No. 01-686 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 284 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

MICHAEL JAMES PRICE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Kenneth R. Neill, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Chad Wright, Appellate Defender Office, Helena, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana 

Brant S. Light, Cascade County Attorney, John W. Parker, Deputy County 

Attorney, Great Falls, Montana 

Submitted on Briefs: July 2, 2002 

 Decided: December 10, 2002 

Filed: 

__________________________________________ 

Clerk
2 

Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 The Appellant, Michael Price, was charged with nonsupport, a 

felony, in violation of § 45-5-621, MCA (1997), in the District 

Court for the Eighth Judicial District in Cascade County. He was 

convicted following trial by jury and appeals from that conviction. 

 We reverse the judgment of the District Court and remand to the 

District Court for a new trial. 

¶2 Price raises six issues on appeal. We conclude that the 

following issues are all that need be addressed: 

¶3 1. Was there sufficient evidence for a reasonable trier of 

fact to find beyond a rational doubt that Price was capable of 

providing support? 

¶4 2. Did Instruction No. 6 violate Price’s right to be free 

from ex post facto application of new laws that increase 

punishment? 

¶5 3. Did Instruction No. 7 impermissibly shift the burden of 

proof of an essential element of the offense to Price? 

FACTUAL AND PROCEDURAL BACKGROUND 

¶6 Michael James Price is the natural father of a child born on 

July 15, 1984. Price and the child’s mother, the former Sharon 

Newman, entered into a Child Custody and Support Agreement in March 

of 1988. Pursuant to the agreement, Price was required to pay 

Newman $125 per month for child support while he was unemployed. 

That amount increased to $228 for late payments. When he secured 

employment, it was agreed that his child support obligation would 
3 

increase to $228 per month or the adjusted amount pursuant to the 

Child Support Guidelines, whichever was greater. 

¶7 In January 1989, approximately nine months after entering the 

agreement, Price began serving a five-year sentence in a federal 

penitentiary for drug distribution. During his incarceration, 

Price estimates he made about $5 a month and was unable to make 

child support payments. His payments increased to $228 per month 

pursuant to the Child Custody and Support Agreement while he was in 

prison and accrued until he was released from prison on April 17, 

1994. The Child Support Enforcement Division (CSED) made no 

attempt to collect child support payments from Price while he was 

incarcerated. 

¶8 In March of 1994, Nancy Steffens from CSED calculated that 

Price’s child support obligation was $228 per month pursuant to the 

1988 Child Custody and Support Agreement and $706 per month for the 

$16,944, which was past due at the time. She did not know whether 

he was capable of making the payments or what his income was at 

that time. Nevertheless, Steffens attempted to garnish Price’s 

wages because he failed to make voluntary payments. 

¶9 The child was adopted by his stepfather on May 29, 1996. At 

that time, Price’s obligation for additional child support ended. 

However, his obligation to pay the past due child support 

continued, as did CSED’s attempts to collect it. CSED was able to 

collect $3394.55 through the garnishment of Price’s wages and 

unemployment benefits. 
4 

¶10 Price’s post-release employment is not well established. He 

volunteered little information to the CSED about his employment 

between 1988 and 1996 and it remains unclear exactly how many jobs 

he held during this period. Steffens testified that Price held 

numerous jobs following his release in April of 1994. However, 

there is no indication of when or how long Price was employed, or 

what his income was while employed at the various jobs referred to 

by Steffens. Price admitted that he earned about $200 per week for 

around one year while working for Skates Communication in 1994 and 

$22 per hour while working for a short period of time at Talcott 

Construction. It is not clear whether Price was employed with 

Talcott before or after his child was adopted. From January of 

1996 to May of 1996, Price received $372 per month as unemployment 

benefits. 

¶11 On May 14, 1999, Price was charged by Information with 

committing the offense of Nonsupport, a Felony, in violation of § 

45-5-621, MCA (1997), for the period between March 1988 and May 

1996. A unanimous jury found Price guilty on May 21, 2001, and 

Price received the two-year maximum sentence pursuant to the 

District Court’s Judgement of Conviction and Sentence issued on 

August 14, 2001. 

DISCUSSION 

ISSUE 1 

¶12 Was there sufficient evidence for a reasonable trier of fact 

to find beyond a rational doubt that Price was capable of providing 

support? 
5 

¶13 Price contends that the State did not produce sufficient 

evidence to prove that he was financially capable of making 

payments during the period in which nonsupport was a felony. 

¶14 We review the sufficiency of evidence to support a verdict to 

determine whether, after reviewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt. State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont. 472, ¶ 7, 2 

P.3d 242, ¶ 7. This familiar standard pays proper deference to the 

responsibility of the trier of fact to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts which are proven. State v. Brown (1989), 239 

Mont. 453, 457, 781 P.2d 281, 284 (citation omitted). 

¶15 Section 45-5-621, MCA (1997), provides in relevant part: 

(1) A person commits the offense of nonsupport if the 

person fails to provide support that the person can 

provide and that the person knows the person is 

legally obliged to provide to a spouse, child, or 

other dependant. 

. . . . 

(3) If a defense to the charge of nonsupport is 

inability to pay, the person’s inability must be 

the result of circumstances over which the person 

had no control. In determining ability to pay, 

after an allowance for the person’s minimal 

subsistence needs, the support of a spouse, child, 

or other dependent has priority over any other 

obligations of that person. 

. . . . 

(7)(b) A person convicted of nonsupport who has 

failed to provide support under a court order or 

administrative order for 6 months or more or who 

has failed to provide support in a cumulative 

amount equal to or in excess of 6 months’ support 
6 

shall be fined not to exceed $5,000 or be 

imprisoned in the state prison for a term not to 

exceed 2 years, or both. [Emphasis added.] 

¶16 Nonsupport became a felony in 1993 when subsection 7(b) was 

added to the offense of nonsupport. Section 45-5-621(7)(b), MCA 

(1993). The prohibition against ex post facto application of the 

law, discussed in the next section of this Opinion, limits the time 

period during which the felony Price was charged with could 

actually have been committed to acts occurring after October 1, 

1993, and prior to May 29, 1996, the date on which his child was 

adopted. Therefore, only evidence of ability to provide support 

subsequent to October 1, 1993, and prior to May 29, 1996, is 

relevant to Price’s conviction. 

¶17 Price maintains that because the definition of “support 

obligation” in § 40-5-201 (13), MCA (1997), includes the amount 

created by a failure to provide support or the amount owed pursuant 

to a support order, the ability to pay support means the ability to 

meet his total support obligation, which in his case was $924 per 

month. He contends that because the evidence at trial was 

insufficient to prove that he could meet his $924 per month support 

obligation, he could not be convicted of violating § 45-5-621, MCA 

(1997). 

¶18 However, Price’s interpretation is belied by the plain 

language of the statute and contravenes the purpose of the statute. 

 The relevant language reads “the person fails to provide support 

that the person can provide . . . .” Section 45-5-621(1), MCA 

(1997). The purpose of § 45-5-621, MCA (1997), is to compel an 
7 

obligated parent to perform his or her duty and pay support that he 

or she is capable of paying. A defendant who is not capable of 

paying the entire amount of his support obligation is not immune 

from prosecution for nonsupport if he failed to pay support even 

though he could have paid, whether that amount was $50 or $500. 

¶19 The State produced evidence, and Price testified, that he was 

employed part of the time between 1994 and 1996. The evidence was 

that Price made $200 per week for about a year starting at some 

point in 1994. However, Price made no voluntary payments between 

April 17, 1994, and January 1, 1996, when CSED began garnishing his 

unemployment benefits. Based on this evidence, we conclude that a 

rational trier of fact could have found that Price had the ability 

to pay some support, even if the amount was limited, and that 

satisfied the State’s burden to prove that Price was able to pay 

child support. 

ISSUE 2 

¶20 Did Instruction No. 6 violate Price’s right to be free from ex 

post facto application of new laws that increase punishment? 

