State v. Crosby , 2024 Ohio 2877 ( 2024 )

[Cite as State v. Crosby, 2024-Ohio-2877.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230404
TRIAL NOS. B-2103088
Plaintiff-Appellee, : B-2105212
:
vs. O P I N I O N.
:
RICHARD CROSBY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part and Appeal Dismissed in Part
Date of Judgment Entry on Appeal: July 31, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings
and Andrew A. Berghausen, Assistant Prosecuting Attorneys, for Plaintiff-Appellee,
Arenstein & Gallagher and Elizabeth Conklin, for Defendant-Appellant,
Strauss Troy Co., LPA, William K. Flynn and Andrew D. White, for Amicus Curiae
Strauss Troy Co., LPA.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Richard Crosby, while employed as an attorney at
the law firm of amicus curiae Strauss Troy Co., LPA, (“Strauss Troy”) failed to deposit
funds received from the firm’s clients into the firm’s IOLTA account and stole the
funds. When Crosby’s actions were discovered, both Strauss Troy and the Lawyer’s
Fund for Client Protection (“the Lawyer’s Fund”) reimbursed several of the clients
from whom Crosby had stolen. After Crosby pled guilty to multiple counts of theft, the
trial court ordered him to pay restitution to Strauss Troy and the Lawyer’s Fund in the
amount of the reimbursement payments that they had made to the victims of the theft
offenses.
{¶2} Crosby now asks this court to hold that neither Strauss Troy nor the
Lawyer’s Fund were victims of his offenses or entities to whom restitution could be
awarded. We disagree and hold that the trial court properly awarded restitution to
Strauss Troy as a victim of Crosby’s offenses and to the Lawyer’s Fund as “another
agency designated by the court” that, pursuant to R.C. 2929.18(A)(1), was entitled to
be awarded restitution.
I. Crosby Pleads Guilty and Restitution is Ordered
{¶3} In the case numbered B-2103088, Crosby pled guilty to two counts of
theft, both fourth-degree felonies in violation of R.C. 2913.02(A)(2).1 The victims of
these two offenses were Strauss Troy clients Loree Cardenas and Bianca Adkins.
Strauss Troy reimbursed Cardenas $39,236.72 and reimbursed Adkins $10,000.
Adkins also received $30,200 from the Lawyer’s Fund. For these offenses, the trial
1 In the case numbered B-2105212, Crosby pled guilty to two additional counts of theft. He advances
no assignment of error with respect to his convictions in this case number on appeal, so that part
of the appeal must be dismissed.
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OHIO FIRST DISTRICT COURT OF APPEALS
court sentenced Crosby to a five-year period of community control. Over Crosby’s
objection, the trial court ordered Crosby to pay $49,236.72 restitution to Strauss Troy
and $30,200 restitution to the Lawyer’s Fund.
{¶4} Crosby now appeals.
II. Award of Restitution
{¶5} In a single assignment of error, Crosby argues that the trial court’s
award of restitution to Strauss Troy and the Lawyer’s Fund in the case numbered B-
2103088 was contrary to law. He contends that neither Strauss Troy nor the Lawyer’s
Fund was an entity eligible to receive restitution.
{¶6} R.C. 2929.18 addresses the imposition of restitution in felony cases. It
provides that the trial court may impose:
Restitution by the offender to the victim of the offender’s criminal
offense or the victim’s estate, in an amount based on the victim’s
economic loss. In open court, the court shall order that full restitution
be made to the victim, 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. At sentencing, the court shall determine
the amount of restitution to be made by the offender.
R.C. 2929.18(A)(1). The plain language of the statute provides that restitution may be
awarded to either the victim of the offense, the adult probation department, the clerk
of courts, or another agency designated by the court. Id. Only the first and last
categories—the victim and another agency designated by the court—are relevant to
this appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} In determining whether a person or an entity qualifies as a victim,
courts have applied the definition of victim set forth in Marsy’s Law, Article I, Section
10a of the Ohio Constitution. State v. Jones, 2020-Ohio-81, ¶ 9-10 (1st Dist.). Marsy’s
Law provides that a victim is “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). 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.), quoting State v.
Lovelace, 137 Ohio App.3d 206, 216 (1st Dist. 1999).
{¶8} “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.” Jones at ¶ 6. We separately address whether Strauss Troy
and the Lawyer’s Fund were entitled to restitution.
Strauss Troy
{¶9} Crosby argues that Strauss Troy is not entitled to restitution because the
firm was not named as a victim in the indictment, the state proffered no evidence that
Strauss Troy incurred an economic detriment as the direct and proximate result of
Crosby’s actions, and it is a third party that voluntarily paid the named victims the
monies that they claimed to be owed. Crosby likens the actions of Strauss Troy to those
of an insurance company and argues that the law firm should be required to pursue a
civil action against Crosby for damages, rather than be awarded restitution.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} We disagree with Crosby’s attempts to compare the actions of Strauss
Troy to those of an insurance company. The Ohio Supreme Court has explained that
an insurance company is not eligible to receive an award of restitution for an economic
loss suffered after reimbursing an insured for a covered loss. State v. Allen, 2019-Ohio-
4757, ¶ 11. When an insurance company makes such a payment, “it is merely fulfilling
an obligation that it voluntarily took on to protect another against a loss. In such a
case, it is hard to describe the insurer as a victim of a crime when it was not the target
of the crime and when it was merely providing the service that it had agreed to perform
in return for the payment of an insurance premium.” Id.{¶11} The Allen court distinguished the payment of restitution to a bank that
recredited a depositor’s account after cashing a forged check. It explained that unlike
an insurance company, a bank is a victim in a forged-check case 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. at ¶ 12.
