Failure to pay court-ordered child support; Jury instruction that religious belief was a factor to consider under the defense of impossibility; M Crim JI 34.5; People v Likine; Fisher v Fisher

The court held that “the trial court did not plainly err by instructing the jury consistent with M Crim JI 34.5. Moreover, the trial court’s instructions fairly presented the issues to be tried and sufficiently protected” defendant's rights. He was not entitled to relief. Thus, his conviction for failing to pay his court-ordered child support was affirmed. He did not dispute “the trial court correctly instructed the jury on the elements of felony nonsupport.” He argued it “failed to instruct the jury that his religious belief was a factor to consider under the defense of impossibility.” The trial court instructed the jury as to “the defense of impossibility consistent with M Crim JI 34.5 and based on the factors enumerated” by the Supreme Court in Likine. Defendant acknowledged that “one’s religious belief is not an explicit factor under the defense of impossibility, but contends it should be.” His testimony was “he could pay child support, but his religion precluded him from entering into a civil contract with a secular court by recognizing an order from the State of Michigan directing him to pay it.” Contrary to his “argument, the holding in Likine does not mandate this Court reconsider Fisher. Likine does not discuss whether a religious belief is a factor to consider under the impossibility defense, nor does it suggest that the compelling state interest in a child’s welfare is no longer compelling. Although Fisher is not binding because it was decided before 1990,” the court nevertheless found it persuasive.