¶21 Price contends that the manner in which the felony nonsupport 

statute was applied to his case violated his fundamental 

constitutional right to be free from ex post facto laws. He 

maintains that it is impossible to determine whether the jury 

unanimously agreed that he violated the law after October 1, 1993, 

the time when nonsupport became a felony, because he was charged 

with continuous conduct from March of 1988 through May of 1996. 

Price further argues that this Court should review the issue under 

the plain error doctrine, in spite of his trial attorney’s failure 
8 

to contemporaneously object, because it implicates Price’s 

fundamental constitutional rights. In the alternative, he asks 

that we determine whether his attorney was ineffective for failing 

to object on these grounds. The State contends that the court’s 

instruction did not amount to plain error and that Price’s failure 

to object at the District Court bars him from raising the issue on 

appeal. 

¶22 Typically, a defendant’s failure to preserve an issue in the 

district court precludes him from raising the issue on appeal. 

Section 46-20-104(2), MCA, provides: 

Upon appeal from a judgment, the court may review the 

verdict or decision and any alleged error objected to 

which involves the merits or necessarily affects the 

judgment. Failure to make a timely objection during 

trial constitutes a waiver of the objection except as 

provided in 46-20-701(2). 

Section 46-20-701(2), MCA, sets forth the statutory exceptions to 

the objection requirement, however, none of those exceptions are 

present in this case. 

¶23 Nonetheless, in State v. Finley (1996), 276 Mont. 126, 137, 

915 P.2d 208, 215, we acknowledged the inherent power and paramount 

obligation of this Court to protect the rights set forth in the 

Montana Constitution. We held: 

[T]his Court may discretionarily review claimed errors 

that implicate a criminal defendant’s fundamental 

constitutional rights, even if no contemporaneous 

objection is made and notwithstanding the inapplicability 

of the § 46-20-701(2), MCA, criteria, where failing to 

review the claimed error at issue may result in a 

manifest miscarriage of justice, may leave unsettled the 

question of fundamental fairness of the trial or 

proceeding, or may compromise the integrity of the 

judicial process. 

Finley, 276 Mont. at 137, 915 P.2d at 215. 
9 

We emphasize that common law plain error is to be employed 

sparingly, on a case-by-case basis, pursuant to the narrow 

circumstances carved out by our holding in Finley. Finley, 276 

Mont. at 138, 915 P.2d at 215. It is not a prophylactic for 

careless counsel. 

¶24 Before we invoke common law plain error review, we must first 

determine whether the alleged error implicates Price’s fundamental 

constitutional rights. Finley, 276 Mont. at 137, 915 P.2d at 215; 

State v. Weaver, 1998 MT 167, ¶ 26, 290 Mont. 58, ¶ 26, 964 P.2d 

713, ¶ 26. The United States Constitution and the Montana 

Constitution expressly prohibit the enactment of ex post facto

laws. U.S. Const., Art. I, § 10, cl.1; Article II, Section 31, 

Montana Constitution. We have held that the constitution prohibits 

ex post facto laws that: 1) retroactively make innocent action 

criminal; 2) enlarge the definition of a crime; or 3) increase the 

punishment for criminal acts. State v. Goebel, 2001 MT 155, ¶ 27, 

306 Mont. 83, ¶ 27, 31 P.3d 340, ¶ 27. Because the prohibition in 

the Montana Constitution is found in our Bill of Rights, there is 

no question that ex post facto application of the law, if present 

in this case, violates Price’s fundamental constitutional rights. 

¶25 Next, we must determine whether the failure to review Price’s 

claim will result in a manifest miscarriage of justice, leave 

unsettled the question of the fundamental fairness of Price’s 

trial, or compromise the integrity of the judicial process. 

Finley, 276 Mont. at 137, 915 P.2d at 215; Weaver, ¶ 27. We 

conclude that the question of whether Price was convicted of felony 

nonsupport for conduct that occurred before the felony nonsupport 
10 

statute was enacted brings into question the fundamental fairness 

of Price’s trial. Accordingly, the issue of whether Price was 

subjected to ex post facto application of the law requires this 

Court to review Price’s appeal pursuant to the common law plain 

error doctrine in spite of the fact he did not raise the issue 

before the District Court. 

