State v. Rupert

• Decision Date: 23 February 1990
• Docket Number: No. 63753,63753
• Citation: 14 Kan.App.2d 229,787 P.2d 300
• Parties: STATE of Kansas, Appellee, v. Kim Earl RUPERT, Appellant.
• Court: Kansas Court of Appeals

Page 300

787 P.2d 300

14 Kan.App.2d 229

STATE of Kansas, Appellee, v. Kim Earl RUPERT, Appellant.

No. 63753.

Court of Appeals of Kansas.

Feb. 23, 1990.

Syllabus by the Court

1. In a criminal prosecution, the due process clause of the Fourteenth Amendment of the Constitution of the United States requires that the defendant be proven guilty beyond a reasonable doubt of each element of the crime charged.

2. As an essential element of due process guaranteed by the Fourteenth Amendment, a person shall not be made to suffer the onus of a criminal conviction except upon sufficient proof--defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense charged.

3. In a prosecution for criminal nonsupport of a child under K.S.A.1989 Supp. 21-3605, the paternity of the child, if not expressly admitted by the defendant, is an essential element of the crime charged and must be proved beyond a reasonable doubt.

4. Where paternity is an essential element of the crime of nonsupport of a child, the failure of the instructions to require proof of that fact beyond a reasonable doubt constitutes a denial of due process of law under the United States and Kansas Constitutions and is reversible error.

5. Any application of K.S.A.1989 Supp. 21-3605 relating to proof of paternity which permits proof of an essential element of a crime by any standard other than beyond a reasonable doubt is constitutionally impermissible.

Thomas Jacquinot, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Brenda Gillette, Ellen Mitchell, Asst. County Attys., and Robert T. Stephan, Atty. Gen., for appellee.

Before LEWIS, P.J., and BRISCOE and ELLIOTT, JJ.

LEWIS, Presiding Judge:

This appeal is from the jury conviction of the defendant/appellant of the crime of nonsupport of a child as defined by K.S.A.1989 Supp. 21-3605.

The appellant contends that his conviction should be reversed because the jury was permitted to find one of the essential elements of the crime, the element of parentage, by a preponderance of the evidence instead of beyond a reasonable doubt. We agree with the contentions of the appellant in this regard and reverse his conviction and remand for a new trial.

The crime of which appellant was convicted is defined by K.S.A.1989 Supp. 21-3605, which states in pertinent part:

"(1)(a) Nonsupport of a child is a parent's failure, neglect or refusal without lawful excuse to provide for the support and maintenance of the parent's child in necessitous circumstances.

"(b) As used in this section, 'child' means a child under the age of 18 years and includes an adopted child or a child born out of wedlock whose parentage has been judicially determined or has been acknowledged in writing by the person to be charged with the support of such child.

"(c) At any time before the trial, upon petition and notice, the court may enter such temporary order as may seem just providing for support of such child, and may punish for violation of such order as for contempt.

....

"(e) If the court is satisfied by due proof that, at any time during the period while the obligation to support continues, the defendant has violated the terms of such order, the court may forthwith proceed with the trial of the defendant under the original charge, or sentence the defendant under the original conviction, or enforce the suspended sentence as the case may be.

"(f) A preponderance of the evidence shall be sufficient to prove that the defendant is the father or mother of such child. In no prosecution under this act shall any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife apply, and both husband and wife shall be competent witnesses to testify against each other to any and all relevant matters, including the parentage of such child. Proof of the nonsupport of such child in necessitous circumstances or neglect or refusal to provide for the support and maintenance of such child shall be prima facie evidence that such neglect or refusal is willful.

"(g) Nonsupport of a child is a class E felony." (Emphasis added.)

It is the principal argument of the appellant that, to the extent the statute permits proof of an essential element of the crime by less than the standard of "proof beyond a reasonable doubt," it is unconstitutional and his conviction must be reversed.

It is a cornerstone of constitutional protections afforded to criminal defendants in this state and in these United States that their guilt must be proven "beyond a reasonable doubt." Any instruction to a jury that proof of a defendant's guilt may be established by a lesser burden of proof is constitutionally flawed and will not support a criminal conviction. The Kansas Supreme Court in State v. Douglas, 230 Kan. 744, Syl. p 1, 640 P.2d 1259 (1982), stated: "The Due Process Clause of the Fourteenth Amendment requires that the factfinder rationally find proof beyond a reasonable doubt of each element of the crime charged. Following Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781 (1979)."

Later, in State v. Flinchpaugh, 232 Kan. 831, 835, 659 P.2d 208 (1983), our Supreme Court stated:

"In a criminal prosecution, the defendant must be proven guilty beyond a reasonable doubt of each element of the crime charged. Fourteenth Amendment of the United States Constitution; In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970); State v. Douglas, 230 Kan. 744, 640 P.2d 1259 (1982)."

The United States Supreme Court, in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), explained the basis behind the decision of In re Winship as follows:

"In Winship, the Court held for the first time that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' 397 U.S., at 364 . In so holding, the Court emphasized that proof beyond a reasonable doubt has traditionally been regarded as the decisive difference between criminal culpability and civil liability. Id., at 358-362 . [Citations omitted.] The standard of proof beyond a reasonable doubt, said the Court, 'plays a vital role in the American scheme of criminal procedure,' because it operates to give 'concrete substance' to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. 397 U.S., at 363 . At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Id., at 372 (Harlan, J., concurring).

"The constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction...