[Cite as State v. Folson , 2023

- Ohio

- 55.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Plaintiff

- Appel lee ,

vs.
TONI FOLSON , Defendant

- Appell ant

. :

:

:

:

: APPEAL NO

. C

- 2 20 029

TRIAL NO

. 20 C RB

- 24467

O P I N I O N

.

Criminal Appeal From: Hamil ton County Municipal C ourt Judgment Appealed From Is: A ffirmed in P art, Sentence Re ve rsed in Par t, and C ause Remanded Date of Judgment Entry on Appeal: January 11, 2023

Emil y Smart Woerner , City S oli citer , Wi lliam T. Horsley , Chief Prose c uting Attorney, and Chris K

onitzer , Assistant Prosec uting Attorney , for Plaintiff

- Appel lee , Raymond T. Faller , Hamilton County Public Defender , an d Sarah E. Nelson , Assistant Public Defender , for Defendant

- A ppellan t

.OH IO FIRST DISTRICT COURT OF APPEALS

2 M YER S , Presiding Judge

. 

### {¶1} D efendant

- appellant T oni Folso n appea ls the judgment of the Hamilton County M uni cipal Court ordering her to pay $4,00o restitution to the victim as par t of her sente n ce in a pr osecution for criminal da maging. Folson a sserts a single
assi gnment of error , in which s he contends t hat the trial court erred in determining the amount o f restitution

. We find merit in her assignment of error, and we reverse the trial court ’ s judgment a s to the restitution order

. 

### {¶2} Folson was char ged w i th one count of c riminal damaging under R.C. 2909.06, a second

- degree misdemeanor. The com plaint stated , “ [The] victim stated to polic e M s. Folson backed into her car with her own car, causing damage to [t h e] bu mper. ” The affidavit supporting the c omplai nt stated that Fol son “knowingly cause[d] damage to [the victim ’ s] vehicle. [The vi ctim] stated to police Ms. Folson backed into her ca r when coming off sidewalk and hit her rear bumper on driver side of he r 2006 Toyota Camry * * *. ” 

### {¶3} Subsequently, Folso n pleaded guil ty a s charged. The trial court continued the matter for sentencing to allow the preparation of a presentence investigatio n report and a victim

- impact statement, and to provide the state an

opp ortunity to collect docume ntation regarding restitution. 

### {¶4} At the s ente ncing hearing, the state sought restitu tion of $4,382.38. Folson objected, stating that that amount included damages beyond those alleged in the complaint, which had only stated tha t Folson caused damage to the vehicle’s rea r bumper. Fo lson claimed that the cost to repair the damage to the victim ’s car’s rear bumper was $908.85. 

### {¶5} The court had the victim testify under oath regarding the damage to her car. She stated that she had r eceived an estimate of $4, 382.38 to repair her car. She explained th at he r ca r was parked on the street in front of her house. When she heard a noise, she came out o f the h ouse and saw F olso n hi t the rear bumper of her car

. SheOH IO FIRST DISTRICT COURT OF APPEALS

3 also n oticed that all fou r of her tires were slashe d, a nd her gas ta nk was proppe d open,

a nd syrup had been poured into it

. F inally, t he vict im saw Folson back her car into the
victim ’ s car causing d amage to the door. The e stimate included the costs to repair all that damage. 

### {¶6} T he estimate also included d amage to the roof of the car, which the
victim ackn owledged was not caused by Folson. The estimated cost to repair the roof was $382. Consequently, the court subtracted th at amount from the total estimate, and ordered restituti on of 4,000. This appeal f ollowed. 

### {¶7} In her s ole assignme nt of error, Folso n co ntends that the trial cour t erred in ordering her to pay $4,000 in restitution. She argues that that amount was improper because it exceeded the amount of economic loss caused b y Folson’s actions.
We fin d merit in her as signment of error. 

### {¶8} R.C. 2929

. 2 8( A)(1) provides that a trial court ma y order a defendant to pay restitution to the victim of a misdemeanor. B ot h R

. C. 2929.28(A)(1 ) and
2929 .18(A ) (1), the reciprocal statute gove rning f elonies, limit the am ount of

rest it ut i on to “the am ount of the e conomic loss suffered by the victim as a direct and proximate result of the commission of t he offense.” The court may “base the amount
it orders on a recommendation of the victim, the offender, a presentence inve stigation report, est imates or receipts ind icating the cost of repairing or replacing property, and other information ” as long as the amount ordered is not greater than the amount of the victim’s economic loss. R.C. 2929.28(A) (1); State v. Lalain , 136 Ohi o St.3d 248,
2013
- Ohio

- 3093, 994 N.E.2d 42 3, para graph one of the syllabus. 

### {¶9} R.C. 2929.01(L) p rovides,

“ E conomic loss ” means any economic detriment suffered by a victim as a direct and proximate result of t he commission of an offense and includes any l oss of income due to lost tim e at work bec ause of any injury caused to the victim, any pro perty loss, medical cost, or funeralOH IO FIRST DISTRICT COURT OF APPEALS

4 expense incurred as a result of the commission of the offense, and the cost of any accounting or aud iting done to determine the e xtent of loss
if the cost is incurred and payable by the victi m. “ Economic loss ” does

not include non

- economic loss or any punitive or exemplary damages. 

### {¶10} T he victim has the burden of proving the amount of res titution by the

pr eponderance of the evidence. R.C. 292 9 .28(A)( 1). An orde r of restitut ion mu s t be supported by competent, credible ev idence. State v. Sexton , 1st Dist. Hamilton No. C

110037, 2011
- Ohio

- 5246, ¶ 3; In re Czika , 11th Dist. Lake No. 2007

- L

- 009, 2007
- Ohio

411 0, ¶ 7, citing State v. Warne r , 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (19 90). T he evidence in the record must be enough to substantiate the relationship of the offender ’ s criminal conduct to the amount of the victim ’ s loss. State v. Norto n , 8th Dist. Cuya hoga No. 102017, 2015

- Ohio

- 251 6, ¶ 44. We revie w the trial court’s decis ion

on restitution under an abuse

- of

- discretion standard. State v. Lynn , 1st Dist. Hamilton No. C

- 150569, 2016

- Ohio

- 2849, ¶ 4. 

### {¶11} The Ohio Supreme Court re cently expounded on the issue o f causation relating to restit ution . In State v. Ye rkey , S lip Op inion No. 2 022
- Ohio

- 4298 , the
vic tim so ught restitution for lost wages relating to wo rk she had missed to attend court hearings. T he trial court had included the lost wage s in its restitutio n order, and an appellate cour t reversed the re stitution or der , stati n g tha t lost wages were not in curred as a direct and proximate resul t of the c om m ission of t he offense. T he state appealed to the S upreme C ourt. 

### {¶12} The S upreme C ourt began its analysis by stating, “ Gen erally speaking, a consequence is a direc t and proximate r esult o f an act when the consequen ce is foreseeable and is produ ced by the natural and continuous sequen ce of events following the act. ” Id. at ¶ 16. It concluded that lost wage s did not “ flow as a natural and con tinuous cons eq uen ce from the commission o f the offense , s uch that t hey mayOH IO FIRST DISTRICT COURT OF APPEALS

5 be considered economic loss suffered by the vict im. ( Emph asis in original. ) Id . at ¶
17. 

### {¶13} In this case , the complain t and the affidavit i n suppor t of that complaint both stated t hat Folson ha d hi t the vict im ’ s car and ca used d amage t o the victim ’ s rear bumper. Folson ’ s convic tion was the result of that c ompl aint. “ A restitution award must be limited to those acts that constitut e the crime of conv iction. ” State v. Colon , 185 Ohi o App.3d 671 , 20 1 0
- Ohio

- 492 , 925 N.E.2d 21 2 , ¶ 9 (2d Dist.). A s a matter of law, an offender cannot be ordered to pay restitution for damage arising from a crime of which the off

ender was not c onvicted

. State v. Richm ond , 10th Dist. Franklin No. 17AP

- 366 , 2018

- Ohio

- 14 7 , ¶ 11. 

