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Date: 07-08-2019
Case Style:
STATE OF OHIO v. BRYANT D. WINSLOW
Case Number: 28178
Judge: Mary Donovan
Court: COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Plaintiff's Attorney: ANDREW T. FRENCH
Defendant's Attorney: SUSAN F. SOUTHER
Description:
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Winslow appeals from the trial court’s October 5, 2018 judgment entry of
conviction, following his no contest plea, on one count of non-support of dependents, in
violation of R.C. 2919.12, a felony of the fifth degree. Winslow was sentenced to
community control sanctions for a period not to exceed five years and was ordered to pay
restitution in the amount of $5,300.64. We hereby affirm the judgment of the trial court.
{¶ 2} Winslow was indicted on August 30, 2017. He filed a motion to dismiss the
indictment on June 11, 2018, asserting that he was not subject to prosecution under R.C.
2919.21(B) for the nonpayment of a court’s order to pay a child-support arrearage,
because he had no current obligation of support insofar as the child who was the subject
of the order was emancipated. Specifically, according to Winslow, the period during
which he was alleged not to have provided support to the child, D.K., was between June
1, 2012, and May 31, 2014, and the child was emancipated as of June 8, 2014. Winslow
acknowledged that he “still owe[d] support money as an arrearage after the
emancipation,” and that the juvenile court had ordered him “to continue to make monthly
payments of $265.03 plus processing fees until the arrearage is paid in full.” Winslow
pointed out that he “was not indicted for nonpayment on the arrearages until three years
after the child had been emancipated,” and that the indictment charged him “with
nonsupport for dates that was ordered arrearage [sic] after June 8, 2014.” Winslow
argued that he “owed no current support after June 8, 2014” (the emancipation), and “any
support owed before that date became an arrearage, which [he] is to pay off pursuant to
the juvenile court order dated April 10, 2014.” Citing State v. Pittman, 150 Ohio St.3d
113, 2016-Ohio-8314, 79 N.E.3d 531, Winslow argued that he could not be prosecuted
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under R.C. 2919.21(B) for failure to make payments on a child support arrearage if the
child for whom he owed support had been emancipated and there was no current
obligation to support the child.
{¶ 3} The State opposed Winslow’s motion to dismiss, arguing that “Pittman dealt
solely with the question of ‘whether, pursuant to R.C. 2919.21(B), the state may prosecute
a person who failed to make the payments set forth in an arrearage-only order issued
after the date of his children’s emancipation.” (Emphasis sic.) The State distinguished
Pittman, pointing out that “Pittman’s children were emancipated on August 31, 2006, after
which he was not legally obligated to pay support,” but the charges against him applied
to his “non-payment of an arrearage-only order between July 1, 2007, through June 30,
2009; a time during which Pittman did not have a current child support obligation due to
the previous emancipation of his children.”
{¶ 4} The State argued that, although the emancipation of a child may terminate
a support order, it does not absolve the obligor-defendant of his prior failure to make
support payments while the support order was still in effect. The State asserted that
Winslow had been charged “with non-support based on the current court order during the
time alleged in the indictment – not on an arrearage-only order.” Because the time frame
specified in the indictment was prior to the child’s emancipation and dealt directly “with a
period of time when Defendant was required, pursuant to a non-arrearage court order, to
support his non-emancipated child,” the State asserted that Pittman did not apply to the
facts of Winslow’s case.
{¶ 5} The trial court held a hearing on the motion to dismiss on August 3, 2018,
and took the matter under advisement. On September 4, 2018, the court held a hearing
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“for the reading of the oral decision of the motion to dismiss.” The court announced its
decision as follows:
This matter is similar to that in Pittman in that the child for whom the
support order is for the benefit of, specifically DK, is emancipated and was
emancipated on June 8th of 2014 by order of the Montgomery County
Juvenile Court which was submitted as State’s Exhibit 2. It is further similar
to Pittman in that Mr. Winslow was indicted after the child’s emancipation
on August 30th of 2017[sic], though that is where the similarities end.
Mr. Winslow’s indictment for his alleged failure to pay support for his
child, DK, between the dates of June 1, 2012, and May 31 of 2014 - - that
time period is clearly before the emancipation of June 8th, 2014. While Mr.
