[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. Delane y , J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. CT2019-0038 : JOSEPH D. HODGE : : : Defendant-Appellan t : 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 S t 250 East Broad St., Ste. 1400 P.O. Box 189 Columbus, OH 43215 Zanesville, OH 43702Muskingum 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 d iscovered 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 i n her mother’s house on North Main Street in Roseville, Muskingum County. Tho mas’ mother bought the house in 2010 but was now in ill health and required the se rvices of a nursing home.

Thomas’ mother therefore transferred title to the house to Thom as and her brother, Marshall Sanderson. A few months later, due to Medicare/Medica id 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 c hildren. All of her own property was in the house, along with that of her mothe r and father. Thomas’ father passed away a few weeks after her mother. Items belongi ng 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 s erved with a lawsuit by her mother’s former nursing home, which sought to foreclose aga inst the home to recover fees for her mother’s care. Thomas hired an attorney specializ ing 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 ho use, and in January 2018 it stopped working altogether. Because it was win ter 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 event ually 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 driv e by and check on the house regularly. At the end of July, however, her car broke do wn, and she stopped working in Crooksville. She therefore drove by the Roseville r esidence 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; the refore, Thomas owned the house free and clear. Thomas signed a note and Moorehead t ook a mortgage on the property to cover his fees of $1900. {¶8} On October 28, 2018, Thomas and her mother-in-law Wendy Yo cum drove together to drop off the children after visitation, and took th e opportunity to check on the Roseville house. The women were shocked to find the garage doo r open and an unfamiliar truck parked in the driveway. A box truck and a sma ller trailer were also parked near the house. Thomas and Yocum dropped the children off befo re 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 h alf, functioning as a music studio for her fiancé and a garage where Thomas stored her moto rcycle. The motorcycleMuskingum 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 he r family was still present, but most was missing and the house was unrecognizable. There w as unfamiliar stuff everywhere. Appliances were missing, there were holes in the w alls, and entire bathrooms had been ripped out. Thomas encountered appellant an d his girlfriend, Nikki Eblin, coming down the stairs. Thomas did not know either of t hem, and demanded to know why they were in the house and where her property was. Ap pellant said this wasn’t her house and she needed to get out. He said he bought the hou se 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, “T hen I’ll shoot you and your family,” pulling up his shirt and revealing what Thomas believe d 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 hou se 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 insist ed 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 sug gested Thomas should file an eviction. The first deputy on the scene testified at trial tha t his report writing on this caseMuskingum 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. Appe llant 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 ne xt day (October 31) and he prepared a three-day eviction notice for her. Thom as 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 hou se 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 t he 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 to ld him to speak to hisMuskingum County, Case No. CT2019-0038 6

girlfriend because they were legally entitled to be there. Ebl in 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 an d appellant as grantee, purporting to have transferred the property in April 2018. {¶17} Thomas denied all knowledge of the deed and told Moorehea d she never sold the property to anyone. She pointed out that she could no t have sold the property even if she wanted to in light of first the nursing-home lawsui t and then Moorehead’s mortgage on the property. Thomas insisted it was not her signa ture on the deed, but her purported signature was notarized. {¶18} As Moorehead and Thomas discussed the deed, Thomas was se rved with an ex-parte civil protection order obtained against her by Ebli n. The immediate effect of the C.P.O. was that Thomas was not permitted to be in the court room during the eviction proceeding and she had to surrender her firearms. {¶19} Meanwhile, Judge Scott Raskin of the Muskingum County Cou rt of Common Pleas presided over the eviction hearing and was also su rprised when appellant produced the deed establishing ownership of property. Judge Ra skin treated the deed

as a motion to dismiss the eviction. Moorehead moved to contin ue 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, appe llant was still the record owner of the property. Moorehead testified that he would have to fil e a declaratory judgment

