STATE OF OHIO v. RICKY WILEY
No. 99576
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 9, 2014
[Cite as State v. Wiley, 2014-Ohio-27.]
BEFORE: Kilbane, J., Celebrezze, P.J., and Keough, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-566101
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED
RELEASED AND JOURNALIZED: January 9, 2014
-i-
Jonathan N. Garver
4403 St. Clair Ave.
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Justine Dionisopoulos
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Ricky Wiley appeals from his convictions for criminal nonsupport in violation of
{¶2} On August 23, 2012, Wiley was indicted on six counts of criminal nonsupport in violation of
{¶4} Lisa testified that she and Wiley married in 1998 and had two sons together. When the couple divorced in August 2004, Lisa was awarded custody of the two boys, and Wiley was ordered to pay Lisa child support. As set forth in the August 4, 2004 judgment entry of divorce (the “divorce decree“), Wiley was obligated to pay $439.08 per month (including a two percent processing fee) in child support. Lisa testified that she never received any child support payments from Wiley.
{¶5} Lisa testified that during their marriage, Wiley was self-employed as a “general contractor,” fixing homes, cutting down trees, and repairing roofs. She testified that this work was largely seasonal and that Wiley frequently went hunting, shooting, or fishing. She testified that in 1998, Wiley was shot by a cousin during a hunting accident. As a result of the accident, Wiley was hospitalized for two or three days. Lisa testified, however, that once he came home, Wiley “resumed his regular activities” and “continued to do the same work that he was doing.”
{¶6} Lisa testified that Wiley was initially represented by counsel in their divorce case and that he attended several early meetings or hearings with his attorney in connection with their divorce. Lisa further testified that Wiley‘s attorney stopped representing him after he failed to pay her and that neither Wiley nor his attorney
{¶7} Although she never received any child support payments from Wiley through the child support agency, Lisa testified that, on three separate occasions in 2009, 2011, and 2012, Wiley gave her $300 or $400 to purchase school clothes for the children, that he once paid a $135 medical bill, and that he once paid expenses associated with one of their son‘s extracurricular activities. Lisa further testified that Wiley saw his sons regularly and that “[a] couple of times a month,” he would give the boys $20 or $50 when he visited with them. Lisa testified that she never discussed the issue of child support payments with Wiley and that, to her knowledge, Wiley did not have a job and had never acknowledged his child support obligation either verbally or in writing.
{¶8} In 2009, CSEA filed a motion to show cause with the Domestic Relations Division of the Cuyahoga County Court of Common Pleas (the “domestic relations court“) based on Wiley‘s nonpayment of child support. The court held a hearing on the motion in December 2009. Wiley did not appear at the hearing. On January 13, 2010, the court found Wiley to be in contempt of court for nonpayment of child support, determined that he owed $25,870.84 in arrears as of June 30, 2009, and sentenced him to 30 days in jail or 200 hours of community service in lieu of incarceration, which would be purged if he paid $2,500 within 30 days of the journalization of the order. The court also
{¶9} Raspovic testified that after Wiley failed to purge the contempt, an affidavit for capias was filed, requesting that a capias be issued to impose Wiley‘s jail sentence. On January 11, 2011, the court ordered that a capias be issued. Because Wiley was not brought in and did not turn himself in within a year of the issuance of the capias, the capias was dismissed in February 2012.
{¶10} At trial, the state introduced certified copies of the August 4, 2004 divorce decree, the January 13, 2010 civil contempt order, and the affidavit and order for the issuance of a capias for noncompliance with the civil contempt order. The state also introduced CSEA payment history reports showing that Wiley had made no child support payments through CSEA from October 1, 2004 through September 30, 2010. Raspovic testified that these reports were obtained from the database CSEA uses to track child support payments. She further testified that based on these reports, the total amount in arrears from October 1, 2004 through September 30, 2010 was $31,613.76.
{¶11} Wiley testified in his defense. Wiley claimed that he never made any child support payments because he did not know he had been ordered to pay child support. Wiley testified that although he attended three or four hearings with counsel in connection with his divorce, his lawyer withdrew from the representation when he could no longer pay her. Wiley testified that he did not know he could appear in court without
{¶12} Wiley testified that although his address had not changed, he had never received copies of the August 4, 2004 divorce decree, the January 13, 2010 civil contempt order, or any notices related to the 2009 contempt proceedings for his nonpayment of child support — all of which, according to court records, had been sent to him at his address. Wiley claimed that he first became aware that he owed child support a few months before trial when his cousin, a bail bondsman, called Wiley and told him that he was wanted for nonpayment of child support. Wiley testified that after talking with his cousin, he turned himself in.
{¶13} Although Wiley claimed to have never had any discussions with Lisa regarding any court-ordered child support, he testified that he did have a conversation with Lisa regarding the financial support he provided for their children three years before trial when, according to Wiley, Lisa placed a lien on his residence.
{¶14} In support of his claim that he had no notice of any court order obligating him to pay child support, Wiley introduced a printout of the online docket for his divorce
{¶15} Wiley testified that although he did not make child support payments, he nevertheless provided financial support for his children to the extent he was able. Wiley testified that after his 1998 accident, he could no longer climb a ladder or perform tree or roofing work, significantly limiting what he could do to earn a living. Wiley claimed that he earned, at most, $10,000 or $12,000 a year after his divorce. He further testified that he had filed for disability benefits but because he could not afford to pay doctors to provide the medical records and reports necessary to support his disability claim, his request for disability benefits had been denied. Despite his limited income, however, Wiley claimed that if Lisa or his children told him that the children needed something, he provided it, including paying for their clothing, sports activities, and holiday gifts.
{¶16} At the conclusion of trial, the jury found Wiley guilty on all six counts of criminal nonsupport. The jury further found, as to each count, that Wiley had failed to provide support for a total accumulated period of 26 weeks out of 104 consecutive weeks. The trial court sentenced Wiley to five years of community control sanctions.
{¶17} Wiley appeals from his convictions, raising the following nine assignments of error:
The trial court committed reversible error by admitting irrelevant and highly prejudicial evidence of the custodial parent‘s expenses, evidence that the custodial parent has bone marrow cancer, victim impact testimony, and other evidence elicited for no other purpose than to create sympathy for the custodial parent and her children and prejudice toward Appellant.
Assignment of Error No. II:
The trial court committed prejudicial error by admitting evidence of a civil contempt finding for failing to provide child support where the evidence showed that Appellant had not attended the contempt hearing and there was no evidence that Appellant had been served with a copy of the contempt finding.
Assignment of Error No. III:
The trial court‘s jury instruction, which stated, “if a properly addressed piece of mail is placed in the care of the postal service, it creates a rebuttable presumption of receipt,” impermissibly relieved the prosecution of its burden to prove an essential element of the offenses charged in the indictment and improperly shifted the burden of proof to the defendant, thereby denying Appellant due process of law and violating the presumption of innocence protected by the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 16, of the Constitution of the State of Ohio.
Assignment of Error No. IV:
The trial court committed plain error by failing to give an instruction on the affirmative defense of inability to pay under
Assignment of Error No. V:
The trial court committed plain error, violated
Assignment of Error No. VI:
Misconduct of the prosecuting attorney denied Appellant due process of the law and equal protection of the laws and constituted plain error.
Assignment of Error No. VII:
Appellant was denied his constitutional right to the effective assistance of counsel where his court-appointed attorney (i) failed to object to irrelevant and highly prejudicial evidence; (ii) failed to request appropriate jury
Assignment of Error No. VIII:
Appellant‘s conviction is against the manifest weight of the evidence.
Assignment of Error No. IX:
The trial court committed prejudicial error when it ordered restitution in the amount of $44,753, the alleged full amount of the child support arrearage, instead of the amount of non-support during the period of his conviction.
Evidentiary Issues
{¶18} In his first assignment of error, Wiley contends that the trial court erred in admitting testimony from Lisa regarding her expenses, the effect of Wiley‘s failure to make child support payments, and the fact that she had been recently diagnosed with bone marrow cancer. Wiley contends that this evidence was irrelevant, unnecessary, and prejudicial and served “no purpose other than to create sympathy for the custodial parent and her children.” The state argues that the evidence was relevant to establish recklessness, i.e., that Wiley acted recklessly in failing to make child support payments and in relying on his sons’ custodial parent to meet all of their financial needs.
