[Cite as State v. Miles, 2018-Ohio-4444.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 27885
                                                  :
 v.                                               :   Trial Court Case No. 2017-CR-2535
                                                  :
 DEDRICK L. MILES                                 :   (Criminal Appeal from
                                                  :    Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 2nd day of November, 2018.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 S. Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                            .............
                                                                                         -2-


HALL, J.

          {¶ 1} Dedrick Miles appeals from his convictions for nonsupport of dependents. He

challenges the trial court’s overruling of his motion to dismiss the charges of nonsupport.

Miles contends that State v. Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d

531, precludes his prosecution, because the indictment was filed after his child was

emancipated and his support obligation terminated. Because Miles had a current support

obligation during the time periods that he is alleged to have failed to pay support, we

affirm.

                                           I. Facts

          {¶ 2} In March 2010, a decree of divorce was entered ordering Miles to pay child

support for each of his two children. Miles made some partial support payments but paid

nothing after December 2010. In June 2015, the youngest child was emancipated, and

Miles’s support obligation was terminated. In the emancipation order, the domestic

relations court also ordered Miles to make specific payments on the support arrearage

until the arrearage was fully paid.

          {¶ 3} In September 2017, Miles was indicted on two counts of nonsupport of

dependents, in violation of R.C. 2919.21(B). The first count alleged that Miles failed to

provide support for his youngest child between June 1, 2011, and May 31, 2013. The

second count alleged that Miles failed to provide support for the same child between June

1, 2013, and May 31, 2015. Miles moved to dismiss the indictment. Citing Pittman, he

argued that he was not under a support order and that his criminal liability for nonpayment

of support ended when his youngest child was emancipated.

          {¶ 4} After a hearing, the trial court overruled the motion to dismiss, concluding
                                                                                           -3-

that Pittman does not preclude the prosecution. The court noted that 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, 150

Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, at ¶ 1. The trial court distinguished

Pittman: “The most important difference between Defendant’s case from the case i[n]

Pittman is the fact that the indicted time periods are before the arrearage order was in

place and are within the statute of limitations. In Pittman, the indicted time periods were

after the arrearage order was in place, thereby only enforcing the arrearage order.”

       {¶ 5} Miles pleaded no contest to both counts of felony nonsupport of dependents.

He was sentenced to community control sanctions and ordered to pay restitution of

$7,008 to the Ohio Child Support Payment Central.

                                   II. Law and Analysis

       {¶ 6} Miles’s sole assignment of error alleges that the trial court erred by overruling

his motion to dismiss.

       {¶ 7} “[A] motion to dismiss ‘tests the sufficiency of the indictment [or complaint],

without regard to the quantity or quality of evidence that may be produced by either the

state or the defendant.’ ” State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 18 (2d Dist.),

quoting State v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165 (2d Dist.1989). De

novo is the standard that we use to review a trial court’s decision on a motion to dismiss.

Id. at ¶ 19.

       {¶ 8} Miles was indicted on two charges of violating R.C. 2919.21(B), which

prohibits a person from “fail[ing] to provide support as established by a court order to[ ]
                                                                                        -4-


another person whom, by court order or decree, the person is legally obligated to support.”

Miles contends that his criminal liability for nonpayment ceased when his child was

emancipated and his support obligation was terminated. When he was indicted, Miles

points out, he was not under a current obligation to pay support. Miles argues that Pittman

precludes prosecution after emancipation, even though the charges were based on his

failure to pay support before emancipation, when he was subject to a child-support order.

       {¶ 9} The defendant in Pittman was ordered to pay child support until his children

were emancipated. The children were emancipated on August 31, 2006, and the

defendant’s support obligation terminated. The trial court reduced his support arrearage

to a judgment and ordered the defendant to continue paying toward the arrearage. Three

years later, the defendant was indicted on charges of nonsupport under R.C. 2919.21(B)

for failing to provide support after his children had been emancipated (between July 1,

2007, and June 30, 2009). The defendant argued that he could not have violated R.C.

2919.21(B) then, because he had no duty to provide support, as his children had been

emancipated.

       {¶ 10} The Ohio Supreme Court agreed. “Because the statute uses the present

tense in the phrase ‘is legally obligated to support,’ ” said the Court, “a person charged

with a violation must be under a current obligation to provide support.” Pittman, 150 Ohio

St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, at ¶ 18. The Court said that the defendant

was not under a current support order between 2007 and 2009 and that “[t]he 2006 orders

were not for support but instead granted judgments against Pittman for the arrearage

amounts.” Id. at ¶ 19. The Court 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
                                                                                          -5-


when the person has no current obligation of support because the child who is the subject

of the order is emancipated.” Id. at ¶ 1. “Pittman’s criminal liability for nonpayment of

support,” stated the Court, “ended on August 31, 2006, when his children were

emancipated.” Id. at ¶ 19.

