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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT