[Cite as State v. Matthews , 2015-Ohio-176.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101275

STATE OF OHIO
PLAINTIFF-APPELLEE

vs. KENNETH MATTHEWS
DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-577754-A BEFORE: Stewart, J., S. Gallagher, P. J., and E.T. Gallagher, J. RELEASED AND JOURNALIZED: January 22, 2015ATTORNEY FOR APPELLANT Brian Moriarty 2000 Standard Bldg. 1370 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor By: Scott Zarzycki Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113MELODY J. STEWART, J.: {¶1} Defendant-appellant, Kenne th Matthews, appeals hi s murder conviction and sentence. Matthews argues that his conviction wa s against the manifest weight of the evidence, that the court erred by failing to inform him of postrelease control, and that the court erred in ordering him to pay restitution. For the followi ng reasons, we affirm Matthews convictions, but vacate the order of restitution and remand to th e trial court to hold a hearing on actual losses suffered. {¶2} On the night of August 30, 2013, Kenneth Matthews fatally shot Bruce Jernigan. The evidence and testimony presented at trial re vealed that the alter cation took place sometime around 11:30 p.m., shortly after Jernigan got off his sh ift at a local grocery store. Jernigan and two friends, Tracy O’Hare and Jerome Sweeney, had walked to Sweeney’s home located just around the block from the store. The three men we re standing on the lawn outside of Sweeney’s apartment building when a pickup truck turned down the street, stopped a few houses away from them, and then proceeded to back up toward them . Matthews and his daughter were riding in the truck. At this point, Matthews yelled from the truck for the three men to get off the block. Jernigan refused, and told Matthews that they di d not have to go anywhere because they lived there. Matthews then proceeded to exit the truc k, approach Jernigan and shoot Jernigan in the face.{¶3} On March 24, 2014, a jury found Matthews guilty of murder in violation of R.C. 2903.02(B), with a firearm specification, felonious assault in violation of R.C. 2903.11(A)(1), with a firearm specification, and felonious assa ult in violation of R.C. 2903.11(A)(2), with a firearm specification. At senten cing, the trial judge merged bot h counts of felonious assault with the murder conviction. The court also me rged the firearm specifications. The court sentenced Matthews to a term of three years’ imprisonment on the firearm specification, to be served prior to, and consecutive with, 15 years to life on the murder conviction. The court also ordered Matthews to pay $4,000 in re stitution to the victim’s family in order to cover the victim’s funeral expenses. {¶4} In his first assignment of error, Matth ews claims his conviction for murder was against the manifest weight of the evidence. More specifically, Matthews argues that the jury “lost its way” when it found that Matthews did not act in self-defense when he shot Jernigan. {¶5} When reviewing a claim challenging the manifest weight of the evidence, the appellate court “reviews the entire record, weig hs the evidence and all reasonable inferences, considers the credibility of witnesses and * * * resolves conflicts in the evidence.” State v. Thompkins , 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E .2d 541. Under this construct, the appellate court is obliged to sit as a “thirteenth juror,” and determine whether, after examining and weighing all of the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that th e conviction must be overturne d and a new trial ordered. Id. Accordingly, reversal on manifest weight grounds is reserved only for exceptional cases where the evidence weighs heavily against the conviction. Id.; State v. Jones , 8th Dist. Cuyahoga No. 88900, 2007-Ohio-4580, ¶ 15.{¶6} Ohio law recognizes self-defense as an affirmative defense to a murder charge.
State v. Martin , 21 Ohio St.3d 91, 488 N.E.2d 166 (1986), aff’d, Martin v. Ohio , 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). In order to prevail on the affirmative defense of self-defense, an accused bears the burden of provi ng by a preponderance of the evidence that he (1) was not at fault in creating the situation givi ng rise to the death of the victim; (2) had a bona fide belief that he was in imminen t danger of death or great bodily harm and that his only means of escape from such danger was in the use of such force; and (3) did not violate any duty to avoid the danger. State v. Williford , 49 Ohio St.3d 247, 249, 551 N.E.2d 1279 (1990). “If the defendant fails to prove any one of these elements by a pre ponderance of the evidence he has failed to demonstrate that he acted in self-defense.” (Emphasis sic.) State v. Jackson , 22 Ohio St.3d 281, 284, 490 N.E.2d 893 (1986). {¶7} Here, O’Hare and Sweeney, two eye witne sses who were with Jernigan when he was shot, testified at trial that Matthews exite d his truck with a weapon in hand, walked up to Jernigan, and shot him at close range. The w itnesses testified that Jernigan was unarmed, and had done nothing to provoke Matthews, aside fro m simply refusing to get off the block. Although Matthews maintains that he was acting in self-defense, no credible evidence was ever presented that established that Jernigan was arme d that evening. No gun was found at the scene of the crime and witne sses testified that they did not s ee Jernigan in possession of a weapon. Further, a woman who was a 38-year resident of the neighborhood testif ied that Matthews had recently told her two days before the shooting that she needed to clean up her streets or that he was going to do it for her.