Winslow has an arrearage built up for the indicted period * * * that does not
weigh upon this dismissal as he is not being charged with failure to pay that
arrearage.
The Court cannot read the statute in light of Pittman to eviscerate the
six-year statute of limitations and impose a statute limitation of the day of
emancipation. To do so would * * * only reward and exacerbate the
behavior of failing to provide supports [sic] but also to ignore and violate
court orders. Based upon the evidence presented to the Court, the Court
finds that during the indicted periods defendant was under a current
obligation to support his child as alleged. However, that finding is only
bearing upon this dismissal and not upon proof of the ultimate issue at trial.
The defendant’s motion for dismissal is therefore denied.
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{¶ 6} After the court’s oral decision on the motion to dismiss, Winslow entered a
no contest plea. (The court’s written decision on the motion to dismiss was filed on
September 19, 2018.) Sentencing occurred on October 2, 2018, and the judgment entry
was filed on October 5, 2018.
{¶ 7} Winslow asserts one assignment of error on appeal, as follows:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
MOTION TO DISMISS THE INDICTMENT.
{¶ 8} Winslow asserts that, according to Pittman, 150 Ohio St.3d 113, 2016-Ohio
8314, 79 N.E.3d 531, at ¶ 18, the “legislature’s inclusion of the present tense phrase ‘is
legally obligated to support’ ” in R.C. 2919.21(B) was determined “to mandate ‘that a
person charged with a violation must be under a current obligation to provide support’
when the indictment is handed down.” Therefore, Winslow asserts that that “an
individual is not subject to prosecution for failure to pay an arrearage following
emancipation,” and that his criminal liability for nonpayment of support ended when his
child was emancipated. He contends that “the State is left open to its civil options to
collect arrearages.” Winslow directs our attention to State v. Hubbard, 2018-Ohio-3627,
119 N.E.3d 798 (11th Dist.), in support of his interpretation.
{¶ 9} Winslow recognizes that, after his notice of appeal was filed, this Court
issued two opinions declining to apply the holding of Pittman to preclude prosecution
under R.C. 2919.21(B), where current support orders existed during the periods listed in
the counts of the indictment, even though the indictment was filed after the dependents
were emancipated and the defendant’s support obligation was terminated. See State v.
Miles, 2d Dist. Montgomery No. 27885, 2018-Ohio-4444, and State v. Ferguson, 2d Dist.
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Montgomery No. 27886, 2018-Ohio-4446. Winslow points out that our holdings, which
he views to be in error, are in conflict with the holding in Hubbard, and he states his desire
to “preserve this singular issue for possible review by the Ohio Supreme Court.” He also
asserts that, pursuant to R.C. 2901.04(A), “sections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally construed
in favor of the accused,” and that the court must presume that the legislature meant what
it said. He further asserts that the court “cannot amend statutes to provide for what it
believes to be the logical result,” citing State v. Hess, 2d Dist. Montgomery No. 25144,
2013-Ohio-10, ¶ 17.
{¶ 10} In a footnote, Winslow also acknowledges that he “is aware of the
amendment to R.C. 2919.21(B), effective February 11, 2019, clarifying that a person may
be prosecuted for nonsupport of dependents even after an order for support terminates,
2018 Am.Sub.S.B. No. 70,” but he contends “that the amended statute is not relevant to
interpreting the current statute as written” and that the “applicable, binding law available
in Pittman states that a person cannot be criminally charged under this section for
nonsupport when payment is owed on an arrearage with no current obligation to an
emancipated child.”
{¶ 11} In response, the State argues that Pittman has no application to Winslow’s
prosecution, because “Winslow was not charged with failing to make child-support
payments toward an ‘arrearage only’ order,” and that his arguments should be rejected
for the reasons articulated in Miles and Ferguson. The State reiterates that Winslow was
obligated to pay support for D.K. in the amount of $220.86 per month, effective August 7,
2008, and that Winslow “violated the order by failing to make payments from June 1,
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2012, through May 31, 2014 – a period that predates D.K.’s emancipation.” The State
further argues that Winslow “has misread Pittman’s holding and misapplied its application
under the facts of his case,” where there is no dispute that he was under a support
obligation during the time frames alleged in the indictment and he was charged with failing
to pay support before D.K. was emancipated. The State argues that Pittman is
distinguishable for the reasons set forth in Miles and Ferguson.
