from the Superior Trial Court No. 3PA-14-1076 CR, Third
Judicial District, Palmer, Kari C. Kristiansen, Judge.
J. Kerry, Girdwood, under contract with the Public Defender
Agency, and Quinlan Steiner, Public Defender, Anchorage, for
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.
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).
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.
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.
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.
jury rejected this defense and found Brown guilty.
inadvertent omission in the jury instructions on the elements
of criminal nonsupport
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 ...