Circuit Court for Frederick County
Case No. 10K15057318
                                                  REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND

                                                    No. 2139

                                             September Term, 2016



                                            DANYELLE WALKER

                                                        v.

                                           STATE OF MARYLAND




                                        Eyler, Deborah S.,
                                        Wright,
                                        Zarnoch, Robert A.
                                           (Senior Judge, Specially Assigned),

                                                       JJ.


                                             Opinion by Zarnoch, J.



                                        Filed: September 27, 2017
       Danyelle Walker, appellant, was charged with two counts of criminal contempt

and four counts of failure to pay child support. Following a jury trial in the Circuit Court

for Frederick County, appellant was found guilty of all charges. The court sentenced

appellant to three years of imprisonment, with all but twelve months suspended.

Appellant appealed, and now presents two questions for our review:

        1. Was the evidence legally insufficient to sustain the convictions for
           criminal contempt and failure to provide child support?

        2. Did the circuit court err in ordering separate sentences for criminal
           contempt and failure to provide child support?

For the following reasons, we conclude that there was sufficient evidence of willful

nonpayment to sustain the convictions for criminal contempt and failure to provide child

support, and that the court did not err by ordering separate sentences. Accordingly, we

affirm the judgments of the circuit court.

                                    BACKGROUND

       Appellant was charged with two counts of criminal contempt and four counts of

failure to provide child support in violation of Md. Code (1984, 2012 Repl. Vol.), Family

Law Article (“FL”), § 10-203.       Count One charged him with constructive criminal

contempt from March 2013 through March 2015.              Count Two charged him with

constructive criminal contempt since April 2015. Counts Three through Six charged him

with failure to provide child support for each of his four minor children. On December 7,

2016, a jury trial was held in the Circuit Court for Frederick County. The following

testimony was elicited at trial.
       Paula Coleman testified as one of the State’s witnesses. Coleman is a teacher in

Frederick County and has four daughters with appellant. At the time of the trial, all four

daughters were minors. Coleman testified that appellant did not work regularly between

1996 and 2006. According to Coleman, appellant lived with his mother. On August 4,

2006, appellant entered into a consent order to pay $500 per month in child support for

the four children. From 2006 through 2015, Coleman stated that she spoke to appellant

about three times a year. Coleman testified that she did not receive any child support

payments directly from appellant between April 2013 and October 2015. During that

period, she would occasionally talk to appellant and ask for support, but never received it,

despite appellant making promises to provide support. In 2015, the child support order

was increased to $700 per month. At the time that the order was changed, appellant’s

salary was listed as $17.33 per hour. Coleman did not know if appellant was actually

working at that time.

       The jury also heard testimony from Edward Buell, a Department of Social

Services (“DSS”) employee who handled the case. Buell described the various measures

taken by DSS when a parent fails to make their required child support payments. DSS

attempts to make contact with the parent, then sends a demand letter, then initiates bank

garnishment, and then directs suspension of the parent’s driver’s license. Buell explained

that the State also files for civil contempt prior to charging the non-paying parent with

criminal contempt.      Buell testified that these efforts were taken in this case with

appellant, but that he still repeatedly failed to pay child support from May 2013 through

October 2015. Buell further testified that for at least seven of those months, appellant


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earned income but made no child support payments.           On cross-examination, Buell

testified about various payments and non-payments made by appellant during the relevant

time frame. In the first quarter of 2014, appellant made $172 and paid $670 in child

support. In the second quarter of 2014, appellant made $2,991 and paid no child support.

In the third quarter of 2014, appellant made $4,588 and paid $730.77 in child support. In

the fourth quarter of 2014, appellant made $1,434 and paid $1,477 in child support. In

the first quarter of 2015, appellant made $2,347 and paid $1,611 in child support. Buell

admitted that appellant never indicated to him that he did not intend to pay the child

support.

