Shuttleworth v. State, 4-1282A373

Citation469 N.E.2d 1210
Decision Date31 October 1984
Docket NumberNo. 4-1282A373,4-1282A373
PartiesDon Lee SHUTTLEWORTH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtCourt of Appeals of Indiana

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

Barbara Shuttleworth swore to an information charging her ex-husband, Don Lee Shuttleworth, with the criminal nonsupport of his dependent children (IND.CODE 35-46-1-5(a), class D felony). A jury found him guilty as charged, and the trial court sentenced him to the custody of the department

of corrections for a term of three years. Shuttleworth raised several issues, attacking the verdict on various grounds (error in admission of evidence, improper sentencing procedure, location of witnesses, insufficiency of the evidence) and fundamental error with respect to an alleged improper conflict of interest in the prosecution herein. We find no reversible error and affirm Shuttleworth's conviction.

ISSUES

1. Was it error to admit into evidence court records of support payments which Shuttleworth alleges were incomplete?

2. Was Shuttleworth afforded a fair and complete trial because he was unable to locate certain witnesses?

3. Was the jury's verdict contrary to law as being supported by insufficient evidence?

4. Did the trial court err by using an incomplete presentencing report to assess Shuttleworth's sentence?

5. Was it fundamental error for an attorney to act as prosecutor of Shuttleworth's case when he had represented Mrs. Shuttleworth in the divorce proceeding five and a half years earlier?

FACTS

The evidence most favorable to the verdict reveals Mrs. Shuttleworth was divorced from Shuttleworth in April, 1975, with the court decreeing he pay $60 per week support to the couple's four dependent children. Shuttleworth did not appear for the final hearing (although he had been involved in the proceedings) but does not deny he was aware of the terms of the child support provisions in the decree. In November of that same year, Mrs. Shuttleworth brought contempt proceedings against Shuttleworth for failure to pay support. Payment of an agreed $250 cured the contempt. In June, 1976, Shuttleworth was again cited for contempt for which he paid $200 in August. A third contempt proceeding was initiated in June, 1980, but evidently no further court action was taken until Mrs. Shuttleworth swore to an information, alleging criminal nonsupport, in January, 1981. At no time was the support order ever changed, nor did Shuttleworth seek the same.

At trial, the State presented evidence that Shuttleworth was in arrears for more than $12,000. Mrs. Shuttleworth testified that her husband only paid for a few groceries in addition to the court's record and the contempt payments. Mrs. Shuttleworth further testified that her husband had never really held down a steady job but was dextrous with his hands and was a good carpenter and mechanic.

There is no dispute that Shuttleworth's recent employments were confined to tree-trimming, helter-skelter carpentry, and an odd job here and there. As a result, his annual income after the divorce was rarely more than $4000 and was generally less. Shuttleworth contends he suffered a nervous breakdown prior to his divorce (a fact his wife denied) and that his subsequent and untreated condition prevents him from holding a regular job. However, he also testified that since 1975, he probably applied for no more than a dozen jobs, of which he followed up on only two or three, and that, in fact, he never actively pursued tree-trimming assignments but waited to be sought out. After the jury heard these presentations, they found Shuttleworth guilty of nonsupport of a dependent.

At the time of the divorce, Mrs. Shuttleworth was represented by one John Branham. The record in this cause does not reveal whether attorney Branham represented her during the 1975, 1976, and 1980 contempt proceedings, but it does positively show that as of February, 1981, he was the county prosecutor, actively pursued the State's case against Shuttleworth and actually tried the case. At no time during trial did Shuttleworth register any objection to attorney Branham's role in the case, but here on appeal, he asserts prosecutorial conflict of interest as error, in addition to errors at trial and sentencing.

DECISION
Admission of Evidence

At trial, the State offered into evidence an exhibit as a certified copy of the support docket from the Shuttleworth divorce. Counsel stated he had no objection to the evidence, and the court duly admitted it. At the hearing on Shuttleworth's motion to correct error, counsel contended the State had failed to present the portion of the docket showing Shuttleworth's 1975 support payments and argues on appeal that it was prosecutorial misconduct to omit that page of the docket. We fail to find error here.

Nowhere has Shuttleworth provided us with any indication whatsoever that any such docket information exists. The record shows that a 1976 docket was entered at trial, Shuttleworth's counsel confessed at the hearing that he could not find the particular page at issue: "I really have no evidence to show, but I had and have a strong feeling that there is a 1975 support docket." Record, p. 174. Under these circumstances, we cannot find error in the admission of evidence simply because Shuttleworth thinks it was incomplete. In the absence of objection and of a clearer specification of error, the issue is waived. See Riley v. State, (1981) Ind., 427 N.E.2d 1074. 1

Witnesses

In his motion to correct error, Shuttleworth complains he was not afforded a fair and complete trial because he had been unable to locate two witnesses for his defense, Scott Jarvis and Reverend Stan Hill. Shuttleworth was not able to locate either witness for trial but never requested a continuance thereof. At the hearing on the motion to correct error, defense counsel still had not been able to locate the two men. We see no action by the trial court upon which to predicate any claim of error when the matter was never brought to its attention at any of the trial proceedings. Shuttleworth's contentions to the contrary must fail. See, e.g., Engle v. State, (1984) Ind., 467 N.E.2d 712 (grounds for continuance to compel attendance of out-of-state witness not presented to trial judge).

Verdict

Shuttleworth next argues the jury's verdict was contrary to law as unsupported by sufficient evidence. In reviewing such claim, we can only consider the evidence favorable to the verdict and all reasonable inferences drawn therefrom. We cannot supplant the jury's assessment of witnesses' credibility nor its weighing of the evidence. If there is substantial evidence of probative value supporting the jury's verdict, we cannot but find its decision in accordance with the law. Collins v. State, (1977) 266 Ind. 430, 364 N.E.2d 750. We so find here.

In challenging the sufficiency of the evidence, Shuttleworth sets forth arguments which he believes should relieve him of conviction. He contends there was a computational error in the amount of arrearages. Notably, he does not argue there was no arrearage at all. He also argues that only one dependent child resided with Mrs. Shuttleworth at the time charges were brought, and therefore, the jury's verdict based on a charging information including all four children was error. His major defensive argument is that his recurring mental illness prevented him from working. Shuttleworth's arguments are to no avail.

When the information for criminal nonsupport was actually filed in February, 1981, the relevant criminal statute was IND.CODE 35-46-1-5:

"(a) A person who knowingly or intentionally fails to provide support to his dependent child commits nonsupport of a child, a Class D felony.

* * *

* * * "(d) It is a defense that the accused person was unable to provide support."

This section became effective in July 1, 1978. 1978 Ind.Acts, P.L. 144 Sec. 9. Because of the continuing nature of the offense of nonsupport, Shuttleworth was in violation of the statute from that time until the date of prosecution. We are aware that the information recites the offense was "committed" December 15, 1980. A realistic interpretation of the offense leads us to conclude that any efforts by Shuttleworth to limit the ramifications of the crime to that day are unavailing (such as arguing only one dependent was residing with Mrs. Shuttleworth on that day). Thus, we must determine whether, since July 1, 1978, Shuttleworth (1) knowingly or intentionally (2) failed to support (3) any of his dependent children.

There is no doubt that the evidence before the jury clearly shows nothing but very minimal payments for groceries, if that, from July, 1978, through December, 1980, for the support of his children. (To remind Shuttleworth of our standard of review, the jury was not compelled to believe his testimony of other payments or provision of supplies in kind.) Testimony also revealed that three of his children resided with Mrs. Shuttleworth in 1978 and were dependent, under the age of eighteen and presumably unemancipated. See IND.CODE 35-46-1-1 (amended 1984 Ind.Acts, P.L. 185 Sec. 2). 2 By the time the instant charges were brought, at least one dependent child remained. It is quite apparent that Shuttleworth was responsible for a minimum of one dependent child at some period of the charged offense. Our question then is whether the jury could have found Shuttleworth's behavior was knowing or intentional.

Shuttleworth argues that the jury was required to find his failure to support was willful. He premises this argument on our opinion in Burris v. State, (1978) 178 Ind.App. 327, 382 N.E.2d 963. However, that case was an appeal from a prosecution under IND.CODE 35-14-5-2 (1976) which has since...

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