Case Information
*1 SUPREME COURT OF MISSOURI
en banc
STATE OF MISSOURI, )
) Appellant, ) ) v. ) No. SC94668
) DENNIS E. MEACHAM, )
) Rеspondent. ) ) APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY The Honorable Troy Cardona, Judge Opinion issued October 13, 2015
Dennis Meacham (Father) was charged with criminal nonsupport in violation of section 568.040, RSMo Supp. 2011. He filed a motion to dismiss the information as a violation of his due process rights under the United States and Missouri constitutions. He argues that the 2011 amendment to the statute, which removed the phrase “without good cause” as an element of the offense, and instead expressed it as an affirmative defense, impermissibly shifted the burden of prоof to the defendant on an element of the crime. The trial court agreed and dismissed the information. The State now appeals, contending that the statute is constitutional because due process allows a defendant to bear the *2 burden of pleading and proving the affirmative defense of inability to provide support for good cause. This Court agrees. The judgment is reversed, and the case is remanded.
Background and Procedural History
Father was charged with criminal nonsupport in violation оf section 568.040, RSMo Supp. 2011. The information stated that although Father was obligated to provide support for his three children under an order of support issued by the Family Support Division, he knowingly failed to make child support payments for the months of April 2012 through March 2013. In the probable cause statement, Father’s ex-wife attested that despite Father having been ordered to pay $715 per month, he was in arrears in excess of 12 months and had not provided any non-monetary support for the children.
Father filed a motion to dismiss the information and to declare section 568.040.1 unconstitutional under the Due Process Clause of the 5th and 14th amendments to the United States Constitution and article I, section 10 of the Missouri Constitution. The trial court granted the motion, dismissed the information, and held that sections 568.040.1, 3, and 4 were unconstitutional. It held that the 2011 amendment to the statute, which removed the phrase “without good cause” as an element of the offense, created a mandatory presumption that a defendant has the ability to provide support—a presumption that the defendant must affirmatively disprove by showing good cause. It stated that this change effectively removed criminal intent from the statute, requiring the *3 State to prove only that a defendant (1) knew there was a support obligation and (2) did not provide support. The State appeals.
Standard of Review
A constitutional challenge to a statute is a question of law, which this Court
reviews
de novo
.
State v. Young
,
Analysis
Father was charged with criminal nonsupport under section 568.040, which provides, in relevant part:
1. . . . [A] parent commits the crime of nonsupport if such parent knowingly fails to provide adequate support which such parent is lеgally obligated to provide for his or her child or stepchild . . . .
* * *
3. Inability to provide support for good cause shall be an affirmative defense under this section. A person who raises such affirmative defense has the burden of proving the defеnse by a preponderance of the evidence.
“Good cause” is defined as “any substantial reason why the defendant is unable to provide adequate support.” Section 568.040.2(2).
*4 To place the issues in context, a brief history of section 568.040 is helpful. Prior to 2009, paragraph 1 of section 568.040 defined criminal nonsupport as “knowingly fail[ing] to provide, without good cause , adequate support which such parent is legally obligated to provide . . . .” Section 568.040.1, RSMo 2000 (emphasis added). In 2009, without changing the dеfinitional elements of nonsupport in paragraph 1, the legislature amended paragraph 3 to add that “inability to provide support for good cause” was an affirmative defense that the defendant must raise and prove by a рreponderance of the evidence. Section 568.040.3, RSMo Supp. 2009.
The 2009 amendment was challenged and upheld in State v. Holmes , 399 S.W.3d 809 (Mo. banc 2013). In Holmes , the defendant argued that because “fail[ure] to provide, without good cause, adequate support” was an element of nonsupport in paragraph 1, yet “inability to pay for good cause” was an affirmative defense in paragraph 3, the statute unconstitutionally required a defendant to disprove an element of the offense. Id. at 813. This Court disagreed and upheld the statute:
Rather than interpret this duplication to make lack of good cause an element and then nonsensically impose the burden of disproving it on the defendant while characterizing it as a defense rather than an element, the most logical interpretation in the circumstances is to interрret it as requiring the State to prove lack of good cause while at the same time permitting the defendant to offer additional proof that he has good cause.
Id. at 814. Despite the confusion the 2009 amendment created, Holmes found that the legislature was constitutionally permitted to draft the stаtute in a manner that addressed “good cause” in overlapping ways. In attempting to clarify legislative intent, the Court speculated that the legislature may have intended for “good cause” to be an *5 affirmative defense rather than an element of the offense. Id. at 813. This objective could have bеen accomplished, the Court stated in dicta, if the legislature had removed the phrase “without good cause” from the elements of the crime in paragraph 1 at the same time it added the affirmative defense to paragraph 3. Id. at 814.
