Burris v. State

• Decision Date: 20 November 1978
• Docket Number: No. 2-677A239,2-677A239
• Parties: Donald BURRIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 963

382 N.E.2d 963

178 Ind.App. 327

Donald BURRIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-677A239.

Court of Appeals of Indiana, Fourth District.

Nov. 20, 1978.

Kenneth T. Roberts, Wilson, Coleman & Roberts, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Charles D. Rodgers, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Defendant-appellant, Donald Burris, was charged with Failure to Provide for Children Under Eighteen Years of Age, ¹ the information reading in pertinent part as follows:

". . . Donald Paul Burris on or about the 21st day of July, A. D., 1976, at and in the County of Marion in the State of Indiana, was then and there the father and charged by law with the maintenance of Kimberly (12-15-60), Lori (6-8-62), Kristi (12-2-63), his children living in the County of Marion, State of Indiana, all under the age of eighteen (18) years, said children being then and there of the ages herein alleged; that the said Defendant, Donald Paul Burris, then and there was able by personal service, labor and earnings to support said child (sic) and that said Defendant, Donald Paul Burris, did then and there willfully neglect and refuse to provide said child (sic) with the necessary food, clothing, shelter and medical attention . . . ." ²

After a trial to the court, he was found guilty as charged and sentenced to one to seven years imprisonment.

The issue presented in this case is whether the State produced evidence showing that the Defendant was "able by personal service, labor, and earnings" to support his minor children and wilfully neglected to do so. The Defendant moved, at the close of the State's evidence and again after resting without presenting evidence on behalf of the Defendant, for a dismissal based on insufficiency of evidence.

We reverse for the reason that there was insufficient evidence to prove the Defendant guilty as charged.

When a question of the sufficiency of the evidence is presented to this Court, we will consider only that evidence most favorable to the State and all reasonable inferences drawn therefrom. If there is substantial evidence of probative value which would permit a reasonable trier of fact to find the existence of each element of the offense beyond a reasonable doubt the judgment must be affirmed. Schilling v. State (1978), Ind., 376 N.E.2d 1142.

The sole witness for the State at the trial was the Defendant's ex-wife, Sharon Burris (Sharon). The only other evidence consisted of documents showing Defendant to be the father of the children, his obligation to support according to the provision in the divorce decree, and the record of support payments received by the clerk.

The facts and reasonable inferences therefrom most favorable to the State reveal that Defendant and Sharon were married in August 1960, and during their marriage they had three children. They were divorced on November 29, 1967, the decree providing that Defendant pay $100 per month for child support. Between November, 1967 and April, 1970, Defendant paid $1,020 for support. After April, 1970, he made no further payments, and was in arrears at the time of the trial in the amount of $9,980. The Defendant had no formal education or training for a skill. During his marriage to Sharon he disliked working and did not hold continuous employment. His jobs included occasional work at filling stations and, for a period of eighteen months, he was employed at a bank. The Defendant has lived in Arizona since the divorce.

Sharon had no personal knowledge as to whether or not the Defendant had been employed from 1968 through 1976. She also had no knowledge as to whether or not the Defendant suffered from any disease or infirmity during these years. She had no personal knowledge as to whether or not the Defendant was physically able by personal service, labor, or earnings to support the children from November 29, 1967, through the trial date.

Sometime since the divorce from Defendant, Sharon saw Defendant on at least one occasion when he was visiting Indianapolis with his second wife, Donna, with whom Defendant had children. At that time, the Defendant did not appear to be handicapped or disabled in any way. Since that visit, Sharon had no communication with the Defendant. Defendant had married Donna in 1967, shortly after the divorce. He had also later married Judy. At the trial he was accompanied by his fourth wife.

The trial judge, in finding Defendant guilty, stated:

"Now the evidence does show that Mr. Burris, at least made one trip from Arizona out here, which would indicate to me that his health was not one of disabling character, at least at one point in this period. He married twice since then, and perhaps the Court is entitled to infer, that when one marries and take (sic) on the obligation of another family, he feels some ability to earn, Unless he has independent means outside of earning . . . . It seems to me that here is a case of where a man is (sic) not contributed, not one red cent to the support of his children for a period of six years. During that time he was able to travel, he was able to get married twice, get divorced twice. The lawyers I know out in Arizona don't work for nothing; he must have paid some money for his divorces; there was two of them out there; yet, not penny, one, for these children . . . . I can't see it any other way, except that he is guilty, and that will be the finding." (our emphasis).

It is fundamental that the State has the burden of proving beyond a reasonable doubt each essential element of the crime charged, Smith v. State (1969), 252 Ind. 425, 249 N.E.2d 493, and the fact that this is a nonsupport case does not relieve the State of that burden. Willfulness is an essential element of the crime charged here. Pursifull v. State (1973), 157 Ind.App. 560, 301 N.E.2d 226. In addition, the State must prove that the Defendant was "able . . . by personal service, labor, or earnings" to support his children. ³

Proving willfulness in nonsupport cases requires a finding of a deliberate or perverse design, malice, or an intentional or deliberate breach by the parent of his duty to provide for his children. Hudson v. State (1977), Ind.App., 370 N.E.2d 983; Hummel v. State (1920), 73 Ind.App. 12, 126 N.E. 444. The evidence must show more than mere carelessness and neglect. Hudson v. State, supra.

In Francis v. State (1945), 223 Ind. 186, 59 N.E.2d 565, the defendant was charged with "wilfully failing to provide food, clothing, shelter and medical attention" for his children. ⁴ The only issue was whether or not the evidence was sufficient to show that the failure to provide was "wilful". The court held that, "It is not necessary to prove the element of wilfulness by direct or positive evidence. This like any other fact may be proved by circumstantial evidence. Schaffer v. State (1930), 202 Ind. 318, 173 N.E. 229." Id. at 566 of 59 N.E.2d. There was evidence at trial that the defendant had been ill for a matter of years. Two physicians made statements in writing that defendant could not work at hard labor. However, there was also evidence that the defendant would quit a job and then loaf around town and that twice during the year preceding the filing of the charge he had passed a physical examination when applying for work. The court held that there was sufficient evidence from which the trier of fact could infer willfulness.

The State argues that Francis supports the Defendant's conviction since it held that the element of willfulness may be proved by circumstantial evidence. However, in Francis there was evidence that the defendant had jobs which he quit and that he had passed two physical examinations when applying for jobs. In our case, the only evidence of the Defendant having jobs was During his marriage to Sharon, and that evidence is irrelevant to the date charged here. Thus, Francis does not support Defendant's conviction in this case.

The sole question in Hudson v. State, supra, was whether the evidence was sufficient to support the decision of the trial court finding the defendant guilty of wilfully neglecting to provide support to his children in violation of IC 35-14-4-1. Therefore, where Hudson discusses the element of "wilfulness," it is applicable in the case at bar. In affirming the trial court's decision, this Court said the following at p. 984-5 in 370 N.E.2d:

"The evidence in the case at bar shows that Hudson quit working, both in his own business and for hourly hire, by March, 1975. He was not confined to a hospital nor was he in any way physically or mentally incapacitated. However, he did spend about four months in jail following convictions for the offenses of burglary and shoplifting. Several times, after October, 1975, the children's mother told him to get a job and to straighten up so that his children would have some respect for him. Whenever she asked him what he would do about it, the only answer she got from him was 'I don't know.'

Willfulness may be more easily shown under circumstances where the parent refuses to support the child when he clearly has the financial means. Cf., Horlock v. Oglesby (1967), 249 Ind. 251, 231 N.E.2d 810. However, we find sufficient evidence from which reasonable men could find beyond a reasonable doubt that Hudson was deliberately pursuing an irresponsible lifestyle, that he intentionally failed to conscientiously seek employment, and that he wilfully neglected to provide support for his children."

In the case before us there is no evidence in the record which would tend to show that the Defendant was deliberately pursuing an "irresponsible lifestyle", or that he failed to conscientiously seek employment.

Cases in other jurisdictions support our position that the evidence was insufficient in this case. In State v. Nelson (Mo.App.1971), 463 S.W.2d 614 it was charged that the defendant did "unlawfully and wilfully fail, neglect...