{¶19} Of this evidence, Wiley objected only to Lisa‘s testimony regarding her expenses. Evidence that is admitted over a defendant‘s objection at trial is reviewed for abuse of discretion. State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 103. A trial court has broad discretion in determining whether to admit or exclude evidence. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.
{¶20} Wiley did not object to Lisa‘s testimony regarding the difficulties she faced in raising her sons without Wiley‘s financial support or her recent cancer diagnosis at trial. Accordingly, we review the trial court‘s admission of this evidence for plain error. Under
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.
The indictment also charged Wiley, in each count, of failing to provide support for a total accumulated period of 26 weeks out of 104 consecutive weeks, making each of the counts a felony of the fifth degree under
{¶22}
when, with heedless indifference to the consequences of his actions, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
R.C. 2901.22(C) .
{¶23} Over Wiley‘s objection, the trial court permitted Lisa to testify generally regarding her personal and household expenses, i.e., her utilities, mortgage, medical bills, and a debt related to a previous job, and her expenses related to the children, i.e., lunch money, clothing, and costs of the children‘s school and extracurricular activities. Lisa then went on to testify regarding the financial difficulties she faced in raising two children on her own, without Wiley‘s child support payments:
A. Lately, it‘s been very difficult since a decrease in the income. It‘s very difficult. It‘s a struggle. The children are always in need, and sometimes I was not able to give. This past Christmas, they really didn‘t get Christmas. That was basically given through his family because I was unable to do it. Thank God they were there for that, though. I was only able to just purchase the things that they needed. So it‘s been difficult. We‘ve had times where the gas was off, the lights were off.
Q. Do you think that it would have made a difference had you received the monthly payment that [Wiley] was supposed to pay?
A. I would hope so. I would hope that it would.
{¶24} Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶26} In his second assignment of error, Wiley contends that the trial court “committed prejudicial error” by admitting evidence of the January 13, 2010 civil contempt order for nonpayment of child support.
{¶27} The Fifth Appellate District addressed the admissibility of a similar order in State v. Trickett, 5th Dist. Stark No. 2002CA00289, 2003 Ohio App. LEXIS 305 (June 23, 2003). In Trickett, the Fifth District rejected the appellant‘s argument that the trial court had abused its discretion in admitting evidence of a prior family court order finding appellant in civil contempt for nonpayment of child support in appellant‘s trial for criminal nonsupport under
In order to find appellant guilty of criminal non-support, the State was required to prove not only appellant‘s legal obligation to support the child, but also his breach of that obligation. * * * Through the introduction of the [finding of civil contempt] from family court, the State offered circumstantial evidence to establish appellant‘s legal obligation to pay support, his knowledge of such obligation, and his breach of this duty. Accordingly, we find the judgment entry was relevant and the trial court‘s admission of such was not an abuse of discretion. Id. at *6.
We agree with the reasoning of the court in Trickett. Evidence of the
{¶28} Wiley argues that regardless of the merits of the Trickett decision in general, we should decline to follow Trickett in this case because it was undisputed that he was not present at the civil contempt hearing and there was no evidence he was ever served with a copy of the contempt finding. We disagree.
{¶29} That Wiley did not appear at the civil contempt hearing does not, in and of itself, preclude admissibility of the January 13, 2010 civil contempt order. Nor is Wiley‘s claim that he never received a copy of the January 13, 2010 civil contempt order (or any other document from the domestic relations court relating to the civil contempt proceedings) determinative of whether Wiley had notice of the contempt proceedings. The record contains other evidence supporting a finding that Wiley was properly served in the civil contempt proceedings and that he, therefore, had notice of the proceedings.
