Ohio Appellate Reports


STATE v. GALLUZZO, Unpublished Decision (1-20-2006)
2006-Ohio-309 State of Ohio, Plaintiff-Appellee, v. Michael
A. Galluzzo, Defendant-Appellant. C.A. No. 2004 CA 25.
Court of Appeals of Ohio, Second District, Champaign
County. Rendered on January 20, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Criminal Appeal from Common Pleas Court,
T.C. Case No. 01 CR 171.

Nick A. Selvaggio, Prosecuting Attorney, Atty. Reg. No.
0055607 and Scott D. Schockling, Assistant Prosecuting
Attorney, Atty. Reg. No. 0062949, 200 N. Main Street,
Urbana, Ohio 43078, Attorneys for Plaintiff-Appellee.

Marc S. Triplett, Atty. Reg. No. 0021222, 332 South Main
Street, Bellefontaine, Ohio 43311, Attorney for



{1} Michael A. Galluzzo was convicted by a jury in
the Champaign County Court of Common Pleas of two counts
of non-support of dependents, in violation of R.C.
2919.21(A)(2), and two counts of non-support of dependents,
in violation of R.C. 2919.21(B). He was sentenced to five
years of community control and ordered to pay a fine of
$100 on each count, to be served concurrently.

{2} The procedural history of this case is long
and complex.

{3} On August 16, 2001, Galluzzo was indicted for
one count of non-support of dependents, in violation of
R.C. 2919.21(A)(2), and one count of non-support of
dependents, in violation of R.C. 2919.21(B), both felonies
of the fifth degree. The non-support was alleged to have
occurred for the period of January 1998 through June 2001.
Galluzzo was served with the indictment on August 31, 2001.
He remained free on a personal recognizance bond, and a
jury trial was scheduled for January 24, 2002.

{4} On October 10, 2001, Galluzzo requested a
three week extension to file pretrial defense motions,
which was granted on October 12, 2001. On December 19,
2001, Galluzzo filed a motion for recusal, arguing that the
trial judge had entered rulings in the related domestic
relations case, that the judge would likely be called as a
witness at trial, and that the magistrate of the court
would likely be called in a civil action in federal court,
which had been filed on April 27, 2001. On January 10,
2002, Galluzzo requested an order to stay the proceedings
and continue the trial pending disposition of his civil
lawsuit in federal court and pending a disposition by the
supreme court regarding his affidavit of bias. On January
22, 2002, the court denied the motion for recusal and
granted the motion to stay. The court indicated that it
would next give consideration to the case after the federal
court had ruled on Galluzzo’s action. The court noted that
the federal magistrate judge had recommended dismissal of
the federal case.

{5} On March 23, 2004, the court ordered a status
conference, which was delayed until April 7, 2004, at the
request of defense counsel. On April 11, 2004, the court
issued a journal entry in which it noted that the federal
action had been dismissed on January 23, 2004 and that
Galluzzo had filed an appeal to the Sixth Circuit on March
1, 2004. The court indicated that the state had requested a
trial forthwith; conversely, Galluzzo had requested that
the court await completion of the federal appeal or, at
least, that trial not be scheduled until August 2004. The
court found that the notice of appeal did not operate as an
automatic stay of the federal trial court’s decision nor as
a stay of the proceedings in the common pleas court. Thus,
the court “determined that trial would not be set in this
court for at least sixty days in order for Mr. Galluzzo to
seek either a stay of these proceedings or a stay of the
effect of the District Court’s decision.” The court set a
new trial date of June 28, 2004.

{6} On June 14, 2004, the state and Galluzzo
jointly filed a statement of intent, indicating that there
had been a defect in the indictment and that Galluzzo had
agreed to waive his right to a grand jury and had consented
to enter a plea of not guilty to a bill of information. The
bill of information added four counts to the two counts
originally stated in the indictment — two counts of
non-support of dependents in violation of R.C.
2919.21(A)(2) and two counts of non-support of dependents
in violation of R.C. 2919.21(B). Counts three and four
mirrored the allegations in the original indictment. Counts
five and six were based on Galluzzo’s non-support of
dependents between July 2001 and June 2004.

{7} On the same day, Galluzzo filed an affidavit
to disqualify the trial judge with the Supreme Court of
Ohio. Three days later, the Chief Justice of the Supreme
Court of Ohio denied the affidavit of disqualification and
ordered that the case proceed before Judge Wilson.