### {¶14} Th e damages cause d by the s yrup in her gas ta nk and slashed tires did

not “ flow as a natural and continu ous conse quence ” from the commission of the offense for which Fol son was charged and to which sh e pleaded guilty

. T hose damages were not a direct and pro xi mate result of F o lson ’ s ac t of hit ting the victi m ’ s re ar bumper with her own car. Consequently, those damages were not economic loss as de fined in R.C . 2929.18(A)(1) , and the trial court erred in includi ng the cost to fi x th 0 s e dam ages as pa rt o f its rest itution order. S ee State v. Maddox , 8th D ist. C uyahog a No.
102133, 2015
- Ohio

- 2859 ( Where the defendant was charged with receiving stolen

pro perty and the indictment stated that the stolen propert y was a motor vehicle, the trial court erred in or dering res t it ution for t o ols in the motor vehicle when the defen d ant was not charged with any crime inv olving the too ls.)

. 

### {¶15} Had the charg e, the plea a nd t he c onvi ction not been solely based on hitting the bu mper with the car, we might reach a diff erent conc

lusion. B u t here, Folson pleade d guilty only to dam aging the car by running into it, and never admitted

s lashing the tires or pouring syrup in the gas tank. Under the facts of this cas e, those additional charges were not pro ximately caus ed by the crime c harge d an d for which
F o lso n was c onvicted

.OH IO FIRST DISTRICT COURT OF APPEALS

6 

### {¶16} In Yerkey , amici argued that failing to use restitution sanc tions to c ov er all a victim ’ s costs r uns counter to publi c policy. The S up reme C ourt rejected t hat

a r gument, stating, “ B u t to what ex tent court

- ordere d restitut ion as part of a criminal

case may be used to make a vict im who le is a matter determined by s t atut e and the Ohio C onstit ution * * *. ” Yerkey , Slip. Op inion No. 2022
- Ohio

- 4298, at ¶ 18. I t emph as ized that the victim had other av enues to seek re s titution, such as a civ i l suit or the crime

- victi m s ’ compensation funds. Id. 

### {¶17} The court also state d that there is a “ countervailing policy consideration. ” Id. If restitution were to be e xpanded t o incl ud e econ omic detriments that were n ot direct and pro ximate res ults of the c ommission of the offense, “ we would risk mutating senten cing hearings th rough out the state into civil trials of all gr ievances the victim may have agains t the offen der , regard less o f their relation to the crim es at i ssue. ” Id. 

### {¶18} We reach a di fferent re sult as to the damage to the v ictim ’ s side door. Folson was charged with and pleaded guilty to caus i ng damage with her car to the
victim ’ s car
. The complaint stated that F olson knowingl y ca use d damage to the
vi ctim ’ s v ehicle when s he r a n int o it

. T h e dama ge to the si de door flowe d as a n atural and continuous consequence of the commission of the offense of criminal damaging as charged and con victed , and was a direct and proximate result of Folson ’ s commi ssion of that cr iminal damaging

. Conse quen tly, that damage c onsti tuted

e conomic los s with the mea ning of R.C. 2929.28(A)(1) and 2929.01( L)

. 

### {¶19} Consequently, we sustain F o lson ’ s assignment of error. We reverse the trial court ’ s judgment orde ring Fo lson to pay rest itution of $4,000, and we r emand the matte r to the trial court to de termine the amount o f restitution f or the damages to the victim ’ s rear bum per and side door

. W e af fir m the trial court ’ s judgment in all other respects

.

J ud gment a ffirmed in part , sent ence re verse d in part, and ca use remand ed.OH IO FIRST DISTRICT COURT OF APPEALS

7 B OCK , J. , con cu rs. W INKLER J. , con curs in part and dissents in part.
W INKLER , J. , con currin g in part and dissentin g in part. 

