[Cite as State v. Pittman, 2014-Ohio-5001.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                              CASE NO. 9-13-65

        v.

ROBERT PITTMAN,                                           OPINION

        DEFENDANT-APPELLEE.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 09 CR 0337

                                      Judgment Affirmed

                          Date of Decision: November 10, 2014




APPEARANCES:

        Brent W. Yager and Megan K. Frericks for Appellant

        Rocky Ratliff for Appellee
Case No. 9-13-65


ROGERS, J.

        {¶1} Plaintiff-Appellant, the State of Ohio, appeals the judgment of the

Court of Common Pleas of Marion County granting Defendant-Appellant, Robert

Pittman’s, motion to dismiss. On appeal, the State argues that the trial court erred

by improperly dismissing counts five and six of the indictment because R.C.

2929.21(B) allows for the prosecution of those who violate a court order by failing

to pay child support arrearage. For the reasons that follow, we affirm the trial

court’s judgment.

        {¶2} The parties stipulated that on November 15, 1988, the Court of

Common Pleas of Marion County, Juvenile Division, ordered Pittman to pay child

support for Sate and Sade Douglas beginning January 6, 1989 until the children

had completed high school or were otherwise emancipated.

        {¶3} On November 20, 2006, the Court of Common Pleas of Marion

County, Family Division, declared Sade and Sate Douglas emancipated effective

August 31, 2006, due to being 18 years old. At that time, an arrearage order in the

amount of $34,313.45 was entered against Pittman for the child support he had

failed to previously pay.1

        {¶4} On January 19, 2007, a contempt motion was filed alleging that

Pittman had failed to pay the child support arrears ordered in the November 20,


1
  In that order, Pittman was ordered to pay $236.16 per month plus a 2% processing fee towards the
arrearages owed.

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2006 judgment entry. On December 6, 2007, Pittman was found in contempt for

failing to pay his arrearages. As a result of his contempt, Pittman was ordered to

serve 30 days in jail, with 25 suspended on the condition that Pittman begin

paying his child support arrears until paid in full.

       {¶5} On July 9, 2009, the Marion County Grand Jury indicted Pittman on

six counts of nonsupport of dependents in violation of R.C. 2919.21(B), felonies

of the fourth degree (counts 1-6), and three counts of nonsupport of dependents in

violation of R.C. 2919.21(B), felonies of the third degree (counts 7-9). All of the

counts alleged that Pittman had previously been convicted of or pled guilty to a

felony violation of R.C. 2919.21 in April of 2003. Revised Code 2919.21(B)

reads, “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.”

       {¶6} After the indictment was filed, no proceedings took place in this case

until almost four years later, when Pittman learned of the indictment through a

background check that was completed as part of his job application. On June 11,

2013, Pittman voluntarily appeared before the court to accept service of the

indictment and to be arraigned.




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       {¶7} On July 29, 2013, Pittman filed a motion to dismiss the indictment for

violating his constitutional right to speedy trial due to pre-indictment and post-

indictment delay. On August 19, 2013, the State filed a response.

       {¶8} According to the record, a hearing was held on Pittman’s motion to

dismiss on August 20, 2013. No transcript of this hearing was produced. The trial

court’s judgment entry states that at the hearing, Pittman orally sought amendment

of his motion to also seek dismissal of the indictment on the grounds of a violation

of the statute of limitations under R.C. 2901.13.

       {¶9} On August 26, 2013, the trial court filed its judgment entry on the

matter. In its entry, the court analyzed the relevant factors as described in Barker

v. Wingo, 407 U.S. 514 (1972), to determine whether Pittman’s constitutional right

to a speedy trial was violated. The trial court reasoned that the delay from the

indictment to arraignment was significant, that the delay was caused by the State,

that Pittman had no ability to assert a right to speedy trial because he was unaware

of the indictment, that when Pittman learned of the indictment he asserted his right

to a timely disposition, and that there was “likely to be some prejudice, at least

with respect to the oldest charges.” (Docket No. 28, p. 6-7). Thus, the trial court

concluded that Pittman’s “right to a speedy trial would be violated by the

prosecution of the offenses alleged in Counts 1, 2, 3, 4, 7, 8, and 9, which are all




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offenses which allege criminal conduct prior to July 1, 2007.”2 (Id. at 7). The

court further found that Pittman’s speedy trial rights were not violated as to

Counts 5 and 6, which alleged conduct after July 1, 2007, as “some civil

enforcement action [had] take[n] place in December 2007, and the likelihood of

prejudice is less with respect to the more recent allegations.” (Id.).

