[Cite as State v. Dawson,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24558

v. : T.C. NO. 09CR1755

JEREMY J. DAWSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

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OPINION

Rendered on the 17th day of February , 2012.

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JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CHRISTOPHER A. DEAL, Atty. Reg. No. 0078510, 131 N. Ludlow Street, Suite 630, Dayton, Ohio 45402 Attorney for Defendant-Appellant

..........

FROELICH, J.

{¶ 1} Jeremy J. Dawson appeals from his conviction on two counts of

felony non-support of dependents, in violation of R.C. 2919.21(B). For the following

reasons, his conviction will be affirmed. 2

{¶ 2} In August 2010, Dawson was indicted on two counts of felony

non-support of dependents. The first count alleged that Dawson had failed to comply with a

court order to support his daughter, K.D., for the period from April 1, 2005 to March 31,

2007. The second count alleged that he failed to pay ordered child support for the period of

April 1, 2007 to March 31, 2009.

{¶ 3} The case was tried to a jury. At the conclusion of the State’s case,

Dawson moved under Civ.R. 29(A) for a judgment of acquittal on Count II. The court

denied the motion. Dawson then offered several witnesses on his behalf and raised the

affirmative defense that he had provided the support that was within his ability and means.

After deliberations, the jury found Dawson guilty of both counts. The trial court sentenced

him to community control.

{¶ 4} Dawson appeals from his convictions, raising two assignments of

error.

I.

{¶ 5} Dawson’s first assignment of error states:

THE TRIAL COURT ERRED IN DENYING APPELLANT’S RULE 29

MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE’S CASE.

{¶ 6} When reviewing the denial of a Crim.R. 29(A) motion, an appellate

court applies the same standard as is used to review a sufficiency of the evidence claim.

State v. Thaler, 2d Dist. Montgomery No. 22578,

. “A sufficiency of

the evidence argument disputes whether the State has presented adequate evidence on each

element of the offense to allow the case to go to the jury or sustain the verdict as a matter of 3

law.” State v. Wilson, 2d Dist. Montgomery No. 22581,

, citing State

v. Thompkins,

,

(1997). When reviewing whether

the State has presented sufficient evidence to support a conviction, the relevant inquiry is

whether any rational finder of fact, after viewing the evidence in a light most favorable to the

State, could have found the essential elements of the crime proven beyond a reasonable

doubt. State v. Dennis,

,

(1997), citing Jackson v.

Virginia,

,

, 61 L.Ed.2d. 560 (1979). A guilty verdict will

not be disturbed on appeal unless “reasonable minds could not reach the conclusion reached

by the trier-of-fact.”

{¶ 7} R.C. 2919.21(B) provides: “No 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.” The offense is a fifth degree felony when

the offender has failed to provide support for a total accumulated period of 26 weeks

(consecutive or non-consecutive) out of 104 consecutive weeks.

{¶ 8} According to the State’s evidence, in March 2003, the Montgomery

County Child Support Enforcement Agency (“CSEA”) issued an administrative order

requiring Dawson to pay $271.83 per month as child support for his daughter; over a

two-year or 104-week period, this amounted to $6,523.92. In March 2005, that order was

adopted by the Montgomery County Juvenile Court. The juvenile court’s judgment noted

that Dawson was presently unemployed, and he was ordered to seek work.

{¶ 9} From April 1, 2005 to March 31, 2007 (the period addressed by Count

I), Dawson paid a total of $1,369.42 in child support. According to Bonnie Henderson of 4

CSEA, this total constituted 22 weeks of payments, leaving 82 weeks unpaid for that

104-week period. Dawson’s accrued arrearage during those 104 weeks was $5,154.50.

{¶ 10} Henderson further testified that for the period of April 1, 2007 to

March 31, 2009 (the period addressed by Count II), Dawson made monthly payments of

$307.14 in April through June and August through November 2007. Dawson paid $454.15

in July and December 2007. In January and February 2008, he paid $307.18. CSEA did

not receive any additional “voluntary” payments from Dawson in 2008 or the beginning of

2009. In March 2009, CSEA received $140.91. These payments totaled $3,813.53.

{¶ 11} In May 2008, CSEA intercepted an income tax refund in the amount

of $4,692, and in August 2008, CSEA intercepted another income tax distribution of $600.1

CSEA applied these funds to Dawson’s child support arrearage for prior periods of time. At

trial, the State did not include these “involuntary” payments in its calculations of Dawson’s

compliance with his support obligation. According to Henderson, Dawson’s payments of

$3,813.53 constituted 61 weeks of payments, leaving 43 weeks unpaid for the period of

April 2007 to March 2009.

