Taylor v. State

• Decision Date: 06 December 1985
• Docket Number: No. A-766,A-766
• Citation: 710 P.2d 1019
• Parties: Stephen TAYLOR, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1019

710 P.2d 1019

Stephen TAYLOR, Appellant, v. STATE of Alaska, Appellee.

No. A-766.

Court of Appeals of Alaska.

Dec. 6, 1985.

William T. Ford, Anchorage, for appellant.

Jeffrey W. Cole, Asst. Atty. Gen., Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and SINGLETON and SHORTELL, JJ. ^*

OPINION

BRYNER, Chief Judge.

Stephen Taylor was convicted, following a non-jury trial before District Court Judge William H. Fuld, of ten counts of criminal nonsupport. AS 11.51.120(a). Taylor appeals, challenging the sufficiency of the evidence at trial and arguing that the convictions were obtained in violation of his constitutional rights. Alternatively, Taylor contends that he could not properly be convicted of multiple counts. We affirm Taylor's conviction, but hold that the judgment against him must be modified to reflect conviction of only a single count.

The underlying circumstances are not in dispute. At the time of the offense, Taylor was divorced and had two children, who lived with their mother, Taylor's former wife. Taylor's divorce decree required him to pay a total of $450 per month for the support of his children. From April 1983 to March 1984, Taylor made only one support payment. The state charged Taylor with twelve counts of criminal nonsupport in violation of AS 11.51.120(a), one count for each month of missed payments. Two of the counts were eventually dismissed because the evidence indicated that Taylor's children had lived with Taylor during July and August of 1983. After a non-jury trial, Judge Fuld convicted Taylor of the ten remaining charges and sentenced him to concurrent terms of 180 days, with 140 days suspended.

Before reaching the merits of Taylor's claims, we must consider the statute under which he was convicted and determine its meaning. Alaska Statute 11.51.120 states, in relevant part:

Criminal Nonsupport. (a) A person commits the crime of criminal nonsupport if, being a person legally charged with the support of a child under eighteen years of age, the person fails without lawful excuse to provide support for the child.

(b) As used in this section "support" includes necessary food, care, clothing, shelter, medical attention, and education....

Although there is considerable disagreement between the parties as to the meaning of this statute, we believe the elements of criminal nonsupport can be discerned without undue difficulty. The major controversy between the parties centers on the statutory phrase "without lawful excuse." In context, however, we think that this language simply refers to the accused's financial ability to pay. Our reading of this statutory language does no more than follow sound precedent established by the Alaska Supreme Court in Johansen v. State, 491 P.2d 759, 766-69 (Alaska 1971). In interpreting identical language contained in former AS 11.35.010, the Johansen court concluded that, for purposes of civil contempt proceedings based on failure to make court-ordered child support payments, the existence of a "lawful excuse" should be equated with financial inability to pay. Id.

The appropriateness of relying on the decision in Johansen as a basis for determining, in this case, the meaning of "without lawful excuse" becomes clear from the legislative commentary accompanying the current criminal nonsupport statute. The commentary to AS 11.51.120 states, in relevant part:

The nonsupport statute, a class A misdemeanor, is based on existing AS 11.35.010....

Like the existing statute, the code provision makes liability dependent on the absence of a "lawful excuse." Thus, a defendant may not be convicted under the statute for failure to provide support to his minor child if he is in fact financially unable to provide support and his poverty is non self-induced. See Johansen v. State, 491 P.2d 759 (Alaska 1971). The term "support" is defined in subsection (b) and is derived from existing AS 11.35.010(b).

Commentary on the Alaska Revised Criminal Code, Sen.J.Supp. No. 47 at 64-65, 1978 Sen.J. 1399. ¹

Thus, in keeping with Johansen, we interpret "without lawful excuse" to mean that the state is required to establish, as an element of criminal nonsupport under AS 11.51.120, that the accused had the financial ability to pay support--that is, that the accused either actually had funds available for payment of support or that he could have obtained such funds through reasonable efforts. See Johansen v. State, 491 P.2d at 769. ²

In addition to construing the phrase "without lawful excuse," we must determine the extent to which the word "support" encompasses post-divorce, court-ordered child support payments. The definition of "support" in AS 11.51.120(b) omits specific mention of court-ordered support payments. Again we believe Johansen to be dispositive. In Johansen, the supreme court was faced with essentially the same question under former AS 11.35.010, the forerunner to our current criminal nonsupport statute. The court resolved the question by reading the criminal nonsupport statute broadly, to include non-payment of court-ordered support:

Although AS 11.35.010 does not specifically concern the duty to support minor children after divorce, we find that AS 11.35.010 includes a person's post-divorce obligation to support as well as the obligation which exists during marriage.

Johansen v. State, 491 P.2d at 762 n. 2.

For purposes of applying AS 11.51.120, we believe it appropriate to follow the holding in Johansen. We do not imply that "support," as defined in AS 11.51.120(b), is under all circumstances coextensive with the post-divorce obligation to make court-ordered child support payments. We hold, however, that in criminal nonsupport prosecutions under AS 11.51.120, proof of failure to make court-ordered support payments will, at the very least, suffice to establish a prima facie case of nonsupport.

We must, lastly, ascertain the appropriate level of criminal intent for the offense of criminal nonsupport. Because AS 11.51.120 is not designated as a strict liability offense and does not specify any culpable mental state, it is governed by AS 11.81.610(b):

(b) Except as provided in AS 11.81.600(b) [dealing with strict liability offenses] if a provision of law defining an offense does not prescribe a culpable mental state the culpable mental state that must be proved with respect to

(1) conduct is "knowingly"; and

(2) a circumstance or a result is "recklessly."

See generally Neitzel v. State, 655 P.2d 325, 331-34 (Alaska App.1982). Under AS 11.51.120(a), failure to provide support would be classified as conduct, while financial ability or inability to pay would be classified a surrounding circumstance. Thus, application of AS 11.81.600(b) leads to the conclusion that the offense of criminal nonsupport requires proof of a knowing failure to provide support, accompanied by a reckless disregard for ability to pay.

In summary, then, we construe AS 11.51.120 to require proof of the following elements:

(1) That the accused was legally charged with the support of a child under eighteen years of age;

(2) That the accused failed to provide for the support of the child;

(3) That the accused's failure to provide support was knowing;

(4) That the accused's failure to provide support was without lawful excuse--in other words, that the accused either actually had the financial ability to provide support or that he could have had such actual ability through the exercise of reasonable efforts; and

(5) That the accused was actually aware of his financial ability to provide support or that he acted recklessly in his disregard of it. ³

To this list of elements it is necessary to add only that, as we have already indicated, "support," as defined in AS 11.51.120(b), includes the post-divorce obligation to make court-ordered child support payments.

Having interpreted the criminal nonsupport statute, we may now proceed to evaluate the specific claims advanced on appeal by Taylor. Taylor argues initially that AS 11.51.120(a) in effect shifted to him the burden of proving the lack of a lawful excuse for failure to pay, thereby violating his constitutional rights to due process and against self-incrimination. ⁴ We disagree. The criminal nonsupport statute, as we have construed it, did not require Taylor to prove the absence of a lawful excuse or to incriminate himself. ⁵ Our review of the record convinces us that the trial court neither misinformed nor misled Taylor concerning the meaning of the statute. In fact, District Court Judge Natalie K. Finn, who ruled upon Taylor's pretrial motions, construed AS 11.51.120 in precisely the same manner as we have construed it here. Judge Fuld, who tried Taylor's case, followed Judge Finn's interpretation.

Taylor further contends that the term "without lawful excuse" is impermissibly vague, affording him insufficient notice of the precise conduct the criminal nonsupport statute purports to prohibit and thereby violating his right to due process. ⁶ However, we find that the statute, as construed, affords adequate notice of the conduct it prohibits, so that reasonable people need not guess at its meaning. In any event, Taylor's conduct in this case--failure to pay court-ordered support over a twelve-month period without any apparent effort to seek modification of the court's child support order--would clearly fall within the core of the prohibited conduct, as to which there would be little basis for disagreement. ⁷ Again, Taylor cannot credibly claim to have been misled by the trial court's interpretation or application of the statutory language, since that court's interpretation was in all respects compatible with ours. ⁸ Nor can Taylor credibly claim surprise at our interpretation of "without lawful excuse;" since, as we have held, this interpretation was clearly foreshadowed by the supreme court's decision in Johansen and by the official commentary to the Alaska Revised Criminal...