[Cite as State v. Brown, 2019-Ohio-1666.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellant                     :   Appellate Case No. 2018-CA-29
                                                 :
 v.                                              :   Trial Court Case No. 2018-CRB-129
                                                 :
 CHALMER L. BROWN                                :   (Criminal Appeal from Municipal Court)
                                                 :
         Defendant-Appellee                      :
                                                 :

                                            ...........

                                            OPINION

                              Rendered on the 3rd day of May, 2019.

                                            ...........

CHRISTOPHER A. MURRAY, Atty. Reg. No. 0059357, Assistant Prosecuting Attorney,
City of Xenia, 61 Greene Street, Suite 200, Xenia, Ohio 45385
        Attorney for Plaintiff-Appellant

ADAM J. STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109, Dayton,
Ohio 45429
      Attorney for Defendant-Appellee

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




TUCKER, J.
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       {¶ 1} Defendant, Chalmer L. Brown, was charged with two first-degree-

misdemeanor counts of failure to pay court-ordered child support for his child, K.M., in

violation of R.C. 2919.21(B). K.M., though emancipated when the criminal complaint

was filed, was not emancipated during the time period covered by each count. The trial

court sustained Brown’s motion to dismiss, based upon State v. Pittman, 150 Ohio St.3d

113, 2016-Ohio-8314, 79 N.E.3d 531. After the trial court’s dismissal, this court decided

State v. Ferguson, 2018-Ohio-4446, __ N.E. 3d __ (2d Dist.), and State v. Miles, 2018-

Ohio-4444, __ N.E.3d __ (2d Dist.), wherein we held that State v. Pittman does not control

when, as here, the child was emancipated when the charges were initiated, but the

timeframe of the alleged non-support set forth in the charging document was before the

child’s emancipation. Accordingly, the trial court’s judgment will be reversed, and the

matter will be remanded for further proceedings.

       {¶ 2} By way of a Crim.R. 3 complaint, Brown was charged with two counts of

failure to “provide support as established by a court order to another person whom, by

court order or decree [Brown was] legally obligated to support * * * in violation of [R.C.]

2919.21(B).” In response, Brown filed a motion to dismiss. The parties entered into the

following factual stipulations:

              On November 9, 2000, the Greene County Child Support

       Enforcement Agency administratively established Chalmer L. Brown as the

       father of K.M. based upon the results of genetic testing.

              On August 27, 2001, under Greene County Juvenile Court Case

       No[.] 33415, the Court ordered Chalmer L. Brown to pay child support of
                                                                                        -3-


       $87.00 per month, plus 2% processing charge * * *.

              On December 17, 2017, the Greene County Child Support

       Enforcement Agency emancipated K.M. as of September 13, 2017. As a

       result, Chalmer L. Brown was ordered to pay $117.00 per month, plus 2%

       processing charge, toward arrearages.

              On January 29, 2018, the State of Ohio charged Chalmer L. Brown

       with two counts of Non-Support of Dependents under R.C. 2919.21(B),

       each misdemeanors of the first degree. Count I covers the time period of

       July 1, 2016 thru (sic) December 31, 2016. Count II covers the time period

       of January 1, 2017 through September 13, 2017.

The trial court sustained Brown’s motion. The State appeals.



                          Motion to Dismiss Standard

       {¶ 3} A Crim.R. 12(C) motion to dismiss is a mechanism to test the legal sufficiency

of the complaint or indictment. If the allegations set forth in the charging document

constitute the criminal offense charged, the motion to dismiss must be overruled. State

v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165 (2d Dist.1989). We review a trial

court’s motion to dismiss decision de novo. State v. Cassel, 2016-Ohio-3479, 66 N.E.3d

318, ¶ 19 (2d Dist.).



                                        Analysis

       {¶ 4} This case turns on the applicability of Pittman, 150 Ohio St.3d 113, 2016-

Ohio-8314, 79 N.E.3d 531, to the facts of this case.            Pittman’s children were
                                                                                          -4-


emancipated in August 2006 with the emancipation resulting in, quite naturally, the

termination of Pittman’s child support obligation. Pittman had a child support arrearage

which was reduced to a judgment, and Pittman was ordered to pay a monthly amount

toward the arrearage until it was eliminated. Three years later, after Pittman failed to

pay the arrearage as ordered, he was indicted for a felony violation of R.C. 2919.21(B).