{¶30} To bolster his testimony that he never received any documents from the domestic relations court related to the civil contempt proceedings, Wiley introduced a printout of the online docket for his divorce case (which included entries related to the civil contempt proceedings) along with certified copies of several documents relating to the service of documents on Wiley in the contempt proceedings, i.e., instructions for certified and regular mail service and an affidavit confirming ordinary mail service. Wiley argued that certain notations on the docket indicated that the notices with which the
{¶31} Where certified mail is “unclaimed,” the civil rules provide that service may be made by ordinary mail.
10/26/2009 D1 SR CERTIFIED MAIL RECEIPT NO. 14474171 RETURNED
10/26/2009 FAILURE OF SERVICE ON DEFENDANT WILEY/RICKEY/LEE — UNCLAIMED NOTICE MAILED TO DEFENDANT(S) ATTORNEY
11/02/2009 D1 SR INSTRUCTION FOR SERVICE ON MOTION VIA ORDINARY MAIL TO RICKY WILEY FILED.
11/03/2009 D1 SR MOTION(14628691) SENT BY REGULAR MAIL SERVICE. TO: RICKEY LEE WILEY 4632 EAST 174TH EAST CLEVELAND, OH 44128 0000
11/19/2009 D1 AF AFFIDAVIT OF SERVICE ORDINARY MAIL SENT TO: RICKEY LEE WILEY / RETURNED UNCLAIMED
Jury Instructions
{¶33} Wiley‘s third, fourth, and fifth assignments of error relate to the jury instructions given by the trial court. In his third assignment of error, Wiley argues that the trial court denied Wiley due process of law by instructing the jury regarding the “mailbox rule.” In his fourth assignment of error, Wiley claims that the trial court committed plain error by failing to instruct the jury on the affirmative defense of “inability to pay” under
Jury Instruction Regarding the Mailbox Rule
Ladies and gentlemen, a rebuttable presumption of receipt of mail does arrive on evidence that a properly addressed piece of mail is placed in the care of the postal service. Because the presumption is rebuttable, however, evidence denying receipt creates a credibility issue that must be resolved by the trier of fact.
{¶35} When considering a claimed error in the trial court‘s jury instructions, the contested jury instruction “may not be judged in artificial isolation but must be viewed in the context of the overall charge.” State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 57, citing State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 722 (1979), paragraph four of the syllabus. Thus, jury instructions are reviewed in their entirety to determine if they contain prejudicial error. State v. Kimmie, 8th Dist. Cuyahoga No. 99236, 2013-Ohio-4034, ¶ 69, citing State v. Fields, 13 Ohio App.3d 433, 436, 469 N.E.2d 939 (8th Dist.1984).
{¶36} Wiley argues that the trial court‘s mailbox rule instruction effectively “relieved the prosecution of its burden” to prove recklessness and “improperly shifted the burden of proof” on that element of the offense to Wiley, denying him due process of law and violating the presumption of innocence protected by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio
{¶37} “Due process requires that the state establish beyond a reasonable doubt every fact necessary to constitute the crime charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). As such, the burden of proof on an essential element of a crime may not be shifted to the defendant by means of a conclusive or persuasion-shifting presumption. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Brecksville v. Crow, 8th Dist. Cuyahoga No. 76909, 2000 Ohio App. LEXIS 5941, *7-9 (Dec. 18, 2000); see also State v. Dailey, 3d Dist. Hancock No. 5-99-56, 2000 Ohio App. LEXIS 1968, *10-11 (May 9, 2000) (defendant‘s due process rights violated when trial court‘s jury instructions included a mandatory jury directive on one of the essential elements of the crime charged). “Jury instructions that effectively relieve the state of its burden of persuasion violate a defendant‘s due process rights, and subvert the presumption of innocence and the right to have a jury determine the facts of a case.” (Citations omitted.) State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 36.
