State v. Price

• Decision Date: 10 December 2002
• Docket Number: No. 01-686.,01-686.
• Citation: 59 P.3d 1122,2002 MT 284
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael James PRICE, Defendant and Appellant.
• Court: Montana Supreme Court

59 P.3d 1122

2002 MT 284

STATE of Montana, Plaintiff and Respondent, v. Michael James PRICE, Defendant and Appellant.

No. 01-686.

Supreme Court of Montana.

Submitted on Briefs July 2, 2002.

Decided December 10, 2002.

Chad Wright, Appellate Defender Office, Helena, Montana, For Appellant.

Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Brant S. Light, Cascade County Attorney, John W. Parker, Deputy County Attorney, Great Falls, Montana, For Respondent.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Appellant, Michael Price, was charged with nonsupport, a felony, in violation of § 45-5-621, MCA (1997), in the District Court for the Eighth Judicial District in Cascade County. He was convicted following trial by jury and appeals from that conviction. We reverse the judgment of the District Court and remand to the District Court for a new trial.

¶ 2 Price raises six issues on appeal. We conclude that the following issues are all that need be addressed:

¶ 3 1. Was there sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Price was capable of providing support?

¶ 4 2. Did Instruction No. 6 violate Price's right to be free from ex post facto application of new laws that increase punishment?

¶ 5 3. Did Instruction No. 7 impermissibly shift the burden of proof of an essential element of the offense to Price?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Michael James Price is the natural father of a child born on July 15, 1984. Price and the child's mother, the former Sharon Newman, entered into a Child Custody and Support Agreement in March of 1988. Pursuant to the agreement, Price was required to pay Newman $125 per month for child support while he was unemployed. That amount increased to $228 for late payments. When he secured employment, it was agreed that his child support obligation would increase to $228 per month or the adjusted amount pursuant to the Child Support Guidelines, whichever was greater.

¶ 7 In January 1989, approximately nine months after entering the agreement, Price began serving a five-year sentence in a federal penitentiary for drug distribution. During his incarceration, Price estimates he made about $5 a month and was unable to make child support payments. His payments increased to $228 per month pursuant to the Child Custody and Support Agreement while he was in prison and accrued until he was released from prison on April 17, 1994. The Child Support Enforcement Division (CSED) made no attempt to collect child support payments from Price while he was incarcerated.

¶ 8 In March of 1994, Nancy Steffens from CSED calculated that Price's child support obligation was $228 per month pursuant to the 1988 Child Custody and Support Agreement and $706 per month for the $16,944, which was past due at the time. She did not know whether he was capable of making the payments or what his income was at that time. Nevertheless, Steffens attempted to garnish Price's wages because he failed to make voluntary payments.

¶ 9 The child was adopted by his stepfather on May 29, 1996. At that time, Price's obligation for additional child support ended. However, his obligation to pay the past due child support continued, as did CSED's attempts to collect it. CSED was able to collect $3394.55 through the garnishment of Price's wages and unemployment benefits.

¶ 10 Price's post-release employment is not well established. He volunteered little information to the CSED about his employment between 1988 and 1996 and it remains unclear exactly how many jobs he held during this period. Steffens testified that Price held numerous jobs following his release in April of 1994. However, there is no indication of when or how long Price was employed, or what his income was while employed at the various jobs referred to by Steffens. Price admitted that he earned about $200 per week for around one year while working for Skates Communication in 1994 and $22 per hour while working for a short period of time at Talcott Construction. It is not clear whether Price was employed with Talcott before or after his child was adopted. From January of 1996 to May of 1996, Price received $372 per month as unemployment benefits.

¶ 11 On May 14, 1999, Price was charged by Information with committing the offense of Nonsupport, a Felony, in violation of § 45-5-621, MCA (1997), for the period between March 1988 and May 1996. A unanimous jury found Price guilty on May 21, 2001, and Price received the two-year maximum sentence pursuant to the District Court's Judgement of Conviction and Sentence issued on August 14, 2001.

