State v. Latall

• Decision Date: 16 December 2008
• Docket Number: No. SC 89322.,SC 89322.
• Citation: 271 S.W.3d 561
• Parties: STATE of Missouri, Respondent, v. Robert LATALL, Jr., Appellant.
• Court: Missouri Supreme Court

271 S.W.3d 561

STATE of Missouri, Respondent, v. Robert LATALL, Jr., Appellant.

No. SC 89322.

Supreme Court of Missouri, En Banc.

December 16, 2008.

Daniel Dodson, Jefferson City, Mo, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Doug Noland, Greg A. Perry, Ashley Harms, Office of Missouri Attorney General, Jefferson City, MO, for Respondent.

MICHAEL A. WOLFF, Judge.

Introduction

Robert Latall's appeal of his misdemeanor nonsupport conviction raises the question of whether Latall "injected the issue" of good cause, within the meaning of the statute, thus requiring the state to prove beyond a reasonable doubt that he lacked good cause in failing to pay child support.

This is a criminal case. Unlike a civil action for child support, the criminal statute places a burden on the state to prove its case beyond a reasonable doubt. The question of whether Latall injected the good cause issue into the case is an issue of law. From this Court's review of the record, Latall as a matter of law injected the issue of good cause into the case because his contention was "supported by evidence."

The defendant having injected good cause, the state's evidence is reviewed for sufficiency. The evidence introduced by the state as well as the defendant's own testimony is insufficient to prove beyond a reasonable doubt that the defendant lacked good cause for failing to pay child support.

Facts

Latall was charged by information with the class A misdemeanor of criminal nonsupport in violation of section 568.040¹. At trial, Latall testified in his own defense and indicated that, at the time that he ceased making child support payments in 2004, he was unemployed.

Latall originally worked for Natsch & Company, a sheet metal company in Cole County, where Latall held a management position, made a "hundred-some-thousand a year," and had a 401(k) valued at one time at $180,000. Latall left Natsch for a job in Kansas City, accepting that job offer over two competing offers from sheet metal companies. The Kansas City company closed shortly after employing Latall. Latall then reapplied to the two other companies, but both positions had been filled. Latall applied "at every place [he] could" in Kansas City but was unable to find work in his field. Finally, Latall took a carpentry job making $10 per hour. Throughout this time, Latall continued to make child support payments.

In September 2004, after several unsuccessful attempts at finding employment in the sheet metal field, Latall withdrew a total of $72,000 from his 401(k) in order to buy a bar in Grain Valley, outside of Kansas City. Latall testified that at the time he purchased the bar, the bar was not making money. Since purchasing the bar, Latall has not been able to turn a profit, although he offered no financial records to confirm that testimony. Latall purchased a home in Grain Valley at the time he opened the bar, but he could not afford the payments on the home, so he sold it and moved into a smaller house. Latall was unable to make payments on the smaller home. The bank then foreclosed. After losing his home, Latall moved into a room in the bar.

Latall testified that he has tangible assets including some furniture and his truck, which are valued at a total of less than $3,000. He sometimes employs four persons to work in the bar, although he often works alone because he cannot afford to pay employees. Latall testified that he works 18 hours a day and eats sandwiches made at the bar. He has received shutoff notices for the gas and electric bills for the bar and has paid part of a $3,219 utility bill to keep the utilities turned on. At trial, the child's mother testified that since entry of the support order in February 2000, she has received $58,878.56 in child support payments, all made before Latall's recent unemployment and venture into the bar business.

The trial court found Latall guilty and sentenced him to two years of unsupervised probation. Latall was ordered, as a condition of probation, to offer the court five job contacts for prospective employment and to make $800 monthly payments to the child's mother. Latall failed to meet the requirements, and his probation was revoked. The court imposed a 90-day jail term but suspended execution of the sentence and placed Latall on two additional years of supervised probation. He again was ordered to make $800 monthly payments. Latall appealed his conviction, arguing that he had good cause for his failure to pay because of his financial inability to pay child support. After opinion in the court of appeals, this Court granted transfer and has jurisdiction. Mo. Const. art. V, section 10.

