[Cite as State v. Shabazz, 2016-Ohio-5238.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103617



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    AUBREY SHABAZZ
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-585777-A


        BEFORE:           Celebrezze, J., Jones, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED: August 4, 2016
ATTORNEY FOR APPELLANT

Mary Catherine O’Neill
50 Public Square, Ste. 1900
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Gittel L. Chaiko
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

        {¶1}    Defendant-appellant, Aubrey Shabazz (“appellant”), brings this appeal

challenging his convictions for nonsupport of dependents. Specifically, appellant argues

that (1) the trial court erred by failing to dismiss the charges on double jeopardy grounds,

(2) the trial court admitted improper evidence, (3) the trial court denied him his right to

counsel, (4) trial counsel rendered ineffective assistance, and (5) the guilty verdict cannot

be upheld because he met his burden on the affirmative defense of an inability to pay

child support under R.C. 2919.21(D).      After a thorough review of the record and law,

this court affirms.

                           I. Factual and Procedural History

        {¶2} Appellant’s daughter was born in 1999. On May 26, 1999, the Cuyahoga

County Child Support Agency (“CSEA”) ordered appellant to pay child support for his

minor child in the amount of $228.40 per month. Appellant failed to comply with

CSEA’s order and a motion to show cause was filed on March 18, 2005. The parties

reached an agreement and determined that appellant owed child support arrears in the

amount of $7,003.14. The trial court found appellant to be in contempt on April 26,

2010.    The trial court determined that appellant owed child support arrears in the amount

of $9,889.27.    The trial court imposed a 20-day sentence.   The trial court suspended the

sentence and provided appellant with the opportunity to purge his contempt by either
making 12 consecutive payments of $225 or paying a $600 lump sum. Appellant failed

to make the purge payments and a motion to execute his sentence was filed.

        {¶3} The trial court found appellant to be in contempt a second time on April 15,

2013.    The trial court determined that appellant owed child support arrears in the amount

of $16,395.36.    The trial court imposed a 50-day sentence, but suspended the sentence

and provided appellant with the opportunity to purge his contempt by paying $1,000

within 150 days of the trial court’s journal entry. Appellant made the $1,000 payment to

purge his jail sentence.

        {¶4} In CR-14-585777-A, the Cuyahoga County Grand Jury returned a

three-count indictment charging appellant with nonsupport of dependents, fifth-degree

felonies in violation of R.C. 2919.21(B). Count 1 pertained to June 1, 2008 through

May 31, 2010. Count 2 pertained to June 1, 2010 through May 31, 2012. Count 3

pertained to June 1, 2012 through May 31, 2014. The trial court found appellant to be

indigent for purposes of the criminal matter and appointed a public defender as counsel.

Appellant pled not guilty to the charges, and the matter was set for trial.

        {¶5} On December 23, 2014, appellant’s counsel filed a motion to withdraw.

Appellant contends that the trial court failed to rule on this motion. Appellant requested

to represent himself in the matter.   The trial court held a hearing and granted appellant’s

request to proceed pro se. Appellant signed a written waiver of his right to counsel and

an intent to proceed pro se, pursuant to Crim.R. 44. The trial court appointed standby

counsel.
       {¶6} A jury trial commenced. Appellant moved for a Crim.R. 29 judgment of

acquittal at the close of the state’s case and at the close of all the evidence.   The trial

court denied both motions. After deliberations, the jury advised the trial court that it had

reached an impasse.     On May 8, 2015, the trial court declared a mistrial and discharged

the jury.

       {¶7} The trial court set a new trial date and reassigned defense counsel.          A

second trial commenced on August 18, 2015. Appellant’s counsel moved for a Crim.R.

29 judgment of acquittal at the close of the state’s case and at the close of all the

evidence.   The trial court denied both motions.   The jury returned a guilty verdict on all

three nonsupport counts.    The trial court sentenced appellant to community control for a

period of five years.   Furthermore, the trial court ordered appellant to pay restitution in

the amount of $20,873.85 for child support arrears and ordered appellant to pay monthly

child support in the amount of $216.34.

       {¶8} Appellant filed the instant appeal assigning five errors for review:

       I. The trial court erred in failing to dismiss the charges on double jeopardy
       grounds.

       II. The guilty verdict cannot be upheld because the trial court erred in
       admitting improper evidence.

       III. The trial court erred by failing to rule on a pretrial motion to withdraw
       as counsel thereby denying the appellant his right to counsel.

