State v. Knaras ( 2016 )

2016 UT App 143THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JEFFERY LYNN KNARAS,
Appellant.
Opinion
No. 20140998-CA
Filed July 8, 2016
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 131902898
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
SENIOR JUDGE JUDITH M. BILLINGS authored this Opinion, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.1
BILLINGS, Senior Judge:
¶1 Jeffery Lynn Knaras appeals his conviction for one count
of criminal nonsupport, a class-A misdemeanor. Knaras
contends that the jury instructions related to his affirmative
defense were erroneous. We affirm.
1. Senior Judge Judith M. Billings sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Knaras
BACKGROUND
¶2 The State charged Knaras with third-degree felony
criminal nonsupport. It alleged that Knaras had failed to pay
court-ordered child support for his three minor children
between May 2010 and May 2012.
¶3 At trial, the State offered evidence that over the course of
two years, Knaras fell short on his child support obligations by
$19,181.02. The children’s mother testified that she had custody
of the three minor children during the relevant time period and
that Knaras did not pay the child support he owed under the
couple’s divorce decree. In the absence of this support, the
mother explained that she had relied on other sources to supply
the children’s needs. The mother further testified that Knaras
never sought to modify the divorce decree.
¶4 Knaras did not dispute that he owed child support.
Instead, he raised the affirmative defense that he lacked the
ability to meet his child support obligations. In support of this
theory, he presented his mother’s testimony that he lived with
her and that he did not make enough money to pay rent or for
his transportation. Knaras contended that he had trouble finding
jobs in his line of work during the economic downturn. He also
argued that he did provide for the children when he had parent-
time every other weekend.
¶5 The jury found Knaras guilty. However, the jury
determined that the State failed to prove that Knaras had
‚committed the crime of Criminal Nonsupport in each of 18
individual months within any 24-month period.‛ As a
consequence of this finding, Knaras was convicted of a class-A
misdemeanor instead of a third-degree felony.2 Knaras appeals.
2. Under the statute, criminal nonsupport is a third-degree
felony if the crime is committed in each of eighteen individual
(continued…)
20140998-CA 2 2016 UT App 143State v. Knaras
ISSUES AND STANDARD OF REVIEW
¶6 Knaras raises three challenges to the jury instructions
given at his trial. We review challenges to jury instructions for
correctness. State v. Kennedy, 2015 UT App 152, ¶ 17, 354 P.3d
775.
ANALYSIS
¶7 On appeal, Knaras asserts three errors in the jury
instructions. First, he contends that the instructions did not
accurately convey the State’s burden of proof as to his
affirmative defense. Second, he asserts that the instructions
erroneously told the jury that his affirmative defense could not
apply ‚even if he partially paid child support.‛ Third, he argues
that the instructions ‚added four non-statutory reasons for
rejecting *his+ affirmative defense.‛
¶8 When we analyze a purported error in jury instructions,
‚we must view it within the context of the jury instructions as a
whole.‛ Id. ¶ 24. ‚If the jury instructions taken as a whole fairly
instruct the jury on the law applicable to the case, the fact that
one of the instructions, standing alone, is not as accurate as it
might have been does not amount to reversible error.‛ Id.
(citation and internal quotation marks omitted). Furthermore,
‚‘[o]nly harmful and prejudicial errors constitute grounds for
granting a new trial.’‛ State v. Karr, 2015 UT App 287, ¶ 15, 364
P.3d 49 (alteration in original) (quoting State v. Young, 853 P.2d
327, 347 (Utah 1993)). ‚For an error to be harmful, there must be
a reasonable probability the error affected the outcome of the
(…continued)
months within a twenty-four month period or if the total
arrearage is in excess of $10,000. Utah Code Ann. § 76-7-201(3)(c)
(LexisNexis 2012). In this case, the special verdict form did not
ask the jury if Knaras’s total arrearage exceeded $10,000.
20140998-CA 3 2016 UT App 143State v. Knaras
case.‛ State v. Shepherd, 1999 UT App 305, ¶ 23, 989 P.2d 503(citation and internal quotation marks omitted).
