State v. Nichols

• Decision Date: 17 March 1987
• Docket Number: No. 50626,50626
• Citation: 725 S.W.2d 927
• Parties: STATE of Missouri, Respondent, v. Thomas D. NICHOLS, Appellant.
• Court: Missouri Court of Appeals

Page 927

725 S.W.2d 927

STATE of Missouri, Respondent, v. Thomas D. NICHOLS, Appellant.

No. 50626.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 17, 1987.

Walter D. McQuie, Jr., Montgomery City, for appellant.

Daryl K. Hartley, Asst. Pros. Atty., Union, for respondent.

SATZ, Judge.

This is a court tried case. Defendant, Thomas D. Nichols, was convicted of "criminal nonsupport", § 568.040 RSMo.1978, and was sentenced to 180 days in jail. Defendant appeals. We reverse.

Defendant raises several points on appeal. We need only address the point that is dispositive of this case. Defendant contends the state failed to make a submissible case. We agree.

To resolve the issue of submissibility, we view the evidence and inferences in the light most favorable to the verdict and disregard all contrary evidence and contrary inferences. E.g., State v. Overkamp, 646 S.W.2d 733, 736 (Mo.1983). We do not weigh the evidence but determine whether the evidence was sufficient for a reasonable fact finder to have found the defendant guilty as charged. E.g., State v. Porter, 640 S.W.2d 125, 126 (Mo.1982). If the conviction is based solely upon circumstantial evidence, the operative facts supporting the conviction must be consistent with each other, consistent with guilt, inconsistent with any reasonable theory of innocence and must exclude every reasonable hypothesis of innocence. E.g., State v. Prier, 634 S.W.2d 197, 199 (Mo. banc 1982).

Under our criminal nonsupport statute, "a parent commits the crime of nonsupport if [the] parent knowingly fails to provide, without good cause, adequate support which [the] parent is legally obligated to provide for his minor child...." § 568.040.1. " 'Support ' means food, clothing, lodging, and medical or surgical attention;" § 568.040.2(1). (emphasis in statute) The object of this statute is to compel recalcitrant parents to fulfill their obligations of care and support. § 568.040, Comment to 1973 Proposed Code. Parents have a legal obligation to provide for their children, and, under this statute, a failure to do so without good cause is an offense against the state. E.g., State v. Davis, 469 S.W.2d 1, 3 (Mo.1971). Prosecution under the statute, however, is not a proceeding to enforce the terms of a dissolution decree. Id. ¹

Defendant's argument--the state failed to make a submissible case--focuses on that part of the information charging him with failure to provide his daughter, Tammy Jean Nichols (Tammy), adequate support "between March 9, 1984 and March 9, 1985". ² To prove this failure, the state relied on two sources of evidence: the testimony of Tammy's mother, defendant's ex-wife, Ruth Ann Nichols (Ruth), and court records which do not reflect any payment by defendant of decretal support during the period in question.

During the marriage of Ruth and defendant, Tammy was born. The marriage was dissolved on October 1, 1974, and Ruth was awarded custody of Tammy. Defendant was ordered to pay child support for Tammy, and these payments were to be made into the registry of the court. ³

According to Ruth, during the period in question, March 9, 1984 to March 9, 1985, Tammy was attending college in Cape Girardeau. While at school, she lived at the school dormitory. She received a grant which paid for part of her room and board. Ruth "paid" the remaining part of the room and board. Ruth also provided financial support for Tammy, while Tammy was at school, by sending her money to "rent books", to buy materials for classes and to pay for meals on the weekends. Ruth either furnished Tammy's transportation or paid for her transportation to and from Cape Girardeau. Ruth received no decretal child support payments from defendant during the period in question, and court records admitted over objection showed defendant made no decretal child support payments into the registry of the court during that period. ⁴

This was the extent of the state's evidence on the issue of defendant's "support". The state did not call Tammy as a witness. Thus, there was no direct evidence that defendant failed to provide Tammy with "adequate support". The prosecutor did attempt to elicit from Ruth her belief as to whether defendant contacted or made any contribution to Tammy's support during the period in question. Defendant's objections to these questions as hearsay were properly sustained. ⁵ Stripped to its essentials, the state's evidence showed Ruth had contributed to Tammy's support during the period in question and also showed, during that year, defendant had not made decretal child support payments into the registry of the court.

Based upon this evidence, the trial court "found", among other things, that

"The State need not, as part of its prima facie case, prove ... the defendant failed to provide adequate support to Tammy ... directly, rather than through her mother or the registry of the Court."

Certainly, the state may make a submissible case by circumstantial as well as direct evidence. See, e.g., State v. Wade, 696 S.W.2d 860, 862 (Mo.App.1985). The state's circumstantial evidence here, however, failed to make a submissible case.

Arguably, the state's burden of proving defendant failed to provide adequate support for Tammy is the burden of proving a negative. ⁶ This is not an unacceptable burden in criminal nonsupport cases. This burden of the state has been recognized and approved. E.g., State v. Arnett, 370 S.W.2d 169, 173 (Mo.App.1963); State v. Hobbs, 220 Mo.App. 632, 291 S.W. 184, 186 (1927). In addition, prosecution under the criminal nonsupport statute is not a proceeding to enforce the terms of a dissolution decree. State v. Davis, 469 S.W.2d at 3. Thus, although defendant's failure to pay decretal child support payments to Ruth and the court records showing his failure to pay decretal support payments are relevant to the issue of defendant's failure to meet his common law duty of support, this evidence is not determinative of this issue here. ⁷ Quite simply, the narrow issue is whether Ruth's testimony about her contribution to Tammy's support and the court records are sufficient evidence for a fact finder to find beyond a reasonable doubt that defendant failed to provide Tammy "adequate support" during the year in question.

What is "reasonable doubt"? For years, courts have wrestled with definitions of "reasonable doubt" and consistently have been pinned to the mat. See, e.g., 9 Wigmore, Evidence § 2497 (Chadbourn rev. 1981). "Reasonable doubt", like its civil counterparts, "preponderance of the evidence" and "clear, cogent and convincing", represent "an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although [these burdens of proof] are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions." In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368, 379 (1970) ( Harlan, J., concurring). In Missouri, we at first defined "reasonable doubt" for the fact finder, E.g., State v. Drake, 298 S.W.2d 374, 377 (Mo.1957); State v. Marshall, 354 Mo. 312, 189 S.W.2d 301, 306 (1945); then, we prohibited any definition more specific than the term itself, E.g., State v. Lasley, 583 S.W.2d 511, 514 (Mo. banc 1979); and, then, once again, we defined it for the fact finder:

"A reasonable doubt is a doubt based upon reason ...", and "[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt." See MAI-Cr2d 2.02, (revised, effective Oct. 1, 1984); See also, MAI-Cr3d 302.04.

The state's evidence here does leave "a doubt based upon reason ..." and does not leave a reasonable fact finder "firmly convinced of defendant's guilt". In reviewing the evidence, we must discount the inevitable suspicions raised by defendant's failure to testify as well as suspicions raised by the state's failure to call Tammy as a witness. With these discounts in place, the state established: (1) Ruth "paid for" Tammy's room and board, books, weekend meals and transportation; (2) defendant did not pay decretal child support to Ruth for Tammy; (3) defendant did not pay decretal child support into the registry of the court. The evidence, however, did not establish: (1) whether defendant also provided room...