{¶38} Wiley cites Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), and Sandstrom, supra, for the proposition that even nonconclusive presumptions “implicate the due process clause” and where such a presumption has the effect of shifting the burden of persuasion to the defendant, it “cannot withstand constitutional muster.” He argues that by creating a presumption of receipt, the trial court‘s jury
{¶39} In each of the cases Wiley relies upon, the challenged “presumption” effectively relieved the state of its burden of proving the defendant‘s criminal intent — an essential element of the crime at issue. See State v. Price, 60 Ohio St.2d 136, 142, 398 N.E.2d 772 (1979). The contested jury instruction in this case, by contrast, did not involve a presumption of recklessness (or any other element of criminal nonsupport) and did not relieve the state of its burden of proving any element of the offense. The contested jury instruction related to (1) Wiley‘s testimony that he had no notice of the civil contempt proceedings against him for nonpayment of child support because he never received any documents from the domestic relations court related to those proceedings and (2) the contrary evidence presented by the state that Wiley had, in fact, been properly served, via ordinary mail, in the contempt proceedings. The trial court instructed the jury that Wiley‘s “receipt” of mail could be presumed if the jury determined that such mail, properly addressed to Wiley, had been placed in the care of the postal service. The trial court further instructed the jury that this presumption was rebuttable and that once Wiley presented evidence denying receipt, whether or not he received it became “a credibility issue” for the jury to decide.
{¶40} “Receipt” of the notice mailed by the court in the civil contempt proceedings — the fact the jury could initially presume under the mailbox rule instruction — was neither an element of the offense of criminal nonsupport nor a fact “necessary to
constitute the crime.” Winship, 397 U.S. at 364, 90 S.Ct. 1068, 25 L.Ed.2d 368. Although whether Wiley received notice of the civil contempt proceedings was relevant to the jury‘s determination of recklessness, i.e., if Wiley received notice of the civil contempt proceedings, it arguably made it more likely that he acted recklessly in failing to pay his court-ordered child support, the trial court‘s instructions did not foreclose independent jury consideration of whether the facts proved established recklessness or any other element of the offense of criminal nonsupport. Nor did it relieve the state of its burden of proving, by evidence, every essential element of the offense beyond a reasonable doubt.{¶41} The contested mailbox rule instruction was included within the general instructions provided by the trial court. After giving the general instructions, the trial court proceeded to instruct the jury on the “specific laws, terms and definitions applying to this case,” including each of the elements the jury needed to prove beyond a reasonable doubt along with definitions of “recklessness” and “risk.” When viewed in their entirety, the trial court‘s instructions made it clear to the jury that, regardless of any “rebuttable presumption” of receipt that might apply under the mailbox rule instruction, the state still had the burden of proving recklessness (and each of the other elements of criminal nonsupport) beyond a reasonable doubt and that the jury needed to find that the state met its burden of proof on each of the elements of the offense to find Wiley guilty of the offenses charged.
Jury Instruction Regarding Affirmative Defense of Inability to Pay
{¶43} Wiley also argues that the trial court committed plain error by
failing to instruct the jury regarding the affirmative defense of “inability to pay”
under
It is an affirmative defense to * * * 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 * * * the established support but did provide the support that was within the accused‘s ability and means.
{¶44} To prevail on this affirmative defense, a defendant must prove, by a preponderance of the evidence, that he: (1) is unable to provide the court-ordered support and (2) provided such support as was within his ability and means. See, e.g., State v. Carter, 10th Dist. Franklin No. 07AP-141, 2007-Ohio-6502, ¶ 14, citing State v. Brown, 5 Ohio App.3d 220, 222, 451 N.E.2d 1232 (5th Dist.1982). “Both elements must be met in order to successfully assert the affirmative defense of inability to pay.” Id. “Lack of means alone cannot excuse lack of effort.” State v. Williams, 5th Dist. Delaware No. 06 CAA 04 0026, 2007-Ohio-63, ¶ 40, citing Brown at 222; see also State v. Balfour, 8th Dist. Cuyahoga No. 97547, 2012-Ohio-3453, ¶ 16.
{¶45} Jury instructions are a statement of the law applicable to the particular facts of the case, based on the evidence presented at trial. It is within the discretion of the trial court to determine whether the evidence presented at trial is sufficient to warrant a particular jury instruction. State v. Singleton, 8th Dist. No. 98301, 2013-Ohio-1440, ¶ 35, citing State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-936, 883 N.E.2d 1052, ¶ 72.
