475 N.E.2d 1313 | Ohio Ct. App. | 1984
On September 14, 1981, a complaint was filed in the Cuyahoga Court of Common Pleas, Juvenile Division, case No. 8171904, charging Melvin Schaub, appellant herein, with abandoning and failing to provide adequate support for his minor children from September 14, 1979 to September 14, 1981, in violation of R.C.
On July 8, 1982, a second complaint was filed against appellant in the same court, again charging a violation of R.C.
On October 22, 1982, the case proceeded to trial. The evidence adduced at trial showed that on May 24, 1979, the Cuyahoga County Court of Common Pleas, Probate Division, granted guardianship of appellant's three children to their maternal grandparents, Henry and Helen Bucknot, with the approval of appellant. Appellant's wife, mother to the children, had died in 1975. Mr. and Mrs. Bucknot, as payees of the mother's Social Security death benefits, received $300 per month which they deposited in savings accounts as guardians for the children. While in the care and custody of the Bucknots, the children were in good health, well fed and adequately clothed. All support for the children was derived from Mr. Bucknot's Social Security benefits and Mrs. Bucknot's meager part-time earnings. Appellant contributed nothing toward the support of the children, aside from maintaining the children under his medical insurance, despite earning an annual salary of $31,000.
At the close of the state's case, appellant entered a motion for acquittal, which was denied. Appellant did not testify and the trial judge found appellant guilty as charged.
On October 29, 1982, the court sentenced appellant to six months in the Cleveland House of Corrections, but suspended the sentence on condition that appellant pay $30 per week per child through the court as child support.
On November 19, 1982, appellant filed a timely notice of appeal and presented the following assignments of error for review:
Appellant was charged with nonsupport of his legitimate minor children under R.C.
In State v. Stouffer (1901),
We do not view this ruling as controlling in this case. In relying on Oppenheimer, supra, appellant would have us believe that R.C.
The facts in Oppenheimer, supra, are easily distinguishable from those in the instant case. In Oppenheimer, supra, the defendant-husband was under court order to pay support to his former wife for his minor children. The wife also had her own independent assets and sources of income. In the instant case, however, the record indicates that there was no divorce decree between the parties, appellant was under no order of court to pay support, and there was no evidence of independent funds available to the Bucknots.
In ruling as it did, the court in Oppenheimer, supra,
apparently felt that criminal prosecution was not the appropriate remedy for nonsupport since the complaining party had never exercised the more appropriate civil remedies that were otherwise available. Moreover, Oppenheimer, supra, was more the product of a ruling on the admissibility of evidence of the custodial parent's means of support than a conscious effort to establish a new affirmative defense to prosecution under R.C.
R.C.
In the instant case, the trial judge believed the evidence presented by the state and gave it weight sufficient to support appellant's conviction for non-support. State v. DeHass (1967),
In this assignment of error, appellant mistakenly equates the civil doctrine of res judicata with the protection against criminal conviction afforded him by the principles of double jeopardy. In that appellant was convicted of the criminal offense of nonsupport, the defense of res judicata is not available to him. Rather, appellant's conviction must be reviewed in terms of his rights to protection against double jeopardy.
The Ohio General Assembly has effectuated the principles contained in the Double Jeopardy Clause by means of R.C.
"(B) Where the defendant's conduct * * * results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, * * * the defendant may be convicted of all of them."
In the case at bar, it was stipulated and the evidence showed that the facts in case No. 8271662 were identical to those presented in case No. 8171904, the sole exception being the time frame involved, i.e., the times at which the offenses charged were committed. Thus, under R.C.
Accordingly, appellant's second assignment of error is overruled.
Appellant was found guilty of non-support under R.C.
Contrary to appellant's assertions, the foregoing is not an indefinite sentence. Rather, it is a definite sentence with a suspension for compliance with the court's order. Since a court is empowered to suspend the sentence of an individual convicted under R.C.
Based on our disposition of the assigned errors, we affirm the judgment of the trial court.
Judgment affirmed.
PATTON, C.J., concurs.
NAHRA, J., concurs in judgment only.
FLANAGAN, J., of the Cuyahoga County Court of Common Pleas, Division of Domestic Relations, sitting by assignment in the Eighth Appellate District.
"(A) No person shall abandon, or fail to provide adequate support to:
"* * *
"(2) His or her legitimate or illegitimate child under eighteen, or mentally or physically handicapped child under twenty-one;"