State v. Rupert

• Decision Date: 07 December 1990
• Docket Number: No. 63753,63753
• Citation: 802 P.2d 511,247 Kan. 512
• Parties: STATE of Kansas, Appellee, v. Kim Earl RUPERT, Appellant.
• Court: Kansas Supreme Court

Page 511

802 P.2d 511

247 Kan. 512

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

No. 63753.

Supreme Court of Kansas.

Dec. 7, 1990.

Syllabus by the Court

1. Criminal nonsupport of a child has three essential elements: that the defendant is the parent of a child under eighteen years of age; that the defendant failed, neglected, or refused to provide support and maintenance to the child; and that the child was in necessitous circumstances. K.S.A.1989 Supp. 21-3605(1)(a).

2. A provision in a criminal statute which reduces the standard of proof required of an essential element of the crime charged from beyond a reasonable doubt to a mere preponderance of the evidence is constitutionally void.

3. It is generally recognized that, absent legislative intent to the contrary, where unconstitutional parts of a statute can be readily separated from the remainder of the statute, without affecting the meaning of what remains, the unconstitutional language will be stricken and the constitutional portion will stand.

4. An error of constitutional magnitude should not be treated lightly. Therefore, we may not hold a federal constitutional error harmless unless there is little likelihood, if any, of the error having changed the result of the trial, and we are convinced of such belief beyond a reasonable doubt.

5. Under the facts of this case, the constitutional invalidity of a portion of K.S.A.1989 Supp. 21-3605(1)(f) is harmless error because paternity was not an issue, and requiring proof beyond a reasonable doubt of this fact would not have changed the outcome of the trial.

6. Comments by the prosecutor upon defendant's failure to testify violate the constitutional right against self-incrimination. Mere comment, however, is not a per se violation requiring reversal. Only error which fails to meet the federal standard of harmless error, defined as proof beyond a reasonable doubt that the error did not contribute to the verdict, requires reversal.

7. To determine whether comment by the prosecutor on defendant's failure to testify was harmless, we consider the nature and extent of the comment in comparison to the strength of the evidence of the defendant's guilt. Where the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify, we must find harm.

8. Under the facts of this case, repeated comments by the prosecutor that she objected to the admission of defendant's tax returns because there was no one to lay a foundation and direct comment that she objected to the admission of the evidence if the defendant did not testify had little likelihood of changing the outcome of the verdict in light of substantial evidence of defendant's failure to provide child support and were harmless error.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause and Jessica R. Kunen, Chief Appellate Defender, was with him on brief, for appellant.

Ellen Mitchell, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on brief, for appellee.

HERD, Justice:

This is a criminal action in which the defendant, Kim Earl Rupert, appeals from a jury conviction of criminal nonsupport of a child, K.S.A.1989 Supp. 21-3605(1). Rupert was sentenced to one to two years' imprisonment and was granted a five-year probation subject to special conditions. In addition, Rupert was ordered to pay $100.00 per month child support and $50.00 per month in back child support until the arrearage is paid in full. Rupert appealed his conviction, and the Court of Appeals, finding constitutional infirmity in the standard of proof required under K.S.A.1989 Supp. 21-3605(1)(f), reversed the conviction in 14 Kan.App.2d 229, 787 P.2d 300 (1990). We granted the State's petition for review.

The facts are not in dispute. Kim and Susan Rupert were married in 1976. On January 22, 1980, Kim Rupert adopted J.C. and C.C., Susan's sons from a previous marriage. The Ruperts divorced in 1985, and each was granted residential custody of one child. Kim Rupert was ordered to pay $100.00 per month in child support to commence August 1985.

Rupert has paid $2,728.96 of the $4,100.00 total child support accumulated; $1,371.04 remains in arrears. A complaint of criminal nonsupport was filed in October 1987, and Rupert was convicted as charged.

Rupert contends K.S.A.1989 Supp. 21-3605(1), criminal nonsupport of a child, violates the due process clause of the Fourteenth Amendment and should be held unconstitutional. Rupert asserts the statute is a mix of civil and criminal law that authorizes felonious criminal punishment on a reduced standard of proof.

K.S.A.1989 Supp. 21-3605(1) provides in pertinent part:

"Nonsupport of a child or spouse. (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....

....

"(f) A preponderance of the evidence shall be sufficient to prove that the defendant is the father or mother of such child....

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

It is well established there is a constitutional requirement that every essential element of a criminal charge must be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970); Miles v. United States, 103 U.S. 304, 312, 26 L.Ed. 481 (1881); State v. Douglas, 230 Kan. 744, 745, 640 P.2d 1259 (1982); State v. Furney, 41 Kan. 115, 121, 21 P. 213 (1889). Proof beyond a reasonable doubt reduces the risk of conviction, and the subsequent loss of liberty, based upon a factual error and ensures against the infliction of punishment for a crime not established to a reasonable certainty. In re Winship, 397 U.S. at 363-64, 90 S.Ct. at 1071-72. Thus, proof beyond a reasonable doubt is the decisive difference between criminal culpability and civil liability. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, reh. denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

Criminal nonsupport of a child has three essential elements: that the defendant is the parent of a child under eighteen years of age; that the defendant failed, neglected, or refused to provide support and maintenance to the child; and that the child was in necessitous circumstances. K.S.A.1989 Supp. 21-3605(1)(a). Constitutional mandates require that each element be proven beyond a reasonable doubt. In re Winship, 397 U.S. at 362, 90 S.Ct. at 1071.

K.S.A.1989 Supp. 21-3605(1)(f), however, states that parentage need only be proven by a preponderance of the evidence. Under subsection (f) and the preponderance of the evidence standard of proof set out therein, the jury must be satisfied only to the degree that parentage is more probably true than not true.

Clearly, the reduced standard of proof set out in subsection (f) is violative of the constitutional requirement that every element of a crime be proven beyond a reasonable doubt. The State offers no compelling argument for this court to rule otherwise except to state that high morals and social duties mandate enforcement of the civil liability for support and maintenance. Although the State's argument may have merit, it is not grounds to uphold an unconstitutional provision within a criminal statute. We agree with the Court of Appeals as to the unconstitutionality of K.S.A.1989 Supp. 21-3605(1)(f).

Having found the reduced standard of proof provided in K.S.A.1989 Supp. 21-3605(1)(f) constitutionally void, we must now consider whether the impermissible language is severable from the rest of the statute. It is generally recognized that, where unconstitutional parts of a statute can be readily separated from the remainder of the statute without affecting the meaning of what remains, the unconstitutional language will be stricken and the constitutional portion will stand. State, ex rel. Jordan v. City of Overland Park, 215 Kan. 700, 711, 527 P.2d 1340 (1974). If from examination of the statute it can be said the act would have passed without the objectionable portion and if the statute can carry out the intention of the legislature without the stricken language, the remainder of the statute will stand. State v. Carpenter, 231 Kan. 235, 240, 642 P.2d 998 (1982); Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 588, 618 P.2d 837 (1980).

Striking the sentence "[a] preponderance of the evidence shall be sufficient to prove that the defendant is the father or mother of such child" from K.S.A.1989 Supp. 21-3605(1)(f) does not invalidate the remainder of the statute. The legislative intent of this statute is to provide support for necessitous children and in this endeavor holds...