . . . [m]ake a gift.” Although the signed
power of attorney form introduced into evidence generally followed the statutory
language, it did not contain this reminder.4 Nevertheless, the statutory reminder
illustrates that nothing in the statutory form covered gifts, and that the uninitialed “no
limitations” instruction would not have been adequate to do so.
{¶24} But even if Harrell Sr.’s power of attorney had authorized Regina to give
herself a gift from Harrell Sr.’s property, that authority would have been circumscribed
by R.C. 1337.58. That provision, which limits the powers conferred under a general
grant of authority to make gifts, would have permitted Regina to gift herself Harrell
Sr.’s property only if she determined that such a gift was “consistent with [Harrell
Sr.’s] objectives.” R.C. 1337.58(C). If she did not “actually know[]” her father’s
objectives, then Regina could make the gift only if doing so was consistent with his
best interest, considering, inter alia, his “foreseeable obligations and need for
maintenance.” R.C. 1337.58(C)(2).
{¶25} Given the statutory requirements and this court’s precedent, the State’s
evidence, which included the power of attorney form, was sufficient for the trial court
to find that Harrell Sr. “did not grant express consent nor did he grant implied consent
for [Regina] to use all of his property for her benefit to the exclusion of paying the bills
that went to his care.” Based on this finding, any funds that Regina spent or withdrew
as a gift for her own benefit were “beyond the scope of the express or implied consent
of” Harrell Sr.—at least while medical bills remained unpaid. R.C. 2913.02(A)(2).
4 Harrell Sr.’s signed power of attorney form, which was introduced as State’s Exhibit 1 at trial,
included a photocopy of Regina’s license on an unnumbered initial page, followed by a page
containing part of the statutory form and labeled at the bottom with the text “Page 2.” It is unclear
whether there had been a different “Page 1,” or whether the page containing Regina’s license had
always been “Page 1.”
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OHIO FIRST DISTRICT COURT OF APPEALS
2. Which Funds Were Misappropriated?
{¶26} The problem comes in determining which funds Regina did or did not
dispose of as a gift. The State, in its bill of particulars and at trial, took the position
that all of the pension and social security payments that had been deposited into
Harrell Sr.’s accounts were withdrawn by Regina and spent beyond the scope of
authorization. The trial court took a more conservative tack, finding that Regina only
misappropriated the amount of funds owed and not paid for Harrell Sr.’s nursing-
home care ($15,775.12).
{¶27} But the State did not prove that Regina had misappropriated a sum of
$15,775, only that she had failed to pay that much. As Regina points out, Harrell Sr.’s
power of attorney granted her broad authority to spend Harrell Sr.’s money on his
behalf. Harrell Sr. could conceivably have benefitted from expenditures other than
payment of his nursing-home bills. Even payments for cell phone bills, dry cleaning,
and gasoline could conceivably have been for Harrell Sr.’s benefit, if, in good faith,
Regina deemed them necessary to facilitate his care. And Regina was free to reimburse
herself for these and similar caregiving expenses from Harrell Sr.’s funds, including in
cash. See R.C. 1337.32 (“an agent is entitled to reimbursement of expenses reasonably
incurred on behalf of the principal and to compensation that is reasonable under the
circumstances”).
{¶28} Because we are dealing here with a criminal prosecution, the State bore
the heavy burden of introducing evidence to prove beyond a reasonable doubt, not
merely that Regina spent Harrell Sr.’s funds, but that she spent them in impermissible
ways. Its primary evidence of misappropriation were monthly statements from the
Chase and U.S. Bank accounts.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} The U.S. Bank statements concerned the account under both Regina’s
and Harrell Sr.’s names, into which Harrell Sr.’s social security payments were
deposited. According to these statements, the U.S. Bank account was closed on
February 28, 2018, before Harrell Sr. entered long-term nursing care on March 8,
2018. While some testimony suggested that Harrell Sr. was placed on a ventilator some
time prior to entering long-term care, the testimony unquestionably demonstrated
that, when he entered long-term care on March 8, he was on a ventilator and generally
unable to communicate. We must presume that, absent evidence to the contrary,
Harrell Sr. could communicate and travel prior to that date. If he could communicate
and travel during the period while the U.S. Bank account was open, Harrell Sr. could
have made or authorized some or all of the withdrawals from that account himself—
even authorized frivolous gifts for Regina’s benefit. The State has offered no evidence
to the contrary. Without such evidence regarding the scope of Harrell Sr.’s express
authorization during the period while he could presumably communicate, the U.S.
