State v. CollinsState v. Collins
- Reporters:
- , ,
- Before:
- Moyer
Criminal law—Nonsupport of dependents—
{¶ 1} In September 1990, the Lucas County Court of Common Pleas, Domestic Relations Division, granted a divorce to Kaye Collins from Donald Collins (hereinafter “Collins“). The court found that two children were born to the Collinses during their marriage, and that Collins was then earning an annual salary of $150,000 as a professional basketball player. The court ordered the following: (1) custody of the children to Kaye Collins; (2) Collins to pay child support “through the Lucas County Child Support Enforcеment Agency, the sum of $253.00 per week, per child, plus poundage, for a total of $516.12, effective August 24, 1990“; and (3) a lump-sum judgment award against Collins for child support arrears through August 20, 1990, totaling approximately $14,500 payable at the rate of $100 per week, plus poundage, through the Lucas County Child Support Enforcement Agency (“child support agency“).
{¶ 2} In November 1990, the domestic relations court found that Collins had failed to comply with the child support obligations imposed by the divorce decree, and was in arrears in the amount of $6,898, in addition to the prior lump-sum judgment. It issued a bench warrant for his arrest pursuant to
{¶ 3} In 1994, the domestic relations court entered another lump-sum judgment against Collins in the amount of $136,698.89, representing child support and spousal support arrearages.
{¶ 4} On November 20, 1997, the grand jury sitting in Lucas County, Ohio, filed an indictment setting forth two counts against Collins. In the first count, Collins was сharged with a violation of
{¶ 5} Collins entered not guilty pleas to both counts, and the case proceеded to trial.
{¶ 6} A records keeper from the child support agency testified that it had received approximately $22,000 in child support payments from Collins in 1990, but had received no payments by or on behalf of Collins from 1991 through 1997. During the latter years, Collins was employed as a professional basketball player in Switzerland and France.
{¶ 7} Collins‘s ex-wife appeared pursuant to subpoena and testified that she had never received any money directly from Collins as child support. She also testified that appellant sent gifts, including cash and clothing, to the two girls for holiday and birthday presents, and that he paid for the girls to take trips, including one to Disney World, and to visit him in Europe. She further testified that the girls lived with Collins in France for a one-year period in the early 1990s. At the time of trial, Kaye Collins was living in subsidized housing and receiving welfare benefits.
{¶ 8} A deputy clerk from the Lucas County Court of Common Pleas, Domestic Relations Division, admitted that appellee signed a valid wage assignment order on March 20, 1990, for income benefits withholding and that the order was sent to his employer in Europe. She also admitted that it was possible that Collins‘s employer withheld the child support from appellant‘s wages but never sent the payments to the child support agency.
{¶ 9} The jury returned guilty verdicts on both counts. The trial court accepted the verdicts, found Collins guilty, and sentenced him.
{¶ 10} On appeal, Collins asserted prosecutorial misconduct during closing argument. The court of appeals agreed, accepting his contention that the prosecutor had made comments designed to shift the burden of proof to Collins. The court of appeals observed that no curative instructions were given, even though Collins repeatedly objected to the remarks, and concluded that it was not clear beyond a reasonable doubt that the jury would have found Collins guilty absent the prosecutor‘s comments. The court of appeals therefore reversed Collins‘s convictions and remanded the cause.
{¶ 11} The cause is before us upon the allowance of a discretionary appeal.
Boyk, McCulley & Crossmock and Charles E. Boyk, for appellee.
Timothy A. Oliver, Warren County Prosecuting Attorney, and Derek B. Faulkner, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio Prosecuting Attorneys’ Association.
Betty D. Montgomery, Attorney General, David M. Gormley, Associate Solicitor, and Alejandro Almaguer, Assistant Solicitor, urging reversal for amicus curiae, Attorney General of Ohio.
MOYER, C.J.
{¶ 12} In his brief in the court of appeals, Collins argued that the following statements made by the prosecutor during closing argument constituted
“1. ‘The defense offered no testimony that Donald Collins paid directly to the mother.’
“2. ‘No canceled checks or copies of money orders were ever presented showing payments to the mother.’
“3. ‘In fact, the defense never asserted that they paid child support directly to the mother.’
“4. ‘There‘s no evidence to the contrary, that he did not have income from which he could pay child support.’
“5. ‘There was simply no evidencе presented whatsoever that Donald Collins paid child support.’
“6. ‘Again, no testimony was offered that Donald Collins had money withheld from his salary.’
“7. ‘There were no pay stubs brought in that said here are the deductions for child support, the money was taken from me.’
“8. ‘Surely if such things were in existence, we would have seen them.’
“9. ‘There was no evidence offered that the Defendant is totally or partially disabled, no medical records, no hospital records, no diagnosis from a doctor.’
“10. ‘There was no evidence presented that the Defendant is unemployed even or unemployable.’
