[Cite as State v. D.L.B., 2017-Ohio-1126.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                     No. 16AP-632
v.                                               :                 (C.P.C. No. 14CR-6123)

[D.L.B.],                                        :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                             DECISION

                                      Rendered on March 28, 2017


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

                 On brief: Todd W. Barstow, for appellant. Argued:
                 Todd W. Barstow.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, D.L.B., appeals from a judgment of the Franklin
County Court of Common Pleas finding him guilty of nonsupport of dependents in
violation of R.C. 2919.21. For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} The Franklin County Grand Jury indicted appellant on November 18, 2014,
on two counts of nonsupport of dependents pursuant to R.C. 2919.21, both felonies of the
fifth degree. Count 1 of the indictment alleged that appellant:
                 [O]n or about November 9, 2010 to November 9, 2012, within
                 the County of Franklin aforesaid, in violation of section
                 2919.21 of the Ohio Revised Code, did recklessly abandon or
                 fail to provide adequate support to the person's child, [E.B.],
                 who was under age eighteen and/or did recklessly abandon,
No. 16AP-632                                                                                2

              or fail to provide support as established by a court order to
              [E.B.], whom, by court order or decree, [D.L.B.] was legally
              obligated to support and the offender failed to provide
              support for a total accumulated period of twenty-six weeks out
              of one hundred four consecutive weeks, whether or not the
              twenty-six weeks were consecutive.

(Indictment at 1.) Count 2 of the indictment recited the same allegations except the date
of the offense was November 10, 2012 to November 10, 2014. Id.
       {¶ 3} On July 19, 2016, a jury trial began in the Franklin County Court of
Common Pleas. Trial testimony revealed that E.B. was born on April 29, 1997. K.M. is
E.B.'s mother and has had custody of him since birth. (Tr. Vol. I at 37, 43.) At some point
after E.B.'s birth, K.M. went to the Franklin County Child Support Enforcement Agency
("CSEA") and established, through DNA testing, that appellant was E.B.'s father. (Tr. Vol.
I at 38.) In January 1998, appellant was ordered by the Franklin County Juvenile Court to
pay child support for his son. (Tr. Vol. I at 39; State's Ex. A.) K.M. testified that she had
initially received payments through the CSEA, but had not received any payments since
E.B. was 10 years old, i.e., in 2007. (Tr. Vol. I at 45-46.) The records show that appellant's
last regular child support payment was on November 29, 2007, with the last payment of
any kind occurring on June 1, 2009. (Defendant's Ex. 1.) K.M. testified that she supported
her son by working two jobs. (Tr. Vol. I at 43.)
       {¶ 4} Julie Hammond, a client affairs officer with the CSEA, testified that CSEA's
records showed no payments were made by appellant from November 1, 2010 through
November 30, 2014, those being the relevant dates in the indictment. (Tr. Vol. II at 56,
65-66; State's Ex. C.) Hammond testified that the state authorizes the CSEA to go to court
to administratively, through the Bureau of Motor Vehicles ("BMV"), suspend somebody's
driver's license if they do not pay their court-ordered child support. (Tr. Vol. II at 71.)
CSEA can bring about a license suspension if the obligor is at least one month behind on
payments. (Tr. Vol. II at 71-72.)       She further testified that it is a "discretionary
enforcement" practice and depends in large part on the nature of the communication, if
any, of the obligor with the CSEA. (Tr. Vol. II at 72.) Hammond also testified that a
license suspension can be removed if a suspended license would stand in the way of an
obligor obtaining employment. (Tr. Vol. II at 73.)
No. 16AP-632                                                                             3

