Youngstown Daily Legal News

Man who helped rob bar owner loses appeal but won’t have to pay restitution

ANNIE YAMSON
Special to the Legal News
Published: March 7, 2016

The 8th District Court of Appeals recently released an opinion affirming convictions related to a robbery for a Berea man but reversing an order of restitution.

The defendant, Ian Kingsbury, appealed from the judgment of the Cuyahoga County Court of Common Pleas where he was convicted via a bench trial on charges of aggravated robbery, kidnapping, tampering with evidence and intimidation of a crime victim.

He was sentenced to three years in prison and ordered to pay $41,000 in restitution.

At trial, Timothy Riha, owner of the Upper Deck sports bar in Berea, testified that Kingsbury had worked on and off for him for eight years. On the morning of Nov. 19, 2014, Kingsbury left with the bartender around 5 a.m.

Moments later, Riha was sitting in his second-floor office when Kingsbury appeared with a man who was wearing a surgical mask and carrying a crowbar.

The masked man, later identified as Marcus Hill, forced Riha into the women’s restroom where Kingsbury tied him up with tape.

Eventually, Riha broke free, ran to the office, locked himself inside and called the police to report the robbery.

He testified that $56,000 was stolen and that he received a maximum payout of $15,000 from his insurance company.

The day after the robbery, Riha reviewed surveillance tapes of the incident with Det. Dennis Bort, who also testified at trial.

Bort stated that the video was not consistent with Kingsbury’s oral and written statements about the robbery.

Kingsbury claimed that he was also a victim and that Hill “dragged” him through the kitchen and up the stairs after he left the restaurant — a scenario not captured by the bar’s cameras.

Rather, the video showed one point when Hill was heading in the wrong direction and Kingsbury directed him upstairs to the office.

For seven out of the 11 minutes of the robbery, Kingsbury was left unattended and unrestrained while Riha was tied up in the bathroom.

Kingsbury’s mother testified that she knew Hill and that he had borrowed her car at the time of the robbery without her permission.

When Kingsbury returned home after being questioned by police, she said he unscrewed the back of a computer tower and removed stacks of money hidden inside.

Kingsbury told his mother that his cut from the robbery was $20,000.

Kingsbury’s sister testified that her brother bragged to her about the robbery and Kingsbury’s aunt also stated that she knew about the stolen money.

In his appeal to the 8th District court, Kingsbury argued that his conviction was against the manifest weight of the evidence. According to him, the surveillance video demonstrated that he was, in fact, a victim.

“A conviction should be reversed as against the manifest weight of the evidence only in the most exceptional case in which the evidence weighs heavily against conviction,” Presiding Judge Kathleen Ann Keough wrote on behalf of the court of appeals. “This is not the exceptional case.”

The appellate panel reviewed the trial testimony of Riha, Kingsbury’s sister and his mother, all of whom stated that Kingsbury robbed the bar.

“Furthermore, the video refutes Kingsbury’s assertion that he was a victim of the masked man instead of a perpetrator,” Keough wrote. “Kingsbury’s behavior on the video is not that of a victim; the video demonstrates that he did, in fact, voluntarily participate in the robbery.”

The court of appeals affirmed Kingsbury’s convictions but, when it came to the trial court’s order of $41,000 in restitution, it found merit to Kingsbury’s argument.

“The trial court’s order that Kingsbury pay $41,000 in restitution was based on Riha’s testimony that he suffered $56,000 in loss, less the $15,000 paid by his insurance company,” Keough wrote.

In reality, the trial testimony supported only $55,000 in total losses, which would result in a restitution order of $40,000. The court of appeals also held that the trial court did not determine whether Kingsbury would be able to pay the restitution.

“Because the record does not support the trial court’s $41,000 restitution order and there is nothing in the record indicating that the trial court gave any consideration to Kingsbury’s ability to pay before entering the order, we find that the court’s restitution order was plain error,” Keough wrote.

The appellate panel also determined that Kingsbury’s counsel was ineffective was failing to object to the order of restitution.

“As noted above, there is nothing in the record indicating that the trial court considered Kingsbury’s ability to pay before ordering restitution, thus, counsel should have objected to the order that Kingsbury — a drug addict who only worked sporadically over the last eight years and was now sentenced to three years in prison — pay $41,000 in restitution,” Keough wrote. “Counsel’s failure to object fell below an objective standard of reasonableness.”

The court of appeals reversed the order of restitution and the case was ultimately remanded for reconsideration of Kingsbury’s ability to pay.

Judges Eileen T. Gallagher and Patricia Ann Blackmon joined Keough to form the majority.

The case is cited State v. Kingsbury, 2016-Ohio-590.

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