{¶46} Wiley did not request an instruction under
{¶47} In this case, we find that there was insufficient evidence to warrant an
instruction based on
{¶48} Wiley argued that although he did not make any child support payments
through CSEA, he nevertheless supported his children, to the extent he was able, by
giving money directly to Lisa and the children for the children‘s clothing, extracurricular
{¶49} Moreover, Wiley presented no evidence that the minimal support he did
provide was all that he could provide within his “ability and means.” He provided no
documentation of his claimed earnings or his expenses, no evidence of his efforts to
locate employment, and no medical evidence supporting his claim that he was disabled or
was otherwise limited in what he could do to earn a living following his 1998 accident.
See, e.g., Williams, 2007-Ohio-63 at ¶ 41 (appellant failed to establish by a preponderance
of the evidence that he was unable to provide court-ordered support and had provided
such support as was within his ability and means where although he was in jail during
part of the time covered by the indictment, he did not pay child support for much of the
{¶50} Accordingly, the trial court committed no error — much less plain error —
in failing to instruct the jury regarding the affirmative defense under
Failure to Provide a Complete Set of Written Instructions to the Jury
{¶51} Wiley also claims that the trial court committed plain error, violated
The court shall reduce its final instructions to writing or make an audio, electronic, or other recording of those instructions, provide at least one written copy or recording of those instructions to the jury for use during deliberations, and preserve those instructions for the record.
Wiley did not object to the trial court‘s jury instructions on this basis below.
Accordingly, once again, we review this claim for plain error.
{¶53} Wiley argues that by providing only certain of its instructions to the jury in
writing, the trial court placed “undue emphasis” on the instructions the jury needed to
{¶54} This court has previously held such a statement “does not withstand [a
defendant‘s] burden of proving prejudice.” State v. Singleton, 8th Dist. Cuyahoga No.
98301, 2013-Ohio-1440, ¶ 23 (where trial court gave both preliminary and cautionary
instructions after jury was empaneled and sworn in, prior to opening statements, but did
not repeat these instructions, only reading and submitting written instructions to the jury
on the elements, definitions of each offense, and complicity at the close of trial, trial court
did not commit plain error in failing to comply with
{¶55} We have already rejected Wiley‘s argument that the trial court should have
instructed the jury regarding the affirmative defense under
{¶56} Although the trial court did not comply with
Prosecutorial Misconduct
{¶57} In his sixth assignment of error, Wiley contends that the prosecutor improperly expressed “her personal opinion on the ultimate issue” in the case and sought to “enhance her standing before the jury by emphasizing her extensive experience” by making the following statement at the beginning of her closing argument:
Good morning. In thinking about what to say in closing. I‘m -- to me, because I do this day in and day out, the case is clear cut and dry. (Emphasis added.)
The prosecutor continued:
I realize that to you guys it may not be. There have been a lot of issues that have been brought up that really do not and should not matter. The vital part of this case is the crime itself. That‘s the statute that you really need to pay attention to. I proved beyond a reasonable doubt that the three elements of the statute were met. And those elements are recklessness, which is the culpable mental state, the court order and the 26 out of 104 consecutive weeks that he failed to pay. I‘m going to talk about each one. * * *
{¶58} A prosecutor‘s remarks constitute prosecutorial misconduct if the remarks
were improper and prejudicially affected substantial rights of the defendant. State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 149, citing State v.
{¶59} Wiley failed to object to the complained of portion of the prosecutor‘s closing arguments at trial and has, therefore, waived all but plain error. State v. Williams, 79 Ohio St.3d 1, 12, 679 N.E.2d 646 (1997). Reversal for prosecutorial misconduct is warranted under the plain error standard only if it is clear that defendant would not have been convicted in the absence of the improper conduct. State v. McGlothan, 8th Dist. Cuyahoga No. 97212, 2012-Ohio-4049, ¶ 32; Cleveland v. Coleman, 8th Dist. Cuyahoga No. 97128, 2012-Ohio-3942, ¶ 41, citing State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-Ohio-1542, ¶ 68.
