ILNews

COA reverses order of restitution to county

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

ADVERTISEMENT