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Brown v. State (8/31/2018) ap-2616

Brown v. State (8/31/2018) ap-2616

                                                                                           NOTICE
  

                The text           of   this opinion can be corrected before the opinion is published in the                                           

               Pacific Reporter                  .   Readers are encouraged to bring typographical or other formal                                             

                errors to the attention of the Clerk of the Appellate Courts:    



                                                           303 K Street, Anchorage, Alaska  99501  

                                                                              Fax:  (907) 264-0878  

                                                                 E-mail:  corrections@ akcourts.us  



                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                    



DANIEL  LEE  BROWN,  

                                                                                                                                                                     

                                                                                                                     Court of Appeals No. A-12335  

                                                                                                                                                                                     

                                                              Appellant,                                          Trial Court No. 3PA-14-1076 CR  



                                              v.  

                                                                                                                                    O  P  I  N  I  O  N  

                                                                                                                                                                      

STATE  OF  ALASKA,  



                                                              Appellee.                                                No. 2616 - August 31, 2018  

                                                                                                                                                                             



                               Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                                         

                               Kari C. Kristiansen, Judge.  

                                                                            



                               Appearances:  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.  

                                                                                                                                                      



                               Judge MANNHEIMER.  

                                             



                               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                                          


----------------------- Page 2-----------------------

                                                                                                                                

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 payingchild  



                                                                                                                              

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.  



                                                              - 2 -                                                          2616
  


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           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 ... under a valid [court]  

                                

                     order;  

                                      

                               .  .  .  



                                                                                                      

                               3) That Daniel Lee Brown's failure to provide support  

                                                                    

                     for his children was knowing;  



                                                                                                      

                               4) That Daniel Lee Brown's failure to provide support  

                                                                

                    was without lawful excuse.  



                                                                                                                              

                     The flaw here is that these instructions did not expressly say that the State  



                                                                                                                                       

was required  to  prove that Brown did, in fact, fail to pay his court-ordered support.  



                                                                                                                            

Rather, this concept was merely implicit in the other clauses of the instructions.  



                                                                                                                         

                     Although Brown points out this problem on appeal, Brown's trial attorney  



                                                                                                                              

did not object to these jury instructions.   Thus, to prevail in this appeal, Brown must  



                                                               - 3 -                                                          2616
  


----------------------- Page 4-----------------------

                                                                                                                                                                      1  

 demonstrate plain error.                                                                                                                                                  Here, we conclude that the flaw in the jury instructions is not                                                                                                                                                                                                                                                                                                                                                 



plain error.                                                                  



                                                                                            First,   we agree with the State that even though the instructions did not                                                                                                                                                                                                                                                                                                                                                                                                                   



 explicitly   say that the State was required to prove                                                                                                                                                                                                                                                                                                            that Brown failed to pay his child                                                                                                                                                                           



 support, this element is implicit in the other clauses of the instruction.                                                                                                                                                                                                                                                                                                                                                                                                                  



                                                                                             Clause (3) of the instructions directed the jurors to decide whether the State                                                                                                                                                                                                                                                                                                                                                                                                    



had proved that "Daniel Lee Brown's failure to provide support for his children                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   was  



knowing".    Similarly,   clause (4) directed the jurors to decide whether the State had                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



proved that "Daniel Lee Brown's failure to provide support was without lawful excuse".                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



Any reasonable juror, being asked to decide these two issues, would understand that the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 charge of criminal nonsupport required the State to prove that Brown had, in fact, not                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



paid his child support.                                                                                                                                   



                                                                                             Second, the element of failure to pay was not contested at Brown's trial.                                                                                                                                                                                                                                                                                                                                                                                                                                                



As we have explained, Brown's attorney expressly conceded that Brown had failed to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



pay his court-ordered child support.                                                                                                                                                                                                                  The issue litigated at trial was whether Brown had                                                                                                                                                                                                                                                                                 



 a lawful excuse for failing to pay - that is, whether Brown had been unable to make                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



money to pay his child support obligation despite reasonable, good-faith efforts.                                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                                            In the context of jury instructions, "an appellate court will only find plain                                                                                                                                                                                                                                                                                                                                                                                                       



 error where the erroneous instruction or lack of instruction creates a high likelihood that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



the jury followed an erroneous theory, resulting in a miscarriage of justice."                                                                                                                                                                                                                                                                                                                                                                                                                                                          Dobberke  



v.  State, 40 P.3d 1244, 1247 (Alaska App. 2002) (quoting                                                                                                                                                                                                                                                                                                                                                       In re Estate of McCoy                                                                                                                                          , 844   



                        1                     See  Alaska Criminal Rule 30(a).                                                                                                                                                                                       The pertinent part of this rule declares:                                                                                                                                                                                                                                "No party   



may assign as error any portion of the charge [to the jury] or omission therefrom unless the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

party objects thereto before the jury retires to consider its verdict,statingdistinctlythe matter                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

to which the party objects and the grounds of the objections."                                                                                                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                                                                            - 4 -                                                                                                                                                                                                                                                                                       2616
  


----------------------- Page 5-----------------------

P.2d 1131,                         1134 (Alaska 1993)).                                               There is no such                                        likelihood here.                                   We therefore   



conclude that the flaw in the jury instructions in Brown's case is not plain error.                                                                                                                                                       



                                       For similar reasons, we do not interpret the Alaska Supreme Court's recent                                                                                                                          



decision in                    Jordan v. State                             , 420 P.3d 1143 (Alaska                                               2018), as requiringautomatic                                                       reversal  



of Brown's conviction.                                               



                                       The defendant in                                 Jordan  was charged with possessing four ounces or more                                                                                              



of marijuana in his home.                                                 At trial, Jordan's defense was that he reasonably believed that                                                                                                        



his marijuana weighed less than four ounces.                                                                                     The trial judge erroneously concluded that                                                                      



this was not a valid defense to the charge.                                                                            Thus, the judge refused to instruct the jury on                                                                              



this defense, and the judge would not let Jordan testify about why he believed that his                                                                                                                                                            



                                                                                                                         2  

marijuana weighed less than four ounces.                                                                                     



                                       Thus, as our supreme court put it,"the jury was not informed that [Jordan's]  

                                                                                                                                                                                                                               



reasonableness was an issue", and "the jury had no opportunity to decide ... whether  

                                                                                                                                                                                                                                   

                                                                                                                            3     In these circumstances, the supreme court  

 [Jordan's] defense was a reasonable one".  

                                                                                                                                                                                                                                             



held,  the trial judge's refusal to instruct the jurors on this  contested element of the  

                                                                                                                                                                                                                                                  



offense was a structural error - i.e., an error that automatically required reversal of  

                                                                                                                                                                                                                                                     



                                                           4  

Jordan's conviction.  

                                                               



                                       We  do  not  read  Jordan  as  requiring  automatic  reversal of  a  criminal  

                                                                                                                                                                                                                                   



conviction whenever there is some flaw in the jury instruction on the elements of the  

                                                                                                                                                                                                                                                  



crime.  And Brown's case does not present the kind of structural error that was found  

                                                                                                                                                                                                                                                             



in  Jordan.  

                                  



          2        Jordan , 420 P.3d at 1146-47.
                                                       



          3  

                                   

                   Id. at 1156.
  



          4  

                                                               

                   Id. at 1155-56.
  



                                                                                                                        - 5 -                                                                                                                   2616
  


----------------------- Page 6-----------------------

                                                                                                                             

                    Brown was charged with criminal nonsupport - a crime whose very name  



                                                                                                                             

implies that the State is alleging that the defendant failed to provide support.  And even  



                                                                                                                            

though  the  challenged  jury  instructions  may  have  been  technically  flawed,  these  



                                                                                                                               

instructions clearly communicated that Brown was being prosecuted for failing to pay  



                                                                                                                                  

his child support - because, in these instructions, the jury was told that the State had to  



                                                                                                                               

prove that "Brown's failure to provide support for his children was knowing" and that  



                                                                                                     

"Brown's failure to provide support was without lawful excuse."  



                                                                                                                              

                    Furthermore,  the  fact  that  Brown  failed  to  pay  his  child  support  was  



                                                                                                                              

uncontested.  Brown's attorney affirmatively conceded that Brown had not paid his child  



                                                                                                                         

support.  Brown's entire defense was that he lacked the money to pay the child support  



                                                                 

despite his reasonable, good-faith efforts.  



                                                                                                                              

                    Thus,  Brown was allowed to present his  chosen defense,  and the jury  



                                                                                                                                

instructions allowed  the  jury to fully consider that defense.                                  For these reasons,  we  



                                                                                                                      

conclude that the flaw in the jury instructions in Brown's  case  does  not constitute  



                          

structural error.  



                                                                                                                     

           Whether the jurors had to unanimously agree as to whether (1) Brown had  

                                                                                                                       

          sufficient money to pay his child support but he deliberately refused, or  

                                                                                                                       

          (2) Brown did not have sufficient money to pay his child support, but he  

                                                                                                                       

          could have had sufficient money if he had made reasonable efforts to  

                      

          obtain it  



                                                                                                                        

                    Brown  raises  one  other  claim  on  appeal.                        This  second  claim  involves  



                                                                                                                          

another jury instruction - the instruction that dealt with the question of whether Brown  



                                                                                        

had a "lawful excuse" for failing to pay his child support.  



                                                                                                                                  

                    The challenged jury instruction told the jurors that there were two ways in  



                                                                                                                       

which the State could prove that Brown's failure to pay his child support was "without  



                                                               - 6 -                                                          2616
  


----------------------- Page 7-----------------------

                                                                                                                                 

lawful excuse":  the State could prove that Brown "actually had the financial ability to  



                                                                                                                            

provide [the] support", or the State could prove that Brown "could have had [this] ability  



                                                                     

through the exercise of reasonable efforts".  



                                                                                                                                

                     This jury instruction ended with the following paragraph, which told the  



                                                                                                                           

jurors that  they did not have to be unanimous as to which theory of "without lawful  



                                               

excuse" the State had proved:  



                       

                                                                                                            

                               To return a unanimous verdict of guilty, you need not  

                                                                                                             

                     all agree  on  which  way  the  state  proved  [the  element  of  

                                                                                                            

                     "without lawful excuse"].  But each juror must find that the  

                                                                                                             

                     state has proved beyond a reasonable doubt [at] least one of  

                                                                                                

                     these alternate ways of proving [this] element ... .  



                                                                                                                            

                     On  appeal,  Brown  argues  that  the  jury  was  in  fact  required  to  reach  



                                                                                                                    

unanimous agreement as to which theory the State had proved  -  i.e.,  unanimous  



                                                                                                                                 

agreement as to whether (1) Brown had the money to pay the child support,  but he  



                                                                                                                                 

refused to pay, or (2) Brown could have had the money to pay the child support, but he  



                                                                                      

refused to exercise reasonable efforts to get the money.  



                                                                                                                                

                     We doubt that Brown's jury had to be unanimous as to which theory the  



                                                                                                                             

 State had proved.  See our detailed discussion of this issue in Taylor v. State, 400 P.3d  



                                                     

 130, 134-36 (Alaska App. 2017).  



                                                                                                                          

                     But in any event, we reject Brown's claim of error because Brown himself  



                             

invited this error.  



                                                                                                                         

                     As explained in Johnson v. State, 328 P.3d 77, 86 (Alaska 2014), "invited  



                                                                                                                              

error  [occurs] when a party urges a lower court to do something that the party later  



                                                                                                                              

appeals as erroneous".   Here, Brown's attorney proposed the instruction that he now  



                                                                                                                               

challenges  -  including  the  portion  expressly  telling  the  jurors  that  they  were  not  



                                                               - 7 -                                                          2616
  


----------------------- Page 8-----------------------

                                                                                                                             

required to reach unanimous agreement as to whether Brown had sufficient money to pay  



                                                                                                                              

the child support but refused to do so, or whether, instead, Brown could have had the  



                                                                                                                            

money but he failed to make reasonable, good-faith efforts to get it.  The trial judge took  



                                                                                                                      

the challenged language nearly  verbatim  from the instruction that  Brown's attorney  



                 

proposed.  



                                                                                                                         

                    As the supreme court explained in Johnson, an appellate court will review  



                                                                                                                              

an invited error only if the case presents an "exceptional situation" where reversal of the  



                                                                                                                                

lower court's judgement "is necessary to preserve the integrity of the judicial process or  



                                          

to prevent a miscarriage of justice."  



                                                                                                                         

                    Given the evidence in Brown's case, and given the way the case was argued  



                                                                                                                  

to the jury, we conclude that Brown's case  does  not present the kind of exceptional  



                                                                                                                           

situation where we should overlook the fact that Brown's own attorney asked the judge  



                                                                                             

to give the jury instruction that he now challenges on appeal.  



          Conclusion  



                                                                                                    

                    The judgement of the superior court is AFFIRMED.  



                                                              - 8 -                                                         2616
  

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