       {¶ 11} Justice Lanzinger took issue with the just-quoted statement about the

defendant’s criminal liability. She wrote a concurring opinion, joined by two other justices,

to point out 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 in judgment only). She agreed that the language of R.C. 2919.21(B) “limits

prosecutions based on child-support orders to those with current obligations rather than

arrearages.” Id. at ¶ 26. But she disagreed with the majority’s broad statement that the

defendant’s criminal liability for nonpayment of support ended on the date that his children

were emancipated. Justice Lanzinger pointed out that the defendant might have been

criminally liable under R.C. 2929.21(A). Id. at ¶ 27.

       {¶ 12} All of the key facts in Pittman match those in the case before us, except

one. The Pittman defendant was charged with failing to provide support for a period of

time after emancipation; Miles was charged with failing to provide support for periods of

time before emancipation. The difference in when the alleged criminal conduct occurred

is critical. As Pittman points out, R.C. 2919.21(B) uses the present-tense phrase “is legally

obligated to support,” which means that the prohibited conduct (“fail[ing] to provide

support”) must coincide with a current obligation to provide support. Because the Pittman

defendant’s obligation to provide support had terminated, he could not be prosecuted for

nonsupport under R.C. 2919.21(B) for failing to provide support after emancipation. But
                                                                                           -6-


Miles was charged with nonsupport for failing to provide support before his child was

emancipated, so he may be prosecuted. Miles’s alleged failure to provide support

coincided with his obligation to provide support. Therefore, we conclude that Pittman does

not preclude Miles’s prosecution.

       {¶ 13} We recognize that the Eleventh District, in State v. Hubbard, 2018-Ohio-

3627, __N.E.3d__ (11th Dist.), addressed this same issue under similar factual

circumstances but came to a different conclusion. The majority in that case agreed with

Miles’s argument and concluded that Pittman applies “to all cases involving nonpayment

of child support.” (Emphasis sic.) Hubbard at ¶ 14. The court read Pittman as saying that

“a defendant cannot be charged with criminal nonsupport following the emancipation of

his children.” Id. at ¶ 16. The court found it unimportant that the Hubbard defendant was

charged with failing to provide support before emancipation. “That distinction is of little

import here,” said the majority, “as it is evident the Pittman holding applies to bar

prosecution in either instance.” Id. at ¶ 12. The Hubbard court focused on the Pittman

majority’s broad statement that the defendant’s criminal liability for nonpayment of support

ended when his children were emancipated, saying that the statement “related not to the

arrearage-only order but to the defendant’s obligation under the initial child support order.”

(Emphasis sic.) Id. at ¶ 13. Accordingly, the Hubbard defendant’s “liability under the

support order also ended when his child was emancipated, an event that occurred well

before he was indicted.” Id.

       {¶ 14} The Hubbard court found support for its conclusion that Pittman applies to

more than just “arrearage-only” cases in Justice Lanzinger’s concurring opinion. The court

said that the concurring opinion’s disagreement with the Pittman court’s conclusion that
                                                                                          -7-


the defendant’s criminal liability for support ended with emancipation showed that the

concurring justices believed that the Pittman decision was “intended to apply to all cases

involving nonpayment of child support.” (Emphasis sic.) Id. at ¶ 14. “If the Pittman majority

had intended for its holding to apply solely to arrearage-only orders,” said the Hubbard

majority, “it would have been entirely unnecessary and superfluous for the concurring

justices to write a separate opinion disagreeing with the majority’s analysis and asserting

that the court’s holding should not apply ‘in every case.’ ” Id. at ¶ 15.

       {¶ 15} While we recognize that Pittman could be read to preclude any prosecution

under R.C. 2919.21(B) following emancipation, we do not think that that reading is

required or desired. We note that the dissenting judge in Hubbard agreed with our

analysis, concluding that Pittman did not apply in that case, because unlike Pittman, the

charges were not based on an arrearage order but on a support order in effect during the

time periods alleged in the indictment. Id. at ¶ 28 (O’Toole, J., dissenting). Moreover, we

do not think that it makes sense to read Pittman as saying that all indictments under R.C.

2919.21(B) must be filed before emancipation. That reading could allow a parent to avoid

child support with impunity for up to 25 weeks during the two years preceding

emancipation and to escape felony prosecution for nonsupport. See R.C. 2919.21(G)(1)

(stating that nonsupport for 26 out of 104 consecutive weeks constitutes a fifth-degree

felony).

                                      III. Conclusion

       {¶ 16} The trial court did not err by overruling Miles’s motion to dismiss. Pittman

does not preclude prosecution when a current support order existed during the time

periods listed in the individual counts of the indictment, even though the indictment was
                                                                                    -8-


filed after the dependents were emancipated and the defendant’s support obligation was

terminated.1 Miles’s sole assignment of error is overruled.

      {¶ 17} The trial court’s judgment is affirmed.

                                    .............



DONOVAN, J. and FROELICH, J., concur.


Copies sent to:

Mathias H. Heck
Andrew T. French
Michael R. Pentecost
Hon. Dennis J. Adkins




1 We note that an amendment to R.C. 2919.21(B), effective February 11, 2019, makes
clear that a person may be prosecuted for nonsupport of dependents even after an order
for support terminates. See 2018 Am.Sub.S.B. No. 70.
