State v. HobbsState v. Hobbs
{¶1} Appellant Torrence Hobbs appeals his conviction in the Richland County Common Pleas Court on three counts of non-support of a dependent in violation of
{¶2} Appellant is the biological father of a daughter born on March 13, 1995. On July 13, 1999, the Richland County Domestic Relations Court ordered appellant to pay child support for his daughter in the amount of $50.00 per month effective March 12, 1999. This order was modified on December 18, 2003. The order increased the monthly support to $160.50 effective December 1, 2003.
{¶3} On October 3, 2007, the Richland County Grand Jury indicted appellant on three counts of nonsupport of dependents in violation of
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{¶7} Appellant pleaded not guilty to the charges on October 9, 2007. A jury trial was held on November 8, 2007. At the conclusion of the testimony, the trial court instructed the jury including an instruction on the affirmative defense of inability to pay, as set forth in
{¶8} Appellant now appeals raising a single Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED IN FAILING TO INCLUDE THE AFFIRMATIVE DEFENSE OF INABILITY TO PAY ON THE JURY VERDICTS (SIC) FORM SUBMITTED TO THE JURY.”
{¶10} Appellant contends that the trial court committed error when it failed to include the affirmative defense of inability to pay on the jury verdict form submitted to the jury. Appellant concedes there was no objection made at trial to the verdict form submitted to the jury, and therefore argues that the failure to include the affirmative defense constitutes plain error.
{¶12} The Ohio Supreme Court admonished that plain error “is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest
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{¶14} In the case sub judice, the verdict form included lines for the jurors to check on each count as to whether the prosecutor proved or failed to prove appellant “failed to provide support for a total accumulated period of at least 26 weeks out of this two-year period“, which is the felony enhancement provision under
{¶15} However, appellant contends that Ohio Jury Instruction 413.05 also requires that the jury verdict form include the affirmative defense of inability to pay. We find this argument to be misplaced because Ohio Jury Instructions are jury instructions, not verdict forms. The trial court instructed the jury on the affirmative defense of inability to pay. Tr. 129-132. We presume the jury followed the jury instructions. State v. Loza (1994), 71 Ohio St.3d 61, 79, 641 N.E.2d 1082.
{¶16} In further support his argument Appellant cites Lorain v. Lozano (1985), 21 Ohio App.3d 173, 486 N.E.2d 1244 and State v. Lampkin (1996), 116 Ohio App.3d 771, 689 N.E.2d 106, however, we find these cases to be distinguishable. Neither case specifically addressed the issue whether affirmative defenses were required to be listed on the verdict form.
{¶17} In Lozano, the Ninth District Court of Appeals held that there was no error where the jury returned a verdict for the “plaintiff” rather than the State or the City of Lorain in the underlying criminal case. Lozano at 174. In Lampkin, the Sixth District Court of Appeals found plain error when the trial court submitted a verdict form containing the statutory description of the offense but omitted the essential elements of the offense on the verdict form. However, the court stated in Lampkin: “[w]e can find nothing which requires or suggests that the statutory definition of the offense be included on a jury verdict form” and only found error because the trial court took the “novel approach” of attempting to describe the offense by reciting statutory language. Id. at fn.1. Upon review, we find neither case is dispositive of the issue before this Court.
{¶18} In this appeal, appellant has not established a deviation from a legal rule, and we have found nothing which requires or suggests that an affirmative defense be set forth on the verdict form. Accordingly, we find the trial court‘s omission of the affirmative defense of inability to pay on the verdict form was not error.
{¶19} Appellant‘s assignment of error is overruled.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
S/L Patricia A. Delaney
S/L W. Scott Gwin
S/L John W. Wise
JUDGES
S/L Patricia A. Delaney
S/L W. Scott Gwin
S/L John W. Wise
JUDGES