Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN                              GREGORY F. ZOELLER
Anderson Indiana,                                Attorney General of Indiana

                                                 KATHERINE MODESITT COOPER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE                                      May 28 2014, 9:42 am
                    COURT OF APPEALS OF INDIANA

JOHNNIE WINFORD,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 22A01-1307-CR-303
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE FLOYD CIRCUIT COURT
                          The Honorable J. Terrence Cody, Judge
                             Cause No. 22C01-1201-FC-191




                                        May 28, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                 Case Summary and Issue

       Johnnie Winford appeals his conviction for nonsupport of a dependent child, a

Class C felony, raising the following issue for our review: whether his conviction is

contrary to law, where Winford endeavored to establish the affirmative defense of an

inability to pay child support by showing receipt of Supplemental Security Income

(“SSI”) for the term of his support obligation. Concluding Winford failed to prove he

was entitled to SSI benefits during the relevant period, we affirm.

                               Facts and Procedural History

       Winford married Keisha Williams in 2002, and the two have three children

together.   Winford and Williams divorced in 2003, and Williams was granted sole

custody of all three children. The trial court issued a divorce decree and support order

that required Winford to pay $273 per week in child support. In 2004, Winford paid a

total of $1,500 through the Floyd County Clerk’s Office and made three or four payments

between $100 and $150 directly to Williams. Winford made no child support payments

after 2004. By October 2011, Winford owed over $115,000 in unpaid child support.

       On January 30, 2012, the State charged Winford with nonsupport of a dependent

child, a Class C felony. The charge against Winford alleged that he failed to make child

support payments between 2004 and 2011 and owed an amount greater than $15,000. At

trial, Winford submitted evidence that he received SSI in the amount of $6,434.76.

Specifically, Winford’s evidence was a letter from the Social Security Administration in

response to a request for information from Winford. The letter stated: “For the period of

01/2004 to 12/2012 you received a total of $6,434.76 in [SSI] benefits.” Defendant’s


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Exhibit A. The letter also contained the following table, displaying a breakdown of SSI

payments made to Winford beginning January 2012:

         Month             Payment           Month             Payment           Month           Payment
         01/2012           $2,094.00*[1]     05/2012           $465.34           09/2012         $465.34
         02/2012           $465.34           06/2012           $465.34           10/2012         $0.00
         03/2012           $465.34           07/2012           $1,083.38*        11/2012         $0.00
         04/2012           $465.34           08/2012           $465.34           12/2012         $0.00

Id.

         The jury was instructed that Winford’s inability to pay child support is an

affirmative defense to the charge of nonsupport of a dependent. The jury found Winford

guilty, and he received a sentence of five years in the Indiana Department of Correction.

This appeal followed. Additional facts will be provided as necessary.

                                          Discussion and Decision

                                           I. Standard of Review

         Winford appeals his conviction of nonsupport of a dependent, arguing he

established his affirmative defense of inability to pay child support. See Ind. Code § 35-

46-1-5(d) (“It is a defense that the accused person was unable to provide support.”). The

defendant bears the burden of proving the defense at trial. Cooper v. State, 760 N.E.2d

660, 665 (Ind. Ct. App. 2001), trans. denied. When a party appeals a negative judgment,

we will reverse only if the judgment is contrary to law. Id. In this context, a judgment is

contrary to law if the undisputed evidence and all reasonable inferences to be drawn

therefrom lead to a conclusion different than that reached below. Id.




         1
           The significance of the asterisks next to the January and July of 2012 payments is not explained in
Exhibit A as admitted.

                                                          3
                            II. Inability to Pay Child Support

      Winford contends his conviction was contrary to law because his receipt of SSI

benefits established his inability to pay child support. He relies heavily on our decision

in McGill v. McGill, 801 N.E.2d 1249 (Ind. Ct. App. 2004).

      McGill involved an appeal of a trial court’s order for a father to pay child support

in the amount of $20 per week. At that time, the father’s income consisted of SSI and

Social Security disability benefits. The court recognized that “SSI is a federal social

welfare program designed to assure that the recipient’s income is maintained at a level

viewed by Congress as the minimum necessary for the subsistence of that individual.”

Id. at 1252 (quoting Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995)). The court

also noted that SSI is specifically excluded from income for the purpose of determining a

parent’s child support obligation. Id. The court held that “[a]s a matter of law, SSI

recipients lack the money or means to satisfy child support obligations.” Id.

      We need not determine the applicability of McGill to this case, because we believe

Winford failed to prove he was entitled to SSI during the charged period. The evidence

in this case indicates that Winford unsuccessfully attempted to obtain SSI benefits

multiple times and was repeatedly denied until late 2011. Winford’s letter from the

Social Security Administration does not indicate the date on which he was deemed

eligible for SSI, but it shows monthly payments beginning on January 2012. The first

payment ($2,094) is exactly four and one-half times greater than the amount received in

the following months ($465.34). The letter does not explain the significance of the larger

first payment, but the jury could reasonably infer that the first payment included

compensation for three and one-half months in 2011 when Winford was found eligible
                                            4
for benefits. Assuming this were the case, it would not affect Winford’s nonsupport for

the vast majority of the charged term. Most importantly, the evidence does not prove that

Winford was entitled to SSI or otherwise had an inability to pay child support for the

entire period. Therefore, we cannot say the jury’s verdict in this case was contrary to

law.

                                        Conclusion

       Concluding it was not contrary to law for the jury to find Winford guilty of

nonsupport of a dependent, we affirm.

       Affirmed.

RILEY, J., and BRADFORD, J., concur.




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