        {¶10} Subsequently, on September 24, 2013, Pittman filed a second motion

to dismiss the remaining counts of the indictment (counts 5 and 6), arguing that he

was being prosecuted for failing to pay an “arrearage only” order, rather than

failing to pay a child support order, and that such an order could not be the basis of

prosecution under R.C. 2919.21(B). To support his assertion, Pittman cited the

dissenting opinion in State v. Dissinger, 5th Dist. Delaware No. 02CA-A-02-010,

2002-Ohio-5301. In Dissinger, a 2-1 majority found that an “arrearage only”

order could be the basis of prosecution under R.C. 2919.21(B). Id. at ¶ 12.

However, the dissent contended that the wording of the statute seemed to preclude

prosecution where there was no current legal support obligation for the children.

Id. at ¶ 17-19.

        {¶11} On October 16, 2013, the State filed a Bill of Particulars clarifying

the allegations contained in Counts 5 and 6, which stated that “on or about July 1,

2007 through June 30, 2009, [Pittman] did fail to provide support as established by


2
 The court also found that Counts 1, 2, 7, 8, and 9, which alleged conduct prior to June 11, 2007, were
barred by the statute of limitations.

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a court order * * *[.] [Pittman] failed to provide support for a total accumulated

period of 101 weeks out of 104 consecutive weeks.” (Docket No. 35, p. 1). The

wording is the same in the Bill of Particulars for Counts 5 and 6 except for the fact

that Count 5 refers to Pittman’s failure to pay his arrears to Alma Douglas for Sate

Douglas, while Count 6 refers to Pittman’s failure to pay his arrears for Sade

Douglas. On November 4, 2013, the parties filed agreed factual stipulations so

that the court could make a pre-trial ruling on whether Pittman could be

prosecuted under R.C. 2919.21(B) for failing to pay an “arrearages only order.”

(Docket No. 37).

       {¶12} On November 5, 2013, a hearing was held on Pittman’s second

motion to dismiss. At the hearing, the parties clarified the stipulated facts and

presented the question to the court of whether R.C. 2919.21(B) criminalized

failure to pay an “arrearage only” order. Nov. 5, 2013 Tr., p. 15.

       {¶13} On November 14, 2013, the trial court filed its entry granting

Pittman’s second motion to dismiss. In the entry, the trial court agreed with the

dissent in Dissinger. The trial court reasoned that words in a statute should “be

construed according to the rules of grammar and common usage,” and that

offenses “shall be strictly construed against the state, and liberally construed in

favor of the accused.” (Docket No. 39, p. 6). The trial court found that “some

meaning must be given to the phrase in R.C. 2919.21, “to another person whom …


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the person is legally obligated to support.” (Emphasis sic.) (Id.). The trial court

read this to mean that “at the time of the commission of the criminal offense, there

must be a current obligation of support.” (Id. at 7). As Pittman’s “current”

obligation concluded with the children’s emancipation in 2006, the trial court

agreed with the dissent in Dissinger and granted Pittman’s second motion to

dismiss Counts 5 and 6 of the indictment. (Id.).

       {¶14} It is from this judgment that the State appeals, asserting the following

assignment of error for our review.

                               Assignment of Error

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       IMPROPERLY DISMISSED COUNTS FIVE AND SIX OF
       THE INDICTMENT FILED AGAINST THE DEFENDANT-
       APPELLEE BECAUSE O.R.C. 2919.21(B) ALLOWS FOR THE
       PROSECUTION OF THOSE WHO VIOLATE A COURT
       ORDER BY FAILING TO PAY A CHILD SUPPORT
       ARREARAGE.