Bank statements cannot support an allegation that any funds were used beyond the
scope of authorization.
{¶30} This leaves us with the statements from the Chase Bank account in
Regina’s name, into which the pension payments of Harrell Sr.’s late wife were
deposited. These statements were dated through November 19, 2019, and therefore
encompassed the period during which Harrell Sr. was in nursing-home care and
unable to speak. These statements reveal hundreds of withdrawals and debits, which,
for ease, we can divide into four categories: (1) ordinary, everyday expenditures at
retail establishments like Kroger, to ordinary businesses like a dry-cleaner, or for
necessary debts like bills; (2) cash withdrawals, either at ATMs or as cash-back
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OHIO FIRST DISTRICT COURT OF APPEALS
transactions at retail establishments; (3) payments to casinos; and (4) fees, including
ATM and overdraft fees.
{¶31} The State bore the burden of showing which, if any, of these transactions
were gratuitous self-payments beyond Harrell Sr.’s authorization. The State focused
primarily on Regina’s gambling expenditures. The Chase Bank statements reveal that
at least some of Harrell Sr.’s pension payments were spent at gambling
establishments, like Miami Valley Gaming, during the months when Harrell Sr. was in
long-term care and unable to speak. The OAG investigator testified that Harrell Sr.’s
money “went to [Regina’s] personal credit cards, ATM, casino, Miami Valley Gaming,
Wal-Mart.”
{¶32} Testimony from Regina’s family corroborated the fact that Regina
frequently gambled. Regina herself testified that, prior to his entering long-term care,
she would frequent casinos with her father. Regina’s brother, Harrell Collins Jr.
(“Harell Jr.”), testified that Regina would take Harrell Sr. to casinos when he was still
mobile, and that such gambling was commonplace in their family. The State also
introduced the OAG’s investigative report into evidence, which included a handwritten
statement by Regina’s sister, Sharon. That statement, which was read into the record,
suggested that Regina was not competent to manage Harrell Sr.’s finances and alleged
that Regina had a gambling addiction.
{¶33} Other than the evidence concerning gambling, the State offered little
other explanation of where the money went. The OAG investigator suggested the funds
were used to pay off Regina’s personal credit card, were withdrawn at ATMs, and were
spent at Wal-Mart. The investigator testified that she “didn’t see anything showing”
that Regina had spent Harrell Sr.’s money “for the benefit of” Harrell Sr., and that
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OHIO FIRST DISTRICT COURT OF APPEALS
“there was a lot of cash withdrawals and casinos during the timeframe when [Harrell
Sr.] was in a nursing facility.”
{¶34} So, which transactions did the State’s evidence prove were
impermissible self-gifts, beyond the scope of authorization?
{¶35} First, the State offered no evidence sufficient to show that any
transactions prior to March 8, 2018—when Harrell Sr. went into long-term nursing
care—were beyond the scope of Harrell Sr.’s express or implied authorization. Harrell
Sr. could have approved these transactions—and the only relevant testimony on
record, apart from generalized and conclusory investigator statements, supports such
a theory. Therefore, we hold that the State failed to introduce evidence sufficient to
demonstrate that Regina misappropriated any of the funds spent from either the U.S.
Bank or the Chase Bank accounts prior to March 8, 2018. This covers the entire period
in which the U.S. Bank account was open.
{¶36} Second, the State’s evidence was clearly sufficient to demonstrate that
any money spent at casinos after Harrell Sr. went into long-term nursing care went
beyond Regina’s authorization under the power of attorney. Money Regina spent at a
casino was clearly not spent for her father’s benefit or in his “best interest”; it was a
gift Regina made to herself from Harrell Sr.’s property. Perhaps Harrell Sr. would have
blessed such expenses, had he retained control of his finances. But when he gave
Regina his power of attorney, he did not expressly give her the authority to make
gifts—to herself or anyone else. Regina was therefore bound to spend Harrell Sr.’s
funds on Harrell Sr., not on gifts for herself or others.
{¶37} Further, even if the instrument had authorized self-gifts, Regina would
not have been entitled to dispose of Harrell Sr.’s property for her own gambling to the
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OHIO FIRST DISTRICT COURT OF APPEALS
exclusion of his bills. The State offered ample evidence to demonstrate that Harrell
Sr.’s nursing-home bills were not being paid. Regina does not contest this fact, instead
arguing that she refused to pay the homes because of the substandard care they
provided.
