[Cite as State v. Hodge, 2020-Ohio-901.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. John W. Wise, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : Case No. CT2019-0038 

 : 

JOSEPH D. HODGE : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CR2019-0119 

JUDGMENT: AFFIRMED IN PART, REVERSED IN 

 PART, AND REMANDED 

DATE OF JUDGMENT ENTRY: March 9, 2020 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

D. MICHAEL HADDOX OHIO PUBLIC DEFENDER 

MUSKINGUM CO. PROSECUTOR CRAIG M. JAQUITH 

27 North Fifth St 250 East Broad St., Ste. 1400 

P.O. Box 189 Columbus, OH 43215 

Zanesville, OH 43702 

 
Muskingum County, Case No. CT2019-0038 2 

Delaney, J. 

{¶1} Appellant Joseph D. Hodge appeals from the April 17, 2019 Entry of the 

Muskingum County Court of Common Pleas. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This case arose on October 28, 2018, when Miranda Thomas discovered 

two people were living in her house. During the ensuing series of extraordinary events, 

appellant and his girlfriend Nikki Eblin attempted to steal the house from Thomas by, 

among other things, recording a fake deed. 

{¶3} In early 2017, Miranda Thomas was living with her mother in her mother’s 

house on North Main Street in Roseville, Muskingum County. Thomas’ mother bought 

the house in 2010 but was now in ill health and required the services of a nursing home. 

Thomas’ mother therefore transferred title to the house to Thomas and her brother, 

Marshall Sanderson. A few months later, due to Medicare/Medicaid complications, the 

title was transferred into the name of Thomas alone. In early April 2017, Thomas’ mother 

passed away. 

{¶4} Thomas continued to live at the house with her two young children. All of 

her own property was in the house, along with that of her mother and father. Thomas’ 

father passed away a few weeks after her mother. Items belonging to Sanderson were 

also still in the house. Around August 2017, Thomas received a notice of delinquent taxes 

on the property, and she paid them. In October 2017, she was served with a lawsuit by 

her mother’s former nursing home, which sought to foreclose against the home to recover 

fees for her mother’s care. Thomas hired an attorney specializing in real estate, Derrick 

Moorehead, to represent her in the lawsuit. 
Muskingum County, Case No. CT2019-0038 3 

{¶5} Thomas periodically had problems with the boiler in the house, and in 

January 2018 it stopped working altogether. Because it was winter and the house had 

no heat, Thomas moved into her father’s former residence a few blocks away. Thomas 

continued to drive by the house regularly and intended to eventually reside there. 

{¶6} In June 2018, Thomas moved into her fiancé’s residence in Coshocton. 

She continued to work in Crooksville, which allowed her to drive by and check on the 

house regularly. At the end of July, however, her car broke down, and she stopped 

working in Crooksville. She therefore drove by the Roseville residence less frequently. 

She continued to check on the residence approximately every two weeks, however, when 

her fiancé’s children had visitation. 

{¶7} In mid-October, Moorehead advised Thomas that the nursing home 

dismissed the lawsuit and was no longer pursuing the house; therefore, Thomas owned 

the house free and clear. Thomas signed a note and Moorehead took a mortgage on the 

property to cover his fees of $1900. 

{¶8} On October 28, 2018, Thomas and her mother-in-law Wendy Yocum drove 

together to drop off the children after visitation, and took the opportunity to check on the 

Roseville house. The women were shocked to find the garage door open and an 

unfamiliar truck parked in the driveway. A box truck and a smaller trailer were also parked 

near the house. Thomas and Yocum dropped the children off before investigating further, 

and called the Muskingum County Sheriff’s Department. 

{¶9} While waiting for deputies to arrive, Thomas looked in the garage and found 

it unrecognizable. The garage had previously been divided in half, functioning as a music 

studio for her fiancé and a garage where Thomas stored her motorcycle. The motorcycle 
Muskingum County, Case No. CT2019-0038 4 

and the fiancé’s drums and music equipment were gone, replaced with property Thomas 

didn’t recognize. 

