COA: No error in admitting diversion agreement in child support nonpayment case

A father who failed to pay thousands of dollars in child support couldn’t persuade the Court of Appeals of Indiana that his pretrial diversion agreement should not have been admitted against him during his jury trial.

Joshua Barton, E.J. and their two children relocated from Arizona to Brown County in 2010. During Barton and E.J.’s relationship, E.J. became addicted to opioids and entered into in-patient treatment in March 2012.

While E.J. was in treatment, Barton initiated a proceeding seeking sole custody of their children. But after E.J. completed her treatment, she broke off her relationship with Barton, regained physical custody of the children and relocated with the kids to Wisconsin.

By agreement of the parties, Barton was ordered to pay $130 per week in child support. The amount was derived using a child support worksheet and income documentation submitted by Barton.

The agreement also provided that Barton would make all payments to the Indiana State Central Collection Unit or to the clerk of the Brown Circuit Court, and that Barton’s income would be subject to an income withholding order. If his child support obligations were not being withheld from his paycheck, Barton would have to pay his child support obligation directly to the Brown County clerk or to the ISCCU.

Between Nov. 19, 2013, and May 18, 2015, Barton worked for at least four employers. However, he either stopped showing up for work or quit his jobs just a few weeks after having an income withholding order applied to his paychecks.

Ultimately, Barton only paid $3,888 of the $10,270 he owed in child support — roughly 38% of his obligation. As a result, he was charged in November 2017 with two counts of Level 6 felony nonsupport of a dependent.

A pretrial diversion agreement was drafted, providing that the state agreed to withhold prosecution of the nonsupport charges and to dismiss the charges if Barton successfully completed the terms and conditions of the diversion agreement within 18 months. That included Barton admitting to two counts of felony nonsupport, not committing any new offenses and paying $6,000 in arrears by Feb. 5, 2019.

However, the state withdrew from the diversion agreement after Barton was convicted of invasion of privacy. It filed notice that it was resuming prosecution of the nonsupport charges.

During a jury trial, Barton moved to exclude any reference to the diversion agreement, including his admission to the charges. His counsel argued that based on Indiana Trial Rules 410 and 408, it would be unfair under the circumstances to admit the agreement because the jury, as laypeople, might not understand how Barton could have admitted to the charges in the agreement but then, after prosecution resumed, was unable to establish a factual basis for his guilty plea.

After the Brown Circuit Court denied the motion, Barton was found guilty and was sentenced to two years for each conviction to be served concurrently and with all but 180 days suspended to probation.

The Court of Appeals affirmed in Joshua L. Barton v. State of Indiana, 21A-CR-2165, concluding that the trial court did not abuse its discretion in admitting Barton’s diversion agreement as Exhibit 12, and that, if it had, any resulting error was harmless.

First, the COA agreed that Barton validly and voluntarily waived any restriction on the admissibility at trial of the agreement, which was Exhibit 12.

In addressing his first argument — that Barton did not enter into the diversion agreement voluntarily because the admissibility provision was too ambiguous for him to know that he had agreed to the admissibility of the guilt provision — the appellate court found Barton could not identify “any true ambiguity.”

“As to Barton’s contention that he merely acknowledged, but did not agree, that the Diversion Agreement could be used against him in court, he overlooks that in the first line of the Diversion Agreement provided that the State and ‘Defendant agree, pursuant to Indiana Code [section] 33-14-17 as follows:’ and that the Admissibility Provision followed,” Judge Patricia Riley. “Therefore, we do not find that the use of the word ‘acknowledges’ in the Admissibility Provision rendered that provision ambiguous.”

The COA also rejected Barton’s argument that a reasonable person could have understood the admissibility provision to mean that he had preserved his right to seek exclusion of the diversion agreement from the evidence.

It likewise did not agree with Barton’s assertion that the trial court erred in admitting the evidence in contravention of Indiana Evidence Rule 403, finding that Barton’s understanding of the implications of his admissions “is a distinct and different issue from the accuracy and veracity of those admissions as would affect their probative value.”

“Barton does not adequately explain how the trial court’s admonishment and instructions to the jury did not cure any danger of unfair prejudice flowing to him,” Riley continued. “We find no abuse of discretion in the trial court’s admission of Exhibit 12.”

Lastly, the appellate panel concluded that even if the diversion agreement was improperly admitted, its impact on the jury was so minimal as to not require reversal.