         [Cite as State v. Boykins, 2014-Ohio-1048.]

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




STATE OF OHIO,                                     :   APPEAL NO. C-130068
                                                       TRIAL NO. B-1004821
        Plaintiff-Appellee,                        :
                                                          O P I N I O N.
  vs.                                              :

RODRICK BOYKINS,                                   :

    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: March 21, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.




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




HILDEBRANDT, Judge.

       {¶1}    Following a jury trial, the trial court convicted defendant-appellant

Rodrick Boykins of patient endangering, a third-degree felony.              Boykins was

acquitted of the other charges against him. The trial court sentenced Boykins to the

maximum sentence of 36 months, imposed a $10,000 fine, and ordered Boykins to

pay $100,000 in restitution. Boykins now appeals his conviction and sentence,

bringing forth two assignments of error.

                              I.      Sufficiency and Weight

       {¶2}    In his first assignment of error, Boykins challenges the sufficiency and

weight of the evidence underlying his conviction. When considering a sufficiency

claim, we must determine, after viewing the evidence in a light most favorable to the

state, whether a rational trier of fact could have found the elements of the crime

proven beyond a reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). To reverse a conviction on the manifest weight of the evidence,

an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and conclude that, in

resolving the conflicts in the evidence, the trier of fact clearly lost its way and created

a manifest miscarriage of justice in finding the defendant guilty. Id. at 387.

       {¶3}    After a review of the record, we hold that there was sufficient evidence

to convict Boykins of patient endangering. The patient-endangering statute, R.C.

2903.341(B), provides that “[n]o MR/DD caretaker shall create a substantial risk to

the health or safety of a mentally retarded person or a developmentally disabled

person.” Here, the state presented evidence at trial that Boykins was a caretaker for




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a mentally retarded/developmentally disabled man, N.A. N.A. had the cognitive

ability of a two-year old child and needed constant supervision. Despite knowing

this, Boykins admitted that he had left N.A. unattended in the bathtub. As a result,

N.A. suffered third-degree burns on his feet, ankles, buttocks and genitalia.

       {¶4}   Based on the foregoing, we also hold that the jury did not lose its way

and create a manifest miscarriage of justice in finding Boykins guilty of patient

endangering. The first assignment of error is overruled.

                                      II.    Sentence

       {¶5}   In his second assignment of error, Boykins challenges his 36-month

prison term, the imposition of a $10,000 fine, and the order to pay restitution in the

amount of $100,000. He argues that the trial court failed to consider the purposes

and principles of sentencing before imposing his prison term, and that it failed to

consider his present and future ability to pay the fine and restitution. Lastly, he

argues that the trial court erred by failing to conduct a hearing to determine the

amount of restitution.

                                 A. Maximum Sentence

       {¶6}   Under R.C. 2953.08(G)(2), a reviewing court may only vacate or

modify a sentence if it clearly and convincingly finds either that the record does not

support the mandatory sentencing findings or that the sentence is otherwise contrary

to law. See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).

       {¶7}   Upon a review of the record, we hold that Boykins’s sentence is not

contrary to law. The prison term was within the applicable statutory range and,

despite Boykins’s contention to the contrary, the trial court did consider the

purposes and principles of sentencing before imposing the maximum sentence.




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When sentencing Boykins, the trial court commented on the severity of the victim’s

injuries, the victim’s limited ability to protect himself and Boykins’s lack of remorse.

The trial court considered imposing a community-control sanction, but after

reviewing the court clinic’s psychiatric-evaluation report decided that Boykins would

most likely be unsuccessful on community control. Finally, the trial court noted that

Boykins had no criminal history and had served in the military for almost ten years.

The court weighed those mitigating factors against the victim’s severe and extensive

injuries and Boykins’s lack of remorse, and determined that a prison sentence was

appropriate.


         B. The Trial Court Did Consider Boykins’s Ability to Pay the Fine
                                  and Restitution

         {¶8}   Under R.C. 2929.19(B)(5), “[b]efore imposing a financial sanction

under 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised

Code, the court shall consider the offender’s present and future ability to pay the

amount of the sanction or fine.” When considering an offender’s ability to pay, the

trial court is not required to hold a hearing, but it may choose to do so pursuant to

R.C. 2929.18(E). See State v. Bemmes, 1st Dist. Hamilton No. C-010522, 2002 Ohio

App. LEXIS 1545, *6-7 (Apr. 5, 2002). The trial court need not consider any express

factors or make any specific findings, but there must be some evidence in the record

that the court at least considered the offender’s present and future ability to pay. Id.

at *6.

         {¶9}   Here, the record demonstrates that Boykins was 32 years old when he

was sentenced, that he had some college education, that he had served in the United

States Army and the National Guard for almost ten years, where presumably he




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                     OHIO FIRST DISTRICT COURT OF APPEALS



gained some useful skills, and that he had been employed full-time prior to his

arrest. Boykins’s status and skills are indicative of employability. In light of those

facts and absent any evidence to the contrary, the trial court could reasonably

conclude that Boykins will have the ability to pay the fine and restitution.

                                       C. Restitution

       {¶10} R.C. 2929.18(A)(1) permits a trial court to order an offender to pay

restitution to the victim of the offender’s crime “in an amount based on the victim’s

economic loss.” “Economic loss” is defined in R.C. 2929.01(M) as “any economic

detriment suffered by a victim as a result of the commission of a felony and includes

any loss of income due to lost time at work * * * and any property loss [or] medical

cost * * * incurred as a result of the commission of the felony.” Thus, for example, a

trial court may order restitution for a victim’s out-of-pocket medical expenses. See

generally State v. McDaniel, 4th Dist. Meigs No. 12CA6, 2013-Ohio-4003.

       {¶11} In determining the amount of restitution, the court may rely on an

amount “recommended by the victim, the offender, a presentence investigation

report, estimates or receipts indicating the cost of repairing or replacing property,

and other information, provided that the amount the court orders as restitution shall

not exceed the amount of the economic loss suffered by the victim.”               R.C.

2929.18(A)(1). A trial court shall hold a hearing on restitution only if the victim,

offender or survivor disputes the amount.          Id.; see State v. Andrews, 1st Dist.

Hamilton No. C-110735, 2012-Ohio-4664, ¶ 26.

       {¶12} Boykins argues that the trial court erred by failing to hold a hearing on

restitution after he objected to the amount. We agree. The record shows that

Boykins objected to the amount of restitution but the trial court, instead of holding a




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hearing, stated its reasons on the record for awarding restitution. Boykins was not

given the opportunity to present any evidence or argument as to the appropriate

amount, if any, of restitution. Accordingly, we vacate the restitution award and

remand the cause to the trial court for a hearing to determine restitution based on

any economic loss suffered by the victim.

        {¶13} The second assignment of error is sustained in part and overruled in

part.

        {¶14} In conclusion, the award of restitution is vacated, and the cause is

remanded for a hearing on restitution in accordance with the law and this opinion.

The judgment of the trial court is affirmed in all other respects.

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

CUNNINGHAM, P.J., and DEWINE, J., concur.



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




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