{¶10} Thomas proceeded into the house through an unlocked door, and found 

more of the same inside. Some of the property of Thomas and her family was still present, 

but most was missing and the house was unrecognizable. There was unfamiliar stuff 

everywhere. Appliances were missing, there were holes in the walls, and entire 

bathrooms had been ripped out. Thomas encountered appellant and his girlfriend, Nikki 

Eblin, coming down the stairs. Thomas did not know either of them, and demanded to 

know why they were in the house and where her property was. Appellant said this wasn’t 

her house and she needed to get out. He said he bought the house on land contract and 

Thomas demanded to know from who. 

{¶11} As they argued, appellant and Eblin said they would call the police and 

Thomas said police were already en route. Appellant stated, “Then I’ll shoot you and your 

family,” pulling up his shirt and revealing what Thomas believed to be a firearm in his 

waistband. Thomas said she, too, had a concealed-carry permit and a firearm, although 

she had left it in the vehicle outside. 

{¶12} Yocum and Sanderson were with Thomas; they exited the house and 

Thomas called the sheriff again to tell them the person in her house had a gun. Deputies 

arrived on the scene and questioned everyone. Appellant insisted he was buying the 

house on land contract. Deputies were unable to determine who was in lawful possession 

of the house, told the parties it was a “civil matter,” and suggested Thomas should file an 

eviction. The first deputy on the scene testified at trial that his report writing on this case 
Muskingum County, Case No. CT2019-0038 5 

was “poor,” admitting that Yocum and Thomas told him appellant had a firearm but he 

neglected to document the allegation in the report. 

{¶13} The parties remained on the scene after deputies left. Thomas and Yocum 

were in front of the house and Yocum leaned on the fence. Appellant came out of the 

house and put something under the front seat of his truck. He angrily demanded that 

Yocum move her car, and when she was slow to respond, he picked up what Yocum 

described as a “tire thumper” and menaced her with it, striking the fence close to her. 

Deputies returned to the scene and warned Thomas and Yocum that a civil matter could 

become criminal if they didn’t leave. 

{¶14} Thomas arrived at Derrick Moorehead’s office early the next day (October 

31) and he prepared a three-day eviction notice for her. Thomas returned to the house 

with a police officer to post the three-day notice. Three days later, the occupants had not 

vacated the premises. Thomas drove by the property and noticed more of her own 

personal property stacked up outside in a fire pit. She drove to the Roseville police 

department, which is only a half-block from the house. The house is visible from the 

parking lot; as Thomas spoke to Chief Carr, they observed heavy black smoke coming 

from the backyard of the residence. Carr found appellant in the backyard with a very 

large fire. Carr demanded that appellant put the fire out but had to call the fire department 

because the fire became too big for appellant to contain. The fire consumed a large 

amount of Thomas’ personal property. 

{¶15} Appellant was angry that the fire department was involved. Carr told 

appellant he was “squatting” at the residence, but appellant told him to speak to his 
Muskingum County, Case No. CT2019-0038 6 

girlfriend because they were legally entitled to be there. Eblin claimed the utilities were 

in their names, and produced a gas bill as confirmation. 

{¶16} The eviction hearing was not scheduled until November 21. Prior to the 

hearing, Moorehead spoke to appellant in the hallway and asked why he thought he was 

entitled to remain in possession of the property. To Moorehead’s astonishment, appellant 

produced a deed to the property, signed by Thomas as grantor and appellant as grantee, 

purporting to have transferred the property in April 2018. 

{¶17} Thomas denied all knowledge of the deed and told Moorehead she never 

sold the property to anyone. She pointed out that she could not have sold the property 

even if she wanted to in light of first the nursing-home lawsuit and then Moorehead’s 

mortgage on the property. Thomas insisted it was not her signature on the deed, but her 

purported signature was notarized. 

{¶18} As Moorehead and Thomas discussed the deed, Thomas was served with 

an ex-parte civil protection order obtained against her by Eblin. The immediate effect of 

the C.P.O. was that Thomas was not permitted to be in the courtroom during the eviction 

proceeding and she had to surrender her firearms. 

{¶19} Meanwhile, Judge Scott Raskin of the Muskingum County Court of 

Common Pleas presided over the eviction hearing and was also surprised when appellant 

produced the deed establishing ownership of property. Judge Raskin treated the deed 

as a motion to dismiss the eviction. Moorehead moved to continue the eviction so he 

could investigate further, despite the fact that a continuance would enable appellant and 

Eblin to remain in the house. Judge Raskin agreed to continue the eviction. 
Muskingum County, Case No. CT2019-0038 7 

{¶20} Appellant presented the deed for filing at the Muskingum County Recorder’s 

Office and it was duly recorded. As of the date of trial, appellant was still the record owner 

of the property. Moorehead testified that he would have to file a declaratory judgment 

action on Thomas’ behalf to have the deed struck from the chain of title. 

{¶21} Throughout the eviction proceeding Moorehead was genuinely puzzled 

because he believed Thomas to be a truthful person, but her signature on the purportedly 

fake deed was notarized. Moorehead contacted the notary, Amy Adams, who said she 

remembered notarizing Thomas’ signature and that she always asks to see a signatory’s 

identification. She added, though, that she would not recognize Thomas if she saw her 

again. Moorehead found the conversation strange and began to suspect it was possible 

that the notary worked with appellant to falsify the deed. 

{¶22} Moorehead was convinced the deed was fake when he obtained the report 

of the Muskingum County Sheriff’s Department from the confrontation at the house on 

October 28. At that time, appellant and Eblin claimed they bought the house on land 

contract from a mortgage company; now, a month later, they produced a fake deed and 

claimed they purchased the house from Thomas in April. 

{¶23} Moorehead contacted Detective Ross to urge further investigation of 

Thomas’ allegations, finally yielding results. On December 6, 2018, Thomas was restored 

to possession of her home. Unfortunately, the home was full of someone else’s property 

and very little of Thomas’ possessions remained. She found some of her property for 

sale on Facebook Marketplace by appellant and Eblin, including her fiancé’s drum set 

and guitar, her own china cabinet, her mother’s hospital bed, and her stepson’s golf bag. 
Muskingum County, Case No. CT2019-0038 8 

{¶24} Throughout the house, Thomas found legal reference books about real 

estate, property transfers, and deeds. She found notebooks containing attempts to 

reproduce her signature. 

{¶25} Amy Adams, the notary, testified on appellee’s behalf at trial. She is a 

longtime friend of Eblin and also knows appellant. Eblin purportedly sold her own home 

and had nowhere to live with her children; she told Adams she and appellant “found” an 

abandoned home which they planned to move into and “flip.” Eblin told her that if they 

moved into the house and took care of it, it would be theirs because no one else wanted 

it. At one point Eblin brought Adams to the house and she looked around inside. Then 

Adams learned someone came forward to assert ownership of the house, and appellant 

therefore needed a deed. He and Adams had several conversations about Adams falsely 

notarizing the signature of the grantor but at first Adams was “on the fence.” Eventually 

she agreed to notarize the signature, however, because she was doing appellant and 

Eblin a favor. Adams learned there were problems surrounding the deed when an 

attorney [Moorehead] contacted her to ask about the circumstances of Thomas’ 

signature. At trial Adams admitted she lied to Moorehead and Detective Ross, telling 

both that Thomas was present in front of her when she signed the deed. Adams admitted 

this was not true and acknowledged she would be charged with a crime for misuse of her 

notary. 

{¶26} Appellant was charged by indictment with one counts of aggravated 

burglary pursuant to R.C. 2911.11(A)(1), a felony of the first degree [Count I]; one count 

of aggravated burglary pursuant to R.C. 2911.11(A)(2), a felony of the first degree [Count 

II]; one count of forgery pursuant to R.C. 2913.31(A)(1), a felony of the fifth degree [Count 
Muskingum County, Case No. CT2019-0038 9 

III]; one count of vandalism in an amount greater than $7500 and less than $150,000 

pursuant to R.C. 2909.05(A), a felony of the fourth degree [Count IV]; one count of arson 

in an amount over $1000 pursuant to R.C. 2909.03(A)(1), a felony of the fourth degree 

[Count V]; one count of tampering with evidence pursuant to R.C. 2921.12(A)(2), a felony 

of the third degree [Count VI]; one count of uttering pursuant to R.C. 2913.31(A)(3), a 

felony of the fifth degree [Count VII]; one count of tampering with records pursuant to R.C. 

