Nelke v. State, CA

• Decision Date: 10 December 1986
• Docket Number: No. CA,CA
• Parties: Charles Ray NELKE, Appellant, v. STATE of Arkansas, Appellee. CR 86-107.
• Court: Arkansas Court of Appeals

Page 719

720 S.W.2d 719

19 Ark.App. 292

Charles Ray NELKE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 86-107.

Court of Appeals of Arkansas.

Dec. 10, 1986.

John W. Settle, Fort Smith, for appellant.

Steve Clark, Atty. Gen., Little Rock by J. Blake Hendrix, Asst. Atty. Gen., for appellee.

COOPER, Judge.

This is an appeal from the appellant's misdemeanor conviction for criminal nonsupport, under Ark.Stat.Ann. § 41-2405 (Supp.1985) by a Sebastian County Circuit jury. The appellant was fined $1,000.00 and sentenced to one year in jail. The appellant raises two points for reversal: The trial court erred in allowing testimony concerning the "impact" of the appellant's alleged failure to pay child support and in not granting the appellant's motion for directed verdict at the close of the State's case. We find no error and affirm the conviction.

Because a motion for a directed verdict is a challenge to the sufficiency of the evidence, see Armstrong v. State, 12 Ark.App. 143, 671 S.W.2d 772 (1984), we must first determine whether the trial court's denial of the motion was error. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In reviewing evidence, we look at it in the light most favorable to the State, overturning the verdict only if there is no substantial evidence to support it. Kennel v. State, 15 Ark.App. 45, 689 S.W.2d 5 (1985).

In this case, the appellant made his motion for directed verdict at the close of the State's case. Upon its denial, he elected to present evidence in his defense. He then renewed his motion at the close of all evidence. The motion was again denied. Both the appellant and the State feel that, under these circumstances, the reviewing court is to consider only the evidence put on by the State. The appellant cites no authority for this proposition, and the State cites Christian v. State, 6 Ark.App. 138, 639 S.W.2d 78 (1982). This, however, is not the correct standard of review. In Christian we held that, when a defendant presents additional evidence and fails to renew his motion for directed verdict at the conclusion of the evidence, we look to the entire record to determine the sufficiency of the evidence. 6 Ark.App. at 143, 639 S.W.2d 78. The dispositive factor in Christian is the fact that the defendant elected to put on additional evidence, not that he failed to renew the motion for directed verdict. In Walker v. County of Washington, 263 Ark. 317, 564 S.W.2d 513 (1978), the Arkansas Supreme Court stated, "we consider only appellant's second motion for directed verdict since the first motion was waived by subsequently offered proof." 263 Ark. at 320, 564 S.W.2d 513. The court went on to consider evidence presented by the defendant in determining the sufficiency of the evidence. Therefore, because the appellant here also waived his first motion by subsequently offered proof, we too must consider all of the evidence.

Arkansas Statutes Annotated § 41-2405(1) (Supp.1985) provides:

A person commits the offense if without just cause he fails to provide support to: ... (b) his legitimate child who is less than eighteen (18) years old....

In order to make out the offense, the State must show a willful or negligent failure to provide, not a mere failure because of inability. See Dempsey v. State, 108 Ark. 76, 157 S.W. 734 (1913). The statute construed in Dempsey provided: " 'If any man shall, without good cause, ... fail, neglect or refuse to maintain or provide for such wife, child or children ... he shall be punished....' " 108 Ark. at 77, 157 S.W. 734. The statute now uses the words "just cause" instead of "good cause", however, we find, for purposes of this statute, that these phrases are equivalent in meaning. See § 41-2405 commentary (Repl.1977); Black's Law Dictionary 622, 775 (5th ed. 1979). In the context of the criminal nonsupport statute, "without just cause" means to have the inability to pay. See Dempsey, 108 Ark. at 79, 157 S.W. 734. While the Arkansas courts have not determined what constitutes an inability to pay in a nonsupport case, our sister states have held that the inability to pay cannot be brought about intentionally and willfully by the defaulting parent. See People v. James, 89 Ill.App.3d 157, 411 N.E.2d 563 (1980); State v. Greer, 259 Iowa 367, 144 N.W.2d 322 (1966); State v. Arnett, 370 S.W.2d 169 (Mo.App.1963); Commonwealth v. Wright, 289 Pa.Super. 399, 433 A.2d 511 (1981). While the State must prove every element of its criminal nonsupport case beyond a reasonable doubt, it may do so by circumstantial, as well as direct, evidence. See Hudson v. State, 175 Ind.App. 237, 370 N.E.2d 983 (1977); Arnett, 370 S.W.2d 169; Wright, 433 A.2d 511.

In the case at bar, the appellant's ex-wife testified that she and the appellant were divorced in December, 1980, at which time the appellant was ordered to pay $29.00 a week as child support for their daughter who was 8 years old at the time of the trial. She stated that, since the divorce, the appellant had only paid $115.00 in child support ($100.00 in April, 1985, and $15.00 in November, 1985) and that he was approximately $7,000.00 behind in his support. She further testified that, at the time of their divorce and for a while thereafter, the appellant was working at Baldor Electric. The appellant testified that he worked for Baldor for close to a year after the divorce, until he was fired for drinking on the job. He stated...