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State v. Karnes3/29/2001
DECISION AND JUDGMENT ENTRY
This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. The jury found George Karnes, defendant below and appellant herein, guilty of four counts of criminal nonsupport, in violation of R.C. 2919.21.
Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION IN LIMINE PROHIBITING THE ADMISSION OF ALL EVIDENCE RELATED TO APPELLANT'S LEGAL CHALLENGES TO THE VALIDITY [OF THE] ORIGINAL SUPPORT ORDER."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN ORDERING APPELLANT TO PAY RESTITUTION AS PART OF SENTENCE FOR THE NONSUPPORT CONVICTION."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS WHEN IT OVERRULED APPELLANT'S MOTION TO DISMISS, WHICH ASSERTED THAT THE COURT LACKED JURISDICTION OVER APPELLANT IN THE CRIMINAL PROSECUTION FOR NONSUPPORT."
The following facts pertinent to the instant appeal are taken from our prior opinion in Karnes v. Karnes (Aug. 8, 1996), Athens App. No. 95 CA 1666, unreported.
"* * * On March 11, 1981, Nancy Karnes * * * filed a complaint for divorce and custody of the minor child born of the marriage. On December 1, 1981, the referee who presided over the divorce and custody hearing, recommended that [Nancy Karnes] be granted a divorce and receive custody of the minor child. The report also recommended that [George Karnes] pay child support. The trial court adopted the referee's report on January 8, 1982. In its judgment, the trial court did not specify which party was granted custody of the minor child or the exact amount of child support due per week.
[George Karnes] then filed a notice of appeal to this court. On March 8, 1983, this court filed a journal entry which found that on consideration of the record, assignments of error, and arguments of the parties, we did not find any error on the record, judgment and proceedings of the trial court. Thus, we affirmed the trial court's judgment.
On November 29, 1994, the Athens County Child Support Enforcement Agency filed a motion for contempt and/or judgment for child support arrearage. After a hearing before a referee, the referee filed a report in which she recommended that [George Karnes] be found in contempt and judgment be rendered in favor of [Nancy Karnes] for the unpaid child support. The trial court adopted this report on April 4, 1995. * * *."
In his 1996 appeal, appellant argued that the original January 8, 1982 judgment was unenforceable and void because the trial court did not specifically state who was to receive custody of the parties' minor child. In our decision, we noted that " trial court may not simply `rubber stamp' a referee's report," and that " judgment must contain a statement of relief to which a party is entitled." We stated that " judgment which does not contain this statement of relief is erroneous and voidable." This court ultimately concluded, however, that because appellant had appealed the 1982 judgment, res judicata precluded appellant from again challenging the validity of the 1982 judgment.
On September 2, 1998, the Athens County Grand Jury returned an indictment charging appellant with four counts of criminal nonsupport. Two of the counts charged appellant with violating former R.C. 2919.21: (1) count one alleged a violation of R.C. 2919.21(A)(2); and (2) count two alleged a violation of R.C. 2919.21(B), which the state later amended to charge a violation of R.C. 2919.21(A)(4). The remaining two counts charged appellant
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