# SUPREME COURT OF MISSOURI en banc

STATE OF MISSOURI, ) ) Appellant , ) )

v. ) No. SC9 4668 ) DENNIS E. MEACHAM , ) ) Respondent

. ) )

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 c onstitution s . 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 proof 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 theburden of plead ing and proving the affirm ative 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 of section 568.040,

RSMo Supp. 2011 . The information state d 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

. 1 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 childr en

.
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

. T he 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, c reated 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 , requiri ng the

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

--- , 2015 WL 3979728 (No. SC94526) (Mo. banc 2015).3 State to prove only that a defendant (1) knew there was a support obligation and (2) did
not provide support. The State appeals

. 2

Standard of Review
A constitutional challenge to a statute is a question of law
, which this Court

reviews de novo

. State v. Young , 362 S.W.3d 386, 390 (Mo. banc 2012). Statutes are presumed valid and will be construed in favor of constitutional validity

. Glossip v. Mo.
Dept. of Transp. And Highway Patrol Employees’ Ret. Sys. , 411 S.W.3d 796, 801 (Mo.
banc 2013). The statute will be invalidated if the challenger proves that it clearly and
undoubtedly violates a constitutional provision. Id.
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 legally 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 defense 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).

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. 3.4 T o 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 nonsup port 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 definitional elements of nonsupport in p aragraph 1, the legislature

amended paragraph 3 to add that “i nability to provide support for good cause” was an

affirmative defense that the defendant must raise and prove by a preponderance 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 interpret it as requir ing 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 constitutional ly permitted to draft the statute in a manner that addressed

“ good cause ” in overlapping ways

. Id. In attempting to clarify legislative intent, the
Court speculated that the legislature may have intended for “ good cause ” to be an5 affirmative defense rath er than an element of the offense

. Id. at 813. This objective
could have been accomplished, the Court stated in dicta
, if the legislature had remov ed
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 r etained “inability to provide support for good

cause” as an affirmative defense

. 3 Holmes , 399 S.W.3d at 814. As such, criminal

nonsupport may occur when a parent “knowingly fails to provide adequate support .”

Because t he 2009 version of section 568.040 governed in Holmes
, the Court specifically

declined to discuss the constitutional validity of the 2011 amendment

. Id. at 814 n.3.

That is the question now before the Court.
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 expressed

as an affirmative defense
, and that due process permits a defendant to bear the burden of
proof on affirmative defense s . It argues that when “without good cause” w as 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 pu rpose to punish only

3 The Holmes decision mistakenly referred to this amendment as having taken place in 2012. The amendment w as actually effective August 28, 2011
, and included in the 2011 cumulative supplement to the Revised Missouri Statutes.6 recalcitrant parent s , 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 abilit y to suppo rt

. Father’s argument is misplaced as it is squarely 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 act with criminal intent. Father may well believe

that it is a bad policy to allow the kno w ing fail u re to provide support alone to be sufficient

for cri m inal liability because the purpose of section 568.040 is to punish only recalcitrant

parent s

. Yet i t 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 i s not alone in structuring its statute in this manner

. 4 R egardless of the wisdom
of the policy
, Father has offered no co m pelling authority w hy the legislature w as constitutionally prohibited fro m defining “ nonsupport ” as the knowing failure to provide
adequate support. This C ourt agrees w ith the S tate and finds that “w ithout good cause” is

4 Language similar to “without good cause
, ” expressed as an element of the offense
, or “inability to provide support for good cause
, ” as an affirmative defense, is recognized by the criminal nonsupport stat ut es 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 Social Media Evidence in Crim inal Child Support Prosecutions , 7 P HOENIX L. R EV . 1, 9 (2013) (internal quotations omitted)

. Today, Missouri and n ine other states elect to express the idea of good cause, in some fashion, as an affir mative defense for the defendant to prove : Arizona, Arkansas, Connecticut, Delaware, Minnesota, Nevada, Ohio, Oregon, and Utah.7 not a n i m pli e d el em ent of section 568.04 0

. As a result, the burden of proof was not
shifted to Father on any element of the offense. 5
The question then remains whether it is permissible for the legislature to place
the burden of proof on a defendant to plead 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, the 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

influ ence 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.” I d. at 210. This analysis

5 Father’s reliance on the United States Supreme Court decision of Hicks v. Feiock is misplaced. 485 U.S. 624 (1988). In Hicks
, the defendant challenged California’s c ivil contempt statute after he was held in contempt for failing to comply with a court order to make child support payments. Id. at 626. A California state court had previously interpreted the statute and found that “inability to comply” was not an affir mative defense but
, rather
, was an element of contempt that the statute required the contemnor to prove. Id. at 629. The Supreme Court remanded the case to determine whether the contempt proceeding was criminal or civil, but it suggested that the statute , as construed by the California court, would violate due process if applied in a criminal proceeding. Id. at 637, 641. Father relies on this dicta. However, the Supreme Court made it clear that it was deferring to the California court’s interpretation of its own statute. That interpretation is inapposite to section 568.040 , in which “ w ithout good cause” is not an element of the crime and “ inability to provide support for good cause ” is explicitly listed as an affirmative defense. Hicks does not assist Father

.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 , 616 S.W.2d 809, 816 n.6 (Mo. banc 1981) (defendant b ears burden of
production and persuasion on affirmative defense).

Conclusion
Section 568.040 is fully compliant with constitutional standards of due process.

T he judgment of the trial court is reversed , and the case is remanded

.

___________________________ Mary R. Russell , Judge

All concur.