        {¶ 5} Appellant testified that, at one time, he lived in Columbus, but he has lived
in Warren for several years. (Tr. Vol. II at 80-82.) He described how he had worked hard
to earn his commercial driver's license ("CDL") and had gained steady employment as a
truck driver. He paid child support as ordered through wage withholding. However, at
some point, he failed to make support payments, and the CSEA suspended his driving
privileges through the BMV. After that, he testified that he struggled to find employment,
holding a series of menial jobs and caring for elderly family members. (Tr. Vol. II at 80-
108.)
        {¶ 6} However, on cross-examination, appellant testified that he was not working
as a truck driver, but was taking care of his grandmother and, therefore, was in arrears on
his child support payments at the time his CDL was suspended. (Tr. Vol. II at 98-99.) In
addition, after his license suspension, appellant worked several jobs but did not make any
child support payments. (Tr. Vol. II at 105-06.) On July 21, 2016, the jury found appellant
guilty on Count 1 of the indictment, but were unable to render a verdict on Count 2 of the
indictment. The state ultimately dismissed Count 2 of the indictment. On August 8, 2016,
the trial court held a sentencing hearing and imposed a term of community control,
suspending a one-year term of incarceration, and ordered appellant to pay an arrearage
amount of $33,779.85. (Aug. 9, 2016 Jgmt. Entry at 1-2.) Appellant filed a timely notice
of appeal with this court on September 7, 2016.
II. ASSIGNMENT OF ERROR
        {¶ 7} Appellant assigns the following errors:
              I. THE TRIAL COURT ERRED AND DEPRIVED
              APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
              BY THE FOURTEENTH AMENDMENT TO THE UNITED
              STATES CONSTITUTION AND ARTICLE ONE SECTION
              TEN OF THE OHIO CONSTITUTION BY FINDING HIM
              GUILTY OF NONSUPPORT OF DEPENDENTS AS THAT
              VERDICT WAS NOT SUPPORTED BY SUFFICIENT
              EVIDENCE AND WAS ALSO AGAINST THE MANIFEST
              WEIGHT OF THE EVIDENCE.

              II. APPELLANT INTRODUCED SUFFICIENT CREDIBLE
              EVIDENCE TO ESTABLISH THE AFFIRMATIVE DEFENSE
              SET FORTH IN R.C. 2919.21(D) BY A PREPONDERANCE OF
              THE EVIDENCE.
No. 16AP-632                                                                              4

III. ASSIGNMENT OF ERROR ONE—CONVICTIONS DID NOT LACK
SUFFICIENT EVIDENCE, NOR WERE THEY AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE

       {¶ 8} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). We examine the evidence in the light most favorable to
the state and conclude whether any rational trier of fact could have found that the state
proved, beyond a reasonable doubt, all of the essential elements of the crime. State v.
Jenks, 61 Ohio St.3d 259 (1991). In reviewing the sufficiency of the evidence, this court
must not "disturb the verdict unless [the court] determine[s] that reasonable minds could
not arrive at the conclusion reached by the trier of fact" and reviewing courts do not
evaluate witness credibility when reviewing the sufficiency of the evidence. State v. Saleh,
10th Dist. No. 07AP-431, 2009-Ohio-1542, ¶ 81.
       {¶ 9} This court in State v. Baatin, 10th Dist. No. 11AP-286, 2011-Ohio-6294, ¶ 8-
11, stated the applicable law concerning manifest weight of the evidence:
              Although sufficiency and manifest weight are different legal
              concepts, manifest weight may subsume sufficiency in
              conducting the analysis; that is, a finding that a conviction is
              supported by the manifest weight of the evidence necessarily
              includes a finding of sufficiency. State v. McCrary, 10th Dist.
              No. 10AP-881, 2011-Ohio-3161, ¶ 11 * * *. Thus, a
              determination that a conviction is supported by the weight of
              the evidence will also be dispositive of the issue of sufficiency.
              Id. * * *

              The weight of the evidence concerns the inclination of the
              greater amount of credible evidence offered to support one
              side of the issue rather than the other. State v. Thompkins, 78
              Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. * * *

              When presented with a challenge to the manifest weight of the
              evidence, an appellate court may not merely substitute its
              view for that of the trier of fact, but must review the entire
              record, weigh the evidence and all reasonable inferences,
              consider the credibility of witnesses and determine whether in
              resolving conflicts in the evidence, the trier of fact clearly lost
              its way and created such a manifest miscarriage of justice that
              the conviction must be reversed and a new trial ordered. Id. at
              387. An appellate court should reserve reversal of a conviction
              as being against the manifest weight of the evidence for only
No. 16AP-632                                                                                  5

                 the most " 'exceptional case in which the evidence weighs
                 heavily against the conviction.' " Id.; State v. Strider-
                 Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.

                 In addressing a manifest weight of the evidence argument, we
                 are able to consider the credibility of the witnesses. State v.
                 Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6.
                 However, in conducting our review, we are guided by the
                 presumption that the jury * * * " 'is best able to view the
                 witnesses and observe their demeanor, gestures and voice
                 inflections, and use these observations in weighing the
                 credibility of the proffered testimony.' " Id. * * *. Accordingly,
                 we afford great deference to the jury's determination of
                 witness credibility. State v. Redman, 10th Dist. No. 10AP-654,
                 2011-Ohio-1894, ¶ 26.