       Appellant also testified in his defense. He told the jury that he has lived with his

mother his entire life.    From 2014 through 2015, appellant worked for Ruppert

Landscaping for about a year and a half. He testified that child support was taken out of

his check when he worked for Ruppert Landscaping. Appellant also did construction

work for Eagle Contracting for a period of time. When he worked for Eagle Contracting,

he paid child support on his own, because he did not make enough money to have his

wages garnished. He claimed that he always looked for work during the 32-month period

that the State claimed he had ignored the child support order. He stated that he looked for

a job about two or three times a month. Appellant received unemployment when he was

not working, and claimed that some of that money went to child support. Appellant

admitted that he paid no child support from May through October 2013 and from June

through October 2015. He told the court that he was not working during those periods.




                                            3
Appellant testified that he did not intentionally fail to pay child support. At the time of

the trial, appellant was over $68,000 in arrears.

       At the conclusion of the trial, appellant was convicted of two counts of criminal

contempt and four counts of failure to provide child support.         The court sentenced

appellant to three years of imprisonment, with all but twelve months suspended for each

count. The sentences were to run concurrent to each other. This appeal followed.

                                      DISCUSSION

                              I. Sufficiency of the Evidence

       An appellate court “reviews a question regarding the sufficiency of the evidence in

a jury trial by asking whether after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Grimm v. State, 447 Md. 482, 494-95 (2016) (Citation and

internal quotation marks omitted). “We conduct such a review, however, keeping in

mind our role of reviewing not only the evidence in a light most favorable to the State,

but also all reasonable inferences deducible from the evidence in a light most favorable to

the State.” Smith v. State, 415 Md. 174, 185-86 (2010). “We give ‘due regard to the fact

finder’s findings of facts, its resolution of conflicting evidence, and, significantly, its

opportunity to observe and assess the credibility of witnesses.’” State v. Suddith, 379

Md. 425, 430 (2004) (quoting Moye v. State, 369 Md. 2, 12 (2002)).

       Criminal contempt has been defined by the Court of Appeals as follows:

                  Criminal contempts may be direct or constructive. A
           “direct” criminal contempt has been defined as conduct which
           occurs in the presence of the court or so near the court that it


                                              4
           interferes with the proper function and authority of the court. An
           “indirect” or “constructive” criminal contempt is any contempt
           other than a direct contempt. Whether direct or constructive, only
           that conduct that is willful or intentional may constitute a criminal
           contempt.

Ashford v. State, 358 Md. 552, 563 (2000) (Citations omitted).

       The Court remarked in Dodson v. Dodson, 380 Md. 438, 452 (2004), that

“constructive criminal contempt [ ] is the appropriate means to punish a past willful

violation of a court order.”   Appellant was convicted of two counts of constructive

criminal contempt. “[I]n order to convict an accused of constructive criminal contempt,

[the State] has the burden of proving, beyond a reasonable doubt, ‘a deliberate effort or a

willful act of commission or omission by the alleged contemnor committed with the

knowledge that it would frustrate the order of the court.’” Dorsey v. State, 356 Md. 324,

352 (1999) (quoting In re Ann M., 309 Md. 564, 569 (1987)). “These mens rea elements

must be established by evidence, and cannot simply be ‘assumed.’ Nevertheless, like

scienter generally in criminal cases, they ‘may be proven by circumstantial evidence and

by inferences drawn therefrom.’” Id. at 352 (quoting Dawkins v. State, 313 Md. 638

(1988)).

       Appellant contends that the evidence was insufficient because the State failed to

show that he willfully or deliberately failed to comply with the child support orders.

Appellant argues that all the State showed was that appellant failed to make all monthly

child support payments during the periods in question. The State counters that it gave the

jury ample evidence to infer willfulness on appellant’s part to sustain the convictions.




                                             5
       Both appellant and the State rely primarily on the cases of Dorsey and Ashford. In

both cases, the appellate court held that the evidence was insufficient for a criminal

contempt conviction. Appellant argues that this case is analogous to both of those cases,

thus, requiring a reversal of his conviction. The State contends that the instant case is

distinguishable because the State did provide evidence of willfulness on appellant’s part.