{8} On June 21, 2004, Galluzzo was arraigned
before the court, during which he waived his right to an
indictment and pled not guilty to the charges in the bill
of information. Trial was rescheduled for August 23, 2004.

{9} On August 17, 2004, Galluzzo sought to dismiss
the counts alleged in the indictment, arguing that they had
been superceded by counts three and four of the bill of
information which included the same dates and the same
charges. Galluzzo further argued that he had already been
held in contempt for failing to pay child support between
January 1998 and June 2001 and, thus, counts three and four
should be dismissed under the Double Jeopardy Clause. The
state agreed that counts one and two in the indictment were
replaced by counts three and four in the bill of
information. On August 19, 2004, the trial court dismissed
counts one and two (the two counts in the indictment). It
denied Galluzzo’s motion to dismiss counts three and four,
finding that the contempt was civil in nature, that Galluzzo
had the opportunity to purge the contempt, and that the
subsequent punishment did not convert the civil contempt to
a criminal contempt.

{10} On August 20, 2004, Galluzzo sought dismissal
of counts three and four due to a speedy trial violation.
Alternatively, he requested a stay of the proceedings
pending the outcome of his appeal to the Sixth Circuit. On
August 23, 2004, Galluzzo sought dismissal of all of the
criminal charges on the ground that he was improperly
classified as a noncustodial parent and obligor for the
payment of child support. These motions were overruled.

{11} A jury trial commenced on August 23, 2004, on
the four counts alleged in the bill of information. The
jury found Galluzzo guilty on all counts, and he was
sentenced accordingly.

{12} Galluzzo appeals from his convictions,
raising eight assignments of error.


{14} In his first assignment of error, Galluzzo
claims that the trial court erred when the trial judge
failed to recuse himself from the case.

{15} R.C. 2701.03 sets forth the procedures for
seeking disqualification of a common pleas court judge for
prejudice. Under that statute, a party may file an
affidavit of disqualification with the clerk of the supreme
court. The Chief Justice of the Supreme Court of Ohio or
his designee determines whether the judge is biased or
prejudiced. Callison v. DuPuy, Miami App. No. 2002 CA 52,
2003-Ohio-3032, ¶ 22, citing Beer v. Griffith
(1978), 54 Ohio St.2d 440, 441, 377 N.E.2d 775 and Section
5(C), Article IV, Ohio Constitution. This procedure
provides “the exclusive means by which a litigant may claim
that a common pleas judge is biased and prejudiced.” Jones
v. Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d

{16} Here, Galluzzo filed an affidavit of
disqualification with the supreme court, and it was denied
by the Chief Justice. We have no authority to review the
issue of the trial judge’s alleged bias and prejudice.

{17} The first assignment of error is overruled.


{19} In his second assignment of error, Galluzzo
claims that the trial court erred when it failed to dismiss
counts four and six of the bill of information, which
alleged violations of R.C. 2919.21(B). Galluzzo argues that
the child support order upon which those counts were based
was constitutionally infirm. Specifically, Galluzzo asserts
that Ohio’s statutory scheme for awarding custody violated
his procedural due process rights. In response, the state
contends that Galluzzo may not collaterally attack the
support order in this proceeding and that his remedy was a
direct appeal of that order.

{20} We agree with the state. The orders
establishing custody and setting forth Galluzzo’s child
support obligations were final and appealable. The
appropriate procedure to challenge those orders was a
direct appeal of those orders, and Galluzzo’s failure to do
so constituted a waiver of any error. Although a void
judgment may be subject to collateral attack in another
proceeding, e.g., In re Ramsey (1956), 164 Ohio St. 567,
571-72, 132, N.E.2d 469, there is no basis to conclude that
the court of common pleas acted outside of its jurisdiction
when it entered the domestic relations orders at issue.
Consequently, Galluzzo could not have properly collaterally
attacked the child support order in the trial court.
Accordingly, the trial court did not err when it denied
Galluzzo’s request to dismiss counts four and six.

{21} The second assignment of error is overruled.


{23} In his third assignment of error, Galluzzo
claims that he did not validly waive his right to a speedy
trial and that the trial court erred when it refused to
dismiss counts three and four of the bill of information.
Galluzzo states that his waiver was premised on the belief
that his trial would not occur until the completion of his
federal lawsuit, including any appeals. The state responds
that Galluzzo never, in fact, waived his speedy trial
rights because he was brought to trial within the statutory
270-day time period.

