State v. Handlin

[Cite as State v. Handlin, 

.]


                                           COURT OF APPEALS
                                        FAIRFIELD COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


    STATE OF OHIO                                  :   JUDGES:
                                                   :
                                                   :   Hon. Earle E. Wise, Jr., P.J.
           Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                                   :   Hon. Patricia A. Delaney, J.
    -vs-                                           :
                                                   :   Case No. 21CA21
                                                   :
    JENNIFER HANDLIN                               :
                                                   :
                                                   :
           Defendant-Appellant                     :   OPINION


  CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County Court
                                                       of Common Pleas, Case No.
                                                       2019CR738



  JUDGMENT:                                            AFFIRMED




  DATE OF JUDGMENT ENTRY:                              December 21, 2022




  APPEARANCES:


    For Plaintiff-Appellee:                            For Defendant-Appellant:

    DAVE YOST                                          TODD W. BARSTOW
    OHIO ATTORNEY GENERAL                              261 W. Johnstown Road Ste. 204
    BRAD TAMMARO                                       Columbus, OH 43230
    SPECIAL PROSECUTING ATTORNEY
    30 East Broad St., 23rd Floor
    Columbus, OH 43215
[Cite as State v. Handlin, 

.]


 Delaney, J.

          {¶1} Appellant Jennifer Handlin appeals from the May 20, 2021, Judgment Entry

 of Sentence of the Fairfield County Court of Common Pleas. Appellee is the state of

 Ohio.

                               FACTS AND PROCEDURAL HISTORY

          {¶2} Mother was born in 1947 and developed poor health, culminating in a crisis

 in 2006. Mother became dependent on narcotics to control her pain, rendering her unable

 to handle her own finances. Appellant, Mother’s daughter, stepped in to help, and Mother

 turned over control of her debit card and checkbook. This case arose in 2015 when

 Mother’s health and focus improved and she realized that appellant had been siphoning

 funds from her account.

          {¶3} At the outset of the case in 2006, Mother was employed, living alone, and

 renting an apartment in Pickerington. As her medical problems worsened, however, she

 retired on disability and an annuity from her ex-husband. She would not be eligible for

 Social Security for five years. The side effects of the narcotics made it difficult for Mother

 to handle her own finances, and appellant offered to help. Mother turned over the debit

 card and checkbook for her account at Fairfield Bank.

          {¶4} Mother’s parents both passed away in 2006; they had lived in a dilapidated

 house in Bettsville, Seneca County.1 Upon the parents’ demise, appellant bought the

 Bettsville house and suggested that Mother move into it to be closer to several of her

 sisters.



 1The deplorable condition of the Bettsville residence was described at trial. Minimal
 maintenance was not kept up during the time that Mother rented from appellant, with the
 residence being described as a “disgusting eyesore.” T. 336.
[Cite as State v. Handlin, 

.]


          {¶5} Upon moving to Bettsville, the plan was that Mother would pay rent of $500

 per month to appellant. Mother’s household expenses, including utilities, would be paid

 by appellant from Mother’s bank account. Because Mother had no access to her own

 debit or credit cards, or checking account, she received an allowance from appellant of

 $500 per month, to be paid in two monthly payments of $250 each. Appellant was to mail

 Mother a check for $250 on the 1st and 15th of each month; when Mother qualified for

 Social Security, the payments were increased to $300 twice per month. All of Mother’s

 expenses other than utilities had to be paid for, in cash, from this allowance. If appellant

 purchased something for Mother, the amount was deducted from the allowance payment

 before it was sent to Mother.

          {¶6} Mailing of the twice-monthly checks proved problematic, with the checks

 arriving late or not at all. If an allowance check failed to arrive, Mother was unable to buy

 groceries. If the check failed to arrive, Mother notified appellant and she put the check in

 the mail.

          {¶7} The untimely checks resulted in a change to the allowance system. Mother

 asked appellant for a book of checks to keep so that she could write her own allowance

 checks at the appropriate times. Mother also began to write checks for utility bills that

 appellant neglected to pay. Mother had to call appellant and report the amount of every

 check so that appellant could purportedly track the balance and manage the account.

