Schoenbachler v. Com.
| Decision Date | 23 January 2003 |
| Docket Number | No. 2000-SC-0109-DG.,2000-SC-0109-DG. |
| Citation | 95 S.W.3d 830 |
| Parties | Michael A. SCHOENBACHLER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
A Bullitt County Circuit Court jury found Appellant guilty of Flagrant Non-support1 and fixed his punishment at the minimum prison sentence of one year. At final sentencing, the trial court imposed judgment in accordance with the jury's verdict. In Appellant's matter-of-right appeal to the Court of Appeals, he took issue with the sufficiency of the Commonwealth's evidence. Although Appellant admitted that he had failed to make child support payments that he knew he had been ordered to pay, and further admitted that his child support arrearage exceeded ($1,000.00) dollars, Appellant argued that the trial court should have granted a directed verdict of acquittal because the Commonwealth failed to introduce sufficient evidence that Appellant reasonably could have provided the ordered support. Appellant had testified before the trial court that he was unable to meet his child support obligation because of a work-related injury he suffered in July 1994, and, as a result, he argued both in the trial court and on appeal that the Commonwealth had failed to satisfy its burden of proving beyond a reasonable doubt that he was capable of meeting his child support obligation.
The Court of Appeals panel affirmed the Bullitt Circuit Court's judgment, but the panel was divided as to the basis for that holding. The majority held that the Commonwealth was not required to introduce evidence regarding Appellant's ability to pay his child support because "the burden of proving inability to pay rests with the defense." In a separate concurring opinion, Judge Buckingham stated that the Commonwealth must prove the defendant's ability to pay as an element of the offense, but concluded that "the evidence supported the jury's determination that the appellant had the ability to reasonably provide support and failed to do so."
Appellant moved this Court for discretionary review, and we granted Appellant's motion to resolve the issue of which party bears the burden of proof as to the defendant's ability (or inability) to pay child support. At oral argument, however, the Commonwealth conceded the legal issue and agreed that KRS 530.050 requires the Commonwealth to prove, beyond a reasonable doubt, that the defendant can reasonably provide the support ordered. As we explain below in Part III(A), we agree with the parties' construction of KRS 530.050. And, we observe that the Commonwealth's concession reduces the disputed issue in the case at bar to whether the evidence at trial was sufficient to support the jury's verdict. In fact, because Appellant did not renew his motion for a directed verdict of acquittal at the close of all of the evidence, he did not properly preserve his allegation of error for our review, and the question we are asked to decide is whether the trial court's failure to grant a directed verdict of acquittal constituted a palpable error under RCr 10.26. Because we find the evidence submitted by the Commonwealth sufficient to support the jury's verdict, and we thus find no error in the trial court's failure to direct a verdict in Appellant's favor, we affirm the decision of the Court of Appeals.
In December 1995, the Bullitt County Grand Jury returned a one (1) count indictment alleging "[t]hat beginning in December of 1990 continuing through and including December 13, 1995, in Bullitt County, Kentucky, [Appellant] committed the offense of Flagrant Nonsupport by failing to provide support for his minor children pursuant to court order and thereby accruing an arrearage in excess of $1,000.00." When the case was called for trial almost two (2) years later in September 1997, Appellant did not dispute the Commonwealth's contention that he was more than $1,000.00 behind in child support payments for his two (2) minor children from a prior marriage, and instead defended against the charge by arguing that he was incapable of making the child Support payments because a work-related injury he suffered in July 1994 prevented him from working.
Appellant's former wife testified during the Commonwealth's case-in-chief as follows: (1) she and Appellant were married from May 7, 1983 to December 21, 1990; (2) during that time, she gave birth to two children of the marriage — a son born in 1983 and a daughter born in 1987 — and she was awarded custody of both children when the marriage was dissolved; (3) while various orders of support were entered over the years, as of September 24, 1994, Appellant's child support obligation was $135.00 per week and the records she kept by hand reflected that Appellant, as of that date, had an arrearage of $270.00; (4) Appellant made sporadic payments totaling $2,273.00 between September 1994 and March 1995; (5) although Appellant's support obligation was reduced by the Jefferson Circuit Court to $47.34 per week in May 1995, Appellant made no payments between March 6, 1995 and the date of the indictment; (6) as a result, between September 24, 1994 and the date of the indictment, Appellant's child support arrearage grew to 83,667.00; (7) during this period of time, in a hearing before a Jefferson Circuit Court Domestic Relations Commissioner, Appellant stated that "he was doing odd and end jobs for people hanging windows, fixing doors and things of that nature and making a little bit of money here and there"; and (8) that the Domestic Relations Commissioner eventually found that, based on Appellant's testimony as to these "odd and end jobs," Appellant "should be capable of earning at least the minimum wage on a regular weekly basis" and calculated Appellant's child support obligation by imputing to him minimum wage income for a forty hour work week.
During its case-in-chief, the Commonwealth also called two (2) witnesses who testified as to Appellant's ability to perform some degree of physical labor despite his injury. Appellant's former employer, Larry Dangerfield, a contractor specializing in hotel remodeling construction projects, testified that after Appellant's "alleged injury," Appellant performed "light duty" work including driving and cleanup ("pushing a broom") duties at his former construction wages until May 1995, when he left a job site in North Carolina for a doctor's appointment, told his employer that he would return in a week, never returned, and failed to pick up his final paycheck. According to Dangerfield, hotel remodeling projects produce ample opportunities for "light work" duties, and he had work available for Appellant during this time period. Additionally, Appellant's fourteen-year-old son testified that he had observed and/or assisted his father in a variety of physical tasks including lawn mowing (in which Appellant managed to wield a weed eater), watering and weeding a small garden, automotive repair, constructing a deck, painting Appellant's trailer, and working on various equipment from air conditioners to lawn mowers.
After the trial court denied his motion for a directed verdict of acquittal, Appellant testified in his own behalf that he suffered a shoulder injury while at work on July 8, 1994 that has left him with a great amount of pain, required repeated visits to doctors and physical therapists, and has prevented him from maintaining employment in the construction industry, his former field of work. While Appellant acknowledged that he had worked for Dangerfield after Appellant's doctor reluctantly agreed to permit him to perform "light duty," Appellant testified that he found himself unable to perform many of the allegedly light duties he was asked to do and that there was not enough cleanup work to occupy his time. According to Appellant, while he was capable of doing some minor "tinkering" around the house and performing extremely brief tasks with his "other" arm, he was unable to do so for any length of time, and frequently required assistance to complete even those small tasks. Appellant thus testified that his injury rendered him incapable of supporting himself financially through physical labor as he had prior to his injury. In fact, Appellant testified that he subsisted on one meal a day (plus coffee) and that he depended upon handouts from his family and community-based organizations to cover his living expenses. Appellant explained that he was currently enrolled in a vocational rehabilitation program in which he was learning how to work with electronics, and that he anticipated that he would be able to make a living after he graduated from that program. Upon cross-examination, Appellant acknowledged: (1) that at the time of the indictment, he was at least $1000.00 behind in his child support payments; (2) that while he had applied for positions at auto parts stores on three or four occasions, he had never applied for employment at a fast food or convenience store; and (3) that when he managed to earn small amounts of money from time to time, he had not made partial child support payments because he had other household or pain medication expenses that took priority ("[T]here is times I had the Forty-Seven Dollars that I had to readjust my priorities in order to save the roof over my head[.]")
In addition to Appellant, the defense introduced the testimony of Appellant's fiancee and Appellant's mother. Both women testified that they had observed the effect of Appellant's injury upon his ability to work and explained that Appellant was unable to perform extended physical tasks.
At the close of evidence, the trial court instructed the jury under the sole count of the indictment:
You will find the Defendant guilty of...
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