2913.42(A)(2), a felony of the third degree [Count VIII]; one count of engaging in a pattern 

of corrupt activity pursuant to R.C. 2923.32(A)(1), a felony of the first degree [Count IX]; 

and one count of engaging in a pattern of corrupt activity pursuant to R.C. 2923.32(A)(2), 

a felony of the first degree [Count X]. Counts I and II were accompanied by firearm and 

repeat-violent-offender (R.V.O.) specifications. Counts IX and X were accompanied by 

firearm specifications. 

{¶27} Appellant entered pleas of not guilty and the matter proceeded to trial by 

jury, wherein appellant was found guilty as charged. The jury did find, however, that 

appellee failed to prove appellant had a firearm on or about his person while committing 

the offenses, and appellant was thus cleared of all four firearm specifications. The trial 

court convicted appellant of both R.V.O. specifications. The trial court continued the 

matter for sentencing. Appellant appeared for sentencing and the trial court imposed a 

total aggregate prison term of 20 years. 

{¶28} Appellant now appeals from the judgment entry of his convictions and 

sentence. 
Muskingum County, Case No. CT2019-0038 10 

{¶29} Appellant raises three assignments of error: 

ASSIGNMENTS OF ERROR 

{¶30} “I. PROSECUTORIAL MISCONDUCT DENIED MR. HODGE A FAIR 

TRIAL AND DUE PROCESS OF LAW, IN VIOLATION OF HIS FIFTH, SIXTH, AND 

FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATE CONSTITUTION, 

ARTICLE I, SECTIONS 10 AND 16, OF THE OHIO CONSITUTION.” 

{¶31} “II. MR. HODGE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, 

IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION.” 

{¶32} “III. THE TRIAL COURT’S RESTITUTION ORDER FOR $184,900 WAS 

NOT ADEQUATELY SUPPORTED BY THE RECORD.” 

ANALYSIS 

I.

{¶33} In his first assignment of error, appellant argues prosecutorial misconduct 

deprived him of a fair trial. We disagree. 

{¶34} The test for prosecutorial misconduct is whether the prosecutor's remarks 

and comments were improper and if so, whether those remarks and comments 

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d 

160, 166, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 

596 (1990). In reviewing allegations of prosecutorial misconduct, we must review the 

complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S. 

168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not 

provide a basis for reversal unless the misconduct can be said to have deprived appellant 
Muskingum County, Case No. CT2019-0038 11 

of a fair trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d 

293. Appellant points to a number of instances of alleged prosecutorial misconduct and 

argues that the cumulative effect of these examples deprived him of a fair trial. 

{¶35} Appellant cites a number of instances of alleged prosecutorial misconduct 

during opening statement, closing argument, and direct examination of Thomas. We note 

appellant did not object to the alleged improper comments at trial. If trial counsel fails to 

object to the alleged instances of prosecutorial misconduct, the alleged improprieties are 

waived, absent plain error. State v. White, 82 Ohio St.3d 16, 22, 1998–Ohio–363, 693 

N.E.2d 772 (1998), citing State v. Slagle, 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992). 

{¶36} We therefore review appellant's allegations under the plain-error standard. 

Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of the court.” The rule places 

several limitations on a reviewing court's determination to correct an error despite the 

absence of timely objection at trial: (1) “there must be an error, i.e., a deviation from a 

legal rule,” (2) “the error must be plain,” that is, an error that constitutes “an ‘obvious' 

defect in the trial proceedings,” and (3) the error must have affected “substantial rights” 

such that “the trial court's error must have affected the outcome of the trial.” State v. Dunn,

5th Dist. No.2008–CA–00137, 2009–Ohio–1688, citing State v. Morales, 10 Dist. Nos. 

03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19. The decision to correct a plain error is 

discretionary and should be made “with the utmost caution, under exceptional 

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. 
Muskingum County, Case No. CT2019-0038 12 

{¶37} First, appellant argues the prosecutor undermined the presumption of 

innocence in opening statement with the assertion that “just because we are down here 

and having a trial does not mean that there is a great big mystery to solve,” a comment 

that was repeated in closing argument. We disagree with appellant’s characterization 

and find the comment to be innocuous in the context of the entire opening statement and 

closing argument. Appellant further argues the prosecutor vouched for Thomas’ 

credibility by reminding the jury that Moorehead found Thomas to be a truthful person, 

and inflamed the jury with reference to appellant’s “outrageous conduct.” In the context 

of the trial as a whole, we find appellant’s argument to be overstating the import of these 

comments. The prosecutor’s statements were also accurate summaries of the evidence. 

