Justices say Legislature wrong on felony child support

By Steve Korris | May 29, 2008


CHARLESTON – West Virginia legislators violated state and national constitutions when they forced fathers facing felony child support charges to prove they couldn't pay, the Supreme Court of Appeals decided May 23.

The Justices unanimously erased a law stating that in child support prosecutions "the defendant's alleged inability to reasonably provide the required support may be raised only as an affirmative defense, after reasonable notice to the State."

The law "unconstitutionally shifts to a defendant the burden of disproving an element of the offense," Justice Robin Davis wrote. "We have previously observed that it is a foundation of criminal law that the State must prove all the elements of a crime beyond a reasonable doubt."

The law violates due process under Article III of the West Virginia Constitution and the 14th Amendment to the United States Constitution, she wrote.

The Justices granted a new trial to Gabriel Stamm in Harrison County after Circuit Judge James Matish sentenced him to prison for a year to three years.

Matish also ordered Stamm to pay court costs and to make restitution of $7,386 to the mother of his child, Rebecca Roth, and $1,864 to the state.

Officers arrested Stamm Dec. 22, 2005, on a complaint from Roth that he hadn't made a monthly payment in more than a year.

He had acknowledged paternity in March 2004, and for a few months he had paid Roth $167.52 a month.

Grand jurors indicted him in 2006 on a felony charge of failure to meet an obligation to provide support to a minor.

Stamm moved to dismiss on constitutional grounds. Matish denied the motion.

At trial, Stamm asserted inability to pay as an affirmative defense.

When the state closed its case, Stamm moved for acquittal. He argued that the state failed to demonstrate his ability to pay.

Matish denied the motion, so Stamm presented evidence for his inability to pay and moved again for acquittal. Again Matish denied it.

"If the evidence of inability to pay creates a reasonable doubt in the minds of the jury whether the accused could reasonably provide the support obligation at the time alleged in the indictment, then the jury must return a verdict of not guilty," Matish told jurors.

Jurors found Stamm guilty of the felony charge and Matish sentenced him.

On appeal, Harrison County assistant prosecutor Kurt Hall argued that Matish's instruction cured any problem of due process.

Davis disagreed, writing that Matish "did not make it absolutely clear that the burden remained on the State to prove, beyond doubt, Mr. Stamm's inability to pay."

"... the instruction could have misled the jury into believing that Mr. Stamm bore the burden of proof as to his ability to pay support," Davis wrote.

Greta Davis of Public Defender Corporation in Clarksburg represented Stamm.

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