{¶38} But even if Regina’s allegations against the nursing homes are true, and
even if she could legally withhold payment to them, she still would not be permitted to
spend the last cents in Harrell Sr.’s account each month on her own gambling. Yet the
Chase Bank statements reveal that, with one exception, Regina started every billing
cycle between March 20, 2018, and November 19, 2019, with an account balance in
the negative—despite receiving pension payments each month that were sufficient to
bring the account back into the black. Regina’s casino payments contributed to this
monthly deficit. We therefore hold that the State presented sufficient evidence to
support a finding that any of Harrell Sr.’s money spent at casinos while he was in long-
term nursing care, was spent beyond the scope of authorization under the power of
attorney.
{¶39} Third, the State’s evidence supported the inference that Regina’s funds
withdrawn from a particular ATM located at a casino were likewise spent beyond the
scope of authorization. The Chase Bank statements listed numerous withdrawals from
an ATM located at “6000 State Route 63 Lebanon OH.” The OAG investigator testified
that this was the address of Miami Valley Gaming, a casino and gambling
establishment in Lebanon, Ohio. Regina confirmed that the ATM was, in fact, located
at the casino. While the State did not directly demonstrate what the money withdrawn
at the Miami Valley Gaming ATM was used for, the evidence of Regina’s gambling and
expenditures at Miami Valley Gaming, when coupled with the ATM’s location and
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OHIO FIRST DISTRICT COURT OF APPEALS
viewed in the State’s favor, supported a finding that Regina had used these funds, too,
for gambling. We therefore hold that the State presented sufficient evidence for the
trier of fact to conclude that money withdrawn from the ATM at 6000 S.R. 63 was used
to gamble. Thus, to the extent those funds belonged to Harrell Sr., and to the extent
Regina withdrew them while Harrell Sr. was in long-term care, we hold that the State
produced sufficient evidence that they were spent beyond the scope of authorization.
{¶40} Fourth, the evidence also supported the conclusion that the fees and
charges related to gambling went beyond the scope of Regina’s authorization. The
bank statements show that many of Regina’s casino-related payments and
withdrawals made at the Miami Valley Gaming ATM led to overdraft fees and finance
charges. Those fees and charges were generally paid off using funds from the next
month’s pension deposit. Because the evidence was sufficient to find that Regina’s use
of Harrell Sr.’s funds for gambling fell outside the scope of authorization, we hold that
the same evidence was sufficient to show that Regina’s use of Harrell Sr.’s funds to pay
off charges incurred as a direct consequence of those gambling expenditures and
withdrawals did, too.
{¶41} Fifth, the State did not offer evidence that any other withdrawals went
beyond the scope of Regina’s authorization under the power of attorney. True, many
of the other charges on the account statements may appear personal in nature or look
surprising, given the mounting stack of Harrell Sr.’s unpaid nursing-home bills. But
the State was required to offer proof that Regina’s car rentals did not furnish her with
necessary transportation to care for her father, that her cash withdrawals were not
used to make mortgage payments on her father’s home, or that her retail purchases
from Wal-Mart did not contain items for her father’s wellbeing.
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{¶42} Odd and unpredictable expenditures may become necessary when loved
ones enter long-term nursing-home care, and a broad, general power of attorney is
meant to ensure that caregivers have flexibility and available funds to meet those
demands. Given the breadth of Regina’s authority under the power of attorney and the
presumption of innocence, the State bore the burden of introducing evidence to prove
Regina used specific funds to make impermissible, unauthorized self-gifts.5 But the
State’s evidence furnished no basis to conclude that every cent Regina spent—or even
every cent Regina failed to spend on Harrell Sr.’s nursing-home bills—went towards
purely selfish pursuits. We therefore hold that, except for those three groups of
gambling-related withdrawals and charges that we have identified above, the State
failed to introduce sufficient evidence to prove Regina spent Harrell Sr.’s money in a
manner beyond the authorization in his power of attorney. R.C. 2912.03(A)(2) does
not criminalize the nonpayment of nursing home bills; it criminalizes the use of funds
beyond the scope of express or implied consent.
{¶43} Based on these holdings, we turn to calculating the amounts for which
the State did offer sufficient evidence. The relevant account debits between March 20,
2018, and November 19, 2019 (the portion of the charged period during which her
father was in long-term care), break down as follows: (1) $5,638.73 in payments to
casinos, (2) $1,815.84 withdrawn at the ATM located at 6000 S.R. 63 in Lebanon,
5 We note that, under the UPOAA, “[e]xcept as otherwise provided in the power of attorney,” an
agent has a duty to “[k]eep a record of all receipts, disbursements, and transactions made on behalf
of the principal.” R.C. 1337.34(B)(4). It is not clear whether or how the State’s ability to prove a
breach of this duty would affect a sufficiency challenge to a conviction under R.C. 2913.02(A)(2).
But the State has not argued that Regina breached any such duty, and the trial court did not make
any findings to that effect. We therefore assume, without deciding, either that Regina did not breach
any such duty, or that such a duty would not affect the State’s burden in this case and resolve the
case accordingly. As such, we express no opinion on what impact, if any, the duty imposed by R.C.
1337.34(B)(4) has on a prosecution under R.C. 2913.02(A)(2), and we reserve that issue for a case
in which the parties have raised and briefed it.
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio, and (3) $1,095.00 in overdraft fees for the charges included in the totals above.
Altogether, that comes to $8,549.57 in funds that the State proved were spent in ways
the power of attorney did not authorize.
{¶44} But there is another wrinkle: some of those funds may not have been
Harrell Sr.’s property. Regina testified, and the account statements corroborate, that
she sometimes deposited her own funds into the Chase Bank account, including
paychecks she received as a member of the Forest Park City Council. Regina was, of
course, legally entitled to spend her own funds however she chose, including on
gambling. Adding together every deposit that did not come from the pension plan or
from a refund of another transaction, Regina deposited as much as $5,818.61 between
October 2018 and the close of the charged period.
{¶45} The State offered no evidence to suggest that Regina did not use her own
funds to gamble. Thus, given the State’s burden, we must assume that Regina gambled
with her own funds, whenever such funds were available, before gambling with her
father’s funds. This leaves us with the task of calculating how Regina’s deposits
diminished the sum of all unauthorized expenditures described above.
{¶46} If we calculate the difference using the method most favorable to
Regina—i.e., by subtracting the total of all potentially personal deposits from the total
of all the beyond-the-scope withdrawals calculated above—we are left with $2,730.96
in provably unauthorized expenditures.
{¶47} And if we use the method most favorable to the State—i.e., if we subtract
the amount Regina deposited from the amount of gambling-related expenses on a
month-by-month basis, and do not permit the amount of deposited funds beyond
gambling expense to roll over to the next month—we get a difference of $3,989.95.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶48} Under either method, the total amount of misappropriated funds falls
below the $7,500 threshold required for third-degree felony theft from a person in a
protected class, the crime for which Regina was found guilty at trial. See R.C.
2913.02(B)(3). Likewise, both calculated totals exceed the $1,000 minimum required
to constitute a fourth-degree felony under the same statute. Id. (“If the value of the
property or services stolen is one thousand dollars or more and is less than seven
thousand five hundred dollars, theft from a person in a protected class is a felony of
the fourth degree.”).
{¶49} We therefore hold that the State’s evidence was insufficient to convict
Regina for theft of between $7,500 and $37,499.99 from a person in a protected
class—the third-degree felony for which she was found guilty below. However, we also
hold that the same evidence was sufficient to convict her for the fourth-degree felony
of the same offense, i.e., theft of between $1,000 and $7,499.99 from a person in a
protected class.
{¶50} Further, a conviction for fourth-degree felony theft from a person in a
protected class would not be against the manifest weight of the evidence presented to
the trial court. As demonstrated, the bank statements show that Regina withdrew
funds that must have been the property of Harrell Sr. and used them to gamble. She
did so while Harrell Sr. could not possibly have joined her in said gambling, while he
was unable to communicate his intentions, and while his nursing-home bills remained
unpaid. These gambling expenses constituted gifts, which Regina made to herself.
Harrell Sr.’s power of attorney did not permit Regina to make gifts, meaning that any
such gifts were beyond the scope of Harrell Sr.’s consent. Regina offered no evidence
that suggested the power of attorney was incomplete or that the gambling-related
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OHIO FIRST DISTRICT COURT OF APPEALS
transactions we described above were not, in fact, used to gamble. Therefore, based on
the calculations above, a conviction for theft from a person in a protected class of
property worth at least $1,000 and less than $7,500 would not have created such a
manifest miscarriage of justice as to warrant a new trial. See McKelton,
2016-Ohio-5735, at ¶ 328.