{¶ 12} We note that this Court very recently considered the issue herein in State
v. Brown, 2d Dist. Greene No. 2018-CA-29, 2019-Ohio-1666, wherein this Court noted as
follows:
Defendant, Chalmer L. Brown, was charged with two first-degree
misdemeanor counts of failure to pay court-ordered child support for his
child, K.M., in violation of R.C. 2919.21(B). K.M., though emancipated
when the criminal complaint was filed, was not emancipated during the time
period covered by each count. The trial court sustained Brown’s motion to
dismiss, based upon State v. Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314,
79 N.E.3d 531. After the trial court’s dismissal, this court decided State v.
Ferguson, 2018-Ohio 4446 __N.E.3d __ (2d Dist.), and State v. Miles, 2018
Ohio-4444, __N.E.3d __ (2d Dist.), wherein we held that State v. Pittman
does not control when, as here, the child was emancipated when the
charges were initiated, but the timeframe of the alleged non-support set
forth in the charging document was before the child’s emancipation.
Id. at ¶ 1. This Court reversed the judgment of the trial court and remanded the matter for
further proceedings. Id.
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{¶ 13} As set forth in Brown, the standard of review for a motion to dismiss is as
follows:
A Crim.R. 12(C) motion to dismiss is a mechanism to test the legal
sufficiency of the complaint or indictment. If the allegations set forth in the
charging document constitute the criminal offense charged, the motion to
dismiss must be overruled. State v. Patterson, 63 Ohio App.3d 91, 95, 577
N.E.2d 1165 (2d Dist. 1989). We review a trial court’s motion to dismiss de
novo. State v. Cassel, 2016-Ohio-3479, 66 N.E.3d, ¶ 19 (2d Dist.).
Id. at ¶ 3.
{¶ 14} In Brown, this Court conducted the following analysis:
This case turns on the applicability of Pittman, 150 Ohio St.3d 113,
2016-Ohio-8314, 79 N.E.3d 531, to the facts of this case. Pittman’s
children were emancipated in August 2006 with the emancipation resulting
in, quite naturally, the termination of Pittman’s child support obligation.
Pittman had a child support arrearage which was reduced to a judgment,
and Pittman was ordered to pay a monthly amount toward the arrearage
until it was eliminated. Three years later, after Pittman failed to pay the
arrearage as ordered, he was indicted for a felony violation of R.C.
2919.21(B).
Pittman asserted that, since the children were emancipated, his
failure to pay the arrearage, though court-ordered, could not constitute a
violation of R.C. 2919.21(B). The Supreme Court agreed stating that
“because [R.C. 2919.21(B)] uses the present tense in the phrase ‘is legally
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obligated to support,’ a person charged with a violation must be under a
current obligation to provide support.” Pittman at ¶ 18. The court,
therefore, ruled that Pittman, based upon the children’s emancipation, “had
no current legal obligation to support his * * * children[,]” and as such, he
“was not subject to prosecution under R.C. 2919.21(B) for his failure to
make payments on the child support arrearage * * *.” Id. at ¶ 23. The
Pittman opinion, using very broad language, does state that “Pittman’s
criminal liability for nonpayment of support ended * * * when the children
were emancipated.” Id. at ¶ 19. This statement, however, is not the
holding of the case; the holding, as noted, is confined to the conclusion that
a person, after his children are emancipated, has no current child support
obligation, and therefore prosecution for a failure to pay a court-ordered
arrearage is statutorily prohibited.”
Justice Lanzinger concurred in judgment only in Pittman, and she
wrote a concurring opinion joined by two other justices. The concurring
opinion states that she “can accept that [R.C. 2919.21(B)] limits
prosecutions based on child support orders with current obligations rather
than arrearages. But I disagree with the statement that ‘Pittman’s criminal
liability for nonpayment of support * * * ended when his children were
emancipated.’ ” Pittman [at] ¶ 26 (Lanzinger, J., concurring), quoting the
majority opinion at ¶ 19.
Id. at ¶ 4-6.
{¶ 15} Brown noted that Ferguson and Miles decided the applicability of Pittman.
