State v. Jackson

• Decision Date: 12 December 1983
• Citation: 469 N.E.2d 872,13 OBR 503,13 Ohio App.3d 416
• Parties: , 13 O.B.R. 503 The STATE of Ohio, Appellee, v. JACKSON, Appellant. *
• Court: Ohio Court of Appeals

Page 416

13 Ohio App.3d 416

469 N.E.2d 872, 13 O.B.R. 503

The STATE of Ohio, Appellee, v. JACKSON, Appellant. ^*

Court of Appeals of Ohio, Second District, Greene County.

Dec. 12, 1983.

Syllabus by the Court

Although R.C. 3113.06 (failure to pay maintenance costs) does not specifically state an affirmative defense is available as provided for under R.C. 2919.21(B) (nonsupport), this statutory scheme does not unconstitutionally discriminate against those persons indicted under R.C. 3113.06 whose children receive ADC benefits, because an affirmative defense is available to them via R.C. 2901.05(C)(2).

William F. Schenck, Pros. Atty., and Vicki R. Patton-Hulce, Xenia, for appellee.

Cox & Cox and Timothy S. Chappars, Xenia, for appellant.

BROGAN, Presiding Judge.

Defendant-appellant, Phillip Jackson, was indicted on a secret indictment by the Greene County Grand Jury alleging that he:

" * * * being a father charged with the maintenance of a legitimate child under the age of 18 years, to wit: Aja Trinnette Jackson, which child is a recipient of aid through the Greene County, Ohio, Welfare Department pursuant to Chapter 5107 or 5113 of the Revised Code, did neglect or refuse to pay such Welfare Department the reasonable cost of maintaining such child when the said father was able to do so by reason of property, labor, or earnings, contrary to and in violation of Ohio Revised Code Section 3113.06, * * * "

A jury trial was commenced on September 27, 1982, resulting in a finding of guilty as charged. From this judgment Phillip Jackson appeals, setting forth the following two assignments of error:

"The jury's verdict of guilty is against the manifest weight of the evidence, and the trial court erred to the prejudice of appellant in overruling appellant's motions to acquit made at the conclusion of the state's case and at the conclusion of all the evidence and renewed after the jury returned its verdict of guilty.

"The trial court erred to the prejudice of appellant in overruling his motion to dismiss."

Appellant's second assignment of error essentially attacks the constitutionality of R.C. 3113.06 under which he was convicted. Appellant argues the statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in that (1) it fails to provide the same classification of criminal offense as R.C. 2919.21, thereby discriminating against those persons whose children receive ADC, (2) it fails to provide the affirmative defense contained in R.C. 2919.21(B), thereby discriminating against those persons whose children receive ADC, and (3) it fails to treat the sexes equally.

This court has recently ruled on the constitutionality of R.C. 3113.06 in State v. Meyer (Aug. 22, 1983), Greene App. No. 82-CA-62, unreported, and its three companion cases. In Meyer we specifically concluded the statute was constitutional under challenges one and three above. We stand by that decision and reaffirm our holding.

Therefore the only alleged constitutional infirmity we must address is number two, to wit: R.C. 3113.06 fails to provide the affirmative defense contained in R.C. 2919.21(B).

R.C. 2919.21 provides in part that:

"(A) No person shall abandon, or fail to provide adequate support to:

" * * *

"(2) His or her legitimate or illegitimate child under eighteen * * *;

" * * *

"(B) It is an affirmative defense to a charge under this section that the actor was unable to provide adequate support and provided such support as was within his ability and means."

R.C. 3113.06 provides in pertinent part:

"No father, or mother when she is charged with the maintenance, of a legitimate or illegitimate child under eighteen years of age, * * * who * * * is the recipient of aid pursuant to Chapter 5107. [ADC] * * * of the Revised Code, shall neglect or refuse to pay such board or department the reasonable cost of maintaining such child when such father or mother is able to do so by reason of property, labor or earnings."

This provision does not specifically state an affirmative defense is available as provided for under R.C. 2919.21(B). Appellant argues this violates the Equal Protection Clause as "[t]here is no rational basis for the State to give persons whose children do not receive ADC an affirmative defense under a prosecution pursuant to Ohio Revised Code 2919.21(B), and yet deny that same defense to those persons whose children do receive ADC."

As we pointed out in Meyer, supra, courts must always indulge in a strong presumption in favor of the constitutionality of legislation. Dayton v. S.S. Kresge Co. (1926), 114 Ohio St. 624, 151 N.E. 775. Consequently, on review of statutory acts, a court is bound to give a constitutional rather than an unconstitutional construction if one is reasonably available. United Air Lines, Inc. v. Porterfield (1971), 28 Ohio St.2d 97, 276 N.E.2d 629 . With this in mind we must disagree with appellant's argument.

R.C. 2901.05 provides in part:

"(C) As used in this section, an 'affirmative defense' is either of the following:

"(1) A defense expressly designated as affirmative;

"(2) A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence."

As the trial judge properly concluded this code section is applicable to all criminal charges including R.C. 3113.06. In State v. Wright (1982), 4 Ohio App.3d 291, 448 N.E.2d 499, the Seventh Appellate District was confronted with the same constitutional challenge to R.C. 3113.06 as presented in this matter. That court concluded that:

" * * * the lack of ability to pay maintenance costs is an excuse or justification peculiarly within the knowledge of the accused and on which he can fairly be required to adduce supporting evidence." Id at 294, 448 N.E.2d 499.

The court therefore concluded it was an affirmative defense as defined under R.C. 2901.05(C)(2).

Although R.C. 3113.06 does not specifically enumerate an affirmative defense as does R.C. 2919.21(B), such a defense does exist via R.C. 2901.05(C)(2). Such a conclusion is reasonable and must be applied where, as here, a statutory act is being challenged on constitutional grounds. We therefore perceive no classification treating persons charged under R.C. 3113.06 differently from those charged under R.C. 2919.21 as appellant asserts.

Appellant's second assignment of error lacks merit and is hereby overruled.

In reviewing appellant's first assignment of error we keep in mind the fact that a reviewing court generally will not reverse a trial court verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132 ; State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212 . The record below reveals that appellant legitimized Aja Trinnette Jackson on October 4, 1979. At the time of the legitimization proceedings Phillip Jackson agreed to pay $20 per week for child support. He was then employed by Central State University as a cook in the cafeteria.

Appellant failed to make his first few payments and was found in contempt in December 1979. He paid...