State v. McNear , 2020 Ohio 4686 ( 2020 )

[Cite as State v. McNear, 2020-Ohio-4686.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190643
TRIAL NO. B-1901933B
Plaintiff-Appellee, :
vs. :
O P I N I O N.
JAMIE MCNEAR :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: September 30, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher, William R. Gallagher and Elizabeth Conkin, for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Jamie McNear pled guilty to forgery in violation
of R.C. 2913.31(A)(3). He was sentenced to community control, community service,
a $1,000 fine, and was ordered to pay restitution in the amount of $4,615.95. He has
appealed, and argues in two assignments of error that the trial court erred in
ordering him to pay restitution, and in imposing the $1,000 fine.
{¶2} For the reasons discussed below, we sustain the first assignment of
error and reverse the order of restitution. We overrule the second assignment of
error and affirm the judgment of the trial court in all other respects.
Factual Background
{¶3} On January 11, 2019, the victim’s car was stolen from a gas station in
Georgia. On February 8, 2019, McNear went to a Hamilton County Clerk of Courts
office with fake out-of-state title documents and attempted to transfer title to the
stolen vehicle into his name. A clerk noticed that the title documents were fake and
alerted authorities.
{¶4} McNear was indicted for forgery, receiving stolen property, and
attempting to tamper with records. He pled guilty to the forgery charge in exchange
for the dismissal of the other two charges. At the sentencing hearing, McNear
claimed that a friend of a friend had asked him to put the car in his name in exchange
for $100. He claimed that he did not know that the car was stolen.
{¶5} The state explained at the sentencing hearing that car-theft rings will
steal a car and then pay someone like McNear to obtain a clean title in a different
state using forged title documents. Then, the vehicle is transferred back to the car
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OHIO FIRST DISTRICT COURT OF APPEALS
thieves with a clean title. The state admitted at the sentencing hearing that it had no
evidence to suggest that McNear stole the car, or that he knew about any larger car-
theft conspiracy potentially at play.
{¶6} According to the victim-impact statement, the victim’s car was stolen
while she was in the process of moving, and so multiple personal items were in the
car. When the car was recovered, the personal items were missing, the car was
malodorous, damage had been done to the dashboard in an attempt to alter the
vehicle identification number (“VIN”), there were stains on the seat, one of the tires
was flat, and the victim had to pay “re-registration and license fees.” At sentencing,
the state did not request an order of restitution. Regardless, over defense counsel’s
objection, the court ordered that McNear pay restitution in order to compensate the
victim for her losses plus her insurance deductible.
First Assignment of Error
{¶7} In his first assignment of error, McNear contends that the trial court
erred in ordering him to pay restitution to the victim in the amount of $4,615.95.
“The proper standard of review when analyzing the imposition of restitution as a part
of a felony sentence is whether the sentence complies with R.C. 2953.08. In other
words, the proper standard of review is whether this court clearly and convincingly
finds that the sentence is contrary to law.” State v. Thornton, 2017-Ohio-4037, 91
N.E.3d 359, ¶ 12 (1st Dist.). McNear argues that the court erred in imposing
restitution because his forgery was not the direct and proximate cause of the
economic loss suffered by the victim.
{¶8} A court may impose restitution as long as the amount does not exceed
the amount of the “economic loss suffered by the victim as a direct and proximate
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OHIO FIRST DISTRICT COURT OF APPEALS
result of the commission of the offense.” (Emphasis added.) R.C. 2929.18(A)(1); see
State v. Lalain, 136 Ohio St. 3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 23. In State
v. Lovelace, 137 Ohio App. 3d 206, 216, 738 N.E.2d 418 (1st Dist.1999), this court
stated, “Generally, for a criminal defendant’s conduct to be the proximate cause of a
certain result, it must first be determined that the conduct was the cause in fact of
the result, meaning that the result would not have occurred ‘but for’ the conduct.”
{¶9} McNear pled guilty to the offense of forgery in violation of R.C.
2913.31(A)(3), which provides, “No person, with purpose to defraud, or knowing that
the person is facilitating a fraud, shall * * * utter, or possess with purpose to utter,
any writing that the person knows to have been forged.”
{¶10} Restitution can be ordered only for those acts that constitute the crime
for which the defendant was convicted. State v. Simmons, 2017-Ohio-1348, 88
N.E.3d 651, ¶ 56 (10th Dist.). “The court must base the amount of restitution on the
criminal conduct the defendant was convicted of committing.” (Emphasis added.)
Id.