“11. ‘The State does not have to prove the ability—the Defendant‘s ability to pay. The Defendant has to prove that he was unable to pay.’
“12. ‘In fact, we never even heard an assertion in this case that that did happen, that child support was withheld from Donald Collins’ salary. No evidence whatsoever was presented to that effect.’ ”
{¶ 13} Implicit in the state‘s argument is the contention that the above-quoted statements by the prosecutor did not constitute error requiring reversal of Collins‘s conviction. We agree.
{¶ 14} It is long-standing precedent that the state may comment upon a defendant‘s failure to offer evidence in support of its case. State v. D‘Ambrosio (1993), 67 Ohio St.3d 185, 193, 616 N.E.2d 909, 916; State v. Williams (1986), 23 Ohio St.3d 16, 20, 23 OBR 13, 17, 490 N.E.2d 906, 911; State v. Petro (1948), 148 Ohio St. 473, 498, 36 O.O. 152, 162, 76 N.E.2d 355, 367; and State v. Champion (1924), 109 Ohio St. 281, 289-290, 142 N.E. 141, 143-144. Such comments do not imply that the burden of proof has shifted to the defense, nor do they necessarily constitute a penalty on the defendant‘s exercise of his Fifth Amendment right to remain
{¶ 15} At trial Collins attempted to convince the jury that he should be found not guilty of the crimes charged because he had signed a wage assignment form in 1990, implying that the law imposed no further responsibility upon him to assure compliance with the child support order issued by the domestic relations court. He urged the jury to speculate that wages indeed were withheld by his European employers, but never transferred to the child support agency, or his children, in the United States. He further elicited testimony from his ex-wife and daughter that he had provided occasional gifts directly to his children, and had provided for their support for approximately a one-year period when they lived with him in Europe. He implied that he was financially unable to comply with his court-ordered child support obligation based, in part, on medical problems, including back surgeries. The prosecutor‘s argument constituted fair comment on the strength, or lack of strength, of the evidence offered by Collins to suрport these theories, and did not constitute a negative comment on his decision not to testify.
{¶ 16} Even assuming, arguendo, that the prosecutor‘s comments were inappropriate, the record demonstrates that the trial overall nevertheless was fair. Both the trial court and defense counsel repeatedly reminded the jury that the state bore the burden of proving that appellee violated the statutory provisions he was charged with violating. Moreover, the trial court specifically instructed the jury that appellee had “a constitutional right not to testify.” The court further charged the jury that the “fact that [the defendant] did not testify must not be considered for any purpose.”
{¶ 17} The parties have argued this case as presenting the legal issue whether the crime set forth in
{¶ 18} The second count filed against appellee by the grand jury charged him with a violation of the current version of
“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.”
{¶ 19} The court of appeals found that this statute does not specify the degree of culpability the state must prove beyond a reasonable doubt, and therefore applied
“When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.”
{¶ 20} The court of appeals determined that the legislature did not specify a mental element for culpability in
{¶ 21} However, the focus of the parties in the court of appeals was on Collins‘s assertion of prosecutorial misconduct. His argument focused solely on the ground that the prosecutor‘s statements included what he asserted to be unfair comments implying that the burden of proving a criminal violation had shifted from the stаte to the defendant. As discussed earlier, the trial court appropriately overruled those objections. The state did not argue that the prosecutor‘s statements were legitimate because
{¶ 22} We acknowledge the convincing public policy arguments presented by the state and amicus Ohio Prosecuting Attorneys’ Association in support of the proposition that failure to follow a court-ordered child support order should be a strict liability offense. However, the General Assembly itself has established the test
{¶ 23} Were we to accept the state‘s argument that public policy considerations weigh in favor of strict liability, thereby justifying us in construing
{¶ 24} Moreover, we find more than sufficient evidence in the record in the case at bar to support a jury finding of reсklessness. The state most commonly proves criminal intent through circumstantial evidence. Where, after notice and opportunity to be heard, a court order is issued mandating a person to submit child support payments to a specific agency of government, and that agency shows no record of any payments having been received from that person over a period of many years, a circumstantial inference arises that the person was aware of the obligation to рay and yet did not do so. Payment in accordance with such an obligation is an either-or proposition—the obligor either takes intentional actions to pay, or does not. Where no payments reach the agency over a period of many years, it may be inferred that the obligor took no action to ensure payment, and, in fact, intended not to pay. Accordingly, where no evidence is presented to counter that inference, such as evidence of mistake or misdirectеd payments, a jury has evidence before it sufficient to establish a culpable mental state of at least recklessness, beyond a reasonable doubt. The fact that a defendant may then realistically find himself with a burden of producing evidence to counter that inference does not mean that the ultimate burden of proof has shifted to the defendant.
{¶ 25}
{¶ 26} The trial was free of reversible error. The judgment of the court of appeals is reversed, and the cause is remanded for reinstatement of Collins‘s conviction on the second count of the indictment.
Judgment reversed and cause remanded.
DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
WAITE and LUNDBERG STRATTON, JJ., concur in part and dissent in part.
CHERYL L. WAITE, J., of the Seventh Appellate District, sitting for RESNICK, J.
LUNDBERG STRATTON, J., concurring in part and dissenting in part.
{¶ 27} I concur with the majority as to the lack of prosecutorial misconduct and that the evidence was more than sufficient to prove recklessness. However, I respectfully dissent with its conclusion that recklessness is the necessary mens rea to establish a violation of
{¶ 28} The majority declines to impose strict liability in
{¶ 29} On numеrous occasions, this court has determined that strict liability applies in a statute that defines a criminal offense despite the statute‘s silence on the applicable mental state. See Schlosser (strict liability imposed under the RICO statute,
{¶ 30} Likewise, appellate courts have imposed strict liability, despite the absence of a specific statement of mens rea. See State v. Larbi (June 21, 1999), Stark App. No. 1998CA00192, unrеported, 1999 WL 437007 (strict liability standard imposed for violation of
{¶ 31} The majority cites State v. Young (1988), 37 Ohio St.3d 249, 525 N.E.2d 1363, and State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975, in support of its conclusion. However, the statutes at issue in those cases do not evidence an intent to impose strict liability. Violation of those statutes could arise in a perfectly innocent situation, i.e., viewing a photograph of a child in a bathtub, or failing to prevent a child from running into the street. Where an innocent or negligent act could subject a pаrent to criminal liability, recklessness should be required in order to establish a violation of the statute. This case, however, involves a much different scenario, the violation of a court order.
{¶ 32} In Schlosser, this court looked to the statutory language, the legislative intent, and public policy to determine whether the statute was intended to impose strict liability for the conduct described. Schlosser, 79 Ohio St.3d at 331-332, 681 N.E.2d at 913. I believe that the General Assembly clearly intended there to be strict liability for a violation of the conduct proscribed in
{¶ 33} In addition, newly enacted
{¶ 34} In this case, the divorce resolved issues of responsibility, income, and needs of the child, and the final decree established the amount of the father‘s child support obligation. When he failed to follow that court order and arrearages had grown within four years to more than $136,000, the state was called upon to obtain yet another court order to resolve support issues and arrearagеs. At that time, the father was both negligent and reckless in his failure to pay support, necessitating the state to take additional action based on the existing court order that already placed upon the father an affirmative duty to pay support.
{¶ 35} The General Assembly intentionally differentiated between the liability imposed under
{¶ 36} The plain language of the statute also implies the application of strict liability. The use of the operative words “no person shall” clearly indicates the General Assembly‘s intent to impose strict liability. Schlosser. There is no doubt that the defendant understood his duties and obligations under the court order. The court order, part of the foundation of any orderly society, demands compliance.
{¶ 37}
{¶ 38} Clearly, this statute was designed to protect our most vulnerable population, our children, and we can reasonably expect a parent to assume his or her responsibility to support that child.
{¶ 39} Finally, public policy supports such an interpretation. Strict enforcement of child support obligations “clearly serves the public purpose of advancing the welfare of children by enforcing a child‘s right to be supported by his parents, fostering parental responsibility and parental involvement with the child, and preventing the child and custodial parent from having to turn to welfare.” In re Lappe (1997), 176 Ill.2d 414, 431, 223 Ill.Dec. 647, 656, 680 N.E.2d 380, 389.
{¶ 40} A failure to support one‘s child is also morally wrong and ultimately imposes the burden of support upon the public. The custodial parent carries the entire financial responsibility of support and the state is faced with prosecuting the failure to adhere to a court order already in place. The state need not have to prove one‘s state of mind for failing to obey a court order. As the Illinois Supreme Court explained:
“The focus of this legislation is on effective enforcement. The provisions simply create a mechanism whereby custodial parents of dependent children can, with minimal time and expense, obtain assistance with the paperwork involved in child support enforcement, with locating the person obligated to pay support and with taking the necessary steps, including judicial action, to ensure that the proper amount of money is collected.” (Emphasis added in part.) In re Lappe, 176 Ill.2d at 432, 223 Ill.Dec. at 656, 680 N.E.2d at 389.
{¶ 41} The state proved this defendant‘s recklessness. However, the state prosecutes hundreds of persons under this section. The next case may not be so easy. Recklessness is a mоre difficult standard to prove. In the event of nonpayment of child support, must a parent gather evidence of “recklessness” before the state will assist in enforcement? If a defendant is negligent in failing to abide by the
{¶ 42} The answer is simple. If a court order requires a parent to pay child support, that parent must obey it unless the parent proves that he or she is financially unable to do so. If the parent does not pay the court-ordered child support, the parent is guilty of violating
WAITE, J., concurs in the foregoing opinion.