[Cite as State v. Watters, 2014-Ohio-2943.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

STEVEN WATTERS, 

 DEFENDANT-APPELLANT. 

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CASE NO. 13 MA 151 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 2011CR584 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph Rivera 

Assistant Prosecutor 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Attorney Jason Small 

20 West Federal Street 

Suite M6 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: June 19, 2014 
[Cite as State v. Watters, 2014-Ohio-2943.]

DONOFRIO, J. 

{¶1} Defendant-appellant Steven Watters, II appeals the decision from the 

Mahoning County Common Pleas Court ordering him to pay $5000 in restitution 

following his guilty plea to unauthorized use of a motor vehicle. 

{¶2} On December 31, 2010, Watters was at a New Year’s Eve party and 

was intoxicated. He took a car belonging to another person at the party. He wrecked 

the car, causing damage to it. Police arrived to conduct their crash investigation and 

arrested Watters for OVI. 

{¶3} A few days later, after it was learned under what circumstances he had 

taken the vehicle, he was charged with receiving stolen property in violation of R.C. 

2913.51(A), a fourth-degree felony. That charge was filed in Struthers Municipal 

Court which is the case that is the subject of the present appeal. The record is 

unclear what happened to the OVI charge other than Watters' counsel stating at 

sentencing for this case that it had been “taken care of.” (August 28, 2013 

Sentencing Hearing Tr. 5.) 

{¶4} The receiving-stolen-property case was bound over to the Mahoning 

County Grand Jury. On June 23, 2011, he was indicted as charged. He pleaded not 

guilty, the trial court appointed him counsel, and the case proceeded to discovery 

and other extensive and prolonged pretrial matters. 

{¶5} On July 1, 2013, the parties reached a Crim.R. 11 plea agreement. In 

exchange for Watters’ no contest plea, the state agreed to amend the charge to 

unauthorized use of a motor vehicle in violation of R.C. 2913.03(A)(D)(1)(2), a firstdegree misdemeanor, and recommend community control. The plea agreement 

specifically stated that the parties had not reached an agreement as to restitution. 

{¶6} The trial court conducted a sentencing hearing on August 28, 2013. 

Concerning restitution, Watters’ counsel asked the court to not order any restitution. 

He noted the absence of any documentation regarding the amount of damage that 

was done to the car and what, if any, insurance coverage there was on the car. 

Acknowledging that Watters had exceeded the scope of his authority to use the car, 

his counsel also argued that the victim had lent the car to Watters knowing that he 
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was intoxicated thereby implicating matters of comparative negligence, which he 

argued was better suited for a civil case. The state acknowledged the lack of 

documentation, but stated that the victim had informed its office that the damage had 

cost him approximately $10,000. The court proceeded to sentence Watters to three 

years community control with the condition that he pays $5,000 in restitution. This 

appeal followed. 

{¶7} Watters sole assignment of error states: 

The trial court abused its discretion upon ordering restitution 

under R.C. 2929.18(A) without supporting evidence. 

{¶8} Watters does not dispute that there was damage to the victim’s car. 

However, he argues that the record in this case lacks any documentation or other 

evidence demonstrating the victim's economic loss. Thus, he argues that the trial 

court’s restitution order was not supported by any evidence. In response, the state 

argues that it provided the trial court with an amount that was recommended by the 

victim and that was sufficient to support the trial court’s restitution order. 

{¶9} Misdemeanor financial sanctions, including restitution, are governed by 

R.C. 2929.28. Both Watters and the state mistakenly cite R.C. 2929.18 as controlling. 

R.C. 2929.18 governs financial sanctions, including restitution, for felonies. Although 

Watters was charged with a felony, he pleaded no contest to and was convicted of a 

misdemeanor. Therefore, R.C. 2929.28 (misdemeanor financial sanctions) applies, 

not R.C. 2929.18 (felony financial sanctions). Nonetheless, the two statutes are 

substantially similar, particularly in regards to the provisions relevant to this case. 

State v. Sheehan, 12th Dist. No. CA2006-10-285, 2008-Ohio-2737, ¶ 21 (noting that 

same analysis can be applied to both statutes). 

{¶10} R.C. 2929.28(A)(1) authorizes a trial court to order a misdemeanor 

offender to pay restitution to a victim in an amount based upon the victim's economic 

loss: 
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(A) * * * [T]he court imposing a sentence upon an offender for a 

misdemeanor * * * may sentence the offender to any financial sanction 

or combination of financial sanctions authorized under this section. If 

the court in its discretion imposes one or more financial sanctions, the 

financial sanctions that may be imposed pursuant to this section 

include, but are not limited to, the following: 

(1) * * * [R]estitution by the offender to the victim of the offender's 

crime or any survivor of the victim, in an amount based on the victim's 

economic loss. * * * If the court requires restitution, the court shall order 

that the restitution be made to the victim in open court or to the adult 

probation department that serves the jurisdiction or the clerk of the 

court on behalf of the victim. 

{¶11} If the court imposes restitution, the court shall determine the amount of 

restitution to be paid by the offender. If the court imposes restitution, the court may 

base the amount of restitution 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 restitution shall not exceed the amount of the economic 

loss suffered by the victim as a direct and proximate result of the commission of the 

offense. If the court decides to impose restitution, the court shall hold an evidentiary 

hearing on restitution if the offender, victim, or survivor disputes the amount of 

restitution. If the court holds an evidentiary hearing, at the hearing the victim or 

survivor has the burden to prove by a preponderance of the evidence the amount of 

restitution sought from the offender. 

{¶12} An appellate court reviews a restitution order for an abuse of discretion. 

State v. Downie, 183 Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218 (7th Dist.), 

¶ 30, citing State v. Schandel, 7th Dist. No. 07-CA-848, 2008-Ohio-6359, ¶ 154. A 

trial court abuses its discretion when its judgment is unreasonable, arbitrary, or 

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E .2d 144 (1980). “It 
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is an abuse of discretion for a trial court to order restitution in an amount that does 

not bear a reasonable relationship to the actual loss suffered.” Id. 

{¶13} In this case, there was no evidence presented concerning the victim’s 

economic loss. The victim did not appear at the sentencing hearing and the state did 

not present any documentation on his behalf to demonstrate economic loss. At the 

hearing, the assistant prosecutor handling the case stated to the court that the victim 

had informed their office “quite a distant time in the past” that the damage caused to 

the car was $10,000. The assistant prosecutor acknowledged that he did not have 

any documentation to support that amount. 

{¶14} As Watters’s appellate counsel correctly notes, the assistant 

prosecutor’s statements alone regarding what the victim had told their office do not 

constitute evidence. State v. Jackson, 4th Dist. No. 11CA3263, 2012-Ohio-4235, ¶ 10 

(statements made by prosecutor regarding amount of damages caused by defendant 

to police cruiser video system not considered evidence for purposes of restitution). 

Here, there was no evidence presented, documentary or otherwise, as to the actual 

economic loss suffered by the victim. Therefore, it was impossible for the trial court to 

order restitution in an amount that bore any reasonable relationship to the actual loss 

suffered. Consequently, the trial court’s restitution order of $5,000 was arbitrary and 

thus an abuse of discretion. 

{¶15} Accordingly, Watters’ sole assignment of error has merit. 

{¶16} The judgment of the trial court ordering restitution of $5,000 is reversed 

and the matter remanded for the limited purpose of conducting a hearing on the issue 

of restitution. 

Waite, J., concurs. 

DeGenaro, P.J., concurs in judgment only.