 Appellant did nothing to manage Mother’s money even minimally. Appellant kept no

 records, receipts, check registers, or bank statements. She never balanced Mother’s

 checkbook. Instead, appellant claimed to pay bills as they became due, which meant

 contacting the billing agency when shutoff notices were posted, or a check bounced.
[Cite as State v. Handlin, 

.]


          {¶8} Mother had no means of knowing the balance of the checking account.

 While Mother lived in Bettsville, all bank statements were sent electronically to appellant

 in Pickerington, although she did not retain the statements or manage them. Appellant

 failed to maintain any method of identifying Mother’s bank balance.

          {¶9} When Mother asked appellant for money for living expenses beyond the

 allowance, she was refused. One example at trial was Mother’s request for a small

 freezer to reduce the number of times Mother would need to grocery shop. The cost of

 the freezer was $100, but appellant told Mother she could not afford it. Mother similarly

 was told there was not enough money to cover new glasses, a new bed, or a trip to the

 dentist.

          {¶10} Appellant also purportedly shopped for Mother and took money from

 Mother’s account to cover the shopping expenses. Appellant used Mother’s money to

 pay for gas to cover her trips to Bettsville, and to pay for meals they ate together during

 appellant’s visits. Mother also purportedly instructed appellant to take money from her

 account to cover gifts to appellant’s children and popcorn for a child’s scouting fundraiser.

          {¶11} In addition to keeping Mother living at a subsistence level, appellant’s

 control of Mother’s bank account enabled appellant to use Mother’s funds at will, with

 Mother having no means of knowing appellant was using her money. Appellant handled

 Mother’s money for over seven years, but their agreement did not include permission for

 appellant to use Mother’s money for anything other than Mother’s own expenses.

 Appellant did not have permission to use Mother’s money as a loan on the condition the

 money was paid back. Appellant did not have permission to transfer funds from Mother’s
[Cite as State v. Handlin, 

.]


 account to other accounts controlled by appellant. The only expense payable to appellant

 from Mother’s account was $500 per month for rent on the Bettsville house.

          {¶12} Appellant also failed to properly maintain her own bank accounts or pay her

 own bills; consequently, appellant’s own bills became overdue, and appellant transferred

 funds from one account to another to cover bills as they became due. Appellant routinely

 commingled funds and paid for a homeschooling conference and a music conference she

 attended, with Mother’s money. In May and June 2012, appellant transferred money from

 Mother’s account into appellant’s daughter’s account.

          {¶13} In 2015, appellant stole Mother’s identity and took out loans in her name.

 Mother was unaware of these loans and did not give appellant permission to do so.

 Mother became increasingly aware of the irregularities as allowance checks bounced and

 disconnect notices arrived at the Bettsville house. Mother’s internet was shut off and her

 phone was disconnected. She learned from other people that shutoff notices had been

 affixed to her door. She was periodically advised that her cable would be shut off. She

 learned of the loan’s appellant took out in her name.

          {¶14} In 2015, Mother’s physical and mental health improved after a surgery that

 alleviated her need for narcotics. Mother asked appellant to return control over her own

 finances. After Mother’s second request, appellant returned the checkbook but warned

 Mother, “You’re not going to be happy with me.” Mother subsequently realized that

 appellant had been siphoning money from her account and demanded that appellant

 return the money. Appellant failed to do so, and Mother contacted law enforcement.
[Cite as State v. Handlin, 

.]


                                   Testimony of Special Agent Kevin Cooper

          {¶15} At trial, Special Agent Kevin Cooper of the Ohio Attorney General’s Office,

 Bureau of Criminal Investigation, testified for appellee. Cooper is a C.P.A. and

 investigates fraud on behalf of the Ohio attorney general. His investigations begin with

 examination of bank statements, credit card transactions, checks, and transfers to

 understand the dynamics of the fraud or misappropriation. He interviews victims and

 anyone with knowledge of the questioned transactions. He identifies transactions that

 correspond with criminal conduct and documents the transactions on spreadsheets. He

 identifies misappropriation by investigating who is authorized to make a transaction and

 who benefits from a transaction.

          {¶16} In the instant case, Cooper described the investigation as complicated

 because it involved many transactions among multiple accounts over a period of years,

 from 2008 until 2015. During this time, Mother received retirement and disability payments

 of approximately $2200 per month. Cooper examined records for Mother’s Fairfield

 Bank account ending in 1121; Mother and appellant had access to the account. Appellant

 and her husband, Kevin Handlin, were not authorized to use the account for their own

 benefit.     Cooper ultimately determined appellant took approximately $79,000 in

 unauthorized funds from Mother.

                                  Trial, conviction, sentencing, and restitution

          {¶17} Appellant was charged by indictment as follows: Count I, engaging in a

 pattern of corrupt activity pursuant to R.C. 2923.32(A)(1) and/or (A)(3) and R.C.

 2923.32(B)(1), a felony of the first degree; Count II, theft from a person in a protected

 class pursuant to R.C. 2913.02(A)(1)(2) and/or (3) and R.C. 2913.02(B)(3), a felony of
[Cite as State v. Handlin, 

.]


 the second degree; Count III, telecommunications fraud pursuant to R.C. 2913.05(A), (B),

 and (C), a felony of the third degree; Count IV, forgery pursuant to R.C. 2913.31 (A)(1),

 a felony of the fifth degree; Count V, money laundering pursuant to R.C. 1315.55(A)(1)(2)

 and/or (3), a felony of the third degree; Count VI, money laundering pursuant to R.C.

 1315.55(A)(1)(2) and/or (3), a felony of the third degree; and Count VII, identity fraud

 against a person in a protected class pursuant to R.C. 2913.49(B)(1) and/or (2), a felony

 of the third degree.

          {¶18} Appellant entered pleas of not guilty and the matter proceeded to trial by

 jury. Appellant was found not guilty upon Counts I, IV, V, and VI, and guilty as charged

 upon Counts II, III, and VII. The trial court sentenced appellant to an aggregate prison

 term of 3 years and ordered restitution to Mother in the amount of $70,325.

          {¶19} Appellant now appeals from the trial court’s judgment entry of conviction

 and sentence.

          {¶20} Appellant raises five assignments of error:

                                      ASSIGNMENTS OF ERROR

          {¶21} “I. HANDLIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

 VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

 AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

          {¶22} “II. THE TRIAL COURT ERRED BY ALLOWING INTO EVIDENCE

 INADMISSIBLE CUMULATIVE EVIDENCE NOT DISCLOSED DURING DISCOVERY,

 IN VIOLATION OF HANDLIN’S RIGHTS TO A FAIR TRIAL AND DUE PROCESS

 UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

 CONSTITUTION.”
[Cite as State v. Handlin, 

.]


          {¶23}     “III.   THERE IS INSUFFICIENT EVIDENCE BEHIND HANDLIN’S

 CONVICTIONS, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

 SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION.”

          {¶24} “IV. HANDLIN’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT

 OF THE EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH

 AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

 SECTIONS I & 16, ARTICLE I OF THE OHIO CONSTITUTION.”

          {¶25} “V. THE TRIAL COURT UNLAWFULLY ORDERED HANDLIN TO PAY

 RESTITUTION IN AN AMOUNT THAT EXCEEDED THE ECONOMIC LOSS FROM HER

 OFFENSES, IN VIOLATION OF THE DUE PROCESS CLAUSE TO THE FIFTH AND

 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”

                                              ANALYSIS

                                                 I.

          {¶26} In her first assignment of error, appellant argues she received ineffective

 assistance of defense trial counsel because counsel did not object to Special Agent

 Cooper testifying as an expert witness. We disagree.

