State of Missouri, Plaintiff/Respondent v. Clifton Clyde Reed, Jr., Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Plaintiff/Respondent v. Clifton Clyde Reed, Jr., Defendant/Appellant. Case Number: 25895 Handdown Date: 04/06/2005 Appeal From: Circuit Court of Butler County, Hon. Mark L. Richardson Counsel for Appellant: Nancy A. McKerrow Counsel for Respondent: Deborah Daniels Opinion Summary: None Citation: Opinion Author: Kenneth W. Shrum, Judge Opinion Vote: AFFIRMED. Parrish, P.J., conurs. Rahmeyer, J., dissents in separate opinion. Opinion: A jury convicted Clifton Reed, Jr., ("Defendant") of six counts of criminal nonsupport (section 568.040), a class D felony. (FN1) On July 16, 2004, in State v. Reed, SD No. 25895 (Mo.App. 2004), this court remanded for a hearing to determine whether the prosecutor used the State's peremptory strikes in a discriminatory manner in violation of the Equal Protection Clause. (FN2) This court held in abeyance Defendant's remaining point on appeal until the trial court completed the hearing. On September 29, 2004, the trial court held an evidentiary hearing pursuant to the instructions delineated in State v. Parker, 836 S.W.2d 930 (Mo.banc 1992). The trial court found that the prosecutor's explanations for using the peremptory strikes were gender neutral. In a supplemental point on appeal, Defendant alleges that the trial court's ruling is erroneous because the State discriminated against males jurors based on their gender. As noted in our initial opinion, we review the trial court's ruling on a gender-Batson challenge to determine whether it is clearly erroneous, giving great deference to the trial court's

ruling as it involves evaluations of credibility and demeanor. Koenig, 115 S.W.3d at 411-12[3]. We find that on remand the trial court properly followed the second step of the three-step Parker process when it required the State to provide reasonably specific and clear gender-neutral reasons for the strikes and the burden shifted to Defendant to demonstrate that the State's explanations were pretextual and the strikes were impermissibly based upon gender. As such, Defendant's supplemental point maintains that the prosecutor's reasons for the strikes of the male jurors were pretextual because similarly situated female jurors were not struck by the State. Defendant further argues that the prosecutor wanted an all-female jury because a male was charged with failing to support his children and the two primary witnesses were Defendant's ex-wife and the female supervisor of the child support division. Defendant claims that the prosecutor's reasons for exercising the strikes were implausible. Defendant focuses on four female jurors who were similarly situated to male jurors, but were not struck by the State. Without unduly extending this opinion, after reviewing the record, we find no clear error in the trial court's determination that the prosecutor's reasons for peremptorily striking four men were gender neutral. The prosecutor indicated that it was his practice, after receiving the jury list, to put a "plus or minus or a question mark" beside names depending on the potential juror's occupation and the type of case to be tried. In this case, the prosecutor's initial list noted self-employed people tended to hide income and this was a support case. During voir dire, the prosecutor used a separate list to place a second mark indicating his preference for jurors based upon the way "they dress[ed]," "their facial expressions," and "the way they were paying attention." In each of the cases of "similarly situated" females who had question marks on the first list, the prosecutor indicated the male potential juror was struck for having a minus sign next to his name on the list that was not resolved by further questioning. At the time he made his strikes, the lack of the second mark by the female potential juror indicated to the prosecutor that any issues he had with her occupation were eliminated by the appearance and demeanor of the potential juror. The prosecutor gave gender-neutral reasons for not striking the female potential jurors and for striking the male jurors. The trial court's ruling, finding no pretext, is not clearly erroneous. See Marlowe, 89 S.W.3d at 469 (implausible or fantastic justifications given at the second stage may and probably will be found at the third stage to be pretexts for purposeful discrimination). Point denied. In his final point on appeal, Defendant alleges the evidence was insufficient to support his convictions and sentences on Counts I, II, III, and IV. He correctly asserts that the elements of a criminal nonsupport case against a parent are (1) knowingly fails to provide, (2) without good cause, (3) adequate support, (4) which he or she is legally obligated to provide. State v. Morovitz, 867 S.W.2d 506, 508-09 (Mo.banc 1993); State v. Davis, 675 S.W.2d 410, 416 (Mo.App.

