State v. Martin

2013 Ohio 2441

Opinion

[Cite as State v. Martin, 2013-Ohio-2441.]

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

STATE OF OHIO, : APPEAL NO. C-110204 TRIAL NO. B-0803273 Plaintiff-Appellee, : O P I N I O N. vs. :

ANTONIO MARTIN, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: June 14, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Scott A. Rubenstein, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

HENDON, Presiding Judge.

{¶1} This matter is before us on the granting of defendant-appellant Antonio

Martin’s application to reopen his appeal under App.R. 26(B) on the sole issue of

whether the trial court erred when it ordered Martin to pay $85,000 in restitution to

the State Farm Insurance Company (“State Farm”).

Facts and Procedural Posture

{¶2} Martin was charged with three counts of arson in connection with

burning down his own house. Count one charged that Martin had “by means of a fire or

explosion, knowingly created a substantial risk of serious harm” to the emergency

personnel responding to the fire. Count two charged Martin with causing physical

harm to an occupied structure. And count three charged that Martin had created a

substantial risk of physical harm to property “with purpose to defraud.” Following a

jury trial, Martin was found guilty of counts one and two. The jury was hung on count

three. That charge was ultimately dismissed.

{¶3} The trial court merged the arson offenses, and sentenced Martin to a

total of five years’ incarceration. It also ordered him to make restitution to the

responding fire department and to Martin’s insurance company, State Farm.

{¶4} In his first assignment of error, Martin claims that the trial court erred

when it ordered him to pay restitution to “nonvictim” third parties State Farm and

the responding fire department. In his second assignment of error, Martin claims

that the trial court erred by sentencing him on allied offenses of similar import.

Based on this court’s ruling allowing Martin to reopen his appeal, Martin cannot

challenge the trial court’s order of restitution to the fire department, nor can he raise

an allied-offenses argument. App.R. 26(B)(7); State v. Moss, 10th Dist. No. 00AP-

2 OHIO FIRST DISTRICT COURT OF APPEALS

574, 2005-Ohio-6806. The second assignment of error is therefore overruled. And

we proceed on the sole issue of whether the trial court erred when it ordered Martin

to pay restitution to State Farm.

Restitution Award

{¶5} Because Martin did not object to the order of restitution at the time it

was made, we review the record for plain error. State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978).

{¶6} R.C. 2929.18(A)(1) authorizes a trial court to award restitution “to the

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

victim’s economic loss.” An amendment to this statute in 2004 deleted a provision

allowing reimbursement “to third parties for amounts paid to or on behalf of the

victim * * * for economic loss resulting from the offense.” See R.C. 2929.18(A)(1),

148 Ohio Laws, Part IV, 8674, 8767. This amendment narrowed the class of parties

eligible for restitution to the actual victim of a crime, and to certain third parties that

are not relevant to this appeal. State v. Bartholomew, 119 Ohio St.3d 359, 2008-

Ohio-4080, 894 N.E.2d 307,¶ 14; State v. Berlinger, 194 Ohio App.3d 145, 2011-

Ohio-2223, 954 N.E.2d 1290 (1st Dist.).

{¶7} Here, State Farm was not the victim of either of Martin’s crimes. In

pertinent part, Black’s Law Dictionary 1703 (9th Ed.2009) defines “victim” as a

person or entity “harmed by a crime.” Here, State Farm may have suffered collateral

damage by Martin’s crimes, but Martin was not convicted of setting fire to his own

home with the “purpose to defraud.” The trial court erred, therefore, in ordering

restitution to State Farm. Compare State v. Hess, 2d Dist. No. 24453, 2012-Ohio-

961 (restitution to insurance company allowed under R.C. 2929.18(A)(1) where

3 OHIO FIRST DISTRICT COURT OF APPEALS

defendant was convicted of insurance fraud since the insurance company was the

victim of the fraud).

{¶8} We therefore sustain Martin’s first assignment of error in part, and

remand this cause to the trial court with instructions to vacate that part of Martin’s

sentence ordering him to pay State Farm $85,000 in restitution. The balance of the

trial court’s judgment is affirmed.

Judgment affirmed in part, reversed in part, and cause remanded.

HILDEBRANDT and FISCHER, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.