STATE of Missouri, Respondent, v. Christopher C. CLAYCOMB, Appellant.
No. SC 94526
Supreme Court of Missouri, en banc.
Opinion issued June 30, 2015
Opinion Modified on Court‘s Own Motion August 4, 2015
466 S.W.3d 358
The state was represented by Gregory L. Barnes of the attorney general‘s office in Jefferson City, (573) 751-3321.
Laura Denvir Stith, Judge
Christopher Claycomb appeals his conviction for felony criminal nonsupport under
Although Mr. Claycomb did not file a motion for new trial or otherwise raise his sufficiency claim below, a claim that there is insufficient evidence to sustain a criminal conviction is preserved for review without regard to whether it was raised below.
On the merits, this Court rejects Mr. Claycomb‘s claim that the State presented no evidence as to what would constitute adequate support. The State presented evidence that Mr. Claycomb provided no direct monetary support for his child during the relevant time period although subject to a child support order. While a child support order is not conclusive evidence of what constitutes adequate support, it is some evidence of what is adequate. Further, the provision of no support is evidence of inadequate support.
This Court also rejects Mr. Claycomb‘s argument that the State must present evidence of a lack of in-kind support in order to make a prima facie case of lack of support under
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
Mr. Claycomb and his wife had a son, T.C. In 2004, the marriage was dissolved. The judgment of dissolution required that Mr. Claycomb pay child support in the amount of $247 per month. On June 18, 2009, the State charged Mr. Claycomb with the class D felony of criminal nonsupport under
[K]nowingly failed to provide, without good cause, adequate food, clothing, lodging and adequate medical attention for his minor child, [T.C.], for whom [Mr. Claycomb] was legally obligated to provide such support, in that during said time [Mr. Claycomb] failed to pay any child support in each of six (6) individual months within the 12 month time period August 1, 2005 to July 31, 2006.
At Mr. Claycomb‘s bench trial, the State presented record evidence that, while Mr. Claycomb made the required child support payments for the first year after the dissolution, he stopped making payments from October 2005 until September 2006. The ex-wife testified that T.C. lived with her during the 12-month period from August 1, 2005, to July 31, 2006, and that Mr. Claycomb missed more than six monthly child support payments during that period. The ex-wife also testified that Mr. Claycomb did not make any direct payments to her during that time though she believed he was able to do so, stating:
Q. Now, during the time period from August 1st of 2005 to July 31st of 2006 did the defendant pay you child support each month during that time period?
A. No.
Q. And did he, in fact, miss more than six months out of that 12-month time period?
A. Yes.
Q. And during that time period did he make any direct payments to you for any sort of food, clothing, or lodging for the minor child?
A. No.
Q. And are you aware of anything that would have prevented him—either physically or mentally, during that time period of August 1st, 2005, to July 31st, 2006, that would have prevented him from being able to pay you child support?
A. No.
Mr. Claycomb testified in his own defense that he did not remember whether he worked between August 2005 and July 2006 but thought that he worked construction. Mr. Claycomb testified that he also worked in a bar owned by his girlfriend but said he did not receive a wage for that work. When asked about his child support payment history, Mr. Claycomb said that he “caught all that up” later in 2006 and was “paid up in full up until 2007—July of 2007,” at which point he became unable to work because his “brain bled out” and he developed a seizure disorder.
The records do reflect that, in September 2006, Mr. Claycomb made a $2,964 back payment that satisfied in full the payments he had missed during the 12-month period from August 1, 2005, to July 31, 2006. But Mr. Claycomb admitted that he had missed payments during the time period set out in the information from August 2005 through July 2006:
Q. And you stated that you paid your child support in full up until 2007; is that correct?
A. Yes, ma‘am.
A. I got behind, but I caught all that up and I was paid in full.
Q. So what you‘re stating is there were months where you did not pay but you later paid?
A. Yes, ma‘am.
Mr. Claycomb did not testify about any illness or injury that affected his ability to provide support during the August 2005 through July 2006 period during which the information charged he had failed to support his child.2 Mr. Claycomb was not asked by the prosecution or by his own counsel whether he provided in-kind support, and the record is devoid of evidence that he did so.
The trial court found Mr. Claycomb guilty of the class D felony of criminal nonsupport. The trial court sentenced Mr. Claycomb to four years’ imprisonment, suspended execution of the sentence, and placed Mr. Claycomb on five years’ probation. Mr. Claycomb appeals. Following an opinion by the court of appeals, this Court granted transfer.
II. STANDARD OF REVIEW
Mr. Claycomb argues that he did not need to raise his claim of insufficiency of the evidence below to preserve it or, alternatively, that a claim of insufficiency of the evidence to support the conviction always should be reviewed for plain error. Mr. Claycomb is correct that his claim that the evidence was insufficient to support his conviction is preserved on appeal even if not raised or not timely raised in the trial court.
[A] motion for new trial is not necessary to preserve any matter for appellate review. If a motion for new trial is filed, allegations of error to be preserved for appellate review must be included in a motion for new trial except for questions as to the following: ... [t]he sufficiency of the evidence to sustain the conviction.
