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State v. Link7/26/2005
Opinion Vote: AFFIRMED.
Ellis, P.J., and Spinden, J., concur.
Opinion:
Appellant, Bradley J. Link, Sr., appeals from his conviction of one count of felony criminal nonsupport of his child in violation of section 568.040. Link claims on appeal that the State did not prove beyond a reasonable doubt that he failed to provide "adequate support" for his child between January 1999 and January 2002, in violation of his due process rights under the Fourteenth Amendment to the United States Constitution and Article I, section 10 of the Missouri Constitution. In support, Link argues that the trial court found good cause for his nonpayment for nine of the thirty-six-month time period included in the charge, thereby making him responsible for only twenty-seven months of payments at $200 per month, for a total of $5,400. Because Marla Broadbent, the mother of his child ("Mother"), received $6,892.37 through involuntary garnishments of Link's tax refund and personal injury settlement proceeds during this time period, Link argues that the State failed to show that this was not "adequate support" for the child.
For the reasons stated below, we affirm the judgment of the trial court.
Background
Link was married to Mother, and they had a son. When Link and Mother divorced in 1991, Link was ordered to pay Mother $200 per month in child support.
In 1992, Link suffered a work-related injury, which left him with a permanent fifty-three percent partial disability in his right hand. Link testified at trial that he tried to find employment in a factory-type setting but could not pass the necessary physicals. He claims this is why he was unemployed during the time period charged. Link was also incarcerated in the county jail for nine months of the charged time period on unrelated charges that were eventually dropped.
Link made no voluntary payments of child support between January 1999 and January 2002. Mother did receive $573 in May 1999, from an IRS tax return intercept related to Link's 1998 income. Mother also received $6,319.37 in March 2001 from the garnishment of Link's personal injury settlement proceeds. At that time, Link was in arrears in the amount of $10,079 for his child support obligation. Link's child support records with the state do not reflect the lump sum payment from the garnished settlement proceeds, but the records do show that the tax refund check was applied to his arrearages.
Link was charged by Information in Ray County with one count of felony criminal nonsupport under section 568.040. To support the felony charge, the State alleged that Link failed to provide adequate food, clothing, lodging, and medical attention to his child from January 1999 through January 2002, and that Link was in arrears over $5,000. Link waived a jury trial, and the case was tried as a bench trial before the Honorable Werner A. Moentmann in the Circuit Court of Ray County. The trial court found that, except for his ninemonth incarceration, Link had the ability to provide support during the thirty-six-month time period charged. Thus, the trial court found him guilty of felony criminal nonsupport, for which it sentenced him to five years imprisonment. Link was released on probation after serving a 120-day shock incarceration, but that probation was subsequently revoked when he failed to abide by the condition that he pay child support.
This court granted Link's motion for leave to file his notice of appeal out of time, and this appeal follows. Link claims on appeal that the State did not prove beyond a reasonable doubt that he failed to provide "adequate support" for his child between January 1999 and Ja
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