State v. Simmons, 2017 Ohio 1348

Simmons, an independent Medicaid LPN, billed Ohio Department of Medicaid (ODM) for 12-hour in-home nursing shifts for a disabled Medicaid recipient between 2010–2014; remittance statements showed 671 billed days.
Investigators used surveillance (notably April 2010 video) and a recorded Feb. 19, 2014 interview in which Simmons admitted sometimes not working full shifts, giving cash to the recipient’s mother, and forging timesheets.
State indicted Simmons June 17, 2014 for theft by deception as part of a course of criminal conduct (felony). Jury convicted of the lesser included petty theft (misdemeanor, value < $1,000).
At sentencing the court ordered jail (mostly suspended), a $1,000 fine, and $27,148.42 restitution to ODM (court calculated defendant worked 10 hours of each billed 12-hour shift).
Simmons appealed, arguing (1) statute of limitations barred misdemeanor conviction based on 2010 acts, and (2) restitution improperly exceeded economic loss attributable to the misdemeanor conviction.

Issue	State's Argument	Simmons' Argument	Held
Whether the misdemeanor conviction was time-barred	Indictment charged a continuing course of conduct; defendant’s Feb. 19, 2014 admission tolled the limitations period, so indictment (June 2014) was timely	Surveillance video from 2010 was the only proved misconduct and falls outside the two-year misdemeanor limitations period	Court: Statute tolled by continuing course of conduct and defendant’s 2014 admission; indictment timely (first assignment overruled)
Whether restitution of $27,148.42 was permissible after misdemeanor (< $1,000) conviction	Restitution determined by preponderance of evidence; court may order restitution exceeding the dollar-value category of the conviction if it reflects victim’s economic loss	Restitution exceeded loss from the misdemeanor for which defendant was convicted; court improperly relied on its own factfinding from the record rather than victim’s proof at a restitution hearing	Court: Reversed restitution. Restitution must be tied to economic loss proximately caused by the conduct for which defendant was convicted; trial court abused its discretion by awarding restitution for acts jury did not find (second assignment sustained)

State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co. L.P.A., 85 Ohio St.3d 582 (1999) (purpose and role of criminal statutes of limitations)
Toussie v. United States, 397 U.S. 112 (1970) (statutes of limitations protect against prosecution for remote acts)
State v. Swartz, 88 Ohio St.3d 131 (2000) (limitation period begins when offense is complete; continuing course of conduct tolls limitations)
State v. Preztak, 181 Ohio App.3d 106 (2009) (repeated thefts from same entity can constitute a continuing course of conduct, tolling limitations)
State v. Adams, 144 Ohio St.3d 429 (2015) (defendant charged with greater offense cannot be convicted of lesser included offense if statute of limitations for lesser has expired)
State v. Lalain, 136 Ohio St.3d 248 (2013) (restitution limited to victim’s economic loss as direct and proximate result of the offense; costs of valuing loss are not necessarily recoverable)