{¶38} Appellant fails to point to any improper statement by the prosecutor which 

is not arguably supported by appellee's evidence. State v. Meeks, 5th Dist. No. 

2014CA00017, 2015-Ohio-1527, 34 N.E.3d 382, ¶ 103. In closing argument, a 

prosecutor may comment on “what the evidence has shown and what reasonable 

inferences may be drawn therefrom.” Id., citing State v. Lott, 51 Ohio St.3d 160, 165, 555 

N.E.2d 293 (1990). Appellant argues the prosecutor vouched for Thomas’ credibility 

during her direct examination but we again disagree with his characterizations of the 

record. Upon our review, we find the cited comments to be reasonable inferences from 

the evidence. 

{¶39} Finally, appellant has failed to demonstrate prejudice based upon any of the 

prosecutor's comments he cites. “Appellant does not identify any connection between the 

alleged misconduct and his conviction. * * * *. [T]he trial court clearly believed, and the 

record reflects, that the prosecutor's theory of the case was relevant as to certain issues. 
Muskingum County, Case No. CT2019-0038 13 

Appellant's pure speculation as to how the jury might overreact to this evidence is not the 

kind of ‘but for’ argument that will support a finding of misconduct.” Meeks, supra, 2015-

Ohio-1527 at ¶ 105, citing State v. Carmichael, 7th Dist. Columbiana No. 11 CO 23, 2013-

Ohio-2178, 2013 WL 2325849, ¶ 14. None of the evidence or arguments cited by 

appellant are improper, and appellant cannot demonstrate, even if they were improper, 

“but for” the evidence and arguments he would not have been convicted. Having failed to 

demonstrate a causal connection between the alleged misconduct and his resulting 

convictions, appellant cannot demonstrate reversible error. 

{¶40} If a prosecutor's comments are found to be improper, it is not enough that 

there is sufficient evidence to otherwise sustain a conviction. “Instead, it must be clear 

beyond a reasonable doubt that absent the prosecutor's comments, the jury would have 

found defendant guilty.” State v. Clay, 181 Ohio App.3d 563, 2009–Ohio–1235, 910 

N.E.2d 14 at ¶ 49 (8th Dist.), citing State v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 

(1984). Appellant cannot demonstrate, even if any of the cited comments were improper, 

“but for” the comments he would not have been convicted. Appellee presented substantial 

uncontroverted evidence of appellant’s guilt. Having failed to demonstrate a causal 

connection between the alleged misconduct and his resulting convictions, therefore, 

appellant cannot demonstrate reversible error. 

{¶41} Appellant’s first assignment of error is overruled. 

II. 

{¶42} In his second assignment of error, appellant argues he received ineffective 

assistance of defense trial counsel. We disagree. 
Muskingum County, Case No. CT2019-0038 14 

{¶43} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, 

“a court must indulge a strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be considered 

sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 

(1955). 

{¶44} “There are countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a particular client in the same 

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the 

wide range of professionally competent assistance.” Id. at 690. 

{¶45} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, the defendant must show that “there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. 

{¶46} Appellant first asserts trial counsel was ineffective in failing to object to the 

cited instances of alleged prosecutorial misconduct. Trial counsel's failure to object to 

the alleged misconduct could be reasonably interpreted as tactical decisions designed to 

not bring attention to what may or may not be objectionable matter, so we reject the 

assertion that the failure to object is evidence of ineffective assistance of counsel. State 

v. Lawson, 5th Dist. Morrow No. 17CA0008, 2018-Ohio-4673, ¶ 41, appeal not 
Muskingum County, Case No. CT2019-0038 15 

allowed, 155 Ohio St.3d 1405, 2019-Ohio-944, 119 N.E.3d 433. Because this appears 

to be a reasonable tactical decision we cannot convert it to a judicial error. Id., citing State 

v. Clayton, 62 Ohio St.2d 45, 46–47, 402 N.E.2d 1189 (1980); State v. Noggle, 140 Ohio 

App.3d 733, 746, 749 N.E.2d 309 (3d Dist.2000), additional citations omitted. 