          {¶27} Appellant alleges defense trial counsel’s performance fell below an

 objective standard of reasonable representation, and that, but for his attorney's

 performance, a reasonable probability existed that appellant would have been found not

 guilty. State v. Bradley (1989), 42 Ohio St .3d 136, 

. A claim of

 ineffective assistance of counsel requires a two-prong analysis. The first inquiry is

 whether counsel's performance fell below an objective standard of reasonable
[Cite as State v. Handlin, 

.]


 representation involving a substantial violation of any of defense counsel's essential

 duties to appellant. The second prong is whether the appellant was prejudiced by

 counsel's ineffectiveness. Strickland v. Washington, 

, 

, 

 (1984); State v. Bradley, 

, 

 (1989). To

 warrant a finding that trial counsel was ineffective, the petitioner must meet both the

 deficient performance and prejudice prongs of Strickland and Bradley. Knowles v.

 Mirzayance, 

, 

, 

 (2009).

         {¶28} The United States Supreme Court discussed the prejudice prong of the

 Strickland test:

                  With respect to prejudice, a challenger must demonstrate “a

         reasonable probability that, but for counsel's unprofessional errors, the

         result of the proceeding would have been different. A reasonable probability

         is a probability sufficient to undermine confidence in the outcome.” Id., at

         694, 

. It is not enough “to show that the errors had some

         conceivable effect on the outcome of the proceeding.” 

, 

. Counsel's errors must be “so serious as to deprive the defendant of

         a fair trial, a trial whose result is reliable.” 

, 

.

         {¶29} The United States Supreme Court and the Ohio Supreme Court have held

 a reviewing court “need not determine whether counsel's performance was deficient

 before examining the prejudice suffered by the defendant as a result of the alleged

 deficiencies.” Bradley, 

, 

, quoting Strickland, 

, 

, 

 (1984).
[Cite as State v. Handlin, 

.]


         {¶30} Debatable strategic and tactical decisions may not form the basis of a claim

 for ineffective assistance of counsel. State v. Phillips, 

, 

 (1995).

         {¶31} In the instant case, appellant argues she received ineffective assistance of

 defense trial counsel because counsel did not object to the testimony of Special Agent

 Kevin Cooper. Appellant argues counsel should have objected to Special Agent Cooper’s

 testimony because appellee “used Cooper as an expert witness against [appellant],” but

 Cooper merely reiterated what Mother told him. Brief, 7. We disagree with appellant’s

 characterization of Cooper’s testimony. As described supra in the statement of facts,

 Cooper is a C.P.A. who investigates financial fraud; he examined the transactions

 occurring in Mother’s Fairfield Bank account between 2008 and 2015 and determined

 who was authorized to make the transactions and who benefited from the transactions.

         {¶32} Appellee did not ask to have Cooper declared an expert and Cooper did not

 testify as an expert. “If the witness is not testifying as an expert, the witness' testimony

 in the form of opinions or inferences is limited to those opinions or inferences which are

 (1) rationally based on the perception of the witness and (2) helpful to a clear

 understanding of the witness' testimony or the determination of a fact in issue.” Ohio Evid.

 R. 701. Lay opinion, inferences, impressions, or conclusions are therefore admissible if

 they are those that a rational person would form on the basis of the observed facts and if

 they assist the jury in understanding the testimony or delineating a fact in issue. State v.

 Harper, 5th Dist. Licking No. 07 CA 151, 2008–Ohio–6926, ¶ 37, citing State v. Kehoe,

 

, 

 (12th Dist.1999). Evid.R. 701 affords the trial

 court considerable discretion in controlling the opinion testimony of lay
[Cite as State v. Handlin, 

.]


 witnesses. 

 citing City of Urbana ex rel. Newlin v. Downing, 

,

 

 (1989) and 

.

