Opinion
No. WD67860
March 4, 2008
Appeal from the Circuit Court of Cole County, The Honorable Thomas Lloyd Sodergren, Judge.
Daniel Joseph Dodson, Jefferson City, MO for Appellant.
Holly Jeanette Finch, Jefferson City, MO for Respondent.
Before Paul M. Spinden, P.J., James M. Smart, Jr., and Joseph M. Ellis, JJ.
Robert Latall appeals his conviction for the class A misdemeanor of criminal nonsupport. He claims that he had good cause for his failure to pay his child support in that he did not have the financial ability to pay.
AFFIRMED.
Held: Once the State showed that Latall was required to support his child, that he was not supporting the child, and that he was able-bodied, it was incumbent upon Latall to bring forth evidence of a "substantial reason" why he was unable to provide support. Latall admitted that when he purchased the business he is now operating, the business was a failing business. He brought forth no evidence to suggest that anything about his skills or knowledge would have been able to turn the business around. In fact, all of his experience was in construction work. If the bar does not produce any net income, then continuing to operate the bar is unreasonable. Latall did not inject the issue of good cause.
This summary is UNOFFICIAL and should not be quoted or cited
Robert Latall appeals his conviction for the class A misdemeanor of criminal nonsupport in violation of section 568.040. Latall claims that he had good cause for his failure to pay his child support in that he did not have the financial ability to pay. We affirm.
All statutory references are to the Missouri Revised Statutes, 2000.
Background
Latall was determined to be the biological father of the child in question on February 1, 2000. At that time, the Cole County Circuit Court entered a Paternity Judgment and Order which outlined the child support Latall was to pay to Danette Lindsey, the child's mother. The judgment ordered him to pay $948 a month to Lindsey. Up until November of 2004, receipt of Latall's support had always been current.
Latall was charged by information on July 5, 2005, with the misdemeanor of criminal nonsupport in violation of section 568.040 for failing to provide adequate support for his minor son between November 1, 2004, and May 1, 2005. At a bench trial on December 8, 2005, the State presented the child's mother, Danette Lindsey, and court records. The evidence showed that from November 1, 2004, to May 1, 2005, Latall got credit for only one payment of $245, which was shown on the record as a "lien" payment. We suppose this means that the State intercepted a tax refund payment due to Latall.
Latall testified in his own defense. He testified that at the time he was ordered to pay the $948 per month, he was working as a manager at a sheet metal company called Nautsch Company. The record suggests that he was earning approximately $5,800 per month while working for Nautsch. Nautsch was located in Jefferson City, Missouri. He then took a similar job with a company called Hankins Roofing in the Kansas City, Missouri, area. At the time he took the job, he had two other job offers, but declined them in favor of Hankins. Hankins loaned Latall some money to help him buy a home in Kansas City. Shortly thereafter, Hankins closed down and Latall lost his job. At that time he again contacted the two other companies that had previously made offers of employment to him, but they were no longer hiring. He said he attempted to find other employment in the same field but was unsuccessful. For a period of time, he did carpentry work for $10 an hour.
In September of 2004, Latall made two withdrawals from his 401(k) with Nautsch. The first withdrawal was for $34,000 and the second was for $38,000. He used the money to buy a bar in Grain Valley, Missouri. Latall admitted that the bar was not making any money when he bought it. He also reported that the bar is not currently making any money. He gave no specific information and no financial records. He said he was forced to sell his home and buy a smaller one. He said he then lost his smaller home due to foreclosure. He apparently has moved into a room in the bar. He testified that as far as tangible assets go, he has some furniture that is valued at possibly $1500 to $2000 and a used truck for which he paid $600. He testified that he works about 17 hours a day at his bar. He has been able to buy supplies for his bar and pay his employees.
The court found Latall guilty of misdemeanor nonsupport and sentenced him to two years of unsupervised probation. Latall was ordered to show the court within 90 days at least five job contacts for additional employment and was to pay $800 per month of support with the arrearage to be paid by the end of the probation period. He failed to meet these requirements. It is unclear from the record whether he merely failed to make the payments or if he also failed to show that he had made the contacts for employment. His probation was revoked. The court sentenced him to 90 days of jail time but suspended execution of this sentence and placed him on another two years of unsupervised probation. He was again ordered to pay $800 per month and to have the arrearage paid by the end of the probation period. Latall now appeals to this court.
