2021 Ohio 2220 - State v. Ewing

[Cite as State v. Ewing,

2021-Ohio-2220

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29685

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
KEITH L. EWING COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 17 07 2612

DECISION AND JOURNAL ENTRY

Dated: June 30, 2021

CALLAHAN, Judge.

{¶1} Appellant, Keith L. Ewing, appeals his convictions by the Summit County Court of

Common Pleas. This Court affirms.

{¶2} In 2009, an administrative order by the Summit County Child Support Enforcement

Agency (“CSEA”) ordered Mr. Ewing to pay $51.00 per month in child support for twin girls born

in 2000. On July 31, 2017, Mr. Ewing was indicted on two charges of nonsupport of dependents

pursuant to R.C. 2919.21(A)(2)/(B). The indictment alleged that Mr. Ewing failed to support the

twins between July 1, 2015, and June 30, 2017. Mr. Ewing failed to appear for his arraignment,

and a capias issued for his arrest. The case was inactive for two years.

{¶3} After Mr. Ewing was ultimately taken into custody, he waived his right to counsel

and his case was tried to a jury in 2020. The jury found Mr. Ewing guilty of both charges, and the

trial court sentenced him to concurrent twelve-month prison terms. The trial court suspended the
2

prison sentences on the condition that Mr. Ewing complete 5 years of community control,

including residential sanctions of 60 days in jail and participation in employment placement

programming for 120 days through Oriana House.

{¶4} Mr. Ewing appealed. His five assignments of error are rearranged for ease of

disposition.

II.

ASSIGNMENT OF ERROR NO. 1

THE STATE FAILED TO PROVE PATERNITY BEYOND A REASONABLE
DOUBT IN THAT IT FAILED TO PROVE THAT THE CHILDREN WERE HIS
NATURAL DAUGHTERS UNDER THE TESTIMONY OF THE CUSTODIAL
MOTHER AND THE EXHIBITS SUBMITTED BY THE STATE AND AS
SUCH, THERE IS INSUFFICIENT EVIDENCE TO SUSTAIN THE VERDICT[.]

{¶5} In his first assignment of error, Mr. Ewing has argued that the State did not produce

sufficient evidence demonstrating that the twins were his children, as required by R.C.

2919.21(A)(2). This Court does not agree.

{¶6} “Whether a conviction is supported by sufficient evidence is a question of law that

this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731,

2009-Ohio-6955

, ¶

18, citing State v. Thompkins,

78 Ohio St.3d 380

, 386 (1997). The relevant inquiry is whether the

prosecution has met its burden of production by presenting sufficient evidence to sustain a

conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this

Court must view the evidence in the light most favorable to the State. Jackson v. Virginia,

443 U.S. 307

, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in

favor of the State. State v. Jenks,

61 Ohio St.3d 259

, 273 (1991). The evidence is sufficient if it

allows the trier of fact to reasonably conclude that the essential elements of the crime were proven

beyond a reasonable doubt.

Id.

                                                  3


       {¶7}    R.C. 2919.21(A)(2) provides that “[n]o person shall abandon, or fail to provide

adequate support to … [t]he person’s child who is under age eighteen … .” Parentage is an

element of the offense that must be proved by the State beyond a reasonable doubt.1 State v.

Parsley,

93 Ohio App.3d 788

, 792 (6th Dist.1994). It cannot be proved by the introduction of a

judgment from a civil case. Id. at 791-792. See also State v. Snyder,

157 Ohio St. 15

, 19-20 (1952)

(parentage cannot be established in a criminal nonsupport case by reference to a divorce decree or

a prior judgment in a paternity action). This is not to say that parentage must be established in a

specific way to prove charges under R.C. 2919.21(A)(2), however. The import of these cases is

that a civil judgment must not be given preclusive effect. See Snyder at 21 (concluding that the

trial court erred by refusing to permit the defendant to introduce evidence tending to demonstrate

that he was not the father of the children at issue); Parsley at 790-792.

{¶8} Two witnesses offered testimony relevant to paternity in this case. The child

support case worker testified that according to her records, paternity of the twins was established

at the hospital when they were born. S.B., the mother of the twins, testified in more detail. She

explained that she was in a relationship with Mr. Ewing that lasted approximately four years,

ending in 2003. S.B. testified that Mr. Ewing is the father of her twin daughters, and she explained

that she accompanied him to downtown Cleveland to sign their birth certificates in May 2001.

