William Conner v. Commonwealth of Kentucky
This text of William Conner v. Commonwealth of Kentucky (William Conner v. Commonwealth of Kentucky) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RENDERED: APRIL 7, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0155-MR
WILLIAM CONNER APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE JOHN F. VINCENT, JUDGE ACTION NO. 19-CR-00075
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, GOODWINE, AND TAYLOR, JUDGES.
EASTON, JUDGE: The Appellant (“Conner”) contends the Boyd Circuit Court
erred by not directing a verdict in his favor in this flagrant non-support case. As
the circuit court did not err based on the evidence presented to the jury, we
affirm. FACTUAL AND PROCEDURAL BACKGROUND
Conner had a child with Alberta Conner (now Henderson). Conner
was required to pay child support by an order entered by a West Virginia court,
where the child lived after the divorce. Conner eventually resettled to the Rush
community in Boyd County, Kentucky. In February 2001, Conner stopped making
child support payments when a court order discontinued his visitation. Conner told
his ex-wife he would make no further payments, and he made no further voluntary
payments. At the time of the trial, Conner owed over $85,000. This is all
arrearage for past payments owed. The child was 24 years old at the time of the
trial.
The Commonwealth presented evidence at the jury trial of the
preceding circumstances. In addition, the child support case worker for Boyd
County further explained the history of payments received over the years which
resulted from tax refund intercepts, attachment, and wage garnishments. At the
conclusion of the Commonwealth’s case, Conner moved for a directed verdict
because the Commonwealth presented no evidence to show Conner could
“reasonably provide” support. The circuit court denied the motion.
In his case, Conner presented evidence about a medical condition
resulting from a tick bite. Specifically, Conner referred to ehrlichiosis, a tick-
borne bacterial infection which may result in severe symptoms, especially if not
-2- treated early enough when milder symptoms first present. Testimony about these
symptoms was provided by a treatment provider who was not a physician. This
provider noted improvement in Conner’s condition. This condition was a
relatively recent development. The treatment provider witness admitted she had no
information about Conner’s abilities in the decades prior to this condition.
Conner testified about his condition which resulted from a tick bite in
July of 2018. He told of the continuing effects, including memory problems,
which he did not have prior to the illness. Conner has not worked since
contracting his illness. Conner talked about his prior telecommunications work all
over the country for years and other work he had in the months prior to the tick
bite. Conner’s sister testified Conner not only did telecommunications (fiber
optics) work in the past but also did work as an independent contractor and odd
jobs. Conner applied for disability, but according to Conner, that did not “turn
out.”1
Collection of the child support was first attempted by a civil action
filed in 2016. Conner managed financially to retain counsel to represent him in
that case. In November of 2018, after a delay of two and half years, Conner signed
an agreed order to make payments of $300 per month. He made none. There was
1 Trial Record 11-8-2021 at 11:10:35-11:10:45.
-3- no explanation for the lack of payments while the civil case was pending prior to
the unfortunate tick bite.
At the close of all evidence, Conner renewed his motion for a directed
verdict. The trial court again denied the motion. The jury convicted Conner, and
the circuit court sentenced him to serve four years in prison.
STANDARD OF REVIEW
The sole issue raised on this appeal is whether the circuit court erred
in denying Conner’s motion for a directed verdict.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “On appellate
review, the test of a directed verdict is, if under the evidence as a whole, it would
be clearly unreasonable for a jury to find guilt, only then the defendant is entitled
to a directed verdict of acquittal.” Id.
ANALYSIS
To evaluate the directed verdict decision, we should review the
elements of the offense of flagrant non-support. The Commonwealth must prove
-4- Conner knew of the obligation and that he persistently failed to provide support
which he “can reasonably provide.” Kentucky Revised Statutes (“KRS”)
530.050(2). Conner’s failure to make payments which he could reasonably have
made must result in an arrearage of at least $2,500 or six consecutive months
without payment of support or leaving the child in destitute circumstances. KRS
530.050(2)(a)-(c).
In its case in chief, the Commonwealth presented some circumstantial
evidence about Conner’s ability to work and thus to provide some support.
Payments had been made from earnings Conner was able to make as indicated by
repeated wage garnishments and tax intercepts and one attachment of a bank
account (which Conner later confirmed was for $9,000). The case worker had
received no indication of an inability to work. The testimony presented for Conner
before the renewed motion for directed verdict was made after the close of
Conner’s case added to the evidence of his work history.
Conner correctly cites Schoenbachler v. Commonwealth, 95 S.W.3d
830 (Ky. 2003), for the proposition the Commonwealth has the burden to prove the
element of a defendant being able to reasonably provide support. It is not an
affirmative defense. Schoenbachler also explains the effort of a defendant to be
considered. The jury may consider “times when he had the money to pay his child
support, but paid other expenses instead.” Id. at 838. In the present case, there
-5- were clearly many times when Conner could have paid support and chose not to
resulting in the huge arrearage of more than $85,000.
Conner relies greatly on the impact of his illness beginning in 2018.
The payment inactivity after 2018 is not really the main point, because the child
was emancipated by then and the arrearage was no longer growing. The jury was
entitled to consider the whole history and decide if, even with some periods of not
being able to reasonably provide support, there were other periods where the
failure to provide support resulted in an arrearage of at least $2,500 or satisfaction
of the other statutory factors. When we consider all the evidence, we hold the
circuit court did not err in denying the directed verdict motion.
Conner makes another argument basically to the effect the inability to
make the payments under the agreed order in the related civil collection case
somehow implicates that body of law governing when a court may revoke
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
William Conner v. Commonwealth of Kentucky, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-conner-v-commonwealth-of-kentucky-kyctapp-2023.