State v. Dunn

2026 Ohio 241

• Court: Ohio Court of Appeals
• Decided: January 28, 2026
• Docket: C-250257
• Status: Published

Opinion

[Cite as State v. Dunn, 2026-Ohio-241.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250257 TRIAL NO. 24/CRB/21777/A Plaintiff-Appellee, :

and : JUDGMENT ENTRY VICTIMS P.H. AND W.C., :

Appellants, :

vs. :

FAITH DUNN, :

Defendant-Appellee. :

This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed to Appellee Dunn. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 1/28/2026 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Dunn, 2026-Ohio-241.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250257 TRIAL NO. 24/CRB/21777/A Plaintiff-Appellee, :

and : OPINION VICTIMS P.H. AND W.C., :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 28, 2026

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Phoebe Cates, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ohio Crime Victim Justice Center and Morgan Galle, for Appellants,

Derek W. Gustafson, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Presiding Judge.

{¶1} Defendant-appellee Faith Dunn pleaded guilty to criminal damaging

after she stole and crashed victims-appellants P.H. and W.C.’s (“Victims”) car. The

Victims sought restitution from Dunn. At sentencing, Dunn stated that she was

prepared to pay whatever amount of restitution the trial court ordered. But the trial

court did not believe Dunn could pay restitution and did not award the Victims any

restitution. The Victims now appeal, arguing that the trial court violated their rights

under Ohio Const., art. I, § 10a(A)(7) and R.C. 2929.28.

{¶2} Because the Victims had a right to restitution under Ohio Const., art. I,

§ 10a(A)(7) and R.C. 2929.28, and because the trial court lacked any evidence that

Dunn could not pay a restitution award, we sustain the Victims’ assignment of error,

reverse the trial court’s judgment, and remand for further proceedings.

I. Factual and Procedural History

{¶3} The State indicted Dunn on one count of obstructing official business, a

second-degree misdemeanor, and one count of unauthorized use of a motor vehicle, a

first-degree misdemeanor.

{¶4} Dunn pleaded guilty to the unauthorized-use charge in exchange for the

dismissal of the obstructing-official-business charge. The trial court continued the

case for sentencing and a victim-impact statement.

{¶5} The Victims, who were not present at Dunn’s sentencing hearing,

provided a victim-impact statement in which they sought $6,175 in restitution from

Dunn for the damage she had caused to their vehicle. The victim-impact statement

included a printout of a Kelly Blue Book estimate for a 2004 Accura MDX showing a

“Private Party Value” of $6,175, “valid as of 03/28/2025,” which was shortly before

the hearing. The victim-impact statement asserted that the car was in “excellent

3 OHIO FIRST DISTRICT COURT OF APPEALS

condition,” but it did not disclose the milage on the car or the degree of damage caused

by Dunn to the car.

{¶6} Dunn told the trial court that she was prepared to take responsibility for

her actions and indicated that she was able to pay restitution. The trial court

questioned Dunn, appearing to disbelieve Dunn’s statement that she was able to pay

the restitution request. The trial court further explained that “money is never my

biggest concern” and observed that the Victims “ha[d] insurance, and I’m of the belief

that’s what insurance is for.”

{¶7} The trial court did not award restitution to the Victims. It sentenced

Dunn, imposed costs, and waived fines.

{¶8} The Victims appealed.

II. Analysis

{¶9} In their sole assignment of error, the Victims argue that the trial court

erred by not awarding them restitution in violation of their rights under Ohio Const.,

art. I, § 10a(A)(7) and R.C. 2929.28.

A. Standard of review

{¶10} This court reviews a nonfelony restitution order for an abuse of

discretion. State v. Haskett, 2024-Ohio-5933, ¶ 13 (1st Dist.). A trial court abuses its

discretion where it acts in an unreasonable, arbitrary, or unconscionable manner. Id.,

quoting Johnson v. Abdullah, 2021-Ohio-3304, ¶ 34. A trial court lacks discretion to

make errors of law. Id.

{¶11} Appellate courts review issues of constitutional interpretation de novo.

State v. Anderson, 2025-Ohio-1226, ¶ 24 (5th Dist.).

B. Restitution

{¶12} Ohio Const., art. I, § 10a, commonly referred to as “Marsy’s Law,” was

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added to the Ohio Constitution to “give crime victims and their families meaningful

and enforceable rights.” City of Centerville v. Knab, 2020-Ohio-5219, ¶ 13. Among the

rights that Marsy’s Law provides a victim is the right “to full and timely restitution

from the person who committed the criminal offense or delinquent act against the

victim.” Ohio Const., art. I, § 10a(A)(7).

{¶13} It is undisputed that the Victims are victims under Marsy’s Law and are

entitled to restitution under its provisions.

{¶14} Marsy’s Law does not establish a mechanism for ordering restitution

and instead “merely states that a victim may assert his or her constitutional rights in

any proceeding involving the underlying criminal act.” Knab at ¶ 18. So, Ohio’s

restitution statutes continue to control restitution awards in criminal cases. State v.

Yerkey, 2022-Ohio-4298, ¶ 12. But Marsy’s Law now “imposes a legal duty on the trial

court to provide ‘full and timely restitution’” in accordance with the applicable

restitution statutes. City of Cleveland v. Rudolph, 2022-Ohio-2363, ¶ 16 (8th Dist.).

{¶15} R.C. 2929.28, which governs restitution after a misdemeanor

conviction, provides that “the trial court may order the defendant to pay restitution ‘to

the victim . . . in an amount based on the victim’s economic loss.’” Haskett, 2024-Ohio-

5933, at ¶ 14 (1st Dist.), quoting R.C. 2929.28(A)(1). “Economic loss” is “any economic

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

an offense.” R.C. 2929.01(L). The victim seeking restitution has the burden of

establishing the amount of restitution by a preponderance of the evidence. State v.

Folson, 2023-Ohio-55, ¶ 10 (1st Dist.); Haskett at ¶ 15.

1. There was no evidence that Dunn is unable to pay restitution

{¶16} Dunn argues that the trial court did not abuse its discretion because R.C.

2929.28(B) permits a sentencing court to waive restitution based on a defendant’s

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inability to pay restitution.

{¶17} Under R.C. 2929.28(B), a trial court may hold a hearing to determine

whether an offender has the ability to pay restitution, or if the offender likely will be

able to pay in the future. “If the court determines that the offender is indigent and

unable to pay the financial sanction or court costs, the court shall consider imposing

and may impose a term of community service . . . in lieu of imposing a financial

sanction or court costs.” R.C. 2929.28(B).

{¶18} Dunn never raised her inability to pay as an issue below. In fact, she

asserted several times that she could pay restitution and was willing to do so. Instead,

the trial court disbelieved her without holding a R.C. 2929.28(B) hearing to determine

Dunn’s ability to pay restitution. The trial court lacked any basis to conclude that Dunn

could not afford to pay the restitution award. See State v. Dupuis, 2013-Ohio-2128, ¶

42 (6th Dist.) (“[I]ndigency ‘does not prevent imposition of financial sanctions,

including restitution.’”). The trial court erred in declining to award restitution based

on Dunn’s inability to pay because the trial court lacked any basis to conclude that

Dunn could not pay restitution.

{¶19} Arguing that Marsy’s Law supersedes any statute allowing a reduction

in a restitution award based on a defendant’s inability to pay, the Victims assert that

Dunn has no right to a hearing regarding her ability to pay. But because the trial court

has not made a proper determination regarding Dunn’s ability to pay, we need not

resolve the issue of whether Marsy’s Law supersedes R.C. 2929.28(B). See State v.

Queen, 2020-Ohio-618, ¶ 12, fn. 1 (3d Dist.) (explaining that because “we have

determined that the defendant has the ability to pay,” the trial court’s R.C.

2929.19(B)(5) analysis did not interfere with the victim’s Marsy’s Law rights and “[i]n

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the absence of such a conflict, we do not need to further consider the effect that Marsy’s

Law has on the operation of R.C. 2929.18(A)(1) or R.C 2929.19(B)(5).”).

2. We will not evaluate evidence in the first instance

{¶20} Dunn also argues that this court should affirm the trial court’s judgment

because the Victims failed to present competent credible evidence supporting their

restitution request. Dunn acknowledges that she did not challenge the amount of

restitution awarded below, but she argues that a judgment that is correct for a different

reason than that relied on by the trial court should be affirmed on appeal. See State v.

Hinsch, 2024-Ohio-4984, ¶ 34 (1st Dist.); see also App.R. 3(C)(2) (allowing appellees

to defend a trial court’s order “on a ground other than that relied on by the trial court”

without filing a cross-appeal provided they do not seek to change the order).

{¶21} The Victims counter that it would be improper for this court to consider

the issue in the first instance because the trial court did not make any findings relevant

to the restitution amount. As discussed above, Dunn did not contest restitution below.

In fact, she appeared to specifically decline a restitution hearing when her counsel

stated, “I could set this for a restitution hearing, I guess, but Ms. Dunn is more

interested in being released . . . and paying restitution, your honor.”

{¶22} The trial court did not hold an evidentiary hearing below, so we decline

to evaluate the limited record in this case. Generally, an appellate court will not resolve

factual issues not reached by the trial court. See State v. Russell, 2017-Ohio-7923, ¶ 8

(9th Dist.) (remanding for trial court to determine if defendant was “in custody” and

required Miranda warnings); Mulholland v. Paul, 120 Ohio App. 59, 61 (1st Dist.

