COA reverses order of restitution to county

A nurse practicing in Indiana without a license had her convictions of forgery and practicing nursing without a license upheld April 22, but the Indiana Court of Appeals reversed the trial court order that she pay restitution to the county where she worked.

In Rebecca D. Lohmiller v. State of Indiana, No. 08A02-0710-CR-873, Lohmiller appealed her convictions and sentence for six counts of forgery and 21 counts of practicing nursing without a license. The court sentenced her to four years imprisonment with two years served on home detention and two years suspended to probation. She also was ordered to pay Carroll County $25,000 in restitution as a condition of probation.

Lohmiller moved to Indiana from Georgia with her husband in 1985. She was licensed to practice as a nurse in Georgia, but when she moved, she did not acquire an Indiana nursing license. Lohmiller claimed she was in the federal Witness Protection Program for a short stint before moving to Indiana and that she didn’t apply for an Indiana license because she didn’t want to draw attention to the fact that she had relocated. She said she dropped out of the program because it wouldn’t provide protection to her future husband. Lohmiller began working in 1999 at the Carroll County Health Department and her job required her to have a valid Indiana nursing license. For four years, Lohmiller made excuses as to why she couldn’t produce the document. During those years, Lohmiller signed her name as “Rebecca Lohmiller, RN, MSN” at least 27 times on documents such as tobacco settlement subcontracts and immunization records.

In August 2005, the state charged Lohmiller with forgery and practicing nursing without a license. Before she testified at trial, she made an offer to prove that she was in the Witness Protection Program.

The trial court ruled that Lohmiller could testify that she had been in the Witness Protection Program and, out of fear, had chosen not to get an Indiana nursing license, but she could not give the specific details of why she was in the program because they were irrelevant to her current case.

After retiring to deliberate, the jury sent two questions – one asking for a dictionary, and the other asking for a definition of “material fact” as it was used in two of the jury instructions. The trial court denied the jury’s requests and the jury found Lohmiller guilty.

The trial court later denied her motion to vacate her convictions because of double jeopardy violations and sentenced her.

Lohmiller raised several issues on appeal including that the evidence presented was insufficient to sustain her forgery convictions, the trial court erred by denying the jury’s request for a dictionary and by not answering its questions regarding jury instructions, and that the trial court committed fundamental error by ordering her to pay restitution to the county.

The appellate court unanimously upheld Lohmiller’s convictions. Chief Judge John Baker also wrote the trial court didn’t err when it allowed Lohmiller to only testify that she had been in the Witness Protection Program without giving details as to why she entered the program. Because the excluded part of her proffered testimony was irrelevant, the trial court didn’t violate her right to testify.

In regards to Lohmiller’s argument that the jury instructions contained a legal gap the court should have addressed in response to the jury’s request for a definition of “material fact,” the evidence she submitted to support this argument only included the text of jury instructions 19 and 20 – the two in question – and no other instructions.

Chief Judge Baker wrote that this stalled the court’s effort to determine whether a legal gap existed, so the appellate court affirmed the trial court’s decision to not further instruct the jury regarding the definition. The trial court also didn’t err in denying the jury a dictionary because she cannot show she was prejudiced by the court’s decision.

Finally, the Court of Appeals overturned the trial court order that Lohmiller pay restitution to Carroll County as a condition of her probation. Even though Lohmiller didn’t object to the restitution order at the sentencing hearing, the trial court’s order constitutes fundamental error. The state did not assert the county was a victim during the sentencing hearing nor did it offer any evidence to prove Lohmiller should be required to pay the $25,000 as a condition of her probation, or any evidence regarding the county’s actual damages.

The appellate court reversed the trial court order of restitution to Carroll County and remanded with instructions that the trial court hold a hearing to determine the actual damages, if any, the county suffered as a result of Lohmiller’s crimes.