A Matter of Form Over Substance

In State v. Knaras, 2016 UT App. 143, Defendant appealed his conviction for one count of criminal non-support. In support of his appeal, defendant claims the trial court made multiple errors in the jury instructions.

Defendant was charged with one count of F3 criminal non-support. It was alleged Defendant failed to pay up to $19,181.82, from the months of May 2010 and May 2012. The mother of the three children testified at trial to the lack of payment, her efforts to provide for the children, and how Defendant never sought to modify the divorce decree. Defendant presented an affirmative defense that he lacked an ability to pay. Defendant's mother testified at trial that Defendant lived with her and did not make enough money to pay rent or have transportation. Defendant was convicted, but only of a Class A Misdemeanor because the State failed to prove he failed to pay support in each of 18 individual months in a 24 month period.

Appellate challenges to jury instructions are reviewed for correctness. Individual instructions are viewed in context of the entire instructions given to the jury. As a whil;e the instructions must fairly instruct the jury as to the law. One inaccurate instruction does not amount to reversible error. Only harmful and prejudicial errors entile a defendant to a new trial. Harmful error occurs when there is a reasonable probability the error affected the outcome of the trial.

Defendant first challenged the jury instructions on the basis that they inadequately described the burden of proof concerning his affirmative defense. In the present case, the State had to disprove Defendant had an inability to pay child support. However, the jury instructions stated that once the affirmative defense was raised, the State had to prove the defendant had an ability to pay child support. Phasing the element in the positive rather than the negative did not constitute an error. In addition, the jury was instructed that the State had to prove this element beyond a reasonable doubt and that it never shifted to the Defendant.

Defendant next challenged the jury instruction that a partial failure to pay support was criminal as that language is not in the statute. The statute criminalizes non support when failure to pay would place the children in needy circumstances. The jury was instructed that partial failure to pay would not be adequate to provide for the children under the circumstances. In looking at common definitions and the plain language of the statute, nothing allows a person to pay partial support if the support furnished is not adequate. Defendant's assertion that jury instruction allows for only complete non-support goes against the purpose of the statute. The legislature intend to compel parents to provide for their children. It would defeat the purpose to allow a parent to escape liability by by allowing the parent to provide only nominal support.

Finally, Defendant challenged the jury instructions as to the non stautory reasons the affirmative defense would not apply. Defendant claims the instructions were too vague and ill defined to properly instruct the jury. Specifically, Defendant challenges that the statute allows the jury to consider the defendant's "lack of diligence in obtaining employment" and the jury instructions used the term "voluntarily under or unemployed." The Court of Appeals found this language to be synonymous. On addition, the jury was also instructed that Defendant's failure to provide support was excused if defendant was unable to provide by no fault of his own.

Taken as a whole, the instructions were a fair statement of the law.  Defendant's conviction was affirmed.