                                         In the
                        Missouri Court of Appeals
                                 Western District
 STATE OF MISSOURI,                          )
                                             )
               Respondent,                   )   WD81294
                                             )
 v.                                          )   OPINION FILED: May 21, 2019
                                             )
 MARK LINDELL MARTIN,                        )
                                             )
                Appellant.                   )

              Appeal from the Circuit Court of Boone County, Missouri
                          The Honorable Jeff Harris, Judge

 Before Division Two: Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge
                          and Cynthia L. Martin, Judge


       Mark L. Martin ("Martin") appeals from the trial court's entry of judgment

convicting him of felony criminal nonsupport after a bench trial. Martin argues that there

was insufficient evidence to establish that the total arrearage referred to in the State's

information accrued during the three-year statute of limitations period or with respect to

the son referred to in the information. Finding no error, we affirm.
                                   Factual and Procedural History1

        On December 10, 2015, the State filed an information ("Information") charging

Martin with the class D felony of criminal nonsupport under section 568.040, 2 for failing

to provide adequate support during September 1, 2012 and October 31, 2012, for his son,

Sean, ("Son"), whom he was legally obligated to support, and for accruing a total arrearage

in excess of twelve required monthly child support payments. An amended information

("Amended Information") alleged that "[Martin] owes, a total arrearage of $93,390.97,

which is in excess of an aggregate of twelve monthly payments of $458.00 due under an

order of support."3

        The following evidence was established during a trial to the court. Martin married

Son's mother, ("Mother"), and the couple had three children during the marriage. Martin

and Mother divorced in 1999. The divorce decree ordered Martin to pay child support in

the amount of $1,000 per month, but did not allocate the amount amongst the three children.

In 2002, Martin's child support obligation was modified by court order to $768 per month.

        In 2006, a trial court found Martin in contempt for failing to comply with the child

support order. The court found that Martin had accrued an arrearage of $66,562.59.

Martin's child support obligation was reduced to $595 per month. In 2009, Martin's child

support obligation was again modified by court order to $458 per month.



         1
           When reviewing a conviction for sufficiency of the evidence, we view the evidence in the light most
favorable to the verdict. State v. Barton, 552 S.W.3d 583, 586-87 (Mo. App. W.D. 2018).
         2
           All statutory references are RSMo 2000, as supplemented and in effect in September and October 2012,
unless otherwise indicated.
         3
           The Amended Information was identical to the original Information with the exception of the total
arrearage identified. The total arrearage in the original Information was identified as $105,704.61.

                                                        2
       A Support Calculation Summary produced by the Missouri Department of Social

Services, Family Support Division ("Summary") of Martin's child support obligation over

time was introduced by the State at trial without objection. The Summary reflected

allocation of the monthly support obligation to each child not yet emancipated. During

September 2012 and October 2012, the months referred to in the Amended Information,

Martin did not make court ordered child support payments in the amount of $458 per

month. Martin's child support obligation for those months was allocated on the Summary

between two children who were not emancipated, including Son. The Summary indicated

that by the end of October 2012, Martin's child support arrearage had grown to $93,390.97.

The Summary indicated that beginning in November 2012, the entirety of Martin's monthly

child support obligation of $458 was allocable to Son, the only unemancipated child. By

the time Martin's child support obligation ended in October 2015 upon Son's emancipation,

Martin's accrued arrearage totaled $106,515.42. Martin did not provide food, clothing,

shelter or medical bills for his minor children, and did not make payments directly to

Mother.

       The court found Martin guilty of felony criminal nonsupport. Martin was sentenced

to four years in prison with a suspended execution of sentence. Martin was placed on

probation for five years with the condition that he pay $1,000 per month in child support

as restitution for the arrearage.

       Martin filed this timely appeal.




                                            3
                                         Analysis

       Martin raises two points on appeal. Both points argue that the trial court erred in

overruling Martin's motions for judgment of acquittal because there was insufficient

evidence to support a conviction of felony criminal nonsupport as alleged in the Amended

Information. The first point argues that there was insufficient evidence to prove that the

total arrearage referred to in the Amended Information accrued during the three-year statute

of limitations. The second point argues that there was insufficient evidence to prove that

the total arrearage accrued as to Son, the only child mentioned in the Amended

Information.

       When reviewing the sufficiency of the evidence to support a conviction and a trial

court's denial of a motion for judgment of acquittal, we do not re-weigh the evidence. State

v. Holmes, 399 S.W.3d 809, 812 (Mo. banc 2013). Instead, we "accept as true all evidence

tending to prove guilt together with all reasonable inferences that support the verdict, and

ignore all contrary evidence and inferences." Id. "The assessment is not whether this Court

believes that the evidence established guilt beyond a reasonable doubt but, rather, whether,

in light of the evidence most favorable to the verdict, any rational fact-finder could have

found guilt beyond a reasonable doubt." State v. Barton, 552 S.W.3d 583, 586-87 (Mo.

App. W.D. 2018). "This standard for reviewing the sufficiency of the evidence applies in

both court-tried and jury-tried cases." State v. Buckler, 350 S.W.3d 848, 850 (Mo. App.

W.D. 2011).




                                             4
                                                    Point One

         Martin's first point on appeal argues that the trial court erred in overruling his motion

for judgment of acquittal because the State failed to present sufficient evidence that the

total arrearage of $93,390.97 referred to in the Amended Information "accrued within the

three-year statute of limitations period under [s]ections 568.040.5 and 556.036.2(1)."

Martin's argument misapprehends the essential elements of the crime of felony criminal

nonsupport and the nature of the statute of limitations.

         Section 568.040.1 provides that "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 [] child [] who is not otherwise emancipated by operation of law."

Section 568.040.5 further provides that criminal nonsupport is a class D felony if "the total

arrearage is in excess of an aggregate of twelve monthly payments due under any order of

support." This Court has held that according to the "plain language of the statute, the

essential elements of the class D felony of criminal nonsupport are: (1) the parent

knowingly fails to provide adequate support, (2) [] which the parent is legally obligated to

provide an unemancipated child, and [(3)] the total arrearage exceeds an aggregate of

twelve monthly payments." Generaux v. State, 448 S.W.3d 355, 358 (Mo. App. W.D.

2014).4 Martin does not challenge the sufficiency of the evidence to establish these

essential elements.


          4
            An earlier version of section 568.040 was applicable in Generaux. That version is substantially identical
to the version at issue here, except that the earlier version of section 568.040 included as an additional essential
element that the State prove that the parent failed to provide adequate support "without good cause." In 2011, the
legislature amended section 568.040 to make "inability to provide support for good cause . . . an affirmative
defense," requiring the parent to prove the defense by a preponderance of the evidence. See section 568.040.3.

                                                          5
         Instead, Martin argues that in addition to these essential elements, the State was also

required to establish as an essential element of the crime of felony nonsupport that the

"total arrearage" referred to in the Amended Information accrued within the three-year

period of the statute of limitations provided in section 556.036.5 Nothing in section

568.040 supports Martin's assertion. In fact, the plain language of section 568.040 does

not require proof of the total arrearage at all, and only requires sufficient evidence that the

"total arrearage is in excess of an aggregate of twelve monthly payments due under any

order of support." (emphasis added). In other words, the State was only required to prove

that Martin owed more than the aggregate of twelve monthly payments due under any order

of support. The State was not required to prove that the total arrearage was $93,390.97, or

that said sum accrued within a three-year period. Generaux, 448 S.W.3d at 358 (holding

that section 568.040 plainly "does not include any reference to the statute of limitations"

in relation to total arrearage, or otherwise).6

         Here, the aggregate of twelve monthly payments due by virtue of the last court order

modifying Martin's child support obligation was $5,496, given his monthly support

obligation of $458. Sufficient evidence demonstrated that Martin owed far more than this




         5
            It is not clear which three-year period Martin relies on. Martin argued at trial that the applicable three-year
period during which the State was required to prove the total arrearage accrued was during the three years preceding
the date the State filed the Information in December 2015. On appeal, Martin's brief asserts that the "State's
evidence . . . did not prove the total arrearages accrued within the three years preceding the charged offense, which
occurred in September and October 2012." [Appellant's Brief, p. 22] (emphasis added). Regardless which period,
Martin's assertion that the essential elements of the crime of felony nonsupport include proof that the "total
arrearage" accrued within a three-year period is without merit.
          6
            To the extent that Martin argues that Calvin v. State, 204 S.W.3d 220 (Mo. App. W.D. 2006) and State v.
Williams, 119 S.W.3d 674 (Mo. App. S.D. 2003) may be read to impose such a requirement, Generaux clearly held
that "these cases do not hold that arrearages must be shown to have accrued within the limitations period" to
establish sufficient evidence for felony criminal nonsupport. Generaux, 448 S.W.3d at 359.

                                                            6
amount in September 2012 and October 2012, the time frame identified in the Amended

Information.7 Sufficient evidence also established that Martin owed far more than this

amount at all points from November 1, 2012 to October 2015 when his future support

obligation ended upon Son's emancipation. Not surprisingly, Martin does not argue that

his aggregate arrearage in excess of twelve months of court ordered child support was not

accrued within a three-year period.

         That is not to say that a charge of felony nonsupport under section 568.040 is not

subject to a statute of limitations. Section 556.036.2(1) provides that, subject to limited

exceptions, the State must commence criminal prosecution of felonies within three years

of the date the alleged offense was committed. "The language of [a] statute of limitation

reads simply, stating when an action must be commenced." Dorris v. State, 360 S.W.3d

260, 268 (Mo. banc 2012) (emphasis added). Martin's point relied on does not argue,

however, that the State failed to commence its prosecution within three years of his charged

offense.8 Rather, Martin awkwardly relies on the statute of limitations in an attempt to



         7
            The State introduced testimony from Mother that Martin was in arrears more than $90,000 during the
period of the charged conduct in September 1 through October 31, 2012. The Summary documented each of
Martin's monthly payments beginning in 1999 through 2015, and included a running total of Martin's arrearage. The
Summary showed that Martin had an arrearage of $93,390.97 by the end of October 2012. The Summary also
showed that Martin accrued an additional arrearage of $13,124.45 from November 2012 to October 2015 for a total
arrearage of $106,515.42 by December 2015 when the original Information was filed.
          8
            Had Martin alleged on appeal that the trial court erred in rejecting a defense that section 556.036.2(1)
barred prosecution of the charged offense, we would have been required to determine whether the Information filed
on December 10, 2015 was time barred because it was filed more than three years after the charged conduct referred
to therein. However, Martin has not asserted that claim of error. And in any event, its resolution would not be
straight forward. There is an unexplained reference in the transcript to an original "complaint" filed in May of 2015.
In addition, the State argues that the statute of limitations applicable to Martin's offense did not expire because his
criminal nonsupport was a "continuing course of conduct" pursuant to section 556.036.4. In addition, the State
admitted evidence at trial without objection regarding Martin's continuing nonsupport after September and October
2012 and up to October 2015, suggesting that the temporal reference to September and October 2012 in the original
Information and the Amended Information may have been varied, without objection, by the evidence. Because
Martin does not argue that his prosecution for felony nonsupport was time barred, we do not address the issue.

                                                          7
engraft an unwritten essential element on to the crime of felony nonsupport by arguing in

his brief that his total arrearage was not shown to have accrued within the three-year period

preceding his charged offense.9 The time frame preceding a charged offense is generally

irrelevant to calculation of the statute of limitations.

         Even if we construe Martin to be arguing about the three-year period immediately

preceding the filing of the original Information, and thus the period from December 2012

to December 2015, the result would be the same. Regardless the three-year period at issue,

the State was not obligated to prove as an essential element of felony nonsupport that the

total arrearage owed by Martin accrued within a three-year period.10

         The trial court did not err in overruling Martin's motion for judgment of acquittal

because sufficient evidence supported a finding of guilt for felony criminal nonsupport

under section 568.040.

         Point One is denied.

                                                   Point Two

         Martin's second point on appeal argues that the trial court erred in overruling his

motion for judgment of acquittal because the State was required to prove that the total

arrearage of $93,390.97 "applied only for the support of [Son], who was the only child

listed in the Amended Information."




         9
          See footnote 5, supra.
         10
           We need not address whether the aggregate amount owed of at least twelve months of court ordered
support, which is an essential element of the crime of felony nonsupport, must have accrued in its entirety within the
three-year period immediately preceding the filing of a charge, an issue that is not presented by this appeal.

                                                          8
         As discussed in Point One, proof of the total arrearage is not an essential element of

felony nonsupport, whether or not the total arrearage is referred to in the charging

instrument. See Generaux, 448 S.W.3d at 358; section 568.040.5. It follows that proof

that the total arrearage was accrued with respect only to the child referred to in a charging

instrument is not an essential element of felony nonsupport.

         Here, as Son was the only child referred to in the Amended Information, the State

was only required to prove that Martin was in arrears in excess of an aggregate of twelve

monthly payments due under an order of support for Son. According to the Summary

admitted into evidence without objection, Martin's court ordered child support obligation

as of early 2009 was $458 per month, and was allocable to two children, including Son,

until November 1, 2012. Even affording Martin the benefit of treating only half of this

monthly obligation as the amount owed for Son's support, an assumption not supported by

precedent,11 the Summary establishes that Martin was in arrears in an aggregate of more

that twelve months court ordered support for Son as of the end of October 2012.

         Despite this evidence, Martin asserts that "the State presented no evidence as to

what specific arrearages applied to the ordered support of [Son] and what the total

arrearages as to [Son] existed at the time of the charged nonsupport." [Appellant's Brief,

p. 28]. In so arguing, Martin relies on State v. Sellers, 77 S.W.3d 2 (Mo. App. W.D. 2002).

Martin's reliance is unavailing.


           11
              "When a court awards child support for more than one child as a 'lump sum,' the obligor owes that amount
until all the children are emancipated and cannot reduce the amount owed pro rata as the children reach majority
without the prior approval of the court." Ogden v. Henry, 872 S.W.2d 608, 611 (Mo. App. W.D. 1994). In addition,
as the number of children subject to a Form 14 child support calculation increases or decreases, the amount of
support does not increase or decrease incrementally. Form 14, Line 12, Comment B.

                                                          9
       In Sellers, a mother was charged with one count of criminal nonsupport for failure

to support her three children. Sellers, 77 S.W.3d at 5. Under the version of section 568.040

then in effect, nonsupport was a felony if total child support arrearage was in excess of

$5,000. Id. at 6. The state charged the mother with one count of felony nonsupport because

her arrears owed for support of the three children totaled $7,520.95. Id. at 5. The court

reasoned that by "naming all three children in the single count . . . the State increased its

burden of persuasion because the jury was instructed that to find [the mother] guilty of

nonsupport, [the jury] had to find that [the mother] had failed to support all three children."

Id. at 6. The court held that there was insufficient evidence to support the mother's

conviction because "while the evidence showed that [the mother's] total child support

arrearage was $7,520.95, the evidence was insufficient to show that the total arrearage for

one child was in excess of $5,000." Id.

       Unlike Sellers, here, the State only named Son, and not Martin's two other children.

Also unlike Sellers, here, sufficient evidence supported a finding that Martin's arrears for

Son were in excess of a twelve-month child support obligation attributable to Son. A

review of the Summary would permit a rational fact-finder to determine Martin's obligation

to Son under the support order, and in what months Martin failed to meet that obligation.

Contrary to Martin's argument, there was plainly sufficient evidence to support a finding

that Martin's arrears, as they related to Son, were in excess of twelve monthly court ordered

payments.

       Finally, Martin argues that because the Amended Information referred to a monthly

support obligation of $458, the State was required to prove that Martin was obligated to

                                              10
pay that much on Son's behalf during September 2012 and October 2012, and in the months

relied on to establish his aggregate arrearage. We disagree. Proof of felony nonsupport

required only that the State establish that Martin owed in excess of the requisite aggregate

arrearage attributable to Son, which the State plainly did in this case. The variance between

the total monthly support obligation of $458 referred to in the Amended Information and

the amount of that obligation attributable to Son was not material. State v. Davis, 675

S.W.2d 410, 417 (Mo. App. W.D. 1984) (holding that a defendant convicted of criminal

nonsupport was not prejudiced when there was an immaterial variance between the

charging document and the evidence); State v. Arnett, 370 S.W.2d 169, 174-75 (Spr. Ct.

App. 1963) ("One who is accused of stealing a fat hog should not be permitted to complain

because the hog was lean.").

       The trial court did not err in overruling Martin's motion for judgment of acquittal

because sufficient evidence supported a finding that Martin's arrearage, as it related to Son,

was in excess of an aggregate of twelve monthly support payments required by court order.

       Point Two is denied.

                                        Conclusion

       The trial court's Judgment is affirmed.



                                           __________________________________
                                           Cynthia L. Martin, Judge


All concur



                                             11