1984); section 568.040.1. (FN3) With the foregoing in mind, Defendant argues that reversal of Counts I-IV is mandated because the evidence adduced at trial was insufficient to prove the "knowledge" element of the crime. Defendant asserts "it was incumbent upon the State to prove that [Defendant] knew there was an order of support in order to prove that he 'knowingly failed to provide child support.'" With this as his premise, Defendant claims the State failed to present evidence that he knew of the court- ordered child support during the applicable periods; consequently, he insists reversal is mandated. Defendant's argument fails because his premise is wrong. In its brief, the State cites State v. Watkins, 130 S.W.3d 598 (Mo.App. 2004), to dispel any misconceptions that Defendant's argument has merit. As aptly stated by the Watkins court, knowledge on the part of a parent of court-ordered support is not required because "a support order is not even a requisite to criminal liability. A parent can be prosecuted for criminal nonsupport despite the absence of such an order." Id. at 600[2]. All that is required is "knowledge of the legal obligation to provide support in an adequate amount for the child." Morovitz, 867 S.W.2d at 509. We have found no Missouri case that requires, as an essential element of the crime, proof of court-ordered child support. In fact, the authority is to the contrary. (FN4) Succinctly stated, "[a] divorce decree with a provision for child support is not a prerequisite to a prosecution under [section 568.040], and by the same token the existence of such a support decree does not bar a prosecution under that statute." Davis, 469 S.W.2d at 3[3]. If court-ordered child support is not an element of the criminal nonsupport statute, then a fortiori knowledge of such an order is not required for a conviction under section 568.040. Consequently, Defendant's point fails. To clarify any misconceptions, we further explain why this is so. "The support of one's children involves the discharge of one of the most basic responsibilities that a person assumes as a member of society." In re Warren, 888 S.W.2d 334, 336 (Mo.banc 1994). Every parent has a legal obligation to provide for his or her children regardless of the existence of a child support order. Morovitz, 867 S.W.2d at 508. Proof of the relationship of parent to child is sufficient to establish a prima facie basis for a legal obligation of support. Id.; Watkins, 130 S.W.3d at 600. The purpose of the criminal nonsupport statute is to compel recalcitrant parents to fulfill their obligations of care and support; the purpose is not to enforce court-ordered child support obligations. Moss, 791 S.W.2d at 503; section 568.040, Committee Note Comment (1973). As such, in a prosecution under section 568.040, the existence of a child support order is merely evidence of what constitutes "adequate support." Sellers, 77 S.W.3d at 5[1]. Here, the uncontradicted evidence showed that Defendant sired two children by his ex-wife. He treated the children as

his own throughout their lives, never disclaiming that he was their father. He admitted at trial that he was the children's father. Moreover, the uncontradicted evidence showed that he provided virtually no support for the children during the charged periods. The State proved that a parent-child relationship existed, and Defendant never questioned this legal obligation. Morovitz, 867 S.W.2d at 508. Once Defendant admitted that he was the father and never questioned this fact throughout their lives, he admitted that a legal obligation existed and he necessarily admitted that he had "knowledge of the legal obligation." Id. at 508-09. (FN5) In so holding, we acknowledge that, in discussing the "knowledge" element, the Morovitz court found that the element was proven there because "[d]efendant was aware of the court order of support, since it was a part of his dissolution decree and since he fought the obligation for years." Id. at 509. However, the Morovitz court neither held nor intimated that a support order was a prerequisite to proof of the knowledge element in a section 568.040 prosecution. The analysis of the knowledge element in that case was not exhaustive and did not delve into the history of the knowing requirement under section 568.040 and its predecessor statutes. The knowledge element was handled by merely noting that obviously it was proven via evidence that the defendant knew about his divorce decree obligation. Id. Simply stated, the Morovitz court was not confronted with the implicit question presented here, i.e., what evidence satisfies the knowledge element when there is no court-ordered support figure? Contrary to Defendant's assertions, Morovitz does not compel a finding that a father who lives apart from his children and fails, without good cause, to provide them adequate support, can avoid the reaches of section 568.040 simply due to the absence of knowledge of a court order setting a support amount. Such a notion is neither logical nor is it in keeping with the historically recognized purpose for such legislation, namely, punishment of a parent who fails to fulfill his or her moral and legal duty to support his or her children, State v. Earnest, 162 S.W.2d 338, 342[4] (Mo.App. 1942), and securing for children such due and proper care as is necessary to protect their lives and health. State v. Russell, 102 S.W.2d 727, 728[1] (Mo.App. 1937). We reject Defendant's arguments to the contrary. Point denied. The judgment of convictions and sentences is affirmed. Footnotes: FN1. Criminal nonsupport is labeled a class A misdemeanor, but is elevated to the status of a class D felony if the person obligated to pay 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. section 568.040.4. All statutory references are to RSMo (2000), unless otherwise indicated.