I. Instructions Stating the Burden of Proof
¶9 Knaras contends that the jury instructions should have
specifically stated that ‚the State must disprove his affirmative
defense beyond a reasonable doubt.‛ He also claims that the
instructions should have told the jury that he had ‚no burden
with respect to his affirmative defense‛ and that he ‚was entitled
to be acquitted if there was any basis in the evidence sufficient to
create a reasonable doubt.‛3
¶10 When a criminal defendant raises an affirmative defense,
the State bears ‚the burden . . . to disprove the defense beyond a
reasonable doubt.‛ State v. Lee, 2014 UT App 4, ¶ 27, 318 P.3d
1164; accord State v. Drej, 2010 UT 35, ¶¶ 15–16, 233 P.3d 476. Jury
3. The State contends that Knaras’s challenge to the jury
instructions in this regard was not preserved for appeal. Knaras
argues that he did preserve this challenge but argues that the
exceptions to the preservation rule for plain error and for
ineffective assistance of counsel apply in the event we disagree.
Because we conclude that the trial court committed no error in
instructing the jury on Knaras’s affirmative defense, see infra
¶¶ 11–13, we need not decide whether the issue was preserved,
because we would reach the same result regardless of whether
we address the issue on the merits, on plain error grounds, or on
ineffective assistance grounds. ‚*B+ecause there was no error,
plain or otherwise,‛ Knaras is not entitled to plain error review.
See State v. Gailey, 2015 UT App 249, ¶ 7, 360 P.3d 805, petition for
cert. filed, June 6, 2016 (U.S. No. 15-1481). Moreover, Knaras
cannot show that his counsel performed deficiently by
approving the jury instructions. See State v. Lee, 2014 UT App 4,
¶ 22, 318 P.3d 1164 (‚Failure to object to jury instructions that
correctly state the law is not deficient performance.‛ (citing State
v. Chavez-Espinoza, 2008 UT App 191, ¶ 15, 186 P.3d 1023)).
20140998-CA 4 2016 UT App 143State v. Knaras
instructions with regard to affirmative defenses ‚must clearly
communicate to the jury what the burden of proof is and who
carries the burden.‛ Lee, 2014 UT App 4, ¶ 27 (citation and
internal quotation marks omitted).
¶11 Here, Knaras raised the affirmative defense that he was
unable to provide support. See Utah Code Ann. § 76-7-201(5)(a)
(LexisNexis 2012) (‚In a prosecution for criminal nonsupport
. . . , it is an affirmative defense that the accused is unable to
provide support.‛). On appeal, Knaras asserts that the
instructions should have stated that ‚the State must disprove his
affirmative defense beyond a reasonable doubt.‛ Knaras thus
believes that the instructions should have included language
casting the State’s burden in negative terms, i.e., that the State
had the burden to disprove an inability to pay. However, we
conclude that this concept was adequately conveyed to the jury
by the instructions given. Specifically, Instruction 16 informed
the jury that ‚*i+n presenting an affirmative defense, the burden
of persuasion does not shift to the Defendant. The State’s burden
is to prove all the elements of the crime charged beyond a
reasonable doubt, whether the defense is a denial or an
affirmative defense.‛ And Instruction 12, which set forth the
elements of the offense, instructed the jury that it could convict
Knaras only if it found beyond a reasonable doubt that he ‚was
able to provide support.‛ Taken together, the instructions
phrased the State’s burden of proof in positive terms: the State
had the burden to prove beyond a reasonable doubt that Knaras
had an ability to pay. Because the instructions accurately set forth
the State’s burden of proof, albeit in positive rather than
negative terms, we conclude that the jury instructions were not
erroneous in this regard.
¶12 Moreover, the instructions adequately conveyed the same
concepts that Knaras contends should have been phrased
differently. Knaras believes the instructions should have been
written in terms of how he had ‚no burden with respect to his
affirmative defense.‛ Instruction 11, however, explained that
‚*t+he burden is always upon the prosecution to prove guilt
20140998-CA 5 2016 UT App 143State v. Knaras
beyond a reasonable doubt‛ and that the ‚burden never shifts to
a Defendant.‛ Similarly, Instruction 16 stated that ‚the burden of
persuasion does not shift to the Defendant‛ when ‚presenting an
affirmative defense.‛ Through this language, the jury was
effectively instructed that Knaras had no burden with respect to
his affirmative defense.