       Dorsey involved consolidated cases of two defendants, Dorsey and Craft, who had

been convicted of criminal contempt because of their failure to pay child support. 356

Md. at 354. In Dorsey’s case, he was convicted “based on the lack of support payments

for [a] ten-month period, the lack of employment information in the agency’s records,

and the fact that the agency’s records reflected an incorrect address for Dorsey.” Id. The

Court of Appeals held that those facts were “entirely insufficient to support an inference

that Dorsey’s failure to make support payments during the period was willful and done

with a contumacious intent.” Id. The Court highlighted the lack of evidence of Dorsey’s

ability to pay, stating that “[t]he only evidence relating to the period was Dorsey’s

testimony that he worked ‘a couple of weeks at Wendy’s,’ that the pay was ‘not that

much,’ and that, during the remainder of the period . . . he was either incarcerated or,

when not incarcerated, he was unable to find work and ‘basically’ did ‘nothing.’” Id. at

354-55. On the issue of a defendant’s ability to comply, the Court provided that:

           [E]vidence of an ability to comply, or evidence of a defendant’s
           conduct purposefully rendering himself unable to comply, may,
           depending on the circumstances, give rise to a legitimate inference
           that the defendant acted with the requisite willfulness and
           knowledge. By contrast, evidence of an inability to comply during
           the relevant period may, again depending upon the circumstances,



                                             6
           support an inference that the defendant lacked a contumacious
           intent.

Id. at 352. In Craft’s case, the circuit court noted that the defendant did not have the

ability to pay, but found him guilty on the theory that he could have obtained a better job

at a fast food restaurant. Id. at 355. However, as the Court of Appeals noted, “[t]here

was no ‘evidence’ relating to the employment opportunities at the fast food places,

Craft’s qualifications for a job at these establishments, the wages available at such places,

the distance between Craft’s residence and the fast food places, or the availability of

public transportation.”     Id.   Accordingly, the Court held that this evidence was

insufficient “to support an inference that Craft’s failure to comply was accompanied by a

contumacious intent.” Id.

       In Ashford, the State failed to offer sufficient evidence to support a conviction for

failure to pay child support because the evidence only showed a lack of compliance. 358

Md. at 574. The Court held that:

           [T]he State’s evidence showed neither that the appellant had
           sufficient money to pay the child support order nor that he had the
           ability to earn sufficient money and willfully failed to work and
           pay. In fact, the State’s sole witness testified that she was not
           aware of the appellant’s financial or personal situation since July
           21, 1997, the time that the appellant made his last child support
           payment. Thus, in limiting its proof to lack of compliance with the
           order, the State has failed to offer sufficient evidence to prove the
           crime of constructive criminal contempt beyond a reasonable
           doubt.

Id.

       Appellant contends that like the defendants in these cases, he was convicted only

on evidence of non-compliance. Like Craft, appellant argues that the State did not


                                             7
present evidence on his qualifications for available jobs. Appellant points out that he

testified at trial that he was always looking for work. Appellant asserts that “the State’s

evidence showed neither that appellant had sufficient money to meet his obligations nor

that he had the ability to earn sufficient money and that he willfully failed to work and

pay.”

        The State contends that there was enough evidence of willfulness and points to

four features of this case for support: 1) appellant earned income from a landscaping

company during some months where he did not pay child support; 2) appellant made only

lukewarm efforts to find a job; 3) Coleman testified that appellant made repeated

promises to pay over the phone but failed to do so; and 4) Buell’s testimony that DSS

made increasingly vigorous efforts to collect child support. We agree that the evidence

presented in the instant case was sufficient to distinguish it from Dorsey and Ashford.

        Although establishing an affirmative intent to not do something is a difficult task,

there was enough evidence for the jury to infer willfulness on appellant’s part. As the

State points out, appellant signed two consent orders acknowledging the existence and

magnitude of his obligation. Nevertheless, despite being fully aware of his obligation, he

repeatedly failed to make the required payments and allowed the amount he owed to

increase up to $68,000.      Furthermore, unlike the cases discussed above, there was

evidence regarding appellant’s financials during some of the relevant periods. Testimony

at trial established that appellant worked for a landscaping company and earned income

during at least seven of the months that he did not pay child support. In contrast with

Dorsey and Ashford, we know that appellant was earning income at certain points and


                                             8
still not paying child support. Meanwhile, appellant was living with his mother and

paying her rent. During periods of unemployment, appellant claimed that he was always

looking for work, but when questioned about it he said he looked for jobs only two or

three times a month. Looking for a job only two or three times a month is not equivalent

to always looking for work. For someone who owes such a substantial amount in child

support, that is not an adequate effort at obtaining employment. Moreover, Coleman’s

testimony about her communications with appellant also show a pattern of deliberate

non-payment. Coleman testified that she would tell appellant over the phone that he

needed to make his child support payments, and that he also promised her that he would.

Nevertheless, he repeatedly failed to honor these promises to pay. As the State argues,

appellant’s “regular awareness that he was supposed to do so, his guarantees that he

would do so, and his consistent and repeated failure to do so, permitted an inference that

he knowingly and intentionally did not do so.” Taken all together, appellant’s knowledge

of his obligations, promises to pay, employment history, and repeated failure to pay

supports the jury’s conclusion that appellant willfully failed to pay his required child

support.

                                          II. Merger

      The trial court sentenced appellant to three years of incarceration with all but

twelve months suspended on Count One for criminal contempt. Appellant received the

same sentence for his second criminal contempt conviction and for all four of his failure

to provide child support convictions. Appellant’s sentences on Counts Two through Six




                                            9
were to run concurrently with his sentence for Count One. At no time during appellant’s

sentencing did counsel object to the sentence or request a merger.

       On appeal, appellant argues that his convictions for failure to provide child

support should have merged with each other as well as with his convictions for criminal

contempt. Merger of sentences can be done under the required evidence test, the rule of

lenity, or principles of fundamental fairness. Potts v. State, 231 Md. App. 398, 413

(2016). Appellant contends that his sentences should have been merged under either the

rule of lenity or the principles of fundamental fairness.

       The rule of lenity is as follows:

           Two crimes created by legislative enactment may not be punished
           separately if the legislature intended the offenses to be punished by
           one sentence. It is when we are uncertain whether the legislature
           intended one or more than one sentence that we make use of an aid
           to statutory interpretation known as the “rule of lenity.” Under that
           rule, if we are unsure of the legislative intent in punishing offenses
           as a single merged crime or as distinct offenses, we, in effect, give
           the defendant the benefit of the doubt and hold that the crimes do
           merge.

Monoker v. State, 321 Md. 214, 222 (1990). “The rule of lenity is neither absolute nor

exclusive, nor are there any fixed criteria for applying it. One fact is, however,

undeniably clear. The rule of lenity, formulated as an aid to statutory construction,

applies to statutory offenses.” Id. at 223.

       Criminal contempt is a common law offense; however, failure to provide child

support is a statutory offense under FL § 10-203. “[T]he rule of lenity applies . . . where

one offense is statutory and the other is a derivative of common law.” Khalifa v. State,

382 Md. 400, 434 (2004). Appellant contends that under the plain language of the


                                              10
statute, “nothing indicates that the General Assembly intended to authorize separate

sentences for criminal contempt and failing to provide child support, where both are

based on the same act or acts.” However, as the State points out, the two crimes serve

different purposes. The purpose of the child support statute is “to assist spouses and

children in directly procuring support and thereby preventing them from becoming public

burdens, to punish the offense of failing to provide support, and, by the fear of

punishment, to prevent the commission of such an offense.” State v. Berry, 287 Md. 491,

497 (1980). Criminal contempt is a common law offense “inherent in all courts as a

principal tool to protect the orderly administration of justice and the dignity of that

branch of government that adjudicates the rights and interests of the people.” Smith v.

State, 382 Md. 329, 337 (2004). Therefore, the court did not err in imposing sentences

for both crimes. Accordingly, we decline to merge the convictions under the rule of

lenity.

          Appellant also argues that his convictions should have merged under principles of

fundamental fairness. However, “[a]lthough a defendant may attack an illegal sentence

by way of direct appeal, the fundamental fairness test does not enjoy the same procedural

dispensation of Md. Rule 4-345(a) that permits correction of an illegal sentence without a

contemporaneous objection.” Potts, 231 Md. App. at 414. Appellant did not make a

contemporaneous objection as to the lack of fundamental fairness of his sentences.

Accordingly, this issue was not preserved for our review.




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     JUDGMENTS OF THE CIRCUIT
     COURT FOR FREDERICK COUNTY
     AFFIRMED. COSTS TO BE PAID BY
     APPELLANT.




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