APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY. The Honorable J. Bartley Spear, Jr., Judge.
Claycomb was represented by Damien De Loyola of the public defender's office in Kansas City.
The state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.
LAURA DENVIR STITH, JUDGE. Russell, C.J., Fischer, Wilson, JJ, concur; Breckenridge, J., concurs in part and dissents in part in separate opinion filed; Draper and Teitelman, JJ, concur in opinion of Breckenridge, J.
Laura Denvir Stith, Judge.
Christopher Claycomb appeals his conviction for felony criminal nonsupport under section 568.040. Mr. Claycomb argues that the evidence was insufficient to support a finding of guilt of criminal nonsupport because (1) the State failed to present any evidence of what constituted " adequate support" and (2) the State failed to prove that Mr. Claycomb did not provide adequate support by providing direct, in-kind support, such as food, clothing, medicine, or lodging.
Although Mr. Claycomb did not file a motion for new trial or otherwise raise his sufficiency claim below, a claim that there is insufficient evidence to sustain a criminal conviction is preserved for review without regard to whether it was raised below.
On the merits, this Court rejects Mr. Claycomb's claim that the State presented no evidence as to what would constitute adequate support. The State presented evidence that Mr. Claycomb provided no direct monetary support for his child during the relevant time period although subject to a child support order. While a child support order is not conclusive evidence of what constitutes adequate support, it is some evidence of what is adequate. Further, the provision of no support is evidence of inadequate support.
This Court also rejects Mr. Claycomb's argument that the State must present evidence of a lack of in-kind support in order to make a prima facie case of lack of support under section 568.040. He cites no authority for the proposition that the State must prove a negative, and to so hold would be inconsistent with the long-settled principle that the State need not negate every inference of innocence to
make a prima facie case. While Mr. Claycomb was free to present evidence of adequate in-kind support, he presented no evidence that he provided any in-kind support, much less adequate in-kind support. This Court affirms.
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
Mr. Claycomb and his wife had a son, T.C. In 2004, the marriage was dissolved. The judgment of dissolution required that Mr. Claycomb pay child support in the amount of $247 per month. On June 18, 2009, the State charged Mr. Claycomb with the class D felony of criminal nonsupport under section 568.040 because he:
[K]nowingly failed to provide, without good cause, adequate food, clothing, lodging and adequate medical attention for his minor child, [T.C.], for whom [Mr. Claycomb] was legally obligated to provide such support, in that during said time [Mr. Claycomb] failed to pay any child support in each of six (6) individual months within the 12 month time period August 1, 2005 to July 31, 2006.
At Mr. Claycomb's bench trial, the State presented record evidence that, while Mr. Claycomb made the required child support payments for the first year after the dissolution, he stopped making payments from October 2005 until September 2006. The ex-wife testified that T.C. lived with her during the 12-month period from August 1, 2005, to July 31, 2006, and that Mr. Claycomb missed more than six monthly child support payments during that period. The ex-wife also testified that Mr. Claycomb did not make any direct payments to her during that time though she believed he was able to do so, stating:
Q. Now, during the time period from August 1st of 2005 to July 31st of 2006 did the defendant pay you child support each month during that time period?
Q. And did he, in fact, miss more than six months out of that 12-month time period?
Q. And during that time period did he make any direct payments to you for any sort of food, clothing, or lodging for the minor child?
Q. And are you aware of anything that would have prevented him -- either physically or mentally, during that time period of August 1st, 2005, to July 31st, 2006, that would have ...