Opinion
No. 91CR280.
Decided January 21, 1992.
Rosemary E. Rupert, Assistant Prosecuting Attorney, for the state.
Scott Hicks, Wood County Public Defender's Office, for defendant.
This matter came before the court on December 3, 1991 for hearing on defendant's motion to dismiss filed on November 27, 1991, and the state's motion to include as an element of the offense for the trier of fact to determine whether the defendant failed to provide adequate support filed November 27, 1991. Present before the court were defendant's counsel, Scott Hicks, and Assistant Prosecuting Attorney Rosemary Rupert for the state. After argument, the court took the matters under advisement.
The defendant argues that because "adequate support" is not defined, R.C. 2919.21 is unconstitutionally void for vagueness. The defendant also argues that should the court decide that R.C. 2919.21 is constitutional that there would have to be a prior conviction or a prior court finding for the charge to be enhanced from a misdemeanor of the first degree to a felony of the fourth degree.
After oral argument and upon due consideration of all pleadings and written memoranda, the court finds defendant's motion not well taken in part and well taken in part. The court also finds the state's motion not well taken.
The statute at issue is R.C. 2919.21. The pertinent part of the statute cited in defendant's first contention provides as follows:
"(A) No person shall abandon, or fail to provide adequate support to:
"* * *
"(2) His or her legitimate or illegitimate child who is under age eighteen, or mentally or physically handicapped child who is under age twenty-one[.]"
The court recognizes that the word "adequate" standing alone as it does necessarily leads to a degree of uncertainty. Yet, the court finds that R.C. 2919.21 is not so indefinite and uncertain as to rise to a level of unconstitutionality. A person of ordinary common intelligence should be able to comprehend the meaning of "adequate support" and recognize when he or she would be in violation of R.C. 2919.21.
This court is attracted to Beutel v. State (1930), 36 Ohio App. 73, 172 N.E. 838, which determined the level of support that should be required of a defendant in supporting his dependent. That court indicated that the needs of the dependent (food, shelter, care, and clothing) should be weighed against the ability to pay of the person charged with the support of the dependent.
It is clear that the legislature could have been more explicit in what it was expecting an individual to do to comply with R.C. 2919.21. But, as pointed out by the appellate court in State v. Turner (1965), 3 Ohio App.2d 5, 7, 32 O.O.2d 72, 73, 209 N.E.2d 475, 477, "a statute may not be held invalid for uncertainty if any reasonable and practical construction can be given to its language. Mere difficulty in ascertaining its meaning, or the single fact that it is susceptible of different interpretations will not necessarily render it nugatory."
The inference by the defendant that the term "adequate support" is extremely subjective has merit. However, the reasonable and practical construction of the statute would allow a person of ordinary intelligence to determine the amount of support necessary to be in compliance with R.C. 2919.21.
The part of R.C. 2919.21 at issue in defendant's second contention provides as follows:
"(E) Whoever violates division (A) of this section is guilty of nonsupport of dependents, a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (A)(2) of this section or there has been a court finding that the offender has failed to provide support under division (A)(2) of this section for a total accumulated period of twenty-six weeks out of one hundred four consecutive weeks, whether or not the twenty-six weeks were consecutive, then a violation of division (A)(2) of this section is a felony of the fourth degree." (Emphasis added.)
The second contention by the defendant deals with the phrase "a court finding." Defendant argues that the imprecise drafting of the language encourages numerous differing interpretations of the phrase. This court finds defendant's argument lacking in persuasiveness and accordingly finds the phrase to be definite and certain.
The court now looks to the language of the statute which reads "there has been a court finding." The court agrees with the defendant's alternate argument and reads this language to mean that absent a showing of a prior conviction or a prior specific court finding in a different court concerning the defendant not providing adequate support, the court shall treat the case as a misdemeanor.
The state's trial brief brings to the court's attention some of the legislative history of Am.Sub.S.B. No. 136 (the current version of R.C. 2919.21) through references to the Legislative Service Commission's analysis of the bill at its various legislative stages. The court has seen fit to go one step further and analyze the legislative history by reviewing the drafts of the bill at its various stages through the legislative process.
The state is correct in that the bill as introduced made no reference to a prior court finding, thereby clearly stating, in its original form, that failure to provide support for a total of twenty-six weeks out of one hundred and four consecutive weeks would be a felony of the fourth degree. However, in the Senate Health, Human Service and Aging Committee, action was taken to insert the words "or there has been a court finding that the offender" before the allegation of failure to provide support. That language, referring to a court finding, remained in the bill throughout the legislative history and is, of course, part of the statute. The court cannot reasonably contemplate any reason for the legislature to amend the original bill to insert the language referring to the court finding other than to provide that for failure to support to trigger a felony offense there must have been a prior court finding of such a failure to support. This is strengthened by the clear use of the words "has been," the past tense. If it were the legislature's intent that the finding of such failure to support should comprise a felony offense, there would have been no need for the amended language. We must assume that the legislature did not intend to do a vain act by incorporating language providing for the court finding. We presume that the legislature inserted the language via the Senate committee amendment advisedly and intelligently and expressed an intent by such words. See 85 Ohio Jurisprudence 3d (1988) 243, 243-244, Statutes, Section 233.
The court acknowledges that the title to Am.Sub.S.B. No. 136 was not amended to make it consistent with the Senate committee amendment, but in light of the Senate's substantive amendment to the bill itself, the court finds the failure to amend the title to be consistent therewith inconsequential.
Therefore, the court finds that for an offense under R.C. 2919.21 to be enhanced to a felony of the fourth degree under subdivision (E) thereof, the indictment must allege that the offender has been previously convicted of or pleaded guilty to a violation of subdivision (A)(2) of that section, or that there has been a prior court finding that the offender has failed to provide support under subdivision (A)(2) of said section for a total accumulated period of twenty-six weeks out of one hundred four consecutive weeks, whether or not the twenty-six weeks were consecutive.
The indictment in the instant case therefore alleges a violation which comprises a misdemeanor of the first degree. For it to have alleged a felony offense the indictment would have to have alleged a previous conviction or a previous court finding of the required failure of support.
Defendant's motion to dismiss is therefore overruled. Defendant's position, that absent a previous finding of defendant's failure to support, the offense in the indictment as alleged is a misdemeanor of the first degree, is sustained. The state's motion to include as an element of the offense failure to support for a period of twenty-six weeks out of a consecutive one hundred four weeks is overruled.
Reporter's Note: Defendant pled guilty to the reduced charge, a misdemeanor of the first degree, on January 24, 1992, and there was no appeal.