State v. McAusland

2015 UT App 24
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DEVIN KEITH MCAUSLAND,
Defendant and Appellant.

Memorandum Decision
No. 20131067-CA
Filed February 5, 2015

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121910389

Joanna E. Landau and Samuel J. Hanseen,
Attorneys for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.

DAVIS, Judge:

¶1 Defendant Devin Keith McAusland appeals his convictions
of two counts of criminal nonsupport. McAusland argues on
appeal that there was insufficient evidence to prove a necessary
element of the charges against him, namely, that his child (Child)
was “in needy circumstances” or “would be in needy circumstances
but for support received from” another outside source (the
neediness element). See Utah Code Ann. § 76-7-201(1) (LexisNexis
State v. McAusland

2012). We conclude that the jury’s verdict is supported by sufficient
evidence and therefore affirm McAusland’s convictions.1

¶2 Criminal nonsupport occurs when a person “having a
spouse, a child, or children under the age of 18 years” “knowingly
fails to provide for the support of the spouse, child, or children
when any one of them: (a) is in needy circumstances; or (b) would
be in needy circumstances but for support received from a source
other than the defendant or paid on the defendant’s behalf.” Id. We
will review “the evidence and all reasonable inferences drawn
therefrom in a light most favorable to the verdict,” and we will not
reverse a jury’s verdict unless 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. Barlow, 851 P.2d
1191, 1193 (Utah Ct. App. 1993) (citations and internal quotation
marks omitted) (reviewing a challenge to a criminal nonsupport
conviction). Additionally, “[t]he existence of contradictory evidence
or of conflicting inferences does not warrant disturbing the jury’s
verdict.” State v. Boyd, 2001 UT 30, ¶ 14, 25 P.3d 985 (alteration in
original) (citation and internal quotation marks omitted).

¶3 McAusland’s convictions stem from two periods of
nonsupport occurring between 2006 and 2012, during which he
made child support payments totaling $800. His required monthly
child support payment was $474 plus half of Child’s daycare and
medical expenses. McAusland argues that the only evidence
related to Child’s neediness during this six-year span came from
the testimony given by Child’s mother (Mother). He describes
Mother’s testimony as consisting entirely of “bald assertions”

1. McAusland asks that we review his appeal under a plain error
analysis if we determine that the issues he argues on appeal are not
properly preserved. Because we deem his arguments properly
preserved, we review them under ordinary principles of appellate
law. See infra ¶ 2.

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State v. McAusland

unsupported by the record and argues that Mother’s testimony
does not support a finding of need.2

¶4 Mother testified that she received various forms of
government assistance due to her low income between 2006 and
2012, including Medicaid coverage for Child, food stamps, fee
waivers for Child’s schooling, and housing assistance. She also
testified that, during this time, she and Child lived together in an
apartment in West Jordan, in the home of her second child’s father,
and in her parents’ home. In addition, Mother received $3,618 in
cash assistance from the State during the first charged period of
nonsupport and $996 during the second charged period. Mother
noted that although Child had no special needs or extraordinary
expenses during the charged periods, she had to keep expenses low
and did not “have a lot of money to do anything.” She testified that
Child’s extracurricular activities were similarly low cost during
that time and consisted primarily of playing with friends and
playing softball. Mother indicated that she used babysitters and
daycare services while Child was younger, but she could not recall
the cost or duration of those services. Mother indicated that she
could not support Child on her own during those six years, stating,
“There’s no way I could do it on my own. I still can’t. We’ve moved
into my mom’s, and my dad is the one that’s helping me. That’s
who helps pay child support.”

¶5 McAusland highlights Mother’s testimony that she was able
to use babysitters and daycare services when Child was younger.

2. McAusland also argues that the State impermissibly sought to
satisfy its burden of proof by relying on the statutory presumption
that a child needs the support of both parents. See Utah Code Ann.
§ 78B-12-105(1) (LexisNexis 2012) (“Every child is presumed to be
in need of the support of the child’s mother and father. Every
mother and father shall support their children.”). Because we
determine that there is sufficient evidence in the record to support
the jury’s verdict, we need not address this argument.

