State v. Kiser
2011 Ohio 5551
Ohio Ct. App.2011Background
- Defendant-appellant Lisa M. Kiser was convicted on no contest pleas to theft (credit card) and forgery/uttering, with other counts dismissed, and sentenced to jail, community control, restitution, and fees.
- The March 20, 2010 incident involved two women, Sorrell and Hargrove, whose purses were at Kiser’s residence; their cards were stolen and later used at Kroger and Wal‑Mart.
- Gained bank card charges led to criminal charges: Count I theft, Count II receiving stolen property, Count III misuse of credit cards, and Counts IV–V forgery/uttering; Kiser pled no contest to one theft and one forgery/uttering.
- PNC Bank reimbursed Sorrell for the unauthorized charges; a victim impact statement from PNC indicated a loss of $106.64.
- At sentencing, the court ordered restitution of $106.64 to PNC Bank, court costs, and attorney’s fees; Kiser challenged restitution to a third party and later argued about paying the public defender costs.
- On appeal, the court sustained the first assignment of error, reversed and vacated the restitution to PNC Bank, and overruled the second assignment regarding attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Restitution to a third party not victim payee | Kiser argues PNC is not a victim under R.C. 2929.18(A)(1) | Kiser contends PNC is a third party not entitled to restitution | Restitution to PNC was improper; reversed and vacated |
| Ability to pay attorney’s fees | State contends proper imposition with ability to pay | Kiser argues consideration of ability to pay was insufficient | Court did consider present and future ability to pay; assignment overruled |
Key Cases Cited
- State v. Wilson, 2010-Ohio-109 (Montgomery App. No. 23167, 2010) (restitution payee framework under R.C. 2929.18(A)(1))
- State v. Brinson, 2009-Ohio-5040 (Montgomery App. No. 22925, 2009) (economic loss by victim supports payee designation)
- State v. Bartholomew, 119 Ohio St. 3d 359 (2008-Ohio-4080) (definition of victim and recovery limits in restitution jurisprudence)
- State v. Colon, 185 Ohio App.3d 671 (2010-Ohio-492) (insurer not automatically victim payee under statute)
- State v. Hinson, 2006-Ohio-3831 (Cuyahoga App. No. 87132, 2006) (insurer as victim when fraud results in direct loss to insurer)