Opinion
Case No. 20010020-CA.
Filed May 9, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable J. Dennis Frederick.
Heather Johnson and Lisa J. Remal, Salt Lake City, for Appellant.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges Jackson, Orme, and Thorne.
MEMORANDUM DECISION
The parties agreed at trial to the elements instruction on felony non-support. Houghton states on appeal that instruction five "included [a] correct description of all of the elements of third degree felony Criminal Nonsupport." He raises no objection to four of the six elements as stated in the instruction, but complains about the application of the remaining two elements of the instruction: that nonpayment be "without just cause" and that nonpayment left his child "in needy circumstances," or at least that she would have been in such circumstances but for support provided from a source other than or attributable to Houghton.
As to the "needy circumstances" element, Houghton paid $1,227 in child support between January and June of 1993. He failed to pay any child support thereafter. It cannot reasonably be disputed, where her mother received for her support over a seven-year period only $1,227 from Houghton, that Houghton's daughter would be in needy circumstances but for support from a source other than Houghton.
As to the "without just cause" element, we are governed by State v. Barlow, 851 P.2d 1191 (Utah Ct.App. 1991). There, notwithstanding this author's expressed concerns, this court settled the definition of "without just cause" as used in Utah Code Ann. § 76-7-201(1) (1995).See Barlow, 851 P.2d at 1193. That element may be proved "by showing that a defendant '(1) had the ability to generate income; (2) earned wages during the time period in question; and (3) failed to make the child support payments.'" Id. (quoting Epp v. State, 107 Nev. 510, 814 P.2d 1011, 1013 (1991) (per curiam)).
Houghton testified that from at least mid-1995 he provided valuable work for Earl Harris; "a guy that was putting in an alfalfa crop"; someone "trying to take an abandoned tanning town and turn it into a hunting and fishing lodge"; Willy Roof Cleaning; and Ralph Merricol. Of Merricol, Houghton insisted he did not receive wages, but he conceded he received small, sporadic cash payments.
Houghton's efforts on behalf of Merricol's enterprise were substantial enough that Houghton was able to testify at trial that he, Houghton, "was one of the reasons that it stayed above ground."
The evidence suggests that during the charged period, Houghton enjoyed cigarettes, beer, and the occasional newspaper. He specifically admitted to funding these diversions while working for Merricol from the "few extra dollars" Merricol would pay Houghton from time to time. Houghton's own testimony thus conclusively established the "without just cause" element. He "(1) had the ability to generate income; (2) earned wages" — even if his arrangements were unorthodox — "during the time period in question; and (3) failed to make the child support payments" after 1993. Id.
Because we conclude that the undisputed evidence established all elements of the crime as a matter of law, separate analysis of Houghton's sufficiency of the evidence claim is unnecessary.
With respect to the other jury instructions, "[e]ven if we find an error . . . we will reverse only if the defendant shows a reasonable probability the error affected the outcome of his case." State v. Tinoco, 860 P.2d 988, 990 (Utah Ct.App. 1993) (citations omitted). Because evidence conclusively establishing each element of the crime, as provided in instruction five, either came from Houghton himself or went undisputed by him, we conclude that there is no reasonable probability that any error in instructions seven, ten, and eleven "affected the outcome of his case." Id.
Houghton observes that we have previously held "the general rule is that an accurate instruction upon the basic elements of an offense is essential, [and] failure to provide such an instruction is reversible error that can never be considered harmless." State v. Stringham, 957 P.2d 602, 608 (Utah Ct.App. 1998) (internal quotations and citations omitted). Houghton concedes, however, that instruction 5 was an accurate instruction on the basic elements of the offense.
We do not address Houghton's claim that Utah Code Ann. § 76-7-201(5)(a) (1999) is unconstitutional because he raises it for the first time on appeal and does not demonstrate plain error or exceptional circumstances. See State v. Holgate, 2000 UT 74,¶ 11, 10 P.3d 346.
Affirmed.
WE CONCUR: Norman H. Jackson, Presiding Judge, William A. Thorne Jr., Judge.