{¶51} For the foregoing reasons, we hold that the State’s evidence, while
inadequate to sustain her third-degree felony conviction, was adequate to find her
guilty of the lesser-included offense of fourth-degree felony theft from a person in a
protected class under R.C. 2912.03(A)(2) and (B)(3). We therefore sustain Regina’s
first and second assignments of error in part and overrule them in part.
B. Whether the Nursing Homes Were “Victims” Entitled to Restitution
{¶52} In her third assignment of error, Regina argues that the trial court erred
in ordering her to pay restitution to the two nursing homes. She argues that the
nursing homes are not appropriate recipients of restitution because they do not qualify
as “victims” of her theft, within the meaning of Ohio’s financial-sanctions-and-
restitution statute, R.C. 2929.18.
{¶53} “The issue of who constitutes a ‘victim’ under R.C. 2929.18(A)(1) or to
whom restitution may appropriately be awarded under the statute is a question of law
that is reviewed de novo.” State v. Jones, 2020-Ohio-81, ¶ 6 (1st Dist.). In this case,
however, Regina did not object to the restitution award, and consequently this court’s
review is for plain error. State v. Little, 2019-Ohio-4488, ¶ 8 (1st Dist.). A reviewing
court will “reverse a sentence for plain error only under exceptional circumstances to
prevent a manifest miscarriage of justice.” Id. However, this court has previously held
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OHIO FIRST DISTRICT COURT OF APPEALS
that an order of restitution to an improper victim constitutes plain error. State v.
Martin, 2013-Ohio-2441, ¶ 7 (1st Dist.).
{¶54} Ohio’s restitution-and-financial-sanctions statute does not define the
word “victim.” See R.C. 2929.18; Jones at ¶ 7. “Victim” is, however, defined in Marsy’s
Law—a 2018 Ohio constitutional amendment that gives victims a right “to full and
timely restitution from the person who committed the criminal offense” against them.
Ohio Const., art. I, § 10a(A)(7); see id. at § 10a(D) (defining “victim”). To harmonize
R.C. 2929.18(A)(1) with the requirements of our state constitution, this court has
“applied the definition of victim set forth in Marsy’s Law” in the statutory context.
State v. Crosby, 2024-Ohio-2877, ¶ 7 (1st Dist.).
{¶55} Marsy’s Law defines victim to include “a person against whom the
criminal offense or delinquent act is committed or who is directly and proximately
harmed by the commission of the offense or act.” Ohio Const., art. I, § 10a(D). We have
recently clarified this definition as follows:
Harm will be considered a direct and proximate result of the offender’s
conduct when “the consequence is foreseeable and is produced by the
natural and continuous sequence of events following the act.” State v.
Yerkey, [2022-Ohio-4298, ¶ 16]. This court has described a direct result
as one that would not have occurred “but for” the commission of the
offense. State v. Borger, [2023-Ohio-1124, ¶ 19 (1st Dist.)].
Crosby at ¶ 7.
{¶56} The State argues that the restitution award in this case was proper
because the nursing homes suffered economic harm because Harrell Sr.’s bills were
not paid, and that harm was a direct result of Regina’s misappropriation of Harrell
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OHIO FIRST DISTRICT COURT OF APPEALS
Sr.’s funds. The State suggests, without citation, that the nursing homes had a property
interest in the social security and pension payments made to Harrell Sr., because the
nursing homes had provided medical care to him, for which they were entitled to
reimbursement.
{¶57} While Harrell Sr. may have owed the nursing homes an unpaid debt, a
right to demand payment of a debt is not an interest in the debtor’s property; it is
merely a “chose in action” consisting of a right to sue. See Pilkington N. Am., Inc. v.
Travelers Cas. & Sur. C0., 2006-Ohio-6551, ¶ 19-20, quoting Black’s Law Dictionary
(8th Ed. 2004) (defining “chose in action” as “[t]he right to bring an action to recover
a debt, money, or thing”).
{¶58} A chose in action is itself a form of property, but it does not give its
holder a property interest in a debtor’s assets. To obtain an interest in Harrell Sr.’s
property, the nursing homes would need to reduce their choses in action to judgments,
which they could enforce by lien or levy against Harrell Sr.’s assets.
{¶59} By arguing that the nursing homes had a “property interest” that was
directly harmed by Regina’s theft, the State essentially argues that any creditor, made
less likely to collect a debt after a theft from the debtor, becomes a “victim,” entitled to
rights and relief under Marsy’s law. But if this were true, then it would follow that
Harrell Sr.’s utility service, cell phone provider, and credit card company might
likewise be entitled to Marsy’s Law rights in Regina’s prosecution, so long as Harrell
Sr. owed them money at the time of or after his property was stolen.
