This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jeffrey Scott Larson,
Filed May 20, 2003
Robert H. Schumacher, Judge
Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Jeffrey Scott Larson challenges his conviction for failing to pay court-ordered child support from January 1, 2001 through June 30, 2001. Larson argues that the evidence was insufficient to sustain his conviction and that the trial court abused its discretion when it precluded him from introducing evidence to collaterally attack the validity of the dissolution decree adjudicating him the father of K.S. We affirm.
Larson and E.S. were divorced in May 1996. The dissolution decree declared Larson the father of the minor children, L.S. and K.S. Larson was ordered to pay $503 per month for child support beginning June 1996.
In 1995, Larson injured his back and foot when a stack of bricks fell on him. After his injury, Larson worked part-time as a limousine driver but quit after a few months, claiming his injuries made it painful to get in and out of the limousine.
In 1997, Larson requested a modification of his child support obligations due to his injury. Larson submitted a physician's statement dated September 1996 in which the physician outlined certain work restrictions but concluded that Larson should be able to work within those restrictions if a position were available that would accommodate those restrictions. The court reduced his child support obligation to zero.
The child support obligation was further modified in October 2000 pursuant to E.S.'s motion. The child support magistrate found that Larson was underemployed and concluded that he was capable of full-time employment. Child support was set at $305 per month and $50 per month for medical support, retroactive to January 1, 2000. Larson attended the hearing and knew about the obligation.
Larson paid no child support for the period of January 1, 2001 through June 30, 2001. Larson was charged with felony nonsupport of a child for failing to pay court-ordered support from January 1, 2001 through June 30, 2001. The court did not permit Larson to offer evidence collaterally attacking the validity of the dissolution decree adjudicating him the father of K.S. After a jury trial, Larson was convicted of one count of nonsupport of a child.
1. Larson argues that the evidence was insufficient to prove beyond a reasonable doubt that he did not have a lawful excuse for failing to pay child support. In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
The offense of nonsupport of a child is defined as follows:
Whoever is legally obligated to provide care and support to a spouse or child, whether or not its custody has been granted to another, and knowingly omits and fails without lawful excuse to do so is guilty of a misdemeanor, * * * .
Minn. Stat. § 609.375, subd. 1 (2000). "If the violation * * * continues for a period in excess of 180 days, the person is guilty of a felony * * *." Minn. Stat. § 609.375, subd. 2a (2000).
"[D]ue process requires the state to prove the absence of a lawful excuse beyond a reasonable doubt." State v. Burg, 648 N.W.2d 673, 679 (Minn. 2002) (footnote omitted). The state does not have the duty to rebut Larson's evidence that he was unable to work as argued by the Larson. "[T]he offense of nonsupport generally presupposes and is predicated on the ability to support." State v. Townsend, 259 Minn. 522, 530, 108 N.W.2d 608, 613 (1961). The state had the burden only of presenting sufficient evidence to prove beyond a reasonable doubut that Larson was able to provide support.
Evidence presented at trial included a physician's statement that Larson could work with certain restrictions and Larson's acknowledgment that he was ordered on October 15, 2000 to pay child support but had not paid any child support for the period from January 1, 2001 through June 30, 2001. The record reveals that the court gave proper jury instructions that listed the elements of the crime and explained that each element had to be proven beyond a reasonable doubt. The jury could reasonably have found that Larson had the ability to work, within certain restrictions, based on the physician's statement, and had no lawful excuse for failing to pay the child support.
2. Larson argues that the trial court should have allowed evidence to support his contention that he is not the father of K.S. because he contends that he did not receive notice of the dissolution hearing and was not represented by counsel at the hearing.
Rulings on evidentiary matters are within the broad discretion of the trial court
and will be reversed only upon a clear abuse of that discretion. State v. Hooper, 620 N.W.2d 31, 38 (Minn. 2000) (citing State v. Flores, 595 N.W.2d 860, 865 (Minn. 1999)).
A finding of paternity in a dissolution action "is res judicata, and precludes the defense of nonpaternity." State ex rel. Ondracek v. Blohm, 363 N.W.2d 113, 115 (Minn. App. 1985). The Ondracek court found "no statutory or constitutional right to counsel in dissolution proceedings." Id. The Ondrecek court noted, however, that a man had legal recourse to challenge a paternity finding pursuant to a dissolution decree. He could "move to vacate or amend the decree on grounds of mistake, newly discovered evidence or fraud or misrepresentation by the adverse party." Id. at 115 (citations omitted). Larson never made a motion to vacate or amend the dissolution decree.
"[I]n paternity adjudications counsel must be provided indigent defendants where the complainant is represented by the county attorney." Hepfel v. Bashaw, 279 N.W.2d 342, 348 (Minn. 1979). Larson was adjudicated as the father of K.S. in a dissolution action where neither party was represented by the county attorney.
The trial court did not allow evidence proffered by Larson after it determined that the evidence was irrelevant because Larson had been adjudicated K.S.'s father in the dissolution decree. The court noted that Larson received a copy of the dissolution decree and did not appeal it at any time. The trial court did not abuse its discretion when it did not allow Larson's evidence relating to the paternity of K.S.
3. Larson has submitted a pro se supplemental brief in addition to his appellant's brief. "The record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any." Minn. R. Crim. P. 28.02, subd. 8. The pro se supplemental brief contains some documents that are not part of the record, and therefore this court will not consider those documents. The remainder of the brief contains arguments already addressed in this opinion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.