¶26 The District Court gave the jury the following instruction: 

Instruction No. 6: 

Defendant is charged in the information with the crime of 

Nonsupport, a violation [sic], on or about a period of 

time between March, 1988 and May, 1996. In order to find 

the Defendant guilty, it is necessary for the prosecution 

to prove beyond a reasonable doubt the commission of a 

[sic] specific acts constituting the crime within the 

period alleged. And, in order to find the Defendant 

guilty, you must unanimously agree upon the commission of 

the same specific acts constituting the crime within the 

period alleged. It is not necessary that the particular 

act or acts committed so agreed upon be stated in the 

verdict. 

No other explanation or guidance was provided to the jury by the 

court. Pursuant to Instruction No. 6, the jury returned a verdict 

that found Price guilty of the charge. 

¶27 Price contends that because the crime with which he was 

charged and for which he was convicted did not become a felony 

until October 1, 1993, Instruction No. 6, which permitted the jury 

to find him guilty based on acts committed from 1988 through 1996, 

 subjected him to an increased punishment for conduct that occurred 

prior to the effective date of the statute and, therefore, 

constituted ex post facto application of the law. We conclude that 

Price is correct. 

¶28 On October 1, 1993, the Montana Legislature amended the 

offense of nonsupport and provided for felony penalties in addition 
11 

to the previous misdemeanor penalty. The new statute provided that 

any failure to meet a child support obligation subjected a person 

to a $500 fine, or six months in jail, or both. Section 45-5-

621(7)(a), MCA (1993). However, a failure to meet a child support 

obligation for a period of six months or in a cumulative amount 

equal to six months was punishable by a $5,000 fine, or two years 

in prison, or both. Section 45-5-621(7)(b), MCA (1993). Price’s 

failure to make child support payments was only punishable as a 

misdemeanor prior to October 1, 1993. However, the jury was 

instructed that he could be convicted of a felony for failure to 

pay prior to that date. Furthermore, the nature of the jury’s 

verdict makes it impossible to determine the period of nonpayment 

for which he was convicted. 

¶29 On appeal, the State assures us that there is no genuine 

possibility of jury confusion on this issue and that the contention 

that Price may have been convicted for conduct that occurred prior 

to the enactment of the felony offense is without merit. However, 

in its closing argument to the jury, the State emphasized Price’s 

failure to make payments for the entire period from 1988 through 

1996. The State stressed that the five years Price spent in prison 

were the result of voluntary conduct, over which he had control, 

and did not excuse him from paying child support. The evidence 

relied on in the State’s argument related to the period of time 

from March of 1988 through October 1, 1993, and the jury was 

encouraged to consider those facts in its deliberations. The State 

encouraged the jury to consider the very evidence that it now 

contends could not have contributed to the jury’s verdict. 
12 

¶30 We conclude that it is impossible to determine the period of 

time on which Price’s conviction for felony nonsupport is based and 

that, therefore, Price’s fundamental constitutional right to be 

free from ex post facto application of the law was violated. We 

reverse the judgment of the District Court and remand to the 

District Court for a new trial. 

ISSUE 3 

¶31 Did Instruction No. 7 impermissibly shift the burden of 

proof of an essential element of the offense to Price? 

¶32 Price contends that Instruction No. 7 violated his 

constitutional right to due process because it impermissibly 

shifted the burden of proof of an essential element of the offense. 

 He asserts that language used in Instruction No. 7, which 

required that the inability to pay support result from 

circumstances over which the defendant had no control, relieved the 

prosecution from having to prove that Price had the ability to pay 

support. Price further argues that this Court should review the 

issue under the plain error doctrine, in spite of his failure to 

contemporaneously object, because it implicates his constitutional 

right to due process. 