{¶60} But Verizon or Duke Energy would not be entitled to restitution in this
case for the same reason the nursing homes are not: because one who holds a chose in
action permitting them to sue a victim of theft is only indirectly harmed by that theft.
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OHIO FIRST DISTRICT COURT OF APPEALS
And under Marsy’s Law, indirect harm does not a victim make. Underpinning this
legalese-heavy conclusion is an easy-to-understand reality: even if Regina had not
misappropriated Harrell Sr.’s funds, the nursing homes could not be certain they
would receive Harrell Sr.’s money until they had initiated a lawsuit, obtained a
judgment, and enforced it by lien or levy. Regina was adamant in her refusal to pay the
bills because of alleged deficiencies in Harrell Sr.’s care. But, the resolution of such
contract claims is the purview of civil litigation, not restitution hearings.
{¶61} The State nevertheless likens this case to State v. Allen,
2019-Ohio-4757, in which a defendant committed theft by cashing a fraudulent check.
In Allen, the Ohio Supreme Court held that the bank, which maintained the account
on which the fraudulent check drew, was a proper victim for restitution purposes. Id.
at ¶ 12. This, the Court said, was because “it is the bank that is defrauded and hence, it
is the bank that is the object of the crime; it is the bank that suffers the economic loss;
and, it is the bank that loses property in which it has an interest at the moment of the
fraud.” Id. The Court also noted that a “person or a business entity is paradigmatically
a victim when they are duped into giving their property to a thief, and they suffer an
economic loss as a result.” Id. at ¶ 10.
{¶62} The State’s reliance on Allen is misplaced. The nursing homes in this
case are differently situated than the bank in Allen in three key respects:
{¶63} First, the funds Regina stole were never the property of the nursing
homes to begin with. In Allen, the Court treated the bank not as a creditor, but as a
debtor, who received funds from accountholders, and who was obligated to repay
those funds upon demand. Id. at ¶ 6. But here, the nursing homes were Harrell Sr.’s
creditors, not his debtors. And because they were creditors, the nursing homes did not
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OHIO FIRST DISTRICT COURT OF APPEALS
have present rights in Harrell Sr.’s money—only choses in action, giving them the right
to sue him.
{¶64} Second, and relatedly, Harrell Sr. did not “deposit[] money” with the
nursing homes, as the accountholder in Allen did. Allen, 2019-Ohio-4757, at ¶ 6. Thus,
unlike the accountholders in Allen, the nursing homes could not claim to have
“gain[ed] a property interest in the money” by pointing to their possession. Id.{¶65} Third, Regina did not “dupe” the nursing homes into giving her money
by fraud, as the defendant in Allen duped the bank with his fraudulent checks. Instead,
Regina used her own ATM card to withdraw money directly from accounts she shared
with Harrell Sr., and then spent that money on things other than paying nursing-home
bills. Regina did not defraud the nursing homes; she just didn’t pay them.
{¶66} Harrell Sr., not the nursing homes, was the victim of this crime. On
these facts, it is Harrell Sr. who “is defrauded and hence, it is [he who] is the object of
the crime; it is [he who] suffers the economic loss; and, it is [he who] loses property in
which [he] has an interest at the moment of the fraud.” Id. at ¶ 12. Harrell Sr. was the
party “directly harmed,” while the nursing homes were harmed only in indirect and
speculative ways. Harrell Sr. was therefore the party entitled to recover restitution
under R.C. 2929.18. The nursing homes, in turn, could have sued Harrell Sr. for
repayment of the debt. And while Harrell Sr. has since passed away, a victim’s estate
remains a proper recipient of restitution under R.C. 2929.18(A)(1), and creditors may
bring claims against it. See R.C. 2117.06.
{¶67} The nursing homes were not “directly and proximately harmed” by
Regina’s theft, and they were therefore not “victims” within the meaning of R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2929.18(A)(1) and Marsy’s Law. The trial court plainly erred in awarding them
restitution, and so we sustain Regina’s third assignment of error.
C. Ineffective Assistance of Counsel
{¶68} In her fourth assignment of error, Regina argues that her trial counsel
was ineffective. Both the Sixth Amendment to the United States Constitution and
Article 1, Section 10 of the Ohio Constitution protect a criminal defendant’s right to
effective assistance of counsel at her trial. State v. Bell, 2023-Ohio-1010, ¶ 9 (1st Dist.).
To establish a claim that her counsel was unconstitutionally ineffective, Regina must
show (1) that her “counsel’s performance was deficient” and (2) that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984); accord Bell at ¶ 9. Proving that counsel’s performance was “deficient,” in the
Strickland sense, requires a defendant to “overcome a strong presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.”
State v. Carter, 72 Ohio St.3d 545, 558 (1995). And Strickland’s prejudice prong
requires that she show “a reasonable probability that, but for counsel’s unprofessional
error, the result of the trial would have been different.” State v. Jeffries,
2018-Ohio-2160, ¶ 76 (1st Dist.), citing State v. Bradley, 42 Ohio St.3d 136 (1989),
paragraph three of the syllabus.
{¶69} Regina alleges that her trial counsel was ineffective in three principal
ways: (1) he failed to introduce potentially exculpatory evidence, (2) he failed to object
to the admission of hearsay statements, and (3) he failed to object to the order to pay
restitution to an improper victim. As we shall explain, all three arguments fail: the first
because it relies upon evidence outside the record, the second because the statements
at issue did not prejudice Regina’s case, and the third because it is moot.
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OHIO FIRST DISTRICT COURT OF APPEALS
1. Failure to Present Exculpatory Evidence
{¶70} In her brief, Regina identifies the following evidence that she had
requested to be presented at trial, which her counsel did not attempt to present: (a)
“witnesses that could testify about the abuse that occurred at the nursing homes,” (b)
“medical records to show the same,” (c) “Medicaid records showing complaints against
the facilities for abuse and neglect,” and (d) “a video showing her father speaking for
the first time in [a] year.”6 All of the evidence Regina identifies speaks to the
substandard level of care she claims Harrell Sr. received, which Regina claims justified
her nonpayment of the balances owed to the nursing homes.
{¶71} Evidence that trial counsel failed to introduce is, by definition, not
included in the trial record. And an appellate court generally “cannot stray outside of
the trial record to evaluate” the value of unintroduced evidence for the purpose of
adjudicating an ineffective-assistance claim. Bell, 2023-Ohio-1010, at ¶ 9 (1st Dist.);
see App.R.12(A)(1)(b) (requiring an appellate court to “[d]etermine the appeal on its
merits on the assignments of error set forth in the briefs . . . , the record on appeal . . . ,
and, unless waived, the oral argument”). As a result, it is often incredibly difficult, if
not impossible, for a defendant on direct appeal to challenge the effectiveness of her
trial counsel under a failure-to-introduce-evidence theory. Bell at ¶ 9.
{¶72} The success or failure of Regina’s failure-to-introduce argument turns
on the contents and character of evidence dehors the trial record. We thus lack record
6 At allocution, Regina claimed that her father was able to speak for short spans of time while in the
nursing home, and that, during one such spell, he told her that he wanted to get out. Regina claims
she responded that there was no other place to take him and that they still owed money to the
nursing home. Regina then described Harrell Sr.’s reply: “His words were, fuck them. Don’t give
them shit. Get me out of here.” Also at allocution, Regina represented that there was a video of
Harrell Sr. speaking to her and other family members. She asserts that this video would show that
Harrell Sr. was at times verbal, and that this would corroborate her recollections of Harrell Sr.
telling her not to pay the nursing homes.
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence as to what the 51 witnesses Regina wished to introduce would have said. We
lack record evidence as to what the Medicaid complaints contained. And most
glaringly, we lack the video to assess its value to Regina’s defense. We have only
Regina’s representations at allocution and in her brief as to their substance—and
neither of these are evidence. See State ex rel. Luonuansuu v. King, 2020-Ohio-4286,
¶ 17 (“the briefs and memoranda of the parties are not evidence” (Cleaned up.)); State
v. Roberts, 2013-Ohio-4580, ¶ 67 (“allocution under Crim.R. 32(A)(1) is unsworn and
thus may not technically amount to evidence”); see also Biddinger v. State, 868
N.E.2d 407, 413 (Ind. 2007) (noting that “a statement in allocution is not evidence,”
but “more in the nature of closing argument”).
{¶73} Claims that depend upon evidence outside the trial record are better
suited for proceedings where that evidence can be introduced, such as a petition for
postconviction relief under R.C. 2953.21 or a motion for a new trial under Crim.R. 33.
