[Cite as State v. Parr, 2019-Ohio-4011.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 17AP-782
v.                                               :             (C.P.C. No. 16CR-4321)

Robert J. Parr,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                   Rendered on September 30, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, appellee. Argued: Michael P. Walton.

                 On brief: Yeura R. Venters, Public Defender, and Timothy E.
                 Pierce, for appellant. Argued: Timothy E. Pierce.

                   APPEAL from the Franklin County Court of Common Pleas
PER CURIAM
        {¶ 1} Defendant-appellant, Robert J. Parr, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty, pursuant to a plea of no
contest, of two counts of non-support of dependent, both felonies of the fifth degree. For
the reasons that follow, we affirm the judgment of the trial court.
I. Facts and Procedural History
        {¶ 2} On August 10, 2016, the state indicted appellant on two counts of non-
support of dependent, each alleging a violation of R.C. 2919.21(A)(2) and/or (B). The first
count alleged that appellant failed to support his child, C.P., for a total accumulated period
of 26 weeks out of 104 consecutive weeks from October 1, 2010 to October 1, 2012. The
No. 17AP-782                                                                                2

second count alleged that appellant failed to support C.P. for a total accumulated period of
26 weeks out of 104 consecutive weeks from October 2, 2012 to October 2, 2014.
       {¶ 3} On June 21, 2017, appellant filed a Crim.R. 12(C)(1) and (2) motion to dismiss
the charges. Appellant acknowledged he had been obligated to support C.P. pursuant to a
November 16, 2006 child support order. However, appellant asserted that C.P., born
October 13, 1995, was emancipated when the state filed the indictment against him in 2016.
Appellant claimed that the Supreme Court of Ohio's decision in State v. Pittman, 150 Ohio
St.3d 113, 2016-Ohio-8314 precluded "prosecutions under R.C. 2919.21 when the child who
is the subject of the prosecution is emancipated." (Mot. to Dismiss at 2.)
       {¶ 4} Appellant filed documents regarding his child support obligation in the trial
court. The documents demonstrated that, on October 15, 2014, the Franklin County Child
Support Enforcement Agency ("FCCSEA") issued findings and recommendations to
terminate appellant's support order for C.P. effective October 13, 2014, due to C.P.'s
emancipation. FCCSEA found appellant had a total support arrearage of $12,500.99, and
recommended he be ordered to pay $375.81 per month toward the arrearage. Neither
appellant, as the child support obligor, nor Constance Suggs, the child support obligee,
objected to FCCSEA's findings and recommendations. On July 28, 2015, the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, issued a
judgment entry approving and adopting FCCSEA's findings and recommendations.
       {¶ 5} The trial court held an oral hearing on appellant's motion to dismiss on
August 15, 2017. Defense counsel asserted at the hearing that, according to Pittman, "the
time of the indictment is the time at which the State must show that the Defendant was
under a current legal obligation to provide support." (Aug. 15, 2017 Tr. at 6.) Plaintiff-
appellee, State of Ohio, responded that Pittman did not apply to the present case, as
Pittman concerned an arrearage only order. The state noted the charges at issue were filed
within the applicable six-year statute of limitations period contained in R.C. 2901.13(A)(1).
       {¶ 6} On September 13, 2017, the trial court issued a decision and entry denying
appellant's motion to dismiss. The court concluded Pittman did not apply to the charges at
issue, as the indictment was based on appellant's "violation of the November 16, 2006
support order for his minor child [C.P.] Parr, not his alleged violation of the arrearage-only
order issued after emancipation on July 28, 2015." (Decision at 7.)
No. 17AP-782                                                                                 3

       {¶ 7} Following the court's ruling on the motion to dismiss, appellant pled no
contest to the charges in the indictment. The court accepted appellant's plea and found him
guilty of both counts of non-support of dependent. The court sentenced appellant to a five-
year term of community control.
II. Assignments of Error
       {¶ 8} Appellant appeals and assigns the following two assignments of error for our
review:
              [I.] The trial court erred when it refused to dismiss Appellant's
              nonsupport of dependents charges inasmuch as over a year
              before he was indicted his support obligation terminated and
              his daughter, Ms. [C.P.] Parr, had been emancipated.
              Appellant's conviction and sentence therefore violated his
              Right to Due Process of Law under the Fifth and Fourteenth
              Amendments of the United States Constitution and the Due
              Course of Law Provisions of Article I, Sections 1 and 16 of the
              Ohio Constitution, and Crim.R. 12(C)(1) and 12(C)(2).

              [II.] The trial court committed plain error when it denied
              Appellant's motion to dismiss the indictment involving two
              counts of nonsupport of dependents (violations of R.C.
              2919.21) in this "arrearage-only" prosecution when there exists
              a specific statute, to wit, R.C. 2905.031(E), in which the
              General Assembly designated the exclusive means of charging
              and punishing a citizen for his failure to remit arrearages when
              he is no longer under a current legal obligation to support his
              child. Appellant's conviction and sentence therefore violated
              the Due Process Clauses of the Fifth and Fourteenth
              Amendments of the United States Constitution, the Due Course
              of Law provisions of Article I, Sections 1 and 16 of the Ohio
              Constitution, Crim.R. 12(C)(1), 12(C)(2), and 52(B).

III. Analysis
       {¶ 9} Appellant's first assignment of error asserts the trial court erred in denying
his motion to dismiss the charges based on [C.P.]'s emancipation. Appellant alleges that in
Pittman the Supreme Court "rendered unlawful the government's practice of indicting
citizens for R.C. 2919.21 violations after the child turns 18 (or following emancipation) and
there exists no current obligation of support." (Appellant's Brief at 20.)
       {¶ 10} Crim.R. 12(C) empowers trial courts to rule on "any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the general
No. 17AP-782                                                                               4

issue." Prior to trial, a party must raise any "[d]efenses and objections based on defects in
the institution of the prosecution," as well as any "[d]efenses and objections based on
defects in the indictment, information, or complaint." Crim.R. 12(C)(1) and (2).
       {¶ 11} "In conducting this pretrial review, courts may look to 'evidence beyond the
face of the indictment.' " State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, ¶ 22, quoting
State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, ¶ 18. "However, a Crim.R. 12 ruling
may not decide 'what would be the general issue at trial.' " Id. Thus, a motion to dismiss
an indictment tests the legal sufficiency of the indictment without regard to the quantity or
quality of evidence that may be produced by either the state or the defendant. State v.
Thornsburry, 4th Dist. No. 12CA9, 2013-Ohio-1914, ¶ 6. "We review a trial court's legal
conclusions in ruling on a pretrial motion to dismiss criminal charges de novo." State v.
Wilson, 10th Dist. No. 13AP-205, 2013-Ohio-4799, ¶ 4, citing State v. Saxon, 9th Dist. No.
09CA009560, 2009-Ohio-6905, ¶ 5.
       {¶ 12} At the time appellant was charged, R.C. 2919.21 provided, in pertinent part,
as follows:
              (A) No person shall abandon, or fail to provide adequate
              support to:

              ***

              (2) The person's child who is under age eighteen, or mentally
              or physically handicapped child who is under age twenty-one;

              ***

              (B) 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.

       {¶ 13} 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 at ¶ 1. Pittman was obligated to support his two children
pursuant to a 1988 support order. On November 20, 2006, the family division of the
Marion County Common Pleas Court issued orders finding Pittman's children were
No. 17AP-782                                                                                             5

emancipated as of August 31, 2006, and establishing Pittman's child support arrearages.
The court ordered Pittman to make monthly payments toward the arrearages.
        {¶ 14} In 2013, the state served Pittman with an indictment charging him with nine
felony counts of non-support of dependents, in violation of R.C. 2919.21(B). The charges
pertained to conduct occurring from 2003 to 2009. The trial court dismissed all but two
charges due to either statute of limitations and/or speedy trial violations.                    The two
remaining charges alleged that Pittman failed to support his children from July 1, 2007
through June 30, 2009. In a bill of particulars, the state clarified that the two remaining
charges were based "on Pittman's failure to provide support pursuant to the November 20,
2006 orders, which determined that the children were emancipated and calculated the
amount of Pittman's arrearage." Pittman at ¶ 10. Pittman moved to dismiss the remaining
charges, and the trial court granted the motion. The Third District Court of Appeals
affirmed, observing that " '[s]ince Pittman's daughters [were] emancipated, he was under
no current legal obligation to support his children at the time the State filed its
indictment.' " Pittman at ¶ 13, quoting State v. Pittman, 3d Dist. No. 9-13-65, 2014-Ohio-
5001, ¶ 19.
        {¶ 15} The Supreme Court found R.C. 2919.21(B) unambiguous.                           The court
concluded that, because R.C. 2919.21(B) 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." Pittman at ¶ 18, quoting R.C. 2919.21(B). The court observed that
"Pittman's criminal liability for nonpayment of support ended on August 31, 2006, when
his children were emancipated." Id. at ¶ 19. The charges at issue, however, alleged that
Pittman violated R.C. 2919.21(B) between July 1, 2007 and June 30, 2009 when "Pittman
was not under a court order to support his children." Id. Additionally, the charges were
based on the November 20, 2006 order, which was "not for support but instead granted
judgments against Pittman for the arrearage amounts." Id. Thus, the court concluded
Pittman was not subject to prosecution under R.C. 2919.21(B)1 for his "failure to make
payments on the child-support arrearage established in the 2006 order when he had no
current legal obligation to support his emancipated children." Id. at ¶ 23.


1Appellant asserts that Pittman's reasoning is equally applicable to prosecutions under R.C. 2919.21(A)(2),
as 2919.21(A)(2) also uses the present tense in the phrase "child who is under age eighteen."
No. 17AP-782                                                                                 6

       {¶ 16} Justice Lanzinger concurred in judgment only in Pittman, and 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." Id. at ¶ 24
(Lanzinger, J., concurring.) Justice Lanzinger stated that, while she could accept that R.C.
2919.21(B) "limits prosecutions based on child-support orders to those with current
obligations rather than arrearages," she "disagree[d] with the statement that 'Pittman's
criminal liability for nonpayment of support ended on August 31, 2006, when his children
were emancipated." Id. concurring opinion, at ¶ 26, quoting Majority opinion at ¶ 19. Two
other Justices joined Justice Lanzinger's concurrence.
       {¶ 17} On September 10, 2018, the Eleventh District Court of Appeals addressed
Pittman in State v. Hubbard, 11th Dist. No. 2017-P-0042, 2018-Ohio-3627. Although the
state did not file the indictment charging Hubbard with two counts of non-support of
dependents, in violation of R.C. 2919.21(A)(2) and/or (B), until after Hubbard's child was
emancipated, the charges pertained to a time before the child's emancipation. The court
acknowledged that Pittman concerned an arrearage only order, while the charges in
Hubbard arose from an existing support order, but concluded that Pittman "bar[red]
prosecution in either instance." Hubbard at ¶ 12.
       {¶ 18} The Hubbard court noted Pittman's conclusion that "the defendant's
'criminal liability for nonpayment of support ended on August 31, 2006, when his children
were emancipated.' " Hubbard at ¶ 13, quoting Pittman at ¶ 19. Hubbard found that "[t]his
conclusion related not to the arrearage-only order but to the defendant's obligation under
the initial child support order." (Emphasis sic.)        Id.   Hubbard stated that Justice
Lanzinger's concurrence clarified that Pittman applied to prosecutions based on both
arrearage orders and current support orders. The court observed that it would have been
"unnecessary and superfluous for the concurring [J]ustices to write a separate opinion
disagreeing with the majority's analysis and asserting that the court's holding should not
apply 'in every case' " if the majority decision applied solely to arrearage only prosecutions.
Hubbard at ¶ 15.
       {¶ 19} Thus, the majority in Hubbard concluded that Pittman precluded the state
from charging Hubbard with non-support of dependents following the emancipation of his
child. A dissenting judge in Hubbard concluded that Pittman should not bar prosecution
No. 17AP-782                                                                                7

in the case, as the charges in Hubbard were based on a current support order, rather than
an arrearage only order. Hubbard at ¶ 28 (O'Toole, J., dissenting.)
       {¶ 20} On November 2, 2018, the Second District Court of Appeals released two
decisions addressing Pittman: State v. Ferguson, 2d Dist. No. 27886, 2018-Ohio-4446, and
State v. Miles, 2d Dist. No. 27885, 2018-Ohio-4444. The defendants in both Ferguson and
Miles failed to make payments under a current support order, but the state did not indict
the defendants on non-support of dependents charges until after the dependents were
emancipated. Both decisions held that "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." Ferguson at ¶ 19. Accord Miles at ¶ 16.
       {¶ 21} The Ferguson and Miles decisions observed that, while the "Pittman
defendant was charged with failing to provide support after emancipation," the Ferguson
and Miles defendants were charged "with failing to provide support before emancipation.
The difference in when the alleged criminal conduct occurred is critical." (Emphasis sic.)
Ferguson at ¶ 15. Accord Miles at ¶ 12. The decisions noted that the present tense in R.C.
2919.21(B) meant that the prohibited conduct, i.e. failing to provide support, must coincide
with a current obligation to provide support. Ferguson at ¶ 15; Miles at ¶ 12. Unlike the
Pittman defendant, the Ferguson and Miles defendants' "alleged failure to provide support
coincide[d] with [their] obligation to provide support." Ferguson at ¶ 15; Miles at ¶ 12.
       {¶ 22} While the Ferguson and Miles decisions acknowledged that Pittman "could
be read to preclude any prosecution under R.C. 2919.21(B) following emancipation," both
found that such a reading was not required. Ferguson at ¶ 18; Miles at ¶ 15. Ferguson
observed that it seemed "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." Ferguson at ¶ 18. See R.C. 2919.21(G)(1) (failing to provide support for a
total accumulated period of 26 weeks out of 104 consecutive weeks is a felony of the fifth
degree). Accordingly, Ferguson and Miles held the prosecutions for non-support of
dependents were proper in each case.
No. 17AP-782                                                                            8

         {¶ 23} On May 3, 2019, the Second District released State v. Brown, 2d Dist. No.
2018-CA-29, 2019-Ohio-1666. The defendant in Brown failed to make payments under a
current support order, but the state did not indict the defendant on non-support of
dependent charges, in violation of R.C. 2919.21(B), until after the defendant's child was
emancipated. Brown concluded that the holding in Pittman was "confined to the
conclusion that a person, after his children are emancipated, has no current child support
obligation, and therefore prosecution for a failure to pay a court-ordered arrearage is
statutorily prohibited." Brown at ¶ 5. Adhering to Ferguson and Miles, Brown concluded
that Pittman did not bar the state from prosecuting the defendant for non-support of
dependents. Id. at ¶ 10-11.
         {¶ 24} The Brown court acknowledged that its holding conflicted with the Eleventh
District's decision in Hubbard. As such, Brown sua sponte certified a conflict to the
Supreme Court of Ohio pursuant to Article IV, Section 3(B)(4), Ohio Constitution.
         {¶ 25} On August 21, 2019, the Supreme Court found the judgments of Brown and
Hubbard to be in conflict and accepted Brown for review. 8/21/2019 Case
Announcements, 2019-Ohio-3263. The Supreme Court ordered briefing on the following
issue:
               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?

         {¶ 26} On June 14, 2019, the Second District followed Ferguson and Miles again in
State v. Winslow, 2d Dist. No. 28178, 2019-Ohio-2357. The Winslow court observed that,
although the state did not indict Winslow on the non-support of dependent charges until
after Winslow's child was emancipated, "the indictment covered a period when Winslow
was obligated to pay court-ordered child support." Winslow at ¶ 20.
         {¶ 27} Effective February 11, 2019, the General Assembly amended R.C. 2919.21(B)
through 2018 Am.Sub.S.B. No. 70. The amendment clarifies that a person may be
prosecuted for non-support of dependents under R.C. 2919.21(B) even after a child support
order has terminated. R.C. 2919.21(B) currently provides as follows:
No. 17AP-782                                                                                9

              (1) 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:

              (a) Is legally obligated to support; or

              (b) Was legally obligated to support, and an amount for
              support:
              (i) Was due and owing prior to the date the person's duty to pay
              current support terminated; and

              (ii) Remains unpaid.

              (2) The period of limitation under section 2901.13 of the
              Revised Code applicable to division (B)(1)(b) of this section
              shall begin to run on the date the person's duty to pay current
              support terminates.

       {¶ 28} Appellant acknowledges the charges in Pittman alleged conduct occurring
after the children were emancipated, while the charges in the instant case "involve[d]
conduct at a time when [C.P.] was still a minor." (Appellant's Brief at 31.) Appellant asserts
that such a distinction between the cases is meaningless, as the state's "need to ensure the
children were adequately supported---the objective of nonsupport prosecutions---expire[s]
once the parents' obligations terminated and the children turned 18 (or were
emancipated)." (Appellant's Brief at 31.)
       {¶ 29} "The concern of the state is to make certain that the children are adequately
supported and do not become a public charge so long as one or the other or both parents
are able to support them."      State v. Oppenheimer, 46 Ohio App.2d 241, 246 (10th
Dist.1975). However, " '[t]he parent's duty of support also runs to the state. It is the duty
of the state which has been codified by R.C. 2919.21, making the failure to provide adequate
support a misdemeanor of the first degree.' " In re Thornburg, 10th Dist. No. 98AP-466
(Jan. 26, 1999), quoting State v. Meyer, 14 Ohio App.3d 69, 73 (2d Dist.1983). Indeed, "if
a parent charged with a support obligation fails to support his or her children, they become
in danger of needing state assistance. Placing the child in that 'danger' can form the basis
for the criminal charge under R.C. 2919.21. * * * The legislature may discourage such
offensive conduct by punitive legislation." Meyer at 72. "Deterrence is a valid purpose of
the criminal law." Id. at 73.
No. 17AP-782                                                                                10

       {¶ 30} The threat of criminal prosecution under R.C. 2919.21 serves to deter child
support obligors from ceasing to support their children or comply with their support
obligations. To read Pittman as holding that the state may not indict a delinquent child
support obligor for non-support of dependents after the child is emancipated would only
encourage such obligors, especially those with children nearing emancipation, to disregard
their child support obligations with impunity. Such a construction of Pittman is not
required.
       {¶ 31} Pittman concerned an arrearage only order, and the charges in Pittman
alleged that Pittman violated the arrearage only order in the years following his children's
emancipation. Thus, the court's statement that "Pittman's criminal liability for nonpayment
of support ended on August 31, 2006, when his children were emancipated," meant that
the state could not charge Pittman with failing to support his children from 2007 to 2009
as the state had. Id. at ¶ 19. The statement pertains to the timeframe of the charges
contained within the indictment, rather than the date of the indictment itself.
       {¶ 32} We find the analysis of the Second District Court of Appeals in Ferguson,
Miles, Brown, and Winslow persuasive. As such, we hold that Pittman does not preclude
prosecution where, as here, there was a current support order during the time periods listed
in the counts of the indictment, even though the indictment was filed after the dependent
was emancipated. Ferguson at ¶ 19; Miles at ¶ 16.
       {¶ 33} In the present case, the November 16, 2006 child support order obligated
appellant to support C.P. until she was emancipated on October 13, 2014. The indictment
charged appellant with failing to provide support from October 1, 2010 to October 1, 2012
and from October 2, 2012 to October 2, 2014. During these timeframes, appellant was
subject to a current child support order and C.P. was not emancipated. Accordingly, as the
indictment alleged appellant failed to provide support when he was subject to a current
child support order, the trial court properly denied appellant's Crim.R. 12(C) motion to
dismiss the case.
       {¶ 34} Based on the foregoing, appellant's first assignment of error is overruled.
       {¶ 35} We recognize that our judgment in the instant case is in conflict with the
judgment of the Eleventh District Court of Appeals in Hubbard. As such, we sua sponte
certify a conflict to the Supreme Court of Ohio, pursuant to Article IV, Section 3(B)(4), Ohio
No. 17AP-782                                                                                11

Constitution.    As this case concerns the same conflict at issue between Brown and
Hubbard, we certify the same question for review:
                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?

       {¶ 36} Appellant's second assignment of error asserts the trial court erred in failing
to grant his motion to dismiss the case based on R.C. 2705.031(E). As appellant did not
raise an argument regarding R.C. 2705.031(E) in the court below, he has waived this
argument for purposes of appeal. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642,
¶ 23, quoting State v. McKee, 91 Ohio St.3d 292, 299 (2001), fn. 3 (Cook, J., dissenting)
(holding that "[w]aiver is the intentional relinquishment or abandonment of a right, and
waiver of a right 'cannot form the basis of any claimed error under Crim.R. 52(B)' ").
       {¶ 37} Based on the foregoing, appellant's second assignment of error is overruled.
 IV. Conclusion
       {¶ 38} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas. As previously indicated, we sua
sponte certify a conflict to the Supreme Court of Ohio.
                                                                          Judgment affirmed;
                                                                 conflict certified sua sponte.

                 SADLER, DORRIAN, and LUPER SCHUSTER, JJ., concur.
