a finding by the jury that defendant has the ability to pay the support order. Section 228 requires that the failure to pay be willful. Therefore, a basic element of the crime is that a defendant have the ability to pay the support order but chooses not to do so. Thus, in prosecuting a charge under § 228, the government is relieved of having to prove that a defendant has the ability to pay so long as there is evidence of an outstanding support obligation. By directing a jury to presume a defendant’s ability to pay, the presumption in § 228(b) directly conflicts with the constitutional presumption of innocence. See Sandstrom, 442 U.S. at 522, 99 S.Ct. 2450 (quoting Morissette v. United States, 342 U.S. 246, 274-75, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). See also Hill, 927 F.2d at 650 (<HOLDING>). The presumption contained in § 228(b) has
holding that a mandatory presumption in a jury charge which directed a finding on an element of the criminal offense violated the due process clause holding that jury charge in juvenile case warranted fundamentalerror review and analyzing whether charge violated due process holding montana statute precluding consideration of voluntary intoxication in determining existence of mental state which is element of criminal offense does not violate due process clause holding charge error which authorized jury to convict without finding every requisite element of the offense beyond a reasonable doubt was egregious based on the entirety of the charge the contested evidence and the arguments of counsel holding the due process clause of the fourteenth amendment extends the right to jury trial to defendants in serious criminal cases in state courts