{¶ 1} Oscar Colon appeals from his conviction and sentence in Clark County Common Pleas Court on one count of aggravated arson.
{¶ 3} The present appeal stems from a fire that occurred inside the home of John and Georgia Oakes. About a month before the fire, the Oakeses had allowed Colon to move in with them. He had his own bedroom in the Oakeses’ house and kept personal items there. John Oakes left the residence for work on the morning of September 25, 2008, leaving Georgia Oakes and Colon behind. Georgia later went to work herself, leaving Colon alоne in the house. Upon arriving home that evening, Georgia discovered the garage door open. She entered the house and smelled smoke. She then saw a smouldering quilt on the floor in Colon’s bedroom. Colon himself was not home. Georgia also discovered a smoke detector in two pieсes in the hallway and in the bathroom next to Colon’s bedroom. A fire investigator found no forced entry into the home. The investigator concluded that the fire, which primarily caused carpet damage, had been set deliberately by igniting two small piles of paper and the quilt. The Oakes discovered that sоme of their possessions, including several thousand dollars worth of jewelry and electronics, were missing. Colon’s bicycle also was gone. After the fire, Colon never returned to the Oakeses’ home. He also never returned to the restaurant where he and Georgia had worked. Colon was arrested approximately two weeks after the fire and was charged with aggravated arson. Following his arrest, he sent the Oakeses a letter requesting forgiveness “for what [he had] done.” The letter admitted theft but did not mention starting the fire.
{¶ 4} A jury found Colon guilty of aggravated arson. The trial court sentenced him to four years in рrison. It also ordered him to pay restitution of $7,271.76 with $1,510.46 going to the Oakeses and $5,761.30 to their insurance company. This timely appeal followed.
{¶ 5} In his first assignment of error, Colon contends that the trial court erred by awarding restitution to the Oakeses’ insurance company. The state concedes error, and we agree. “Under R.C. 2929.18(A)(1), a court may order a felony offender to pay, as part of the sentence, a financial sanction in the form of restitution. The statute sets forth four possible payees to whom the court may order restitution to be paid: the victim or survivor of the victim, the adult
{¶ 6} In the present case, the trial court’s termination entry simply ordered Colon “to pay restitution of $7,271.76” plus a statutory handling fee. During the sentencing hearing, the trial court made clear that $5,761.30 of this amount was to be paid to the probation department on behalf of the Oakeses’ insurance company. But the insurance company was not “the victim” of Colon’s aggravated arson. Nor is an insurance company an “agenc[y] designatеd by the court.” State v. Christman, Preble App. Nos. CA2009-03-007, CA2009-03-008,
{¶ 7} We note too that the $5,761.30 cаnnot be paid directly to the Oakeses as restitution. It is well settled that restitution may not exceed a crime victim’s economic loss and, as a result, must be reduced by any insurance payment received. State v. Clayton, Montgomery App. No. 22937,
{¶ 8} In his second assignment of error, Colon claims that the trial court erred by awarding restitution based on a theft charge that did not result in conviction and by awarding restitution without a hearing to determine the proper amount. With regаrd to the former issue, Colon contends that the record reflects arson-related damages of between $500 and $700. He points out that the trial court ordered the bulk of his restitution obligation as compensation for items stolen from the Oakeses’ home. He argues, however, that the jury acquitted him
{¶ 9} Upon review, we agree that the trial court erred in ordering restitution for theft-related losses. As a threshold matter, the record before us dоes not support Colon’s claim that the jury acquitted him of theft. Rather, the record simply does not contain a theft charge. Colon was indicted and tried only for aggravated arson, and he was convicted of that charge. At sentencing, however, the trial court noted Colon’s confession to theft in the post-arrest letter he wrote to the Oakeses. In light of that letter, the trial court ordered Colon to pay restitution for theft of property from the Oakeses’ home. The state concedes error by the trial court, and we agree. A restitution award must be limited to those acts that constitute the crime of conviction. State v. Hubbell, Darke App. No. 1617,
{¶ 10} The remaining issue is whether the trial court was required to hold a hearing to determine the damages resulting from Colon’s aggravated arson. Such a hearing is required only “if the offender, victim, or survivor disputes the amount of restitution ordered by the court.” Wilson,
{¶ 11} Upon review, we see no need for a restitution hearing. As set forth above, Colon concedes that the fire resulted in damage of at least $500. The state recognizes that insurance has cоmpensated the Oakes for all but $361.02 of their loss. This figure is supported by the record. Accordingly, we will sustain the second assignment of error in part and modify the trial court’s judgment to reflect a restitution obligation of $361.02.
{¶ 12} In his third assignment of error, Colon asserts that the trial court abused its discretion and failed to consider the requisite factors when sentencing him to four years in prison. More specifically, he contends that the trial court disregarded his “theft acquittal” and took theft into consideration when imposing his prison sentence. Colon also claims that the trial court failed to give adequate
{¶ 13} Upon review, we find no merit in Colon’s arguments. “When reviewing felony sentences, an appellate court must first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence, including R.C. 2929.11 and 2929.12, in order to find whether the sentence is contrary to law. * * * If the sentence is not clearly and convincingly contrary to law, thе trial court’s decision in imposing the term of imprisonment must be reviewed under an abuse of discretion standard.” State v. Bowshier, Clark App. No. 08-CA-58,
{¶ 14} Contrary to Colon’s argument on appeal, the trial court expressly stated that it had considered the principles and purposes of sentencing under R.C. 2929.11 and the seriousness and recidivism factоrs under R.C. 2929.12. Therefore, Colon has not identified any basis for finding that his prison sentence is contrary to law. We also see no evidence that the trial court improperly considered a “theft acquittal” when imposing Colon’s four-year sentence. As set forth above, the record does not reflect thаt Colon was acquitted of theft. He simply was not charged with theft. Although the trial court improperly considered the value of items stolen from the Oakeses’ home when calculating restitution, nothing before us indicates that it imposed a longer prison term because it believed Colon had committed theft in аddition to aggravated arson.
{¶ 15} Based on the record before it, the trial court acted well within its discretion in sentencing Colon to four years in prison. The maximum sentence for aggravated arson, a second-degree felony, was eight years in prison. Although Colon’s conduct happened to cаuse little harm, that fortuitous fact did not minimize the seriousness of his offense. Moreover, the trial court noted that Colon had a juvenile record for receiving stolen property, burglary, criminal damaging, and theft. The trial court noted that as an adult, Colon had been convicted of unauthorized use of a motor vehicle and failure to comply, which resulted in a one-year prison sentence. While Colon does not have an extensive adult record, that fact is minimized by his youth: he was only 21 years old at the time of trial. Having reviewed the record, we see no abuse of discretion in the trial court’s imposition of a mid-range, four-year prison sentence for Colon’s act of setting fire to the Oakeses’ home. The third assignment of error is overruled.
{¶ 16} In his fourth assignment of error, Colon challenges the legal sufficiency and manifest weight of the evidence to support his conviction. He addresses both arguments togеther. In support, he notes the absence of any conflict between himself and the Oakeses prior to the fire. He stresses the lack
{¶ 17} When a defendant challenges the sufficiency of the evidence, he is arguing that the state presented inadequate evidence on each element of the offense to sustain the verdict as a matter of law. State v. Hawn (2000),
{¶ 18} Our analysis is different when reviewing a manifest-weight argument. When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine 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. Thompkins (1997),
{¶ 19} With the foregoing standards in mind, we conclude that Colon’s conviction is based on legally sufficient evidence and is not against the manifest weight of the evidence. He was convicted of aggravated arson under R.C. 2909.02(A)(2) for knowingly causing physical harm to an occupied structure by means of fire. The state’s evidence supports a finding that the fire at issue was started intentionally. This is apparent from the nature of the fire, which was ignited with two small piles of paper and a quilt, and from the fact that the perpetrator knocked down a smoke alarm. The lack of forced entry into the home is circumstantial evidence that someone already inside started the fire, and Colon was the last person known to be there. In addition, his failure to return to the home and the absence of his bicycle support an inference that he started the fire and fled with jewelry and other items. This inference is strengthened by the letter he wrote to the Oakeses following his indictment. While Colon characterizes the letter as merely a confession to an unspecified theft, the jury reasonably
{¶ 20} Having sustainеd Colon’s first assignment of error and his second assignment of error in part, we modify the trial court’s judgment to reflect a $861.02 restitution obligation to the Oakes. As so modified, the trial court’s judgment is affirmed.
Judgment affirmed as modified.
Notes
. A possible solution is for the insurance company to file a subrogation action against Colon to recover the money it paid the Oakeses.