State v. Hopson, Unpublished Decision (3-31-2005)
State v. Hopson, Unpublished Decision (3-31-2005)
Opinion of the Court
{¶ 2} Appellant sets forth two assignments of error:
{¶ 3} "I. Appellant was denied a fair trial due to prosecutorial misconduct.
{¶ 4} "II. The trial court erred in ordering appellant to pay restitution in the amount of $15,000."
{¶ 5} The undisputed facts relevant to the issues raised on appeal are as follows. On July 16, 2003, appellant was indicted on one count of aggravated burglary in violation of R.C.
{¶ 6} In his first assignment of error, appellant asserts he was deprived of a fair trial because the prosecutor made improper comments during closing argument. Appellant argues the prosecutor improperly asked the jury to abandon its role as an impartial finder of fact and view the matter from the victims' position. The comments about which appellant complains were as follows:
{¶ 7} "I'm going to ask you to put yourself in the position of Juan and Terry Delgado. You move to Wood County, Ohio, to a new residence eight days prior to this horrible event. You go to bed at your normal time at around nine, ten o'clock. And you suddenly awaken at four o'clock in the morning or around that time, three-thirty, four by four men pounding their way into their house, running down the hallway yelling and screaming, `Police! Get down! Get down!' With guns pointed directly at you by these four men with masks and gloves on their hands, and again pointing guns directly at you, yanking you out of your bed in your very own home."
{¶ 8} Assuming the prosecutor erred, the defense did not object, thereby waiving this issue absent a showing of plain error. See State v.Wogenstahl (1996),
{¶ 9} Plain error does not exist here. This court has reviewed the transcript of appellant's trial, which includes extensive testimony from Terry Delgado, who identified appellant as one of the men who forced their way into her home in the middle of the night while she and her husband slept. She further identified appellant as the one who first came through their bedroom door, pulled her out of bed and held a gun to her head.
{¶ 10} Based on our review of the evidence admitted at trial, we find appellant has not demonstrated that the outcome of his trial would clearly have been different but for the error he alleges. Accordingly, appellant's first assignment of error is not well-taken.
{¶ 11} In his second assignment of error, appellant asserts that there is no record of economic loss suffered by the victims and the trial court erred by ordering him to pay restitution of $15,000. The state concedes there was insufficient evidence in the record to support restitution as ordered.
{¶ 12} This court has held that restitution ordered pursuant to R.C.
{¶ 13} Accordingly, we find there was no competent, credible evidence from which the trial court could ascertain the actual economic damages suffered by the victims. The court erred in ordering appellant to pay restitution of $15,000. Appellant's second assignment of error is well-taken.
{¶ 14} On consideration whereof, the judgment of the Wood County Court of Common Pleas is reversed with regard to the restitution order and affirmed in all other respects. This cause is remanded for further proceedings on the restitution matter consistent with this decision. Costs of this appeal are to be shared by the parties equally.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Pietrykowski, J., Parish, J., Skow, J., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.