1963) (“appellate jurisdiction does not authorize this court to conduct a trial on issues

of fact unless such a trial has been had in the court of first instance.”).

{¶23} Appellate courts may, in some circumstances, resolve factual disputes

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in the first instance, but “‘factual conclusions reached by a Court of Appeals must be

based upon evidence in the record.’” (Emphasis added.) Cincinnati Gas & Elec. Co. v.

Chevrolet, 2003-Ohio-1367, ¶ 19 (1st Dist.). While the rules of evidence do not apply

at restitution hearings, courts have held that some type of evidence must support the

award. See State v. Reynoso, 2025-Ohio-3119, ¶ 25 (11th Dist.); see also State v.

Thomas, 2025-Ohio-4534, ¶ 35 (11th Dist.) (discussing the types of evidence a victim

might submit to prove a restitution award).

{¶24} Here, neither party submitted evidence to the trial court and we will not

resolve factual disputes without any evidence in the record.

3. The Victims may have been compensated by a third-party and may have insurance coverage

{¶25} Because we remand this matter to the trial court for further

consideration of the Victims’ restitution request, in the interest of judicial economy,

we pause to note that it appears the Victims may have been compensated by a third-

party and owned an insurance policy that would pay for damage to their vehicle.

a. Third-Party reimbursement

{¶26} “[W]here a victim has been fully reimbursed by a third party, a trial

court errs by granting restitution to the victim that ‘would result in an impermissible

windfall and would frustrate the purposes of restitution.’” Haskett, 2024-Ohio-5933,

at ¶ 18 (1st Dist.), quoting State v. Thornton, 2017-Ohio-4037, ¶ 20 (1st Dist.). Further,

a trial court may not award restitution to a third-party not named as a victim in the

case. See State v. Adams, 2019-Ohio-3597, ¶ 14 (1st Dist.).

{¶27} In her victim-impact statement, C.H. said that she borrowed money

from her sister to buy a car to replace the car Dunn had stolen and crashed. She

explained, “If [Dunn] was ordered to pay restitution, it would be wonderful to

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reimburse my sister for the money she lent me.”

{¶28} There is no evidence in the record indicating the cost of the replacement

vehicle, the amount of money that the Victims received from C.H.’s sister, or under

what terms C.H.’s sister provided that money, such as whether and when the Victims

had to repay the money. On remand, the trial court should establish whether the

circumstances require it to reduce the restitution award based on a third-party

reimbursement.

b. R.C. 2929.281(A)’s reductions for insurance payments

{¶29} R.C. 2929.281(A) provides that restitution awards “shall be reduced by

any payments to the victim for economic loss made or due under a policy of insurance

or governmental program.” (Emphasis added.) In other words, the statute requires a

trial court to reduce a restitution award for both realized and potential insurance

payments, even if the victim had not been paid by the insurer at the time of the hearing.

{¶30} We pause to acknowledge that a victim’s insurance premiums may

increase due to the insured making a claim on the policy. But the General Assembly

made the choice to require trial courts to reduce restitution awards for any payments

“due” under an insurance policy. This court cannot rewrite the statute—only the

General Assembly can do that.

{¶31} The Victims cite Haskett, 2024-Ohio-5933, at ¶ 20 (1st Dist.), pointing

out that this court held that crime victims cannot be compelled to file insurance claims.

We note that the Haskett court specifically acknowledged R.C. 2929.281(A), but it

observed that neither party had cited that statute. Id. at ¶ 22, fn. 1. Because neither

party cited R.C. 2929.281(A), this court did not consider that provision’s effect on its

analysis. Id.

{¶32} Unlike the defendant in Haskett, Dunn specifically cites R.C.

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2929.281(A) and argues that it requires the trial court to reduce a restitution award

based on a victim’s insurance. But while the trial court stated that the Victims “ha[ve]

insurance” and the entry denying restitution reflects that the denial was based on the

Victims having insurance, the record contains no evidence of an insurance policy.

{¶33} On remand, at the restitution hearing, the trial court should permit the

parties to present evidence about any insurance policy the Victims maintained that

covered their vehicle, such as the existence of such a policy, its limits, insurance

payments due under the policy, whether the Victims’ making a claim will cause them

economic loss, or any other evidence relevant to how the existence of an insurance

policy covering the vehicle affects restitution.

III. Conclusion

{¶34} We sustain the Victims’ assignment of error, reverse the trial court’s

judgment, and remand the cause for further proceedings.

Judgment reversed and cause remanded.

NESTOR and MOORE, JJ., concur.