State v. French

• Decision Date: 23 October 2001
• Docket Number: WD58860
• Parties: State of Missouri, Respondent v. Germaine French, Appellant WD58860 and WD58861 Missouri Court of Appeals Western District
• Court: Court of Appeal of Missouri (US)

State of Missouri, Respondent v Germaine French, Appellant

WD58860 and WD58861

Missouri Court of Appeals Western District

10/23/2001

Appeal From: Circuit Court of Buchanan County, Hon. Keith B. Marquart, Judge

Counsel for Appellant: Amy M. Bartholow

Counsel for Respondent: Philip M. Koppe

Opinion Summary:

Germaine French appeals from his conviction and sentence following a jury trial for two counts of the class D felony of criminal nonsupport, section 568.040, RSMo 2000. The court sentenced French to two consecutive six-month sentences, one for each count.

Division holds: 1) Criminal nonsupport is a continuing course of conduct under section 568.040 and does not allow multiple punishments for the same offense; 2) the state presented sufficient evidence of French's knowledge of his obligation to support his son, M.W.; and 3) the court did not abuse its discretion in allowing the state to present evidence concerning genetic testing.

Newton, P.J. and Smart, J., concur

Horold Lowenstein, Judge

Appellant, Germaine French, appeals from his conviction and sentence following a jury trial for two counts of the class D felony of criminal nonsupport, section 568.040, RSMo 2000.¹ French was sentenced to two consecutive six-month sentences, one for each count. French asserts three arguments on appeal: 1) the trial court erred in sentencing him for two separate counts of felony nonsupport as it violated his right to be free from Double Jeopardy in that nonsupport is a continuing course of conduct; 2) the State failed to present sufficient evidence that French knew of his legal obligation to support his child; and 3) the trial court abused its discretion in allowing the State to present evidence concerning genetic testing in that it was irrelevant and highly prejudicial. This court finds that: 1) criminal nonsupport is a continuing course of conduct under section 568.040 and does not allow multiple punishments for the same offense; 2) the State presented sufficient evidence of French's knowledge of his obligation to support his son, M.W.; and 3) the trial court did not abuse its discretion in allowing the State to present evidence concerning genetic testing. Factual and Procedural History

This case concerns the criminal nonsupport of a child, M.W. In September of 1992, Victoria Wilson met French at a party. After a subsequent meeting, she gave him her phone number. After French called her a few days later, she invited him to her apartment and they had sex one time. French visited Victoria's home a second time a few days later, after which they did not see each other again.

In November of 1992, Wilson discovered she was pregnant. Wilson called French, told him that she was pregnant and that she expected him to pay child support. French did not confirm or deny that he was the father. During a subsequent telephone call French told Wilson, "I'm not paying for any child support for a child's that's not mine." Wilson did not contact French during the pregnancy. She also did not contact French when she went to the hospital to give birth to a male child, M.W., born June 17, 1993. Wilson did not list French's name as the father of the child on the birth certificate.

In 1995, French offered to send Wilson money if she did not file for child support. When French never sent any money, Wilson called the Child Support Enforcement Department of the Buchanan County Prosecutor's Office (Department). The Department contacted French, however, he was uncooperative. The Department subsequently filed a petition to establish paternity. Although French was served with an order compelling him to submit to genetic testing, he failed to appear. A judgment was then entered declaring French to be the father of M.W. and ordering him to pay $431 per month in child support. A copy of the judgment was sent to French by certified mail, but was returned unclaimed after three unsuccessful attempts to deliver it to him.

French did not make any voluntary support payments, however, one payment of $182 was credited to his account which was deducted from his state tax refund through a tax intercept in August 1998.

The State charged French with felony nonsupport in two separate cases. In CR399-329F, Count I, he was charged with nonsupport during the six months of January 1, 1998 through June 30, 1998, within the twelve-month period of July 1, 1997 through June 30, 1998. French was charged in CR399-330F, Count II, with nonsupport during the six months of July 1, 1998 through December 31, 1998, within the twelve-month period of January 1, 1998 through December 31, 1998. The cases were consolidated for trial and for this appeal.

After a jury trial, French was found guilty of both counts. The jury recommended a fine and six months in the county jail on both counts. The trial court sentenced him to two six-month sentences in the county jail and ordered the sentences to be served consecutively. The court did not impose a fine on either count.I.

French argues in his first point that the trial court erred in sentencing him for two separate counts of felony nonsupport under section 568.040, as it violated his right to be free from Double Jeopardy as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution² in that the State attempted to prosecute separately, in two counts, behavior that constitutes a continuing course of conduct -French's failure to provide support to M.W. It appears that the issue of whether the State may impose multiple punishments under section 568.040 for the nonsupport of a single child is a case of first impression.

Here, the State charged French with felony nonsupport in two separate cases for two different time periods. The Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998). The Fifth Amendment is made applicable to the states through the Fourteenth Amendment. McTush, 827 S.W.2d at 186 (citing Benton v. Maryland, 89 S.Ct. 2056, 2062 (1969)).

The Double Jeopardy clause protects against multiple punishments or prosecutions for the same offense. Id. Thus, multiple convictions are only permissible if the defendant has "in law and in fact committed separate crimes." State v. Flenoy, 968 S.W.2d at 143 (citing State v. Snider, 869 S.W.2d 188, 195 (Mo. App. 1993)). Double Jeopardy analysis regarding multiple punishments is limited to determining whether cumulative punishments were intended by the legislature. McTush, 827 S.W.2d at 186 (citing Missouri v. Hunter, 103 S.Ct. 673, 678-80 (1983)). "Legislative intent regarding cumulative sentences is first determined by examining the statute under which Defendant was convicted." State v. Murphy, 989 S.W.2d 637, 639 (Mo. App. 1999).

Section 568.040 states, in pertinent part:

1. [A] parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child. . ..* * * *4. Criminal nonsupport is a class A misdemeanor, unless the person obligated to pay child support commits the crime of nonsupport in each of six individual months within any twelve-month period, or the total arrearage is in excess of five thousand dollars, in either of which case it is a class D felony.

Because section 568.040 does not state whether the legislature intended cumulative punishment, this court looks to section 556.041, the general cumulative punishment statute. State v. Elliott, 987 S.W.2d 418, 421 (Mo. App. 1999). Section 556.041 provides:

When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:

(1) One offense is included in the other, as defined in section 556.046; or

(2) Inconsistent findings of fact are required to establish the commission of the offenses; or

(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

The only subsection applicable to the facts of this case under section 556.041 is subsection (4). Thus, this court must determine whether: 1) criminal nonsupport is defined as a continuing course of conduct; 2) French's course of conduct was uninterrupted; and 3) section 568.040 provides that specific periods of nonsupport constitute separate offenses.

Although nonsupport is not defined in section 568.040 as a continuing course of conduct, in State v. Davis, this court found that "[t]he crime of nonsupport is continuous and a 'violation at any time within the limitation period' justifies a conviction." 675 S.W.2d 410, 417 (Mo. App. 1984) (citing State v. Arnett, 370 S.W.2d 169, 174 (Mo. App. 1963)). Other Missouri cases list nonsupport as an example of an offense which involves a continuous course of conduct. State v. Morrow, 888 S.W.2d 387, 393 (Mo. App. 1994); State v. Pacchetti, 729 S.W.2d 621, 627 (Mo. App. 1987). French's conduct could also be classified as uninterrupted because he never made any voluntary child support payments.³

Section 568.040 also does not expressly provide that specific periods of nonsupport constitute separate offenses. When ambiguity exists in criminal statutes, they are to be construed more strictly against the State. State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999). Section 568.040.4 states:

Criminal nonsupport is a class A misdemeanor, unless the person obligated to pay child support commits the crime of nonsupport in each of six individual months within any twelve-month period, or the total arrearage is in...