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He argues that a lack of need is demonstrated by the fact that
Mother was able to access this sort of “outside help” without his
financial assistance. Had needy circumstances truly existed, he
asserts, Mother should have been able to prove the duration and
expense of the various forms of outside help she had utilized
throughout the contested six-year span. Similarly, McAusland
suggests that Child’s Medicaid coverage relieved him of his burden
to share in Child’s health insurance expenses during the coverage
period.

¶6 We are not persuaded. Though Mother somehow paid for
babysitting and daycare services without McAusland’s assistance,
the evidence that Mother received cash assistance goes directly
toward a finding of neediness, particularly when viewed in
conjunction with Mother’s testimony about her income and having
received food, housing, and tuition waivers from the State and
financial and housing assistance from her family. As the State
frames it, the cash assistance award is essentially tantamount to the
State “step[ping] in to meet [McAusland’s] obligation” and paying
“support on [McAusland’s] behalf to the extent necessary to
prevent [Child] from being in needy circumstances.” Furthermore,
the jury’s finding in support of the neediness element is not
precluded by the fact that Mother used daycare and babysitting
services without McAusland’s financial assistance or that Child
received Medicaid coverage. Nor is the jury’s finding of neediness
precluded by evidence that Child’s needs were being met as a
result of Mother’s receipt of housing, food, cash, and school fee
assistance from the State and housing and financial assistance from
Mother’s family. Indeed, this logic belies the language of the statute
defining neediness in terms of whether the child is actually in
needy circumstances or would be in needy circumstances but for
the assistance of third parties. See Utah Code Ann. § 76-7-201(1)
(LexisNexis 2012); see also State v. Bess, 137 P. 829, 831 (Utah 1913)
(“The fact that the destitution and suffering of the children were
relieved by the acts of kind and charitable friends does not . . .
exculpate the defendant for his dereliction . . . .”); cf. State v. Nelson,
2005 UT App 526U, para. 7 (concluding that a mother’s testimony

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State v. McAusland

“that she struggled to buy food and clothing for her children and
that she had to borrow or was given financial assistance from her
friends, parents, and church” constituted sufficient evidence of
neediness); State v. Houghton, 2002 UT App 156U, para. 2
(considering evidence that a defendant paid only $1,227 in child
support over a seven-year period to be indisputable proof that the
child “would be in needy circumstances but for support from a
source other than [the defendant]”).

¶7 Next, McAusland argues that Mother’s two requests that the
Office of Recovery Services (ORS) close its case demonstrate a lack
of need. He places particular significance on the fact that in one of
her requests, Mother instructed ORS to “keep the arrears,” which
at that time were in excess of $16,000. As McAusland contends,
Mother’s willingness to forgo the arrears and her desire to close the
ORS case prove that Child was not “in needy circumstances.”

¶8 We disagree. The status of the parties’ case with ORS is
unrelated to whether Child is in needy circumstances and has no
bearing on McAusland’s responsibility to continue paying child
support. The posture of the case with ORS affects only ORS’s role
in enforcing and collecting McAusland’s child support obligation.
Moreover, McAusland’s assertion that Mother’s request to close the
ORS case signified a lack of need is unconvincing in light of
Mother’s testimony that she made the request as a gesture of
goodwill meant to “get [McAusland’s] attention” and prompt him
into action. McAusland confirmed as much at trial, testifying that
Mother contacted him directly, offering to drop the case with ORS
and “get out of the court system and work this out” together.

¶9 Similarly, the significance of Mother’s statement that ORS
“keep the arrears” is not necessarily indicative of a lack of need.
Mother reiterated that her willingness to forgo the arrears was
motivated by her hope that the gesture would cajole McAusland
into cooperating and paying his child support obligations without
issue thenceforth. Further, because Mother had received cash
assistance from the State, the arrears she was willing to forgo were

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not, at least not entirely, funds to which she retained an
entitlement; in return for providing cash assistance, the State took
an assignment of McAusland’s child support debt equal to the
amount of cash assistance it had given Mother.

¶10 In light of the foregoing, we conclude that the jury was
presented with sufficient evidence to support a finding of
neediness. See State v. Holgate, 2000 UT 74, ¶ 18, 10 P.3d 346.
Accordingly, we affirm McAusland’s convictions.

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