664 S.E.2d 161
In this criminal appeal, David Gabriel Stamm, appellant, and defendant below (hereinafter Mr. Stamm), was convicted of the felony offense of failure to meet an obligation to provide support to a minor in violation of W. Va. Code § 61-5-29 (1999) (Repl. Vol. 2005). On appeal, Mr. Stamm argues that W. Va. Code § 61-5-29 unconstitutionally shifts the burden of proof to the defendant with respect to a material element of the offense. We agree, and therefore reverse his conviction and sentence, and remand this case for a new trial.
State v. Daniel, , 182 W. Va. 643, 652, 391 S.E.2d 90, 99 (1990). See also State v. Pendry, 159 W. Va. 738, 753-54, 227 S.E.2d 210, 220 (1976) (We are content to say that Mullaney [v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975),] stands for the following general propositions: (1) In a criminal case, the State is required to carry the burden of proving beyond a reasonable doubt every material element of the crime with which the defendant is charged; (2) In carrying its burden of proof beyond a reasonable doubt, the State is not entitled to an instruction which requires a jury to accept as proved beyond a reasonable doubt any element of the criminal offense charged, and this concept embraces presumptions (more properly inferences) as to which the jury may be instructed; and (3) A defendant in a criminal case cannot be required to present evidence either in terms of going forward with the evidence or in terms of bearing the burden of persuasion in connection with any material element of the crime charged.), overruled in part on other grounds by Jones v. Warden, West Virginia Penitentiary, 241 S.E.2d 914, 161 W. Va. 168 (1978). (See footnote 4)
The crime of which Mr. Stamm was convicted is found at W. Va. Code § 61-5- 29, which states in relevant part:
(2) A person who persistently fails to provide support which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor by virtue of a court or administrative order and the failure results in: (a) An arrearage of not less than eight thousand dollars; or (b) twelve consecutive months without payment of support, is guilty of a felony and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not less than one year nor more than three years, or both fined and imprisoned.
(3) In a prosecution under this section, 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.(Emphasis added).
As Mr. Stamm correctly observes, the foregoing statute includes a reasonable ability to provide support not only as an element of the crime, but also as an affirmative defense. A statute similar to this was addressed by the Court of Criminal Appeals of Texas in the case of Lowry v. State, 692 S.W.2d 86 (1985). The relevant portion of the statute involved in Lowry provided
(a) An individual commits an offense if he intentionally or
knowingly fails to provide support that he can provide and that
he was legally obligated to provide for his children younger than
18 years, or for his spouse who is in needy circumstances.
. . . . .
(f) It is an affirmative defense to prosecution under this section that the actor could not provide the support that he was legally obligated to provide.
Id. at 86 (quoting V.T.C.A. Penal Code, § 25.05) (emphasis added). After reviewing the United States Supreme Court's holdings in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368, and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, along with relevant state law, the Texas court concluded:
In the instant case, § 25.05 requires that, as an element of the offense, the State must prove the defendant's ability to provide support. Subsection (f) then requires the defendant to prove his inability to provide support as an affirmative defense. Despite the statute's use of the term affirmative defense, § 25.05(f) serves to shift to the defendant the burden of disproving an element of the offense, thereby depriving the defendant of his right of due process.
Lowry, 692 S.W.2d at 87.
In deciding the constitutionality of W. Va. Code §§ 61-5-29(2) & (3), we are mindful that [i]n considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. . . . Syl. pt. 1, in part, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965). Furthermore, [a]cts of the Legislature are always presumed to be constitutional, and this Court will interpret legislation in any reasonable way which will sustain its constitutionality. State ex rel. City of Charleston v. Coghill, 156 W. Va. 877, 883, 207 S.E.2d 113, 118 (1973). See also State v. Flinn, 158 W. Va. 111, 129, 208 S.E.2d 538, 548 (1974) (The general rule, promulgated both by the Supreme Court of the United States and this Court, requires resort to every reasonable construction to sustain constitutionality. (citing United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954); Fox v. Washington, 236 U.S. 273, 35 S. Ct. 383, 59 L .Ed. 573 (1915); and Willis v. O'Brien, 151 W. Va. 628, 153 S.E.2d 178 (1967))).
The forgoing principles of statutory construction notwithstanding, based upon our review of prior case law as set out above, and our consideration of W. Va. Code § 61-5-29(2) & (3), we find that, like the statute at issue in Lowry, W. Va. Code § 61-5-29(3) unconstitutionally shifts to a defendant the burden of disproving an element of the offense defined therein, and therefore violates the due process clauses found in Article III, Section 10, of the Constitution of West Virginia, (See footnote 5) and the Fourteenth Amendment to the United States Constitution. (See footnote 6)
Having determined that W. Va. Code § 61-5-29(3) violates due process, we must now consider principles of statutory severability in order to decide whether the entire statute, or merely subsection (3), must be declared unconstitutional.
With respect to the issue of severability, this Court has held,
A statute may contain constitutional and unconstitutional
provisions which may be perfectly distinct and separable so that
some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.
Syl. pt. 6, State v. Heston, 137 W. Va. 375, 71 S.E.2d 481 (1952). (See footnote 7) Accord Louk v. Cormier,
218 W. Va. 81, 96-97, 622 S.E.2d 788, 803-04 (2005); Syl. pt. 3, Frantz v. Palmer, 211
W. Va. 188, 564 S.E.2d 398 (2001); Syl. pt. 7, State v. Flinn, 158 W. Va. 111, 208 S.E.2d
With respect to the foregoing analysis, this Court has explained that
[t]he most critical aspect of severability analysis involves the degree of dependency of statutes. Thus, [w]here the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid. Syl. pt. 9, Robertson v. Hatcher, 148 W. Va. 239, 135 S.E.2d 675 (1964).