Analysis

The criminal nonsupport statute is straightforward as to the definition of the crime and the meaning of "good cause." The procedural aspects of the law — in particular, what it means for a defendant to "inject" the issue of good cause and the consequent burden on the state to prove the lack of good cause — can be a source of confusion. Section 568.040.1, the definition of the crime of nonsupport, provides that a parent commits the crime "if such parent knowingly fails to provide, without good cause, adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law."

The statute states that "`[g]ood cause' means any substantial reason why the defendant is unable to provide adequate support. Good cause does not exist if the defendant purposely maintains his inability to support." Section 568.040.1(2).

On the procedural question raised by this appeal, the statute mandates that "[t]he defendant shall have the burden of injecting the issues [of good cause]." Section 568.040.3. The general statute applicable to this crime and others, section 556.051, specifies the meaning of "injecting the issue" as follows:

When the phrase "The defendant shall have the burden of injecting the issue" is used in the code, it means (1) The issue referred to is not submitted to the trier of fact unless supported by evidence; and (2) If the issue is submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue. (emphasis added).

This Court has described the "supported by the evidence" requirement in subdivision (1) for injecting an issue as analogous to the requirements for meeting the "burden of production." See State v. Strubberg, 616 S.W.2d 809, 816 (Mo. banc 1981) (discussing the requirements for injecting an issue and holding that "defendant merely has the burden of production or the burden of injecting the issue ... into the case," referring to section 556.051, quoted above).

"The term `burden of production' tells a court which party must come forward with evidence to support a particular proposition, whereas `burden of persuasion' determines which party must produce sufficient evidence to convince a judge that a fact has been established...." 29 AM.JUR.2D Evidence Section 171 (2008).

Subdivision (2) of section 556.051 places the burden of persuasion on the state. Once the defendant has injected the issue of good cause, section 556.051 imposes on the state the burden of proving, beyond a reasonable doubt, that the defendant did not have good cause for failing to make support payments. To paraphrase the statute, any reasonable doubt as to the issue of whether the defendant did not have good cause must result in acquittal.

In its analysis, the state misinterprets the burden imposed by the statute. The state argues that because there was no substantial evidence of good cause, the issue of good cause was not injected into the case. In so reasoning, the state makes two errors. First, the state collapses the statutory definition of "good cause" and the evidentiary burden of proof spelled out in section 556.051. Section 568.040.1(2) defines "good cause" as meaning a substantial reason for failure to pay. The state has combined that definition with the statutory burden of persuasion in section 556.061, which requires proof beyond a reasonable doubt — the substantial evidence requirement to which the state mistakenly refers. Second, it follows from this error that the state would place the burden of persuasion on the wrong party. This burden actually rests on the state, not the defendant. Section 556.061.

The defendant does not have to produce substantial evidence of good cause to inject the issue. Nor must the defendant prove good cause with substantial evidence. Defendant's burden is merely to produce evidence of good cause. Once that is done, the state must prove that the defendant did not have good cause and must do so beyond a reasonable doubt.²

In the present case, the trial court did not enter findings of fact, nor did Latall request them. During sentencing, the trial court's only comment about Latall's financial condition was as follows:

Well, I don't want to dabble in business practices, but it's not necessarily true [that if Latall was "forced to walk away from that business, he is just utterly screwed"]. He needs to walk away from that investment and still be employed in the field in which he's trained, which is a highly-paid field. I know he testified about how dangerous it is to have managers, ones that you can trust, but that might be the only solution to attempt to get somebody to run that business so you don't lose it. And work there as much as you can. But also find — show that you're making sincere efforts to find employment in the lucrative field in which you're trained.

The trial court expressed no legal conclusion as to whether the issue of good cause had been injected. The issue of whether the defendant met his burden of production is a question of law, not of fact, and as such, this Court reviews that issue de novo. See 29 AM.JUR.2D Evidence Section 171 (2008). ("Whether a party has satisfied its burden of production is not an issue of fact for the jury; it is an issue of law.").

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