[Cite as State v. Blake,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102420

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

KENNETH BLAKE DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND VACATED IN PART

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-578166-A

BEFORE: E.A. Gallagher, P.J., McCormack, J., and Laster Mays, J.

RELEASED AND JOURNALIZED: November 19, 2015 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: Sarah E. Gatti Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Daniel T. Van Eric L. Foster T. Allan Regas Assistant County Prosecutors 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113 EILEEN A. GALLAGHER, P.J.:

{¶1} Defendant-appellant Kenneth Blake appeals an order of restitution imposed

as part of his sentence for passing bad checks in the Cuyahoga County Court of Common

Pleas. For the following reasons, we reverse and vacate the restitution order.

{¶2} Blake pled guilty to one count of passing bad checks and was referred for a

presentence investigation report. At sentencing, the trial court ordered Blake to pay

restitution in the amount of the bad check, $100,246, and imposed a 180-day jail term

along with five years of community control sanctions. Blake appeals, challenging only

the order of restitution.

{¶3} The facts pertaining to the restitution order are as follows: Blake was

married to Charlene Hinton-Blake who died in 2012. Three of Hinton-Blake’s sisters,

including named victim Yvonne Hinton, assisted her with day-to-day care during a

four-year period of illness preceding her death.

{¶4} Following Hinton-Blake’s death, it was discovered that Blake was to

receive $260,000 from a life insurance policy. Blake agreed to give Hinton-Blake’s

three sisters half of the insurance proceeds to be divided equally amongst themselves.

To this end, Blake and the sisters prepared a notarized document to evidence their

agreement. Yvonne Hinton stated that Blake chose to share the insurance proceeds with

the sisters because he knew they had helped care for Hinton-Blake prior to her death.

{¶5} Blake received the insurance proceeds in June 2012, and wrote two checks to

himself for $100,000 each. He then wrote checks to Yvonne Hinton in the amounts of $22,000 and $100,246. The $22,000 check cleared but the $100,246 check was returned

due to insufficient funds.

{¶6} In his first assignment of error, Blake argues that the trial court erred in

ordering restitution in the amount of $100,246.

{¶7} We review an order of restitution under the abuse of discretion standard.

State v. Lalain, 8th Dist. Cuyahoga No. 95857,

, citing State v.

Marbury,

,

(8th Dist. 1995). An abuse of discretion

means more than a mere error of law or judgment; it implies that the trial court’s attitude

is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶8} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a

felony sentence “in an amount 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.

{¶9} Blake argues that the act of passing a bad check cannot proximately result in

economic loss to the victim when that check does not clear. We disagree. This court

has previously upheld restitution in the amount of a bad check pursuant to a conviction

for passing bad checks where economic loss was established. State v. McDonald, 8th

Dist. Cuyahoga No. 95651,

; State v. Butler, 2d Dist. Clark No.

2013-CA-110,

. {¶10} Blake’s reliance on State v. Hart, 6th Dist. Lucas No. L-03-1073,

, is misplaced as that case involved a defendant’s failed attempt to cash a

counterfeit payroll check at a supermarket. The Hart court noted that there was no

evidence of an actual loss suffered by the supermarket because Hart’s attempt to obtain

money via the counterfeit payroll check was thwarted. Id. at ¶ 32. Therefore, Hart does

not stand for the proposition that restitution is never appropriate in a passing bad check

case.

{¶11} Although the act of passing a bad check can result in economic loss, we find

that the trial court abused its discretion in ordering restitution in this instance because the

victims suffered no economic loss as their agreement with Blake was not enforceable due

to a lack of consideration and that Blake’s act of passing the bad check did not result in a

completed gift.

{¶12} “‘[T]he formation of a contract requires a bargain in which there is a

manifestation of mutual assent to the exchange and a consideration.’” Harmon v. Phillip

Morris, Inc.,

,

(8th Dist. 1997), quoting Restatement

of the Law 2d, Contracts, Section 17 (1981). “Consideration may consist of either a

detriment to the promise or a benefit to the promisor. A benefit may consist of some right,

interest or profit accruing to the promisor, while a detriment may consist of some

forbearance, loss or responsibility given, suffered or undertaken by the promisee.” Brads

v. First Baptist Church,

,

(2d Dist. 1993). {¶13} The record from the trial court’s sentencing hearing reflects that there was

no consideration to support the underlying agreement between Blake and the victims.

The victims’ actions in caring for Blake’s wife prior to her death cannot satisfy the

consideration element because past consideration, having already occurred, cannot be a

bargained-for benefit or detriment. Nye v. Kutash, 8th Dist. Cuyahoga No. 91734,

, citing Carlisle v. T&R Excavating, Inc.,

,

(9th Dist. 1997).

{¶14} Furthermore, the passing of the bad check did not result in the completion of

an inter vivos gift. Pursuant to R.C. 1303.45, a check does not itself operate as an

assignment of any funds in the hands of the drawee available for its payment, and the

drawee is not liable on the instrument until he accepts it. See also Deluca v. Bancohio

Natl. Bank,

,

(10th Dist. 1991) (holding that a

check, by itself, is not an assignment of funds and, therefore, any intended gift could not

be complete because the donor retains the power to stop payment on his order); Simmons

v. Cincinnati Sav. Soc.,

, 461 (1877) (holding that until a check is either

paid or accepted, a gift is incomplete because without consideration, the check is subject

to be countermanded or revoked while remaining in the hands of the payee).

{¶15} We hold that the trial court abused its discretion in ordering restitution in

this instance because Blake’s agreement with the victims was not supported by

consideration and his passing of the bad check did not complete a gift. Therefore, the victims did not suffer the type of economic loss required under R.C. 2929.01(L) to

support an award of restitution.

{¶16} Blake’s first assignment of error is sustained.

{¶17} Blake’s second assignment of error is moot.

The judgment of the trial court is reversed, and the order of restitution is vacated.

It is ordered that appellee recover from appellant 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.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_______________________________________________ EILEEN A. GALLAGHER, PRESIDING JUDGE

TIM McCORMACK, J., and ANITA LASTER MAYS, J., CONCUR