Louk v. Cormier, 218 W. Va. 81, 97, 622 S.E.2d 788, 804. We find that W. Va. Code § 61-5-
29 does not meet the foregoing criteria that would require us to declare the entire statute
unconstitutional. Rather, subsections (1) (See footnote 8) and (2) (See footnote 9) of W. Va. Code § 61-5-29 set out
complete criminal offenses that are independent from the affirmative defense established in
W. Va. Code § 61-5-29(3). See Lowry v. State, 629 S.W.2d at 88 ([W]e hold that § 25.05
is unconstitutional only insofar as it shifts the burden of disproving an element of the offense
to the defendant vis-a-vis subsection (f). We therefore sever from the statute the offending
provision. (footnote omitted)). Accordingly, we now hold that, insofar as W. Va. Code §
61-5-29(3) (1999) (Repl. Vol. 2005) shifts to a defendant the burden of disproving a material
element of the State's case, in violation of the due process clauses found in Article III,
Section 10, of the Constitution of West Virginia, and the Fourteenth Amendment to the
United States Constitution, that individual provision, severed from the remainder of W. Va.
Code § 61-5-29, is unconstitutional and unenforceable. W. Va. Code §§ 61-5-29(1) and (2)
remain fully enforceable.
The State responds that, even if the statute is unconstitutional, the error in this instance was harmless because the jury instruction did not shift the burden of proof. Indeed, this Court has held that [f]ailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt. Syl. pt. 5, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975) (emphasis added).
The jury in this case was instructed, in relevant part, as follows:
The Court instructs the jury that where a person is charged with and on trial for an offense of failure to meet an obligation to provide support to a minor, and that person offers in his defense evidence for the purpose of providing [sic] that he lacked the ability to reasonably provide the support at the time the offense is alleged to have been committed, such a defense in law is called inability to pay. The court instructs the jury that where the accused relies upon an inability to pay in his defense, the jury should consider such evidence. 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.
As the State points out, this instruction is not phrased in the same manner as W. Va. Code
§ 61-5-29(3) in that it does not expressly identify the defense of inability to pay as an
affirmative defense. The instruction also informs the jury that the defendant's burden is
merely to create a reasonable doubt. Nevertheless, we do find the instruction troubling.
Although the jury was advised in separate instructions that it must be satisfied of the
defendant's guilt beyond a reasonable doubt, and that the State was required to prove each
element of the offense beyond a reasonable doubt, the instruction pertaining to the defense
of inability to pay did not make absolutely clear that the burden remained on the State to
prove, beyond a reasonable doubt, Mr. Stamm's ability to pay. Therefore, we believe that
the instruction could have misled the jury into believing that Mr. Stamm bore the burden of
proof as to his ability to pay support.
In the case of Montana v. Price, 312 Mont. 458, 59 P.3d 1122 (2002), the Supreme Court of Montana reached a similar conclusion. In Price, the court was asked to determine whether an instruction containing the following language had impermissibly shifted the burden of proof on an essential element of the offense to the defendant: 'If a defense to the charge of nonsupport is inability to pay, the person's inability must be the result of circumstances over which the person had no control. 312 Mont. at 466-67, 59 P.3d at 1128. After observing that 'whether a defendant has been accorded his constitutional rights depends on the way in which a reasonable juror could have interpreted the instruction,' (See footnote 10) the court stated
[w]hile the District Court's Instruction No. 7 did not expressly shift the burden of proving those facts to Price, we conclude that its wording and specifically its reference to inability as a defense could have been misleading regarding the State's burden and, therefore, direct that on re-trial Instruction No. 7 not be given in its current form.
312 Mont. at 467, 59 P.3d at 1128 (quoting Sandstrom v. Montana, 442 U.S. 510, 514, 99
S. Ct. 2450, 2454, 61 L. Ed. 2d 39 (1979)).
Because we believe that the instructions provided in this case could have misled the jury into believing that Mr. Stamm bore the burden of proof as to his ability to pay support, we reject the State's argument that the instruction cured the unconstitutional burden- shifting of W. Va. Code § 61-5-29(3), and rendered that error harmless. See State v. Jenkins, 191 W. Va. 87, 99, 443 S.E.2d 244, 256 (1994) (It cannot be said beyond a reasonable doubt that the unconstitutional instruction could not have contributed to the verdict of first degree murder without a recommendation of mercy.); Angel v. Mohn, 162 W. Va. 795, 798, 253 S.E.2d 63, 66 (1979) ([A]n instructional error which unconstitutionally shifts the burden of proof of an essential element of the crime to the defendant, causing a serious question about the accuracy of the guilty verdict, is not an error that did not contribute to the guilty verdict.). Therefore, Mr. Stamm's conviction and sentencing are reversed, and this case is remanded for a new trial. See, e.g., State v. Kopa, 173 W. Va. 43, 311 S.E.2d 412 (1983) (remanding for new trial where alibi instruction improperly shifted burden of proof to defendant). See also Illinois v. Pomykala, 203 Ill. 2d 198, 784 N.E.2d 748 (2003) (affirming appellate court judgment remanding for new trial where burden of proof had been unconstitutionally shifted to defendant); Iowa v. Quinn, 691 N.W.2d 403 (2005) (remanding for new findings and conclusions after burden improperly shifted to defendant during bench trial); New York v. Chesler, 50 N.Y.2d 203, 406 N.E.2d 455 (1980) (acknowledging that defendant would be retried in case where burden of proof had been impermissibly placed on defendant with respect to affirmative defense).