State v. Christopher J. Cole Iii
| Decision Date | 23 March 1994 |
| Docket Number | C-930280,94-LW-1682 |
| Parties | STATE OF OHIO, Plaintiff-Appellant, v. CHRISTOPHER J. COLE III, Defendant-Appellee. APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeal From: Hamilton County Court of Common Pleas
Joseph T. Deters, Prosecuting Attorney, No. 0012084, and Christian J. Schaefer, Esq., No. 0015494, 411 Hamilton County Courthouse, Court and Main Streets, Cincinnati, Ohio 45202 for Plaintiff-Appellant,
Richard J. Goldberg, Esq., No. 0005979, 2662 Madison Road Cincinnati, Ohio 45208, for Defendant-Appellee.
Christopher J. Cole III, defendant-appellee, was charged with the crime of failing to provide adequate support to his child, Justin M. Schmitz. Cole requested that the trial court dismiss a portion of his indictment. That portion was a specifi-cation that elevated the nonsupport crime from a misdemeanor to a felony. The trial court granted the motion, and from that order, the state brings this appeal.[1]
The crime with which Cole was charged, as codified in R.C. 2919.21(A)(2), is defined in these terms:
A person who violates the statute is guilty of nonsupport, which is a misdemeanor of the first degree. If a defendant also is found guilty of certain specifications, however, the misdemeanor is elevated to a fourth-degree felony. The specifications from the statute read:
If the offender previously has been convicted of * * * a violation of division (A)(2) of this section or if there has been a court finding that the offender has failed to provide support under division (A)(2) of this section for * * * twenty-six weeks out of one hundred four, then a violation of division (A)(2) of this sec-tion is a felony of the fourth degree.
R.C. 2919.21(E) (emphasis added).
Cole argues that the trial court was correct when it ruled that the state had to allege in the indictment that there had been a "prior" court finding of twenty-six weeks' nonsupport. Consequently, Cole contends, because there had not been a prior court finding, the trial court correctly dismissed the specifica-tion from his charge. The state, in its single assignment of error, asserts that there is no feasible procedure to have a prior court finding of twenty-six weeks' nonsupport. It main-tains that the court finding should be made during the contempo-raneous criminal trial.
Generally, an indictment must allege all elements of the crime. State v. Jester (1987), 32 Ohio St.3d 147, 149, 512 N.E.2d 962, 965; Crim.R. 7(B). With regard to the meaning of an "element" of a crime, a specification that elevates a crime from a misdemeanor to a felony is an element, not a penalty enhance-ment. State v. Allen (1987), 29 Ohio St.3d 53, 55, 506 N.E.2d 199, 201. Therefore, here, the provision in R.C. 2919.21(E) that elevates nonsupport from a misdemeanor to a felony is an element of the crime and must be stated in the indictment.
The issue is, therefore, what must be pleaded in the indictment: the "court finding" or just the twenty-six weeks? Two courts of appeals have held that the court finding may be made during the existing prosecution; consequently, the twenty-six weeks, but not the court finding, must be pleaded in the indict-ment. State v. Bale (Dec. 7, 1993), Delaware App. No. 93CAA01001, unreported; State v. Sanders (May 1, 1992), Wood App. No. 91WD109, unreported. For the reasons that follow, we agree.
When the court examines a statute, it first looks to the language employed by the legislature. Columbus & Franklin Cty. Metro. Park Dist. v. Shank (1992), 65 Ohio St.3d 86, 103, 600 N.E.2d 1042, 1056; Iddings v. Bd. of Edn. of Jefferson Cty. School Dist. (1951), 155 Ohio St. 287, 290, 98 N.E.2d 827, 829. Here, Cole contends that the language of the statute should be read with the following addendum: If there has been a "prior" court finding of twenty-six weeks of nonsupport, a violation is a felony of the fourth degree. As support for this argument, Cole cites State v. Messer (1992), 62 Ohio Misc.2d 232, 597 N.E.2d 568.
Contrary to Cole's argument, when construing a statute, the court is not required to insert words into a statute to add to the elements of a crime. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs. (1987), 32 Ohio St.3d 24, 27, 512 N.E.2d 332, 335; State v. Merriweather (1980), 64 Ohio St.2d 57, 59, 413 N.E.2d 790, 791-92. In this case, the statute does not say a "prior" court finding. Instead, it merely reads: If "there has been a court finding" of twenty-six weeks of nonsupport, then a viola-tion is a felony. Therefore, there is no need to insert the word "prior" into the specification.
