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State v. Herring6/10/1993
JOHN D. MARTIN, Judge.
In July 1992, defendant-appellant, Reginald Herring, was indicted by the Franklin County Grand Jury on one count of nonsupport. He entered a plea of guilty to the charge and, in November 1992, received a sentence of one and one-half years' imprisonment and was ordered to make restitution of child support arrearages of $18,000.
Appellant assigns as error the order of restitution as part of a sentence for nonsupport, alleging that there is no legal or statutory authority providing for this.
In support of his position, counsel for the appellant cites several opinions, none of which is directly on point. State v. Pittman (1990), 61 Ohio App.3d 425, 572 N.E.2d 841, stands for the proposition that, in a case involving felonious assault, restitution could be ordered for property damage but not for personal injury , which would include a victim's medical bills. The appellate court did concede that restitution could be ordered as part of probation, but that question, along with the question of property damages, is not before the court in this case.
Appellant further cites State v. Ashley (1991), 74 Ohio App.3d 92, 598 N.E.2d 71. There the trial court suspended two six-month misdemeanor nonsupport sentences and placed the defendant therein on probation on condition of making restitution, which the court proceeded on its own to set, along with a retroactive date from which said support should run. The appellate court for the Eighth Appellate District found that, while "* * * probation could properly have been conditioned upon the appellant making payments toward the child support * * *, the trial court here exceeded its authority in fixing the amount of the payment and attempting to establish an earlier effective date. Those matters should be determined in civil proceedings." In this case, an existing child support order was in place and enforceable at all relevant times, but restitution was part of the appellant's sentence rather than a term of probation.
This case then is one of first impression in Ohio involving the question of whether nonsupport is a "theft offense" within the definition of that term as provided for in R.C. 2913.01.
R.C. 2929.11 provides, inter alia, that one convicted of a felony may be ordered to make restitution to victims. In certain instances such as arson and theft in office it is mandated. In other instances the language is permissive.
Restitution may be ordered where a "theft offense," as defined in R.C. 2913.01(K), is involved. Nonsupport, R.C. 2919.21, is not listed among those offenses in which restitution may be required of a defendant.
The question, thus, is reduced to whether nonsupport is "substantially equivalent" to theft, R.C. 2913.02, or related statutes. And, more specifically, did appellant exercise control over property or property interests of the victim or victims?
The intended recipient of the support payments in this case was undoubtedly harmed financially by not receiving payments. Indeed, anyone who is owed a debt and fails to have such debt timely paid is financially damaged. However, such financial damages, as urged by counsel for appellee and as held to be subjecsto a restitution order in State v. Warner (1990), 55 Ohio St.3d 31, 564 N.E.2d 18, must be distinguished. In Warner, substantial sums of money were taken through unauthorized acts under R.C. 1153.01 and securities violations under R.C. 1707.44. Here, there has been no taking, but merely a withholding.
Perhaps one victim may be harmed as much as the other and the case of a child may be far more insidious. However, to call the withhold
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