         {¶33} Each of Cooper’s challenged statements is based directly upon what he

 learned during his investigation. State v. Moore, 5th Dist. Coshocton No. 14CA0028,

 

. Cooper examined the myriad transactions between 2006 and 2015

 with an emphasis on who was authorized to make the transactions and who benefited

 from the transactions. Cooper did not merely repeat what Mother told him; her input on

 the nature of the transactions was only one piece of the puzzle. He looked at where the

 transactions occurred, with the knowledge that Mother’s physical condition was

 significantly limiting and she had no access to the debit card, which was in appellant’s

 possession. He verified transactions with identifiable vendors to determine whether

 Mother benefited from those transactions, or appellant. Cooper testified to his extensive

 training and experience in criminal investigation in general and to the steps taken in this

 investigation. His testimony regarding the financial misappropriation was helpful to the

 trier of fact in determining whether the transactions were legitimate. Cooper's opinion

 testimony was rationally based upon his investigation into the underlying incident and

 meets the requirements of Evid.R. 701.

         {¶34} We therefore do not discern the basis for any objection to Cooper’s

 testimony. Under the circumstances, Cooper’s testimony meets the requirements of

 Evid.R. 701 and therefore, we cannot say that defense counsel's failure to object fell

 below an objective standard of reasonable representation. State v. Harper, 5th Dist.

 Licking No. 07 CA 151, 

.

         {¶35} Appellant’s first assignment of error is overruled.
[Cite as State v. Handlin, 

.]


                                                 II.

         {¶36} In her second assignment of error, appellant argues the trial court

 improperly admitted cumulative evidence not disclosed during discovery. We disagree.

         {¶37} During the cross-examination of appellant’s spouse, Kevin Handlin, the

 prosecutor asked Handlin about appellee’s Exhibit 28, a chart totaling expenses from

 Insight Cable, Columbia Gas, South Central Power, Eastside Kegler, Calm Coach

 Celebrate, Classic Conversations, Schooling, Rumpke, Bank of America, Secretary of

 State, and Yanni. Defense trial counsel immediately objected and said he was never

 provided with the document. The prosecutor responded that Exhibit 28 is a summary

 chart of multiple exhibits, already admitted, that would be developed during the witness’s

 testimony. The trial court asked where the dollar amounts came from, and the prosecutor

 responded they are from documents already admitted into evidence in appellee’s case in

 chief. The trial court found the exhibit to be an admissible summary chart of multiple

 exhibits and overruled the objection.

         {¶38} Appellant asserts the trial court improperly admitted appellee’s Exhibit 28,

 and summarily argues it should have been excluded on two bases. The decision

 to admit or exclude relevant evidence is within the sound discretion of the trial court and

 will not be disturbed absent an abuse of discretion. State v. Congrove, 5th Dist. Morrow

 No. 11-CA-5, 

, citing State v. Combs, 

, 

(1991); State v. Sage, 

, 

 (1987). An abuse

 of discretion implies more than an error of law or judgment; instead, the term suggests

 that the trial court acted in an unreasonable, arbitrary, or unconscionable manner.

 See, State v. Xie, 

, 

 (1992); State v.
[Cite as State v. Handlin, 

.]


 Montgomery, 

, 

 (1991). When applying the abuse-of-

 discretion standard, a reviewing court may not substitute its judgment for that of the trial

 court. In re Jane Doe I, 

, 

 (1991).

         {¶39} First, appellant argues the exhibit was needlessly cumulative. Evid. R.

 403(B) governs the admissibility of cumulative evidence, stating, “Although relevant,

 evidence may be excluded if its probative value is substantially outweighed by

 considerations of undue delay, or needless presentation of cumulative evidence.” While

 the information contained in Exhibit 28 was available in other exhibits, exhibit 28 is a

 summary of multiple records which allowed appellee to cross-examine the witness more

 readily, without delving into voluminous individual exhibits. We agree with the trial court’s

 assessment that the summary chart aided the jury in its deliberations because it distilled

 voluminous records down to the pertinent numbers and was at most cumulative. T. 1378,

 emphasis added. Exclusion of cumulative evidence is discretionary, and we find no

 abuse of discretion in the trial court’s admission of the evidence.

         {¶40} Appellant also argues that Exhibit 28 was not provided in discovery, but this

 assertion was addressed at trial when appellee responded that the information contained

 in the summary exhibit was provided in discovery.

         {¶41} We find appellant’s arguments regarding Exhibit 28 unavailing, and the

 second assignment of error is overruled.