{24} “The right to a speedy trial is guaranteed by
the Sixth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution. In Ohio,
R.C. 2945.71 requires the State to bring a felony defendant
to trial within two hundred and seventy days of arrest.
R.C. 2945.71(C). Each day during which the accused is held
in jail in lieu of bail on the pending charge is counted as
three pursuant to the triple-count provision of R.C.
2945.71(E).” State v. Hart, Montgomery App. No. 19556,
2003-Ohio-5327. Under R.C. 2945.72, the speedy trial time
may be tolled during any period of delay “necessitated by
reason of a * * * motion, proceeding, or action made or
instituted by the accused.” R.C. 2945.72(E).

{25} In the hearing on January 15, 2002,
Galluzzo’s counsel made the following statements:

{26} “First, I consulted with Mr. Galluzzo after
the last hearing on the 11th and there have been some
discussion at that hearing relative to the motion for
continuance as to the speedy trial considerations involved;
and I’m prepared to remove that issue to the extent it’s
there at all anymore by tendering to the Court * * * that
Mr. Galluzzo waives his right to speedy trial in this

{27} “And I’ve discussed with him that he has a
right to have the matter tried within 270 days under the
law, and he understands that is not only a statutory right
but the statute actually is the mechanism for his
constitutional right for speedy trial.

{28} “And understanding that he has agreed that he
waives that. Am I correct?”

{29} Galluzzo responded in the affirmative. There
is no indication in the record that Galluzzo conditioned
his expressed waiver on the court’s continuing the trial
date and staying the proceeding until the federal action
had been concluded, including any appeals from adverse

{30} Regardless, we agree with the state that
Galluzzo was ultimately tried within the 270-day statutory
period required by R.C. 2945.71. Here, the speedy trial
time began to run on August 31, 2001, when Galluzzo was
served with the indictment. State v. Riley, 162 Ohio App.3d
730, 735, 2005-Ohio-4337, 834 N.E.2d 887, at ¶ 20.
On December 19, 2001, Galluzzo filed a motion for recusal,
which tolled the speedy trial time. Because Galluzzo
remained free on bond, the period between August 31 and
December 19, 2001 counted toward his speedy trial time on a
one-to-one basis, for a total of 110 days.

{31} On January 10, 2002, while his motion for
recusal remained pending, Galluzzo requested that trial
date be rescheduled and sought a stay of the proceedings
pending the outcome of his federal litigation. The trial
court granted the motion for stay on January 22, 2002. On
March 23, 2004, the court ordered a status conference; that
conference was delayed at Galluzzo’s request until April 7,
2004. Because Galluzzo had filed motions resulting in the
delay of proceedings between December 19, 2002 and April 7,
2004, when the stay was lifted, that extended time period
did not count toward Galluzzo’s speedy trial time.

{32} Trial was scheduled for August 23, 2004, 137
days after the stay was lifted. As noted by the state,
shortly before the scheduled trial date, Galluzzo filed
three motions to dismiss. In addition, in June 2004,
Galluzzo had filed an affidavit of disqualification with
the Supreme Court of Ohio, which was denied three days
later. The result of these motions was the tolling of eight
days during the period between April 8, 2004, and August
23, 2004, when the trial commenced. Consequently, for
speedy trial purposes, 111 days had passed prior to the
stay and 129 had passed subsequent to the lifting of the
stay, for a total of 240 days. Accordingly, Galluzzo was
tried within 270 days of the service of the indictment, as
required by R.C. 2945.71(C)(2).

{33} The third assignment of error is overruled.


{35} In his fourth assignment of error, Galluzzo
contends that the court’s imposition of a sentence on
counts three and four of the bill of information violated
the Double Jeopardy Clause, because he had previously
served a thirty-day sentence after the court had cited him
for contempt for the third time on April 26, 2001. Galluzzo
indicates that the contempt citation covered the period of
time also covered by counts three and four. Galluzzo
acknowledges that we have held that “the service of a
previously suspended sentence upon the defendant’s
noncompliance with the conditions of the suspension does
not change the nature of the original contempt from civil
to criminal for double jeopardy purposes.” State v.
Montgomery, Montgomery App. No. 20036, 2004-Ohio-1699,
following State v. Palmer, Montgomery App. No. 19921,

{36} We most recently discussed the relationship
between contempt proceedings and prosecution for
non-support of dependents in Montgomery, supra, as follows:

