         [Cite as State v. Brice, 2017-Ohio-974.]
                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO


STATE OF OHIO,                                      :   APPEAL NO. C-160473
                                                        TRIAL NO. B-1503564
   Plaintiff-Appellee,                              :

   vs.                                              :      O P I N I O N.

ANTHONY BRICE,                                      :

   Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 17, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havelin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michaela M. Stagnaro for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS

CUNNINGHAM, Judge.
       {¶1}    Following a bench trial, defendant-appellant Anthony Brice was found

guilty as charged of two counts of nonsupport of dependents, in violation of R.C.

2919.21(A)(2) and 2929.21(B). The trial court merged the R.C. 2919.21(A)(2) charge

with the R.C. 2919.21(B) charge, and sentenced Brice to five years of community

control on the (B) charge. This appeal followed.

                                             Facts

       {¶2}    Brice was indicted in July 2015 and was appointed counsel. Between

August 2015 and January 28, 2016, the trial court granted Brice three pretrial

continuances for various reasons, including a scheduling conflict, a request for more

time for counsel to review discovery, and a representation that the state and Brice

were in the midst of plea negotiations. Apparently, plea negotiations were

unproductive because, on October 26, 2015, Brice appeared in court, waived his right

to a jury trial, and requested a bench trial. The court scheduled a bench trial for

January 28, 2016. On that date, the state had its witnesses present and was ready to

proceed to trial. Brice appeared with appointed counsel, but told the court that he

had “partially given a deposit” to a law firm, and that he had retained private

counsel. Brice also told the court that he had not spoken with his private attorney

since October 2014. The trial court was reluctant to grant Brice a continuance, but

did so stating, “Now, let me tell you, I don’t believe this story about hiring a lawyer in

2014. If you are going to hire a lawyer, get busy and hire a lawyer. I want to see the

lawyer on the next court date.       * * * Whether it is retained counsel or * * *

[appointed counsel], we are going forward at the next setting.”

       {¶3}    At the next setting, Brice appeared with his appointed counsel and

requested another continuance. Brice again claimed that he had hired an attorney.

Brice told the court that his private attorney had had a trial in Clermont County and

“was going to fax you over something.” The court responded,




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                        OHIO FIRST DISTRICT COURT OF APPEALS


       Well, today is March 1, 2106. The case was scheduled to be called for

       trial at 9 a.m. It is now seven minutes after 12:00. On 1/28/2016, the

       case was scheduled for trial. On that date you requested a continuance

       so that you could retain private counsel. I gave you that continuance. So

       the matter has been set from 1/28/2016 until today’s date. We are going

       forward today.

       {¶4}   The case proceeded to trial. The state’s first witness was Ed Schneider,

an employee of the Hamilton County Department of Job and Family Services.

Schneider testified that the Hamilton County Juvenile Court had ordered Brice to

pay $245.67 a month in child support for his daughter, effective June 1, 2012.

According to Schneider, between July 1, 2013, and July 1, 2105—the time period

delineated in Brice’s indictment—Brice had missed 95 weeks of payments. Schneider

testified that during the indictment period Brice had made three payments totaling

$592.82. The court admitted into evidence the juvenile court order establishing child

support and a printout from the Statewide Enforcement Tracking System (“SETS”)

showing the few payments that Brice had made during the indictment period.

       {¶5}   The state’s next witness was Niambi Odoms, the mother of Brice’s

child. Odoms testified that between July 1, 2013, and July 1, 2015, she had received

only a few child-support payments from Brice. The assistant prosecutor asked

Odoms if she felt that Brice had “adequately supported his child.” She responded,

“No.” Defense counsel did not have any questions for Odoms, but the trial court did.

In response to several questions from the court, Odoms stated that Brice fed and

paid for items when their daughter was with him every other weekend, but that

anything he purchased for their daughter stayed at his home.

       {¶6}   Brice testified in his own defense. He claimed that he saw his daughter

more than the court-ordered visitation of every other weekend. According to Brice,

he often had his daughter for extended periods of time during school vacations.




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Brice also testified that he had paid for school supplies and field trips, and that he

had purchased clothing for his daughter “all the time.”       Brice claimed that his

daughter had taken clothing and toys that he had purchased to Odoms’s house. Brice

offered into evidence a collection of receipts from 2013 and 2014 totaling $4720.72

that he asserted were receipts for items that he had purchased for his daughter.

       {¶7}    On cross-examination, Brice admitted that he had been employed

during the indictment period and that he had earned $400 to $600 a week.            In

regard to Brice’s receipts, the state pointed out that many of the purchased items did

not appear to be child-related expenses, including purchases of motor oil, dog food,

toilet paper, and a toilet seat.

       {¶8}    After the defense rested, the court found Brice guilty as charged and

ordered a presentence investigation report (“PSI”). According to the PSI, Brice had a

total child-support arrearage of $13,104.32. At the sentencing hearing, the trial court

merged the R.C. 2929.21(A)(2) charge into the R.C. 2929.21(B) charge, and

sentenced Brice on the (B) charge to five years of community control. As one of the

conditions of community control, the trial court ordered Brice to pay $13,104.32 in

child-support arrearage. The arrearage amount included all missed payments, and

not just those missed during the indictment period. Before sentencing him, the court

asked Brice how much he made and how frequently he was paid. Brice said that he

made between $400 and $850 a week and was paid weekly. Brice is a high school

graduate and a certified electrician.

           The Court did not err in Denying Brice a Fifth Continuance

       {¶9}    In his first assignment of error, Brice contends that the trial court

erred when it denied his March 1, 2016, request for a continuance. According to

Brice, the court’s denial prejudiced his rights to a fair trial and the effective

assistance of counsel. This argument has no merit.




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                        OHIO FIRST DISTRICT COURT OF APPEALS


          {¶10} We review a trial court’s decision to grant or deny a continuance for an
abuse of discretion. See State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078

(1981).      An abuse of discretion means that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. AAAA Ents., Inc. v. River Place

Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

When evaluating a motion for a continuance, a court should consider the length of

the delay requested, whether other continuances have been requested and received,

the inconvenience to parties, witnesses, opposing counsel and the court, the reason

for the delay, whether the party contributed to the circumstances that gave rise to the

request for a continuance, and any other relevant factors. In re E.A., 1st Dist.

Hamilton No. C-130041, 2014-Ohio-280, ¶ 5, citing Unger at 67-68.                 When

considering the propriety of denying a motion for a continuance, this court considers

the reasons presented at the time the request was denied. See In re Am. Transm.

Sys., 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427, ¶ 32.

          {¶11} Here, Brice had already been granted four continuances when he
asked for yet another continuance on March 1, 2106. When the trial court had

granted Brice his fourth continuance on January 28, 2016, the state had been ready

for trial and had had its witnesses present. On March 1, 2016, Brice claimed for the

second time that he had hired private counsel, and asked for yet another

continuance. The trial court noted that Brice’s trial should have started three hours

earlier that day, and that—even with this delay—private counsel had not made an

appearance or contacted the court. Further, Brice had been told in no uncertain

terms that the trial would go forward on March 1, 2016, and that if Brice wished to

retain counsel he needed to do so by that date.

          {¶12} Under these circumstances, we find no abuse of discretion in the trial
court’s decision denying Brice’s request for a continuance. Since the trial court did




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                       OHIO FIRST DISTRICT COURT OF APPEALS


not err, we need not determine whether its failure to grant a continuance was

prejudicial. Brice’s first assignment of error is overruled.

                         Brice’s Counsel was not Ineffective

       {¶13} In his second assignment of error, Brice argues that he was denied the
effective assistance of counsel. He was not.

       {¶14} To sustain a claim for ineffective assistance of counsel, the defendant
must demonstrate that counsel’s performance was deficient, and that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142,

538 N.E.2d 373 (1989). Trial counsel is entitled to a presumption that all decisions

fall within the wide range of reasonable professional assistance. State v. Thompson,

33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987); State v. Bell, 2015-Ohio-1711, 34 N.E.3d

405, ¶ 53 (1st Dist.).    Further, to establish prejudice resulting from a deficient

performance, an appellant must show that there is a reasonable probability that “but

for” counsel’s mistake, the result of the trial would have been different. Strickland at

694; Bradley at 142.

