[Cite as State v. Jackson , 2012-Ohio-288.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 24472 Plaintiff-Appellee : : Trial Court Ca se No. 09-CR-3596 v. : : ANGELA JACKSON : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 27 th day of January, 2012.

. . . . . . . . . . . MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor’s Office, Appe llate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee AARON D. LOWE, Atty. Reg. #0085954, 703 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Angela Jackson appeals from her convi ction and sentence on one count of aggravated theft, two counts of misuse of a credit card, and six counts of forgery. 2

 {¶ 2} In her sole assignment of error, Jack son contends the tr ial court erred in determining the dollar amount of her restitution obligation. {¶ 3} The record reflects that Jackson was employed as a property manager for the Indian Creek Condominium Association (ICCA) for approximately two and one-half years. On July 13, 2010, she pled guilty to two counts of misuse of a credit card and six counts of forgery in connection with her employment. At that time, Jackson also started to enter a no-contest plea to one count of aggravated theft, a third-degree felony. The trial court held that plea in abeyance, however, noting that Jackson disputed whether her theft involved more or less than $100,000. 1 (Transcript, Vol. I at 8-9, 18-19). To resolve the dispute, the parties agreed that the trial court woul d determine the dollar amount of the theft at a future hearing. ( Id. at 19). {¶ 4} On December 3, 2010, the trial court held a restitution hearing. The parties agreed that the trial court would finish the plea hearing with regard to the theft charge after taking testimony and determining whether Jackson’s th eft involved more or less than $100,000. ( Id. at 22-24). The trial court noted that the issue was significant because under then-existing R.C. 2913.02 theft of less than $100,000 was a fourth-degree felony whereas theft of more than $100,000 wa s a third-degree felony. 2 ( Id. at 23-24). The trial court then heard testimony from three prosecution witnesse s and three defense witnesses, including Jackson. Following the hearing, the trial court filed a decision and entry in which it found that Jackson owed ICCA restitution of $206,545.35. Base d on that determina tion, the trial court

1 The Bill of Particulars filed February 1, 2010, had alleged that the defendant stole $290,046.63.

2 Parenthetically, we note that effective September 30, 2011, the dollar amounts for the various theft offense levels under R.C. 2913.02 were increased. 3

 concluded that she properly had been charged with third-degree felony theft. (Doc. #30). {¶ 5} On January 4, 2011, Jackson returned to court to complete her plea on the charge of theft as a third-degree felony. At the outset of this hearing, the trial court reiterated its finding that Jackson’s theft involve d more than $100,000, making her offense a third-degree felony, as charged in the indic tment. (Transcript, Vol. II at 398-400). After repeating that finding, the tria l court asked Jackson how she pled. She responded by pleading no contest to count one, which charged aggr avated theft, a third-degree felony. ( Id. at 400). The trial court found her guilty. ( Id. at 401). It later imposed an aggregate three-year prison sentence and ordered restitution of $206,545.35. ( Id. at 411). This appeal followed. {¶ 6} As set forth above, Jackson’s assignment of error challenges the trial court’s restitution determination. In s upport, she contends the State failed to prove that she misappropriated ICCA’s funds a nd made unauthorized personal pur chases with ICCA’s credit card. Jackson claims the State’s witnesses l acked personal knowledge about which charges were authorized. She further contends the te stimony of defense witness Mark Wagner, who served as president of ICCA’s board, establishe d that almost every expenditure she made was authorized and was for legitimate business purposes. {¶ 7} At the outset of our analysis, we note that Jackson raises the restitution issue in the context of challenging he r conviction for third-degree felony theft instead of fourth-degree felony theft. Although the reco rd reflects that Jackson engaged in numerous financial transactions using ICCA’s money, she does not address those transactions individually. Instead, she argues, broadly, that the record contains “reasonable and legitimate explanations for virtually every expense[.]” Ther efore, she contends th e trial court erred in 4

 finding that her theft exceeded the $100,000 thres hold for a third-degree felony. Jackson asks us to “reverse and remand the trial court’s de termination of restitution to reflect an amount under $100,000.” (Appellant’s brief at 7). {¶ 8} Upon review, we find Jackson’s argument to be without merit. Insofar as she challenges the trial court’s re stitution calculation as grounds for a third-degree felony theft conviction, she forfeited her ability to raise th e issue by pleading no contest. Jackson’s argument that the trial court erred in finding that she stole more than $100,000 necessarily challenges the sufficiency or weight of the State’s evidence. But “[a] defendant who pleads no contest to a charge may not later attack the su fficiency or weight of the evidence under which he was convicted.” State v. Hurt , 2d Dist. Montgomery App. No. 21009, 2006-Ohio-990, ¶ 35. Therefore, Jackson cannot now argue that the tria l court erred in convic ting her of theft as a third-degree felony. {¶ 9} Finally, to the extent that Jackson might be challenging her restitution obligation directly, we reject her claim that the trial court erred in ordering restitution of more than $100,000. During the hearing below, Jackson’ s counsel stipulated that she had stolen more than $54,000. Counsel also admitted theft be yond the stipulated amount but could not say how much. (Transcript, Vol. I at 31). Jackson later testified and admitted stealing approximately $62,000 to $63,000. (Trans cript, Vol. II at 367-368). {¶ 10} The State presented evidence, however, s howing that Jackson stole much more. Cathy DiGiorgio, who served as an ICCA board member shortly before Jackson’s employment, testified that she was responsible for determining how much Jackson had stolen after the theft was discovered. (Transcript, Vol. I at 34). DiGiorgio testified that Jackson’s 5