¶13 Knaras also argues that the instructions should have said
that he ‚was entitled to be acquitted if there was any basis in the
evidence sufficient to create a reasonable doubt.‛ Although not
stated in this exact way, the instructions given explained the
meaning of the reasonable doubt standard and told the jury that
a reasonable doubt ‚must arise from the evidence or the lack of
evidence in the case.‛ The jury was further instructed that it
should ‚carefully consider all the evidence‛ and that ‚if *the jury
was] not convinced that one or more of the[] elements [had] been
proven beyond a reasonable doubt, then [it] must find the
defendant NOT GUILTY.‛ These instructions adequately
conveyed that Knaras should be acquitted if the evidence left a
reasonable doubt in the minds of the jurors. In short, Knaras has
not shown that the jury instructions were erroneous.
II. Partial Failure to Provide Support
¶14 Knaras next challenges Instruction 14 as erroneously
instructing ‚the jury that Mr. Knaras could not be excused even
if he partially paid child support‛ and argues that ‚nothing in
the statute contains that additional requirement.‛ He claims that
Instruction 14 allowed the jury to convict ‚under the much lesser
burden that his support was ‘inadequate’ rather than‛ that ‚his
lack of support rendered his children needy.‛
¶15 The Utah Code states that a person commits criminal
nonsupport if ‚he knowingly fails to provide for the support of
. . . [his minor] children when any one of them . . . is in needy
circumstances . . . [or] would be in needy circumstances but for
support received from a source other than the defendant or paid
on the defendant’s behalf.‛ Utah Code Ann. § 76-7-201(1)
20140998-CA 6 2016 UT App 143State v. Knaras
(LexisNexis 2012). The elements instruction given to the jury
mirrored this statutory language. The challenged instruction,
Instruction 14, goes beyond the statutory language and reads,
‚You are instructed that the offense of Criminal Non-Support is
committed not only where there is a complete failure to support
the child, but also where there is a partial failure to provide for
the children, so long as the support furnished is not adequate
under the circumstances.‛ (Emphasis added.) See 23 Am. Jur. 2d
Desertion & Nonsupport § 31 (2013) (‚The offense of nonsupport is
committed not only where there is a complete failure to support
the child but also where there is partial failure to provide for the
child as long as the support furnished is not adequate under the
circumstances.‛). The rest of this instruction reads,
The fact that a person other than the defendant
does actually furnish food, shelter and clothing, or
money with which to buy the necessaries of life
does not prevent the children from being in needy
circumstances so far as the defendant is concerned,
and it is no defense to the defendant if he is
otherwise guilty as charged.
¶16 We conclude that Instruction 14 fairly instructed the jury
on the applicable law because it is consistent with both the
language and purpose of the criminal nonsupport statute. When
‚interpreting a statute, we look to its plain language,‛ State v.
Jeffs, 2010 UT 49, ¶ 31, 243 P.3d 1250, and we presume omissions
in statutory language to be purposeful, Marion Energy, Inc. v. KFJ
Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863.
¶17 The criminal nonsupport statute makes clear that a parent
of minor children may be convicted if the parent ‚knowingly
fail[s] to provide for the support of‛ his children when
the children are ‚in needy circumstances or would be in
needy circumstances but for the support received from
other sources.‛ State v. Johnson, 2002 UT App 431, ¶ 8, 79 P.3d
419 (citing Utah Code Ann. § 76-7-201(1) (1999)). ‚Support‛ is
defined as ‚*s+ustenance or maintenance,‛ especially ‚articles
20140998-CA 7 2016 UT App 143State v. Knaras
such as food and clothing that allow one to live in the degree of
comfort to which one is accustomed.‛ Support,
Black’s Law Dictionary (9th ed. 2009). ‚Needy‛ means ‚being in
want‛ and ‚not having enough money, food, etc., to live
properly.‛ Needy, Merriam-Webster.com, http://www.merriam-
webster.com/dictionary/needy [https://perma.cc/USJ4-A746].