FN2. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89 (1994); State v. Marlowe, 89 S.W.3d 464, 468 (Mo.banc 2002); State v. Koenig, 115 S.W.3d 408, 411 (Mo.App. 2003). FN3. Section 568.040 states in relevant part: "[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 [or her] child . . . ." FN4. In addition to Watkins and Morovitz, see, e.g., State v. Davis, 469 S.W.2d 1, 3 (Mo. 1971); State v. Sellers, 77 S.W.3d 2, 5 (Mo.App. 2002); State v. Schneider, 971 S.W.2d 355, 356 (Mo.App. 1998); State v. Moss, 791 S.W.2d 501, 503 (Mo.App. 1990). FN5. Our holding does not make the "knowledge" element meaningless in a section 568.040 case. Examples of when resolution of the "knowledge" element could be dispositive include (a) an instance where the alleged father of an out-of-wedlock child defends on the ground he never knew (during the relevant period of non-support) he had sired a child, or (b) a case in which a married father claims he had a long-term separation from his wife and that she bore a child during that separation without his knowledge. In these situations, the parent could fully admit that he was the biological father while still denying knowledge of the legal obligation during the relevant time periods. While this certainly would be termed generally as "good cause" for failing to support, it is not the type of "good cause" ; contemplated by the statute. Statutory "good cause" refers to a parent's inability to provide support, not the simple unknowing failure to provide such. See section 568.040.1(2); Davis, 469 S.W.2d at 5; State v. Mehaffey, 534 S.W.2d 563, 564 (Mo.App. 1976) and cases cited therein; State v. Hobbs, 291 S.W. 184, 186 (Mo.App. 1927) (predecessor statute). Separate Opinion:

fails; however, I respectfully dissent because I believe Appellant's second point has merit and four of the six counts should be reversed. Clifton C. Reed, Jr. ("Appellant") was convicted of six counts of criminal nonsupport and sentenced as a prior and persistent offender under sections 558.016 and 557.036 to serve concurrent sentences of five years imprisonment on each count of criminal nonsupport. Appellant's second point challenges the sufficiency of evidence to support a finding that Appellant knew or was aware that he had a legal obligation to support his two children for the period of January 1, 2000, through July 6, 2001, as required for conviction on Counts I, II, III, and IV of the Information. (FN2) Counts V and VI are not challenged in this appeal. Appellant contends that the State failed to introduce any evidence from which the jury could find, beyond a reasonable doubt, that Appellant was aware that there was a February 14, 1995 court order directing him to pay $213 per month in child support or, for that matter, that he was even divorced. He relies on the testimony of his ex-wife, explaining that she did not tell him of the order, that she thought he was in Arkansas when she initiated the divorce proceedings, and that to her knowledge he was never served with any papers. In fact, he may have been in prison in Arkansas when the divorce proceedings were taking place. Appellant further notes the lack of any evidence that he had been notified of the