{37} “The Double Jeopardy Clause in the Fifth
Amendment to the United States Constitution and Section 10,
Article I, of the Ohio Constitution prohibits subjecting
defendants to successive prosecutions for the same offense.
State v. Lovejoy, 79 Ohio St.3d 440, 443, 1997-Ohio-371;
State v. Mobley (Oct. 11, 2002), Montgomery App. No. 19176.
Double jeopardy protections apply in cases involving
contempt charges, but only if the contempt is criminal in
nature, rather than civil. Id.; Dayton Women’s Health Ctr.
v. Enix (1991), 68 Ohio App.3d 579, 591, 589 N.E.2d 121.
Criminal contempt is a lesser included offense of felony
non-support of dependents per R.C. 2919.21(B). Therefore, a
prior criminal contempt finding for failure to pay child
support bars, on double jeopardy grounds, a subsequent
prosecution for felony non-support of dependents per R.C.
2919.21(B). Mobley, supra.

{38} “There are two types of contempt, civil and
criminal. Sanctions for criminal contempt are punitive in
nature and unconditional. They are intended to punish the
offender for past disobedience of a court order and
vindicate the authority of the court. Civil contempt
sanctions, on the other hand, are remedial and are intended
to coerce the contemnor into complying with the court’s
order. In civil contempt the punishment is conditional and
the contemnor has an opportunity to purge himself of the
contempt and avoid the punishment by complying with the
court’s order. The contemnor carries the keys of his prison
in his own pocket, because he can avoid or terminate the
punishment if he agrees to do as ordered by the court.
Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 416
N.E.2d 610.

{39} “The distinction between civil and criminal
contempt was explained by this court in Shapiro v. Shapiro
(November 18, 1994), Miami App. No. 94-CA-2:

{40} “`The distinction between civil and criminal
contempt turns on the character and purpose of the sanction
imposed. Either a fine or imprisonment, or both, may be
imposed in civil or criminal contempt cases. In the civil
context, however, the purpose of the sanction is coercive:
that is, it is intended to force the contemnor to comply
with the court’s order. Compliance, in turn, redounds to
the benefit of the civil complainant. See Brown v.
Executive 200, Inc. (1980), 64 Ohio St.2d 250 [18 O.O.3d
446]. A sanction for civil contempt must allow the
contemnor to purge himself of the contempt. Tucker v.
Tucker (1983), 10 Ohio App.3d 251, 461 N.E.2d 1337. Once
the contemnor chooses to comply with the court’s order, the
purpose of the sanction is achieved and the sanction is

{41} “`A sanction for criminal contempt, by
contrast, is a punishment for past refusal to obey a court
order. Schrader v. Huff (1983), 8 Ohio App.3d 111, 456
N.E.2d 587. No coercive element is present. `Sentences for
criminal contempt are punitive in nature and are designed
to vindicate the authority of the court.’ State v. Kilbane
(1980), 61 Ohio St.2d 201, 205 [15 O.O.3d 221].'”
Montgomery at ¶ 17-21.

{42} In Palmer, we held that the imposition of one
day of incarceration out of a ten day suspended sentence
for contempt remained civil in nature, and thus double
jeopardy did not apply to his subsequent prosecution for
felony non-support of dependents. We reasoned:

{43} “[B]ecause the incarceration occurred as a
result of [Palmer’s] noncompliance with a civil contempt
order, the incarceration was civil in nature. As aptly put
by the Birch court: `The fact that the sentence came to be
subsequently imposed was not so much a result of the
court’s action, as it was a result of [the defendant’s]
decision.’ 2002-Ohio-3734, ¶ 16. Palmer’s decision
not to pay the monthly support, i.e., his `decision not to
purge the contempt[,] did not cause the sentence of the
court to change from civil to criminal; it did not cause
the sentence to become punitive.’ Id. Although Palmer could
not purge the one day incarceration while in jail, he had
held the keys to the jailhouse door and had previously
decided not to use them.”