(Emphasis added.)3 To the extent that some decisions of the Missouri court of appeals incorrectly may be read to suggest that a sufficiency claim is not preserved (and, therefore, could be reviewed only for plain error) if not included in a motion for new trial, they are overruled because they are inconsistent with
Similarly, this Court long has held that sufficiency claims are considered on appeal even if not briefed or not properly briefed in the appellate courts. See, e.g.,
In reviewing a claim that there was not sufficient evidence to sustain a criminal conviction, this Court does not weigh the evidence but, rather, “accept[s] as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence and inferences.” State v. Latall, 271 S.W.3d 561, 566 (Mo. banc 2008); State v. Reed, 181 S.W.3d 567, 569 (Mo. banc 2006). This Court “asks only whether there was sufficient evidence from which the trier of fact reasonably could have found the defendant guilty.” Latall, 271 S.W.3d at 566.
III. THE EVIDENCE WAS SUFFICIENT TO SUPPORT MR. CLAYCOMB‘S CONVICTION
“Every parent has a legal obligation to provide for his or her children regardless of the existence of a child support order.” Reed, 181 S.W.3d at 570. “Proof of the relationship of parent to child is sufficient to establish a prima facie basis for a legal obligation of support.” Id.
1. ... [A] parent commits the crime of nonsupport 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.
2. For purposes of this section:
...
(3) “Support” means food, clothing, lodging, and medical or surgical attention;
...
4. Criminal nonsupport is a class A misdemeanor, unless the person obligated to pay child support commits the crime of nonsupport in each of six individual months within any twelve-month period, or the total arrearage is in excess of five thousand dollars, in either of which case it is a class D felony.
Therefore, a parent commits the crime of nonsupport if he or she: (1) knowingly fails to provide, (2) without good cause, (3) adequate support (4) that such parent is legally obligated to provide for his or her child or stepchild.
Mr. Claycomb raises two related arguments challenging the sufficiency of the evidence supporting his conviction. First, he asserts that the State failed to prove what constitutes adequate support under the statute because it failed to present evidence as to the amount of T.C.‘s
Second, Mr. Claycomb argues that, even if the State proved that he failed to provide any direct monetary support and failed to make any of his required child support payments for the statutory period, the State was required to present additional evidence that he failed to provide adequate in-kind support. In the absence of such evidence, he argues, the State failed to show criminal nonsupport under
Mr. Claycomb concedes that, through the above-noted evidence, the State proved that for a 10-month period that fell in the 12-month period of August 1, 2005, to July 31, 2006, he neither paid child support nor made direct monetary payments to his ex-wife for the support of T.C. He implicitly acknowledges that if the only issue were monetary payments, the above evidence would be sufficient to make out a prima facie case on these facts.7 But he argues
Although under
In addition, it is self-evident that such a requirement would be unworkable. Requiring the State to present evidence of a negative—that a parent did not provide food or clothing on occasion, or quantifying when such support totals an amount adequate to meet a child‘s needs—is unreasonable. Knowledge about whether such in-kind support was provided most often would be in the hands of the parent charged with non-support. Indeed, the State would have difficulty locating evidence of in-kind support because, by its nature, it is not normally reflected in records and because the person most likely to be aware of it, the defendant, is not required to testify. While, in some instances, the child may be old enough to testify or the other parent might be in a position to negate the provision of in-kind support, in other cases the child or other parent may not be in a position to know who provided what support or to accurately quantify that support.8 Further, a child may not always be legally available to testify or might be subject to unnecessary distress by being required to testify against the child‘s non-supportive parent.
For these reasons, this Court holds that while evidence that the charged parent did provide in-kind support would be relevant and admissible, it is not the State‘s burden to introduce it to make a prima facie case where, as here, the State presented evidence that Mr. Claycomb failed to make any direct or child support payments. This is not unjust, for evidence of in-kind support would be most available to the charged parent, while it would often be difficult or impossible for the State to prove a negative.
Evidence was presented that Mr. Claycomb provided no monetary support of any kind during the charged time period. While Mr. Claycomb would have been entitled to present evidence that he provided
IV. CONCLUSION
Russell, C.J., Fischer, Wilson, JJ, concur; Breckenridge, J., concurs in part and dissents in part in separate opinion filed; Draper and Teitelman, JJ, concur in opinion of Breckenridge, J.
Patricia Breckenridge, Judge
I believe the majority opinion correctly states the proper standard of review for a claim that the evidence is insufficient to support a conviction. Accordingly, I concur in the majority opinion‘s holdings that Christopher Claycomb‘s claim that the evidence was insufficient to support his conviction is preserved on appeal even if not timely raised in the trial court and that appellate courts are not mandated to find that insufficiency of the evidence constitutes plain error. I respectfully dissent, however, from the holding of the majority opinion that there is sufficient evidence to prove that Mr. Claycomb is guilty of the crime of felony criminal nonsupport,
The majority opinion finds that there is sufficient evidence that Mr. Claycomb failed to provide adequate support. In so holding, it finds sufficient testimony from Mr. Claycomb‘s ex-wife, Jacqueline Green, that he did not pay child support for more than six of the 12 months from August 1, 2005, to July 31, 2006, and that he did not “make any direct payments to [her] for any sort of food, clothing, or lodging for
The majority finds that failure to provide monetary support is sufficient to support a conviction of criminal nonsupport because the state is not required to show the defendant failed to provide in-kind support. I respectfully disagree. In interpreting statutes, this Court considers the plain and ordinary meaning of the language used. State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010).
The state has the burden to prove each and every element of a crime beyond a reasonable doubt. State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010). In this case, the state was required to prove Mr. Claycomb failed to provide support, which includes in-kind support. See
Requiring proof that Mr. Claycomb did not provide in-kind support does not place a duty on the state to disprove every reasonable hypothesis except that of guilt. It merely requires the state to meet its burden of proving every element of a crime, including Mr. Claycomb‘s failure to provide adequate support as defined by