{¶9} The jury could reasonably conclude from this testimony that Mr. Ewing is the father

of the twins. His arguments to the contrary address the strength of the evidence regarding paternity

and the credibility of the witnesses. When considering the sufficiency of the evidence, however,

1
In contrast, proof of parentage is not required to establish a violation of R.C. 2919.21(B).
See State v. Jackson, 2d Dist. Montgomery No. 24486,

2011-Ohio-6707

, ¶ 15. Although Mr.
Ewing was charged under both portions of the statute, this Court notes that he was not subject to
a “court order” regarding child support.
                                                  4


this Court must view the evidence in the light most favorable to the State without considering

credibility. See Jackson,

443 U.S. at 319

; Jenks, 61 Ohio St.3d at 273.

       {¶10} Mr. Ewing’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED IN ALLOWING TESTIMONY AS TO “OTHER
       ACTS” EVIDENCE PERTAINING TO CLAIMS OF A SUPPORT CASE IN
       CUYAHOGA COUNTY WHEN THE STATE FAILED TO FOLLOW THE
       REQUIREMENT OF [EVID.R. 404] TO GIVE “NOTICE OF INTENT” TO USE
       OTHER ACTS EVIDENCE[.]

       {¶11} Mr. Ewing’s third assignment of error argues that the trial court erred by admitting

the testimony of a witness who mentioned another child support case in Cuyahoga County when

the State failed to provide notice of its intention to introduce evidence of other acts. Because Mr.

Ewing did not raise this issue in the trial court, he has forfeited all but plain error for purposes of

appeal. See State v. Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

, ¶ 22-25.

       {¶12} Crim.R. 52(B) permits this Court to notice plain errors or defects that affected a

substantial right in the absence of an objection in the trial court. This Court can only notice plain

error when there has been a deviation from a legal rule that constituted an obvious defect in the

trial proceedings and affected the outcome. Rogers at ¶ 22, citing State v. Barnes,

94 Ohio St.3d 21

, 27 (2002).

       {¶13} Evidence relating to “other crimes, wrongs, or acts” cannot be admitted for the

purpose of “prov[ing] the character of a person in order to show action in conformity therewith.”

Evid.R. 404(B). It may, however, be admissible for other purposes, such as proving “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Id.


The Supreme Court of Ohio has articulated a three-part analysis that must be applied when

considering the admission of other acts testimony: the evidence must be relevant, it must be
                                                5


introduced for a purpose other than proving propensity, and the probative value of the evidence

must not be substantially outweighed by the risk of unfair prejudice. State v. Graham, Slip Opinion

No.

2020-Ohio-6700

, ¶ 72, citing State v. Williams,

134 Ohio St.3d 521

2012-Ohio-5695

, ¶ 20

and State v. Hartman,

161 Ohio St.3d 214

2020-Ohio-4440

, ¶ 22.

       {¶14} The determination of whether other acts evidence is offered for a permissible

purpose under Evid.R. 404(B) is a question of law that this Court reviews de novo. See Hartman

at ¶ 22. On the other hand, this Court reviews a trial court’s determination that permissible other

acts evidence should be admitted for an abuse of discretion. See Hartman at ¶ 22, citing Williams

at ¶ 17. See generally State v Skatzes,

104 Ohio St.3d 195

2004-Ohio-6391

, ¶ 107, citing State v.

Sage,

31 Ohio St.3d 173

 (1987), paragraph two of the syllabus (noting that relevance and the

admission of evidence under Evid.R. 403(A) are reviewed for an abuse of discretion).

       {¶15} During trial, the child support case worker described the options available to CSEA

as the agency pursues collection of unpaid child support. The case worker noted the remedies that

CSEA pursues before criminal charges, describing license suspensions, passport suspensions, and

contempt. The case worker explained that a passport suspension may be put in place when CSEA

notifies the State of Ohio that an obligor is at least $2,500 in arrears in the aggregate. She also

described the actions taken in Mr. Ewing’s case before criminal charges were filed but explained

that CSEA did not obtain a passport suspension because, by the time he reached the amount of

arrears that triggers a suspension, CSEA learned that a passport suspension was already in place

as a result of another matter.