Also, when the legislature has not used restrictive language in a statute, the court will presume that it intended the general meaning of the words. Thompson Electric, Inc. v. Bank One, Akron, N.A. (1988), 37 Ohio St.3d 259, 264, 525 N.E.2d 761, 767 (); Waltco Truck Equipment Co. v. Tallmadge Bd. of Zoning Appeals (1988), 40 Ohio St.3d 41, 42-43, 531 N.E.2d 685, 687 (). The Ohio Revised Code contains at least fifty criminal statutes in which prior convictions are elements of subsequent crimes.[2] Indeed, the other felony specification in this nonsupport statute reads: "If the offender previously has been convicted of * * * a violation of division (A)(2) of this sec-tion," a violation is a felony. R.C. 2919.21(E) (emphasis added). Likewise, in the other statutes that contain prior-conviction specifications, the legislature specifically has required that the conviction be "previous" to the indictment. See, generally, State v. Brantley (1965), 1 Ohio St.2d 139, 205 N.E.2d 391, syllabus. In this case, therefore, if the legis-lature had intended a prior court finding, it would have included that word in the specification.
Cole further argues that, because the statute states "if there has been a court finding," the court must presume that the legislature intended the finding to precede the indictment. The revised code contains other examples where the legislature describes a court determination in the past tense, i.e., it "has been" found. For instance, in R.C. 2925.11(H), the statute states that a pregnant woman "who has been convicted," but not yet sentenced, for drug abuse may participate in a rehabilitation program in lieu of imprisonment. Concerning parents of adopted children, R.C. 3107.41(C)(4)(d)(i) states that a court may release certain information if it "has determined that each biological parent" is deceased. When the state is seeking placement of an incapacitated person, R.C. 5101.67(C) provides that the court shall not order an institutional placement unless it "has made a specific finding" that there is no less restric-tive placement for the individual. Finally, in military prosecu-tions, R.C. 5924.44(B) states that, when a defendant, in a second trial on the same offense, "has been found guilty [on] any charge or specification," he has not suffered double jeopardy until the case is fully completed.
In each of these statutes, the legislature refers to the findings in the past tense. Furthermore, in each case, the findings are made some time before the conclusion of the contem-poraneous proceeding, but not in a prior adjudication. Conse-quently, there is no reason to determine that, in this case, the language necessarily mandates a court finding made prior to the indictment. Therefore, even though the language of the statute does not explain who should make the court finding or when it should be made, at a minimum, it does not preclude a court finding during the current proceeding.
When the language of a statute creates an ambiguity, it is necessary to employ the rules of statutory construction to determine the intent of the legislature. See, generally, Cline v. Bureau of Motor Vehicles (1991), 61 Ohio St.3d 93, 97, 573 N.E.2d 77, 80. On the basis of the rules of construction, the alternative that presents the most, perhaps only, feasible option for a court finding is for the state to prove the twenty-six weeks of nonsupport during the existing criminal trial.
The first option for a twenty-six-week court finding would be for the determination to be made during a prior conviction under R.C. 2919.21(A)(2). As a general matter, a prior criminal conviction may be an element of a subsequent offense. Allen at 56, 506 N.E.2d at 201; State v. Henderson (1979), 58 Ohio St.2d 171, 176, 389 N.E.2d 494, 497. To adopt the prior-conviction interpretation, however, would be to violate the rule that directs the court to give effect to the entire statute. See, generally, R.C. 1.47(B).
In this case, R.C. 2919.21(E) contains two specifications that can be used to elevate a misdemeanor to a felony. The first specification allows the state to elevate the viola-tion by proving that the defendant previously had been con-victed under R.C. 2919.21(A)(2). Therefore, all prior R.C. 2919.21(A)(2) violations--with or without twenty-six weeks of nonsupport--would elevate the crime to a felony. There would be no need for the twenty-six-week finding because the conviction alone would raise the classification of the crime. Consequently, to require the twenty-six-week court finding to be made during a prior R.C. 2919.21(A)(2) convic-tion would render the twenty-six-week specification surplus-age. Because this interpretation would mean that the entire statute would not be effective, we...
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