And because ineffective assistance “claim[s] regarding counsel’s failure to present
evidence” are ones that “truly depend on evidence outside the trial record,” the Ohio
Supreme Court has acknowledged that they will not be barred by res judicata in a
postconviction proceeding, even if they were known to or raised by the defendant on
direct appeal. State v. Blanton, 2022-Ohio-3985, ¶ 41; accord State v. Smith, 17 Ohio
St.3d 98, 101, fn. 1 (1985) (noting that “res judicata may not be a bar to postconviction
relief” where issue “could not fairly have been determined without resort to
evidence dehors the record”).
{¶74} Because the record does not contain any of the evidence Regina argues
should have been presented, any comments we might make regarding its exculpatory
value “would be purely speculative.” State v. Smith, 2020-Ohio-4976, ¶ 75 (1st Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
Without seeing or hearing the evidence, we cannot conclude that trial counsel’s
performance was deficient, nor that Regina was prejudiced, and we therefore reject
her failure-to-present argument.
2. Failure to Object to Hearsay Statements
{¶75} Regina next suggests that counsel was deficient for failing to object to
the admission of a written statement by her sister, Sharon. The relevant portion of the
statement, read into the record during trial, said, “I hereby attest that Regina has a
gambling addiction and has not paid for my father’s medical bills in residency at Three
Rivers. In addition, it is my position that she is incompetent to be his Power of
Attorney.”7 A full copy of the handwritten statement was contained within the
compiled records making up State’s Exhibit 4.
{¶76} “Counsel’s failure to make objections is not, by itself, enough to sustain
a claim for ineffective assistance of counsel.” State v. Hackney, 2016-Ohio-4609, ¶ 39
(1st Dist.). Rather, the appellant “must show both that there was a substantial violation
of counsel’s duties and that he was materially prejudiced by counsel’s ineffectiveness.”
State v. Conway, 2006-Ohio-791, ¶ 168.
{¶77} Even assuming that Sharon’s statement was inadmissible hearsay, it did
not prejudice Regina. The State’s case was built upon the theory that Regina gambled
away Harrell Sr.’s money while failing to pay his bills. Sharon’s statement, which was
the only evidence of a gambling addiction, did suggest an explanation for that
behavior. But the State did not need to prove Regina had any sort of addiction to prove
that she spent money at Miami Valley Gaming and Jack Casino; the bank statements
7 The text of the transcript does not perfectly match the text in the exhibit. For the purposes of
Regina’s argument, however, the quoted excerpt is substantively identical to the written statement
from which it was taken.
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OHIO FIRST DISTRICT COURT OF APPEALS
said it already. And we have already held that the State presented insufficient evidence
to convict Regina of appropriating any funds other than those directly linked to
gambling. Whether Regina gambled because of addiction, as Sharon suggested, or
simple desire, the State adequately proved that she withdrew the funds we described
above to gamble. Admission of Sharon’s statement did not alter the outcome.
{¶78} Because the admission of Sharon’s statement was not prejudicial,
Regina’s second ineffective-assistance argument fails.
3. Failure to Object to Restitution Award
{¶79} In her final ineffective-assistance argument, Regina contends that her
trial counsel was deficient in not objecting to the inclusion of the nursing homes in the
restitution order. But we have already determined that the trial court plainly erred by
including the nursing homes as “victims” and awarding them restitution. That
determination means we are already required to vacate the restitution order, which is
all the relief Regina could seek under this ineffective-assistance theory. Our decision
to sustain Regina’s second assignment of error thus renders Regina’s third ineffective-
assistance argument moot.
{¶80} Regina’s fourth assignment of error is therefore overruled.
III. CONCLUSION
{¶81} The State’s evidence was not sufficient to convict Regina of third-degree
felony theft from a person in a protected class, but it was sufficient to convict her of
the fourth-degree felony of the same offense. “When the evidence shows that a
defendant is not guilty of the crime for which he was convicted, but is guilty of a lesser-
included offense, this court may modify the conviction.” State v. Davis,
2006-Ohio-4599, ¶ 13 (1st Dist.), citing App.R. 12(B). Therefore, we affirm Regina’s
30
OHIO FIRST DISTRICT COURT OF APPEALS
conviction as modified and vacate her sentence. We remand this cause to the trial court
with instructions to enter a conviction on the lesser-included offense of fourth-degree
felony theft and to conduct a new sentencing hearing on the modified conviction.
Judgment accordingly.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
31