action on Thomas’ behalf to have the deed struck from the chain of title. {¶21} Throughout the eviction proceeding Moorehead was genuinel y puzzled because he believed Thomas to be a truthful person, but her sig nature on the purportedly fake deed was notarized. Moorehead contacted the notary, Amy A dams, who said she remembered notarizing Thomas’ signature and that she always ask s to see a signatory’s identification. She added, though, that she would not recogniz e Thomas if she saw her again. Moorehead found the conversation strange and began to s uspect it was possible that the notary worked with appellant to falsify the deed. {¶22} Moorehead was convinced the deed was fake when he obtaine d the report of the Muskingum County Sheriff’s Department from the confronta tion at the house on October 28. At that time, appellant and Eblin claimed they bou ght the house on land contract from a mortgage company; now, a month later, they prod uced a fake deed and claimed they purchased the house from Thomas in April. {¶23} Moorehead contacted Detective Ross to urge further invest igation 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 som e 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, a nd 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 con taining 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 purpo rtedly sold her own home and had nowhere to live with her children; she told Adams she a nd appellant “found” an abandoned home which they planned to move into and “flip.” Ebl in told her that if they moved into the house and took care of it, it would be theirs be cause no one else wanted it. At one point Eblin brought Adams to the house and she look ed around inside. Then Adams learned someone came forward to assert ownership of the h ouse, and appellant

therefore needed a deed. He and Adams had several conversation s 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 t he deed when an attorney [Moorehead] contacted her to ask about the circumstanc es of Thomas’ signature. At trial Adams admitted she lied to Moorehead and D etective Ross, telling both that Thomas was present in front of her when she signed th e 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 ag gravated 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 fe lony of the fifth degree [CountMuskingum County, Case No. CT2019-0038 9 III]; one count of vandalism in an amount greater than $7500 an d less than $150,000 pursuant to R.C. 2909.05(A), a felony of the fourth degree [Cou nt IV]; one count of arson in an amount over $1000 pursuant to R.C. 2909.03(A)(1), a felon y 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 c ount 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 e ngaging in a pattern of corrupt activity purs uant to R.C. 2923.32(A)(2), a felony of the first degree [Count X]. Counts I and II were a ccompanied 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 proc eeded 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 hi s person while committing the offenses, and appellant was thus cleared of all four firear m specifications. The trial court convicted appellant of both R.V.O. specifications. The t rial court continued the matter for sentencing. Appellant appeared for sentencing and t he trial court imposed a total aggregate prison term of 20 years. {¶28} Appellant now appeals from the judgment entry of his conv ictions 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 COUNSE L,

IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.” {¶32} “III. THE TRIAL COURT’S RESTITUTION ORDER FOR $184,900 W AS NOT ADEQUATELY SUPPO RTED BY THE RECORD.”

ANALYSIS

I. {¶33} In his first assignment of error, appellant argues prosec utorial misconduct deprived him of a fair trial. We disagree. {¶34} The test for prosecutorial misconduct is whether the pros ecutor'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, 1 11 S.Ct. 591, 112 L.Ed.2d 596 (1990). In reviewing allegations of prosecutorial misconduc t, 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 appellantMuskingum 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 prose cutorial misconduct and argues that the cumulative effect of these examples deprived hi m of a fair trial. {¶35} Appellant cites a number of instances of alleged prosecut orial misconduct during opening statement, closing argument, and direct examinat ion of Thomas. We note appellant did not object to the alleged improper comments at tr ial. If trial counsel fails to object to the alleged instances of prosecutorial misconduct, th e 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 pla in-error standard. Pursuant to Crim.R. 52(B), “plain errors or defects affecting s ubstantial 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 cor rect an error despite the absence of timely objection at trial: (1) “there must be an err or, i.e., a deviation from a legal rule,” (2) “the error must be plain,” that is, an error t hat constitutes “an ‘obvious' defect in the trial proceedings,” and (3) the error must have a ffected “substantial rights”

such that “the trial court's error must have affected the outco me 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, unde r exceptional circumstances and only to prevent a manifest miscarriage of jus tice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the sy llabus.Muskingum County, Case No. CT2019-0038 12

{¶37} First, appellant argues the prosecutor undermined the pre sumption of innocence in opening statement with the assertion that “just be cause we are down here and having a trial does not mean that there is a great big myst ery to solve,” a comment that was repeated in closing argument. We disagree with appell ant’s characterization

and find the comment to be innocuous in the context of the enti re opening statement and closing argument. Appellant further argues the prosecutor vouc hed for Thomas’ credibility by reminding the jury that Moorehead found Thomas t o 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 ove rstating the import of these comments. The prosecutor’s statements were also accurate summa ries 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 S tate 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 ch aracterizations of the record. Upon our review, we find the cited comments to be reaso nable inferences from

the evidence. {¶39} Finally, appellant has failed to demonstrate prejudice ba sed upon any of the prosecutor's comments he cites. “Appellant does not identify an y connection between the alleged misconduct and his conviction. * * * *. [T]he trial cou rt clearly believed, and the record reflects, that the prosecutor's theory of the case was r elevant 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 misco nduct.” 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 argum ents 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 con victed. 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 i s 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. Appell ee presented substantial uncontroverted evidence of appellant’s guilt. Having failed to demonstrate a causal connection between the alleged misconduct and his resulting con victions, 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 re ceived 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 mus t 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 condu ct falls within the wide range of reasonable professional assistance; that is, the defen dant must overcome the presumption that, under the circumstances, the challenged actio n ‘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 par ticular client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outsid e the wide range of professionally competent assistance.” Id. at 690. {¶45} Even if a defendant shows that counsel was incompetent, t he 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 prob ability that, but for counsel's unprofessional errors, the result of the proceeding w ould 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 cou nsel's failure to object to the alleged misconduct could be reasonably interpreted as tacti cal decisions designed to not bring attention to what may or may not be objectionable mat ter, 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 n otMuskingum County, Case No. CT2019-0038 15

allowed , 155 Ohio St.3d 1405, 2019-Ohio-944, 119 N.E.3d 433. Because t his 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 cita tions omitted. {¶47} Next, appellant argues defense trial counsel was ineffect ive 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 witn ess'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 auth enticity of the deed, and the significance of the notebooks and legal encyclope dias left behind by appellant and his accomplice, were based upon his perceptions a s a fact witness and Thomas’ personal real-estate attorney who was involved in the e viction proceeding and was in a unique position to investigate the alleged sale of Tho mas’ residence. His opinion was helpful in describing the significance of the legal materia ls 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. Moreove r, we find no reasonable probability that if counsel had objected to Moorehea d’s testimony, the result of the proceeding would have been different. {¶49} Appellant has not established ineffective assistance of d efense 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 tr ial court’s restitution order was not adequately supported by the record. For the foll owing 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 135803 9, ¶ 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 a n order of restitution must be supported by competent and credible evid ence from which the trial court can discern the amount of restitution to a reasonable deg ree 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 cour t abuses its discretion if

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

the actual loss suffered. Id. (citations omitted). {¶52} At sentencing, appellant was summarily ordered to pay res titution in the amount of $184,900, and Thomas is designated as the payee of th e restitution order in the sentencing entry. Appellant asserts this restitution amoun t 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 ar e 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 wa s addressed in considerablyMuskingum 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 reconsi deration ordered that amount because it was “attached to the presentence investigatio n [of Eblin].” The P.S.I. in the instant case is not in the record before us, and the tri al court did not reference the P.S.I. in ordering restitution, so we are unaware of what docum entation may exist supporting the ordered amount. {¶53} We are left with a void of competent, credible evidence s upporting the restitution in the instant case, although such evidence may exi st. We are thus unable to

determine whether the trial court abused its discretion in reco nsidering the amount which

it first deemed excessive. We find insufficient evidence to s upport 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 r estitution order is reversed and vacated, and the matter is remanded for a restitut ion hearing.Muskingum County, Case No. CT2019-0038 18

CONCLUSION {¶55} Appellant’s first and second assignments of error are ove rruled 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.