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It noted that the “charging document in each case (an indictment) was filed after the
defendant’s child support obligation had terminated due to emancipation.” Id. at ¶ 7. It
further noted that “in each case, the nonsupport timeframe set forth in the indictment was
before emancipation, and, thus, covered a period when the defendant had been obligated
to pay court-ordered child support. We concluded that these facts allowed Pittman to be
distinguished.” Id.
{¶ 16} This Court also recognized in each of our opinions that the Eleventh
District, in Hubbard, 2018-Ohio-3627, 119 N.E.3d 798, reached a contrary conclusion.
Brown at ¶ 8; Miles at ¶ 15; Ferguson at ¶ 19. “Hubbard was indicted under R.C.
2919.21(A)(2) and (B), but, otherwise, the essential facts of the case are the same as in
Ferguson, Miles, and [Brown].” Brown at ¶ 8. This Court noted that the “Hubbard majority
concluded that a fair, accurate reading of Pittman requires the ‘conclusion that a
defendant cannot be charged with criminal nonsupport following the emancipation of his
children * * *.’ ” Id., citing Hubbard at ¶ 16.
{¶ 17} In Miles, we responded to the holding in Hubbard as follows:
While we recognize that Pittman could be read to preclude any
prosecution under R.C. 2919.21(B) following emancipation, we do not think
that reading is required or desired. We note that the dissenting judge in
Hubbard agreed with our analysis, concluding that Pittman did not apply in
that case, because unlike Pittman, the charges were not based on an
arrearage order but on a support order in effect during the time periods
alleged in the indictment.
Miles at ¶ 15, citing Hubbard at ¶ 28 (O’Toole, J., dissenting); see also Brown at ¶ 9.
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{¶ 18} In conclusion, we stated in Brown:
We continue to adhere to our conclusion, as expressed in Ferguson
and Miles, that State v. Pittman “does not preclude prosecution [under R.C.
2919.219(B)] when a current support order existed during the time periods
listed in the individual counts of the indictment [or complaint], even though
[the charging instrument] was filed after the dependents were emancipated
and the defendant’s obligation was terminated.” Miles at ¶ 16; Ferguson
at ¶ 19.
Brown at ¶ 10.
{¶ 19} At the hearing on Winslow’s motion to dismiss, the parties stipulated to:
State’s Exhibit 4, the administrative order from the Montgomery County Child Support
Enforcement Agency filed in the juvenile court on November 13, 2008; State’s Exhibit 1,
the juvenile court’s adoption of that administrative order imputing the child support order
to Winslow; State’s Exhibit 2, the emancipation order for the child, which provided that
D.K. reached the age of majority on June 8, 2014; and State’s Exhibit 3, Winslow’s August
30, 2017 indictment. Winslow’s indictment stated: “BRYANT WINSLOW, BETWEEN
THE DATES OF JUNE 1, 2012 THROUGH MAY 31, 2014 * * * did recklessly abandon
or fail to provide support as established by a court order to, another person, D.K.”
{¶ 20} The indictment herein was clearly filed after Winslow’s child support
obligation was terminated due to D.K.’s emancipation, but the time frame of nonsupport
alleged in the indictment was June 1, 2012 through May 31, 2014, before D.K. was
emancipated. In other words, the indictment covered a period when Winslow was
obligated to pay court-ordered child support. Consistent with Brown, Miles, and
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Ferguson, Winslow’s motion to dismiss was properly overruled.
{¶ 21} Winslow’s assignment of error is overruled. The judgment of the trial court
is affirmed.
{¶ 22} Because we recognize that our judgment is in conflict with Hubbard, 2018
Ohio-3627, 119 N.E.3d 798 (11th Dist.), we sua sponte certify a conflict to the Supreme
Court of Ohio pursuant to Article IV, Section 3(B)(4), Ohio Constitution. The certified
question is:
May a child support obligor be prosecuted for failure to pay child
support under R.C. 2919.21(B) where a child support order was in place for
the time period specified in the charging document, but the charging
document was filed after the child for whom support was owed had been
emancipated and the child support obligation had terminated?
Outcome: We note that our sua sponte decision to certify a conflict does not relieve
the parties of the obligation to follow all Supreme Court procedural rules governing the
filing of an appeal of right. We also direct the parties to S.Ct.Prac.R. 8.01, which requires
“an interested party to the proceeding” to file a notice of the certified conflict in the
Supreme Court.
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