[Cite as State v. Watts, 2012-Ohio-4984.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 25021 

v. : T.C. NO. 10CR1625 

KYLE A. WATTS : (Criminal appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 26th day of October , 2012. 

 . . . . . . . . . . 

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 

0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 

Attorneys for Defendant-Appellant 

 . . . . . . . . . . 

DONOVAN, J. 

{¶ 1} This matter is before the Court on the Notice of Appeal of Kyle 

Watts, filed 
[Cite as State v. Watts, 2012-Ohio-4984.]

February 6, 2012. Watts pled guilty to one count of aggravated vehicular assault, in 

violation of R.C. 2903.08(A)(1), a felony of the third degree, and one count of driving while 

under the influence of alcohol, in violation of R.C.4511.19(A1a)/(G1a), a misdemeanor of 

the first degree. Watts received a one year sentence for the felony offense, and 180 days for 

the misdemeanor offense, to be served concurrently, for an aggregate term of one year. 

Watts was also ordered to pay $46,800.00 in restitution to Donald Neace for economic loss. 

{¶ 2} On September 1, 2011, Watts filed a “Motion to Terminate Restitution 

Order,” in which he asserted that since the sentencing hearing, “it was discovered that the 

complaining witness had previously released all claims with the Defendant in the amount of 

$100,000.00 * * * . Further, the complaining witness had released the Defendant from any 

further claims.” Watts asserted that the restitution order was satisfied and should be 

terminated. The State responded that the trial court lacked jurisdiction to reconsider the 

order of restitution. 

{¶ 3} On January 11, 2012, the trial court overruled Watt’s motion and 

determined that its restitution order was for “lost wages and other expenses related to the 

victim’s disability caused by injuries suffered in the accident and as a direct result of the 

Defendant’s illegal activity.” The court noted that the “victim received personal injury 

settlement proceeds for other losses that were suffered,” and that no “third party has 

compensated the victim for the economic losses he suffered that are the basis of the 

restitution order.” 

{¶ 4} Watts asserts one assignment of error as follows: 

“THE TRIAL COURT ABUSED ITS DISCRETION IN UPHOLDING 

RESTITUTION FOR LOST WAGES AND MEDICAL EXPENSES WHEN THE VICTIM 
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RECEIVED INSURANCE PROCEEDS FROM THOSE SAME EXPENSES.” 

{¶ 5} The State responds that Watts’ arguments are barred by the doctrine of res 

judicata, and that the trial court “did not err by overruling Watts’ motion to terminate 

restitution because the court lacked authority to reconsider its own final judgment once the 

sentence was executed.” 

{¶ 6} We initially note that Watts failed to provide a transcript of the proceedings 

below. “The duty to provide a transcript for appellate review falls upon the appellant. * * * 

. An appellant bears the burden of showing prejudicial error by reference to matters in the 

record. * * * .” Shirley v. Kruse, 2d Dist. Greene No. 2006-CA-12, 2007-Ohio-193, ¶ 22. 

Nevertheless, it does not appear that the trial court conducted a hearing on Watts’ motion. 

{¶ 7} R.C. 2953.02 “provides that a court of appeals may review a ‘judgment’ 

or ‘final order.’” State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, ¶ 5. 

“A final order is an order that in effect determines the case. R.C. 2505.02(B)(1) * * * .” Id. 

As the Court in Danison noted: 

Generally, in a criminal case, the final judgment is the sentence. * * * The 

sentence is the sanction or combination of sanctions imposed by the sentencing 

court on an offender who pleads guilty to or is convicted of an offense. R.C. 

2929.01(FF). The sentence imposed on an offender for a 

felony may include financial sanctions, including restitution in an amount based 

on the victim’s economic loss. R.C. 2929.18(A)(1). Id., ¶ 6. 

The Danison court concluded that “an order of restitution imposed by the sentencing court on an 

offender for a felony is part of the sentence and, as such, is a final and appealable order.” Id., ¶ 
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8. 

{¶ 8} However, Crim.R. 57(B) provides: “If no procedure is specifically prescribed by 

rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal 

procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of 

criminal procedure exists.” 

{¶ 9} Rather than asking the court to reconsider its restitution order, Watts asked the 

court to vacate the order because, in his view, the victim had been made whole for his economic 

losses for which the restitution was ordered. Watts’ motion is akin to a Civ.R. 60(B)(4) motion. 

 That rule provides: “On motion and upon such terms as are just, the court may relieve a party or 

his legal representative from a final judgment, order or proceeding for the following reasons: * * 

* (4) the judgment has been satisfied, released or discharged * * * or it is no longer equitable that 

the judgment should have prospective application.” Since Crim.R. 57(B) authorizes reliance 

upon the Civil Rules when appropriate, we hereby reverse and remand the matter to the trial court 

to conduct an evidentiary hearing to determine whether the restitution order was, in fact, 

satisfied by virtue of a civil settlement. 

{¶ 10} Judgment on Watts’ motion to terminate restitution is reversed and remanded for 

further proceedings consistent with this opinion. 

 . . . . . . . . . . 

GRADY, P.J. and HALL, J., concur. 

Copies mailed to: 

R. Lynn Nothstine 

Jon Paul Rion 

Nicole Rutter-Hirth 

Hon. Timothy N. O’Connell 
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