Standard of Review
Our review of a court-tried criminal case is the same as that of a case tried by a jury. State v. Pettry, 179 S.W.3d 295, 297 (Mo.App. 2005). We accept as true all evidence and all reasonable inferences in favor of a finding of guilt and ignore all contrary evidence and inferences. Id. We determine only whether there was sufficient evidence from which the court could have concluded beyond a reasonable doubt that the defendant was guilty. Id. However, "there must be evidence to support each element of the offense charged." State v. Degraffenreid, 877 S.W.2d 210, 212 (Mo.App. 1994).
Analysis
Latall's one point on appeal suggests that the trial court erred in finding him guilty because the State did not prove that he did not have good cause for his failure to pay his child support. Latall suggests that the evidence indicated that he lost his job due to company cutbacks, and after he was unable to find other work, he invested his retirement in a business that was not yet making money.
A person commits the crime of nonsupport if he knowingly fails to provide, without good cause, adequate support for his child that he is legally obligated to support. Section 568.040.1. "Good cause" means "any substantial reason why the defendant is unable to provide adequate support." Section 568.040.2(2). Latall has the burden of injecting the issue of "good cause" in the trial. Section 568.040.3. This means that:
(1) The issue [of good cause] referred to is not submitted to the trier of fact unless supported by evidence; and
(2) If the issue is submitted to the trier of fact any reasonable doubt on the issue requires a finding for the defendant on that issue.
Section 556.051. Therefore, once the State showed that Latall was required to support his child, that he was not supporting the child, and that he was able-bodied, it was incumbent upon Latall to bring forth evidence of a "substantial reason" why he was unable to provide support. This burden is not an easy one to meet. See generally Degraffenreid, 877 S.W.2d at 214 (The absence of earnings from employment does not absolve a parent of the duty to provide support; the defendant must also prove lack of substantial assets.)
Latall was the only witness to testify about his current financial and employment situations. Latall admitted that when he purchased the business he is now operating, the business was a failing business. Latall brought forth no evidence to suggest that anything about his skills or knowledge would have been able to turn the business around. In fact, Latall's experience, according to the record, was all in sheet metal work and other construction jobs such as carpentry. Nothing would suggest that he would have the skill or experience to be able to save a failing business.
In the past, before he began operating the bar, he had demonstrated the capability of earning a living that would have allowed him to make substantial support payments. He also testified that even while looking for work that he claimed he could not find, he worked for a period of time doing carpentry work for $10 an hour. Thus, by his own admission, there was employment available to Latall that would provide earnings.
During the time period in question, not only did Latall not pay his child support, but he provided no support in kind to his child either. Although Latall did what was necessary to operate his bar, including hosting a "customer appreciation party," and managed to keep the bar open, he provided nothing for the benefit of his minor son. Even after the charged period had expired, while Latall was awaiting trial, Latall failed to provide any voluntary support for his son. The record shows receipt of only $1,041 on May 17, 2005, and this was an intercept from Latall's tax refund.
Latall presented no financial records or anything else that would establish exactly how the bar was doing as far as producing any net income. The absence of evidence does not help Latall, because he has the burden of injecting good cause. Either (1) the bar does not produce any net income, in which case continuing to operate the bar is not reasonable; or (2) the bar produces net income, but Latall refuses to share any of that with his son. Because there was no substantial evidence of good cause, the issue of good cause was not injected into the case. The overall evidence that was admitted (and the evidence that Latall did not present) could reasonably compel the conclusion that Latall chose not to pay child support because it was not important to him. In the absence of evidence of good cause for failing to provide support, the evidence that was introduced was sufficient for a reasonable fact-finder to conclude that Latall was guilty beyond a reasonable doubt of knowingly failing to provide support without good cause.
The judgment is affirmed.
Spinden and Ellis, JJ., concur.