       IV. The guilty verdict cannot be upheld because trial counsel provided
       ineffective assistance of counsel thereby violating appellant’s right to
       counsel.
       V. The guilty verdict cannot be upheld because the appellant met his burden

       of proof in regards to the affirmative defense.

                                     II. Law and Analysis

                                     A. Double Jeopardy

       {¶9} In his first assignment of error, appellant argues that the state’s prosecution

for nonsupport of dependents violated his Fifth Amendment protection against double

jeopardy. In support of his argument, appellant contends that the juvenile court’s April

26, 2010 finding of contempt and June 7, 2011 execution of his sentence were criminal in

nature, and thus barred the subsequent prosecution for the nonsupport charges.

Appellant emphasizes that the offenses charged in Counts 1 and 2 predated the trial

court’s execution of his sentence on June 7, 2011.

       {¶10}       We initially note that appellant neither filed a motion to dismiss the

charges on double jeopardy grounds nor asserted a violation of his Fifth Amendment

protection against double jeopardy in the trial court.      Accordingly, because appellant

raises the double jeopardy issue for the first time on appeal, we review for plain error.

Pursuant to the terms of Crim.R. 52(B), plain errors or defects that affect substantial

rights may be grounds for reversal even though they were not brought to the attention of

the trial court.    “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the

syllabus.
       {¶11} Under the Double Jeopardy Clause of the Fifth Amendment, defendants may

not be subjected to successive prosecutions for the same offense.    State v. Lovejoy, 79

Ohio St.3d 440, 443, 683 N.E.2d 1112 (1997). Double jeopardy may be applied in cases

involving contempt charges, but only if the contempt penalty is criminal in nature, rather

than civil. Dayton Women’s Health Ctr. v. Enix, 68 Ohio App.3d 579, 591, 589 N.E.2d

121 (2d Dist.1991). Thus, this court must determine if the juvenile court’s findings of

contempt were criminal or civil in nature.

       {¶12} The difference between these types of contempt is that civil contempt is

remedial and is designed to stop misconduct, while criminal contempt is punitive and is

intended to vindicate the court’s authority.   Id.   Furthermore, in Denovchek v. Bd. of

Trumbull Cty. Commrs., 36 Ohio St.3d 14, 520 N.E.2d 1362 (1988), the Ohio Supreme

Court explained that the distinction between civil and criminal contempt is based on the

character and purpose of the contempt sanctions:

       If sanctions are primarily designed to benefit the complainant through
       remedial or coercive means, then the contempt proceeding is civil. Brown
       [v. Executive 200, Inc., 64 Ohio St.2d 250, 253], 416 N.E.2d 610 [(1980)].
       Often, civil contempt is characterized by conditional sanctions, i.e., the
       contemnor is imprisoned until he obeys the court order. But, see, [State v.]
       Kilbane, [61 Ohio St.2d 201, 400 N.E.2d 386 (1980)] Criminal contempt,
       on the other hand, is usually characterized by an unconditional prison
       sentence or fine. Brown, supra, at 253-254, 18 O.O. 3d at 449, 416
       N.E.2d at 613. Its sanctions are punitive in nature, designed to vindicate
       the authority of the court. See Brown, supra, at 254, 18 O.O. 3d at 449,
       416 N.E.2d at 613; Kilbane, supra. See, generally, Gompers v. Bucks
       Stove & Range Co. (1911), 221 U.S. 418, 441-444.

Id. at 16.
      {¶13} The critical feature that determines whether contempt is criminal or civil in

nature “is not when or whether the contemnor is physically required to set foot in a jail

but whether the contemnor can avoid the sentence imposed on him, or purge himself of it,

by complying with the terms of the original order.” Hicks v. Feiock, 485 U.S. 624, 636,

108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), fn. 7.

      {¶14} “‘[C]ontempt proceedings for failure to pay child support are generally civil

in nature as any potential jail sentence is designed merely to encourage payment.’” State

v. Gum, 8th Dist. Cuyahoga No. 92723, 2009-Ohio-6309,  15, quoting Morford v.

Morford, 85 Ohio App.3d 50, 59, 619 N.E.2d 71 (4th Dist.1993). However, appellant

contends that the contempt proceedings become criminal in nature when the court

imposes a jail sentence without giving the obligor an opportunity to purge the contempt.