{¶ 12} CSEA’s account detail report, which was admitted as State’s Exhibit

4, indicated that CSEA received a total of $9,105.53 in support payments (including the tax

seizures) during the 104-week period ending March 31, 2009, resulting in an overpayment

1 At trial, counsel assumed that one interception was Dawson’s federal income tax refund and the other was his state income tax refund. It is possible that the $600 income tax seizure was Dawson’s economic stimulus payment under the federal Economic Stimulus Act of 2008; those payments were subject to seizure for overdue child support obligations. The parties stipulated that “the sum of $5,292 was received as a result of an income tax seizure,” but there was no testimony identifying the sources – federal or state – of the funds. 5

of $2,581.61 when compared with Dawson’s support obligation for that two-year period.

The report further specified, however, that $3,131.04 was applied to Dawson’s monthly

support obligation while $5,974.49 – consisting of the income tax seizures and portions of

Dawson’s payments – was applied to his arrearage. An additional $13.06 was also received

and applied to fees.

{¶ 13} Dawson claims that the State did not present sufficient evidence that

he failed to pay court-ordered child support for 26 weeks out of the 104 weeks ending March

31, 2009. He asserts that the $5,292 in income tax seizures should have counted toward the

amount of child support payments that he paid during that period. He further asserts that

the overpayment for that period should have been applied to the 104-week period ending

March 31, 2007.

{¶ 14} According to the State’s evidence, the administrative child support

order, entered in March 2003, required Dawson to pay $271.83 per month for current

support, plus a two percent processing charge. All child support was to be withheld or

deducted from Dawson’s income or assets through a withholding or deduction notice. (At

the time, Dawson was employed by Simco Refrigeration, Inc.) As stated above, the trial

court adopted the administrative order in 2005.

{¶ 15} R.C. 2919.21(B) prohibits an obligor from failing “to provide support

as established by a court order.” In Dawson’s case, the court order establishes a monthly

support obligation of $271.83 and, thus, the statute is directed to Dawson’s alleged failure to

make the required monthly child support payments. In other words, whether Dawson

violated R.C. 2919.21(B) depends on whether he complied with the terms of his support 6

order. We agree with the State that payments toward Dawson’s arrearage would not

constitute timely monthly support payments as required by the court order. Rather,

payments toward an arrearage simply reduce the amount owed due to the obligor’s failure to

comply with a court order.

{¶ 16} The State presented evidence that the income tax seizures were

applied toward his arrearage, not toward his on-going court-ordered monthly child support

payments. The federal statute governing the collection of past-due child support from a

federal tax refund supports the State’s position that Dawson’s federal income tax refund

should not have been used in the CSEA’s calculation of Dawson’s compliance with his

monthly child support obligation. Under the federal statute, 42 U.S.C. 664, a State agency

may notify the Secretary of the Treasury that an individual “owes past-due support,” after

which the Secretary of the Treasury must withhold any refund payable to that person and pay

that amount to the State agency. “Past-due support” is defined as “the amount of a

delinquency, determined under a court order, or an order of an administrative process

established under State law, for support and maintenance of a child ***.” 42 U.S.C. 664(c).

Thus, under the federal statute, the refund is directed to the State agency for payment

toward the obligor’s arrearage, not the monthly support obligation.

{¶ 17} R.C. 5747.121 also permits the interception of Ohio income tax

refunds for “the collection of overdue child support from refunds of paid state income taxes

*** that are payable to obligors.” (Emphasis added.) R.C. 5747.121(A). Based on this

language, R.C. 5747.121 also appears to direct that intercepted Ohio income tax refunds be

applied to child support arrearages. Accordingly, CSEA correctly subtracted the income tax 7

seizures from its calculation of Dawson’s required monthly support payments for the

104-week period ending March 31, 2009.

{¶ 18} Based on the evidence at trial, the State presented sufficient evidence

that Dawson failed to pay support as established by a court order for 26 weeks out of the

104-week period ending March 31, 2009. Henderson and Jim Codispoti, former

investigator for the prosecutor’s office, testified that the income tax seizures were applied to

Dawson’s arrearage, not to his current support obligations, and that Dawson’s other

payments constituted the equivalent of 61 weeks of payment for the 104-week period ending

March 31, 2009.2 The account detail provided by CSEA indicated that Dawson failed to

pay any monthly child support from March 2008 to February 2009 (not including the two

income tax seizures), which amounted to well over 26 weeks of missed payments. This

evidence, if believed, was sufficient to prove that Dawson committed non-support of

dependents, a fifth degree felony, between April 1, 2007 and March 31, 2009.

{¶ 19} The first assignment of error is overruled.

II.

