State v. TurnsState v. Turns
Rendered on March 29, 2011
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
Richard Cline & Co., LLC, and Richard A. Cline, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Defendant-appellant, Kirk D. Turns (“Turns“), appeals the judgment of the Franklin County Court of Common Pleas, which found Turns guilty of non-support of dependents, in violation of
{¶2} The Franklin County Grand Jury indicted Turns on one count of non-support of dependents. The indictment alleged that from July 7, 2002 to July 7, 2004, Turns recklessly abandoned or failed to provide adequate support for his son, who was under age 18. The indictment also alleged, in the alternative, that Turns recklessly abandoned or failed to pay support as established by a court order by failing to pay support for at least 26 weeks out of a 104-week period. Following a bench trial, the court found Turns guilty of failing to pay support, in violation of
{¶3} In its sentencing entry, the trial court imposed a restitution order of $26,299. That figure represents all past due child support owed by Turns for his son.
{¶4} Turns filed a timely notice of appeal, and he raises the following assignments of error:
I. THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE COURT BELOW ERRED IN FINDING THAT [TURNS] FAILED TO PROVE THE [STATUTORY] AFFIRMATIVE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE.
III. THE COURT BELOW ERRED BY IMPOSING A FINANCIAL SANCTION OF RESTITUTION THAT EXCEEDED THE VICTIM‘S ECONOMIC LOSS SUSTAINED AS A RESULT OF THE OFFENSE OF CONVICTION.
{¶6} The charge at issue here arises from
{¶8} Generally, whoever violates
{¶9} The evidence before the trial court established that Turns and Brenda Dyer had a child together in 1991. A February 1996 administrative order from the Franklin County Child Support Enforcement Agency (“FCCSEA“) required Turns to pay child support in the amount of about $185 per month. A January 2001 FCCSEA administrative order raised that amount to about $350 per month.
{¶10} When asked specifically about the period from July 7, 2002 to July 7, 2004, Dyer recounted that payments from Turns were sometimes for $180 and sometimes for other amounts “like $108 or $175, that kind of thing. It was never over like $200.” (Tr. 24.) She did not receive payments every month. Turns also gave her money directly on two occasions, one payment of $100 and one of $40.
{¶12} Chrissy Tinapple of FCCSEA testified. She authenticated an Account Summary (State‘s Exhibit B), which identifies all of the payments made by Turns for Dyer. For the two-year period of July 7, 2002 to July 7, 2004, the summary showed that Turns made 11 payments for a total of $3,849.33.
{¶13} Tinapple also authenticated the 1996 and 2001 administrative support orders (State‘s Exhibit A). Finally, she authenticated a November 2003 order of the Franklin County Court of Common Pleas, Division of Domestic Relations, which adopted a magistrate‘s decision that found Turns in contempt for failure to pay child support. The decision approved and adopted the 2001 administrative order and expressly ordered Turns to pay child support in the amount of $350.07 per month, plus processing. The magistrate allowed Turns to purge his contempt by liquidating a child support arrearage in the amount of $4,200.61 at the rate of $35 per month.
{¶14} Turns also testified. Following the birth of their son, he and Dyer lived together until their son turned four years old. He cooperated in the administrative proceedings and establishment of child support in 1995-1996. While employed in various positions, he ensured that his employers withheld the proper amount of support.
{¶15} In July 2002, he was working as a police officer for Clinton Township. He was under investigation for allegedly using excessive force in the performance of outside employment at a nightclub. He was suspended in April 2002 and reinstated in
{¶16} After he lost his Clinton Township position, he tried to get other work and applied at a variety of places. He was unsuccessful. In his view, he was unsuccessful because Clinton Township gave him a bad reference. When he found occasional employment, he paid child support. He sought psychological counseling relating to the Clinton Township matter, and he was diagnosed with an adjustment disorder in 2003.
{¶17} Turns held a job at Old Navy in late 2003. In July 2004, Turns began working on commission for Citywide Mortgage, but made no money from the position. He also attempted to enlist in the military, but was unsuccessful because of the lawsuit against him. He wanted to support his son, but was unable to because he was unemployed. He estimated that he applied for positions at 150 to 200 locations.
{¶18} On cross-examination, Turns was asked about the settlement with Clinton Township and whether he had paid any of it to Dyer. He said that he had. His wife earned an income and provided for them and their newborn child. He stayed home to care for the child while his wife worked. On re-cross, Turns clarified that he had made a lump-sum payment of $1,711, which came from his retirement account.
{¶20} At the subsequent sentencing hearing, the court stated, “Okay, this is a felony five nonsupport.” (Tr. 129.) The judgment entry states that “the Court found the Defendant GUILTY to Count One of the Indictment, to wit: Non Support of Dependents, in violation of Section 2919.21 of the Ohio Revised Code, being a Felony of the Fifth Degree.”
{¶21} Turns contends that the evidence does not support a conviction under
{¶22} In essence, Turns argues that Dyer was able to support their son using funds obtained from other sources; therefore, the support he paid, while not what he was ordered to pay, was adequate to meet his son‘s needs. We disagree. Dyer testified that the parties’ son required 24-hour care, which she provided. She lived on
{¶23} Turns also contends that his conviction under
{¶24} Turns also contends that the trial court erred in finding that he did not prove his statutory affirmative defense by a preponderance of the evidence. We disagree.
{¶25} As noted,
{¶27} Having concluded that the evidence supports Turns’ conviction for non-support under
{¶28} Here, the FCCSEA account summary does not break down Turns’ support obligation by week. The summary identifies a monthly support obligation and also reflects payments when made. From July 2002 to July 2004, Turns made a total of 11 payments in varying amounts, including one payment in September 2002 for $1,711.50. No matter how we interpret this evidence or calculate the support paid, it is clear that Turns failed to provide support for at least 26 weeks (or six months) of the 104-week (or two-year) period. As we noted, Turns paid no support from November 2002 until December 2003, or about 52 weeks. Nor did he pay support for an additional 13 weeks
{¶29} Turns does not appear to disagree that he failed to pay support in 26 weeks of this 104-week period. Rather, he contends that he cannot be convicted of a felony because he had not been ordered by a court to pay support until November 2003 and that he did not fail to pay court-ordered support for a 26-week period. To make this argument, Turns relies on
{¶30} A violation of
{¶31}
{¶33} In his third assignment of error, Turns contends that the trial court erred by ordering restitution in the amount of $26,299. The state concedes that this was error, and we agree.
{¶34} The judgment entry imposes as a “financial sanction” “pursuant to
{¶35} The trial court could, however, order payment of past due child support as a condition of community control. A trial court has discretion to impose conditions of community control that (1) relate reasonably to rehabilitating the offender, (2) relate to the crime for which the offender was convicted, and (3) relate to conduct that is criminal or to future criminality and serve the ends of probation. State v. Stewart, 10th Dist. No. 04AP-761, 2005-Ohio-987, ¶12, citing State v. Jones (1990), 49 Ohio St.3d 51, 51, 53. In
{¶36} Here, the trial court‘s statements at the sentencing hearing indicate that it intended the payment as a condition of the community control sentence. The court stated multiple times, for example, that Turns should do what the Probation Department tells him to do and must pay the child support to stay out of jail.
{¶37} Turns asks us to simply correct the trial court order to reflect a restitution order in the amount of $4,552.35. Given the trial court‘s statements at sentencing, however, we reverse and remand this matter to the trial court for it to correct its order. On remand, the court may impose restitution in an amount not to exceed the amount of support owed for the 104-week period at issue and, within its discretion, may impose a financial sanction as part of its sentence of community control. Accordingly, we sustain Turns’ third assignment of error.
{¶38} In conclusion, we overrule Turns’ first and second assignments of error and sustain his third assignment of error. We reverse the judgment of the Franklin County Court of Common Pleas and remand this matter to the trial court for proceedings consistent with this decision and applicable law.
Judgment reversed; cause remanded with instructions.
KLATT and CONNOR, JJ., concur.