[Cite as State v. Butler, 2014-Ohio-2669.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :    Appellate Case No.   2013-CA-110
                                                      :
 v.                                                   :    Trial Court Case No. 2013-CR-284
                                                      :
 MICHELLE BUTLER                                      :
                                                      :    (Criminal Appeal from
          Defendant-Appellant                         :    (Common Pleas Court)
                                                      :

                                             ...........

                                             OPINION

                                Rendered on the 20th day of June, 2014.

                                             ...........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Clark County Prosecuting Attorney, 50
East Columbia Street, Fourth Floor, Springfield, Ohio 45501
       Attorney for Plaintiff-Appellee

DAWN S. GARRETT, Atty. Reg. No. 0055565, 70 Birch Alley, Suite 240, Beavercreek, Ohio
45440
      Attorney for Defendant-Appellant


                                             .............



WELBAUM, J.
                                                                                                     2




       {¶ 1}    Defendant-appellant, Michelle Butler, appeals from the decision of the Clark

County Court of Common Pleas ordering her to pay $1,500 in restitution after she pled guilty to

passing a bad check. For the reasons outlined below, the judgment of the trial court will be

affirmed.



                               Facts and Course of Proceedings

       {¶ 2}    On April 22, 2013, Butler was indicted for one count of passing a bad check in

violation of R.C. 2913.11(A), a felony of the fifth degree. Butler pled guilty to the charge and a

restitution hearing was held on October 24, 2013. During the hearing, the trial court heard

testimony from the complainant, Joseph Kelly, and Butler’s former roommate and sublessor,

Laura Orcutt. The following facts were elicited at the hearing.

       {¶ 3}    In February 2010, Kelly owned residential real property located at 2626 Cavins

Drive, Springfield, Ohio, and leased it to Orcutt for $700 a month. In October 2012, Kelly was

still leasing the property to Orcutt, and with Kelly’s permission, Orcutt entered into a written

sublease agreement with Butler. Butler, Orcutt, and Kelly each signed the sublease agreement

which stated, in pertinent part, that Butler agreed to pay Orcutt $400 a month in rent. The

payment arrangement involved Orcutt collecting rent from Butler and delivering it to Kelly along

with Orcutt’s own portion of the rent. This arrangement was not set forth in the sublease

agreement.

       {¶ 4}    At the end of March 2013, Orcutt vacated the property and paid Kelly her portion

of the rent in full. According to Orcutt, she did not collect Butler’s rent after January 2013,
                                                                                                  3


because it was her understanding that Kelly and Butler were discussing Butler purchasing the

property. However, Orcutt testified that she had instructed Butler to pay Kelly in February.

        {¶ 5}    Kelly testified that Butler owed him $1,500 in rent for February, March and April

2013.   Kelly also testified that he called and texted Butler numerous times requesting the

overdue rent. On April 12, 2013, Butler issued a check written to Kelly in the amount of $1,500.

 Yet, when Kelly attempted to deposit the check, it was declined for insufficient funds, which led

to the charge in this case.

        {¶ 6}    Following her guilty plea, on November 20, 2013, the trial court sentenced Butler

to two years of community control sanctions. In addition, the trial court ordered Butler to pay

restitution to Kelly in the amount of $1,500, to complete her mental health treatment at

Springfield Psychiatric Associates, and to pay court costs. Butler now appeals from the trial

court’s decision ordering her to pay Kelly $1,500 in restitution, raising one assignment of error

for review.



                                    Assignment of Error No. I

        {¶ 7}    Butler’s sole assignment of error is as follows:

        THE COURT ERRED, VIOLATED DEFENDANT’S CONSTITUTIONAL DUE

        PROCESS RIGHTS, AND ABUSED ITS DISCRETION WHEN IT ORDERED

        DEFENDANT TO PAY MR. KELLY $1,500 IN RESTITUTION.

        {¶ 8}    Under her single assignment of error, Butler contends that the trial court abused

                its discretion in ordering her to pay Kelly $1,500 in restitution. Butler maintains

                that Kelly is not a victim entitled to restitution, because Butler was not
                                                                                                  4


               contractually obligated to pay Kelly monthly rent, and therefore, he suffered no

               economic loss as a result of the bad check.

       {¶ 9}    Under R.C. 2929.18(A)(1), a trial court is authorized to order a defendant

convicted of a felony offense to pay restitution to the victim of the offense for the amount of

economic loss the victim suffered as a result. We review an order of restitution under an abuse

of discretion standard.    State v. Collins, 2d Dist. Montgomery Nos. 21510 and 21689,

2007-Ohio-5365, ¶ 13. “A trial court abuses its discretion in ordering restitution in an amount

that was not determined to bear a reasonable relationship to the actual loss suffered.” Id., citing

State v. Williams, 34 Ohio App.3d 33, 35, 516 N.E.2d 1270 (2d Dist.1986). Therefore, “ ‘[a]

sentence of restitution must be limited to the actual economic loss caused by the illegal conduct

for which the defendant was convicted.’ ”        Id. at ¶ 12, quoting State v. Banks, 2d Dist.

Montgomery No. 20711, 2005-Ohio-4488, ¶ 5.

       {¶ 10} In State v. Johnson, 2d Dist. Montgomery No. 24288, 2012-Ohio-1230, we

addressed who is considered a “victim” for purposes of ordering restitution and noted that:

       R.C. 2930.01(H)(1) defines a victim as a “person who is identified as the victim

       of a crime * * * in a police report or in a complaint, indictment, or information

       that charges the commission of a crime and provides the basis for the criminal

       prosecution * * * and subsequent proceedings to which this chapter makes

       reference.” R.C. 2743.51 defines a victim as “a person who suffers personal

       injury or death as a result of * * * [c]riminally injurious conduct.” Black’s Law

       Dictionary [(6th Ed.1990)] defines “victim” in part as the “person who is the

       object of a crime or tort, as the victim of a robbery is the person robbed.”
                                                                                                   5


        Johnson at ¶ 10.

        {¶ 11} We note that whether Butler was required to pay Kelly $1,500 under the sublease

agreement is not at issue, as the fact remains that Butler wrote the check to Kelly, thereby

establishing her belief that she had an obligation to pay him. Rather, what is at issue is whether

Kelly suffered an economic loss as a result of Butler passing him the bad check, and whether that

loss bears a reasonable relationship to the trial court’s restitution order.

        {¶ 12} In this case, it is undisputed that Butler passed a bad check to Kelly for $1,500.

Since Kelly is the person to whom Butler gave the bad check, Kelly is the victim of the offense,

as he was the object of the crime. See State v. Valentine, 12th Dist. Butler No. 87-07-091, 1988

WL 75355, *3 (July 18, 1988) (“under normal circumstances [of passing a bad check], the

offender gives the victim a check or other negotiable instrument in exchange for receiving

something of value”).

        {¶ 13} As a result of Butler passing the bad check, Kelly was unable to obtain the funds

from the check, thereby causing him to suffer an economic loss of $1,500. The trial court

ordered Butler to pay Kelly that sum in restitution.          In turn, the restitution order bears a

reasonable relationship to the actual loss suffered. See State v. McDonald, 8th Dist. Cuyahoga

No. 95651, 2011-Ohio-1964, ¶ 20 (finding that a restitution award in the amount of the bad

check given to the victim is reasonably related to the loss suffered from passing the bad check).

Accordingly, we do not find that the trial court abused its discretion in ordering Butler to pay

Kelly $1,500 in restitution.

        {¶ 14} Butler’s sole assignment of error is overruled.
                                                                                          6


                                       Conclusion

       {¶ 15} Having overruled Butler’s sole assignment of error, the judgment of the trial

court is affirmed.

                                      .............

FAIN and DONOVAN, JJ., concur.




Copies mailed to:

Lisa M. Fannin
Dawn S. Garrett
Hon. Douglas M. Rastatter