Indeed, that is what the legislature did in 2011. The 2011 amendment, which was
in effect when Father was charged in 2014, removed the phrase “without good cause”
from the elements in paragraph 1 but retained “inability to provide support for good
cause” аs an affirmative defense.
Holmes
,
The State argues the trial court’s judgment finding a due process violation was in error. It contends that the concept of good cause under the 2011 amendment is exprеssed as an affirmative defense, and that due process permits a defendant to bear the burden of proof on affirmative defenses. It argues that when “without good cause” was removed as an element in 2011, no mandatory presumption of ability to pay resulted nor was there any other criminal intent implied in the statute apart from “knowingly.” Father counters that the trial court was correct and that, due to a legislative purpose to punish only *6 recalcitrant parents, the ability to provide support must be an implied element of the offense. He contends that it is not the knowing failure to support that invokes liability but, instead, the knowing failure coupled with the ability to support.
Father’s argument is misplaced as it is squаrely at odds with the plain language of section 568.040. After the 2011 amendment, “without good cause” is not a definitional element of criminal nonsupport. Rather, the culpable mental state is “knowingly,” and there is no requirement that a defendant aсt with criminal intent. Father may well believe that it is a bad policy to allow the knowing failure to provide support alone to be sufficient for criminal liability because the purpose of section 568.040 is to punish only recalcitrant parents. Yet it is precisely that purpose that is addressed by the legislature’s choice to provide the financially unable parent with the affirmative defense of good cause. Missouri is not alone in structuring its statute in this manner. Regardless of the wisdom оf the policy, Father has offered no compelling authority why the legislature was constitutionally prohibited from defining “nonsupport” as the knowing failure to provide adequate support. This Court agrees with the State and finds that “without good cause” is *7 not an implied element of section 568.040. As a result, the burden of proof was not shifted to Father on any element of the offense.
The question then remains whether it is permissible for the legislature to place
the burden of proof on a defendant to pleаd and prove by a preponderance of the
evidence the affirmative defense of inability to provide support for good cause. The
answer clearly is yes. In
Patterson v. New York
, the United States Supreme Court noted
that at common law, thе burden of proving affirmative defenses, as well as all
“circumstances of justification, excuse or alleviation” rested on the defendant. 432 U.S.
197, 202 (1977) (quoting 4 W. Blackstone, Commentaries *201).
Patterson
held that
the Due Process Clause was not violated by placing the burden on the defendant to
prove, in a second-degree murder case, the affirmative defense of acting under the
influence of extreme emotional distress.
Id.
at 205-06. It stated that “[p]roof of the
nonexistence of all affirmative defenses has never been constitutionally required,” and
that the State was not required to disprove “every fact constituting any and all
affirmative defenses related to the culpability of an accused.”
Id.
at 210. This analysis
*8
is consistent with Missouri law.
See
Section 556.056(2) (defendant has the burden of
persuasion that an affirmative defense is more probably true than not);
State v.
Strubberg
,
Conclusion
Section 568.040 is fully compliant with constitutional standards of due procеss. The judgment of the trial court is reversed, and the case is remanded.
___________________________ Mary R. Russell, Judge All concur.
Notes
[1] While the existence of a child support order is not conclusive as to what constitutes adequate
support under the statute, it is some evidence of adequate support.
State v. Claycomb
, --- S.W.3d
---,
[2] This Court has exclusive jurisdiction over the appeal because it challenges the constitutional validity of a statute. M O . C ONST . art. V, sec. 3.
[3] The Holmes decision mistakenly referred to this amendment as having taken placе in 2012. The amendment was actually effective August 28, 2011, and included in the 2011 cumulative supplement to the Revised Missouri Statutes.
[4] Language similar to “without good cause,” expressed as an element of the offense, or “inability to provide support fоr good cause,” as an affirmative defense, is recognized by the criminal nonsupport statutes in all 50 states and the District of Columbia as necessary to differentiate “deadbeat parents from dead broke parents.” See Maureen Atwell, The Use of Soсial Media Evidence in Criminal Child Support Prosecutions , 7 P HOENIX L. R EV . 1, 9 (2013) (internal quotations omitted). Today, Missouri and nine other states elect to express the idea of good cause, in some fashion, as an affirmative defense for the defendant to prove: Arizona, Arkansas, Connecticut, Delaware, Minnesota, Nevada, Ohio, Oregon, and Utah.
[5] Father’s reliance on the United States Supreme Court decision of
Hicks v. Feiock
is misplaced.