¶33 One of the fundamental principles of the criminal justice 

system is the requirement that the State prove each element of a 

charged offense beyond a reasonable doubt. In re Winship (1970), 

397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368; State 

v. Fuller (1994), 266 Mont. 420, 422, 880 P.2d 1340, 1342. The 

United States Supreme Court’s holding in Winship is clear: “[W]e 

explicitly hold that the Due Process Clause protects the accused 
13 

against conviction except upon proof beyond a reasonable doubt of 

every fact necessary to constitute the crime with which he is 

charged.” Winship, 397 U.S. at 364, 90 S.Ct at 1073. If the 

burden of proof was shifted as Price claims, there is no doubt his 

fundamental constitutional rights have been violated. 

¶34 Next, we must determine whether the failure to review Price’s 

claim will result in a manifest miscarriage of justice, leave 

unsettled the question of the fundamental fairness of Price’s 

trial, or compromise the integrity of the judicial process. 

Finley, 276 Mont. at 137, 915 P.2d at 215; Weaver, ¶ 27. Burden 

shifting calls into question both the fairness of Price’s trial as 

well as the integrity of the judicial process. Therefore, we 

conclude that it is necessary to review Price’s due process claim 

pursuant to the common law plain error doctrine despite the fact 

that no contemporaneous objection was made in the District Court. 

¶35 In a conclusory argument, Price contends that Instruction No. 

7 impermissibly relieves the State from proving that he had the 

ability to pay child support because it required that he prove that 

his inability was involuntary if raised as a defense. The 

challenged language is as follows: “If a defense to the charge of 

nonsupport is inability to pay, the person’s inability must be the 

result of circumstances over which the person had no control.” We 

have not had the opportunity to consider an instruction of this 

nature and rely upon general legal principles of jury instruction 

interpretation to determine whether the burden of proof has been 

shifted. 
14 

¶36 A jury instruction shifts the burden of proof when the state 

requires the accused to prove that which, by virtue of the 

definition of the crime, the prosecution is required to prove 

beyond a reasonable doubt. State v. Luchau, 1999 MT 336, ¶ 14, 297 

Mont. 415, ¶ 14, 992 P.2d 840, ¶ 14. In Sandstrom v. Montana

(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, the defendant 

argued that a jury instruction which provided, “the law presumes 

that a person intends the ordinary consequences of his voluntary 

action,” violated his due process rights because it created a 

presumption of intent and reduced the State’s burden to prove all 

of the elements of the crime beyond a reasonable doubt. In its 

analysis, the Court stated, “whether a defendant has been accorded 

his constitutional rights depends on the way in which a reasonable 

juror could have interpreted the instruction.” Sandstrom, 442 U.S. 

at 514, 99 S.Ct. at 2454. The Court held that the instruction 

could have been interpreted as creating a burden shifting or 

conclusive presumption and deprived the defendant of due process of 

law. Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459. 

¶37 “In determining what facts must be proven beyond a reasonable 

doubt, the state legislature’s definition of the elements of the 

offense is usually dispositive.” Luchau, ¶ 13. Here, the 

legislature has defined felony nonsupport as the failure to pay 

child support where there is an ability to do so, or where the 

inability to do so is the fault of the person accused. Therefore, 

it is the State’s burden to prove that the defendant had the 

ability to pay child support or that the defendant’s inability to 

do so was his own fault. While the District Court’s Instruction 
15 

No. 7 did not expressly shift the burden of proving those facts to 

Price, we conclude that its wording and specifically its reference 

to inability as a “defense” could have been misleading regarding 

the State’s burden and, therefore, direct that on re-trial 

Instruction No. 7 not be given in its current form. 

¶38 Price also contends that his sentence was imposed in violation 

of § 46-1-401, MCA. However, because his conviction has been set 

aside and the case is remanded, his sentence is also vacated and we 

need not address whether it was legally imposed. 

¶39 For these reasons, the judgment of the District Court is 

reversed and this case is remanded to the District Court for a new 

trial. 

/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ JIM REGNIER 

/S/ JAMES C. NELSON 

/S/ W. WILLIAM LEAPHART 

/S/ PATRICIA COTTER