Thus, ‚needy circumstances‛ can be properly understood as
circumstances in which the children are ‚not supplied with the
common necessaries of life.‛ State v. Bess, 137 P. 829, 832 (Utah
1913). With these definitions in mind, we read the statute as
criminalizing a parent’s knowing failure to provide the
maintenance adequate to keep his minor children from being in
want or from lacking in the common necessities of life. See id.(indicating that a person was guilty of criminal nonsupport if he
left dependents in such circumstances that they ‚would lack the
necessaries of life‛). We see nothing in the statute that would
permit a parent to provide only partially for his children when
the parent has the ability to provide and when the level of
support furnished is not adequate under the circumstances.
¶18 Knaras’s argument essentially asks us to insert the term
‚complete‛ into the statute so that a person could commit
criminal nonsupport only if he completely fails to provide for the
support of his minor children. But the statute does not include
the term ‚complete,‛ and we presume this omission was
purposeful. See Marion Energy, 2011 UT 50, ¶ 14. It follows that a
criminal lack of support may be due to either a complete failure
or a partial failure to provide.4 See State v. Nelson, 2005 UT App
526U, paras. 5–6 (affirming a defendant’s conviction for criminal
nonsupport where he had made some child support payments,
and rejecting the defendant’s argument that he supported his
children by providing for their needs during his parent-time).
4. Aside from Knaras’s contention that he provided for the
children during their visits, the only evidence of partial support
was that Knaras’s wages were garnished during three months in
2012.
20140998-CA 8 2016 UT App 143State v. Knaras
Our reading is bolstered by the fact that the criminal nonsupport
statute appears to place emphasis on whether there has been a
failure of support that causes or would cause the children to be
in needy circumstances had others not stepped in rather than on
the degree of support actually provided. See Utah Code Ann.
§ 76-7-201(1).
¶19 Furthermore, Knaras’s position is contrary to the purpose
of the criminal nonsupport statute. As the Utah Supreme Court
has recognized, ‚*t+he object of the statute is to compel a parent
to provide for the support and maintenance of his or her
dependent minor children.‛ Bess, 137 P. at 831. To allow a parent
to escape criminal liability by providing nominal support would
defeat this purpose. Indeed, the trial court here acknowledged as
much, explaining, ‚*Y+ou have an obligation to support the
child, period. And just giving them something, just tossing them
a token isn’t enough. You have to support them.‛
¶20 Knaras also complains that Instruction 14’s use of the
phrase ‚not adequate under the circumstances‛ would lead the
jury to convict ‚under the much lesser burden that his support
was ‘inadequate’ rather than‛ that ‚his lack of support rendered
his children needy.‛ However, when read in light of the
elements instruction, we believe that Instruction 14’s use of the
phrase conveyed the idea that in order to convict Knaras, the
support must be inadequate to keep the children from being
needy under the circumstances. For these reasons, we see no
error in the trial court’s decision to give Instruction 14.
III. Non-statutory Reasons That the Affirmative Defense Would
Not Apply
¶21 Finally, Knaras contends that the trial court erroneously
instructed the jury when it gave Instruction 16, which explains
that Knaras’s affirmative defense would not apply in several
circumstances that were not identified by the Utah Code. Knaras
further asserts that the ‚non-statutory reasons‛ were ‚too
vague‛ and that ‚without proper definitions, the jury could not
20140998-CA 9 2016 UT App 143State v. Knaras
discharge its duty to determine whether Mr. Knaras’s defense
was reasonable.‛ The State responds that the challenged
language in this instruction ‚was either correct or superfluous.‛
According to the State, ‚the only real dispute at trial was . . .
whether Knaras was voluntarily underemployed or
unemployed.‛
¶22 In recognizing that the inability to provide support is an
affirmative defense, the Utah Code clarifies that ‚*v+oluntary
unemployment or underemployment by the defendant does not
give rise to *the+ defense.‛ Utah Code Ann. § 76-7-201(5)(a)
(LexisNexis 2012). Indeed, one of the instructions in this case
includes this statutory language verbatim. The challenged
instruction elaborates on when this affirmative defense could
apply. Instruction 16 states, in relevant part,
A parent is excused for his or her omission to
provide support for his minor children where
through no fault or indolence on his part he is
unable to provide for such children; for example,
where sickness, physical impairment, or inability
to find work results in insufficient income to
provide any support and the parent has no other
income or assets from which the support may be
paid. However, it is not a lawful excuse if the
defendant is unable to provide support due to personal
extravagance, improvident habits, lack of reasonable
diligence in obtaining employment, or by an
unreasonable concern for creditors to the detriment of
his or her obligations to such children.
(Emphasis added.)
¶23 The only one of the ‚non-statutory reasons‛ in dispute at
trial was whether Knaras exhibited a ‚lack of reasonable
diligence in obtaining employment.‛ Knaras addresses this
particular non-statutory reason as though it is entirely
unconnected to the criminal nonsupport statute’s provision that
20140998-CA 10 2016 UT App 143State v. Knaras
the affirmative defense could not apply if the defendant is
voluntarily unemployed or underemployed. However,
considering whether the defendant has been reasonably diligent
in pursuing employment is consistent with Instruction 15, which
quoted the criminal nonsupport statute’s provision that
‚*v+oluntary unemployment or underemployment by the
defendant does not give rise to [the affirmative] defense [of
inability to provide support+.‛ Id. The statute’s use of the word
‚voluntary‛ suggests that a defendant’s employment status
resulted ‚from one’s own choice or consent.‛ Voluntary,
Merriam-Webster.com, http://www.merriam-webster.com/‌
dictionary/voluntary [https://perma.cc/D7H9-XTWV]. Thus,
such voluntary unemployment or underemployment under the
statute could be demonstrated by, for example, a defendant’s
choice to exercise a ‚lack of reasonable diligence in obtaining
employment.‛ As the trial court observed, this reading is ‚just
. . . common sense.‛ Because the ‚lack of reasonable diligence‛
language in Instruction 16 is essentially a rephrasing of
voluntary underemployment as used in the statute, we conclude
that the trial court did not err in including this language in this
instruction.
¶24 We also conclude that the inclusion of the three other
non-statutory reasons did not prejudice Knaras, as the other
non-statutory reasons—that he was unable to provide support
due to ‚personal extravagance, improvident habits, . . . or by an
unreasonable concern for creditors to the detriment of his . . .
obligations‛ to his children—were not at issue during trial.
Further, we do not see how more specific definitions of these
non-statutory reasons would have altered the outcome in this
case.
¶25 In any event, the inclusion of the other three non-
statutory reasons is not necessarily inconsistent with Utah law.
The Utah Supreme Court has suggested that a person is not
excused from providing support if the person ‚willfully or
otherwise remained idle when he could have obtained
employment‛ or if the person ‚spent or wasted any part of the
20140998-CA 11 2016 UT App 143State v. Knaras
money earned by him in dissipation or riotous living.‛ State v.
Bess, 137 P. 829, 832 (Utah 1913); see also 23 Am. Jur. 2d Desertion
& Nonsupport § 42 (2013) (‚*I+t is not a lawful excuse if a parent is
unable to provide support due to personal extravagance,
indifference, or lack of reasonable diligence in obtaining
employment.‛). This court’s case law also suggests that a person
is not excused if the defendant is at fault for his inability to
provide support. See State v. Nelson, 2005 UT App 526U, para. 7
& n.4 (affirming a criminal nonsupport conviction and noting
that ‚the jury was specifically instructed that Defendant’s failure
to provide support for his minor children was excused if,
through no fault of his own, Defendant was unable to provide
for them‛). Because Instruction 16 was not erroneous or
prejudicial, the trial court did not err in giving this instruction.
CONCLUSION
¶26 Knaras has not demonstrated harmful error in the jury
instructions, and his arguments on appeal therefore fail.
Accordingly, we affirm.
20140998-CA 12 2016 UT App 143