State v. Ferguson , 122 N.E.3d 652 ( 2018 )

[Cite as State v. Ferguson, 2018-Ohio-4446.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27886
:
v. : Trial Court Case No. 2017-CR-2476
:
JOHN FERGUSON III : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 2nd day of November, 2018.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 S. Main Street, Suite 400,
Dayton, Ohio 45422
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} After the trial court denied his motion to dismiss, John Ferguson III pled no
contest to four counts of nonsupport of dependents, a felony of the fifth degree, and the
court sentenced him to community control. Ferguson appeals from his convictions,
claiming that the trial court erred in denying his motion to dismiss. He argues that State
v. Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, precludes his
prosecution under an indictment filed after his children were emancipated, even though
there was a current support order during the time periods listed in the individual counts of
the indictment. For the following reasons, the trial court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 2} In 2003, Ferguson and his wife divorced, and Ferguson’s wife was granted
custody of their three minor children: V.F. (born 1994), J.F. (born 1995), and M.F. (born
1997). Ferguson v. Ferguson, Montgomery C.P. No. 2002 DR 1528. Ferguson was
ordered to pay child support of $171 per month per child, plus additional amounts on his
child support arrearage, which had accrued during the divorce proceedings. Additional
arrearage accrued following the divorce.
{¶ 3} V.F. was emancipated on June 8, 2012; J.F. was emancipated on June 8,
2014; and M.F. was emancipated on June 8, 2015.1 Ferguson’s on-going child support
obligation for each child was terminated on the date of emancipation. In each
emancipation order, the domestic relations court also ordered Ferguson to pay a specific
1
Ferguson’s motion to dismiss, filed in the trial court, asserted that the children were
emancipated on their 18th birthdays. However, the emancipation dates ordered by the
domestic relations court appear to be based on the children’s both reaching 18 years of
age and no longer continuously attending full-time an accredited high school.
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amount per month on the support arrearage. As of June 8, 2015, when M.F. was
emancipated, Ferguson had no on-going child support obligation, but he was required by
M.F.’s emancipation order to pay $563 per month on his child support arrearage.
{¶ 4} On August 30, 2017, Ferguson was indicted on four counts of nonsupport of
dependents, in violation of R.C. 2919.21(B). The indictment alleged that Ferguson had
failed to support M.F. between July 1, 2011 and June 30, 2013 (Count 1) and between
July 1, 2013 and June 8, 2015 (Count 4), J.F. between July 1, 2011 and June 30, 2013
(Count 2), and V.F. between July 1, 2011 and June 8, 2012 (Count 3).
{¶ 5} Ferguson moved to dismiss the indictment, raising two arguments. First,
citing Pittman, Ferguson claimed that he was no longer subject to a support order and
that his criminal liability for nonpayment of support ended when his children were
emancipated. Second, Ferguson claimed that three of the four counts were barred by
the six-year statute of limitations. He argued that “for any charges for nonsupport to be
timely they would have to apply to time periods no earlier than August 31, 2011.”
{¶ 6} After an oral hearing on the motion, the trial court denied the motion to
dismiss. The court concluded that all of the charges were within the statute of limitations.
It explained that felony nonsupport of dependents constitutes a continuing course of
conduct, for which the statute of limitations does not begin to run until “such course of
conduct or the accused’s accountability for it terminates, whichever occurs first.” R.C.
2901.13(D). The court found that the statute of limitations for each count began on the
last date alleged (i.e., June 30, 2013 for Counts 1 and 2, June 8, 2012 for Count 3, and
June 8, 2015 for Count 4), all of which were within the six-year statute of limitations.
{¶ 7} The trial court further held that Pittman did not preclude the prosecution.
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The court noted that Pittman held that “a person is not subject to prosecution under R.C.
2919.21(B) for the nonpayment of a court’s order to pay a child-support arrearage when
the person has no current obligation of support because the child who is the subject of
the order is emancipated.” Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d
531, at ¶ 1. The trial court distinguished Pittman, stating: “The most important difference
between Defendant’s case from the case i[n] Pittman is the fact that the indicted time
periods are before the arrearage order was in place and are within the statute of
limitations. In Pittman, the indicted time periods were after the arrearage order was in
place, thereby only enforcing the arrearage order.” The trial court further noted that the
trial court does not lose jurisdiction in nonsupport matters merely because the child
becomes emancipated.
{¶ 8} After the trial court denied his motion to dismiss, Ferguson pled no contest
to all counts of felony nonsupport of dependents. On January 11, 2018, the trial court
imposed community control sanctions. One of the conditions of community control was
that Ferguson pay restitution of $11,523.16 to Ohio Child Support Payment Central.
II. Applicability of Pittman
{¶ 9} In his sole assignment of error, Ferguson claims that the trial court erred in
denying his motion to dismiss.
{¶ 10} “[A] motion to dismiss ‘tests the sufficiency of the indictment [or complaint],
without regard to the quantity or quality of evidence that may be produced by either the
state or the defendant.’ ” State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 18 (2d Dist.),
quoting State v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165 (2d Dist.1989). We
review de novo a trial court’s decision on a motion to dismiss. Fields at ¶ 19.
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{¶ 11} Ferguson was indicted on four counts of violating R.C. 2919.21(B), which
prohibits a person from “fail[ing] to provide support as established by a court order to[ ]
another person whom, by court order or decree, the person is legally obligated to support.”
Ferguson argues that, according to Pittman, his criminal liability for non-payment ceased
when his children were emancipated. Ferguson emphasizes that, at the time of the
indictment, he was not under a current obligation to pay child support. Instead, he was
subject to an order to pay arrearages due to his children’s emancipation. Ferguson
asserts that Pittman precludes prosecution after emancipation, even though the charges
were based on time periods prior to emancipation when he was subject to a child support
order.
{¶ 12} In Pittman, the defendant was ordered to pay child support until his children
were emancipated. The children were emancipated on August 31, 2006, and the
defendant’s support obligation terminated. The court reduced his support arrearage to
a judgment, and the defendant was ordered to continue paying toward the arrearage.
Three years later, the defendant was indicted under R.C. 2919.21(B) for failing to provide
support after his children had been emancipated (between July 1, 2007, and June 30,
2009). The defendant argued that he could not have violated R.C. 2919.21(B) then,
because he had no duty to provide support, as his children had been emancipated.
{¶ 13} The Ohio Supreme Court agreed with Pittman. It concluded that, because
the statute used the present tense in the phrase “is legally obligated to support,” a person
charged with a violation “must be under a current obligation to provide support.” Id. at
¶ 18. The court noted that Pittman was not under a court order to support his children
between 2007 and 2009, and the “2006 orders were not for support but instead granted
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judgments against Pittman for the arrearage amounts.” Id. at ¶ 19. The court stated that
“Pittman’s criminal liability for nonpayment of support ended on August 31, 2006, when
his children were emancipated.” Id. The supreme court held that “a person is not
subject to prosecution under R.C. 2919.21(B) for the nonpayment of a court’s order to
pay a child-support arrearage when the person has no current obligation of support
because the child who is the subject of the order is emancipated.” Pittman at ¶ 1.
{¶ 14} Justice Lanzinger concurred in the judgment, but wrote separately to
express that “prosecution under R.C. 2919.21 for the nonpayment of child support after
a child reaches 18 years old is not prohibited in every case.” Pittman at ¶ 24 (Lanzinger,
concurring in judgment only). She stated that, “[o]n this point, I respectfully disagree with
the court’s analysis.” Id. In her concurring opinion, joined by two other justices, she
agreed that the language of R.C. 2919.21(B) “limits prosecutions based on child-support
orders to those with current obligations rather than arrearages.” Id. at ¶ 26. She
disagreed, however, with the majority’s broad statement that Pittman’s criminal liability
for nonpayment of support had ended on August 31, 2006, when his children were
emancipated. Id. at ¶ 26. Justice Lanzinger pointed out that the defendant might have
been criminally liable under R.C. 2929.21(A). Id. at ¶ 27.
{¶ 15} Despite the broad language of the Pittman holding, we find it appropriate to
read the Supreme Court’s holding in light of the factual circumstances before it.
Significantly, the Pittman defendant was charged with failing to provide support after
emancipation; Ferguson was charged with failing to provide support before emancipation.
The difference in when the alleged criminal conduct occurred is critical. As Pittman
points out, R.C. 2919.21(B) uses the present-tense phrase “is legally obligated to
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support.” In other words, the prohibited conduct (“fail[ing] to provide support”) must
coincide with a current obligation to provide support. The Pittman defendant could not
be prosecuted for nonsupport under R.C. 2919.21(B) for failing to provide support after
emancipation (i.e., the time period alleged in the indictment), because his obligation to
provide support had terminated. In contrast, Ferguson was charged with nonsupport for
failing to provide support for a period of time before his children were emancipated.
Thus, his alleged failure to provide support coincides with his obligation to provide
support, and we conclude that Pittman does not preclude Ferguson’s prosecution.
{¶ 16} We recognize that the Eleventh District recently addressed the same issue
under factual circumstances similar to those here and came to a different conclusion.
State v. Hubbard, 2018-Ohio-3627, __ N.E.3d __ (11th Dist.). The majority in Hubbard
agreed with Ferguson’s argument, concluding that Pittman applies “to all cases involving
nonpayment of child support.” (Emphasis sic.) Hubbard at ¶ 14. The majority read
Pittman as saying that “a defendant cannot be charged with criminal nonsupport following
the emancipation of his children.” Id. at ¶ 16.
{¶ 17} The Hubbard court found support in Justice Lanzinger’s concurring opinion
for its conclusion that Pittman does not apply solely to “arrearage-only” cases. The court
expressed that the concurring opinion’s disagreement with Pittman’s conclusion that the
defendant’s criminal liability for support ended with emancipation shows that the
concurring justices believed that the Pittman decision was “intended to apply to all cases
involving nonpayment of child support.” (Emphasis sic.) Hubbard at ¶ 14. The Hubbard
court stated, “If the Pittman majority had intended for its holding to apply solely to
arrearage-only orders, it would have been entirely unnecessary and superfluous for the
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concurring justices to write a separate opinion disagreeing with the majority’s analysis
and asserting that the court’s holding should not apply ‘in every case.’ ” Id. at ¶ 15.
{¶ 18} While we recognize that Pittman could be read to preclude any prosecution
under R.C. 2919.21(B) following emancipation, we disagree that such a reading is
required. We note that the dissent in Hubbard agreed with our analysis, concluding that
Pittman did not apply, because unlike Pittman, the charges were not based on an
arrearage order but on a support order that existed during the time periods alleged in the
indictment. Hubbard at ¶ 28 (O'Toole, J., dissenting). Moreover, we find it illogical to
read Pittman to require all indictments under R.C. 2919.21(B) to be filed prior to
emancipation; such a reading might allow a parent to avoid a felony prosecution by
ceasing support for 26 weeks during the last two years preceding emancipation. See
R.C. 2919.21(G)(1) (nonsupport for 26 out of 104 weeks consecutive constitutes a fifth-
degree felony).
{¶ 19} In summary, the trial court did not err in denying Ferguson’s motion to
dismiss. Pittman does not preclude prosecution when there was a current support order
during the time periods listed in the individual counts of the indictment, even though the
indictment was filed after defendant’s children were emancipated. 2 Ferguson’s
assignment of error is overruled.
III. Conclusion
{¶ 20} The trial court’s judgment will be affirmed.
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2 We note that an amendment to R.C. 2919.21(B), effective February 11, 2019, makes
clear that a person may be prosecuted for nonsupport of dependents even after an order
for support terminates. See 2018 Am.Sub.S.B. No. 70.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck
Andrew T. French
Michael R. Pentecost
Hon. Dennis J. Adkins