[Cite as State v. O'Malley, 2021-Ohio-2038.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 109454 v. :
CHRISTOPHER J. O’MALLEY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 17, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-639114-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Allison M. Cupach, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Christopher J. O’Malley (“O’Malley”) appeals
his conviction for having weapons while under disability. For the reasons that
follow, we affirm. PROCEDURAL AND FACTUAL BACKGROUND
On May 16, 2020, a Cuyahoga County Grand Jury returned a two-
count indictment against O’Malley, charging him on Count 1 with grand theft in
violation of R.C. 2913.02(A)(1) and on Count 2 with having weapons while under
disability in violation of R.C. 2923.13(A)(3). Both are third-degree felonies.
O’Malley elected to try Count 1, the grand theft charge in violation of R.C.
2913.02(A)(1) to a jury. As to Count 2, having weapons while under disability in
violation of R.C. 2923.13(A)(3), O’Malley waived his right to a jury and elected to try
Count 2 to the bench.
These charges arose from a missing firearm, owned by the victim
Tiffany Holstein (“Holstein”), that allegedly went missing from her home after her
birthday celebration on November 24, 2018. As of November 2018, Holstein was
living with her boyfriend Robert Higgins (“Higgins”), at 4529 West 130th Street in
Cleveland, a home owned by Higgins’s uncle, who lived in the basement. She had
been living there for four to five months at that time. Higgins’s cousin “Fluffy,”
whose real name is unknown to Holstein, and his friend “Dalton” also lived in the
house. The home had three bedrooms upstairs and one on the main floor, in
addition to the living quarters in the basement. There was only one stairway to the
second floor, which was opposite the front door of the home.
Holstein testified that she and Higgins shared a bedroom on the
second floor, which they kept padlocked unless one of them was home. The couple
shared a pitbull that was kept in the bedroom when they were not home as well. Holstein also kept two firearms in her bedroom, a semiautomatic .22 caliber
handgun and a 9 mm Hi-Point. Holstein testified that both firearms were loaded at
all times. Holstein testified she kept the .22 caliber firearm out most of the time,
either next to her or with her. When she was not home, she kept the .22 caliber
firearm in her bedroom closet on the top shelf behind other objects. She kept the 9
mm firearm on the side table next to her bed under coloring books.
On November 24, 2018, the day before Holstein’s birthday, she,
Higgins, Holstein’s cousin Brandon Williamson (“Williamson”), and O’Malley
gathered at their house before they went downtown to celebrate. Holstein testified
that she had met O’Malley through Williamson and considered him a friend.
Higgins also considered him a friend. O’Malley and Holstein would see each other
a few times a week, sometimes at Holstein’s house. She testified that O’Malley was
familiar with her firearms.
That night, before the party, Holstein had covered her 9 mm firearm
with coloring books in its usual spot on top of her bedside table. Once people arrived
but before they all went downtown that night, O’Malley put his belongings, which
included a duffel bag, in Holstein’s room for safekeeping. While O’Malley was in the
room with her, she placed the .22 caliber firearm up in her closet where she normally
stored it and closed the closet door.
The group left the house to go downtown at 10:00 or 11:00 p.m. and
returned to the home at about 2:00 a.m. At some point during the evening, Holstein
and O’Malley got into an argument. When they got back to the house, the argument escalated to the point where Holstein punched O’Malley in the face. Holstein then
went upstairs and unlocked her bedroom door to let her dog out while everyone was
downstairs. She eventually brought the dog back upstairs, shut her door, and went
back downstairs without locking her door. Holstein and O’Malley continued to
argue in the living room with Higgins, while Williamson was asleep on the couch.
Fluffy was in his room upstairs and Higgins’s uncle was in the basement. Holstein
was unsure if Dalton was in his room.
At some point during the argument, O’Malley abruptly went upstairs
to retrieve his belongings and left the house when his mother arrived. Holstein felt
the way he left was suspicious, so after O’Malley departed, she went to her room,
where she noticed the closet door was open. Holstein could not remember if she had
opened it since being home, but she knew she had closed it before they went out.