      {¶15} After reviewing the record, we find that the juvenile court’s April 26, 2010

and April 15, 2013 contempt findings were civil in nature. On both occasions, the trial

court imposed conditional sentences and suspended the sentences.       The juvenile court

provided appellant with the opportunity to purge both his 2010 and 2013 contempt by

making the required payments.    The record reflects that on June 7, 2011, the trial court

executed the 20-day sentence imposed for the 2010 contempt, but only after appellant

failed to make the payments to purge his contempt.   Furthermore, the record reflects that

appellant did in fact avoid the 50-day sentence imposed for the 2013 contempt by making

the required purge payments.
       {¶16} Accordingly, because the juvenile court’s contempt proceedings were civil

in nature, the state was not barred from subsequently prosecuting appellant for

nonsupport under R.C. 2919.21. The trial court did not commit plain error by allowing

the state to proceed with the prosecution of the nonsupport charges against appellant.

Appellant’s first assignment of error is overruled.

                             B. Prior Findings of Contempt

       {¶17} In his second assignment of error, appellant argues that the trial court erred

by admitting evidence of the juvenile court’s findings of contempt for appellant’s failure

to comply with the child support order. Appellant contends that the trial court violated

Evid.R. 403(A) by admitting the evidence of the juvenile court’s findings of contempt.

       {¶18} The admission or exclusion of evidence is a matter left to the trial court’s

sound discretion and will not be disturbed absent an abuse of discretion. State v. Dunn,

8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138, ¶ 40. An abuse of discretion is a

decision that is unreasonable, arbitrary, or unconscionable.      Blakemore v. Blakemore, 5

Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶19} Evid.R. 401 defines relevant evidence as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Evid.R. 402

provides that “[a]ll relevant evidence is admissible * * *.    Evidence which is not relevant

is not admissible.”    Evid.R. 403(A) provides, “[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.”

         {¶20} In State v. Wiley, 8th Dist. Cuyahoga No. 99576, 2014-Ohio-27,

defendant-appellant was convicted of six counts of criminal nonsupport, in violation of

R.C. 2919.21(B).      Id. at  1.   Prior to the prosecution for nonsupport, the domestic

relations court found appellant to be in contempt of court for nonpayment of child support

in 2010.     Id. at  8.   During the prosecution for nonsupport, the state introduced a

certified copy of the 2010 civil contempt order.           On appeal, defendant-appellant

challenged the admission of the civil contempt order for nonpayment of child support,

arguing that the trial court “committed prejudicial error” by admitting the evidence. Id.

at  26. This court held that the civil contempt finding “was relevant to establish

Wiley’s obligation to pay court-ordered child support, his breach of that obligation, and

whether he acted recklessly in breaching that obligation.” Id. at  27.

         {¶21} The Wiley holding was based on the Fifth District’s reasoning in State v.

Trickett, 5th Dist. Stark No. 2002CA00289, 2003 Ohio App. LEXIS 3059 (June 23,

2003). In Trickett, defendant-appellant argued that the trial court abused its discretion

by admitting evidence of a family court’s prior civil contempt order for nonpayment of

child support during the prosecution for criminal nonsupport under R.C. 2919.21(B). Id.

at 4.    The appellate court rejected appellant’s argument and held that the trial court did

not abuse its discretion by admitting the evidence of the family court’s civil contempt

order:
        In order to find appellant guilty of criminal non-support, the State was
        required to prove not only appellant’s legal obligation to support the child,
        but also his breach of that obligation. * * * Through the introduction of
        the [finding of civil contempt] from family court, the State offered
        circumstantial evidence to establish appellant’s legal obligation to pay
        support, his knowledge of such obligation, and his breach of this duty.
        Accordingly, we find the judgment entry was relevant and the trial court’s
        admission of such was not an abuse of discretion.

Id. at 6.

        {¶22} In the instant matter, appellant was charged with three counts of nonsupport

of dependents in violation of R.C. 2919.21(B). R.C. 2919.21(B) provides, “[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.”         Although

the statute does not specify a degree of intent, the Ohio Supreme Court has interpreted the

statute to require proof of recklessness. State v. Collins, 89 Ohio St.3d 524, 529-530,

733 N.E.2d 1118 (2000). R.C. 2901.22 provides, in relevant part:

        () A person acts recklessly when, with heedless indifference to the
        consequences, the person disregards a substantial and unjustifiable risk that
        the person’s conduct is likely to cause a certain result or is likely to be of a
        certain nature. A person is reckless with respect to circumstances when,
        with heedless indifference to the consequences, the person disregards a
        substantial and unjustifiable risk that such circumstances are likely to exist.

Accordingly, the state was required to prove that appellant had a legal obligation to

support the child and that appellant breached that obligation.       The state presented the

journal entries of the juvenile court’s findings of contempt for nonpayment of child

support. The evidence of the juvenile court’s findings of contempt was relevant to

establish appellant’s obligation to pay the court-ordered child support, his breach of that
obligation, and whether he acted recklessly in breaching his obligation.         Furthermore,

after reviewing the record, we cannot say that the probative value of the journal entries

was substantially outweighed by the danger of unfair prejudice.

       {¶23} The trial court carefully reviewed the evidence of the juvenile court’s

findings of contempt prior to admitting the evidence over defense counsel’s objections.

Thus, we cannot say that the trial court abused its discretion by admitting the evidence.

Appellant’s second assignment of error is overruled.

                            C. Motion to Withdraw as Counsel

       {¶24} In his third assignment of error, appellant argues that the trial court erred by

failing to rule on his counsel’s pretrial motion to withdraw as counsel. Appellant argues

that he was forced to “proceed virtually unrepresented,” in violation of his right to

counsel, while the motion was pending.

       {¶25} Appellant’s counsel filed the motion to withdraw on December 23, 2014,

stating that his relationship with appellant had “become increasingly strained making the

continuation of the relationship very difficult.”      Counsel explained that appellant “has

no faith in [counsel’s] abilities,” “requested that the Public Defender withdraw as

counsel,” and “would rather represent himself than proceed with the Public Defender’s

Office as [counsel].”

       {¶26} On May 6, 2015, appellant rejected the state’s plea bargain and the trial

court called the matter for trial.   Before the trial court called the jury, appellant notified

the trial court that he wanted to represent himself.     Appellant explained that he and his
counsel were not in agreement on how to defend against the charges.         The trial court

engaged appellant in a thorough colloquy to ensure that he understood the decision, he

understood the state’s case, he was making the decision freely and voluntarily, and that he

understood the risks he was assuming by proceeding pro se. After discussing the matter

with appellant, the trial court granted his request to proceed pro se.    Furthermore, the

trial court reviewed a written waiver of the right to counsel and expression of an intent to

proceed pro se with appellant.      After reviewing the document with appellant, the trial

court instructed him to sign the form if he wished to proceed pro se. Appellant signed

the form, and the trial court admitted it into the record.

       {¶27} Appellant’s counsel volunteered to serve as standby counsel.         The trial

court discussed the role of standby counsel with appellant. Appellant indicated that he

wished to have standby counsel to consult with during the trial.           The trial court

appointed appellant’s counsel as standby counsel.

       {¶28} After reviewing the record, we find that the record contains no entry ruling

on counsel’s motion to withdraw. However, when the trial court granted appellant’s

request to represent himself, counsel’s motion to withdraw became moot.         The record

reveals that counsel rescinded his motion to withdraw and that the trial court implicitly

denied counsel’s motion.

       {¶29} When a trial court fails to rule on a motion, the motion is considered denied.

 Solon v. Solon Baptist Temple, Inc., 8 Ohio App.3d 347, 351-352, 457 N.E.2d 858 (8th

Dist.1982); Georgeoff v. O’Brien, 105 Ohio App.3d 373, 378, 663 N.E.2d 1348 (9th
Dist.1995). Although appellant’s counsel filed a motion to withdraw, he volunteered to

serve as appellant’s standby counsel. By volunteering to serve as appellant’s standby

counsel, counsel essentially rescinded his motion to withdraw and left his continued

participation at appellant’s and the trial court’s discretion.    Appellant indicated that he

wished to have standby counsel during trial.     The trial court granted appellant’s request

and appointed appellant’s counsel as standby counsel.            Appellant did not object to

counsel serving as his standby counsel.      Accordingly, the record reveals that the trial

court implicitly denied counsel’s motion to withdraw by appointing him to serve as

appellant’s standby counsel.

        {¶30} When the trial court granted appellant’s request to represent himself,

counsel’s motion to withdraw as counsel became moot.         Furthermore, appellant cannot

show that he was prejudiced by either the trial court’s delay in considering the merits of

counsel’s motion to withdraw or the failure to rule on the motion. Appellant expressed

his desire to represent himself to counsel before counsel moved to withdraw in December

2014.    Counsel moved to withdraw because appellant wanted to represent himself.

Although the trial court did not explicitly rule on counsel’s motion, it did grant

appellant’s request to proceed pro se before trial commenced.         Thus, because the trial

court granted his request to represent himself, appellant cannot demonstrate that he was

prejudiced by the trial court’s failure to rule on counsel’s motion to withdraw. Finally,

appellant’s argument that the trial court’s failure to rule on counsel’s motion to withdraw

“caused [him] to proceed virtually unrepresented through the pendency of the matter” is
entirely unsupported by the record.      The record reflects that appellant’s counsel was

present at all of the pretrial hearings, even after he filed the motion to withdraw as

counsel.

         {¶31} Based on the foregoing analysis, appellant’s third assignment of error is

overruled.

                            D. Ineffective Assistance of Counsel

         {¶32} In his fourth assignment of error, appellant argues that he received

ineffective assistance of counsel during his trial.

         {¶33} In order to establish a claim of ineffective assistance of counsel, the

defendant must show that his trial counsel’s performance was deficient in some aspect of

his representation and that deficiency prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989).           Under Strickland, our scrutiny of an attorney’s

representation must be highly deferential, and we must indulge “a strong presumption that

counsel’s conduct falls within the range of reasonable professional assistance.” Id. at

689.     In Ohio, every properly licensed attorney is presumed to be competent and,

therefore, a defendant claiming ineffective assistance of counsel bears the burden of

proof.     State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).

         {¶34} First, appellant argues that counsel’s assistance was ineffective because

counsel failed to move for a dismissal of Counts 1 and 2 on double jeopardy grounds.

Assuming arguendo that counsel’s failure to move to dismiss Counts 1 and 2 constituted
deficient performance, appellant’s claim fails under the second Strickland prong. As

previously noted, the juvenile court’s findings of contempt were civil in nature because

the court imposed conditional, suspended sentences and provided appellant with the

opportunity to purge his contempt by making the required payments.         The prosecution

for nonsupport did not violate appellant’s protection against double jeopardy.

Accordingly, appellant cannot show that he was prejudiced by counsel’s failure to move

to dismiss Counts 1 and 2.

       {¶35} Second, appellant argues that counsel’s assistance was ineffective because

counsel failed to renew his pro se motions for a Crim.R. 29 judgment of acquittal within

14 days after the jury was discharged. Appellant suggests that his motions for a Crim.R.

29 judgment of acquittal during the first trial were “deficient” because they were made

pro se and without the assistance of standby counsel.

       {¶36} Based on our review of the record, we find that appellant’s argument is

outside the scope of the appeal before this court.      Appellant filed the instant appeal

challenging his nonsupport convictions from the second trial.        However, the motions

for a Crim.R. 29 judgment of acquittal that appellant contends his counsel had a duty to

renew were made during the first trial.     Thus, appellant’s ineffective assistance claim

alleging deficient performance during the first trial is both irrelevant to the second trial

and outside the scope of the instant matter. Accordingly, we will not address the merits

of appellant’s ineffective assistance claim to the extent that it calls counsel’s performance

during the first trial into question.
       {¶37} Appellant’s fourth assignment of error is overruled.

                         E. R.C. 2919.21(D) Affirmative Defense

       {¶38} In his fifth assignment of error, appellant argues that the jury’s verdict

cannot be upheld because he met his burden of proof regarding the affirmative defense of

an inability to pay child support under R.C. 2919.21(D). Specifically, appellant argues

that his convictions for nonsupport of dependents are against the manifest weight of the

evidence because he met his burden of proof on the affirmative defense.

       {¶39} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

the Ohio Supreme Court addressed the standard of review for a criminal manifest weight

challenge, as follows:

       The criminal manifest-weight-of-the-evidence standard was explained in

       State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 [1997].              In

       Thompkins, the court distinguished between sufficiency of the evidence and

       manifest weight of the evidence, finding that these concepts differ both

       qualitatively and quantitatively. Id. at 386. The court held that sufficiency

       of the evidence is a test of adequacy as to whether the evidence is legally

       sufficient to support a verdict as a matter of law, but weight of the evidence

       addresses the evidence’s effect of inducing belief. Id. at 386-387. In

       other words, a reviewing court asks whose evidence is more persuasive —

       the state’s or the defendant’s?   We went on to hold that although there may

       be sufficient evidence to support a judgment, it could nevertheless be
       against the manifest weight of the evidence.    Id. at 387. “When a court of

       appeals reverses a judgment of a trial court on the basis that the verdict is

       against the weight of the evidence, the appellate court sits as a ‘thirteenth

       juror’ and disagrees with the factfinder’s resolution of the conflicting

       testimony.” Id. at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct.

       2211, 72 L.Ed.2d 652 [(1982)].

Id. at  25.

       {¶40} An appellate court may not merely substitute its view for that of the jury, but

must find that “in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.”    Thompkins at 387.      Accordingly, reversal on manifest weight

grounds is reserved for “the exceptional case in which the evidence weighs heavily

against the conviction.” Id.

       {¶41} In the instant matter, appellant argues that his testimony established the

elements of the affirmative defense outlined in R.C. 2919.21(D).          R.C. 2919.21(D)

provides, “[i]t 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.”     In Wiley, 8th Dist. Cuyahoga No. 99576,

2014-Ohio-27, this court addressed the burden of proof on the affirmative defense, as

follows:
       To prevail on this affirmative defense, a defendant must prove, by a
       preponderance of the evidence, that he: (1) is unable to provide the
       court-ordered support and (2) provided such support as was within his
       ability and means. See, e.g., State v. Carter, 10th Dist. Franklin No.
       07AP-141, 2007-Ohio-6502, ¶ 14, citing State v. Brown, 5 Ohio App.3d
       220, 222, 451 N.E.2d 1232 (5th Dist.1982). “Both elements must be met
       in order to successfully assert the affirmative defense of inability to pay.”
       Id. “Lack of means alone cannot excuse lack of effort.” State v.
       Williams, 5th Dist. Delaware No. 06 CAA 04 0026, 2007-Ohio-63, ¶ 40,
       citing Brown at 222; see also State v. Balfour, 8th Dist. Cuyahoga No.
       97547, 2012-Ohio-3453, ¶ 16.

Wiley at  44.

       {¶42} Appellant testified about the time period relevant to Count 1, June 1, 2008

through May 31, 2010. He testified that he worked consistently from 1999 to 2008 as a

truck driver. He lost two jobs in 2008 when the companies went out of business and, as

a result, he was forced to go into business for himself. Appellant started his own

business and obtained an L.L.C.         He testified that he had surgery on his foot in

November 2009, and that he could not conduct business because he was incapacitated for

six months.      According to appellant, he went to CSEA while recovering from the

surgery and filed for a modification.    He testified that he went to court in 2010 because

he fell behind on his child support payments. Appellant told the jury that his driver’s

license was suspended and that he was incarcerated.     According to him, after serving 13

days in jail, he was released and sought employment opportunities. He testified that he

was not able to find employment after being released because his driver’s license was

suspended, which occurred “at least 10 times.”     He testified that during the time period

relevant to Count 1, he made regular payments “[a]t all points in which [he] had verifiable
employment.” He estimated that he paid approximately $2,100 towards child support

between 2008 and 2010.

       {¶43} Appellant testified about the time period relevant to Count 2, June 1, 2010

through May 31, 2012. He described that his financial situation was “dire” in 2011, and

explained that he did not have any work because the economy was “just flat-lined, I mean

completely dead.” He testified that he was looking for work but that his suspended

driver’s license “cost [him his] job.”    According to appellant, he relied on his wife

financially when he was out of work or barely working. He testified that he paid

approximately $850 towards child support between 2010 and 2012.

       {¶44} Relative to Count 3, June 1, 2012 through May 31, 2014, appellant testified

that his business started “picking back up” in 2013, and that he was able to obtain some

contracts. He testified that he paid approximately $1,800 towards child support between

2012 and 2014.

       {¶45} According to appellant, during the time periods relevant to the three

nonsupport counts, any money that he had went towards child support rather than to his

household or wife. He testified that his wife paid the rent during the time periods that he

was not able to work. He pursued job opportunities that did not involve driving. He

testified that he had a job shoveling snow but that he lost the job as a result of his

obligations to appear in court for matters relating to his child support order.          He

participated in the “Fatherhood Initiative” program through CSEA, either in 2009 or

2010, in order to get his license reinstated. He initially testified that he got his license
reinstated after attending the program, but then later testified that his driver’s license was

not reinstated after participating in the program and that he “didn’t get any benefits out of

[the program].”

       {¶46} Appellant testified that he lived with his wife and 15-year-old son.     His son

plays football but appellant does not have to pay the costs for his son to play. His son

has a smartphone, but appellant admitted that the phone bill is “cheap,” and that his wife

pays the bill. Further, his son plays video games and he, his wife, and other family

members buy the games for birthday gifts. According to appellant, he and his wife

provide for their son together. He testified that he and his wife both pay rent, but that

his wife paid the rent when he “fell on some hard times[.]”

       {¶47} The state presented the testimony of (1) the child’s mother, (2) appellant’s

daughter, and (3) CSEA caseworker Amanda Aliff (“Aliff”).

       {¶48} First, the child’s mother testified that the child was born in 1999 and that she

was 16 years old at the time of appellant’s trial.   She testified that appellant never made

payments directly to her outside of the CSEA system. She could not recall how many

payments appellant made between June 1, 2008 and May 31, 2010, because he “would

make a payment off and on, off and on[.]”      She testified that between June 1, 2010 and

May 31, 2012, appellant made payments “off and on,” and that he would make a payment

for two or three months and then stopped making payments for a year.        According to the

mother, appellant’s payments were not “ongoing.”        She testified that she is unaware of

any health problems that appellant has that would prevent him from working.
       {¶49} Second, appellant’s daughter testified that appellant gave her $10 three or

four times when she was “little.”   She testified that appellant bought her a pair of tennis

shoes and paid for one of her haircuts. She testified that she does not know of any

disability or health issue that prevents appellant from working.

       {¶50} Third, Aliff testified that she is an enforcement officer in the CSEA criminal

nonsupport unit. She testified that appellant was originally ordered to pay child support

to the mother for his daughter in the amount of $228.40 per month.

       {¶51} Aliff testified that between June 1, 2008 and May 31, 2010, appellant was

ordered to pay $228.40 per month and made the following payments: (1) $342.60 in

September 2008; (2) $105 in December 2008; (3) $105 in January 2009; (4) $210 in

February 2009; (5) $211 in April 2009; (6) $211 in July 2009; (7) $230 in September

2009; (8) $549.07 in November 2009; and (9) $145 in February 2010. She testified that

appellant missed 13 months of payments during the time period. According to Aliff,

appellant made four payments in 2008 and six payments in 2009. She testified that the

amount due was $5,481.60, and that appellant paid $2,138.67, leaving a remaining

balance of $3,342.93.     Although appellant testified that he went to CSEA after his

surgery and filed for a modification, she testified that there was no record of any injuries

or disabilities that would prevent appellant from working.

       {¶52} Aliff testified that between June 1, 2010 and May 31, 2012, appellant was

ordered to pay $228.40 per month and made the following payments: (1) $128 in June

2010; (2) $127 in July 2010; (3) $150 in August 2010; (4) $128 in November 2010; (5)
$80 in February 2011; (6) an unspecified payment in March 2011; and (7) $45.01 in May

2012. She testified that appellant missed 17 months of payments during the time period.

 She testified that appellant made five payments in 2010 and two payments in 2011.

She testified that the amount due was $5,497.90 and that appellant paid $858.01.

      {¶53} Aliff testified that between June 1, 2012 and May 31, 2014, appellant was

ordered to pay $231.66 per month and made the following payments: (1) $258.26 in

September 2012; (2) $130 in December 2012; (3) $113.56 in January 2013; (4) $227.12

in February 2013; (5) $734.33 in June 2013; (6) $220 in July 2013; and (7) $180 in

August 2013. She testified that appellant missed 17 months of payments during this

time period.   She testified that appellant made three payments in 2012 and five payments

in 2013.     She testified that the amount due was $5,559.84 and that appellant paid

$1,863.27.

      {¶54} Aliff testified that the last time she had a record of verifiable employment

for appellant was on December 20, 2009, and that after that date, appellant reported that

he was self-employed and making deliveries for a living. She testified that there was no

way of tracking appellant’s income when he was self-employed.       She testified that she

did not believe appellant had any disabilities or physical incapacities that would prevent

him from working. According to Aliff, any payments made outside of the CSEA system

are considered gifts and the obligor can only receive credit for these payments if they go

to court. She testified that she had no knowledge of any payments appellant made

outside of the CSEA system. She testified that when an obligor’s driver’s license is
suspended, the obligor can have the license reinstated either by verifying employment,

participating in the “Fatherhood Initiative” program, or making a child support payment.

She explained that the program is free and assists obligors to find employment. She

testified that in order to get his license reinstated, appellant “made payments and/or

turned in employment that we could deduct money from.” She testified that appellant

did not participate in any of the “Fatherhood Initiative” programs through CSEA;

however, she testified that it is possible to participate in the program without going

through CSEA.

      {¶55} After reviewing the record, we cannot say that this is “an exceptional case”

in which the jury clearly lost its way and created such a manifest miscarriage of justice

that appellant’s convictions for nonsupport were against the manifest weight of the

evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Appellant had the

burden of proving by a preponderance of the evidence that he was unable to pay the

court-ordered child support and that he provided the support that was within his ability

and means.