{¶ 20} Dawson’s second assignment of error states:

THERE WAS SUFFICIENT CREDIBLE EVIDENCE TO ESTABLISH

THE AFFIRMATIVE DEFENSE SET FORTH IN O.R.C. 2919[.21](D) BY

2 Under different facts, CSEA’s formula of calculating the number of weeks of payment by dividing the total payments for the 104-week period by the amount of the weekly payment may be problematic. For example, that formula would not distinguish an obligor who pays in accordance with the court order from an obligor who pays the equivalent of 104 weeks of child support on the 104th week. However, this issue was not raised by Dawson and, given the facts before us, it has no bearing of the sufficiency of the State’s evidence. 8

A PREPONDERANCE OF THE EVIDENCE.

{¶ 21} Dawson contends, in essence, that his conviction for non-support of

defendants is against the manifest weight of the evidence because he established, by a

preponderance of the evidence, the affirmative defense provided for in R.C. 2919.21(D).

That statute reads:

It is an affirmative defense to * * * a charge of failure to provide support

established by a court order under division (B) of this section that the accused

was unable to provide adequate support or the established support but did

provide the support that was within the accused’s ability and means.

The defendant bears the burden to prove an affirmative defense by a preponderance of the

evidence. R.C. 2901.05(A).

{¶ 22} “[A] weight of the evidence argument challenges the believability of

the evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” Wilson,

. When evaluating whether a

conviction is contrary to the manifest weight of the evidence, the appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider witness

credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact

“clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins,

,

, citing State v. Martin,

,

(1st Dist. 1983).

{¶ 23} Because the trier of fact sees and hears the witnesses at trial, we must

defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of 9

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997). However, we may determine which of several competing inferences

suggested by the evidence should be preferred.

{¶ 24} The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the evidence.

. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin,

.

{¶ 25} Dawson’s mother, step-father, and close friend testified on Dawson’s

behalf at trial. Dale and Terina Turner, Dawson’s mother and step-father, testified that

Dawson resided with them during the period of April 1, 2005 to March 31, 2009, with the

exception of approximately eight months in 2008 and 2009, when Dawson lived across the

street from them with his girlfriend. Dawson moved back in with his parents after he was

evicted. Dawson’s stepfather testified that Dawson was not required to pay rent or utilities

at their house, and he ate dinner with them. Dawson did not spend money on clothes for

himself; he smoked cigarettes, and his parents did not give him money for them. When

Dawson was working, he would occasionally buy clothes for his daughter. Dawson had a

2002 Grand Am, but he was unable to afford the payments; it now belongs to his mother. It

was undisputed that Dawson’s daughter stays at her paternal grandparents’ home each

weekend and that she has a loving relationship with her grandparents and Dawson.

{¶ 26} Dawson’s step-father and his friend, Curtis Thaxton, indicated that

Dawson worked “on and off” during that four-year period, including employment at Jiffy

Lube, a demolition company, and Soft Touch car wash. Dawson’s step-father testified that, 10

when Dawson was not working, he was looking for a job. There were several jobs that

Dawson could not accept because his driver’s license was suspended in 2005. Dale Turner

estimated that Dawson applied for 20 or 30 jobs that did not require a driver’s license.

Dawson’s mother and Thaxton also tried to help Dawson find a job. Terina Turner further

indicated that individuals from Hope Lutheran Church in his neighborhood have worked

with Dawson to help him get a job.

{¶ 27} Thaxton and Terina Turner both testified that Dawson has been

diagnosed with ADHD. Thaxton indicated, however, that Dawson has held a job. Terina

Turner testified that Dawson has difficulty reading and understanding what he reads; this

causes Dawson difficulty in completing employment applications.

{¶ 28} At the conclusion of the trial, the jury was instructed on the

affirmative defense, but it convicted Dawson of both counts of non-support of dependents.

{¶ 29} Upon review of the record, Dawson presented testimony from which

the jury could have concluded that he provided the support that was within the accused’s

ability and means. Dawson’s parents and friend indicated that Dawson has worked

intermittently in low-paying jobs, has struggled to find work, and has limited means to

support himself.

{¶ 30} However, the State’s evidence, particularly the CSEA account detail

reports, indicated that Dawson paid nothing toward child support in April 2005, June

through December 2005, January 2006, April and May 2006, and August through December

2006 – 16 months out of the two-year period covered by Count I. As to Count II, Dawson

failed to pay any monthly child support from March 2008 to February 2009 (not including 11

the two income tax seizures). During those time periods, Dawson purchased cigarettes and

meals and, for an eight-month period in 2008 and 2009, he lived with his girlfriend across

the street from his parents.

{¶ 31} Although the facts present a close case, we must defer to the jury’s

credibility determinations and, based on the record, we cannot conclude that the jury “clearly

lost its way” when it rejected Dawson’s affirmative defense and convicted him of

non-support of dependents.

{¶ 32} The second assignment of error is overruled.

III.

{¶ 33} The trial court’s judgment will be affirmed.

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GRADY, P.J. and HALL, J., concur.

Copies mailed to:

Johnna M. Shia Christopher A. Deal Hon. Mary Katherine Huffman