She checked on her .22 caliber firearm and when she could not find it, she
immediately suspected O’Malley stole it. Higgins testified that he called O’Malley
and asked O’Malley if he had it, and O’Malley denied having the firearm. Holstein
and Higgins then looked for the firearm but were unable to find it. Holstein called
the police to report it missing and told the police O’Malley had taken it. The next
day, Higgins found the “missing”.22 caliber firearm underneath a glass table at the
bottom of the stairs by the front door. It was not until one week later, on November 30, 2018, that Holstein
noticed her 9 mm firearm was missing from the table next to her bed.1 The coloring
books were undisturbed, so it was not until Holstein was looking for her 9 mm
firearm to go to the shooting range that she noticed it was not there. She searched
the house for the firearm for a day before contacting the police about this second
missing firearm on December 1, 2018. The following day, Officer Wise from the
Cleveland Police Department responded to her call. Holstein told Officer Wise that
she believed O’Malley took the 9 mm firearm.
Holstein then testified that on December 27, 2018, she received
Facebook messages from O’Malley. They often communicated through Facebook’s
Messenger application. Holstein claimed to have taken screenshots of the messages
between her and O’Malley that occurred on December 27th, 28th, and 31st as well
as an additional message from March 7, 2019. She provided these screenshots to
Detective Holt, from the Cleveland Police Department’s First District, who was
assigned to her case on February 21, 2019. At trial, the state had the screenshots
admitted into evidence as state’s exhibit No. 4.
Throughout the messages, O’Malley apologizes and vaguely
references an “it” that he should not have touched, that he was going to bring “it”
back the next day, but “it” was stolen from him that night and sold before he could.
1 Holstein was unable to remember the number of days that passed between her birthday celebration, when she noticed her 9 mm firearm missing, and when the officer arrived, but said it could have been at least a week before she noticed. Higgins testified it was just a couple days later that she noticed. Officer Wise’s testimony, which is based on his report, is the only evidence of specific dates for these events. He then offers to buy her a new “it.” Throughout the conversation, O’Malley refers
to a few specific events from the evening of November 24, 2018, such as his
argument with Holstein, her punching him, and how his mother picked him up. In
one message on December 27, 2018, he mentions a “hy point [sic],” and on the
December 28, 2018, he states his mom has the $200.00 he wants to give Holstein
to buy a new one, but he would “really like to just get [Holstein] the gun instead.”
O'Malley even mentions getting her a firearm that does not jam, as Holstein testified
her Hi-Point would jam on occasion. On March 7, 2019, O’Malley messaged
Holstein again through Facebook Messenger and this time, rather than reply with a
message, Holstein testified that she called him through Facebook Messenger and
they discussed the missing 9 mm firearm over the phone. Holstein testifies that
O’Malley offered again to pay for a new firearm, but she told him she just wanted
her firearm back.
The defense only called one witness, Dana Driver (“Driver”), who
testified that, while not currently dating, she and O’Malley had been dating on and
off for years. In November 2018, they were dating, although they were not on the
best of terms. Driver testified that she suspected Holstein and O’Malley were
romantically involved. Looking to upend this potential relationship, she testified
that she began messaging Holstein in late December 2018, posing as O’Malley
through his Facebook Messenger account. Driver testified that O’Malley’s phone was
not password protected, so she could easily message Holstein through his phone
without his knowledge on his Facebook account. Driver testified that she messaged Holstein through O’Malley’s
account, posing as him, to tell Holstein that O'Malley stole her firearm. She stated
she was aware of Holstein’s accusation of the missing firearm through reading their
prior messages. Driver testified that she messaged Holstein, as O’Malley, saying
whatever she thought would make Holstein angry with O’Malley, based on what she
could glean from their prior messages. The details provided in the messages,
according to Driver, were all things Driver made up based on what she knew about
what happened on November 24, 2018, from O’Malley, mutual friends, and
O’Malley’s mother.