                                               III., IV.

         {¶42} Appellant’s third and fourth assignments of error are related and will be

 considered together. She asserts that her convictions are not supported by sufficient

 evidence and are against the manifest weight of the evidence. We disagree.
[Cite as State v. Handlin, 

.]


         {¶43} The legal concepts of sufficiency of the evidence and weight of the evidence

 are both quantitatively and qualitatively different. State v. Thompkins, 

,

 

, 

, paragraph two of the syllabus. The standard of review for

 a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 

, 

 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

 Court held, “An appellate court's function when reviewing the sufficiency of the evidence

 to support a criminal conviction is to examine the evidence admitted at trial to determine

 whether such evidence, if believed, would convince the average mind of the defendant's

 guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

 evidence in a light most favorable to the prosecution, any rational trier of fact could have

 found the essential elements of the crime proven beyond a reasonable doubt.”

         {¶44} In determining whether a conviction is against the manifest weight of the

 evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

 entire record, 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

 Reversing a conviction as being against the manifest weight of the evidence and ordering

 a new trial should be reserved for only the “exceptional case in which the evidence weighs

 heavily against the conviction.” Id.

         {¶45} Sufficiency of the evidence is a legal question dealing with whether the state

 met its burden of production at trial. State v. Murphy, 5th Dist. Stark No. 2015CA00024,

 2015–Ohio–5108, ¶ 13, citing State v. Thompkins, 

, 678 N.E.2d
[Cite as State v. Handlin, 

.]


 541 (1997). “Specifically, an appellate court's function, when reviewing the sufficiency of

 the evidence to support a criminal conviction, is to examine the evidence admitted at trial

 to determine whether such evidence, if believed, would convince the average mind of the

 defendant's guilt beyond a reasonable doubt.” Murphy at ¶ 15. The test for sufficiency of

 the evidence raises a question of law and does not permit the court to weigh the

 evidence. State v. Martin, 

, 

 (1st Dist.1983). The

 relevant inquiry is whether, after viewing the evidence in a light most favorable to the

 prosecution, any rational trier of fact could have found the essential elements of the crime

 proven beyond a reasonable doubt. Murphy at ¶ 15, citing Thompkins at 386.

         {¶46} Appellant was convicted upon one count of theft from a person in a

 protected class pursuant to R.C. 2913.02(A)(1) and (B)(3). Those sections state in

 pertinent part:

                          (A) No person, with purpose to deprive the owner of property

                  or services, shall knowingly obtain or exert control over either the

                  property or services in any of the following ways:

                          (1) Without the consent of the owner or person authorized to

                  give consent.

                          * * * *.

                          (B)(1) Whoever violates this section is guilty of theft.

                          * * * *.

                          (3) Except as otherwise provided in division (B)(4), (5), (6),

                  (7), (8), or (9) of this section, if the victim of the offense is an elderly

                  person * * * a violation of this section is theft from a person in a
[Cite as State v. Handlin, 

.]


                  protected class, and division (B)(3) of this section applies. Except as

                  otherwise provided in this division, theft from a person in a protected

                  class is a felony of the fifth degree. * * * *. If the value of the property

                  or services stolen is thirty-seven thousand five hundred dollars or

                  more and is less than one hundred fifty thousand dollars, theft from

                  a person in a protected class is a felony of the second degree. * * *

                  *. If the victim of the offense is an elderly person, in addition to any

                  other penalty imposed for the offense, the offender shall be required

                  to pay full restitution to the victim and to pay a fine of up to fifty

                  thousand dollars. * * * *.

         {¶47} Appellant was also found guilty upon one count of telecommunications

 fraud pursuant to R.C. 2913.05(A), which states in pertinent part:

                          (A) No person, having devised a scheme to defraud, shall

                  knowingly disseminate, transmit, or cause to be disseminated or

                  transmitted by means of a wire, radio, satellite, telecommunication,

                  telecommunications device, telecommunications service, or voice

                  over internet protocol service any writing, data, sign, signal, picture,

                  sound, or image with purpose to execute or otherwise further the

                  scheme to defraud.