       {¶16} The purpose of this testimony was not to establish that Mr. Ewing acted in

conformity with prior conduct, but to explain the steps that led up to the point at which criminal

charges were filed. The testimony was properly admitted for this purpose, and its probative value
                                                 6


was not substantially outweighed by the risk of unfair prejudice. See Graham, Slip Opinion No.

2020-Ohio-6700

, at ¶ 72, citing Williams at ¶ 20 and Hartman at ¶ 22. Nonetheless, even if this

Court were to assume that there was not a permissible purpose for the case worker’s comment, we

could not conclude that admission of the testimony amounted to plain error because it did not affect

the outcome of the trial. See Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

, at ¶ 22, citing Barnes,

94 Ohio St.3d at 27. The reference to another child support case during the case worker’s

testimony was fleeting. See, e.g., State v. Potter, 8th Dist. Cuyahoga No. 72015,

1998 WL 183847

,

*6 (Apr. 16, 1998). On the other hand, there was ample evidence demonstrating that Mr. Ewing

was aware of the CSEA administrative order but failed to support the twins during the period at

issue.

         {¶17} Mr. Ewing has also argued that even if the child support case worker’s testimony

was not admitted to show conduct in conformity with other acts, it was plain error for the trial

court to permit the testimony because the State failed to provide notice of its intent to elicit the

testimony.

         {¶18} In the event that a party intends to introduce other acts evidence for a permissible

purpose, the proponent must “provide reasonable notice in advance of trial, or during trial if the

court excuses pretrial notice on good cause shown, of the general nature of any such evidence it

intends to introduce at trial.” Evid.R. 404(B). This requirement, however, “‘should not be

construed to exclude otherwise relevant and admissible evidence solely because of a lack of notice,

absent a showing of bad faith.’” State v. Lester, 3d Dist. Union Nos. 14-18-21, 14-18-22, 2020-

Ohio-2988, ¶ 48, quoting 2012 Staff Note, Evid.R. 404(B). See also State v. Binks, 12th Dist.

Butler No. CA2017-08-118,

2018-Ohio-1570

, ¶ 48.
                                                 7


       {¶19} As noted above, the purpose of the case worker’s testimony was not to demonstrate

conduct in conformity with past acts, but to provide context for her discussion of the process that

lead to criminal charges against Mr. Ewing. Under such circumstances, Evid.R. 404(B) would not

exclude that testimony absent a showing of bad faith. See Lester at ¶ 48. Even assuming error in

the admission of the testimony, however, this Court could not notice plain error under these

circumstances: having concluded that the testimony did not affect the outcome of the trial, it

follows that we cannot notice plain error based on lack of notice for the same reason. See, e.g.,

State v. Nuzum, 6th Dist. Lucas No. L-15-1122,

2016-Ohio-2744

, ¶ 21.

       {¶20} Mr. Ewing’s third assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 4

       IT WAS PLAIN ERROR TO ALLOW THE PROSECUTOR[’S]
       INVESTIGATOR [M.H.] TO GIVE HIS OPINION AS TO WHETHER [MR.
       EWING] WAS ABLE TO WORK.

       {¶21} In his fourth assignment of error, Mr. Ewing argues that the trial court erred by

permitting an investigator employed by the State to express an opinion with respect to whether

Mr. Ewing was capable of working during the time period at issue. Because Mr. Ewing did not

raise this issue in the trial court, he has forfeited all but plain error for purposes of appeal. See

Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

, at ¶ 22-25.

       {¶22} A lay witness may testify regarding opinions or inferences that are rationally based

on the witness’s perception and helpful for developing a clear understanding of that witness’s

testimony or determining a fact that is in issue. Evid.R. 701. For example, Evid.R. 701 permits

lay witnesses to express opinions about the identity of a controlled substance, State v. McKee,

91 Ohio St.3d 292

 (2001), syllabus; whether an individual is intoxicated, State v. Schmitt,

101 Ohio St.3d 79

2004-Ohio-37

, ¶ 15 and syllabus; and, in the case of an individual’s treating physician,
                                                8


to describe the physical condition of a patient, State v. Heller, 9th Dist. Lorain No. 18CA011304,

2019-Ohio-4722

, ¶ 7. The common thread under Evid.R. 701 is that this testimony must draw on

the individual’s own observations. Lay opinion testimony cannot be based, in whole or in part,

upon observations made by others. State v. Johnson,

88 Ohio St.3d 95

, 111 (2000), quoting State

v. Webb,

70 Ohio St.3d 325

, 333 (1994).

       {¶23} Mr. Ewing argues that the following exchange between the prosecutor and M.H.,

an investigator who prepares CSEA cases for trial, violated Evid.R. 701:

       Q:      Based on your investigation, do you believe [Mr. Ewing] is capable of being
               employed?

       A:      Yes, I do.

       Q:      Do you believe that [Mr. Ewing] is capable of earning a wage?

       A:      Yes.

       Q:      Did you find any evidence that might suggest that [Mr. Ewing] is incapable
               of earning a wage?

       A:      No, I did not.

Mr. Ewing notes that M.H. did not personally observe him and acknowledged that he had not met

Mr. Ewing in person. In context, however, M.H.’s testimony regarding Mr. Ewing’s ability to

work was confined to the outcome of his investigation. Although the question posed to M.H. by

the State was inartful in this regard, M.H.’s answer was not an expression of lay opinion. During

his cross-examination, M.H. reiterated this connection, noting that he had not observed anything

in CSEA’s child support tracking system, “in [CSEA’s] process, in the notes, nothing there that

says [Mr. Ewing]’s incapable of holding a job and working and providing for his children.”

       {¶24} Even assuming that M.H.’s testimony did violate Evid.R. 701, however, this Court

could not recognize plain error in this case because the error, if any, did not change the outcome

of the proceeding. See Rogers,

143 Ohio St.3d 385

2015-Ohio-2459

, at ¶ 22, citing Barnes, 94
                                                 9


Ohio St.3d at 27. The child support case worker testified that Mr. Ewing made some, but few,

payments toward his child support obligation. She described the efforts that CSEA undertakes to

work with obligors who are unable to pay but noted that although Mr. Ewing participated in the

administrative support proceedings, he had never notified CSEA that he could not meet his

obligations. M.H., who investigated Mr. Ewing’s employment, testified that several active

corporations were registered in Mr. Ewing’s name. He explained that one of the corporations’

websites marketed its experience as a “global resource developer [in] mining [and] drilling.” S.B.,

the twins’ mother, testified that Mr. Ewing started the businesses many years ago. She also noted,

however, that although “able-bodied” with “nothing wrong with him[,]” Mr. Ewing does not want

to work and is supported by his parents. Although inability to pay is an affirmative defense to a

charge of nonsupport, Mr. Ewing presented no evidence to the contrary. See generally R.C.

2919.21(D); R.C. 2901.05(A) (In general, “[t]he burden of going forward with the evidence of an

affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative

defense … is upon the accused.”). See also State v. Roders, 9th Dist. Summit No. 20962, 2002-

Ohio-3867, ¶ 16.

       {¶25} The admission of M.H.’s testimony was not plain error, and Mr. Ewing’s fourth

assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE[.]

       {¶26} Mr. Ewing’s second assignment of error argues that his convictions for nonsupport

of dependents are against the manifest weight of the evidence. This Court does not agree.

       {¶27} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:
                                                10


       review the entire record, weigh the evidence and all reasonable inferences, consider
       the credibility of witnesses and determine whether, in resolving conflicts in the
       evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten,

33 Ohio App.3d 339

, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction.

Id.,

 citing State

v. Martin,

20 Ohio App.3d 172

, 175 (1st Dist.1983).

       {¶28} Mr. Ewing’s first two arguments in support of his second assignment of error

reiterate those he articulated in support of his third and fourth assignments of error, which this

Court has rejected. He has also argued that the evidence regarding his ability to pay support is

conflicting. In considering this argument, this Court is mindful that because inability to pay is an

affirmative defense under R.C. 2919.21(D), the burden of proof fell to Mr. Ewing, who did not

present any evidence in this respect. See Roders,

2002-Ohio-3867

, at ¶ 16. As noted above, the

caseworker testified that Mr. Ewing did not avail himself of the opportunity to notify CSEA that

he was unable to meet his obligations. M.H. described the corporations owned by Mr. Ewing and

the expertise that they touted through their internet presence. S.B. confirmed that Mr. Ewing had

started numerous corporations in the past. Although, as Mr. Ewing points out, S.B. testified that

Mr. Ewing did not make money from the corporations at the time, she also testified that Mr. Ewing

encouraged her to be patient, and she stated that Mr. Ewing is capable of working, but chooses to

rely on his parents for support.

       {¶29} Mr. Ewing also maintains that the evidence establishes that he did not abandon his

duty to support the twins but, instead, was left “homeless in Paris, France[]” when his passport

was suspended. This Court notes, however, that Mr. Ewing did not elicit testimony from the

State’s witnesses to this effect, nor did he present evidence along these lines. Consequently, there

is no evidence in the record that would support this argument.
                                                 11


       {¶30} Finally, Mr. Ewing argues that because there is “no testimony that [S.B] and the

[twins] needed any support from him during the time periods in the indictment[,]” the conclusion

that he “fail[ed] to provide adequate support” under R.C. 2919.21(A) is against the manifest weight

of the evidence. R.C. 2919.21(A), however, “requires the state to show that the child is not being

adequately supported by the defendant. … It is not an affirmative defense to prosecution under

R.C. 2919.21 that the child is being adequately supported by a party other than defendant.”

(Emphasis in original.) State v. Schaub,

16 Ohio App.3d 317

, 319 (8th Dist.1984). See also State

v. Ringkob, 9th Dist. Summit No. 18484,

1998 WL 159015

, *4 (Mar. 25, 1998) (rejecting the

appellant’s argument that “the State presented no evidence that his children ‘went without[]’”

because “[t]hat others are providing support to a child is not a defense to prosecution under Section

2919.21(A)(2).”). Mr. Ewing’s argument in this regard is, therefore, of no consequence with

respect to the weight of the evidence supporting his convictions.

       {¶31} Mr. Ewing’s conviction for nonsupport of dependents is not against the manifest

weight of the evidence. His second assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 5

       THE [TRIAL] COURT ERRED IN GIVING JURY INSTRUCTIONS THAT AN
       ELEMENT OF THE OFFENSE CHARGED IS THE MENS REA OF
       “RECKLESSLY ABANDON” AS THE STATUTE DOES NOT PROVIDE FOR
       RECKLESSLY BUT REQUIRES SIMPLY ABANDONMENT[.]

       {¶32} In his fifth assignment of error, Mr. Ewing argues that the trial court erred by

instructing the jury that the mens rea required for a conviction under R.C. 2919.21(A)(2) is

reckless, rather than willful, conduct. Because Mr. Ewing did not object to the jury instruction, he

has forfeited all but plain error for purposes of appeal. See State v. Owens,

162 Ohio St.3d 596

2020-Ohio-4616

, ¶ 7, quoting Crim.R. 30(A) and citing State v. Diar,

120 Ohio St.3d 460

, 2008-

Ohio-6266, ¶ 127.
                                                 12


       {¶33} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.”

State v. Comen,

50 Ohio St.3d 206

 (1990), paragraph two of the syllabus; R.C. 2945.11 (“In

charging the jury, the court must state to it all matters of law necessary for the information of the

jury in giving its verdict.”). Although trial courts enjoy broad discretion in fashioning jury

instructions, they must “present a correct, pertinent statement of the law that is appropriate to the

facts.” State v. White,

142 Ohio St.3d 277

2015-Ohio-492

, ¶ 46, citing State v. Griffin,

141 Ohio St.3d 392

2014-Ohio-4767

, ¶ 5, and State v. Lessin,

67 Ohio St.3d 487

, 493 (1993). This Court

reviews a trial court’s decision to provide a requested jury instruction for an abuse of discretion.

State v. Simin, 9th Dist. Summit No. 26016,

2012-Ohio-4389

, ¶ 40, quoting State v. Evans, 9th

Dist. Medina No. 07CA0057-M,

2008-Ohio-4772

, ¶ 12. An abuse of discretion is present when a

trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly

unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330,

2015-Ohio-2507

, ¶ 8, quoting Tretola

v. Tretola, 3d Dist. Logan No. 8-14-24,

2015-Ohio-1999

, ¶ 25.

       {¶34} When the language of a statute that defines a criminal offense does not specify the

requisite degree of culpability or plainly indicate that strict liability should be imposed, the

culpable mental state required for commission of the offense is recklessness. See State v. Johnson,

128 Ohio St.3d 107

2010-Ohio-6301

, paragraph two of the syllabus, citing former R.C.

2901.21(B). See also State v. Maxwell,

95 Ohio St.3d 254

2002-Ohio-2121

, ¶ 21. Applying the

previous version of R.C. 2901.21, the Ohio Supreme Court reasoned that this rule applies only

when no degree of culpability is specified in the section that defines the offense. State v. Tolliver,

140 Ohio St.3d 420

2014-Ohio-3744

, paragraph one of the syllabus. Relying on Johnson, the

Court emphasized that the relevant consideration was whether a section of the Revised Code—
                                                 13


rather than a division or a clause—expressed a culpable mental state or the intention that the strict

liability apply. Tolliver at ¶ 15. Thus, the Court reasoned that “[i]f the section already requires

proof of a culpable mental state for any element of the offense in any division or subdivision, R.C.

2901.21(B) [and R.C. 2901.21(C)(1)] [do] not apply, and the state need prove culpability only as

specified in the section.”

Id.

 at paragraph one of the syllabus.

       {¶35} R.C. 2901.21(C)(1) now omits any reference to the “section” that defines an offense

and provides:

       When language defining an element of an offense that is related to knowledge or
       intent or to which mens rea could fairly be applied neither specifies culpability nor
       plainly indicates a purpose to impose strict liability, the element of the offense is
       established only if a person acts recklessly.

R.C. 2919.21(A)(2) provides that “[n]o person shall abandon, or fail to provide adequate support

to … [t]he person’s child who is under age eighteen … .” Neither this portion of the statute

nor the statute as a whole specifies the culpable mental state required for a conviction. See Tolliver

at paragraph one of the syllabus. Consequently, the culpable mental state required for a violation

of R.C. 2919.21(A)(2) is recklessness. State v. Smith, 12th Dist. Warren No. CA2002-04-038,

2002-Ohio-6395

, ¶ 21; State v. Beach,

148 Ohio App.3d 181

2002-Ohio-2759

, ¶ 8 (1st Dist.).

Compare State v. Collins,

89 Ohio St.3d 524

, 530-531 (2000) (concluding that because the statute

is silent, the culpable mental state required for a violation of R.C. 2919.21(B) is recklessness).

       {¶36} Mr. Ewing argues that R.C. 2919.21(A)(2) requires a culpable mental state of

willfulness because the use of the word “abandon” in the statute implies willfulness. R.C.

2919.21(A)(2), however, does not explicitly reference a culpable mental state. The trial court

instructed the jury that R.C. 2919.21(A)(2) required them to find that Mr. Ewing “abandoned or

recklessly failed to provide adequate support” to the twins. (Emphasis added.) The trial court also

provided the jury with a definition of “abandoned” that included the word “willfully.”
                                                 14


Nonetheless, the trial court accurately instructed the jury that the culpable mental state required

for failure to provide adequate support is recklessness. This instruction was “a correct, pertinent

statement of the law that is appropriate to the facts[,]” and it was not an abuse of the trial court’s

discretion. See White,

142 Ohio St.3d 277

2015-Ohio-492

, at ¶ 46, citing Griffin,

141 Ohio St.3d 392

2014-Ohio-4767

, at ¶ 5, and Lessin, 67 Ohio St.3d at 493. Because “error … [is] the

starting point for a plain-error inquiry[,]” Mr. Ewing’s fifth assignment of error is not well-taken.

See State v. Hill,

92 Ohio St.3d 191

, 200 (2001); Crim.R. 52(B).

{¶37} Mr. Ewing’s fifth assignment of error is overruled.

III.

{¶38} Mr. Ewing’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.
15

Costs taxed to Appellant.

LYNNE S. CALLAHAN
FOR THE COURT

HENSAL, P. J.
CARR, J.
CONCUR.

APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTIO, Assistant
Prosecuting Attorney, for Appellee.

[Cite as State v. Ewing,