       {¶15} In its sole assignment of error, the State argues that the trial court

erred in granting Pittman’s second motion to dismiss. Specifically, the State urges

this court to follow the majority opinion in Dissinger, and reverse the trial court’s

ruling. We decline to do so.

       {¶16} We review a trial court’s dismissal of an indictment, pursuant to

Crim.R. 48, under an abuse of discretion standard. See State v. Busch, 76 Ohio

St.3d 613, 616 (1996); State v. Bales, 9th Dist. Lorain No. 11CA010126, 2012-


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Ohio-4426, ¶ 12. A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18

(2d Dist.). When applying the abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court. State v. Slappey, 3d

Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12.

       {¶17} Pursuant to R.C. 2919.21(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.” It is undisputed that

Pittman’s children are emancipated and his only obligation, currently, is to pay the

arrearages that have accumulated while his daughters were minors.

       {¶18} “In construing statutes, we must read words and phrases in context

and construe them in accordance with rules of grammar and common usage.”

Kimber v. Davis, 10th Dist. Franklin No. 12AP-888, 2013-Ohio-1872, ¶ 12, citing

State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 11.

Further, it is the duty of this court “to give effect to the words used in a statute, not

to insert words not used.” State v. S.R., 63 Ohio St.3d 590, 595 (1992), citing

Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St.3d 50 (1988),

paragraph three of the syllabus. If a statute’s language is clear and unambiguous,




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the court must apply the statute as written. Cheap Escape Co., Inc. v. Haddox,

L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, ¶ 9.

         {¶19} R.C. 2919.21(B) is unambiguous, and thus, we must give effect to its

plain meaning. Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the

syllabus.      Notably, the legislature used “is” when talking about the defendant’s

obligation of support. “ ‘Is’ is the present tense third person singular of the verb

‘to be.’ ” Ohio Bur. of Workers’ Comp. v. Dernier, 6th Dist. Lucas No. L-10-

1126, 2011-Ohio-150, ¶ 30; see also Webster’s Third New International

Dictionary 1197 (2002). Therefore, “is” refers to something being in the present,

not in the past or in the future. Dernier at ¶ 30.                    Since Pittman’s daughters are

emancipated, he was under no current legal obligation to support his children at

the time the State filed its indictment.3

         {¶20} We also find the majority opinion in Dissinger unpersuasive because

it relied on R.C. 3115.01’s definition of “child support order,” but that definition

only applies to sections 3115.01 to 3115.59 of the Revised Code. It is only

appropriate to look at other sections and chapters of the Revised Code when a

statute is ambiguous. See McAtee v. Ottawa Cty. Dept. of Human Servs., 111 Ohio

App.3d 812, 818 (6th Dist.1996) (applying the in pari materia rule of construction
3
  We also note that arrearages are paid to the custodial parents or a state agency as a reimbursement, not as
support for the child. See State v. Sorrell, 187 Ohio App.3d 286, 2010-Ohio-1618, ¶ 16 (2d Dist.) (“While
the object of a support order is clearly the welfare of the dependent child, the child’s claim to any arrearage
owed by the offender is secondary to that of the custodial parent or state agency tasked with the
responsibility of collecting and distributing the payments made pursuant to the support order fashioned by
the court.”). As such, there is a different level of necessity attached to arrearages.

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to an ambiguous statute).       Here, the statute is clear and unambiguous, and

therefore, it is unnecessary to look to other Chapters of the Revised Code to

ascertain the legislature’s intent.

       {¶21} Moreover, the term “child support order” is not even used in R.C.

2919.21(B). Instead, the legislature stated that, “[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.”             R.C.

2919.21(B). Where the legislature uses different terms between statutes, it should

be presumed that the legislature intended different meanings. State ex rel. Fink v.

