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Brown v. State

Court of Appeals of Alaska

August 31, 2018

DANIEL LEE BROWN, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Trial Court No. 3PA-14-1076 CR, Third Judicial District, Palmer, Kari C. Kristiansen, Judge.

          Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Patrick Sherry, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, and Allard, Judge.

          OPINION

          MANNHEIMER JUDGE

         Daniel Lee Brown appeals his conviction for criminal nonsupport, AS 11.51.120(a). As defined in this statute, a person commits criminal nonsupport if they are legally responsible for the support of a child and if, without lawful excuse, they knowingly fail to provide support for the child. Under the pertinent portion of the statute, this crime is a felony if the amount of unpaid child support equals $20, 000 or more, or if the person fails to provide child support for 24 consecutive months or more. AS 11.51.120(d).

         Brown was responsible for the support of two children from his former marriage, and he made support payments of $1031 a month for seven years -from July 2003 until July 2010. But in August 2010, Brown stopped paying child support. In fact, according to Department of Labor records, Brown no longer had any reportable wage income after the third quarter of 2010. Brown also stopped applying for his Permanent Fund dividend in 2010 - apparently, because his previous two dividends had been garnished for child support.

         In February 2010 (i.e., about a half-year before Brown stopped paying child support), Brown started a construction business. More than $100, 000 was deposited into the business's bank account between September 2010 and May 2011. However, according to the construction business's records, Brown drew no salary from the business during this time. Instead, acting in his capacity as co-owner of the business, Brown made transfers and cash withdrawals from the business account that were not reported as income to him.

         Brown was indicted on two counts of felony nonsupport, and he went to trial in February 2015. At trial, Brown conceded that he had failed to pay his child support, but he contended that he had a lawful excuse for failing to pay. Brown asserted that he had been making good-faith, reasonable efforts to make money to pay the child support, but that he had been unsuccessful despite his best efforts.

         The jury rejected this defense and found Brown guilty.

         The inadvertent omission in the jury instructions on the elements of criminal nonsupport

         In this appeal, Brown points out that there was a flaw in the two jury instructions that listed the elements of his crime. The pertinent portions of these instructions read:

Daniel Brown ... has been charged ... with the crime of criminal nonsupport. ... The elements of [this crime] are:
1) That between ... January 11, 2012 and ... March 1, 2014, Daniel Lee Brown was a person legally charged with the support of his [minor] children ...

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