DISCUSSION

ISSUE 1

¶ 12 Was there sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Price was capable of providing support?

¶ 13 Price contends that the State did not produce sufficient evidence to prove that he was financially capable of making payments during the period in which nonsupport was a felony.

¶ 14 We review the sufficiency of evidence to support a verdict to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont. 472, ¶ 7, 2 P.3d 242, ¶ 7. This familiar standard pays proper deference to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts which are proven. State v. Brown (1989), 239 Mont. 453, 457, 781 P.2d 281, 284 (citation omitted).

¶ 15 Section 45-5-621, MCA (1997), provides in relevant part:

(1) A person commits the offense of nonsupport if the person fails to provide support that the person can provide and that the person knows the person is legally obliged to provide to a spouse, child, or other dependent.

....

(3) If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control. In determining ability to pay, after an allowance for the person's minimal subsistence needs, the support of a spouse, child, or other dependent has priority over any other obligations of that person.

....

(7)(b) A person convicted of nonsupport who has failed to provide support under a court order or administrative order for 6 months or more or who has failed to provide support in a cumulative amount equal to or in excess of 6 months' support shall be fined not to exceed $5,000 or be imprisoned in the state prison for a term not to exceed 2 years, or both. [Emphasis added.]

¶ 16 Nonsupport became a felony in 1993 when subsection 7(b) was added to the offense of nonsupport. Section 45-5-621(7)(b), MCA (1993). The prohibition against ex post facto application of the law, discussed in the next section of this Opinion, limits the time period during which the felony Price was charged with could actually have been committed to acts occurring after October 1, 1993, and prior to May 29, 1996, the date on which his child was adopted. Therefore, only evidence of ability to provide support subsequent to October 1, 1993, and prior to May 29, 1996, is relevant to Price's conviction.

¶ 17 Price maintains that because the definition of "support obligation" in § 40-5-201(13), MCA (1997), includes the amount created by a failure to provide support or the amount owed pursuant to a support order, the ability to pay support means the ability to meet his total support obligation, which in his case was $924 per month. He contends that because the evidence at trial was insufficient to prove that he could meet his $924 per month support obligation, he could not be convicted of violating § 45-5-621, MCA (1997).

¶ 18 However, Price's interpretation is belied by the plain language of the statute and contravenes the purpose of the statute. The relevant language reads "the person fails to provide support that the person can provide...." Section 45-5-621(1), MCA (1997). The purpose of § 45-5-621, MCA (1997), is to compel an obligated parent to perform his or her duty and pay support that he or she is capable of paying. A defendant who is not capable of paying the entire amount of his support obligation is not immune from prosecution for nonsupport if he failed to pay support even though he could have paid, whether that amount was $50 or $500.

¶ 19 The State produced evidence, and Price testified, that he was employed part of the time between 1994 and 1996. The evidence was that Price made $200 per week for about a year starting at some point in 1994. However, Price made no voluntary payments between April 17, 1994, and January 1, 1996, when CSED began garnishing his unemployment benefits. Based on this evidence, we conclude that a rational trier of fact could have found that Price had the ability to pay some support, even if the amount was limited, and that satisfied the State's burden to prove that Price was able to pay child support.

ISSUE 2

¶ 20 Did Instruction No. 6 violate Price's right to be free from ex post facto application of new laws that increase punishment?

¶ 21 Price contends that the manner in which the felony nonsupport statute was applied to his case violated his fundamental constitutional right to be free from ex post facto laws. He maintains that it is impossible to determine whether the jury unanimously agreed that he violated the law after October 1, 1993, the time when nonsupport became a felony, because he was charged with continuous conduct from March of 1988 through May of 1996. Price further argues that this Court should review the issue under the plain error doctrine, in spite of his trial attorney's failure to contemporaneously object, because it implicates Price's fundamental constitutional rights. In the alternative, he asks that we determine whether his attorney was ineffective for failing to...