State v. Ewing
2021 Ohio 2220
| Ohio Ct. App. | 2021Background:
- In 2009 CSEA issued an administrative order requiring Keith Ewing to pay $51/month in support for twin daughters born in 2000.
- Ewing was indicted (July 31, 2017) on two counts of nonsupport (R.C. 2919.21(A)(2)/(B)) for the period July 1, 2015–June 30, 2017.
- Ewing missed arraignment, a capias issued, and the case lay inactive for two years before his eventual arrest; he waived counsel and was tried by jury in 2020.
- The jury convicted Ewing on both counts; the court imposed concurrent 12‑month prison terms but suspended them in favor of 5 years community control with 60 days jail and employment programming.
- On appeal Ewing challenged sufficiency/parentage proof, admission of other‑acts testimony (Evid.R.404(B)), an investigator’s opinion about employability (Evid.R.701), manifest weight as to inability to pay, and the jury instruction on mens rea (recklessness vs. willfulness).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove paternity | State: testimony (mother, CSEA worker) established paternity for R.C. 2919.21(A)(2) element | Ewing: parentage not proven beyond a reasonable doubt; civil judgments cannot establish parentage | Court: Evidence (mother’s testimony and CSEA records) was sufficient; credibility challenges go to jury |
| Other‑acts testimony / notice under Evid.R.404(B) | State: caseworker’s remark about another CSEA matter explained collection steps leading to criminal charges (permissible purpose) | Ewing: State failed to give 404(B) notice; testimony showed propensity and was prejudicial | Court: Admission for contextual, non‑propensity purpose was proper; any error not plain because outcome unaffected |
| Investigator’s opinion on employability (Evid.R.701) | State: investigator’s statements reflected results of his investigation and records, not improper lay opinion | Ewing: investigator never observed Ewing and gave impermissible opinion on ability to work | Held: Even if improper, admission was not plain error—the record showed no prejudice and Ewing bore burden to prove inability to pay |
| Manifest‑weight challenge re: nonsupport / inability to pay | State: record showed Ewing failed to notify CSEA of inability to pay; evidence supported convictions | Ewing: evidence conflicted about his ability and others provided support; convictions unjust | Court: Weight of evidence supports verdict; inability to pay is affirmative defense and Ewing presented no evidence |
| Jury instruction on mens rea (recklessness vs. willfulness) | State: statute silent as to mens rea so recklessness is the appropriate default under Ohio law | Ewing: use of “abandon” implies willfulness, so instruction should not have used recklessness | Court: R.C. 2919.21(A)(2) is silent on culpability; trial court correctly instructed recklessness; no plain error |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (federal standard for sufficiency review)
- Thompkins v. Ohio, 78 Ohio St.3d 380 (1997) (Ohio discussion of sufficiency and appellate standard)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (Ohio standard for reviewing sufficiency with inferences to support verdict)
- State v. Williams, 134 Ohio St.3d 521 (2012) (framework for admissibility of other‑acts evidence)
- State v. Hartman, 161 Ohio St.3d 214 (2020) (standards for Evid.R.404(B) and review)
- State v. Rogers, 143 Ohio St.3d 385 (2015) (plain‑error forfeiture rule in criminal appeals)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain‑error requires showing that error affected outcome)
- State v. Johnson, 128 Ohio St.3d 107 (2010) (recklessness as default mens rea when statute is silent)
- State v. Tolliver, 140 Ohio St.3d 420 (2014) (interpretation of when mens rea specified in statute prevents application of default rule)