[Cite as State v. Balfour, 2012-Ohio-3453.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97547



                                       STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                   DA’LEON BALFOUR
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-540182

        BEFORE: Kilbane, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      August 2, 2012
ATTORNEY FOR APPELLANT

Aaron T. Baker
Aaron T. Baker Co., L.P.A.
38109 Euclid Avenue
Willoughby, Ohio 44094

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Donna Blough Thomas
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Da’Leon Balfour (“Balfour”), appeals his convictions

for criminal nonsupport. Finding no merit to the appeal, we affirm.

      {¶2} In July 2010, Balfour was charged with two counts of criminal nonsupport

under R.C. 2919.21(A)(2). Count 1 alleged that Balfour recklessly failed to provide

adequate support to his minor child, H.B. (d.o.b. 05/19/03), with the dates of the offense

from April 1, 2006 to March 31, 2008. Count 2 alleged that Balfour recklessly failed to

provide adequate support to H.B., with the dates of the offense from April 1, 2008 to

March 31, 2010. Both counts carried a furthermore clause stating that Balfour failed to

provide support for a total accumulated period of 26 weeks out of 104 consecutive weeks.

The matter proceeded to a jury trial, at which the following evidence was adduced.

      {¶3} Paulina Raspovic (“Raspovic”), a support officer for the Cuyahoga County

Child Support Enforcement Agency (“CSEA”), testified that she handles cases in the

criminal nonsupport caseload. In May 2004, CSEA ordered Balfour, as H.B.’s father, to

pay $232.53 per month in child support.        At the time of this order, Balfour was

unemployed, but the support order was based on an imputed annual income of $14,560

and hourly wage of $7.00/hour due to Balfour’s education and recent work history.

      {¶4} In August 2008, the Juvenile Court Division of the Cuyahoga County

Common Pleas Court held a contempt hearing for Balfour’s failure to pay child support.
The court found Balfour in contempt of the CSEA order and ordered $8,691.61 in arrears.

The court ordered Balfour to 30 days in jail, but suspended the sentence. In February

2009, CSEA filed a motion to execute sentence. The court held a hearing on the motion

in April 2009. Balfour failed to appear at this hearing so the trial court issued a capias

for Balfour’s arrest. Raspovic further testified that Balfour failed to make any payments

from April 1, 2006 to March 31, 2008 and Balfour made five payments from April 1,

2008 to March 31, 2010. She testified that Balfour missed 26 weeks out of a 104

consecutive weeks of payments during both time periods.

      {¶5} Thomas Thiry, Chief Financial Officer of Dave’s Supermarkets, testified

that Balfour worked at Dave’s from June 30, 2008 to August 23, 2008. Balfour was

terminated during his probationary period. While Balfour was employed at Dave’s,

$238.42 was taken out of his paycheck for child support payments.

      {¶6} Tej Singh testified that she owns three Subway Restaurants. Balfour worked

for her May 15, 2007 to June 30, 2007. Balfour earned a total of $1,852.92 while

working for Singh. Balfour was fired when he failed to show up for work without

explanation.

      {¶7} Balfour testified on his own behalf. He testified that he has been homeless

for the past four years, “sleep[ing] on porches or whosoever’s house [he] can stay at.”

He used to live in his grandmother’s house and still uses his grandmother’s address. His

mother kicked him out of the house four years ago. He never graduated from high

school.   At the time of trial, Balfour had two other children born after H.B., a
two-year-old son and a nine-month-old daughter. Balfour testified that he does not have

a support order for these children. Balfour further testified that he does not currently

own a car, but has previously owned two cars. Balfour is skilled at automobile repair

and selling car parts. Balfour currently is employed as a dishwasher at a restaurant.

       {¶8} On cross-examination, Balfour testified that he is aware of the court order

to pay child support. Balfour acknowledged that he did not pay any child support from

April 1, 2006 to March 31, 2008 and a total of $415 from April 1, 2008 to March 31,

2010. He further testified that he missed 26 weeks out of a 104 consecutive weeks of

payments during both time periods. He testified that he never notified CSEA that he was

homeless.

       {¶9} Balfour worked at AutoZone for seven months sometime between 2005 and

2006 and made $8,000.       Balfour acknowledged that he owned two cars during the

indictment period. He junked a third car for $200 and did not give any of that money to

CSEA. Balfour further testified that he does not have any health problems, which would

prevent him from getting a job. He testified that he attempted to find work, but does not

have paperwork documenting that he applied for any jobs during the indictment periods.

       {¶10} At the conclusion of trial, the jury found Balfour guilty of both counts. The

trial court sentenced Balfour to five years of community control sanctions on each of

Counts 1 and 2.

       {¶11} Balfour now appeals, raising the following single assignment of error for

review.
                                ASSIGNMENT OF ERROR

       The trial court erred in finding [Balfour] guilty against the manifest weight
       of the evidence.

       {¶12} In his sole assignment of error, Balfour argues that his convictions are

against the manifest weight of the evidence.

       {¶13} With regard to a manifest weight challenge, the

       reviewing court asks whose evidence is more persuasive — the state’s or
       the defendant’s? * * * “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. [State v. Thompkins,
       78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing [Tibbs v. Florida,
       457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)].

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

       {¶14} Moreover, 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, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).        Accordingly, reversal on manifest weight

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

against the conviction.’” Id., quoting Martin.

       {¶15} In the instant case, Balfour was convicted of criminal nonsupport under R.C.

2919.21(A)(2), which provides in pertinent part: “[n]o person shall abandon, or fail to

provide adequate support to * * * [t]he person’s child who is under age eighteen[.]”

R.C. 2929.21(G) elevates the crime to a fifth degree felony when the offender fails to
provide support for a total accumulated period of 26 weeks out of 104 consecutive weeks.

 Balfour argues his convictions were against the manifest weight of the evidence because

he met the affirmative defense set forth in R.C. 2919.21(D), which provides that:

       [i]t is an affirmative defense to a charge of failure to provide adequate
       support under division (A) 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.

He claims that he was unable to meet his support obligations, despite his best efforts.

       {¶16} To establish this affirmative defense, Balfour was required to demonstrate,

by a preponderance of the evidence, that he was unable to provide adequate support “but

did provide the support that was within [his] ability and means.” R.C. 2919.21(D); R.C.

2901.05(A).    In proving this affirmative defense “a lack of means cannot excuse a lack

of effort on the part of the accused.”   State v. Wheat, 6th Dist. No. 92WD090, 1993 Ohio

App. LEXIS 4970 (Oct. 15, 1993), citing State v. Brown, 5 Ohio App.3d 220, 451 N.E.2d

1232 (5th Dist.1982).

       {¶17} The evidence indicates that Balfour failed to make any payments from April

1, 2006 to March 31, 2008, and that he made five payments totaling $415 from April 1,

2008 to March 31, 2010. Balfour acknowledged that he missed 26 weeks out of a 104

consecutive weeks of payments during both time periods. Balfour testified that he was

“basically homeless” during this time.     He claims that he used his “best efforts” to pay

his child support obligation. However, he did not have any documentation supporting

the efforts he made to get a job. He had a job at AutoZone from 2005 to 2006, at which

he made $8,000. Then in 2007 and 2008, Balfour had a job with Subway and Dave’s
Supermarket, but quickly lost both jobs because of his own actions.             Additionally,

Balfour testified that he did not have any health problems that would prevent him from

working, and that he was skilled at fixing cars and selling car parts. He also testified

that he received $200 for a junked car and did not send any of those proceeds to CSEA.

       {¶18} The jury heard this testimony and was instructed on the affirmative defense.

 The jury, however, chose to convict Balfour of both counts of criminal nonsupport.

“Because the trier of fact sees and hears the witnesses at trial, we must defer to the fact

finder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses.” State v. Dawson, 2d Dist. No. 24558. 2012-Ohio-627, ¶ 23, citing State v.

Lawson, 2d Dist. No. 16288, 1997 Ohio App. LEXIS 3709 (Aug. 22, 1997) (where the

Second District Court of Appeals rejected appellant’s argument that his conviction for

criminal nonsupport was against the manifest weight of the evidence because of the

affirmative defense in R.C. 2919.21(D)).       Thus, based on the record before us, we

cannot say the jury “clearly lost its way” in finding Balfour guilty of criminal nonsupport.



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

       {¶20} Judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
