Fourth District Court of Appeals affirms conviction of Leesburg woman, partially reverses restitution order

The Fourth District Court of Appeals has issued a decision upholding the conviction of a Leesburg woman on breaking and entering as well as theft charges, but partially reversing the order for restitution for the victim in this case.

As previously reported, Rebecca M. Martin, 45, was indicted in August 2022 on one count each of grand theft of a motor vehicle, a fourth-degree felony, and breaking and entering, a fifth-degree felony. Following a one-day trial in Highland County Common Pleas Court, Martin was convicted of both felony counts Feb. 21, 2023 and sentenced to 18 months in prison.

According to a 56-page decision and judgment entry published June 18 and written by Presiding Judge Jason P. Smith of the Fourth District Court of Appeals, the appellate court found “merit only to a portion” of one of the seven assignments for error argued by Martin, as she was represented by attorney Kristie L. Gotwald on appeal. The state was represented by Highland County Prosecutor Anneka Collins and assistant prosecutor Adam King.

“We sustain the fifth assignment of error to the extent that we find the trial court erred by ordering payment of storage fees without considering Appellant’s present and future ability to pay and without supporting evidence as to the amount of storage fees and the name of the person or entity to be paid,” Smith wrote. “We vacate the restitution order and remand for the trial court’s consideration of these issues. In all other aspects, the judgment of the trial court is affirmed.”

As previously reported, a bill of particulars filed in Martin’s case alleged that on or about June 18, 2022, a motorcycle was reported stolen in Hillsboro. The caller said that he had made a trade for the motorcycle June 14 and showed the officer a copy of an online messenger conversation between the caller and Martin’s son, detailing the trade.

The responding officer saw that the motorcycle title was in Martin’s name. It was later determined that on June 16, 2022, Martin “applied for a lost title” for the motorcycle.

In a conversation with Hillsboro police, Martin allegedly confirmed that she had signed the original title with a notary because the motorcycle was going to be sold, but then “admitted that she filed for the lost title” June 16 after the trade was made. Martin allegedly told Hillsboro police that she had found out “where the motorcycle was located” and took the motorcycle in the middle of the night.

As mentioned, Martin raised a total of seven assignments for error on appeal. The fifth assignment for error, which is the only one with any “merit” found by the appellate court, was an argument of “erroneous orders of restitution.” Martin was ordered to pay court costs and storage fees for the motorcycle, and that the motorcycle’s title be transferred to its new owner, at sentencing.

According to Smith, the appellate court agreed with the State that Martin “did not raise these issues at sentencing and therefore her arguments are to be reviewed under a plain error standard of review.”

Smith wrote that the court ordered Martin to “pay any storage fees that may have been incurred,” but that both “the trial court’s verbal order and the sentencing entry are unclear as to whether the storage fees were to be paid to the police department or to” the motorcycle’s owner.

The Court of Appeals also said the record “does not contain evidence that the trial court considered Appellant’s present and future ability to pay a financial sanction,” nor does it have “evidence as to any amount of storage fees to be paid, and whether the fees are to be paid to [the motorcycle’s owner] or to the police department.

“Since trial court did not determine defendant’s ability to pay or specify the exact amount of restitution, restitution order was reversed and remanded solely on that issue,” Smith wrote. “We find plain error occurred, and we sustain the fifth assignment of error to the extent that the trial court ordered payment of storage fees without considering the Appellant’s present and future ability to pay and without supporting evidence as to the amount of storage fees and the identity of the person or entity to be paid. Therefore, we vacate the restitution order and remand for the trial court’s consideration of these issues.”

On the same assignment for error, however, the Court of Appeals found that “the transfer of title to [the motorcycle’s owner] as a form of restitution” was appropriate since the case “implicitly determined that [the victim] is the rightful owner of the motorcycle at issue.”

“The trial court’s order that the clerk transfer title to [the new owner] was necessary to the administration of justice,” Smith wrote.

The first assignment for error in Martin’s appeal was that “the trial court erred in denying Martin’s motion to dismiss” the case, as she claimed to have been the owner of the motorcycle. Martin “argued that probable cause to support the charges did not exist” on appeal, but the state countered that “that the allegations in the indictment supported offenses under Ohio law and it would have been premature for the trial court to determine whether the State could satisfy its burden of proof prior to trial,” according to the appellate court’s opinion.

Smith wrote that the appellate court found Martin’s assignment of error to be “without merit” and that the trial court “did not err in denying the motion to dismiss.”

A similar assignment of error next reviewed was the sixth one in Martin’s appeal, Smith wrote, as she “challenges the sufficiency of the evidence and the manifest weight of the evidence supporting her convictions” on both charges. Smith again wrote that the Court of Appeals found “no merit” to this argument upon reviewing the exhibits and testimony presented at trial.

“While Appellant contends that she is the actual owner of the motorcycle at issue, this is not a novel strategy in cases involving grand theft of a motor vehicle,” the appellate court decision says. “Furthermore, Appellant’s argument that her alleged title ownership of the motorcycle is conclusive of the matter is erroneous.

“Given that the jury was in the best position to view the witnesses’ demeanor and determine their credibility, we cannot find that the jury clearly lost its way and created a manifest miscarriage of justice requiring reversal of Appellant’s convictions. Because Appellant’s convictions are supported by the manifest weight of the evidence, sufficient evidence also supports them.”

Martin’s appeal also included an assignment of error against the trial court granting a motion in limine filed by the state “requesting the trial court exclude ‘any testimony from any witness or any exhibits regarding possible civil remedies available to the defendant had the defendant elected to pursue legal means to attempt to recover the motorcycle.’”

Martin argued that this motion was “actually requesting preclusion of any evidence as to ownership, improperly lowering the State’s burden of proof.

“Appellant argued that, ‘[t]he reality is that the State has accused Defendant of criminal activity saying she is not the owner and is now trying to preclude evidence that she is,’” Smith wrote.

The Court of Appeals found that “the trial court’s ruling appears to have been correct.

"Based on our review of the testimony, we agree with the trial court’s ruling excluding evidence of civil remedies and cannot find an abuse of discretion,” Smith wrote. “The facts surrounding the transaction were confusing even to the officers who testified, ostensibly because of Appellant’s actions. Given the confusing nature of this particular criminal matter, we agree that allowing testimony about the civil remedies possibly available to Appellant would have only added to the confusion and had a genuine potential to mislead the jurors.”

Smith added that “evidence of alleged ownership was replete throughout the trial testimony … and via the documentary evidence,” so they found no merit to Martin’s argument that the motion “precluded her from presenting evidence of ownership.”

Another assignment of error was Martin alleging that jury instructions were “erroneous” after the court denied her “request for three specific jury instructions … prior to trial.” The Court of Appeals found that Common Pleas Court “gave correct instructions” in all three instances and overruled that argument.

Next was an allegation of “prosecutorial misconduct,” with Martin alleging that “the prosecutor engaged in misconduct by making improper commentary, misstatements of the evidence, citing facts not in evidence, and engaging in improper attacks on credibility” by “insinuating” that Martin’s son “lied” on the witness stand.

Martin further “objected to” the prosecutor “calling [Martin] a liar, misrepresenting the evidence, expressing personal opinion, offering improper character evidence, improperly commenting on her guilt and stating facts not in evidence,” therefore “degrading [Martin’s] credibility.” Martin claimed that the prosecutor made “statements [that] were improper and unfairly prejudicial” about her to the jury.

The appellate court said that they found the prosecutor’s comments to be “fairly characterized as ‘overkill,’ certainly improper, but also harmless,” as they did not “misrepresent the evidence or [Martin’s] intent.”

The final assignment of error alleged that Martin’s “convictions should be reversed under the cumulative error doctrine,” arguing that “multiple errors deprived her of the constitutional right to a fair trial.” However, aside from part of the fifth assignment of error, the appellate court found only “the prosecutor’s improper remarks” as an error and that they “constitute harmless error only,” so this argument was overruled.

According to court records, Martin was granted early release from prison on March 6.

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