{¶ 2} In April 1987, the Clermont County Court of Common Pleas, Domestic Relations Division, granted a divorce to Tammy King, now Polly, from appellant. One child was born of the marriage. The court granted Polly custody of the child, and ordered appellant to pay $25 per week in child support, with the amount to increase to $35 per week in September 1987. The divorce decree noted that appellant had not paid any child support since December 1986. The decree's final sentence states:
{¶ 3} "Both parties are notified that all payments are to be made through the Bureau of Support, Clermont County, Ohio. Any direct payments are a GIFT." (Emphasis sic.)
{¶ 4} On May 16, 2001, the Clermont County Grand Jury indicted appellant on three counts of felony nonsupport of dependents. Count One was brought pursuant to former R.C.
{¶ 5} On May 6, 2002, appellant entered a guilty plea to Count Two of the indictment, in exchange for the state's agreeing to dismiss Counts One and Three. The trial court sentenced appellant to five years of community control. Appellant was subsequently permitted to withdraw his guilty plea, and his sentence was vacated. The case was set for trial on the original three counts of the indictment.
{¶ 6} On April 28, 2003, appellant was tried by the bench (following his waiver of the right to a jury trial) on the original three counts. The trial court found appellant not guilty on Count One, but guilty on the remaining two counts. The trial court also found that appellant "failed to establish by a preponderance of the evidence the affirmative defense that he was unable to provide the support as established by a court order but did provide the support that was within his ability and means." The trial court noted that while appellant "suffered a limited disability for a period of the time covered in the indictments[,]" appellant failed to present sufficient evidence to show that the disability "continued throughout the period alleged[,]" rendering him "incapable of employment or providing support as ordered[.]" The trial court sentenced appellant to serve five years of community control.
{¶ 7} Appellant now appeals from his conviction and sentence, raising three assignments of error. We shall address them in an order that facilitates our analysis.
{¶ 9} Appellant argues that his convictions for felony nonsupport of a dependent pursuant to R.C.
{¶ 10} In determining whether a conviction is against the manifest weight of the evidence, a court of appeals must review the entire record, weighing the evidence and all reasonable inferences that can be drawn therefrom, and after considering the credibility of the witnesses, determine whether the jury, in resolving conflicts in the evidence, "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v.Thompkins,
{¶ 11} Initially, it was not necessary for the state to prove that appellant did not make any direct payments to his former wife for the support of their now deceased child, in order to obtain appellant's conviction under R.C.
{¶ 12} Here, the fact that the state failed to have appellant's former wife testify that she did not receive any direct payments from appellant does not demonstrate a failure on the state's part to prove its case beyond a reasonable doubt. This is particularly true in light of appellant's failure to produce any evidence that he actually made a direct payment to his wife. See State v. Collins,
{¶ 13} Appellant's first assignment of error is overruled.
{¶ 15} Appellant argues that the trial court erred in finding that he failed to prove by a preponderance of the evidence the affirmative defense set forth in R.C.
{¶ 16} R.C.
{¶ 17} "It is an affirmative defense to a charge of failure to provide adequate support under division (A) of this section or a charge of failure to provide support established by a court order under division (B) of this section that the accused was unable to provide adequate support or the established support but did provide the support that was within the accused's ability and means."
{¶ 18} R.C.
{¶ 19} Here, Count Two of the indictment covered the period from July 1996 to June 1998, while Count Three covered the period from July 1998 to May 16, 2001. There was evidence presented showing that on August 20, 1996 appellant was diagnosed with, among other things, a dislocated right shoulder. Appellant was scheduled to undergo surgery approximately four weeks from that time. Appellant's "[e]stimated date of return to work with restrictions" was placed at six to eight months. This period of disability encompassed approximately eight months, from August 1996 to about May 1997. However, appellant offered no evidence, let alone a preponderance of the evidence, to demonstrate how he "was unable to provide * * * the established support but did provide the support that was within [his] ability and means[,]" for the period of time covered in Counts Two and Three that wasoutside of this eight-month period of disability, as he was required to do by R.C.
{¶ 20} Appellant's third assignment of error is overruled.
{¶ 22} The gist of appellant's second assignment of error appears to be encapsulated in the second paragraph of his argument in support of the assignment of error, which states:
{¶ 23} "The question before this Court is whether an individual can be convicted for non-support of dependents without looking at any testimony from the actual caseworker who interacted with the Defendant-Appellant and just looking at notes alone and records in the file; and, where the records and testimony of defense witnesses went uncontradicted (sic) and uncontroverted. The State presented no evidence that the records and the file contained each and every single item that was received by the original caseworker. The State was not able to demonstrate that the files testified to in court were the only files kept by the caseworker whom was not presented by the State of Ohio."
{¶ 24} The problem with this argument is that it fails to recognize that it was appellant, not the state, who had the burden of going forward with evidence, and the burden of persuasion, by a preponderance of the evidence, with respect to presenting evidence in support of the affirmative defense outlined in R.C.
{¶ 25} Appellant's second assignment of error is overruled.
{¶ 26} The trial court's judgment is affirmed.
YOUNG, P.J., and VALEN J., concur.