       {¶15} Here, Brice contends that his attorney was deficient in that he “seemed
wholly unprepared for trial as he did not have all of the appropriate receipts as

exhibits,” failed to question Odoms about the relationship between Brice and his

daughter, and failed to object to the assistant prosecutor’s question to Odoms

concerning whether Odoms felt that Brice had provided “adequate support” for their

daughter.

       {¶16} As to the first allegation, there is nothing in the record demonstrating
that counsel failed to produce all of Brice’s receipts. The defense offered into

evidence multiple receipts from 2013 and 2014 purporting to show that Brice had

spent over $4000 on his daughter during that time period. In regard to Brice’s

second allegation, Brice’s attorney’s decision not to ask Odoms about Brice’s




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                        OHIO FIRST DISTRICT COURT OF APPEALS


relationship with his daughter can be fairly characterized as trial strategy, as it was

reasonable to assume that Odoms would not testify favorably about Brice. And we

note that when the court questioned Odoms about Brice, her testimony was largely

detrimental to him. Finally, while counsel perhaps should have objected to the

assistant prosecutor’s question that essentially required Odoms to make a legal

conclusion concerning “adequate support,” Brice has not shown that there is a

reasonable probability that “but for” the failure to object, the outcome of his trial

would have been otherwise.

          {¶17} We therefore overrule the second assignment of error.
                     Weight and Sufficiency of the Evidence

          {¶18} In his third assignment of error, Brice argues that his conviction was
not supported by sufficient evidence and was against the manifest weight of the

evidence.

          {¶19} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. In regard to the weight of the evidence, we

review the entire record, weigh the evidence, consider the credibility of the witnesses,

and determine whether the trier of fact clearly lost its way and created a manifest

miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).

          {¶20} Under R.C. 2919.21(B), the state had to prove that Brice had recklessly
failed to provide support to his daughter, as established by a court order, for 26 out

of 104 consecutive weeks. Schneider testified that during the 104-week period of

July 1, 2013, through July 1, 2105, Brice had missed 95 weeks of court-ordered child-

support payments.        The state offered into evidence the juvenile court order




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                      OHIO FIRST DISTRICT COURT OF APPEALS


establishing child support, as well as a SETS printout that corroborated Schneider’s

testimony. And Odoms testified that she had only received a few child-support

payments from Brice. In his defense, Brice essentially contended that he had

provided other and adequate support to his daughter during the indictment period.

       {¶21} Viewing this evidence in a light most favorable to the state, we hold
that the state proved all the elements of R.C. 2919.21(B) beyond a reasonable doubt.

And while Brice attempted to exonerate himself, there is no indication that the trial

court “lost its way” in choosing to believe the state’s version of events over Brice’s.

The trial court’s judgment was therefore not against the weight or the sufficiency of

the evidence. Brice’s third assignment of error is overruled.

                                    Community Control

       {¶22} In his fourth assignment of error, Brice contends that the trial court
erred when it ordered him to pay his entire child-support arrearage of $13,104.32 as

a condition of his community control. Because Brice did not object on this basis in

the trial court, he has forfeited all but plain error on appeal. See Crim.R. 52(B); State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23; State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31.

       {¶23} Brice’s argument is two-fold. First, Brice contends that the trial court
abused its discretion when it ordered him to pay more than the child-support

arrearage that had accumulated during the indictment period. Second, Brice

contends that the trial court erred when it failed to inquire as to his ability to pay the

full amount of the child-support arrearage. Neither argument has merit.

       {¶24} We review the trial court’s imposition of a community-control
condition for an abuse of discretion. See State v. Talty, 103 Ohio St.3d 177, 2004-

Ohio-4888, 814 N.E.2d 1201, ¶ 10. In doing so, this court must “consider whether

the condition (1) is reasonably related to rehabilitating the offender, (2) has some

relationship to the crime of which the offender was convicted, and (3) relates to




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                       OHIO FIRST DISTRICT COURT OF APPEALS


conduct which is criminal or reasonably related to future criminality and serves the

statutory ends of probation.” State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469

(1990); see State v. Cauthen, 1st Dist. Hamilton No. C-130475, 2015-Ohio-272, ¶ 11.

The statutory ends of probation, which is the functional equivalent of community

control, are doing justice, rehabilitating the offender, and insuring good behavior.

Talty at ¶ 11 and ¶ 16; Cauthen at ¶ 11.

         {¶25} Here, Brice asserts that any arrearage that accumulated prior to or
after the indictment period fails to meet the second Jones requirement in that it was

not related to his violation of R.C. 2919.21(B). We find this argument unpersuasive.

         {¶26} Brice’s conviction was based on his failure to pay court-ordered child
support for 95 weeks between July 1, 2103, and July 1, 2015. Ordering Brice to pay

Odoms the full amount of his court-ordered child support is directly related to this

crime.    Simply put, it was the same behavior—i.e., failing to pay court-ordered

support—that formed the basis for Brice’s conviction and for the condition of

community control. We therefore hold that the condition at issue had “some

relationship” to Brice’s crime.

         {¶27} We also hold that the remaining Jones factors were met in this case.
Requiring Brice to comply with the court order that formed the basis for his

conviction was “reasonably related” to Brice’s rehabilitation because it required him

to support his daughter. Finally, the condition related to Brice’s criminal conduct of

nonpayment of child support, and served to ensure the “good behavior” of

supporting his child. Other courts have found similarly. See State v. Fuller, 2015-

Ohio-523, 27 N.E.3d 574 (8th Dist.) (holding that the total amount of child-support

arrearage, even that which exceeds the time period of the offense, may be ordered as

a condition of community control); State v. Morrow, 9th Dist. Lorain Nos.

14CA010552 and 14CA010553, 2015-Ohio-2627 (holding that a community-control

condition that ordered defendant to pay past court-ordered child support was




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                       OHIO FIRST DISTRICT COURT OF APPEALS


reasonably related to rehabilitating the offender from the charged offense of

nonpayment of child support, was closely related to that offense, and related to the

criminal conduct underlying the offense); State v. Teegarden, 2d Dist. Montgomery

No. 24960, 2012-Ohio-3488 (holding that a community-control financial condition

is not limited to the “economic loss” requirement of restitution); State v. Stewart,

10th Dist. Franklin No. 04AP-761, 2005-Ohio-987 (holding that the trial court did

not abuse its discretion in requiring a defendant convicted of nonsupport to pay the

total accumulated support arrearages as a condition of his community control as the

condition met the three Jones factors). We therefore hold that the trial court did not

abuse its discretion in imposing this condition of community control.

       {¶28} Brice next argues that the trial court erred by failing to inquire as to his
present and future ability to pay his total child-support arrearage before ordering

him to pay it. Brice is correct that, in general, a trial court is required to consider an

offender’s present and future ability to pay a financial-sanction condition before

imposing it. See R.C. 2929.19(b)(5); Cauthen, 1st Dist. Hamilton No. C-130475,

2015-Ohio-272, at ¶ 6. This case presents an exception to that rule.

       {¶29} At the outset we note that the trial court did, indeed, inquire as to
Brice’s ability to pay. However, it was under no obligation to do so, because the

imposed condition required Brice to satisfy an existing court order. Prior to issuing

the underlying child-support order, the Hamilton County Juvenile Court had already

determined that Brice had the “ability to pay” the amount of child support that it had

ordered. See generally R.C. Chapter 3119 (“Calculation of Child Support

Obligation”). Because Brice’s ability to pay had already been established by another

court, the trial court did not have to revisit that issue. See Fuller at ¶ 22 (holding that

the Child Support Enforcement Agency had already determined the amount of child

support that defendant had to pay, and therefore the sentencing court did not have to

make this inquiry when ordering defendant to pay the child-support arrearage as a




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                      OHIO FIRST DISTRICT COURT OF APPEALS


community-control condition); Morrow at ¶ 18 (holding that the sentencing court

did not have to inquire as to defendants’ ability to pay when it ordered payment of all

child-support arrearages as conditions of community control because the sentencing

court could order defendants to comply with the underlying court orders).

       {¶30} Because Brice cannot demonstrate error, let alone “plain error,” his
fourth assignment of error is overruled. We affirm the judgment of the trial court.


                                                                  Judgment affirmed.

MOCK, P.J., and ZAYAS, J., concur.


Please note:

       This court has recorded its own entry this date.




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