{¶11} In State v. Ervin, 11th Dist. Lake No. 2003–L–207, 2005-Ohio-687, ¶
5, the trial court ordered that the defendant pay restitution for a crime for which he
was never convicted under the theory that he and his codefendant were “part of an
organized criminal conduct” that led to his codefendant stealing from the victim.
The Eleventh District reversed, holding that the court could not order the defendant
to pay restitution for crimes committed by his accomplice for which the defendant
was not convicted. Id. at ¶ 9; see State v. Hafer, 144 Ohio App. 3d 345, 349, 760
N.E.2d 56 (4th Dist.2001) (where the defendant pled guilty to receiving stolen
property in exchange for dismissal of the vandalism charge, it was error for the trial
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OHIO FIRST DISTRICT COURT OF APPEALS
court to impose restitution for economic losses suffered as a result of the vandalism);
State v. Colon, 185 Ohio App. 3d 671, 2010-Ohio-492, 925 N.E.2d 212, ¶ 9 (2d Dist.)
(“Because Colon was convicted only of aggravated arson, his restitution obligation is
limited to damages resulting from that criminal act.”).
{¶12} In this case, the state admitted at sentencing that it had no evidence
that McNear was involved in stealing the vehicle and indicated that it did not believe
that McNear was aware of the larger car-theft conspiracy potentially at play. Also,
the state dismissed the charges for receiving stolen property and attempting to
tamper with records in exchange for McNear’s guilty plea to the forgery charge.
Therefore, the court was only permitted to award restitution for the losses resulting
from McNear’s forgery conviction, which was based on McNear attempting to pass
forged documents at the clerk’s office.
{¶13} The victim’s economic losses resulted from the condition the car was
in at the time of its recovery (damaged and malodorous), her missing personal items,
her insurance deductible, and the re-registration and license fees.
{¶14} If McNear had been convicted of stealing the car, it would be easy to
say that “but for” his crime, the victim would not have suffered any losses. But the
crime for which McNear was convicted was much farther along the chain of events.
Based on the record before us, we cannot say that “but for” McNear’s forgery, the
victim would not have suffered the economic losses claimed. There is no evidence in
the record to show McNear’s conduct was the cause in fact of the victim’s losses.
Thus, the trial court’s order of restitution was contrary to law. The first assignment
of error is sustained.
Second Assignment of Error
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} In his second assignment of error, McNear argues that the trial court
erred in imposing a $1,000 fine without considering his present and future ability to
pay, in violation of R.C. 2929.19(B)(5).
{¶16} We review the imposition of fines just as we would any other felony
sentence. State v. McCants, 1st Dist. Hamilton No. C-190143, 2020-Ohio-3441, ¶ 10.
An appellate court “may modify or vacate a felony sentence only if we clearly and
convincingly find that the record does not support the trial court’s findings under
relevant statutes or that the sentence is otherwise contrary to law.” Id.; R.C.
2953.08(G)(2).
{¶17} R.C. 2929.18(A)(3) permits a trial court to impose fines on a defendant
convicted of a felony. Before it does so, the court must consider the defendant’s
present and future ability to pay. R.C. 2929.19(B)(5). “There are no specific factors
the trial court must consider in its analysis, nor must it make any specific findings.”
McCants at ¶ 12. “As long as the record contains some indication that the court
considered the offender’s present and future ability to pay, the court’s imposition of a
financial sanction is not contrary to law.” Id.
{¶18} An appellate court can “infer from financial disclosures made in a
presentence-investigation report or from an offender’s own admissions that the trial
court has adequately considered the offender’s ability to pay.” State v. Andrews, 1st
Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 31.
{¶19} At the sentencing hearing, McNear told the court he committed the
forgery because he was having money problems at the time, and was offered $100 to
commit the crime. However, he did not file an affidavit of indigency and retained
private counsel. According to the presentence-investigation report, which was
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considered by the court before imposing the fine, McNear has a steady work
history—he has worked at the post office since 2011. McNear was placed on
community control and so he will have the ability to work as he serves his sentence.
Also, defense counsel represented that McNear did not lose his job as a result of this
conviction. The record provides “some indication” that the court considered
McNear’s present and future ability to pay. See McCants, 1st Dist. Hamilton No. C-
190143, 2020-Ohio-3441, at ¶ 12. Therefore, the second assignment of error is
overruled.
Conclusion
{¶20} Because the criminal act for which McNear was convicted was not a
direct and proximate cause of the victim’s economic losses, the first assignment of
error is sustained, the order of restitution is reversed, and this cause is remanded
with instructions to the trial court to vacate the order of restitution. The second
assignment of error is overruled, and the judgment of the trial court is affirmed in all
other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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