DANNY CRAIG v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 5, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 1999-CA-001376-MR
DANNY CRAIG
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 98-CR-00179
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND PAISLEY,1 JUDGES.
JOHNSON, JUDGE:
Danny Craig has appealed from a final judgment
and sentence of the Greenup Circuit Court entered on May 27,
1999, which pursuant to a jury verdict found Craig guilty of
flagrant nonsupport,2 and followed the jury’s recommendation and
sentenced Craig to 23 months’ imprisonment.
Having concluded
that the trial court did not err in denying Craig’s motions for
a directed verdict of acquittal, we affirm.
1
This opinion was prepared and concurred in prior to Judge Paisley’s
retirement effective December 1, 2003.
2
Kentucky Revised Statutes (KRS) 530.050(2).
D felony.
Flagrant nonsupport is a Class
Danny Craig enlisted in the United States Army in
1982, and served four years on active duty.
During the latter
part of 1986, Craig began dating Kathy Thompson and shortly
thereafter, they began living together.
On August 1, 1988, the
couple’s child was born, Danny Ray Craig, II.
During the early
part of 1991, Craig was called up from active reserve status to
serve in Operation Desert Storm in Iraq.
After returning from
Iraq, Craig and Thompson were married.3
The marriage lasted less than one year and a decree of
dissolution of marriage was entered by the Greenup Circuit Court
on December 23, 1992.
As part of the decree, Craig was ordered
to pay Thompson $129.00 per month in child support.
Approximately one year later, on December 14, 1993, the trial
court found that Craig had failed to make any child support
payments between January 1993, and October 1993, and that he
owed $1,290.00 in arrearages.
Craig was ordered to make his
regular child support payments to Thompson of $129.00 per month
and to pay an additional $64.50 per month in arrearages.
According to the trial testimony of Renee Mitchell, an
employee of the Greenup Child Support Office, as of November 20,
1998, Craig had failed to make any child support payments and
his arrearages had grown to $4,677.29.
On December 17, 1998,
Craig was indicted by a Greenup County grand jury on one count
3
The exact date of the marriage is not clear from the record.
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of flagrant nonsupport.
Craig entered a plea of not guilty and
the case proceeded to trial.
A jury trial was held on May 10, 1999.
At the close
of the Commonwealth’s proof and at the close of all proof, Craig
moved the trial court for a directed verdict of acquittal, which
was denied.
The jury found Craig guilty of flagrant nonsupport
and recommended a sentence of 23 months’ imprisonment.
On May
27, 1999, after a pre-sentence investigation had been completed,
the trial court followed the jury’s recommendation and sentenced
Craig to 23 months’ imprisonment.4
This appeal followed.
Craig claims that the trial court erred by denying his
motions for a directed verdict of acquittal.
Specifically,
Craig argues:
KRS 530.050 posits as a[n] essential element
that the [d]efendant must be able to
“reasonably provide” the support he is
charged with not providing. It follows that
in any [f]lagrant [n]on-support case, KRS
530.050(2)5 requires that the Commonwealth
provide evidence that the [d]efendant can
“reasonably provide” support. If the
Commonwealth fails in its burden on that
4
Although Craig filed a timely notice of appeal, the record shows that
pursuant to orders of this Court, Craig was given three extensions of time to
file his brief and to supplement the record on appeal.
5
KRS 530.050(2) provides in part as follows:
A person is guilty of flagrant nonsupport when he
persistently fails to provide support which he can
reasonably 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 . . . .
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issue, the [d]efendant is entitled to [a
directed verdict].
In the case at bar as [Craig] pointed
out in his directed verdict motion, the
Commonwealth plainly failed to provide
sufficient proof on this essential element
of the offense charged.
We disagree with Craig’s assertion that the Commonwealth failed
to offer sufficient evidence to support a finding by the jury
that Craig could have “reasonably provid[ed]” for his son’s
support.
In Commonwealth v. Benham,6 our Supreme Court explained
the test for a trial court to follow when ruling on a motion for
a directed verdict of acquittal:
On motion for directed verdict, the
trial court must draw all fair and
reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence
is sufficient to induce a reasonable juror
to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict
should not be given. For the purpose of
ruling on the motion, the trial court must
assume that the evidence for the
Commonwealth is true, but reserving to the
jury questions as to the credibility and
weight to be given to such testimony.