divorce proceedings from any other source or that he received a copy of the judgment. As the majority opinion notes, the Supreme Court has acknowledged that there are four elements of a criminal nonsupport case: 1) knowingly fails to provide, 2) without good cause, 3) adequate support, 4) which he or she is legally obligated to provide. State v. Morovitz, 867 S.W.2d 506, 508-09 (Mo. banc 1993). I believe the majority opinion impermissibly equates two of the elements as being identical, thus disregarding any mens rea for the crime. I am concerned with the juxtaposition of language from previous opinions to find that the only knowledge requirement is the knowledge that you have a child, not, as the statute states, "knowingly failing to provide . . . adequate support which such parent is legally obligated to provide." Section 568.040.1. (FN3) To support its conclusion, the majority opinion starts with the premise from Morovitz that every parent has a legal obligation to provide for his or her children regardless of the existence of a child support order. Morovitz, 867 S.W.2d at

1. The majority opinion analysis continues that because the State proved that a parent-child relationship existed,

proving the legal obligation, and because Defendant never questioned that he was the father of the children, a fortiori, "he necessarily admitted that he had knowledge of the legal obligation." fs20 The majority opinion cites to Morovitz for its reasoning; however, Morovitz does not stand for that proposition. In fact, the supreme court analyzed each of the four elements separately and under the "knowingly" element, stated: This element relates to the defendant's knowledge of the legal obligation to provide support in an adequate amount for the child. When, as here, a court orders the defendant to pay child support in a certain amount, it is presumed the court set the child support obligation in an amount calculated to provide adequate support for the child. Thus, knowledge is proven when the defendant is shown to be aware of his support obligation. The evidence clearly proved this. Defendant was aware of the court order of support, since it was part of his dissolution decree and since he fought the obligation for years. Id. at 509 (emphasis added). Simply put, I believe knowingly refers to the knowledge of a legal obligation, not the knowledge of parentage. The two terms are separate elements of the offense under section 568.040. This Court is constitutionally bound to follow the last controlling decision of the Missouri Supreme Court. Holden v. Holden (In re Holden), 977 S.W.2d 951, 955 (Mo. App. S.D. 1998). The supreme court in State v. French, 79 S.W.3d 896, 900 (Mo. banc 2002), found the defendant acted knowingly based on five factors: 1) he had sex with the mother; 2) mother became pregnant and told him that he was the

father; 3) after the child was born, defendant offered mother money if she would not file for child support; 4) defendant was served with a summons indicating that a paternity and support proceeding had been brought by the county Child Support Enforcement Department; and 5) defendant never responded to the summons. Although the court made note of the fact that defendant was aware he had fa thered a child, it did not rely on that recognition alone to find that "the evidence was sufficient to establish that he was aware of his support obligation." Id. In Morovitz, the court did not simply equate knowledge of being a parent with knowledge of a support obligation. The defendant had "wrangled" over aspects of the dissolution decree, which contained the order to pay child support, for many years. Morovitz, 867 S.W.2d at 507. The Supreme Court specifically stated, "knowledge is proven when the defendant is shown to be aware of his support obligation." ; Id. at 509. The wrangling for years over the terms of the decree supplied the "knowingly" element of the offense in that case. Id. It would be a much simpler analysis in every case had the court considered knowledge of paternity to be enough for a felony criminal prosecution of nonsupport. My research has failed to disclose a case in which the knowledge of parentage alone was sufficient for a felony criminal conviction for nonsupport. "What is at stake here is the application of a criminal law. Someone's liberty will be restrained." State v. Bouse, 150 S.W.3d 326, 340 (Mo. App. W.D. 2004) (Lowenstein, J., dissenting). According to the rule of lenity, any ambiguity in a penal statute should be read against the State and in favor of persons on whom such penalties are sought to be imposed. J.S. v. Beaird, 28 S.W.3d 875, 877 (Mo. banc 2000). Further, this Court must construe an ambiguous statute according to the legislative intent, "'giving meaning to the words used within the broad context of the legislature's purpose in enacting the law.'" State v. Laplante, 148 S.W.3d 347, 349 (Mo. App. S.D. 2004) (quoting Connor v. Monkem Co. Inc., 898 S.W.2d 89, 90 (Mo. banc 1995)). In order to give some meaning to the word "knowingly," the majority opinion claims that the "knowledge" element only comes into play when the father does not know that he sired a child. In other words, every mother and father can be criminally prosecuted by the state for failure to provide monetary support regardless of any agreement, including any separation agreement, between the parents as to a financial obligation. (FN4) This reasoning disregards the practical reasons for which one parent forgoes seeking support, including the lack of need for the support by one parent and a myriad of other reasons that the parties have in settling their own affairs without the interference of a state-imposed obligation. The majority opinion simply holds that if a person knows he/she has a child, then the person knows he/she has a legal obligation to provide financial support to the child and the State can bring felony nonsupport charges against the person for failure to do so. The problem in this case is that the State, which has the burden of proof on every single element, provided no

