State v. KingsburyState v. Kingsbury
- Reporters:
- ,
- Before:
- Kathleen Ann Keough, Eileen T. Gallagher, Patricia Ann Blackmon
No. 102973
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
IAN W. KINGSBURY
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTION AFFIRMED; RESTITUTION ORDER VACATED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-591789-A
BEFORE: Keough, P.J., E.T. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 18, 2016
Brian R. McGraw
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Lon’Cherie’ D. Billingsley
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Ian Kingsbury, appeals from the trial court’s judgment, rendered after a bench trial, finding him guilty of aggravated robbery, kidnapping, tampering with evidence, and intimidation of a crime victim, and sentencing him to three years incarceration. We affirm Kingsbury’s convictions, but reverse that part of the judgment ordering restitution in the amount of $41,000.
I. Background
{¶2} Kingsbury was charged in a four-count indictment with aggravated robbery in violation of
{¶3} At trial, Timothy Riha, the owner of the Upper Deck, a sports bar in Berea, testified that Kingsbury had worked on and off for him for eight years and knew that he kept cash in his desk and in a cabinet in his office. On the morning of November 19, 2014, Kingsbury was working as a cleaner at the Upper Deck. Riha testified that Kingsbury left with the bartender around 5 a.m. Moments later, as Riha was sitting in his second-floor office, Kingsbury appeared in the office with a man who was wearing a surgical mask and carrying a crowbar. The masked man, later identified as Marcus Hill, forced Riha down the stairs and into the women’s restroom, where Kingsbury tied him up with tape. Riha testified that after the masked man and Kingsbury left, he struggled and got free, but just as he freed himself, the masked man returned and tied him up again. When he broke free a second time, the masked man and Kingsbury tied him up again. Eventually he broke free again, ran up to his office, locked the door behind him, and called 911.
{¶4} The next day, Riha reviewed the surveillance video with Dennis Bort, a detective with the Berea police department. After viewing the footage, both Riha and Det. Bort believed that Kingsbury had participated in organizing and executing the robbery. Det. Bort testified that Kingsbury’s oral and written statements about the robbery were not consistent with the video. Although at one point the video showed Kingsbury walking with his hands up, it was not consistent with his statement that the masked man had “dragged” him through the kitchen and up the stairs. The video also showed that at one point, when the masked man was heading in the wrong direction, Kingsbury directed the masked man upstairs, where the office was located. The video also showed that Kingsbury was left alone, unrestrained, on the second floor of the Upper Deck, but did not go into the office and lock the door to try to escape. In fact, the video demonstrated that Kingsbury was left unattended for seven of the eleven minutes of the robbery shown on the videotape. In addition, the video demonstrated that while Riha was tied up in the bathroom, the masked man did not use any force on Kingsbury.
{¶5} The video also demonstrated that Kingsbury was making telephone calls on his cell phone at various times during the robbery. Kingsbury told Det. Bort that he had called his mother for a ride home, but Det. Bort testified that the telephone records he subsequently obtained demonstrated that Kingsbury never called her. Det. Bort testified further that Kingsbury initially told him that the masked man had confronted him at the dumpster behind the Upper Deck as he was taking out the garbage, but upon questioning, Kingsbury told Det. Bort that he did not have a key to the back door. When the detective pointed out that the dumpster
{¶6} Phyllis Brainard, Kingsbury’s mother, testified that on November 19, 2014, she and Kingsbury were living with her sister Louise Casino. Brainard testified that her brother Raymond Casino and his friend Marcus Hill would sometimes stay there too. She testified that she woke up around 5 a.m. that day, thinking it was odd that Kingsbury had not called her for a ride home because she always took him to work and picked him up. As she was standing in the living room, she looked out the window and realized that her car was missing. Almost immediately, Marcus, who had driven her car home, walked in the house. Brainard testified that Marcus was “stunned” to see her because he realized that she now knew that he had driven her car without her permission.
{¶7} Brainard then drove to the Upper Deck to pick up Kingsbury. The police told her they were taking Kingsbury in for questioning, however, and would drop him off later. Brainard said that when Kingsbury returned home later that morning, he went to her computer and unscrewed the back of the tower, where she saw stacks of money hidden in clear ziploc bags. Brainard said that she started crying and told Kingsbury to give the money back, but Kingsbury threatened her if she told anyone about the money. She testified further that Kingsbury told her that his cut from the robbery was $20,000, and that Marcus and her brother Raymond split $30,000.
