[Cite as State v. Ferguson, 2018-Ohio-4446.]




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

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 27886
                                                     :
 v.                                                  :   Trial Court Case No. 2017-CR-2476
                                                     :
 JOHN FERGUSON III                                   :   (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 45422
       Attorney for Plaintiff-Appellee

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

                                               .............
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FROELICH, J.

       {¶ 1} After the trial court denied his motion to dismiss, John Ferguson III pled no

contest to four counts of nonsupport of dependents, a felony of the fifth degree, and the

court sentenced him to community control.        Ferguson appeals from his convictions,

claiming that the trial court erred in denying his motion to dismiss. He argues that State

v. Pittman, 150 Ohio St.3d 113, 2016-Ohio-8314, 79 N.E.3d 531, precludes his

prosecution under an indictment filed after his children were emancipated, even though

there was a current support order during the time periods listed in the individual counts of

the indictment. For the following reasons, the trial court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 2} In 2003, Ferguson and his wife divorced, and Ferguson’s wife was granted

custody of their three minor children: V.F. (born 1994), J.F. (born 1995), and M.F. (born

1997). Ferguson v. Ferguson, Montgomery C.P. No. 2002 DR 1528. Ferguson was

ordered to pay child support of $171 per month per child, plus additional amounts on his

child support arrearage, which had accrued during the divorce proceedings. Additional

arrearage accrued following the divorce.

       {¶ 3} V.F. was emancipated on June 8, 2012; J.F. was emancipated on June 8,

2014; and M.F. was emancipated on June 8, 2015.1 Ferguson’s on-going child support

obligation for each child was terminated on the date of emancipation.              In each

emancipation order, the domestic relations court also ordered Ferguson to pay a specific



1
 Ferguson’s motion to dismiss, filed in the trial court, asserted that the children were
emancipated on their 18th birthdays. However, the emancipation dates ordered by the
domestic relations court appear to be based on the children’s both reaching 18 years of
age and no longer continuously attending full-time an accredited high school.
                                                                                           -3-


amount per month on the support arrearage.          As of June 8, 2015, when M.F. was

emancipated, Ferguson had no on-going child support obligation, but he was required by

M.F.’s emancipation order to pay $563 per month on his child support arrearage.

       {¶ 4} On August 30, 2017, Ferguson was indicted on four counts of nonsupport of

dependents, in violation of R.C. 2919.21(B). The indictment alleged that Ferguson had

failed to support M.F. between July 1, 2011 and June 30, 2013 (Count 1) and between

July 1, 2013 and June 8, 2015 (Count 4), J.F. between July 1, 2011 and June 30, 2013

(Count 2), and V.F. between July 1, 2011 and June 8, 2012 (Count 3).

       {¶ 5} Ferguson moved to dismiss the indictment, raising two arguments. First,

citing Pittman, Ferguson claimed that he was no longer subject to a support order and

that his criminal liability for nonpayment of support ended when his children were

emancipated. Second, Ferguson claimed that three of the four counts were barred by

the six-year statute of limitations. He argued that “for any charges for nonsupport to be

timely they would have to apply to time periods no earlier than August 31, 2011.”

       {¶ 6} After an oral hearing on the motion, the trial court denied the motion to

dismiss. The court concluded that all of the charges were within the statute of limitations.

It explained that felony nonsupport of dependents constitutes a continuing course of

conduct, for which the statute of limitations does not begin to run until “such course of

conduct or the accused’s accountability for it terminates, whichever occurs first.” R.C.

2901.13(D). The court found that the statute of limitations for each count began on the

last date alleged (i.e., June 30, 2013 for Counts 1 and 2, June 8, 2012 for Count 3, and

June 8, 2015 for Count 4), all of which were within the six-year statute of limitations.

       {¶ 7} The trial court further held that Pittman did not preclude the prosecution.
                                                                                         -4-

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, stating: “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.” The trial court further noted that the

trial court does not lose jurisdiction in nonsupport matters merely because the child

becomes emancipated.

      {¶ 8} After the trial court denied his motion to dismiss, Ferguson pled no contest

to all counts of felony nonsupport of dependents. On January 11, 2018, the trial court

imposed community control sanctions. One of the conditions of community control was

that Ferguson pay restitution of $11,523.16 to Ohio Child Support Payment Central.

                                 II. Applicability of Pittman

      {¶ 9} In his sole assignment of error, Ferguson claims that the trial court erred in

denying his motion to dismiss.

      {¶ 10} “[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). We

review de novo a trial court’s decision on a motion to dismiss. Fields at ¶ 19.
                                                                                          -5-


         {¶ 11} Ferguson was indicted on four counts of violating R.C. 2919.21(B), which

prohibits a person from “fail[ing] 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.”

Ferguson argues that, according to Pittman, his criminal liability for non-payment ceased

when his children were emancipated. Ferguson emphasizes that, at the time of the

indictment, he was not under a current obligation to pay child support. Instead, he was

subject to an order to pay arrearages due to his children’s emancipation. Ferguson

asserts that Pittman precludes prosecution after emancipation, even though the charges

were based on time periods prior to emancipation when he was subject to a child support

order.

         {¶ 12} In Pittman, the defendant 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 court reduced his support arrearage to

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

Three years later, the defendant was indicted 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.

         {¶ 13} The Ohio Supreme Court agreed with Pittman. It concluded that, because

the statute 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.” Id. at

¶ 18. The court noted that Pittman was not under a court order to support his children

between 2007 and 2009, and the “2006 orders were not for support but instead granted
                                                                                          -6-

judgments against Pittman for the arrearage amounts.” Id. at ¶ 19. The court stated that

“Pittman’s criminal liability for nonpayment of support ended on August 31, 2006, when

his children were emancipated.” Id. The supreme 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 when the person has no current obligation of support

because the child who is the subject of the order is emancipated.” Pittman at ¶ 1.

       {¶ 14} Justice Lanzinger concurred in the judgment, but 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.” Pittman at ¶ 24 (Lanzinger,

concurring in judgment only). She stated that, “[o]n this point, I respectfully disagree with

the court’s analysis.” Id. In her concurring opinion, joined by two other justices, 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.   She

disagreed, however, with the majority’s broad statement that Pittman’s criminal liability

for nonpayment of support had ended on August 31, 2006, when his children were

emancipated. Id. at ¶ 26. Justice Lanzinger pointed out that the defendant might have

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

       {¶ 15} Despite the broad language of the Pittman holding, we find it appropriate to

read the Supreme Court’s holding in light of the factual circumstances before it.

Significantly, the Pittman defendant was charged with failing to provide support after

emancipation; Ferguson was charged with failing to provide support 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
                                                                                       -7-


support.” In other words, the prohibited conduct (“fail[ing] to provide support”) must

coincide with a current obligation to provide support. The Pittman defendant could not

be prosecuted for nonsupport under R.C. 2919.21(B) for failing to provide support after

emancipation (i.e., the time period alleged in the indictment), because his obligation to

provide support had terminated. In contrast, Ferguson was charged with nonsupport for

failing to provide support for a period of time before his children were emancipated.

Thus, his alleged failure to provide support coincides with his obligation to provide

support, and we conclude that Pittman does not preclude Ferguson’s prosecution.

      {¶ 16} We recognize that the Eleventh District recently addressed the same issue

under factual circumstances similar to those here and came to a different conclusion.

State v. Hubbard, 2018-Ohio-3627, __ N.E.3d __ (11th Dist.). The majority in Hubbard

agreed with Ferguson’s argument, concluding that Pittman applies “to all cases involving

nonpayment of child support.” (Emphasis sic.) Hubbard at ¶ 14.         The majority read

Pittman as saying that “a defendant cannot be charged with criminal nonsupport following

the emancipation of his children.” Id. at ¶ 16.

      {¶ 17} The Hubbard court found support in Justice Lanzinger’s concurring opinion

for its conclusion that Pittman does not apply solely to “arrearage-only” cases. The court

expressed that the concurring opinion’s disagreement with Pittman’s conclusion that the

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

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

involving nonpayment of child support.” (Emphasis sic.) Hubbard at ¶ 14. The Hubbard

court stated, “If the Pittman majority had intended for its holding to apply solely to

arrearage-only orders, it would have been entirely unnecessary and superfluous for the
                                                                                          -8-


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.

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

under R.C. 2919.21(B) following emancipation, we disagree that such a reading is

required. We note that the dissent in Hubbard agreed with our analysis, concluding that

Pittman did not apply, because unlike Pittman, the charges were not based on an

arrearage order but on a support order that existed during the time periods alleged in the

indictment. Hubbard at ¶ 28 (O'Toole, J., dissenting). Moreover, we find it 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. See

R.C. 2919.21(G)(1) (nonsupport for 26 out of 104 weeks consecutive constitutes a fifth-

degree felony).

       {¶ 19} In summary, the trial court did not err in denying Ferguson’s motion to

dismiss. 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. 2             Ferguson’s

assignment of error is overruled.

                                      III. Conclusion

       {¶ 20} The trial court’s judgment will be affirmed.

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


2 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.
                                    -9-




DONOVAN, J. and HALL, J., concur.


Copies sent to:

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