      {¶56} The decision whether, and to what extent, to believe the testimony of a

particular witness is “within the peculiar competence of the factfinder, who has seen and

heard the witness.” State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, 

54. The jury had sufficient information to judge appellant’s credibility and “was free to

believe all, part, or none of [his] testimony[.]” State v. Colvin, 10th Dist. Franklin No.
04AP-421, 2005-Ohio-1448,  34; State v. Smith, 8th Dist. Cuyahoga No. 93593,

2010-Ohio-4006,  16.

      {¶57} In the instant matter, appellant’s testimony was the only evidence presented

by the defense regarding the affirmative defense.   Specifically, appellant testified about

his employment history and income during the relevant time periods, about his foot

surgery and driver’s license suspensions that he claimed prevented him from working,

and the child support payments that he was able to make. In finding appellant guilty of

nonsupport, the jury evidently concluded that either appellant’s testimony was not

credible or that he failed to prove the affirmative defense set forth in R.C. 2919.21(D).

On the other hand, the state presented the testimony of appellant’s daughter, the child’s

mother, and CSEA enforcement officer Aliff. Aliff testified in detail about appellant’s

employment history and income, payment history, and the juvenile court child support

proceedings.

      {¶58} The jury heard testimony regarding the hardships appellant asserted he

encountered with respect to his lack of employment, foot surgery, and driver’s license

suspensions. Furthermore, the jury heard evidence that appellant missed 13 months of

payments during the time period relevant to Count 1, and further missed 17 months of

payments during the time periods relevant to Counts 2 and 3. In the event that appellant

had a physical disability that prevented him from working, or if he was unable to work

because of his foot injury or driver’s license suspensions, appellant had a duty to report

these circumstances to CSEA.     However, CSEA’s records show that appellant failed to
do so. The jury did not lose its way simply because it chose to believe the state’s version

of the events rather than appellant’s testimony that he paid within his ability and means.

We must defer to the jury’s credibility determination, and based on the record before us,

we cannot say that the jury “clearly lost its way” in rejecting appellant’s affirmative

defense.

       {¶59} Based on the foregoing analysis, we find that appellant’s nonsupport

convictions were not against the manifest weight of the evidence. Appellant’s fifth

assignment of error is overruled.



                                     III. Conclusion

       {¶60} The trial court did not commit plain error by allowing the state to proceed

with the prosecution of the nonsupport charges against appellant. The juvenile court’s

contempt proceedings were civil in nature because the court imposed conditional,

suspended sentences and provided appellant with the opportunity to purge his contempt

by making the required payments. Thus, the subsequent prosecution for the nonsupport

charges did not violate appellant’s double jeopardy protections. The trial court did not

abuse its discretion by admitting the evidence of the juvenile court’s 2010 and 2013

contempt findings. The evidence was relevant to establish appellant’s obligation to pay

the court-ordered child support, his breach of that obligation, and whether he acted

recklessly in breaching his obligation. Furthermore, the probative value of the evidence

was not substantially outweighed by the danger of unfair prejudice.
       {¶61}     Although the trial court did not rule on appellant’s counsel’s motion to

withdraw, appellant was not denied his right to counsel.            Appellant requested to

represent himself and the trial court granted appellant’s request after thoroughly

reviewing his rights, ensuring that he was making the decision freely and voluntarily, and

ensuring that he understood the risks he was assuming by proceeding pro se. When the

trial court granted appellant’s request to represent himself, counsel’s motion to withdraw

became moot.      We cannot say that appellant’s counsel rendered ineffective assistance by

failing to move for a dismissal of Counts 1 and 2 on double jeopardy grounds. Even if

appellant’s counsel had moved for a dismissal of Counts 1 and 2, the counts would not

have been dismissed on double jeopardy grounds because the juvenile court’s contempt

proceedings were civil in nature.   Thus, appellant cannot show that he was prejudiced by

the alleged deficiency.

       {¶62} After reviewing the entire record, we find that appellant’s nonsupport

convictions were not against the manifest weight of the evidence.             The jury heard

appellant’s testimony regarding the R.C. 2919.21(D) affirmative defense and was in the

best position to determine if the proffered testimony was credible. We cannot say that

this is an “exceptional case” in which the jury clearly lost its way and created such a

manifest miscarriage of justice that appellant’s convictions must be reversed and a new

trial ordered.

       {¶63} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


_________________________________________________________
FRANK D. CELEBREZZE, JR., JUDGE

 LARRY A. JONES, SR., A.J., and
 TIM McCORMACK, J., CONCUR
