State v. Barlow

851 P.2d 1191, 210 Utah Adv. Rep. 52, 1993 Utah App. LEXIS 71, 1993 WL 128613
CourtCourt of Appeals of Utah
DecidedApril 8, 1993
DocketNo. 920381-CA
StatusPublished
Cited by2 cases

This text of 851 P.2d 1191 (State v. Barlow) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barlow, 851 P.2d 1191, 210 Utah Adv. Rep. 52, 1993 Utah App. LEXIS 71, 1993 WL 128613 (Utah Ct. App. 1993).

Opinions

OPINION

GARFF, Judge:

Appellant, Elroy Barlow appeals a jury verdict of criminal nonsupport. We affirm.

TRIAL

On March 2, 1991, a jury convicted Barlow of criminal nonsupport in violation of Utah Code Ann. § 76-7-201 (1990).

In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict. State v. Seale, 853 P.2d 862, 865 (Utah 1993). We recite the facts accordingly.

Barlow was charged with the crime of criminal nonsupport for the period between January 1991 up to and including August 1991. A person is guilty of criminal nonsupport if that person “knowingly and without just cause fails to provide for the support of the spouse or children when either is in needy circumstances.” Utah Code Ann. § 76-7-201(1) (1990).

Barlow and his former wife, Kathleen Barlow, have two children. Pursuant to the terms of the divorce decree, Barlow has a child support obligation of $150.00 per child per month, for a total obligation of $300.00 per month. Barlow made no payment of child support for the months of January, March, June, July, and August 1991. He paid $218.00 in February 1991, $55.00 in April 1991, and $164.00 in May 1991. Both children were in needy circumstances between January and August 1991.

During the period for which Barlow was charged, he worked for M & R Enterprises, an auto body business owned by his current wife, for which he is the primary laborer. Kathleen Barlow testified that she was not aware of any reason why Barlow could not provide the ordered child support for their children. She testified that she had called and spoken to him on the phone at his work during the charged time. Based on her personal knowledge, obtained during the seven years she was married to Barlow, she testified that Barlow is skilled in auto body, paint work, and ear brokering and sales. She testified that Barlow’s current business is licensed under his current wife’s name, but that it is the same type of business and in the same location as the business he ran during the time he was married to her.

Officer Kelly Page, of the Murray City Police Department, testified that he observed Barlow at the auto body shop on September 26, which was less than a month after the period charged. Page found Barlow working on a pickup truck. Page said a compressor was running, and that the shop appeared to be set up and operable to do business.

Crystal Ann Larsen, an investigative technician for the Office of Recovery Services, testified that she telephoned M & R Enterprises on September 13, 1991, and that Barlow answered the phone. Again, this was shortly after the charged period. Barlow admitted to her that his wife owned the business and that he helped run the business.

Barlow, testifying in his own defense, admitted that he knew the amount he was required to pay for child support pursuant to the divorce decree. He admitted that he had not made the full payments required by the decree throughout the period in question. He testified that he was trying to work during the charged period, that his wife owned the body shop, and that his role was to do the auto body work. He testified that the reason he had not paid child support was that various illnesses had prevented him from working and earning money. He testified that he was sick and could not [1193]*1193work during January, he felt better in February, and worked a little in April, “trying to finish up a couple of things that we had in our shop.” He testified that he was not ill in May and June, and that he worked “maybe some” in July. He admitted that during the charged period his wife worked at the Salt Lake County Sheriffs Office, and that prior to owning M & R, she had no experience with auto body work.

After considering this evidence, the jury rendered a guilty verdict. Barlow appeals.

CRIMINAL NONSUPPORT

Barlow claims the jury verdict should be set aside because the State did not establish a prima facie case of the “just cause” element of the offense.

We review a jury verdict by viewing “the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict.” State v. Seale, 853 P.2d 862, 865 (1993); accord State v. Hamilton, 827 P.2d 232, 233 (Utah 1992). We reverse a jury verdict only if “ ‘the evidence ... is [so] sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.’ ” State v. Span, 819 P.2d 329, 332 (Utah 1991) (quoting State v. Petree, 659 P.2d 443, 444 (Utah 1983)).

This standard remains even where much of the evidence is circumstantial. Span, 819 P.2d at 332; State v. Nickles, 728 P.2d 123, 126-27 (Utah 1986). It is well-settled that “circumstantial evidence alone may be sufficient to establish the guilt of the accused.” Nickles, 728 P.2d at 126. Circumstantial evidence is sufficient to convict “if it is of ‘such quality and quantity as to justify a jury in determining guilt beyond a reasonable doubt.’ ” Span, 819 P.2d at 332 (quoting Nickles, 728 P.2d at 127); see also Nelke v. State, 19 Ark.App. 292, 720 S.W.2d 719, 720 (1986) (state may use circumstantial evidence to prove lack of just cause in criminal nonsupport case).

In any event, it is the exclusive prerogative of the jury to judge the credibility of the witnesses and the weight of the evidence. State v. Martinez, 709 P.2d 355, 356 (Utah 1985).

JUST CAUSE

A person is guilty of criminal nonsupport if that person “knowingly and without just cause fails to provide for the support of the spouse or children when either is in needy circumstances.” Utah Code Ann. § 76-7-201(1) (1990).

While Utah courts have not defined the term “just cause” as used in this statute, other courts interpreting similar statutes have. Kansas, Arkansas and California courts have defined it as an inability to provide support. State v. Kirkland, 17 Kan.App.2d 425, 837 P.2d 846, 851 (1992); accord Nelke v. State, 19 Ark.App. 292, 720 S.W.2d 719, 720 (1986); People v. Arnold, 66 Cal.2d 438, 58 Cal.Rptr. 115, 123, 426 P.2d 515, 523 (1967). In Kirkland, the terms “without just cause” and “without lawful excuse” were held to have the same meaning. Kirkland,

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Bluebook (online)
851 P.2d 1191, 210 Utah Adv. Rep. 52, 1993 Utah App. LEXIS 71, 1993 WL 128613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barlow-utahctapp-1993.