Opinion
No. W.D. # 58860, Consolidated with WD58861
OPINION Filed: OCTOBER 23, 2001
Appeal from the Circuit Court of Buchanan County, Missouri Honorable Keith B. Marquart, Judge.
Amy M. Bartholow, Esq., Attorney for Appellant — Columbia, MO.
Philip M. Koppe, Esq., Attorney for Respondent — Kansas City, MO.
Before: Newton, P.J., Lowenstein and Smart, J.J.
Appellant, Germaine French, appeals from his conviction and sentence following a jury trial for two counts of the class D felony of criminal nonsupport, § 568.040, RSMo 2000. French was sentenced to two consecutive six-month sentences, one for each count. French asserts three arguments on appeal: 1) the trial court erred in sentencing him for two separate counts of felony nonsupport as it violated his right to be free from Double Jeopardy in that nonsupport is a continuing course of conduct; 2) the State failed to present sufficient evidence that French knew of his legal obligation to support his child; and 3) the trial court abused its discretion in allowing the State to present evidence concerning genetic testing in that it was irrelevant and highly prejudicial. This court finds that: 1) criminal nonsupport is a continuing course of conduct under § 568.040 and does not allow multiple punishments for the same offense; 2) the State presented sufficient evidence of French's knowledge of his obligation to support his son, M.W.; and 3) the trial court did not abuse its discretion in allowing the State to present evidence concerning genetic testing.
All statutory references are to the Revised Missouri Statutes 2000, unless otherwise indicated. This statute, set out infra , makes non-support a class A misdemeanor unless the obligor commits the crime in each of six individual months within a twelve month period.
Factual and Procedural History
This case concerns the criminal nonsupport of a child, M.W. In September of 1992, Victoria Wilson met French at a party. After a subsequent meeting, she gave him her phone number. After French called her a few days later, she invited him to her apartment and they had sex one time. French visited Victoria's home a second time a few days later, after which they did not see each other again.
In November of 1992, Wilson discovered she was pregnant. Wilson called French, told him that she was pregnant and that she expected him to pay child support. French did not confirm or deny that he was the father. During a subsequent telephone call French told Wilson, "I'm not paying for any child support for a child's that's not mine." Wilson did not contact French during the pregnancy. She also did not contact French when she went to the hospital to give birth to a male child, M.W., born June 17, 1993. Wilson did not list French's name as the father of the child on the birth certificate.
In 1995, French offered to send Wilson money if she did not file for child support. When French never sent any money, Wilson called the Child Support Enforcement Department of the Buchanan County Prosecutor's Office (Department). The Department contacted French, however, he was uncooperative. The Department subsequently filed a petition to establish paternity. Although French was served with an order compelling him to submit to genetic testing, he failed to appear. A judgment was then entered declaring French to be the father of M.W. and ordering him to pay $431 per month in child support. A copy of the judgment was sent to French by certified mail, but was returned unclaimed after three unsuccessful attempts to deliver it to him.
French did not make any voluntary support payments, however, one payment of $182 was credited to his account which was deducted from his state tax refund through a tax intercept in August 1998.
The State charged French with felony nonsupport in two separate cases. In CR399-329F, Count I, he was charged with nonsupport during the six months of January 1, 1998 through June 30, 1998, within the twelve-month period of July 1, 1997 through June 30, 1998. French was charged in CR399-330F, Count II, with nonsupport during the six months of July 1, 1998 through December 31, 1998, within the twelve-month period of January 1, 1998 through December 31, 1998. The cases were consolidated for trial and for this appeal.
After a jury trial, French was found guilty of both counts. The jury recommended a fine and six months in the county jail on both counts. The trial court sentenced him to two six-month sentences in the county jail and ordered the sentences to be served consecutively. The court did not impose a fine on either count.
I.
French argues in his first point that the trial court erred in sentencing him for two separate counts of felony nonsupport under § 568.040, as it violated his right to be free from Double Jeopardy as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution in that the State attempted to prosecute separately, in two counts, behavior that constitutes a continuing course of conduct — French's failure to provide support to M.W. It appears that the issue of whether the State may impose multiple punishments under § 568.040 for the nonsupport of a single child is a case of first impression.
Appellant, understandably, could not raise his claim under the Double Jeopardy clause of the Missouri Constitution, in that it provides "no person shall be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury; " Mo. Const. art. I, § 19. State v. McTush , 827 S.W.2d 184, 186 (Mo.banc 1992).
Here, the State charged French with felony nonsupport in two separate cases for two different time periods. The Fifth Amendment to the United States Constitution provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." State v. Flenoy , 968 S.W.2d 141, 143 (Mo.banc 1998). The Fifth Amendment is made applicable to the states through the Fourteenth Amendment. McTush , 827 S.W.2d at 186 (citing Benton v. Maryland , 89 S.Ct. 2056, 2062 (1969)).
The Double Jeopardy clause protects against multiple punishments or prosecutions for the same offense. Id . Thus, multiple convictions are only permissible if the defendant has "in law and in fact committed separate crimes." State v. Flenoy , 968 S.W.2d at 143 (citing State v. Snider , 869 S.W.2d 188, 195 (Mo.App. 1993)). Double Jeopardy analysis regarding multiple punishments is limited to determining whether cumulative punishments were intended by the legislature. McTush , 827 S.W.2d at 186 (citing Missouri v. Hunter, 103 S.Ct. 673, 678-80 (1983)). "Legislative intent regarding cumulative sentences is first determined by examining the statute under which Defendant was convicted." State v. Murphy , 989 S.W.2d 637, 639 (Mo.App. 1999).
Section 568.040 states, in pertinent part:
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.
* * * *
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.
Because § 568.040 does not state whether the legislature intended cumulative punishment, this court looks to § 556.041, the general cumulative punishment statute. State v. Elliott , 987 S.W.2d 418, 421 (Mo.App. 1999). Section 556.041 provides:
When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in section 556.046; or
(2) Inconsistent findings of fact are required to establish the commission of the offenses; or
(3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
(4) The offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.
The only subsection applicable to the facts of this case under § 556.041 is subsection (4). Thus, this court must determine whether: 1) criminal nonsupport is defined as a continuing course of conduct; 2) French's course of conduct was uninterrupted; and 3) § 568.040 provides that specific periods of nonsupport constitute separate offenses.
Although nonsupport is not defined in § 568.040 as a continuing course of conduct, in State v. Davis , this court found that "[t]he crime of nonsupport is continuous and a `violation at any time within the limitation period' justifies a conviction." 675 S.W.2d 410, 417 (Mo.App. 1984) (citing State v. Arnett , 370 S.W.2d 169, 174 (Mo.App. 1963)). Other Missouri cases list nonsupport as an example of an offense which involves a continuous course of conduct. State v. Morrow , 888 S.W.2d 387, 393 (Mo.App. 1994); State v. Pacchetti , 729 S.W.2d 621, 627 (Mo.App. 1987). French's conduct could also be classified as uninterrupted because he never made any voluntary child support payments.
A $182 payment, via a tax intercept of French's state tax refund, was received on August 6, 1998. This court finds that this payment did not serve to interrupt French's continuing course of nonsupport because it was not voluntarily made and did not amount to a full support payment.
Section 568.040 also does not expressly provide that specific periods of nonsupport constitute separate offenses. When ambiguity exists in criminal statutes, they are to be construed more strictly against the State. State v. Withrow , 8 S.W.3d 75, 80 (Mo.banc 1999). Section 568.040.4 states:
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.
This sub-section only serves as the penalty provision of § 568.040. The language in subsection 4 merely delineates when nonsupport rises to the level of a felony.
It should also be noted that § 568.040 was amended in 1993, well after Davis found that nonsupport was a continuing course of conduct. Had the legislature intended to allow specific periods of nonsupport to constitute separate offenses it could have done so by including language to that effect. "`The legislature is presumed to know the law that has been amended, and to have used particular words in light of prior judicial and legislative action.'" State ex inf. Nesslage v. City of Lake St. Louis , 718 S.W.2d 214, 218 (Mo.App. 1986) (quoting State v. Davis , 675 S.W.2d 410, 415 (Mo.App. 1984)).
The comment section of § 568.040 states, in pertinent part:
The object of legislation in this area should be to compel recalcitrant persons to fulfill their obligations of care and support. Such a goal is difficult to achieve by imprisoning such persons. Imposition of punishment, particularly a fine or imprisonment, can only frustrate the object of the support statutes by guaranteeing that the defendant will be unable to meet his obligations. In spite of these arguments against penal sanctions, practical experience has demonstrated that such sanctions serve a needed function as a deterrent and in Missouri may be the only effective means of dealing with certain situations.
Based on the analysis of § 568.040 under the cumulative punishment statute, § 556.041, this court finds that the trial court erred in sentencing French for two separate counts of felony nonsupport under § 568.040. Therefore, the judgment of conviction on the second count is reversed.
II.
French argues in his second point that the trial court erred in overruling his motion for judgment of acquittal at the close of the State's case and at the close of all the evidence because the State's evidence was not sufficient to establish that he knew of his legal obligation to support the child.
In reviewing a challenge to the sufficiency of the evidence, a court reviews the facts in the light most favorable to the verdict. State v. Withrow , 8 S.W.3d 75, 77 (Mo.banc 1999). The court accepts as true all the evidence favorable to the verdict, giving the State the benefit of all inferences therefrom and disregarding all evidence and inferences contrary to a finding of guilt. State v. White , 28 S.W.3d 391, 395 (Mo.App. 2000). This court does not act as a juror in reviewing the sufficiency of evidence from a trial, but rather limits its determination to a search for substantial evidence from which a reasonable jury might have found the defendant guilty beyond a reasonable doubt. State v. Duffy , 8 S.W.3d 197, 204 (Mo.App. 1999).
Under § 568.040.1, "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 ." Section 562.016.3 defines "knowingly" as follows:
A person "acts knowingly," or with knowledge,
(1) With respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist; or
(2) With respect to a result of his conduct when he is aware that his conduct is practically certain to cause that result.
French argues that the evidence in his criminal trial failed to prove he had knowledge of the civil judgment which declared him to be the father. French claims that absent proof he received notice of the judgment, his knowledge cannot be presumed.
Knowledge may be proven by circumstantial evidence. State v. White , 28 S.W.2d at 396. In fact, because direct evidence of a particular mental state is seldom available, proof of the mental state will usually rest on circumstantial evidence and permissible inferences. State v. Gooden , 962 S.W.2d 443, 445 (Mo.App. 1998). Moreover, the State "may establish the mental element by evidence of and inferences from the accused's conduct before the act, the act itself, and the accused's conduct after the act." Id .
Here, Wilson informed French that she was pregnant and that she expected him to pay child support. In 1995, French offered to send Wilson money if she did not file for child support. French never sent any money to Wilson so she filed for child support. When the Department contacted French he was uncooperative, requiring the Department to file a petition to establish paternity. Although French was served with an order compelling genetic testing he failed to get tested. The trial court subsequently entered a judgment declaring French to be the father of the child in question and ordered him to pay $431 per month in child support.
Deborah Welter, a supervisor of the Department, testified that a copy of the judgment was sent to French by certified mail. The certified mail receipt was marked unclaimed after three unsuccessful attempts to deliver it to French. Ms. Welter testified that generally when certified mail is marked "unclaimed" it means that it was sent to the correct address but not accepted by the recipient. French never made any voluntary support payments for M.W., however, $182 was credited to French when his state tax refund was intercepted.
Although French never accepted the copy of the judgment sent to him, the foregoing evidence shows that he was aware of his child support obligation. "[K]nowledge is proven when the defendant is shown to be aware of his support obligation." See State v. Morovitz , 867 S.W.2d 506, 509 (Mo.banc 1993). Point II is denied.
III.
French argues in his third point that the trial court abused its discretion in allowing the State to present evidence that he did not cooperate when he was contacted about scheduling genetic testing, and that he failed to appear for genetic testing after he was ordered to do so, in that this evidence was irrelevant and highly prejudicial.
Trial courts have broad discretion with regard to the admissibility of evidence and will only be reversed when that discretion is abused, resulting in prejudice to the defendant. State v. Jacoway , 11 S.W.3d 793, 796 (Mo.App. 1999).
French argues that "[w]hether or not Germaine cooperated with Ms. Welter when she contacted him about genetic testing, whether he received a court order compelling him to submit to genetic testing, and whether he failed to appear for the genetic testing is completely irrelevant."
During direct examination Ms. Welter was asked, "[T]o the best of your knowledge, did the office get cooperation in contacting the Defendant? She answered, "no." French did not object to the testimony. When Ms. Welter was asked whether the completed return of service indicated that French had been served with a copy of the petition for paternity and child support she answered, "yes." French did not object to the testimony. Failure to timely object to the admissibility of evidence waives any right to challenge the admissibility of the evidence on appeal. State v. Pride , 1 S.W.3d 494, 509 (Mo.App. 1999).
Ms. Welter also testified as follows:
The State: And do you recall if the Defendant was served with this order?Ms. Welter: Let me refresh. I believe this is —
Defense Counsel: Objection.
Ms. Welter: This is — I believe this was served at his employment. Yes.
The State: Okay. Thank you. And do you know — Do you personally know if the Defendant appeared for the genetic testing that he was ordered to appear for?
Ms. Welter: We were told by the laboratory that he did not.Defense Counsel: Objection.
The Court: Sustained.
The State: To the best of your knowledge, did the Defendant show up for genetic testing?Defense Counsel: Objection, Your Honor.
The Court: Sustained.
French objected to this testimony and his objections were sustained. French did not ask the court for any further relief. "Where the trial court grants the defendant all the relief that [he] seeks, nothing is preserved for appellate review." State v. Scurlock , 998 S.W.2d 578, 586 (Mo.App. 1999). The adequacy of the corrective action taken by the trial court is assumed and if a more drastic remedy were warranted, it was up to the defense counsel to request such relief. Id . Point III is denied.
Conclusion
Since the court has that determined French was improperly convicted of a second count of the class D felony of non-support, the court reverses the judgment as to Count II, and affirms the judgment as to Count I.
All concur.