{44} In Montgomery, the defendant was found in
contempt of his child support order on numerous occasions.
After receiving a suspended sentence on several occasions,
the court ordered the defendant to serve forty-four days in
jail. The court also stated that upon his payment of $600
on the arrears and after he had served ten days in jail,
the defendant’s attorney could file a motion for the
court’s consideration for Montgomery’s early release.
Montgomery paid the $600 and served ten days in jail. The
remaining thirty-four days were suspended by the court.
Following Palmer, we concluded that Montgomery’s service of
the previously suspended sentence was not criminal in
nature. Thus, we concluded that double jeopardy did not

{45} Upon review of the record, we find that
Galluzzo’s contempt citation is distinguishable from that
in Palmer and Montgomery. Here, the court indicated that
“[u]pon completing the sentence or paying the child support
arrearage in full, whichever occurs first, the Obligor will
have purged the contempt citation from the Journal Entry of
January 29, 1998.” (Emphasis added). In other words,
Galluzzo could have purged the thirty-day jail term during
the course of his incarceration by paying his arrearage.
Because Galluzzo had the keys to the jailhouse door during
his incarceration, the contempt citation — which was
clearly civil when it was imposed — unquestionably
remained civil when he was required to serve the suspended
sentence. Double jeopardy thus did not apply.

{46} In light of the fact that the present
circumstance is distinguishable from Palmer and Montgomery,
we decline to reconsider the wisdom of our earlier
decisions at this time.

{47} The fourth assignment of error is overruled.


{49} In his fifth assignment of error, Galluzzo
claims that the trial court improperly refused to honor his
subpoena of the trial judge. Galluzzo argues that he
“wished to challenge the court order by attacking the
fairness of the procedure by which it was created and
maintained. The trial court, by refusing to honor the
subpoena, precluded much of the Appellant’s defense.”
Galluzzo asserts that the trial court’s refusal violated
his right under the Compulsory Process Clause of the Sixth
Amendment, as incorporated by the Fourteenth Amendment, to
secure the testimony of witnesses in his favor.

{50} “The Sixth Amendment to the United States
Constitution establishes a defendant’s right to compulsory
process. It provides, in relevant part, that `[i]n all
criminal prosecutions, the accused shall enjoy the right *
* * to have compulsory process for obtaining witnesses in
his favor.’ Article I, Section 10, of the Ohio Constitution
similarly affords a defendant the right to compulsory
process. * * * Our cases establish, at minimum, that
criminal defendants have the right to the government’s
assistance in compelling the attendance of favorable
witnesses at trial and the right to put before a jury
evidence that might influence the determination of guilt.'”
State v. Buhrman (Step. 12, 1997), Greene App. No. 96 CA
145. “The accused’s right to call witnesses in his favor is
not without limit, however. Upon a challenge, the accused
must make some plausible showing of how the testimony would
have been material and favorable to his defense.” State v.
Brown (May 13, 1991), Stark App. No. CA-8338, citing U.S.
v. Valenzuela-Bernal (1982), 458 U.S. 858, 102 S.Ct. 3440,
73 L.Ed.2d 1193.

{51} On August 23, 2004, the court reiterated for
the record the decisions that it had made during a
telephone conference on August 20, 2004. Regarding the
subpoena, the court stated:

{52} “More difficult for the Court i[n] some ways
was dealing with the subpoena that was issued. The Court
found that the subpoena would not require Judge Wilson to
testify. The Court found that the questions of
disqualification of Judge Wilson from presiding over the
trial have been resolved by Defendant’s application to the
Supreme Court. And the Supreme Court ruling found that the
subpoena was another method to seek disqualification of the
Judge for this particular case.

{53} “The Court found that there is no basis for
determining that the Judge would be a material witness which
has no material information to provide, it is all a matter
of record. There is not any record of various cases, but
there is ample sources for providing whatever information
Counsel and the Defendant might seek to provide from the
Judge as a witness.

{54} “The Court finds that Canon 2 and Evidence
Rule 605 deal with the question of who can serve as a
witness. The Court finds that Canons 3C deals indeed, deals
with disqualification of judge as does State Constitution.

{55} “The Court believes that fairness to both
sides in the case does not require that Judge Wilson appear
as a witness.”

{56} The court again memorialized its ruling in a
journal entry on September 30, 2004.

{57} Upon review, we find no fault with the trial
court’s determination to quash the subpoena of Judge
Wilson. As stated supra, Galluzzo could not collaterally
attack the support order as part of this criminal
proceeding, and we find no basis to conclude that Judge
Wilson had any material information to provide. Under the
circumstances presented, Galluzzo’s rights under the
Compulsory Process Clause were not violated.

{58} The fifth assignment of error is overruled.


{60} In his sixth assignment of error, Galluzzo
asserts that the trial court erred when it failed to
instruct the jury fully after the completion of closing

{61} Galluzzo relies upon State v. Comen (1990),
50 Ohio St.3d 206, 553 N.E.2d 640. In Comen, the Supreme
Court of Ohio looked to Crim.R. 30(A), which then stated
that “* * * the court shall instruct the jury after the
arguments are completed.” The Court found that the language
in the rule was mandatory, and that if “preliminary or
cautionary instructions include matters of law vital to the
rights of a defendant, the trial court is not excused from
including or repeating all such instructions after the
arguments are completed.” Id. at 209. The Court thus held
that “[a]fter arguments are completed, 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.” Id. at
210. In that case, however, the Court found the failure to
repeat such instructions to have been harmless.

{62} In State v. Ransby (July 17, 1998),
Montgomery App. No. 16138, we contrasted the pre-1992
version of Crim.R. 30 with the then-current version.[fn1]
Noting that the language in the 1998 version required only
that the court “give” the jury instructions after the
arguments are completed, we stated that there was “no
reason to think that providing the jury with the complete
instructions in written form does not fulfill the
requirements of the current rule.” We further found no
prejudice to the defendant as a result of the court’s
failure to repeat all of the relevant jury instructions

{63} On reconsideration, we reiterated that where
the court fails to provide complete instructions following
closing arguments, the defendant must preserve the error by
making an appropriate motion after closing arguments that
the court reinstruct the jury or by objecting to the court
not doing so. State v. Ransby (May 28, 1999), Montgomery
App. No. 16138; see Crim.R. 30(A). We found no plain error,
noting, in part, that there was no contention that the jury
was not properly instructed prior to hearing closing
arguments and that the written instructions correctly
stated the instruction at issue.

{64} In the present case, Galluzzo did not request
that the court read the jury instructions in their
entirety, nor did he object to the court’s failure to do so
at the conclusion of the reading of the jury instructions.
Consequently, we review the court’s failure to do so for
plain error.

{65} Here, the court provided each of the jurors
with a written copy of the jury instructions at the
conclusion of the closing arguments so that they could read
along silently as the court gave its instructions. The
court began by noting that the trial date on the first page
had been changed to reflect a two day trial. Although the
court did not read the jury instructions verbatim, it
reminded the jurors of all of the instructions that had
previously been read. Specifically, it summarized that the
burden of proof and reasonable doubt had been defined on
page two, that page three informed the jurors of what
evidence is and the difference between direct and
circumstantial evidence, that page four explained
credibility and the jury’s role in considering the
witnesses’ credibility, and that the first paragraph of
page five explained exhibits and that the jury determines
the weight to be given to those exhibits. The further court
provided each juror with a complete written copy of the
jury instructions for his or her use during deliberations.
We see no prejudice to Galluzzo from the court’s
instructions, and the court’s actions did not rise to the
level of plain error.

{66} The sixth assignment of error is overruled.


{68} In his seventh assignment of error, Galluzzo
contends that his convictions were against the manifest
weight of the evidence. Specifically, Galluzzo challenges
the jury’s finding that there was a valid support order and
its rejection of his affirmative defense.

{69} When a conviction is challenged on appeal as
being against the manifest weight of the evidence, we must
review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, 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.” Thompkins, 78 Ohio St.3d
at 387, citing State v. Martin (1983), 20 Ohio App.3d 172,
175, 485 N.E.2d 717. Because the trier of fact sees and
hears the witnesses and is particularly competent to decide
“whether, and to what extent, to credit the testimony of
particular witnesses,” we must afford substantial deference
to its determinations of credibility. State v. Lawson (Aug.
22, 1997), Montgomery App. No. 16288. “Contrastingly, the
decision as to which of several competing inferences,
suggested by the evidence in the record, should be
preferred, is a matter in which an appellate judge is at
least equally qualified, by reason and experience, to
venture an opinion.” Id. A judgment should be reversed as
being against the manifest weight of the evidence only in
exceptional circumstances. Martin, 20 Ohio App.3d at 175.

{70} According to the state’s evidence, Teresa and
Michael Galluzzo were married on August 14, 1987. Two
children were born of the marriage: Sara, born in August
1989, and Kelsie, born in June 1992. On December 8, 1993,
Teresa filed for divorce. Later that month, Teresa was
named temporary custodian of the children. Galluzzo was
ordered to pay temporary child support of $15 per week plus
poundage. The child support was paid from the unemployment
benefits that Galluzzo was receiving at the time.

{71} In June 1994, the divorce was finalized. As
part of the final order of divorce, Teresa was named the
custodial parent; the court rejected Michael’s proposal for
shared parenting. The decree required Galluzzo to pay
monthly child support in the amount of $52.44 per week and
granted him visitation in accordance with the court’s
standard order. In September 1994, Galluzzo’s child support
obligation was amended to $58.16 per week due to an error
in the magistrate’s findings regarding Teresa’s monthly

{72} According to the testimony of Angella
Burbrink, a case manager coordinator with the Champaign
County Child Support Enforcement Agency (“CSEA”), Galluzzo
made one child support payment between July and December
1998; five payments in 1999; two payments in 2000; no
payments in 2001; two payments in 2002; one payment in
2003; and no payments in the first five months of 2004. All
of the payments received by CSEA between 1998 and 2002 were
through wage withholdings. CSEA learned of Galluzzo’s
employment from Teresa. In June 2001, Galluzzo’s arrearage
was $18,476.76. By May 2004, the arrearage was $26,863.26.

{73} Teresa testified that Galluzzo failed to
reimburse medical co-pays as required by the divorce decree
and that money that would have been used to pay the loan
for her van was applied to raising the children. Teresa
indicated that she filed for bankruptcy in December 1994.

{74} In August 1998, Teresa married James Cook
(“Jim”). Teresa and Jim testified that they and the
children initially lived in a small one bedroom/one
bathroom apartment (one half of a duplex) while they built
a new manufactured home. At that time, Teresa and
Galluzzo’s daughters and a son from Teresa’s first marriage
slept in the living room, which had a port-a-bed and a
futon on the floor. Teresa testified that they could have
been able to afford a larger apartment if Galluzzo had
provided support. Although Teresa, Jim, and the children
have moved into their new home, portions have not been
completed due to financial difficulties. Teresa and Jim
both indicated that they have been able to provide basic
necessities for Teresa and Galluzzo’s two minor daughters,
but they have not been able to afford activities or items
that would enrich their development, such as music lessons,
sports camps, and family vacations. In addition, Teresa
indicated that they have a basic telephone line in their
home, and that they do bargain shopping. Teresa testified:
“[W]e worked very hard to make sure that the children had
what they needed to have[,] both my husband and I. And
don’t feel that they go without the necessities, but they
surely could have had a nicer lifestyle had they had the
extra income of their father’s support too.”

{75} Testifying on his own behalf, Galluzzo stated
that he was in the military for several years after high
school, that he went into private industry as an electronic
specialist, did electrical installation with different
companies, and has done sales, photography and truck
driving. At the time of the final divorce decree, Galluzzo
was working for Aardvark Studios. Although he earned
approximately $200 per week while working, the work was
seasonal — May and June, August, and December.

{76} Galluzzo testified that his child support
obligation was based on incorrect data. He indicated that
he had objected to the magistrate’s finding in the divorce
proceeding that he earned $200 per week; that objection had
been overruled. Galluzzo further testified that his annual
income at the time was $3,110, not $10,400 as reflected on
the child support calculation worksheet. Galluzzo also
indicated that the worksheet did not reflect the death
benefits that Teresa received from the death of her first
husband. Taking into account these and other errors,
Galluzzo testified that his monthly child support
obligation should have been $15.50 per month, or $31 for
both children. Galluzzo further testified, referring to his
Social Security tax earnings statement, that he earned
$2,306 in 1995; $1,855 in 1996; $8,693 in 1997; $8,875 in
1998; $5,613 in 1999; and $2,146 in 2000.

{77} Galluzzo also testified concerning payments
that he had made. He stated that he paid money that Teresa
had owed on the van loan and that he “was paying a lot more
in on her bills than I should have been paying in support.”
He stated that he paid the Dayair loan until May 1999.
Galluzzo also paid the mortgages on his residence.

{78} Finally, Galluzzo testified that he had had
difficulty securing full-time work since the divorce and
that he had several health issues that interfered with his
employment. According to Galluzzo’s testimony, in 1995, he
injured his thumb during an altercation, which resulted in
severe arthritis in his thumb joints. In 1996, Galluzzo was
admitted to the Veterans Administration hospital due to
blood in his stool, and he underwent surgery to remove a
third of his colon and his appendix. Galluzzo indicated
that he was incapacitated between October 3, 1996, when the
surgery occurred, until July or August of 1997. Galluzzo
then worked for a photography business between August 1997
and June 1998, when the photography business closed. In
December 1998, Galluzzo injured his knee while “messing
around” with his son from a prior marriage. He indicated
that, as a result, he could not spend much time on his
feet, because it would aggravate his knee. In September
1999, Galluzzo had ACL reconstructive surgery; the recovery
period was six months. In 2001, Galluzzo obtained a
commercial driver’s license. Between April 27 and May 26,
2001, Galluzzo was in jail for contempt based on his
failure to pay child support. Galluzzo indicated that he
had been working four part-time jobs at the time, and that
he lost all four sources of income as a result of the
incarceration. In early 2002, Galluzzo began experiencing
shortness of breath and found he could not do strenuous
activities. He had several heart-related evaluations
throughout the year. On December 2, 2002, Galluzzo
underwent a heart catherization and received three stents.
Galluzzo had knee surgery again in 2004. Galluzzo
summarized the effect of his medical problems, stating “the
medical problems probably cost me a year or two, year and a
half of being able to provide steady income.”

{79} During cross-examination, however, Galluzzo
admitted that he had not paid support as ordered by the
court for 26 weeks out of 104 consecutive weeks, whether or
not the weeks were consecutive, for the periods of time
noted in counts three, four, five and six. He further
agreed that he knew that he had the obligation to pay the
support, and that the orders to pay support were in place
between 1998 and 2004 as stated in the bill of information.
Galluzzo admitted that his obligation to pay applied to two
children under the age of eighteen and that he knew the
risks of not paying. Further, Galluzzo stated that he knew
that any frustrations that he had with the lack of shared
parenting and visitation did not remove his obligation to
pay child support.

{80} Moreover, Galluzzo admitted that the
children’s living arrangement with Teresa and Jim at the
duplex was not the best environment for his daughters.
Galluzzo also testified that he spent $50 per month on high
speed internet access that could have been used for child
support. In terms of his work experience, Galluzzo
acknowledged that he had sales experience, electrical
skills experience, could perform general high school math,
and had legal intern skills as demonstrated by his pro se
briefs. Galluzzo agreed that there were several careers
that he could have pursued yet did not. Galluzzo admitted
that he had never informed CSEA of his employment or his
medical conditions.

{81} Upon review of the record, we find ample
support for the jury’s verdicts. Although Galluzzo asserts
that the court’s delay in ruling on his motion to modify
child support violated his right to due process, the state
presented substantial evidence that Galluzzo had been
ordered to pay child support under the terms of the divorce
decree, and that the support order continued to have effect
through 2004. The fact that the trial court had not ruled
on Galluzzo’s motion does not negate the fact that a valid
order remained in effect. Galluzzo, in fact, acknowledged
that he knew that he had the obligation to pay the support
and that the orders to pay support were in place between
1998 and 2004 as stated in the bill of information.

{82} In addition, we do not find that the jury
lost its way when it apparently rejected Galluzzo’s
affirmative defense that he was unable to provide adequate
support or the support ordered by the domestic relations
court. See 2919.21(D). As noted above, Galluzzo presented
evidence regarding a series of medical conditions between
1995 and 2004 and testified that he sought work but was
unsuccessful. The prosecutor, on the other hand, elicited
testimony from Galluzzo that he had a wide range of skills
and that he could have sought work in a number of fields
which would not have been physically active, including jobs
as a receptionist, customer service representative, data
entry person, legal assistant, photo developer, dispatcher,
parking garage attendant, quality assurance employee,
billing clerk, insurance agent, library staffer, and
officer manager. Although Galluzzo asserts that the
prosecutor failed to rebut his testimony that he had tried
to pursue various jobs but had not “found anybody that
would employ me with those skills,” Galluzzo further
testified that he chose to work part-time jobs instead of
full-time positions, in part so that his employment would
not interfere with his visitation schedule. In light of
Galluzzo’s extensive skills and the variety of his
experience, the jury could have reasonably concluded that
Galluzzo chose to be underemployed and that he could have
found a job which would have accommodated his medical
conditions if he had elected to pursue one. The verdicts
were not against the manifest weight of the evidence.

{83} The seventh assignment of error is overruled.


{85} Under Galluzzo’s eighth assignment of error,
he argues that the cumulative weight of the errors denied
him a fair trial. In light of the fact that we have not
identified any arguable errors, there is no basis for a
reversal based upon cumulative error.

{86} The eighth assignment of error is overruled.

{87} The judgment of the trial court will be

Brogan, P.J. and Grady, J., concur.

(Hon. Frederick N. Young sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).

[fn1] Crim.R. 30(A) has recently been amended, effective
July 1, 2005. This most recent version is not at issue.