Driver testified that she broke up with O’Malley in February 2019
because she was still convinced he was romantically involved with Holstein.
Because of this separation, she was unaware O’Malley was being prosecuted for
allegedly stealing Holstein’s firearm. She testified that once she found out he was
being prosecuted, she decided to come forward, two months before trial, to admit to
falsely messaging Holstein through O’Malley’s account. To that end, she met with
both defense counsel and the assistant county prosecutor at a pretrial hearing to
discuss her testimony.
The jury trial on Count 1 commenced on November 18, 2019, and on
November 21, 2019, the jury reached a not guilty verdict on the grand theft charge.
That same day, having heard the same evidence as the jury, the trial court found
O’Malley guilty on Count 2 for having weapons while under disability. On November
24, 2019, following this conviction, O’Malley filed a motion after verdict for judgment of acquittal, which the trial court denied on January 7, 2020. That same
day, the trial court sentenced O’Malley to two years of community control with a 36-
month suspended prison sentence and ordered O’Malley to pay $200.00 in
restitution to Holstein for the firearm. O’Malley timely appealed the January 7,
2020 judgment entry.
This appeal follows. O’Malley asserts the following four assignments
of error:
Assignments of Error
I. There is insufficient evidence to support O’Malley’s conviction for having a Weapon under disability.
II. O’Malley’s conviction for having a Weapon under disability was against the manifest weight of the evidence.
III. O’Malley’s conviction for having a Weapon under disability violates the doctrine of collateral estoppel and violates his rights under the 5th and 14th amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
IV. Because the jury acquitted O’Malley of stealing Holstein’s gun, the trial court’s order of restitution is contrary to law.
LAW AND ANALYSIS
O’Malley’s first and second assignments of error allege his conviction
by the trial court for having a weapon under disability in violation of R.C. 2923.13
was supported by insufficient evidence and was against the manifest weight of the
evidence. As both assignments of error deal with the evidence produced at trial, they
will be dealt with together. While it is not clear in the record which firearm
O’Malley’s conviction was based on, upon review we find that there is sufficient evidence to sustain O’Malley’s conviction on his possession of either firearm and it
is not against the manifest weight of the evidence.
“An appellate court’s function in reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Rogers, 178 Ohio
App.3d 332, 2008-Ohio-4867, 897 N.E.2d 1171, ¶ 41 (8th Dist.), citing State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In
essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient
to sustain a verdict, is a question of law.” Id., quoting State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997).
“The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” State v.
Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12, citing Jenks at
paragraph two of the syllabus. “‘Proof beyond a reasonable doubt’ is proof of such
character that an ordinary person would be willing to rely and act upon it in the most
important of the person’s own affairs.” Cleveland v. Watson, 8th Dist. Cuyahoga
No. 108746, 2020-Ohio-3284, ¶ 30, quoting R.C. 2901.05(E).
While the test for sufficiency requires a determination of whether the
prosecution has met its burden of production at trial, a manifest weight challenge
questions whether the prosecution has met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12-13, citing
Thompkins at 390.
In assessing whether a conviction is against the manifest weight of
the evidence, we examine the entire record, weigh the evidence and all reasonable
inferences, and consider the witnesses’ credibility. Gerston v. Parma VTA, L.L.C.,
8th Dist. Cuyahoga No. 105572, 2018-Ohio-2185, ¶ 58. There is a presumption that
the factfinder’s determinations are correct unless we find that the factfinder “clearly
lost its way and created such a manifest miscarriage of justice that the verdict must
be overturned and a new trial ordered.” Illum. Co. v. Bosemann, 2020-Ohio-3663,
154 N.E.3d 1205, ¶ 28 (8th Dist.), quoting Gerston at ¶ 58-59. This is presumed
because the trier of fact had the opportunity “to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.” Gerston at ¶ 59, quoting Seasons Coal v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
“A verdict supported by some competent, credible evidence going to
all the essential elements of the case must not be reversed as being against the
manifest weight of the evidence.” Gerston at ¶ 57, citing Domaradzki v. Sliwinski,
8th Dist. Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6; C.E. Morris Co. v. Foley
Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus. A conviction should
be reversed only in the most “exceptional case in which the evidence weighs heavily
against the conviction.” State v. Philpott, 8th Dist. Cuyahoga Nos. 109173, 109174,
and 109175, 2020-Ohio-5267, ¶ 77, quoting Thompkins at 388. O’Malley was convicted by the trial court of having weapons while
under disability in violation of R.C. 2923.13(A)(3), which provides in relevant part:
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
***
(3) The person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.
Because O’Malley stipulated to having a prior felony conviction at trial, the state had
to present evidence to prove beyond a reasonable doubt that O’Malley knowingly
acquired, had, carried, or used a firearm to sustain a conviction for having
a weapon while under disability. R.C. 2923.13. Although the statute does not list
possession as an element, the state is required to prove that O’Malley knowingly had
a firearm. State v. Body, 8th Dist. Cuyahoga No. 109388, 2021-Ohio-703, ¶ 29. To
“have” a weapon under disability requires either actual or constructive possession.
Id. Therefore, the state had to put forth evidence to establish, beyond a reasonable
doubt, that at some point, O’Malley had either actual or constructive possession of
a firearm.
“Actual possession entails ownership or physical control, whereas
constructive possession is defined as knowingly exercising dominion and control
over an object, even though that object may not be within one’s immediate physical
possession.” State v. Chandler, 8th Dist. Cuyahoga Nos. 93664 and 93665, 2011-
Ohio-590, ¶ 55, citing State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982). An individual’s mere presence in an area where a firearm is located (or was
located) does not conclusively establish constructive possession; however, this
presence, “coupled with another factor probative of dominion or control over the
contraband, may establish constructive possession.” State v. Body, 8th Dist.
Cuyahoga No. 109388, 2021-Ohio-703, ¶ 39, quoting State v. Cooper, 3d Dist.
Marion No. 9-06-49, 2007-Ohio-4937, ¶ 26.
Ohio courts have “long held that circumstantial evidence is sufficient
to sustain a conviction if the evidence would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. McKnight, 107 Ohio St.3d
101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d
231, 238, 553 N.E.2d 1026 (1990). Circumstantial evidence is proof of facts or
circumstances by direct evidence from which the trier of fact may reasonably infer
other related or connected facts that naturally or logically follow. Body at ¶ 31, citing
State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio App. LEXIS 2143 (May
23, 1996).
Holstein’s testimony establishes where the firearms were located
before going out for her birthday and how at least one was noticeably relocated that
evening after O’Malley was in her bedroom. The firearms had two locations in which
they were individually kept, the .22 caliber firearm in her closet and the 9 mm
firearm next to her bed under coloring books. Holstein testified she was certain she
had put the .22 caliber firearm back in the closet and shut the closet door before
leaving to go out drinking that evening. She testified O’Malley was in the room when she did that. Then, when she went upstairs after O’Malley had left, she saw the closet
door open and the firearm missing. The .22 caliber firearm was then found under
the glass table at the bottom of the stairs right next to the front door. Simply put,
her testimony regarding to the .22 caliber firearm establishes where the gun was last
seen, who was last alone with it, and that someone moved it from its regular spot to
a place it is never kept.
For our sufficiency analysis, the relevant inquiry is if the state’s
evidence through Holstein’s testimony is believed, could any rational trier of fact
have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Philpott, 8th Dist. Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio-
5267, ¶ 38, citing Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). For
the .22 caliber firearm, the testimony of Holstein, if believed provides ample
opportunity for the trier of fact to infer that the only person who had the opportunity
to move the .22 caliber firearm was O’Malley, and the only way he could do so would
be to take actual possession of the .22 caliber firearm and move it downstairs.
Believing the state’s evidence, any rational trier of fact could have found sufficient
evidence beyond a reasonable doubt that O'Malley must have possessed the .22
caliber firearm, the only element the state was required to prove in this case. Id.
Next, we review the state’s evidence regarding the 9 mm firearm,
which mainly consisted of Holstein’s testimony and the Facebook messages between
her and O’Malley. Holstein testified that she did not notice her 9 mm firearm was
missing for almost a week because it is usually kept concealed by coloring books on her bedside table. She went to retrieve the 9 mm firearm to go to the shooting range
and it was not in its usual location. She testified that she called the police and told
them no one else had been in her and Higgins’s room besides O’Malley.
Then, Holstein presented screenshots of Facebook messages between
her and O’Malley on three separate days, two in December 2018 and one in March
2019, to the police. She testified as to the authenticity of the messages, which
document O’Malley apologizing for touching “it” and claiming that he was going to
bring “it” back the next day, but “it” was stolen from him that night and sold before
he could. Besides apologizing, O’Malley also offered Holstein $200.00 to make up
for losing “it,” and at one point even directly refers to a “hy point [sic],” the brand of
Holstein’s missing 9 mm firearm. It is also worth noting that in these messages,
O’Malley referenced specific incidents from the evening of the birthday celebration,
like his argument with Holstein and the fact that she punched him. Holstein then
testified that when he messaged her on March 7, 2019, she called him and they
discussed the missing 9 mm firearm.
For our sufficiency analysis regarding the 9 mm firearm, the state’s
evidence shows the firearm was in her bedroom before the birthday celebration and
was found missing from her bedroom one week later. The evidence showed no one
else was alone in the room with the firearm in the interim besides O’Malley. The
state also presented O’Malley’s own statements through Facebook messages, where
he repeatedly and profusely apologized to Holstein for touching “it,” losing “it” and
not being able to return “it” and even offers her money for a new “it.” This evidence, if believed, is sufficient for any reasonable trier of fact to find the state proved
O’Malley possessed the 9 mm firearm.
As for our manifest weight analysis, we must examine the entire
record, including the only witness called by O’Malley, his former girlfriend, Dana
Driver. Driver testified that the Facebook messages to Holstein from O’Malley’s
account were actually written and sent by her without his knowledge. She testified
as to both why and how she sent the messages. She also explained why she did not
come forward sooner to explain the messages for O’Malley. However, upon
weighing the entire record, we cannot say the trial court clearly lost its way nor
created a manifest miscarriage of justice with its conviction in this case. There is
enough evidence in the record from both Holstein’s testimony and the Facebook
messages exchanged between Holstein and O’Malley to find O’Malley’s possession
of either the .22 caliber firearm or the 9 mm firearm. This is not an exceptional case
in which the evidence heavily weighs against the conviction. Philpott, 8th Dist.
Cuyahoga Nos. 109173, 109174, and 109175, 2020-Ohio-5267, ¶ 77, quoting
Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541 (1997). Based on the foregoing,
O’Malley’s first and second assignments of error are overruled.
O’Malley’s third assignment of error alleges his conviction for having
a weapon while under disability violates the doctrine of collateral estoppel and his
rights under the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution. O’Malley’s basis for
this argument is that because the jury acquitted him of grand theft of Holstein’s firearm, the trial court cannot convict him of having weapons while under disability.
He argues he could not have possessed the firearm, to satisfy the elements of having
weapons while under disability because the jury’s acquittal on the grand theft charge
means he did not steal the firearm.
This court has dealt with this argument before. In State v. Eason,
2016-Ohio-5516, 69 N.E.3d 1202, ¶ 67 (8th Dist.), the defendant was charged with
drug trafficking, drug possession, possessing criminal tools, carrying concealed
weapons, having weapons while under disability, and improperly handling firearms
in a motor vehicle. Just like O’Malley, the weapons while under disability charge
was tried to the court and the jury considered the rest of Eason’s charges. The jury
acquitted the defendant of all counts, while the trial court found Eason guilty of
having weapons while under disability. This court affirmed the conviction by the
trial court, holding that:
[c]onsistency between verdicts on several counts of a criminal indictment is unnecessary, and where the defendant is convicted on one or some counts and acquitted on others the conviction will generally be upheld, irrespective of its rational incompatibility with the acquittal.
Eason at id., citing State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th
Dist.1985). This court found double jeopardy and collateral estoppel did not apply
to the case of inconsistent verdicts where the inconsistent responses are to different
counts. Id. at ¶ 27, citing State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112
(1997), paragraph two of the syllabus. “Each count of a multi-count indictment is deemed distinct and independent of all other counts, and thus inconsistent verdicts
on different counts do not justify overturning a verdict of guilt.” Id. at ¶ 68.
This court held similarly in State v. Callahan, where the defendant
again was acquitted by a jury of charges such as murder, felonious assault, discharge
of a firearm on or near prohibited premises, and improperly discharging a firearm
at or into a habitation, but was convicted in a bench trial of two charges of having
weapons while under disability. State v. Callahan, 8th Dist. Cuyahoga No. 106445,
2018-Ohio-3590, ¶ 29. Callahan argued his conviction was barred by the doctrine
of collateral estoppel because the jury acquitted him of all the weapons-related
charges, so there was no evidence for the judge to have found he illegally possessed
a firearm. Id. at ¶ 19.
In the instant case, the trial court’s conviction for having weapons
while under disability is a separate and distinct count, which is independent of the
grand theft count. The fact that the conviction is inconsistent with the jury’s
acquittal of the grand theft count does not bar the conviction by collateral estoppel.
Accordingly, we overrule O’Malley’s third assignment of error.
O’Malley’s fourth and final assignment of error argues that the trial
court’s restitution order of $200.00 is contrary to law. O’Malley argues that the
victim’s economic loss is not a direct and proximate result of the commission of the
offense since he was acquitted of the grand theft charge for the firearm. We disagree.
We review of a trial court’s order of restitution for an abuse of
discretion. State v. Maurer, 2016-Ohio-1380, 63 N.E.3d 534, ¶ 12 (8th Dist.). “R.C. 2929.18(A)(1) allows a court to impose an order of restitution to crime victims as
part of a criminal sentence.” State v. Kibble, 2017-Ohio-12, 80 N.E.3d 1066, ¶ 25
(8th Dist.). “Generally, restitution is limited to the actual economic loss suffered by
the victim that is the direct and proximate result of the crime for which a defendant
was charged and convicted.” Id., citing State v. Lalain, 136 Ohio St.3d 248, 2013-
Ohio-3093, 994 N.E.2d 423, ¶ 22-24. “A trial court is required to conduct a hearing
on restitution only if the offender, victim, or survivor disputes the amount of
restitution ordered.” Kibble at ¶ 31, quoting Lalain at ¶ 27.
The trial court convicted O’Malley of having weapons while under
disability in violation of R.C. 2923.13(A)(3), which means the court found that he
knowingly acquired, had, carried, or used Holstein’s firearm. Therefore, as a direct
and proximate result of O’Malley’s possession of Holstein’s firearm, Holstein
suffered economic loss in the form of the dispossession of her 9 mm firearm.
Because neither O’Malley nor Holstein objected to the restitution amount at the
sentencing hearing, the trial court was not required to conduct a hearing on the
amount. Further, $200.00 was the amount of money that O’Malley offered to pay
Holstein in the Facebook messages to buy a new 9 mm firearm.
Based on the foregoing, we find the trial court’s order for restitution
is not contrary to law because the economic loss suffered by the victim is the
proximate result of the crime for which O’Malley was convicted, namely the
possession of her 9 mm firearm. Therefore, we overrule O’Malley’s fourth
assignment of error. The judgment of the trial court is hereby affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________ MARY EILEEN KILBANE, JUDGE
SEAN C. GALLAGHER, P.J., and EMANUELLA D. GROVES, J., CONCUR