Registrar, Ohio Bur. of Motor Vehicles, 12th Dist. Butler No. CA98-02-021, 1998

WL 634707, *2 (Sept. 14, 1998), citing Metro. Securities Co. v. Warren State

Bank, 117 Ohio St. 69, 76 (1927); see also State ex rel Cordray v. Court of Claims

of Ohio, 190 Ohio App.3d 161, 2010-Ohio-4437, ¶ 27 (10th Dist.). That a “child

support order” may include arrearages in R.C. 3115.01 has little persuasive effect

on whether an arrearage only order can create a violation under R.C. 2919.21.

       {¶22} If we were to look at other statutes to attempt to discern what the

legislature meant when enacting R.C. 2919.21, we should look to R.C. 2705.031,

which states that “[t]he court shall have jurisdiction to make a finding of contempt

for the failure to pay support and to impose the penalties set forth in section

2705.05 of the Revised Code in all cases in which past due support is at issue even


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if the duty to pay support has terminated * * *.”         (Emphasis added.) R.C.

2705.05(E).    The Ohio Supreme Court determined that because the legislature

“expressly granted a court the jurisdiction to hold contempt proceedings after the

obligation to support a child has ended” such action was proper. (Emphasis

added.) Cramer v. Petrie, 70 Ohio St.3d 131, 133-134 (1994). R.C. 2919.21 also

refers to the duty to pay support, but does not include that same explicit language

which would allow the prosecution of an arrearage only support order if the

defendant is not under a current legal obligation to support the child.

       {¶23} Even if we were to find that the statute is ambiguous, the rule of

lenity would require us to affirm the trial court’s judgment. The rule of lenity is

codified in R.C. 2901.04 and states that “sections of the Revised Code defining

offenses or penalties shall be strictly construed against the state, and liberally

construed in favor of the accused.” R.C. 2901.04(A). “ ‘[T]he ‘touchstone’ of the

rule of lenity ‘is statutory ambiguity.’ ” Bifulco v. United States, 447 U.S. 381,

387, 100 S.Ct. 2247 (1980), quoting Lewis v. United States, 445 U.S. 55, 65, 100

S.Ct. 915 (1980). Therefore, under this rule, ambiguity in a criminal statute “is

construed strictly so as to apply the statute only to conduct that is clearly

proscribed.” State v. Elmore, 122 Ohio St.3d 472, 2009-Ohio-3478, ¶ 38, citing

United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219 (1997).




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        {¶24} Arguably, while one interpretation of R.C. 2919.21(B) could allow

for the prosecution for nonpayment of an arrearage only child support order, it is

just as likely that the legislature intended that the statute only be used for the

prosecution of persons who are currently obligated to support his or her child, for

the reasons stated above. Without the State demonstrating that R.C. 2919.21

explicitly and unambiguously allows for the prosecution for nonpayment of an

arrearage only child support order, we must find in the defendant’s favor.

        {¶25} Accordingly, we overrule the State’s sole assignment of error.4

        {¶26} Having found no error prejudicial to the State in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                                               Judgment Affirmed

WILLAMOWSKI, P.J., concurs.

/jlr



SHAW, J., concurring separately in Judgment Only.

        {¶27} I concur in the judgment of the majority only for the reason that

under the factors set forth by the Supreme Court of the United States in Barker v.

Wingo, 407 U.S. 514 (1972), the unexplained delay of essentially four years

between indictment and arraignment in this case was presumptively unreasonable,


4
 We recognize that our decision is in conflict with State v. Dissinger, 5th Dist. Delaware No. 02CA-A-02-
010, 2002-Ohio-5301, and may be subject to certification pursuant to App.R. 25.

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Case No. 9-13-65


particularly in light of the fact that it appears that the prosecution only ever

proceeded at all because Pittman responded to authorities after learning of the

indictment while applying for a job. See also, State v. King, 8th Dist. Cuyahoga

No. 91909, 2009-Ohio-4551; State v. Stapleton, 41 Ohio App.2d 219 (3d

Dist.1974). As a result, I would find that for the reasons set forth in its judgment

entry of August 26, 2013, the trial court’s November 14, 2013, judgment

dismissing Counts 5 and 6 was warranted on constitutional speedy trial grounds.




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