          {¶ 10} Here, appellant fails to point to any evidence in the record to support his
argument. Appellant has not explained which element or elements of the offense received
less than sufficient support. As such, this court could simply ignore this assignment of
error pursuant to App.R. 12(A)(2) and 16(A)(7). Appellate courts are not required to
search the record for evidence supporting an appellant's argument. Natl. City Real Estate
Servs. LLC v. Shields, 11th Dist. No. 2012-T-0076, 2013-Ohio-2839, ¶ 42. However, in
the interest of justice, we will address appellant's first assignment of error.
          {¶ 11} To support a fifth-degree felony offense, the state was required to provide
sufficient evidence that the nonsupport occurred for at least 26 weeks out of a 104
consecutive week period of time. R.C. 2919.21(G)(1). The state's case was supported by
the testimony of K.M. and Hammond. Collectively, they gave unrebutted testimony that
appellant was the obligor on a child support order and that he had not made any
payments between November 1, 2010 and November 30, 2014. Therefore, the state
presented sufficient evidence to support a conviction for nonsupport as a fifth-degree
felony.
          {¶ 12} After a thorough review, we find that the jury did not lose its way, nor create
a manifest miscarriage of justice. We find that the evidence supports the jury's verdict.
Accordingly, appellant's conviction is supported by sufficient evidence, and is not against
the manifest weight of the evidence. Therefore, appellant's first assignment of error is
overruled.
No. 16AP-632                                                                            6

IV. ASSIGNMENT OF ERROR TWO—APPELLANT DID NOT PROVE AN
AFFIRMATIVE DEFENSE

       {¶ 13} Appellant argues that he introduced sufficient and competent evidence to
establish by a preponderance of the evidence an affirmative defense as defined by R.C.
2919.21(D). In effect, appellant contends that his conviction for nonsupport was against
the manifest weight of the evidence. R.C. 2919.21(D) provides an affirmative defense to a
prosecution brought under R.C. 2919.21(B). The burden of production and the burden of
proof by a preponderance of the evidence for the affirmative defense is upon the accused.
R.C. 2901.05(A). In this case, appellant had to prove, by a preponderance of the evidence,
that: (1) he is unable to provide the court-ordered support; and (2) he did provide such
support as was within his ability and means. State v. Brown, 5 Ohio App.3d 220, 222 (5th
Dist.1982). "Lack of means alone cannot excuse lack of effort." Id.
       {¶ 14} Appellant claims that his appeal is in accord with our decision in State v.
Holmes, 10th Dist. No. 03AP-797, 2004-Ohio-2135. In Holmes, this court found that
Holmes had introduced sufficient evidence at trial as to the nonsupport affirmative
defense. In Holmes, this court found that Holmes was unable to work at times due to
medical problems, but that he had provided the support that was within his means when
he was working, and by supporting his son during periods in which the son lived with
him. Holmes at ¶ 16. This court stated "[a]ppellant provided evidence both that he was
unable to provide the court-ordered support, and he did provide such support as was
within his ability and means." Id. No such evidence was presented here.
       {¶ 15} In contrast to Holmes, appellant did not claim, nor was there any evidence,
that he had any problems that prevented him from working. He claimed that he had not
been able to find work after his CDL suspension. However, based on his testimony,
appellant had stopped working and, as a result, was in arrears on his child support
payments, prior to his CDL suspension. Appellant also testified that he had at least two
jobs after his license suspension, but that he had failed to forward any money to the
CSEA. He made no support payments during the period covered by the indictment. In
short, appellant did not prove by a preponderance of the evidence that he was "unable" to
provide the ordered support, and that he provided "the support that was within [his]
ability and means." R.C. 2919.21(D).
No. 16AP-632                                                                                7

       {¶ 16} The jury found that appellant failed to meet the requirements of R.C.
2919.21(D), and rejected his affirmative defense argument. After a thorough review, we
find that the jury did not lose its way, nor create a manifest miscarriage of justice. We find
that the evidence in the record supports the jury's verdict. Accordingly, appellant's
second assignment of error is overruled.
V. DISPOSITION
       {¶ 17} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                           BROWN and BRUNNER, JJ., concur.
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