                          * * * *.

                          (E)(1) * * * *. If the value of the benefit obtained by the

                  offender or of the detriment to the victim of the fraud is seven

                  thousand five hundred dollars or more but less than one hundred fifty
[Cite as State v. Handlin, 

.]


                  thousand dollars, telecommunications fraud is a felony of the third

                  degree. * * * *.

         {¶48} Finally, appellant was found guilty upon one count of identity fraud against

 a person in a protected class pursuant to R.C. 2913.49(B)(1) and/or (2), which state:

                          (B) No person, without the express or implied consent of the

                  other person, shall use, obtain, or possess any personal identifying

                  information of another person with intent to do either of the following:

                          (1) Hold the person out to be the other person;

                          (2) Represent the other person's personal identifying

                  information as the person's own personal identifying information.

                          * * * *.

         {¶49} First, appellant asserts her conviction for theft from an elderly person is

 based on insufficient evidence because an elderly person is 65 years of age or older.

 R.C. 2913.01(CC). Mother was born in 1947; the course of conduct prosecuted as Count

 II, theft from a person in a protected class, commenced in 2008, when Mother was 61

 years old. The theft was discovered and ceased in 2015, when Mother was 68 years old.

 We note that a series of theft offenses involving a victim who is an elderly person or

 disabled adult may be prosecuted as a single offense pursuant to R.C. 2913.61(C)(2).

 Appellee was not required to prosecute the series of thefts as separate offenses based

 upon Mother’s age. See, State v. Pettus, 

, 

 (2020)

 [R.C. 2913.61(C)(1) unambiguously permits aggregation of theft offenses when an

 individual commits a series of violations of the theft statute involving a victim who is an

 elderly person or disabled adult]. Appellee points out that while the statute requires the
[Cite as State v. Handlin, 

.]


 victim to be 65 or older when the offense occurred, there is no authority requiring the

 victim to be 65 or older at the beginning of an ongoing course of conduct. We decline to

 interpret the statute in a way that would strip Mother of her protected class as an elderly

 person.

         {¶50} Appellant next argues “the money laundering charges are based on

 insufficient evidence.” Appellant was found not guilty upon the money laundering

 offenses, Counts V and VI, therefore her arguments are misplaced.

         {¶51} Next, appellant asserts she did not act out of malice or ill will toward her

 mother, and the criminal conduct was merely sloppy record-keeping. Appellee was not

 required to prove appellant acted from ill will or malice, and we disagree with appellant’s

 characterization of the evidence. Her reluctance to return the checkbook and bank

 statements to Mother, combined with her warning that “you won’t be happy with me,”

 indicate that appellant was aware her commingling of funds and siphoning of funds for

 her own purposes was not authorized. The evidence also established that appellant

 exploited her relationship with Mother, and Mother’s physical and mental condition.

         {¶52} Finally, appellant challenges Mother’s credibility because some of the

 transactions Mother complained of proved to be authorized; further, she argues, Mother

 was heavily medicated when the disputed transactions took place and “memories fade.”

 It is axiomatic, however, that the weight of the evidence and the credibility of the

 witnesses are determined by the trier of fact. State v. Yarbrough, 

, 231,

 2002–Ohio–2126, 

. The trier of fact is in a better position to observe the

 witnesses' demeanor and weigh their credibility. State v. DeHass, 

[Cite as State v. Handlin, 

.]


 N.E.2d 212 (1967), paragraph one of the syllabus. Mother’s recollections were only part

 of Cooper’s investigation into whether the transactions were authorized.

         {¶53} After weighing the evidence and evaluating the credibility of the witnesses,

 with appropriate deference to the trier of fact's credibility determination, we cannot say

 that the jury clearly lost its way and created a manifest injustice. Construing all the

 evidence in favor of appellee, sufficient evidence supports appellant's conviction. Also,

 this is not the case in which the jury clearly lost its way and created such a manifest

 miscarriage of justice that the convictions must be overturned, and a new trial ordered.

