MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         Apr 14 2020, 9:28 am
regarded as precedent or cited before any
court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Olivero                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General
Benjamin E. Nordmann                                      Tina L. Mann
Fort Wayne, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher Marks,                                        April 14, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2674
        v.                                                Appeal from the
                                                          DeKalb Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Kevin P. Wallace, Judge
                                                          Trial Court Cause No.
                                                          17D01-1809-F6-314



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2674 | April 14, 2020                    Page 1 of 6
                                           Case Summary
[1]   Christopher Marks was convicted of Level 6 felony nonsupport of a dependent

      child. He now appeals, arguing that the evidence is insufficient to support his

      conviction. We affirm.



                            Facts and Procedural History
[2]   Marks and M.V. have one child, M.C.M. (“Child”), who was born in March

      2012. Marks signed a paternity affidavit at the hospital. At the time of Child’s

      birth, Marks worked part-time while he attended college. In September 2012,

      M.V. filed a petition to establish paternity and child support. In February 2013,

      the trial court issued an order establishing paternity in Marks and ordering him

      to pay $40/week in child support.


[3]   About a year later, in January 2014, M.V. filed a motion to modify child

      support because Marks had obtained his associate degree in computer science

      and started a full-time job making $35,000/year. In February 2014, the trial

      court issued an order increasing Marks’s child support to $135/week.

[4]   In December 2015, Child was placed with Marks because M.V. was having

      mental-health issues. Marks had custody of Child until April 2016, when he

      was placed with M.V.’s parents. During the four-month period that Marks had

      custody of Child, his child-support obligation was abated.

[5]   In July 2016, the State filed a petition for rule to show cause, alleging that

      Marks had failed to pay child support. In October 2016, the trial court issued
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2674 | April 14, 2020   Page 2 of 6
      an order finding that Marks was in arrears in child support, admitted that he

      had not paid any child support since May 2016, and was employed and had the

      ability to pay. Accordingly, the court concluded that Marks had willfully and

      intentionally failed to abide by the court’s order requiring him to pay child

      support and found him in contempt. The court ordered him to serve fifteen

      days in jail but said that Marks could purge himself of the contempt. The court

      stayed the jail sentence pending a review hearing in January 2017.

[6]   Also in October 2016, the DeKalb County Title IV-D Office sent an income-

      withholding order to Marks’s employer, but Marks told his employer not to

      garnish his wages. He was fired in December 2016.

[7]   On January 31, 2017, Marks paid $500 to purge himself of the contempt. As

      Marks admits on appeal, this is the last child-support payment that he made.

[8]   In July 2017, Child was returned to M.V. Almost one year later, in September

      2018, the State charged Marks with Level 6 felony nonsupport of a dependent

      child. Specifically, the State alleged that between January 31, 2017 (when

      Marks paid the $500 to purge himself of the contempt) and August 13, 2018,

      Marks failed to pay child support and was $16,420.09 in arrears.

[9]   A jury trial was held in September 2019. At the time of trial, Marks was forty-

      two years old, and Child was seven. In addition, Marks was not employed and

      had not been since he was fired nearly three years earlier. Marks represented

      himself but had standby counsel. Eileen Marks, Marks’s mother, testified on

      direct examination that Marks hadn’t worked since December 2016 and that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2674 | April 14, 2020   Page 3 of 6
       she “totally” supported him, paying for his food, clothing, shelter, and medical

       care. Tr. p. 128. Eileen also testified that Marks suffered from depression and

       panic attacks and that he had tried to find employment but was unsuccessful.

       According to Eileen, Marks couldn’t support himself or Child. On cross-

       examination, the State asked Eileen why Marks couldn’t get a job in the “hot”

       computer field, especially when the unemployment rate was so low. Id. at 135.

       Eileen answered that Marks couldn’t get a job because he didn’t have a driver’s

       license. At the conclusion of Eileen’s testimony, the jury asked her why her son

       couldn’t get a job working from home, and she responded that he didn’t have

       internet at home (although she testified earlier that he had an X-box One at

       home).

[10]   During final instructions, the trial court instructed the jury as follows:


               It is a defense to the charge of non-support of a dependent child
               that the Defendant was unable to provide support.


               The Defendant has the burden of proving, by the greater weight
               of the evidence, that the Defendant was unable to provide
               support.


       Appellant’s App. Vol. II p. 113. The jury found Marks guilty as charged, and

       the trial court sentenced him to two years, all suspended to probation.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2674 | April 14, 2020   Page 4 of 6
                                  Discussion and Decision
[11]   Marks contends that the evidence is insufficient to support his conviction for

       Level 6 felony nonsupport of a dependent child. Specifically, he argues that he

       met his burden of proving that he was unable to provide support. When

       reviewing sufficiency-of-the-evidence claims, we neither reweigh

       the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d

       1065, 1066 (Ind. 2015). We will only consider the evidence supporting the

       verdict and any reasonable inferences that can be drawn from the

       evidence. Id. A conviction will be affirmed if there is substantial evidence of

       probative value to support each element of the offense such that a reasonable

       trier of fact could have found the defendant guilty beyond a reasonable

       doubt. Id.


[12]   A person who knowingly or intentionally fails to provide support to the

       person’s dependent child commits nonsupport of a dependent child, a Level 6

       felony. Ind. Code § 35-46-1-5(a). However, it is an affirmative defense that the

       defendant was unable to provide support. Id. at (d); see also Stephens v. State, 874

       N.E.2d 1027, 1034 (Ind. Ct. App. 2007), trans. denied. The defendant bears the

       burden of proving his inability to provide support. Stephens, 874 N.E.2d at

       1034.


[13]   Here, the jury reasonably rejected Marks’s defense that he was unable to

       provide support. The record shows that Marks had a full-time job making

       $35,000/year. When the State sent an income-withholding order to his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2674 | April 14, 2020   Page 5 of 6
       employer, he told his employer not to garnish his wages. He was fired in

       December 2016. Although Eileen testified that Marks suffered from depression

       and panic attacks and couldn’t find a job, Marks presented no other evidence to

       support his mother’s claims. Marks did not offer any mental-health or medical

       records showing that he suffers from a condition that would prevent him from

       working. Indeed, Eileen testified that Marks would have a job if he had his

       driver’s license or internet. In addition, Marks did not offer any evidence of job

       applications that he had submitted or any other evidence that he had been

       seeking employment. Finally, Marks never filed a motion to modify his child-

       support obligation. This evidence shows that Marks was unwilling to provide

       support—not that he was unable to do so. We therefore affirm Marks’s

       conviction for Level 6 felony nonsupport of a dependent child.

[14]   Affirmed.

       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2674 | April 14, 2020   Page 6 of 6