evidence, direct or circumstantial, that Appellant knowingly failed to provide the support he was legally obligated to provide for his children. "[I]t is always the State's burden to establish a factual basis for elements of the crime charged." State v. Self, No. 85662, 2005 Mo. LEXIS 17, at *15 (Mo. banc February 15, 2005). We cannot supply missing evidence or give the State the benefit of unreasonable, speculative or forced inferences. Id. The evidence indicated that Appellant may have been in jail at the time of the dissolution and possibly thereafter, that his ex-wife never indicated to him that he was divorced nor that he had any legal obligation to pay support, and that he may never have been served with any summons for the dissolution. The State relied on the testimony of Appellant's ex-wife; however, the testimony of Appellant's ex-wife is equivocal and does not provide substantial evidence: Q. Okay. Now, after the divorce did you talk to him about, huh, child support? A. Are you talking about the day I got my divorce? Q. Well, did you talk to him about child support the day you got divorced? A. No, sir. Q. Did you subsequently talk to him about child support or supporting your children? A. Huh, you talking about the same day or -- Q. At any point in time thereafter. A. I didn't directly say about the amount, but just different, excuse me, about different things that they needed because they was [sic] playing sports, both of them. Q. Okay. Well, did you talk to him about that you needed help in supporting these children? A. Yes, on like different occasions like they needed different things for sports and clothing for school. . . . . Q. Now, during the years of 2000, 2001 and 2002 did you see Mr. Reed? A. Yes, sir. Q. And did you ask him for support during those years? A. Yes, sir. Q. You just don't recall how many of them; is that right? A. Yes, sir, that's right. Q. Did you ever tell him that he owed "X" amount of dollars for child support? A. I don't recall saying how much, but when my boys were playing sports, different things they needed. I have never

said how much child support was. I just said I needed help with them. On cross-examination, Appellant's ex-wife cleared up that she never served Appellant with divorce papers nor ever told him there was an order for an amount of child support. She further clarified that Appellant had given her money for the boys, but never a specific amount. In this felony case for nonsupport, we cannot supply the missing element for the State. We, likewise, cannot find "legal obligation" and "knowingly" to be the same element in section 568.040.1. Consequently, I would affirm the judgment of convictions and sentences on Counts V and VI and reverse the judgment of convictions and sentences for Counts I, II, III, and IV. Footnotes: FN1. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct.1712, 1719, 90 L.Ed.2d 69 (1986). FN2. Counts I and II alleged that Appellant knowingly failed to provide adequate support in each of six individual months within the time period of January 1, 2000, to December 31, 2000, and Counts III and IV alleged the same offense for the period of January 1, 2001, to December 31, 2001. Appellant concedes that the State provided sufficient evidence showing that he was served with a copy of the Division's Motion to Modify the support dated July 6, 2001, while he was in the Butler County Jail. If Appellant began acting with knowledge at that point, he would not have had enough time within the period of July 6, 2001, to December 31, 2001, to complete six individual months of nonsupport as required for a conviction of felony criminal nonsupport. FN3. All statutory references are to RSMo 2000 unless otherwise indicated. FN4. As noted in the majority opinion, an agreement between the parties is not the "good cause" contemplated by the statute, but rather a parent's inability to provide support. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.