State v. LATALL

PATRICIA BRECKENRIDGE, Judge,

concurring in dissent.

In considering whether the state presented sufficient evidence to prove, beyond a reasonable doubt, that Mr. Latall “purposefully maintains his inability to support” his children, the majority interprets that phrase as requiting proof that Mr. Latall was “willfully maintainpng] unemployment or lack of income with the purpose of avoiding child support.” Op. at page 564, n. 2. (quoting State v. Nelson, 463 S.W.2d 614, 617 (Mo.App.1971)). The majority then infers from the evidence that Mr. Latall is, in good faith, working to make his bar a fiscally viable enterprise and that those efforts for fifteen months, to the exclusion of any other gainful employment, are reasonable under the circumstances and constitute “good cause,” so the state failed to meet its burden of proving that Mr. Latall was purposefully maintaining his inability to support as required by section 568.040.1(2). The majority opinion then cautions that, if his business continues to fail, “his willful maintenance of an untenable financial situation may constitute a prosecutable offense,” i.e., be sufficient evidence that he is willfully maintaining a lack of income for the purpose of avoiding child support.

The dissent makes a contrary inference from the evidence. The dissent infers that Mr. Latall had the purpose of avoiding child support from the evidence that Mr. Latall purchased a failing business and has continued the unprofitable operation of that business for fifteen months, to the exclusion of all other gainful employment, while knowing that the continued operation will not permit him to pay child support. That inference is also a reasonable inference from the evidence and such inference is properly considered to support the trial court’s finding that there is proof beyond a reasonable doubt that Mr. Latall purposefully has maintained his inability to support his children.

An appellate court is compelled to consider the evidence, and all reasonable inferences, in the light most favorable to the conviction when considering whether there is sufficient evidence from which a trier of fact reasonably can find each element of the crime beyond a reasonable doubt. State v. Gilbert, 103 S.W.3d 743, 749 (Mo. banc 2003). Even if the evidence would support two equally valid inferences, only the inference that supports the finding of guilt can be considered. State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998). Under this standard, the reasonable inference made by the dissent is the inference that is in the light most favorable to the trial court’s conviction, and that is the inference the standard of review compels.

Additionally, because a trier of fact may choose to disbelieve all, part or none of the testimony of any witness, an appellate court must disregard evidence, even though uncontested, if the evidence is not favorable to the conviction. See State v. Davis, 903 S.W.2d 930, 934 (Mo.App.1995). The majority opinion reaches its conclusion that Mr. Latall was not purposefully maintaining an inability to pay child support by relying on Mr. Latall’s testimony.

*569That testimony is not in the light most favorable to the trial court’s conviction, and the standard of review compels that it be disregarded. Because I believe that the dissent’s finding that there is sufficient evidence to support the conviction is a correct view of the evidence under the proper standard of review, I concur in the dissent.