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State of Ohio v. Katherine Lang

November 7, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KATHERINE LANG, DEFENDANT-APPELLANT.



CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. CR20102244

The opinion of the court was delivered by: Piper, J.

Cite as

State v. Lang,

OPINION

{¶1} Defendant-appellant, Katherine Lang, appeals the decisions of the Brown County Court of Common Pleas, sentencing her on three counts of theft in office, and ordering restitution. We affirm the decisions of the trial court.

{¶2} Lang worked as the Utilities Clerk for the village of Ripley. As part of her job responsibilities, Lang would set up utility accounts for new customers, issue billing statements, and accept payments from customers. From January 2006 through October 27, 2009, Lang stole $952,619.24 from the village of Ripley by adjusting utility bills and diverting money from customer accounts into cash. Lang's theft was discovered after the village of Ripley requested a "special audit" of the utilities department.

{¶3} The state charged Lang with three counts of theft in office and seven counts of tampering with records. The three counts of theft corresponded to the three methods Lang used to steal money from the village of Ripley. Lang stole $915,845.26 by adjusting customers' utility bills downward after they had already paid their balance in full, and withdrawing the difference in cash. Lang also zeroed accounts out in the electronic billing system so that a customer's invoice would reflect a zero balance. Lang would then "whiteout" the zero balance and insert a balance-owed amount, which she would then withdraw for herself when the customer paid the bill. Lang stole $23,162.57 through this billing scheme. Lang also diverted $13,611.41 to herself by taking the cash from new customers who paid a deposit in order to open a new utility account.

{¶4} Lang pled guilty to three counts of theft in office, and the state dropped the remaining tampering with records charges. During her plea hearing, Lang stipulated that the proper restitution for Count One was $915,845.26, $23,162.57 on Count Two, and $13,611.41 on Count Three. Lang also stipulated that the restitution for the cost of the special audit was $121,982.80. The trial court ordered a presentence investigation report (PSI), and after reviewing it, held a sentencing hearing.

{¶5} The trial court ordered Lang to pay restitution as she had stipulated, and to serve five years on Count One, four years on Count Two, and four years on Count Three, all to be served consecutive to each other, for an aggregate sentence of 13 years. Lang now appeals that sentence and order of restitution, raising the following assignments of error.

{¶6} Assignment of Error No. 1:

{¶7} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT- APPELLANT WHEN IT ORDERED HER TO PAY RESTITUTION WITHOUT CONSIDERING HER PRESENT AND FUTURE ABILITY TO PAY THEREBY DENYING DEFENDANTAPPELLANT HER RIGHTS TO DUE PROCESS IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION."

{¶8} Lang argues in her first assignment of error that the trial court erred in ordering her to pay restitution because it did not first consider whether or not she has the ability to pay.

{¶9} According to R.C. 2929.18, a trial court has the authority to impose an order of restitution based on the victim's economic loss. R.C. 2929.01(L) defines "economic loss" as "any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense and includes * * * any property loss * * * incurred as a result of the commission of the offense." The record must contain sufficient evidence for the trial court to ascertain the amount of restitution to a reasonable degree of certainty. State v. Smith, Butler App. No. CA2004-11-275, 2005-Ohio-6551, ¶21. The amount of restitution must bear a reasonable relationship to the loss suffered by the victim, and is limited to the actual loss caused by the offender's criminal conduct for which the offender was convicted. Id.

{ΒΆ10} During Lang's sentencing hearing, she stipulated to restitution in the amount specific to each theft charge, as well as the charge for the special audit. The trial court specifically asked Lang's counsel whether or not the amounts were the "appropriate restitution" and whether or not Lang was stipulating to those amounts. Lang's counsel replied, "yes, Your Honor." The trial court then asked Lang if the information was correct regarding her stipulation of restitution, and Lang replied "yes." Lang further ...


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