State v. Holmes

• Decision Date: 11 June 2013
• Docket Number: No. SC 92648.,SC 92648.
• Citation: 399 S.W.3d 809
• Parties: STATE of Missouri, Respondent, v. Joseph N. HOLMES, Appellant.
• Court: Missouri Supreme Court

399 S.W.3d 809

STATE of Missouri, Respondent,
v.
Joseph N. HOLMES, Appellant.

No. SC 92648.

Supreme Court of Missouri,
En Banc.

June 11, 2013.

[399 S.W.3d 810]

James A. Burt, Ozark, for Holmes.

Jonathan D. Osborne, Springfield Regional Prosecutors' Child Support Office, Springfield, for the State.

LAURA DENVIR STITH, Judge.

Joseph N. Holmes appeals his conviction for misdemeanor criminal nonsupport. He argues the trial court erred in overruling his motion for judgment of acquittal claiming section 568.040, RSMo. Supp.2011, is unconstitutional because it makes lack of good cause an element of the crime of criminal nonsupport but then shifts the burden of proving good cause to the defendant, thereby violating his due process rights under the Fourteenth Amendment to the United States Constitution by forcing him to disprove an element of the offense.

Mr. Holmes misconstrues section 568.040. As in effect in 2011 when his crime occurred, section 568.040.1 set out the elements of the crime of criminal nonsupport by stating, “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....” It thereby makes lack of good cause an element of the offense.¹

Elements of an offense must be proved beyond a reasonable doubt. While, as Mr. Holmes notes, section 568.040.3 creates an overlapping option for the defendant to put on an affirmative defense of good cause for failure to provide adequate support under a preponderance of the evidence standard, this second provision does not negate the express requirement in paragraph 1 making lack of good cause an element of the

[399 S.W.3d 811]

offense that the State must prove beyond a reasonable doubt. The State conceded at trial that it had the burden of proving lack of good cause beyond a reasonable doubt under paragraph 1 of the statute, regardless of what the statute also may say about affirmative defenses. While the rationale for these overlapping sections is elusive, the wisdom of a statute permitting a defendant to offer evidence in support of an affirmative defense that duplicates an element of the crime is not before the Court and does not raise a constitutional issue. This Court also rejects Mr. Holmes' argument that the State failed to present sufficient evidence from which the judge reasonably could have concluded that Mr. Holmes' failure to pay the ordered child support was “without good cause.” Affirmed.

I. STATEMENT OF FACTS

The evidence, considered in the light favorable to the judgment, shows that Mr. Holmes and his wife, Montez Holmes, had a son, J.K.H. Mr. Holmes was self-employed as a tile setter. He also owned rental property, some of which he acquired prior to and some during the marriage.

The parties later separated. Because Ms. Holmes resided in Rolla, where J.K.H. was enrolled in school, and because Mr. Holmes resided in Christian County, Ms. Holmes became the custodial parent. When Ms. Holmes relocated to Christian County, she and Mr. Holmes arranged for the child to live with Ms. Holmes at least four days a week and with Mr. Holmes for two to three days a week. In February 2010, Ms. Holmes applied for Medicaid for J.K.H., and, in that process, learned that she could file a claim for child support with the Missouri Department of Social Services, Family Support Division. See§ 454.470.4, RSMo. Supp.2011. Once she did so, the director of the family support division issued a notice and finding of financial responsibility to Mr. Holmes. Because Mr. Holmes did not file a timely response setting forth objections and requesting a hearing, the director entered an administrative order requiring Mr. Holmes to pay $428 in monthly child support, which became effective in November 2010.

Mr. Holmes did not comply with this child support order. The charges that are the basis of this case do not flow from that failure to comply, however, but from Mr. Holmes' alleged failure to comply with section 568.040, which in 2011 stated that 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....” § 568.040.1. Ms. Holmes claimed that Mr. Holmes failed to provide any monetary support for their child during the months of March, April and May 2011. Accordingly, the State charged Mr. Holmes with the Class A misdemeanor of criminal nonsupport for failure to provide necessary support for his son for the months of March through May 2011.

At trial, the State presented evidence that Mr. Holmes was self-employed. Additionally, the child's mother testified that Mr. Holmes owned rental property and collected rent on that property during the months in which he did not pay any child support. She also testified that he was both physically and mentally able to work, yet he did not provide any clothing, medical care or health insurance during the three months at issue. She further testified he told her that “he did not want the State involved” and that he would fight any effort to enforce the child support order “as much as he possibly can.” Finally, she said that he told her:

he would pay me what he could pay me when he could pay me. And I said that unfortunately [the child's needs] ...

[399 S.W.3d 812]

don't come up when convenient, so child care still is required, so I need something to help. And he said, “Well, I'll pay you half of what his needs are.”

She did not agree to this suggested division of the costs, and he paid her nothing.

At trial, Mr. Holmes did not raise the affirmative defense of good cause and did not testify. Rather, at the conclusion of the bench trial, he filed a motion for judgment of acquittal, asserting that section 568.040 violates the due process clause of the Fourteenth Amendment by unconstitutionally shifting the burden of proof to the defendant to show good cause for not making the required payments when lack of good cause is an element of the offense.

The State conceded that it bore the burden of proof to show that Mr. Holmes acted without good cause in failing to provide child support during the three months in question and that it believed it had met this burden of proof through the testimony summarized above. The trial court agreed and entered judgment against Mr. Holmes. The court sentenced Mr. Holmes to 180 days incarceration, suspended execution of sentence and placed Mr. Holmes on two years of unsupervised probation.

Mr. Holmes now appeals his conviction for misdemeanor criminal nonsupport, arguing that the trial court erred in overruling his motion for judgment of acquittal based on the constitutional argument described. Because this appeal directly challenges the validity of section 568.040, this Court has exclusive jurisdiction pursuant to Article V, section 3 of the Missouri Constitution.

II. STANDARD OF REVIEW

To determine whether the evidence presented to the court was sufficient to support a conviction and to withstand a motion for judgment of acquittal, 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,...