 Appellant's convictions are not against the manifest weight of the evidence.

         {¶54} Appellant’s convictions are supported by sufficient evidence and are not

 against the manifest weight of the evidence. Her third and fourth assignments of error

 are overruled.

                                                  V.

         {¶55} In her fifth assignment of error, appellant argues the trial court’s restitution

 order should be reversed. We disagree.

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

 sentence to compensate a victim for economic loss. “Restitution” continues to mean

 compensation for economic losses or economic detriment suffered by the victim “as a

 direct and proximate result of the commission of the offense,” see R.C. 2929.18(A)(1);

 R.C. 2929.28(A)(1); R.C. 2929.01(L). State v. Yerkey, 

.

         {¶57} We review restitution orders under an abuse-of-discretion standard. State

 v. Hodge, 5th Dist. Muskingum No. CT2019-0038, 

, ¶ 51 citing State v.

 Sheets, 5th Dist. Licking No. 17 CA 44, 

, 

, ¶ 15,
[Cite as State v. Handlin, 

.]


 citing State v. Cook, 5th Dist. Fairfield No. 16-CA-28, 

, 

, ¶ 8; State v. Andrews, 5th Dist. Delaware No. 15 CAA 12 0099, 2016-Ohio-

 7389, 

, ¶ 40. This Court has held that an order of restitution must be

 supported by competent and credible evidence from which the trial court can discern the

 amount of restitution to a reasonable degree of certainty. Hodge at ¶ 51 citing 

 citing State v. Spencer, 5th Dist. Delaware No. 16 CAA 04 0019, 

,

 

, ¶ 44 (citations omitted); State v. Frank, 5th Dist. No. CT2017-0102,

 

, 

. Furthermore, a trial court abuses its discretion if

 it orders restitution in an amount that does not bear a reasonable relationship to the actual

 loss suffered. 

 (citations omitted).

         {¶58} The evidence which supports a court's restitution order “can take the form

 of either documentary evidence or testimony.” State v. Moore, 5th Dist. Guernsey No. 22

 CA 000007, 

, citing State v. Jones, 10th Dist. Franklin No. 14AP-

 80, 

.

         {¶59} In the instant case, appellant summarily argues the trial court’s restitution

 order of $83,000 (sic) exceeds the amount appellant calculated she owes Mother after

 accounting for offsets from rental payments, reimbursements, and money paid by

 appellant for Mother’s expenses. Appellant contends she owes $23,179.

         {¶60} First, we note the trial court’s entry orders restitution in the amount of

 $70,325, payable to Mother, not $83,000 as appellant asserts.

         {¶61} At the sentencing hearing, the trial court noted it used the trial testimony,

 exhibits, post-trial memoranda regarding restitution, and oral arguments of counsel to

 arrive at a restitution amount. Sentencing hearing, 28. The trial court noted appellee’s
[Cite as State v. Handlin, 

.]


 witness, Cooper, gave appellant credit for the 88 months of rental payments offset against

 the amount owed. Further, the trial court noted appellant claimed $12,675 in appellant’s

 claimed reimbursements and money paid by appellant for Mother’s expenses was not

 properly credited in appellee’s restitution request, so the trial court deducted that amount.

 The trial court thus arrived at $70,325 as the amount owed.

         {¶62} Based upon the foregoing, we find the trial court's order of restitution is

 supported by competent and credible evidence. Furthermore, we find the trial court did

 not abuse its discretion as the order of restitution bears a reasonable relationship to the

 actual loss suffered by Mother. State v. Hoy, 5th Dist. Delaware No. 21 CAC 03 0013,

 

, appeal not allowed, 

, 

, 

.

         {¶63} Appellant’s fifth assignment of error is overruled.
[Cite as State v. Handlin, 

.]


                                              CONCLUSION

          {¶64} Appellant’s five assignments of error are overruled, and the judgment of the

 Fairfield County Court of Common Pleas is affirmed.

 By: Delaney, J.,

 Wise, Earle, P.J. and

 Hoffman, J., concur.