            SUPREME COURT OF MISSOURI
                     en banc
STATE OF MISSOURI,                                      )
                                                        )
              Appellant,                                )
                                                        )
v.                                                      )       No. SC94668
                                                        )
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 constitutions. 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 the
burden of pleading and proving the affirmative 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 stated 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 children.

       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. The 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, created 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, requiring 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).
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. MO. CONST. art. V, sec. 3.
                                                3
       To 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 nonsupport 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 paragraph 1, the legislature

amended paragraph 3 to add that “inability 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 requiring
       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 constitutionally 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 an

                                               4
affirmative defense rather than an element of the offense. Id. at 813. This objective

could have been accomplished, the Court stated in dicta, if the legislature had removed

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 retained “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 the 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 defenses. It argues that when “without good cause” was 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 purpose to punish only



3
 The Holmes decision mistakenly referred to this amendment as having taken place in 2012.
The amendment was actually effective August 28, 2011, and included in the 2011 cumulative
supplement to the Revised Missouri Statutes.
                                              5
recalcitrant parents, 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 ability to support.

       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 knowing failure to provide support alone to be sufficient

for criminal liability because the purpose of section 568.040 is to punish only recalcitrant

parents. Yet it 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 is not alone in structuring its statute in this manner. 4 Regardless of the wisdom

of the policy, Father has offered no compelling authority why the legislature was

constitutionally prohibited from defining “nonsupport” as the knowing failure to provide

adequate support. This Court agrees with the State and finds that “without 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 statutes 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 Criminal Child Support Prosecutions, 7 PHOENIX L. REV. 1, 9 (2013) (internal
quotations omitted). Today, Missouri and nine other states elect to express the idea of good
cause, in some fashion, as an affirmative defense for the defendant to prove: Arizona, Arkansas,
Connecticut, Delaware, Minnesota, Nevada, Ohio, Oregon, and Utah.
                                                6
not an implied element of section 568.040. 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

influence 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.” Id. 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 civil 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 affirmative 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 “without 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.
                                               7
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 bears burden of

production and persuasion on affirmative defense).

                                      Conclusion

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

The judgment of the trial court is reversed, and the case is remanded.



                                                ___________________________
                                                Mary R. Russell, Judge


All concur.




                                            8
