An appeals court on Friday threw out the most serious felony conviction and reduced the severity of two other counts against former Dayton restaurant owner Eva Christian, who has already served two years of a nine-year prison sentence after her conviction on five insurance-fraud-related felonies.
The Montgomery County Prosecutor’s Office called the decision to overturn the most serious felony conviction “very disappointing” and said it would appeal to the Ohio Supreme Court.
The Ohio 2nd District Court of Appeals ruled 2-1 that there was “insufficient evidence from which the jury could have concluded that the defendant engaged in a pattern of corrupt activity,” which was the basis of the most serious first-degree felony charge Christian faced. “Accordingly, that conviction will be reversed.” One other felony count was reduced to a misdemeanor by the court’s ruling, while another count was reduced to a less-serious felony.
Christian, who owned and operated Boulevard Haus (formerly Cafe Boulevard) in Dayton’s Oregon District for 15 years, remains convicted of three felonies and one misdemeanor related to insurance fraud and filing false alarms. She may still face the possibility of forced deportation upon her release from prison.
Christian was born in Croatia and raised in Germany, and has German citizenship, although she was considered a “permanent resident” of the U.S. after marrying a U.S. citizen.
The appeals court returned the case to Montgomery County Common Pleas Judge Barbara P. Gorman for re-sentencing under the reduced charges. Brock Schoenlein, Christian’s attorney for the appeal, estimated that Christian’s new sentencing ceiling will be effectively cut in half to about four and a half years.
The case revolved around break-ins and a fire during 2009 that Christian reported and which prosecutors said were staged in order to collect insurance money: one break-in at her Washington Twp. home and a reported vandalism and fire at her now-defunct Cena Brazilian Steakhouse in Miami Twp. near the Dayton Mall.
Testimony by prosecution witnesses during the trial suggested that Christian conspired with two accomplices in the break-in and in the restaurant vandalism. But whether that conspiracy made Christian guilty of a first-degree felony criminal charge of “engaging in a pattern of corrupt activity” — often used to prosecute organized-crime cases — was the issue that appeals judges focused most heavily on during the appeal’s oral arguments on March 4.
Schoenlein said Friday that Ohio’s corrupt-activity statute “is used for combating organized crime” and Christian’s actions did not warrent such a serious charge.
Montgomery County Prosecutor Mat Heck Jr. said in a news release that, “The police discovered, and we argued at trial, and both the jury and trial court found, that the defendant’s actions and her association with others were part of a criminal enterprise.”
While promising an appeal on that portion of the decision, Heck also said he was “pleased to see the defendant’s convictions on most of the charges have been affirmed, and she will remain in the penitentiary … .”
In arguing for the reduction of two of the charges, Schoenlein cited an Ohio Supreme Court decision in arguing that Judge Gorman imposed a sentence that was too harsh. The judge failed to take into consideration changes in Ohio sentencing laws that occurred after the crimes were committed but before Christian was convicted and sentenced, Schoenlein said. On this point, the three appeals judges unanimously agreed.
During her sentencing hearing in 2012, Christian — who testified at her trial and denied wrongdoing — remained defiant about the jury’s decision to convict her, saying she “cannot confess to a crime I have not committed.” Judge Gorman denied Christian’s request to avoid prison, calling Christian “a dangerous person” and telling the former restaurant owner, “I don’t think you have a conscience.”