{¶12} Strauss Troy’s reimbursement of Cardenas and Adkins is more akin to
a bank crediting a depositor’s account in a forged-check case than it is to an insurance
company paying a covered loss. Unlike an insurance company, Strauss Troy was not
contractually required to cover losses suffered by the firm’s clients at the hands of an
employee. Nor was it compensated for doing so, in contrast to an insurance company
that had received a premium in return for coverage.
{¶13} Further, like the bank in the previously set forth scenario, Strauss Troy
suffered an economic loss and was directly and proximately harmed by Crosby’s
actions. Crosby, as an employee of Strauss Troy, was required to put the clients’
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OHIO FIRST DISTRICT COURT OF APPEALS
retainer fees into the firm’s IOLTA account. The clients were clients of the firm. As
Crosby was its agent, Strauss Troy likely could have been held vicariously liable for his
actions. See Natl. Union Fire Ins. Co. v. Wuerth, 2009-Ohio-3601, ¶ 25. But for
Crosby’s theft of the client’s payments, the firm would not have needed to reimburse
Cardenas and Adkins. See Borger, 2023-Ohio-1124, at ¶ 19 (1st Dist.). It was also
reasonably foreseeable that Strauss Troy would reimburse the firm’s clients, and such
action by Strauss Troy was within the “natural and continuous sequence of events”
that could be expected to follow Crosby’s actions. See Yerkey, 2022-Ohio-4298, at ¶
16.
{¶14} Because Strauss Troy was directly and proximately harmed by Crosby’s
actions, the trial court did not err in awarding restitution to the firm as a victim of
Crosby’s offenses. See Ohio Const., art. I, § 10a(D).
The Lawyer’s Fund
{¶15} Crosby argues that the Lawyer’s Fund is not entitled to restitution
because it does not qualify as a victim or “another agency designated by the court.” We
need not address Crosby’s argument that the Lawyer’s Fund was not a victim because
we find that it was properly awarded restitution as “another agency designated by the
court.”
{¶16} The Lawyer’s Fund was established by Ohio Supreme Court Gov. Bar R.
VIII. This rule provides in relevant part that:
There shall be a Lawyers’ Fund for Client Protection of the Supreme
Court of Ohio consisting of amounts transferred to the fund pursuant to
this rule and any other funds received in pursuance of the fund’s
objectives. The purpose of the fund is to aid in ameliorating the losses
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caused to clients and others by defalcating members of the bar acting as
attorney or fiduciary, and this rule shall be liberally construed to
effectuate that purpose.
Gov.Bar R. VIII(1)(A).
{¶17} Crosby argues that the Lawyer’s Fund does not qualify for restitution as
“another agency designated by the court” because it was created by the Ohio Supreme
Court and is not a governmental agency. However, the website of the Ohio Supreme
Court, which established the fund, states that “[t]he Lawyers Fund for Client
Protection is an agency of the Supreme Court.” (Emphasis added.) Supreme Court of
Ohio, Lawyers’ Fund for Client Protection,
https://www.supremecourt.ohio.gov/courts/advisory/boards/client-protection/
(accessed July 22, 2024) [https://perma.cc/8PTV-BJGE]. As the Supreme Court is a
branch of the government, the Lawyer’s Fund is a governmental agency.
{¶18} Crosby also argues that the Lawyer’s Fund does not qualify for
restitution as “another agency designated by the court” because R.C. 2743.72(E) only
mentions the Attorney General’s reparations fund, established by R.C. 2743.191, as
being “an eligible recipient for payment of restitution.” However, the fact that there is
a provision in R.C. 2743.72(E) stating that the Attorney General’s reparations fund is
eligible to receive restitution payments does not mean that other reparations funds are
not so eligible. R.C. 2743.72 only concerns the Attorney General’s reparations fund
and so logically would not mention the Lawyer’s Fund, which is an agency of the
Supreme Court of Ohio.
{¶19} In State v. Bartholomew, 2008-Ohio-4080, ¶ 12, the Supreme Court
held that despite the specific language in R.C. 2743.72(E) making the Attorney
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General’s reparations fund eligible for restitution, “it is beyond cavil that the purpose
of R.C. 2929.18(A)(1) is to require the offender to reimburse the victim—or whatever
entity paid the victim—for the economic loss caused by the crime.” Thus, the court
found that the General Assembly intended the reparations fund to be an “agency
designated by the court” under R.C. 2929.18(A)(1). Id. at ¶ 9.
{¶20} The Lawyer’s Fund serves the same purpose as the Attorney General’s
reparations fund. The difference between the two funds is that the Attorney General’s
fund assists crime victims generally, while the Lawyer’s Fund assists victims of an
attorney’s misconduct. Like the Attorney General’s reparations fund, the Lawyer’s
Fund pays victims for economic loss caused by crime. It would be incongruous to allow
restitution to the Attorney General’s fund as “another agency designated by the court”
and not the Lawyer’s Fund.
{¶21} The plain language of R.C. 2929.18(A)(1) states that restitution may be
made “to another agency designated by the court.” We hold that the Lawyer’s Fund is
an agency and was properly awarded restitution.
{¶22} Crosby’s assignment of error is accordingly overruled.
III. Conclusion
{¶23} Having determined that the trial court did not err in awarding
restitution to Strauss Troy or the Lawyer’s Fund, we affirm its judgments in the case
numbered B-2103088. The appeal is dismissed as it relates to the case numbered B-
2105212.
Judgments affirmed in part and appeal dismissed in part.
BERGERON, P.J., and WINKLER, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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