{¶60} In general, prosecutors are given “wide latitude” in their closing arguments. Id. In closing argument, a prosecutor may comment on “what the evidence has shown and what reasonable inferences may be drawn therefrom.” State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970). However, a prosecutor may not express his or her personal belief or opinion as to the credibility of a witness, the guilt of an accused, or allude to matters that are not supported by admissible evidence. Smith, 14 Ohio St.3d at 14, 470 N.E.2d 883.
{¶61} Considering the latitude granted to prosecutors and our review of the entire
record, we find that Wiley‘s challenge to the prosecutor‘s closing argument fails to satisfy
the prosecutorial misconduct standard. A prosecutor‘s comments are not to be taken out
Ineffective Assistance of Counsel
{¶62} In his seventh assignment of error, Wiley argues that his convictions should
be overturned because he was denied the effective assistance of counsel. Wiley contends
that he was denied effective assistance of counsel due to his trial counsel‘s failure to
object to Lisa‘s testimony regarding her expenses, cancer diagnosis, and the impact of
{¶63} To demonstrate ineffective assistance of counsel, a defendant must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He must establish: (1) that his counsel‘s representation fell below an objective standard of reasonableness, and (2) that he was prejudiced as a result of counsel‘s deficient performance. Id. at 687; State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Under the first prong, reversal requires a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland at 687. Under the second prong, the defendant must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id.
{¶64} Because there are “countless ways to provide effective assistance in any
given case,” judicial scrutiny of a lawyer‘s performance must be “highly deferential.” Id.
at 689. Decisions regarding strategy and trial tactics “are generally granted a wide
{¶65} The record does not support Wiley‘s claims that the performance of his trial counsel was deficient or that he was in any way prejudiced by his counsel‘s performance. Wiley‘s counsel did object when the state initially questioned Lisa regarding her expenses. That objection was overruled. Although Wiley‘s counsel did not specifically object to Lisa‘s testimony regarding her bone marrow cancer, her testimony regarding the issue consisted of a single offhand remark, made in the context of explaining why her expenses and, in particular, her medical bills had recently increased. With respect to Lisa‘s testimony regarding the challenges she faced in raising the boys without Wiley‘s child support, Wiley‘s counsel may have chosen not to object to this testimony because he believed certain aspects of the testimony were actually favorable to Wiley — for example, Lisa‘s testimony that although Wiley did not make child support payments he, at times, paid for items the children needed. We will not second-guess counsel‘s trial strategy decisions. State v. Tibbetts, 92 Ohio St.3d 146, 167, 749 N.E.2d 226 (2001), citing Bradley, 42 Ohio St.3d at 142-144, 538 N.E.2d 373, and State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998).
{¶66} With respect to counsel‘s failure to request a jury instruction based on
Manifest Weight of the Evidence
{¶68} In his eighth assignment of error, Wiley contends that his convictions for criminal nonsupport are against the manifest weight of the evidence.
{¶69} A manifest weight challenge questions whether the state met its burden of persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as a “thirteenth juror,” and, after
reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶70} In considering a manifest weight challenge, this court must remain mindful
that the credibility of the witnesses and the weight to be given the evidence are primarily
for the trier of fact to assess. State v. Bradley, 8th Dist. Cuyahoga No. 97333,
2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus. The trier of fact is in the best position to take into account
{¶71} Wiley argues that his testimony that he did not attend the final hearing in his divorce case and was unaware of the existence of a court order requiring him to pay child support, combined with Lisa‘s testimony that she never discussed the subject of child support payments with him, precluded the state from proving that he “recklessly” failed to pay court-ordered child support beyond a reasonable doubt. As such, Wiley contends, his convictions were against the manifest weight of the evidence. We disagree.
{¶72} In State v. Collins, 89 Ohio St.3d 524, 733 N.E.2d 1118 (2000), the Ohio
Supreme Court considered what evidence is required to establish that an obligor acted
recklessly in failing to pay court-ordered child support under
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 pay and yet did not do so. * * * 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 misdirected payments, a jury has evidence before it sufficient to establish a culpable mental state of at least recklessness, beyond a reasonable doubt. * * * Id. at 530.