The Court went on to state the appropriate standard for an
appellate court to follow when reviewing a trial court’s ruling
on a motion for a directed verdict of acquittal:
On appellate review, the test of a
directed verdict is, if under the evidence
6
Ky., 816 S.W.2d 186, 187 (1991).
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as a whole, it would be clearly unreasonable
for a jury to find guilt, only then the
defendant is entitled to a directed verdict
of acquittal.
With these principles in mind, we turn to the evidence presented
in the case sub judice.
Thompson, Craig’s ex-wife, testified that prior to
Craig’s service in Operation Desert Storm, Craig was employed at
his father’s auto body repair shop and that Craig had also
earned income on his own by repairing and reselling wrecked
vehicles.
Thompson stated that Craig had no trouble earning a
living prior to serving in Iraq.
Thompson further testified
that after returning from Iraq, Craig did have trouble earning
income, but she attributed this difficulty to Craig’s heavy
drinking.
Specifically, Thompson stated:
Danny would work when Danny would work,
and if it took a spell where he didn’t, then
he didn’t, and a lot of times was because of
his drinking. But, then, after he would
sober up for awhile, then he would work good
again. But, it just depended on whatever
kind of mood or situation that he was in.
In addition, Craig testified that prior to his service
in Operation Desert Storm, he and Thompson had no problems
supporting themselves with gainful employment.
Craig further
testified that after the divorce, he was fired from several jobs
due to “personality conflicts, drinking from time to time, [and]
missing work[.]”
Craig also stated that he was able to buy
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Christmas and birthday presents for his son by doing yard work
for his mother.
Craig testified that he would be willing to
“pick up pop cans” in order to earn money to meet his child
support obligation.
Craig stated that although he did work for
his father “from time-to-time” after the divorce, he did not use
any of these earnings to pay child support.
Craig testified
that he received $95.00 per month in disability payments from
the military, due to a knee injury that he suffered prior to his
service in Iraq.
Craig stated that $25.00 per month went toward
his rent at a low income housing facility.
Craig also stated
that he received food vouchers from the Veterans Administration
and $100.00 per month in food stamps.
While Craig testified
that he had approximately $70.00 per month in disposable income
from his disability payments, none of this money was ever paid
to Thompson in the form of child support payments.
However,
Craig did use his disposable income to pay for telephone service
and cable television.
Finally, Craig testified that although he
had worked at various places since the divorce, he had never
contributed any of this income toward meeting his child support
obligation.
Having “draw[n] all fair and reasonable inferences
from the evidence in favor of the Commonwealth,” we cannot
conclude that it was “clearly unreasonable” for a jury to find
that Craig could have “reasonably provid[ed]” support for his
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son.
There was substantial evidence introduced at trial which
would support the jury’s finding that Craig was capable of both
earning an income and making his child support payments from the
amounts he received in earnings and government benefits.
While Craig did introduce evidence in support of his
claim that he had valid reasons for not working, including his
alcoholism, post-traumatic stress disorder, and his periodic
seizures, there was also evidence tending to show that Craig was
not totally incapable of earning an income or paying at least
some of his child support obligation.
It was within the
province of the jury to judge the credibility of the witnesses
and to weigh the evidence presented.
Accordingly, the trial
court did not err by denying Craig’s motions for a directed
verdict of acquittal.
Finally, Craig argues that the jury’s finding of guilt
was “against the weight of the evidence.”
Craig claims that in
reviewing the argument that his verdict was “against the weight
of the evidence,” this Court is free to substitute its
evaluation of the credibility of the evidence for that of the
fact-finder.7
However, in Kentucky, credibility and weight of
the evidence issues are matters that are within the exclusive
7
In support of this argument, Craig cites Tibbs v. Florida, 457 U.S. 31, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982), where the United States Supreme Court
noted that some jurisdictions recognize a distinction between reviewing a
claim that a verdict was not supported by sufficient evidence and reviewing a
claim that a verdict was against the weight of the evidence.
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province of the jury.8
Accordingly, we will not reevaluate the
credibility of the evidence presented in the instant case.
Based on the foregoing, the judgment of the Greenup
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, Kentucky
Albert B. Chandler III
Attorney General
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
8
Commonwealth v. Smith, Ky., 5 S.W.3d 126, 129 (1999).
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