{¶47} Next, appellant argues defense trial counsel was ineffective in failing to 

object to Moorehead’s testimony as a “de facto expert witness.” Evid.R. 701 provides 

that a lay witness may provide opinion testimony where the witness's opinion is rationally 

based upon the perception of the witness and helpful to a clear understanding of his 

testimony or the determination of a fact in issue. 

{¶48} In the instant case, Moorehead’s testimony about the authenticity of the 

deed, and the significance of the notebooks and legal encyclopedias left behind by 

appellant and his accomplice, were based upon his perceptions as a fact witness and 

Thomas’ personal real-estate attorney who was involved in the eviction proceeding and 

was in a unique position to investigate the alleged sale of Thomas’ residence. His opinion 

was helpful in describing the significance of the legal materials found in the house and 

the recording of the deed. Appellant does not assert upon what basis defense trial 

counsel should have objected to Moorehead’s testimony. Moreover, we find no 

reasonable probability that if counsel had objected to Moorehead’s testimony, the result 

of the proceeding would have been different. 

{¶49} Appellant has not established ineffective assistance of defense trial 

counsel. The second assignment of error is overruled. 
Muskingum County, Case No. CT2019-0038 16 

III. 

{¶50} In his third assignment of error, appellant argues the trial court’s restitution 

order was not adequately supported by the record. For the following reasons, we agree, 

and therefore sustain this assignment of error. 

{¶51} We review restitution orders under an abuse-of-discretion standard. State 

v. Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996, 2018 WL 1358039, ¶ 15, 

citing State v. Cook, 5th Dist. Fairfield No. 16-CA-28, 2017-Ohio-1503, 2017 WL 

1436377, ¶ 8; State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio7389, 2016 WL 6138888, ¶ 40. We also recently reiterated that an order 

of restitution must be supported by competent and credible evidence from which the trial 

court can discern the amount of restitution to a reasonable degree of certainty. Sheets, 

supra, citing State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019, 2017-Ohio-59, 

2017 WL 90619, ¶ 44 (citations omitted); State v. Frank, 5th Dist. No. CT2017-0102, 

2018-Ohio-5148, 127 N.E.3d 363, ¶ 64. Furthermore, a trial court abuses its discretion if 

it orders restitution in an amount that does not bear a reasonable relationship to 

the actual loss suffered. Id. (citations omitted). 

{¶52} At sentencing, appellant was summarily ordered to pay restitution in the 

amount of $184,900, and Thomas is designated as the payee of the restitution order in 

the sentencing entry. Appellant asserts this restitution amount is not supported by 

competent, credible evidence in the record. Appellee responds that Thomas provided 

“receipts and quotes” which the trial court reviewed, but we are unable to find evidence 

of this documentation in the record. Appellee has attached the transcript of co-defendant 

Eblin’s sentencing hearing at which the issue of restitution was addressed in considerably 
Muskingum County, Case No. CT2019-0038 17 

more depth. Eblin’s sentencing hearing reveals that the trial court first rejected the 

requested restitution amount of $184,900, but then upon reconsideration ordered that 

amount because it was “attached to the presentence investigation [of Eblin].” The P.S.I. 

in the instant case is not in the record before us, and the trial court did not reference the 

P.S.I. in ordering restitution, so we are unaware of what documentation may exist 

supporting the ordered amount. 

{¶53} We are left with a void of competent, credible evidence supporting the 

restitution in the instant case, although such evidence may exist. We are thus unable to 

determine whether the trial court abused its discretion in reconsidering the amount which 

it first deemed excessive. We find insufficient evidence to support the $184,900 

restitution order, grant appellant’s third assignment of error, and remand this matter for a 

restitution hearing. State v. LaFever, 5th Dist. Morrow No. 2009CA0003, 2009-Ohio5471, ¶ 28. 

{¶54} Appellant’s third assignment of error is sustained, the restitution order is 

reversed and vacated, and the matter is remanded for a restitution hearing. 
Muskingum County, Case No. CT2019-0038 18 

CONCLUSION 

{¶55} Appellant’s first and second assignments of error are overruled and his third 

assignment of error is sustained. The judgment of the Muskingum County Court of 

Common Pleas is affirmed in part and reversed in part, and this matter is remanded for 

further proceedings. 

By: Delaney, J., 

Wise, John, P.J. and 

Wise, Earle, J., concur.