State v. Wolf , 2013 Ohio 5271 ( 2013 )

[Cite as State v. Wolf, 2013-Ohio-5271.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-12-263
: OPINION
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:
TOSHA WOLF, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT
Case No. 12CRB01088
Susan H. Cohen, Middletown City Prosecutor, Ashley M. Bretland, One Donham Plaza,
Middletown, Ohio 45042, for plaintiff-appellee
Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant
PIPER, J.
{¶ 1} Defendant-appellant, Tosha Wolf, appeals her conviction and sentence in the
Middletown Municipal Court for assault.
{¶ 2} On February 18, 2012, Wolf went to the Madison Inn in Middletown, Ohio, with
her husband, Charles "Buck" Wolf, and several friends. Once there, Wolf and her
companions gathered with other friends at the bar. Kelly Little was also a patron at the bar
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on the night in question. As Little was attempting to leave the bar, she bumped into another
customer, Jack Hall. Little's contact with Hall caused him to bump into Charles Wolf.
Charles and Hall then exchanged words, and Little intervened in order to tell Hall to "calm
down." At that point, Wolf struck Little in the face with her beer glass, and Little sustained
injuries to her face as a result.
{¶ 3} On February 22, 2012, Wolf was charged by complaint with assault. Wolf pled
not guilty to the charges, and the matter proceeded to a bench trial. During the trial, the state
presented testimony from Little and three other bar patrons, all of whom testified that Wolf
struck Little in the face with her beer glass. Wolf presented the testimony of her sister-in-law,
Lauren Wolf, who stated that Little grabbed Wolf's hair and that the two women fell down five
or six stairs, but that Wolf did not take any action that would cause injury to Little.
{¶ 4} The trial court found Wolf guilty of assault in violation of R.C. 2903.13, and
sentenced her to a $300 fine and other court costs, 60 days in jail, suspended, and restitution
for Little's out of pocket and unpaid medical bills. Wolf now appeals her conviction and
sentence raising two assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} MS. WOLF’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 7} Wolf argues in her first assignment of error that her conviction was against the
manifest weight of the evidence.
{¶ 8} A manifest weight challenge examines the inclination of the greater amount of
credible evidence, offered at a trial, to support one side of the issue rather than the other.
State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298.
In determining whether a conviction is against the manifest
weight of the evidence, the court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers
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the credibility of the witnesses and determines whether in
resolving conflicts in the evidence, the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.
State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
{¶ 9} While appellate review includes the responsibility to consider the credibility of
witnesses and the weight given to the evidence, "these issues are primarily matters for the
trier of fact to decide since the trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No.
CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a
conviction due to the manifest weight of the evidence only in extraordinary circumstances to
correct a manifest miscarriage of justice, and only when the evidence presented at trial
weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶ 10} Wolf was convicted of assault in violation of R.C. 2903.13(A), which states, "no
person shall knowingly cause or attempt to cause physical harm to another or to another’s
unborn." Wolf argues that her conviction is against the manifest weight because the
testimony from her sister-in-law established Wolf was not the aggressor and did not take any
action to cause Little physical harm. Wolf also argues that any identification of her as the
assailant is tainted by the fact the bar was crowded that night. However, the state presented
evidence to establish that Wolf knowingly caused physical harm to Little.
{¶ 11} Little testified that she suffered injuries from being struck in the face with a beer
glass on the night of the incident, and that Wolf was the one who hit her. Little also testified
that she was able to positively identify Wolf because she "looked right at [Wolf]" on the night
she was assaulted.
{¶ 12} At trial, the prosecution also presented the testimony of Lucas Tinch, Joseph
Wesselman, and Jacob Hall, all of whom testified that Wolf struck Little in the face with the
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beer glass. The witnesses were able to identify Wolf as the assailant, even though the bar
was crowded. Moreover, and through cross-examination, the state was able to elicit
testimony from Wolf’s sister-in-law, who admitted that there was a scuffle between Wolf and
Little on the night of the incident.
{¶ 13} Given the trial court’s guilty verdict, it found the state’s witnesses credible when
they identified Wolf as the assailant. As the trial court was in the best position to judge the
credibility of the witnesses, we will not question the trial court’s specific finding that the
identification of Wolf as the assailant was credible.
{¶ 14} The trial court did not lose its way or create a manifest miscarriage of injustice
by finding Wolf guilty of assault. Therefore, Wolf’s conviction is not against the manifest
weight of the evidence, and her first assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE TRIAL COURT VIOLATED MS. WOLF’S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO DUE PROCESS WHEN IT ORDERED HER TO PAY
RESTITUTION FOR AN UNSPECIFIED AMOUNT.
{¶ 17} Appellant argues in her second assignment of error that the trial court erred
when it failed to order a specific amount of restitution.
{¶ 18} R.C. 2929.18(A)(1) "permits the trial court to order restitution 'to the victim of
the offender's crime… in an amount based upon the victim's economic loss.'" State v. Back,
12th Dist. Butler No. CA2013-01-011. "Economic loss" is defined as "any economic
detriment suffered by a victim as a direct and proximate result of the commission of an
offense and includes * * * any property loss * * * incurred as a result of the commission of the
offense." R.C. 2929.01(L). The amount of restitution ordered must bear a reasonable
relationship to the victim's economic loss. State v. Middleton, Butler App. No. CA2005-11-
499, 2006-Ohio-4558, ¶ 16. Prior to imposing a restitution order, a sentencing court must
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determine the amount of restitution to a reasonable degree of certainty, ensuring that the
amount is supported by competent, credible evidence. State v. Borders, Clermont App. No.
CA2004-12-101, 2005-Ohio-4339, ¶ 36, quoting State v. Gears, 135 Ohio App.3d 297, 300
(6th Dist.1999).
{¶ 19} After reviewing the record, the trial court failed to order a specific restitution
amount as required by statute. The trial court ordered that Wolf "comply with all
requirements of a presentence investigation to be conducted by the Probation Department of
the Middletown Municipal Court." The state concedes in its appellate brief that this order
does not comply with the requirements of R.C. 2929.18, as the order of restitution fails to
establish the specific amount owed. We agree with the state and Wolf that the trial court is
required by R.C. 2929.18(A)(1) to determine the specific amount of restitution to be paid by a
defendant, and that the trial court's order of restitution is deficient in this respect. Therefore,
we sustain the assignment of error as it relates to the order of restitution to Little.
{¶ 20} Wolf also argues the order of restitution must be reversed because of the trial
court's failure to determine a specific amount of restitution. We disagree. In the instance
where an order of restitution is made, but no definite sum is included in the order, the trial
court is given an opportunity to clarify its order of restitution. Clark, Greene App. No. 97-CA-
27; Stevens, Clinton App. No. CA98-01-001. Accordingly, Wolf's second assignment of error
is sustained in part, and the matter is remanded to the trial court for the limited purpose of
determining the specific amount to be ordered as restitution.
{¶ 21} Judgment is affirmed in part, reversed in part, and the matter is remanded.
HENDRICKSON, P.J., and M. POWELL, J., concur.
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