[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
2
OHIO FIRST DISTRICT COURT OF APPEALS
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.
3
OHIO FIRST DISTRICT COURT OF APPEALS
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
4
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
5
OHIO FIRST DISTRICT COURT OF APPEALS
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.
6