       {¶ 5} Pittman asserted that, since the children were emancipated, his failure to pay

the arrearage, though court-ordered, could not constitute a violation of R.C. 2919.21(B).

The Supreme Court agreed stating that “because [R.C. 2919.21(B)] uses 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. The court, therefore,

ruled that Pittman, based upon the children’s emancipation, “had no current legal

obligation to support his * * * children[,]” and, as such, he “was not subject to prosecution

under R.C. 2919.21(B) for his failure to make payments on the child support arrearage

* * *.” Id. at ¶ 23. The Pittman opinion, using very broad language, does state that

“Pittman’s criminal liability for nonpayment of support ended * * * when the children were

emancipated.” Id. at ¶ 19. This statement, however, is not the holding of the case; the

holding, as noted, is 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.

       {¶ 6} Justice Lanzinger concurred in judgment only in Pittman, and she wrote a

concurring opinion joined by two other justices. The concurring opinion states that she

“can accept that [R.C 2919.21(B)] limits prosecutions based on child support orders to

those with current obligations rather than arrearages. But I disagree with the statement
                                                                                       -5-


that ‘Pittman’s criminal liability for nonpayment of support * * * ended when his children

were emancipated.’ ” Pittman ¶ 26 (Lanzinger, J., concurring), quoting the majority

opinion at ¶ 19.

       {¶ 7} As noted, we recently decided two cases regarding the applicability of

Pittman, State v. Ferguson, 2018-Ohio-4446, __ N.E. 3d __, and State v. Miles, 2018-

Ohio-4444, __ N.E.3d __. The charging document in each case (an indictment) was filed

after the defendant’s child support obligation had terminated due to emancipation. But,

in each case, the nonsupport timeframe set forth in the indictment was before

emancipation, and, thus, covered a period when the defendant had been obligated to pay

court-ordered child support.   We concluded that these facts allowed Pittman to be

distinguished. In Miles, we summarized our conclusion as follows:

              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 Miles

       was charged with nonsupport for failing to provide support before his child
                                                                                         -6-


       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.

(Emphasis sic.) Miles at ¶ 12. See also Ferguson at ¶ 15.

       {¶ 8} We also recognized in each of our opinions that the Eleventh District, in State

v. Hubbard, 2018-Ohio-3627, __ N.E.3d __ (11th Dist.), has reached a contrary

conclusion. Hubbard was indicted under R.C. 2919.21(A)(2) and (B), but, otherwise, the

essential facts of the case are the same as in Ferguson, Miles, and the pending case.

The Hubbard majority concluded that a fair, accurate reading of Pittman requires the

“conclusion that a defendant cannot be charged with criminal nonsupport following the

emancipation of his children * * *.” Hubbard at ¶ 16.

       {¶ 9} In Miles, we stated the following in response to the holding in Hubbard:

              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 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.

Miles at ¶ 15, citing Hubbard at ¶ 28 (O’Toole, J., dissenting).

       {¶ 10} We continue to adhere to our conclusion, as expressed in Ferguson and

Miles, that State v. Pittman “does not preclude prosecution [under R.C. 2919.21(B)] when

a current support order existed during the time periods listed in the individual counts of
                                                                                          -7-


the indictment [or complaint], even though [the charging document] was filed after the

dependents were emancipated and the defendant’s support obligation was terminated.”

Miles at ¶ 16; Ferguson at ¶ 19.

       {¶ 11} The trial court’s judgment is reversed, and the matter is remanded for further

proceedings.

       {¶ 12} However, because we recognize that our judgment in this case is in conflict

with the Eleventh District’s judgment in Hubbard, 2018-Ohio-3627, __ N.E.3d __, we sua

sponte certify a conflict to the Supreme Court of Ohio pursuant to Article IV, Section

3(B)(4), Ohio Constitution. The certified question is:

               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?

       {¶ 13} We note that our sua sponte decision to certify a conflict does not relieve

the parties of the obligation to follow all Supreme Court procedural rules governing the

filing of an appeal of right. We also direct the parties to S.Ct.Prac.R. 8.01, which requires

“an interested party to the proceeding” to file a notice of the certified conflict in the

Supreme Court.



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



WELBAUM, P.J. and FROELICH, J., concur.
                        -8-




Copies sent to:

Christopher A. Murray
Adam J. Stout
Hon. Michael K. Murry