 responsibilities included managing the property, collecting c ondo association dues, paying bills, and keeping the books. ( Id. at 34-35). According to DiGiorgio, Jackson had access to all of ICCA’s funds. ( Id. ). DiGiorgio’s investigation re vealed that approximately $111,000 should have been deposited into ICCA’s re serve fund from condo a ssociation dues during Jackson’s employment. DiGiorgio testifie d that the $111,000 was not deposited into the reserve fund and that it was missing. ( Id. at 77-80, 101-108, 179). This testimony supports a finding that Jackson stole more than $100,000. {¶ 11} DiGiorgio also reviewed numerous financial records, including bank statements and credit-card bills. Based on that review, she concluded that Jackson had made dozens of unauthorized personal purchases on an ICCA credit card and had made unauthorized payments to hers elf and relatives. According to DiGiorgio, these improper expenditures exceeded $100,000. ( Id. at 92-93, citing State’s exhibit 2). In DiGiorgio’s opinion, the total amount of Jackson’s theft was $219,825.50. ( Id. ). {¶ 12} On appeal, Jackson contends DiGiorgi o was not competent to testify about whether the credit-card purchases were aut horized. Because DiGiorgio was not a board member during Jackson’s employment, Jack son contends DiGiorgio lacked personal knowledge as to whether the board had approve d the charges. We disagree. Based on her recent past membership on ICCA’s board, Di Giorgio was familiar w ith its policies and practices. While it was possible those policie s and practices could have changed after DiGiorgio’s term expired, the r ecord contains evidence that they did not change. Notably, another prosecution witness, Robert Lutz, te stified that he served on ICCA’s board during Jackson’s employment. (Transcript, Vol. I at 181, 187). According to Lutz, he gave Jackson an 6

 ICCA credit card to use. He instructed he r to use it only for “special purchases.” ( Id. at 183-184). It was not for “routine use.” ( Id. at 193). Jackson did not have permission to use the card for “personal expenses.” ( Id. at 185). Among the records admitted into evidence, however, were copies of monthl y statements showing that the credit card subsequently was used to pay electric bills, cable television b ills, Cricket phone bills, Ci ngular phone bills, and AT&T bills. The credit card also was used at Marco’s Pizza, McDonalds, Burger King, Taco Bell, Papa Johns, and other restau rants. In addition, it was used to make thousands of dollars of purchases from grocery stores, Lowes, and Home Depot. Other charges on the credit card were for a stay at a Holiday Inn in Tennessee, a purchase from Aeropostale, an airline ticket, a tanning bed, and a $319.50 charge at the Monkey Bones Tattoo Parlor. Finally, the credit card was used many times at gas stations. Based on Lutz’s testimony and these records, the trial court reasonably c ould have concluded that the fore going charges were unauthorized. {¶ 13} In support of her argument, Jackson relie s largely on her own testimony and the testimony of Mark Wagner, who served as pr esident of ICCA’s board during part of her employment. Although Jackson claimed to have had permission for her purchases, she was unable to produce receipts showing what she had purchased or how the purchases had benefitted ICCA. She also admitted providing ICCA with “doctored” financial records that were inaccurate. (Transcript, Vol. II at 380-381) . Jackson additionally characterized some of her time with ICCA as a “blur” due to her heavy drug use. ( Id. at 368). {¶ 14} With regard to Wagner, his testim ony provided limited support for Jackson. Wagner testified that Lutz “w as never around.” (Transcript, Vo l. I at 220). Wagner testified that he was Jackson’s primary supervisor. ( Id. at 223). Wagner also suggested that some of the 7

 disputed credit card charges were, or may have been, authorized. ( Id. at 225-236). He further testified that a number of resi dents were behind on their associ ation dues and that ICCA had other financial obligations. ( Id. at 240-241). We note, however, th at the trial court expressly found Wagner’s testimony to be “suspect” and “of little value.” (Transcript, Vol. II at 408). The trial court apparently believed that Wagn er’s testimony was co lored by his personal relationship with Jackson. During his testim ony, Wagner admitted that he had purchased Jackson a ring and sent her a “l ove note.” (Transcript, Vol. I at 245). As the trier of fact, the trial court was permitted to evaluate Wagner’s testimony and to give the testimony whatever weight it found appropriate. {¶ 15} We see no abuse of discretion in the tria l court’s determination that Jackson’s restitution obligation exceeded $100,000, a figure th at is supported by competent, credible evidence. See State v. Rose , 2d Dist. Montgomery App. No. 24196, 2011-Ohio-3616, ¶ 8 (noting that a trial court acts within its discretion in ordering restitution if the record contains competent, credible evidence to support the res titution award). Jackson’s assignment of error is overruled. {¶ 16} The trial court’s judgment is affirmed.

. . . . . . . . . . . . . FAIN and FROELICH, JJ., concur. Copies mailed to: Mathias H. Heck Michele D. Phipps Montgomery County Prosecutor’s Office 301 W. Third Street, 5 th Floor Dayton, OH 45422 8

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Aaron D. Lowe 703 Liberty Tower 120 W. Second Street Dayton, OH 45402 Hon. Frances E. McGee Montgomery County Common Pleas Court 41 N. Perry Street Dayton, OH 45422