{¶8} Therefore, after careful consideration of the evidence in the record, we cannot say that the jury lost its way and committed a manifest injustice by finding Matthews guilty of murder. {¶9} In his second assignment of error, Matth ews argues that the court erred when it failed to inform him of postrelease control at the sentencing hearing. Here, it is undisputed that Matthews was convicted of murder. The crime of murder is an unc lassified felony to which the postrelease control stat ute does not apply. State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 36; State v. Gripper , 10th Dist. Franklin No. 10AP-1186, 2011-Ohio-3656, ¶ 10. Accordingly, the court acted properly by not advising Matthews of postrelease control. {¶10} In his third assignment of error, Matthews argues that the court erred by ordering him to pay restitution without sufficient competen t evidence in the record to support such an order. We agree. {¶11} Under R.C. 2929.18(A)(1), a court may order a felony offender to pay restitution to the victim of the crime, or the victim’s family, as part of his sentence. {¶12} R.C. 2929.18(A)(1) provides, in relevant part: If the court imposes restitution, at sent encing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of res titution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as re stitution shall not exceed the amount of the economic loss su ffered by the victim as a direct and proximate result of the co mmission of the offense.{¶13} Appellate courts review an order of restitution for abuse of discretion. State v.
Carrino , 8th Dist. Cuyahoga No. 67696, 1995 Ohio App. LEXIS 1950, *2 (May 11, 1995). The term “abuse of discretion” implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶14} In Ohio, it is clear that “there must be a due process ascertainment that the amount of restitution bears a reasonable relationship to the loss suffered,” by the victim. State v. Williams , 34 Ohio App.3d 33, 34, 516 N.E.2d 1270 (2d Dist. 1986). To be a lawful order, the amount of restitution must be supported by comp etent, credible evidence from which the court can discern the amount of the restituti on to a reasonable degree of certainty. State v. Gears , 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist. 1999) . “Documentary and/or testimonial evidence must be introduced to dem onstrate the victim’s economic loss.” State v. Waiters , 191 Ohio App.3d 720, 2010-Ohio-5764, 947 N.E.2d 710, ¶ 18 (8th Dist.).{¶15} Matthews contends that there was not competent and credible evidence presented such that the court could discern the amount of restitution to a reasonable degree because no evidence was introduced as to the funeral costs. However, a careful review of the record would suggest that some, albeit slight, evidence of loss was introduced. At the sentencing hearing, Jernigan’s mother gave a victim impact statement. During this statement, the court asked Jernigan’s mother if she was charged with the funeral arrangements. To this she replied that it was her daughter who arranged th e funeral. However, despite the fact that she had not planned the funeral, the mother went on to testify that the funeral costs were $4,095. Because Jernigan’s mother did not arrange the funeral, and did not supply any documentary evidence of funeral costs, we conclude that the victim’s actual losses were never shown with reasonable certainty, and therefore the court abused its discretion in ordering Matthews to pay restitution in the amount of $4,000. {¶16} Accordingly, the order of restitution is set aside, and we remand this case for an evidentiary hearing on the actual amount of ec onomic loss suffered and to whom any such amount is owed. This cause is a ffirmed in part, reversed in part , and remanded to the trial court for further proceedings consistent with this opinion. It is ordered that appe llant and appellee share the costs herein taxed. The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Ca se remanded to the tria l court for execution of

sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.______________________________________________ MELODY J. STEWART, JUDGE SEAN C. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR