State v. Brown (Slip Opinion) , 2020 Ohio 4623 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Brown, Slip Opinion No. 2020-Ohio-4623.]
NOTICE
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-4623
THE STATE OF OHIO, APPELLEE, v. BROWN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Brown, Slip Opinion No. 2020-Ohio-4623.]
Criminal law—R.C. 2919.21(B)—Failure to provide support pursuant to a court’s
order—A defendant may be charged with nonpayment of support under
R.C. 2919.21(B) when conduct underlying charge occurred while a support
order was in effect, even if defendant’s child is emancipated at time charge
is brought, so long as statute of limitations has not run and statute’s other
elements are met—Trial court erred in dismissing the charges simply
because appellant’s child had been emancipated at time appellant was
charged—State v. Pittman distinguished—Court of appeals’ judgment
affirmed.
(No. 2019-0737—Submitted May 13, 2020—Decided September 30, 2020.)
CERTIFIED by the Court of Appeals for Greene County,
No. 2018-CA-29, 2019-Ohio-1666.
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SUPREME COURT OF OHIO
O’CONNOR, C.J.
Introduction
{¶ 1} This appeal concerns charges filed against appellant, Chalmer Brown,
for failure to pay court-ordered child support under R.C. 2919.21(B). The trial
court dismissed the charges based on our decision in State v. Pittman, 150 Ohio
St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, but the Second District Court of
Appeals reversed, holding that Pittman does not apply to the present case. We
agree with the Second District. We therefore affirm its judgment and answer the
certified-conflict question in the affirmative.
Relevant Background
{¶ 2} In August 2001, the Greene County Juvenile Court ordered Brown to
pay $87 a month in child support for K.M., his child. In December 2017, the Greene
County Child Support Enforcement Agency emancipated K.M. as of September 13,
2017, and the juvenile court ordered Brown to pay $117 a month in arrearages.
{¶ 3} In January 2018, appellee, the state of Ohio, charged Brown in Xenia
Municipal Court with two counts of nonsupport of dependents under
R.C. 2919.21(B). At that time, R.C. 2919.21(B) provided that “[n]o person shall
abandon, or fail 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.” 2015
Am.Sub.H.B. No. 64.1 According to the charging document, Count I was based on
nonpayment between July and December of 2016 and Count II was based on
nonpayment between January 2017 and the effective date of K.M.’s emancipation
in September 2017.
{¶ 4} Brown moved to dismiss, arguing that he could not be prosecuted for
violating R.C. 2919.21(B), because he was not subject to a legal order for support
1. R.C. 2919.21(B) was materially amended effective February 11, 2019. See 2018 Sub.S.B. No.
70. This case concerns only the version of the statute in effect between January 1, 2016, and
February 11, 2019.
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at the time he was charged. The trial court agreed and dismissed the charges based
on its reading of our decision in Pittman, 150 Ohio St. 3d 113, 2016-Ohio-8314, 79
N.E.3d 531. In Pittman, we affirmed the dismissal of charges under
R.C. 2919.21(B) against a defendant who had failed to make payments required by
an arrearages order. That conclusion was compelled, we held, by the present-tense
nature of the language in R.C. 2919.21(B): “[b]ecause the statute uses 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.” (Emphasis
added.) Pittman at ¶ 18, quoting former R.C. 2919.21(B), Am.Sub.H.B. No. 352,
147 Ohio Laws, Part II, 2606, 2659. The trial court in the present case relied on
the additional statement in Pittman that “Pittman’s criminal liability for
nonpayment of support ended on August 31, 2006, when his children were
emancipated,” id. at ¶ 19. Because K.M. was emancipated at the time charges
against Brown were brought, the trial court held that Pittman barred the charges.
{¶ 5} On appeal, the Second District reversed. It distinguished Pittman on
the ground that the charges against Pittman were based on nonpayment under an
arrearages order in effect after his children’s emancipation, whereas the charges
against Brown were based on nonpayment under the 2001 order of support that was
in effect before K.M.’s emancipation. The fact that K.M. was emancipated at the
time Brown was charged simply did not matter, because the charged conduct took
place at a time when the support order was in effect—between July and December
2016 for Count I and between January 2017 and September 13, 2017, for Count II.
The Second District therefore reversed the trial court’s dismissal of the charges
against Brown and remanded the case for further proceedings.
{¶ 6} The Second District certified the existence of a conflict between its
judgment in this case and the Eleventh District’s judgment in State v. Hubbard,
2018-Ohio-3627, 119 N.E.3d 798 (11th Dist.). In Hubbard, the Eleventh District
vacated the defendant’s convictions under R.C. 2919.21(B) based on its view that
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Pittman required the state to bring the charges before the defendant’s child was
emancipated. The Second District certified that its judgment conflicts with
Hubbard on the following question:
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?
2019-Ohio-1666, 135 N.E.3d 1151, ¶ 12. We recognized the conflict. 156 Ohio
St.3d 1491, 2019-Ohio-3263, 129 N.E.3d 475.
Analysis
{¶ 7} The interpretation of a statute is a question of law. State v. Straley,
139 Ohio St. 3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9. We therefore review
the Second District’s decision de novo. Id.
{¶ 8} Brown argues that the holding of Pittman prohibits the state from
bringing charges under R.C. 2919.21(B) once the obligor’s child has been
emancipated. He relies on our observation in Pittman that the statute uses the
present tense—proscribing nonpayment when an obligor “is legally obligated to
[provide] support”—as well as our statement in Pittman that “Pittman’s criminal
liability for nonpayment of support ended on August 31, 2006, when his children
were emancipated,” 150 Ohio St. 3d 113, 2016-Ohio-8314, 79 N.E.3d 531, at ¶ 19.
Brown argues that when viewed together, Pittman and the statutory language
establish that charges under R.C. 2919.21(B) must be filed while a support order is
still in effect. He also points out that emancipation of an obligor’s child does not
mean that the obligor cannot be charged for wrongful conduct under another
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January Term, 2020
statute—for example, R.C. 2919.21(A)(2) (providing at the time Brown was
charged that “[n]o person shall abandon, or fail to provide adequate support to
* * * [t]he person’s child who is under age eighteen, or [the person’s] mentally or
physically handicapped child who is under age twenty-one,” 2015 Am.Sub.H.B.
No. 64). For these reasons, Brown argues, the Hubbard court correctly applied
Pittman to bar charges brought after the defendant’s child has been emancipated.
{¶ 9} The state responds by focusing on the language of the statute, which
sets out the elements of the offense. Relevant here, former R.C. 2919.21(B)
prohibited a person’s failure to provide support to “another person whom, by court
order or decree, the person is legally obligated to support.” 2015 Am.Sub.H.B. No.
64. The element contained in the present-tense phrase “is legally obligated to
support” is met, the state argues, when the nonpayment occurs at a time when a
support order was in effect. The state contends that whether the obligor’s child has
been emancipated at the time charges are brought is irrelevant under the language
of R.C. 2919.21(B). Accordingly, the state argues that the Second District correctly
reversed the trial court’s dismissal of the charges against Brown because the
charges were based on conduct that took place while Brown’s support order was in
effect. And Pittman does not change that conclusion, the state contends, because
the conduct underlying the charges in Pittman occurred at a time when only an
arrearages order was in effect.
{¶ 10} We agree with the state. As the state correctly notes, “[a]n offense
is committed when every element of the offense occurs,” R.C. 2901.13(E). A plain
reading of the version of R.C. 2919.21(B) that was in effect at the times relevant to
this case shows that the offense is committed when a person fails to make a payment
required by a support order then in effect. That is the meaning of the statute’s use
of the present tense in the phrase “is legally obligated to support.” If the support
order is subsequently rescinded due to the child’s emancipation, the state may still
charge the person under R.C. 2919.21(B) for the person’s failure to make payments
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required by the support order when it was in effect as long as the statute of
limitations has not passed.
{¶ 11} When former R.C. 2919.21(B) is applied to this case, it is clear that
the trial court erred by dismissing the charges simply because K.M. had been
emancipated at the time Brown was charged. The support order was in effect
between 2001 and September 13, 2017, the date of K.M.’s emancipation. Both
counts against Brown were based on nonpayment before September 13, 2017.
Brown does not argue that the statute of limitations has run on either count. As a
result, the charging documents sufficiently allege that the nonpayment relates to
another person the obligor “is legally obligated to support” as required by
R.C. 2919.21(B).
{¶ 12} Moreover, the present case is distinguishable from Pittman. In
Pittman, the defendant was subject to a support order starting in 1989. 150 Ohio
St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, at ¶ 2. His children were emancipated
on August 31, 2006, and the support order was terminated as of that date. Id. at ¶ 3.
The defendant was further required to pay arrearages pursuant to an order entered
in November 2006. Id. When he failed to make arrearage payments required by
that order, he was charged with nonpayment of support under R.C. 2919.21(B). Id.
at ¶ 5.
{¶ 13} This court considered the validity of two charges against Pittman
based on nonpayment between July 1, 2007, and June 30, 2009—after the
emancipation of his children. We stated that the use of the present tense in the
phrase “is legally obligated to support” in former R.C. 2919.21(B) meant that “a
person charged with a violation must be under a current obligation to provide
support.” Id. at ¶ 18. We therefore determined that the charges were unlawful
because they were based on conduct that took place at a time when the defendant
was not subject to a support order: “The 2006 orders were not for support but
instead granted judgments against Pittman for the arrearage amounts.” Id. at ¶ 19.
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That is materially different from the present case, in which the charges are for
conduct committed when Brown was subject to a support order.
{¶ 14} We also reject Brown’s argument that Pittman compels a different
conclusion based on our statement that “Pittman’s criminal liability for nonpayment
of support ended on August 31, 2006, when his children were emancipated,” id.
This statement is best understood as indicating that insofar as Pittman failed to
make a payment under the arrearages order entered after his children were
emancipated, he could not be charged under R.C. 2919.21(B), because the
arrearages order was not a current support order issued prior to emancipation for
purposes of the statute.
{¶ 15} Based on the language of the statute, we hold that a defendant may
be charged with nonpayment of support under R.C. 2919.21(B) when the conduct
underlying the charge occurred while a support order was in effect, even if the child
of the defendant is emancipated at the time the charge is brought, so long as the
statute of limitations has not run and the other elements of the statute are met.
Conclusion
{¶ 16} For these reasons, we answer the certified-conflict question in the
affirmative, and we affirm the judgment of the Second District Court of Appeals.
Judgment affirmed.
KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ.,
concur.
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Stephen K. Haller, Greene County Prosecuting Attorney, and Christopher
A. Murray, Assistant Prosecuting Attorney, for appellee.
Adam James Stout, for appellant.
Ron O’Brien, Franklin County Prosecuting Attorney, and Michael P.
Walton, Assistant Prosecuting Attorney, urging affirmance for amicus curiae,
Franklin County Prosecutor Ron O’Brien.
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