State v. Claycomb
| Decision Date | 30 June 2015 |
| Docket Number | No. SC 94526,SC 94526 |
| Parties | State of Missouri, Respondent, v. Christopher C. Claycomb, Appellant. |
| Court | Missouri Supreme Court |
Claycomb was represented by Damien De Loyola of the public defender's office in Kansas City, (816) 889–7699.
The state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City, (573) 751–3321.
Christopher Claycomb appeals his conviction for felony criminal nonsupport under section 568.040.1 Mr. Claycomb argues that the evidence was insufficient to support a finding of guilt of criminal nonsupport because (1) the State failed to present any evidence of what constituted “adequate support” and (2) the State failed to prove that Mr. Claycomb did not provide adequate support by providing direct, in-kind support, such as food, clothing, medicine, or lodging.
Although Mr. Claycomb did not file a motion for new trial or otherwise raise his sufficiency claim below, a claim that there is insufficient evidence to sustain a criminal conviction is preserved for review without regard to whether it was raised below. Rule 29.11(e)(2).
On the merits, this Court rejects Mr. Claycomb's claim that the State presented no evidence as to what would constitute adequate support. The State presented evidence that Mr. Claycomb provided no direct monetary support for his child during the relevant time period although subject to a child support order. While a child support order is not conclusive evidence of what constitutes adequate support, it is some evidence of what is adequate. Further, the provision of no support is evidence of inadequate support.
This Court also rejects Mr. Claycomb's argument that the State must present evidence of a lack of in-kind support in order to make a prima facie case of lack of support under section 568.040. He cites no authority for the proposition that the State must prove a negative, and to so hold would be inconsistent with the long-settled principle that the State need not negate every inference of innocence to make a prima facie case. While Mr. Claycomb was free to present evidence of adequate in-kind support, he presented no evidence that he provided any in-kind support, much less adequate in-kind support. This Court affirms.
Mr. Claycomb and his wife had a son, T.C. In 2004, the marriage was dissolved. The judgment of dissolution required that Mr. Claycomb pay child support in the amount of $247 per month. On June 18, 2009, the State charged Mr. Claycomb with the class D felony of criminal nonsupport under section 568.040 because he:
[K]nowingly failed to provide, without good cause, adequate food, clothing, lodging and adequate medical attention for his minor child, [T.C.], for whom [Mr. Claycomb] was legally obligated to provide such support, in that during said time [Mr. Claycomb] failed to pay any child support in each of six (6) individual months within the 12 month time period August 1, 2005 to July 31, 2006.
At Mr. Claycomb's bench trial, the State presented record evidence that, while Mr. Claycomb made the required child support payments for the first year after the dissolution, he stopped making payments from October 2005 until September 2006. The ex-wife testified that T.C. lived with her during the 12–month period from August 1, 2005, to July 31, 2006, and that Mr. Claycomb missed more than six monthly child support payments during that period. The ex-wife also testified that Mr. Claycomb did not make any direct payments to her during that time though she believed he was able to do so, stating:
Mr. Claycomb testified in his own defense that he did not remember whether he worked between August 2005 and July 2006 but thought that he worked construction. Mr. Claycomb testified that he also worked in a bar owned by his girlfriend but said he did not receive a wage for that work. When asked about his child support payment history, Mr. Claycomb said that he “caught all that up” later in 2006 and was “paid up in full up until 2007—July of 2007,” at which point he became unable to work because his “brain bled out” and he developed a seizure disorder.
The records do reflect that, in September 2006, Mr. Claycomb made a $2,964 back payment that satisfied in full the payments he had missed during the 12–month period from August 1, 2005, to July 31, 2006. But Mr. Claycomb admitted that he had missed payments during the time period set out in the information from August 2005 through July 2006:
Mr. Claycomb did not testify about any illness or injury that affected his ability to provide support during the August 2005 through July 2006 period during which the information charged he had failed to support his child.2 Mr. Claycomb was not asked by the prosecution or by his own counsel whether he provided in-kind support, and the record is devoid of evidence that he did so.
The trial court found Mr. Claycomb guilty of the class D felony of criminal nonsupport. The trial court sentenced Mr. Claycomb to four years' imprisonment, suspended execution of the sentence, and placed Mr. Claycomb on five years' probation. Mr. Claycomb appeals. Following an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, § 10.
Mr. Claycomb argues that he did not need to raise his claim of insufficiency of the evidence below to preserve it or, alternatively, that a claim of insufficiency of the evidence to support the conviction always should be reviewed for plain error. Mr. Claycomb is correct that his claim that the evidence was insufficient to support his conviction is preserved on appeal even if not raised or not timely raised in the trial court. Rule 29.11(e) is applicable in the circumstances of this case, a court-tried criminal case:
[A] motion for new trial is not necessary to preserve any matter for appellate review. If a motion for new trial is filed, allegations of error to be preserved for appellate review must be included in a motion for new trial except for questions as to the following: ... [t]he sufficiency of the evidence to sustain the conviction .
(Emphasis added.) To the extent that some decisions of the Missouri court of appeals incorrectly may be read to suggest that a sufficiency claim is not preserved (and, therefore, could be reviewed only for plain error) if not included in a motion for new trial,3 they are overruled because they are inconsistent with Rule 29.11 and should no longer be followed.4
Similarly, this Court long has held that sufficiency claims are considered on appeal even if not briefed or not properly briefed in the appellate courts. See, e.g., State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999). To the extent that Withrow and similar cases have so held, they are correct. But, to the extent that these courts reach this result by reasoning that an inadequately briefed claim of insufficiency of the evidence will be considered under plain error but that a court is mandated to find that it constitutes plain error, these cases unnecessarily convolute the review process.5 Sufficiency of the evidence is reviewed on the merits, not as plain error. To the extent Withrow and other cases utilize a plain error analysis, they are no longer to be followed.
In reviewing a claim that there was not sufficient evidence to sustain a criminal conviction, this Court does not weigh the evidence but, rather, “accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence and inferences.” State v. Latall, 271 S.W.3d 561, 566 (Mo. banc 2008) ; State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). This Court “asks only whether there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty.” Latall, 271 S.W.3d at 566.
“Every parent has a legal obligation to provide for his or her children regardless of the existence of a child support order.” Reed, 181 S.W.3d at 570. “Proof of the relationship of parent to child is sufficient to establish a prima facie basis for a legal obligation of support.” Id. Section 568.040 governs criminal nonsupport of that child. Section 568.040's purpose “is to compel recalcitrant parents to fulfill their obligations of care and support; the purpose is not to enforce court-ordered child support obligations.” Id. The version of section 568.040 in effect at the time of Mr. Claycomb's offense stated:
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