### {¶20} I r espectfull y dissent from t hat portion of the majority ’ s opi nion reversing the trial court ’ s d etermination as t o the amo unt o f restitution

. R .C. 2929.28(A)(1) grants b r oad discret ion to the trial c ou rt t o base the amount of
restitut ion it order s on n ew information presented at the restitution hearing, which can be from the vi ctim, th e of fender, a p resentence

- invest iga tion r eport , es timates, receipts, o r any other information

. State v . Olson , 2d Dist. Mont gomery No. 25452,
2013
- Ohio

- 4403, ¶ 8. Th e evidence in the record must be e nough to substantiate the relationsh ip of the offender ’ s cr iminal cond uct to the amoun t of the v ictim ’ s l oss. State
v. No rton , 8th Dist. Cuyahoga N o. 102017 , 2015
- Ohio

- 2516, ¶ 44

. W e re view the trial

court ’ s restitution order for an abuse of discretion. State v. Lynn , 1st Dist. Hamilton
N o. C

- 150569, 2016

- Ohio

- 2849, ¶ 4. 

### {¶21} T he new evidence presented at t he r estitution hearing showed that after the vi ctim he ar d something , she went outside and witnesse d Folson ’ s car running into her car. At that time, she also saw that the gas tank was proppe d open with s yrup coming out, and that all four of her tires h ad been s l ashed. S h e acknowledged that she ha d no t s een who cau sed th e dama ge to her tire s or her gas tank, but she had

“ su rveillance footage of [F o l s on ’ s] car running down my s treet that morni ng. ” Strong
cir cumstantial e viden ce , coupled with the lack of ev iden ce that any one else had cause d the addition al damage , suppor t ed the c onclusion that the damage to the vic tim ’ s tires and gas tank was pr oximately caused by F olson a s pa rt of committing th e offense of criminal damaging. S ee State v. Brand , 3 d Dist . Sen eca No. 13

- 01
- 02, 20 0 1 Ohio A p p. LEXIS 3572, *6 (Au g. 15, 2001). Cir cu mstantial a nd direct evidence inherent ly possess

t he same pro bative value. State v. Jenks , 61 O hio St.3d 259, 574 N.E.2 d 492 (1991),OH IO FIRST DISTRICT COURT OF APPEALS

8 paragraph two of the syllabu s; S tate v. Thomas , 1st D ist . Hamilton No. C

- 2105 19,

2022
- Ohio

- 2218, ¶ 7. 

### {¶22} Stat

e v. Yerkey , Slip Op inion No. 20 22
- Ohio

- 4298, presents a sit uation much differen t from the present case. In Ye rkey , the vic tim s ou ght r est itution for lost wages she inc u rred due to work that she ha d m isse d in conne ction with attendi ng hearings for the criminal case. The S upreme C ou rt stated that the losses of the s ort claimed by the victim did not flow as a natur al and continuous cons eq u ence of the commission of the crim e. In contra st, in thi s c as e, the additional damage to the
victim ’ s car occur red as a natural and continuous consequence of Folson ’ s criminal condu ct t hat result ed in her conviction for crimin al da maging

. 

### {¶23} The amount of re stit ution ordered by the trial cou r t was supported b y
compe t en t, credible eviden ce. T he re fore , it was not so ar bitrary, unreasonable, or

unc ons c ionab l e as to c onnote an a buse of discret ion. See State v. Guthrie , 1st Dist.
H amilton No . C

- 180661, 2020

- Ohio

- 501, ¶ 24 ; State v. Riggins , 1st Dist. Hamilton No

. C

- 18006 9, 20 19
- Ohio

- 3254, ¶ 20. Consequently, I would ov er rule Folson ’ s assignme nt of error and affirm the trial court ’ s judgment in all respects.

P lea se n ote: Th e cour t has r ecor ded its own en t ry on the date of t he rel e ase o f t his opi nion

.