{¶8} Kathleen Kingsbury, Kingsbury’s sister, testified that she visited her brother at her aunt’s house on November 29, 2014. Appellant’s friend Ernie was also there. Kathleen
{¶9} Kingsbury’s aunt, Louise Casino, testified that when her sister Phyllis returned home on November 19 after going to pick up Kingsbury from the Upper Deck, she told Louise that there had been a robbery. At around 7 a.m., Louise drove Marcus and Raymond to an appointment. Louise said that during the ride, Marcus mentioned that the robbers had supposedly used a crowbar, and when she got home, she discovered that the crowbar normally stored in her garage was missing.
{¶10} Louise testified further that on November 30, 2014, Kingsbury was “tearing things up in the house” and screaming that she had stolen his money. She said that when she picked him up from the hospital a few days later, he told her that he had $20,000 but it was all gone.
{¶11} The trial court found Kingsbury guilty of all charges as indicted. At sentencing, the court sentenced him to a total of three years incarceration, and ordered that he pay $41,000 in restitution. This appeal followed.
II. Analysis
A. Restitution
{¶12} In first assignment of error, Kingsbury contends that the trial court erred in ordering that he pay $41,000 in restitution. We review for plain error because Kingsbury raised no objection to the restitution order at sentencing.
{¶13} Under
{¶14}
{¶15} Kingsbury contends that the trial court erred in ordering that he pay $41,000 in restitution because there was no reliable testimony regarding the amount of economic loss. He argues that Riha offered differing amounts of the amount of cash stolen from his office to the police. He further contends that there was no evidence regarding whether the insurance company payout of $15,000 was the policy limit or the insurance company’s opinion of Riha’s total loss. Therefore, he contends that while it might be reasonable to conclude that Riha suffered some loss, there is no reliable testimony regarding the exact amount of loss.
{¶16} The trial court’s order that Kingsbury pay $41,000 in restitution was based on Riha’s testimony that he suffered $56,000 in loss, less the $15,000 paid by his insurance company. In his testimony, Det. Bort acknowledged that on the morning of the robbery, Riha
{¶17} However, despite Kingsbury’s argument otherwise, the record supports the trial court’s finding that the insurance company paid the policy limits of $15,000 for Riha’s loss. Riha testified that he was insured for $15,000 in losses, and the insurance company paid that amount for his loss. (Tr. 69-70.)
{¶18} In light of Riha’s testimony, we find that there was competent and credible testimony to support $55,000 in loss. That loss, less the $15,000 in insurance proceeds, would support a restitution order of $40,000, however, not $41,000 as ordered by the trial court.
{¶19} Moreover, when imposing financial sanctions under
{¶20} Because the record does not support the trial court’s $41,000 restitution order, and there is nothing in the record indicating that the trial court gave any consideration to Kingsbury’s ability to pay before entering the order, we find that the court’s restitution order was plain error. The first assignment of error is sustained.
B. Ineffective Assistance of Counsel
{¶22} Although a court must give great deference to counsel’s performance in evaluating a claim of ineffective assistance of counsel, Strickland at 689, in this case we conclude that counsel’s failure to object to the $41,000 restitution order at sentencing was ineffective assistance.
{¶23} As noted above, there is nothing in the record indicating that the trial court considered Kingsbury’s ability to pay before ordering restitution. Thus, counsel should have objected to the order that Kingsbury — a drug addict who only worked sporadically over the last eight years and was now sentenced to three years in prison — pay $41,000 in restitution. Counsel’s failure to object fell below an objective standard of reasonableness. Furthermore, there is a reasonable probability that if counsel had objected, the amount of the restitution order would have been different. The second assignment of error is sustained.
C. Manifest Weight of the Evidence
{¶25} A manifest weight challenge questions whether the state met its burden of persuasion. State v. Bland, 8th Dist. Cuyahoga No. 101631, 2015-Ohio-2388, ¶ 15. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury 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, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶26} This is not that exceptional case. Riha testified about what happened during the robbery, including that Kingsbury tied him up in the bathroom. Kingsbury’s sister testified that he admitted that he robbed the Upper Deck. And his mother testified that he told her that his cut from the robbery was $20,000. Furthermore, the video refutes Kingsbury’s assertion that he was a victim of the masked man, instead of a perpetrator. Kingsbury’s behavior on the video is not that of a victim; the video demonstrates that he did, in fact, voluntarily participate in the robbery. The third assignment of error is overruled.
{¶27} Kingsbury’s convictions are affirmed. The first and second assignments of error having been sustained, that part of the trial court’s judgment ordering that Kingsbury pay $41,000 in restitution is reversed, and the matter is remanded for reconsideration of Kingsbury’s
{¶28} Conviction affirmed; restitution order reversed; remanded.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR