DEAN A. SPARKS v. COMMONWEALTH OF KENTUCKY
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RENDERED: February 4, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002446-MR
DEAN A. SPARKS
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NOS. 96-CR-00178 and 98-CR-00118
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal of a conviction for flagrant
nonsupport and being a persistent felony offender in the second
degree.
Because appellant was not entitled to a directed verdict
nor a jury instruction on the lesser included offense of
nonsupport, we affirm.
Appellant, Dean Sparks, and Pam Baker (Baker) are the
parents of a child born on January 29, 1995.
separated two months after the child was born.
Appellant and Baker
On August 29,
1995, appellant was ordered by the Webster District Court to pay
the amount of $328.32 per month child support to Baker.
On September 30, 1996, appellant was indicted by the
Hopkins Circuit Grand Jury for flagrant nonsupport in violation
of KRS 530.050(2).
Appellant failed to appear for arraignment
and was considered a fugitive.
on April 11, 1998.
Appellant was eventually arrested
On June 9, 1998, appellant was indicted by
the Hopkins Circuit Grand Jury for being a second-degree
persistent felony offender (PFO II).
The PFO II charge was based
on appellant's prior conviction for flagrant nonsupport on
April 1, 1996, for which he received a sentence of three years,
probated for a term of five years.
on June 23, 1998.
Appellant was tried by jury
The Commonwealth's witnesses included Baker
and Sandra Messamore (Messamore), an employee of the Child
Support Unit of the county attorney's office.
The Commonwealth
presented evidence that, between November, 1995 and the time he
was indicted in September, 1996, appellant had accumulated an
arrearage in his child support payments of $2672.77, and that he
had not made any child support payments since March, 1996.
Appellant did not testify, and the defense presented no
witnesses.
Appellant was found guilty of both charges, and
sentenced to seven years' imprisonment.
This appeal followed.
Appellant first argues that he was entitled to a
directed verdict of acquittal as the Commonwealth offered no
proof that he was reasonably able to provide support, as required
by KRS 530.050(2), which states in pertinent part:
(2)
A person is guilty of flagrant
nonsupport when he persistently fails to
provide support which he can reasonably
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provide and which he knows he has a duty to
provide by virtue of a court or
administrative order to a minor or to a child
adjudged mentally disabled, indigent spouse
or indigent parent and the failure results
in:
(a)
An arrearage of not less than one
thousand dollars ($1,000); or
(b)
Six (6) consecutive months without
payment of support; or
(c)
The dependent having been placed in
destitute circumstances. . . . [Emphasis
added.]
Appellant argues that the Commonwealth produced no
evidence that he could reasonably provide the support ordered
during the time period that the arrearage accrued.
Upon review
of the record, we adjudge the Commonwealth did produce sufficient
evidence that appellant was employable and able to work during
this time.
Baker testified that during her relationship with
appellant, he held four different jobs, the last one being at the
Executive Inn in Owensboro.
Baker testified that appellant was
employed by the Executive Inn at the time appellant's and her
relationship ended when their child was two months old.
Messamore testified that the four child support payments which
appellant did make between November, 1995 and September, 1996,
were through wage assignments.
These payments, of $50.00,
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$282.50, $325.00, and $281.25, were made on December 13, 1995,
December 13, 1995, January 4, 1996, and March 4, 1996,
respectively.
Neither appellant nor the Commonwealth presented
any evidence that appellant was physically disabled or
financially unable to make his support payments.
Rogers v.
Commonwealth, Ky., 321 S.W.2d 779 (1959).
On appellate review, the test of a directed verdict is,
if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then is the defendant
entitled to a directed verdict of acquittal.
Benham, Ky., 816 S.W.2d 186 (1991).
Commonwealth v.
Based on the aforementioned
evidence of appellant's work history, we conclude that a
reasonable jury could have found appellant could "reasonably
provide" the support he was ordered to pay.
Further, the
evidence clearly showed both that appellant was over $1,000 in
arrears and had not made any payments for six consecutive months.
Accordingly, the trial court did not err in denying appellant's
motion for a directed verdict.
Appellant's second argument is that the trial court
erred in overruling his motion for a jury instruction on the
lesser included offense of nonsupport.
Nonsupport is defined in
KRS 530.050(1), which states:
(1) A person is guilty of nonsupport:
(a)
When he persistently fails to provide
support which he can reasonably provide and
which he knows he has a duty to provide to a
minor or to a child adjudged mentally
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disabled, indigent spouse or indigent parent;
or
(b)
Upon a finding that a defendant
obligor, subject to court order to pay any
amount for the support of a minor child, is
delinquent in meeting the full obligation
established by such order and has been so
delinquent for a period of at least two (2)
months duration.
Appellant argues that the Commonwealth's child support
record-keeping system was "flawed" and therefore no specific
finding could be made as to his exact amount of arrearage or
which monthly payments he specifically missed and why.
Appellant
bases this argument on the testimony of Messamore that "some
errors creep into the [Commonwealth's] computer system".
Appellant argues that, because the Commonwealth's record-keeping
system is "flawed", the jury may have doubted that he had
accumulated either the total arrearage or missed monthly payments
necessary for a flagrant nonsupport conviction, and that the
unexplained halt in wage assignments might have caused the jury
to infer he had an inability to pay.
Thus, he argues the jury
may have doubted that he was guilty of flagrant nonsupport while
concluding he was guilty of simple nonsupport.
A defendant is entitled to a lesser included offense
instruction "if and only if on the given evidence a reasonable
juror could entertain reasonable doubt of the defendant's guilt
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on the greater charge, but believe beyond a reasonable doubt that
the defendant is guilty of the lesser offense."
Commonwealth, Ky., 864 S.W.2d 290, 298 (1993).
Skinner v.
See also Webb v.
Commonwealth, Ky., 904 S.W.2d 226, 229 (1995); Bills v.
Commonwealth, Ky., 851 S.W.2d 466, 469 (1993).
The evidence in
this case did not merit the giving of an instruction on
nonsupport.
The Commonwealth's records clearly showed that at
the time of indictment in September 1996, appellant had not made
any child support payments since March, 1996 and had accrued an
arrearage of $2,672.77 since November, 1995.
Baker testified
that she had not received any child support payments from
appellant since March, 1996, nor had she received any other
monetary or other support for the child of any kind from
appellant.
Although appellant argues that the Commonwealth's
record keeping system is flawed, he offered no evidence that the
Commonwealth made any errors in his case, nor any evidence that
he had made any payments not accounted for.
The evidence at trial clearly showed that appellant had
accumulated an arrearage of greater than $1000 and six
consecutive months without payment.
Only one of these facts is
required for a conviction of flagrant nonsupport pursuant to KRS
530.050(2).
Further, had the jury believed that appellant could
not "reasonably provide" the support required, as appellant
argues, he would been acquitted of flagrant nonsupport, as well
as the lesser offense of nonsupport, as such a finding is
required for both crimes.
KRS 530.050(1)(a) and (2).
Therefore,
we do not believe that a reasonable juror could have acquitted
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appellant of flagrant nonsupport, and still have found him guilty
of nonsupport.
Skinner, 864 S.W.2d at 298.
Accordingly, the
trial court did not err in overruling appellant's motion for an
instruction on the lesser included offense of nonsupport.
For the aforementioned reasons, the judgment of the
Hopkins Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, Kentucky
A. B. Chandler, III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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