{¶73} After reviewing the entire record, we cannot say that the jury lost its way or created a manifest miscarriage of justice in convicting Wiley. The record clearly establishes that a court order to pay child support was entered as part of the divorce decree and that Wiley failed to make a single child support payment through the child support agency for the six-year period covered by the indictment. The state introduced certified copies of both the August 4, 2004 divorce decree initially establishing Wiley‘s child support obligation and the January 13, 2010 judgment entry increasing his monthly child support obligation, as well as CSEA‘s records indicating that no child support payments had ever been made. Further, Wiley admitted that he never made a single child support payment through CSEA, claiming that he did not know he had been ordered to do so.
{¶74} Although Wiley testified that he never received a copy of the divorce
decree, contempt finding, or any other document from the domestic relations court
advising him of his court-ordered child support obligation and further claimed that he
“[n]ever heard of [any court order to pay child support] through [Lisa], through the court
{¶75} Wiley also testified that he knew he was getting divorced; that he had been initially represented by counsel in the divorce; that he had attended several hearings or meetings in connection with the divorce, including meetings addressing issues relating to their children; that he had notice of, but chose not to attend, the final divorce hearing because he was no longer represented by counsel; that he was aware of the concept of child support; that he knew Lisa had sole custody of their two children following their divorce; and that he had continuously resided at the same address (which he confirmed was the address listed for him in the domestic relations court‘s records to which court notices were sent) during the time period at issue. Wiley also testified that he initiated a conversation with Lisa regarding the financial support he provided for their children three years before trial when, according to Wiley, Lisa placed a lien on his residence. In addition, the state presented evidence from which the jury could have reasonably concluded that Wiley had been properly served with, and therefore had notice of, the civil contempt proceedings to enforce Wiley‘s child support obligation. There was no evidence that Wiley ever attempted to vacate or modify the civil contempt order or his child support obligation in the divorce decree due to lack of proper service or notice or on any other ground.
{¶76} The state presented sufficient evidence from which the jury could have
reasonably concluded that, despite Wiley‘s claims to the contrary, Wiley, in fact, had
{¶77} This case came down to the credibility of Wiley‘s testimony, which was properly resolved by the jury. There were a number of inconsistencies in Wiley‘s testimony. The jury simply did not believe Wiley‘s testimony that he never paid child support because he never knew he had been ordered by the domestic relations court to do so. The jury was entitled to reject Wiley‘s testimony as incredible and to conclude, based on the state‘s evidence, that by (1) failing to make a single court-ordered child support payment for more than six years while Lisa struggled to support the children and/or (2) ignoring civil contempt proceedings and a civil contempt order to enforce that obligation, Wiley acted recklessly in failing to pay the court-ordered child support for the time period specified in the indictment.
{¶78} This is not the “exceptional case in which the evidence weighs heavily against the conviction.” We find that the jury could reasonably conclude from the substantial circumstantial evidence presented by the state that the state had proven each element of the offense of criminal nonsupport beyond a reasonable doubt. State v. Pruitt, 8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 18 (“[W]eight of the evidence and the credibility of witnesses are primarily for the trier of fact and a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proven the offense beyond a reasonable doubt“), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the syllabus. Accordingly, Wiley‘s eighth assignment of error is overruled.
Restitution
{¶79} In his final assignment of error, Wiley contends that the trial court erred in
ordering the full amount of the child support arrearage — $44,753 — as restitution rather
than the amount of the child support arrearage for the time period covered by the counts
in the indictment, i.e., $31,613.76 from October 1, 2004 to September 30, 2010. Wiley
argues that
{¶80} We agree that under
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR
Notes
Any payment of money by the person responsible for the support payments under a support order to the person entitled to receive the support payments that is not made to the office of child support, or to the child support enforcement agency administering the support order * * * shall not be considered a payment of support under the support order and, unless the payment is made to discharge an obligation other than support, shall be deemed to be a gift.
The August 4, 2004 divorce decree establishing Wiley‘s child support obligation likewise explicitly states that monthly child support payments “shall be paid through” the child support agency and that any payments not made through the child support agency “shall not be considered as payment of support.”