State v. Pelz

• Citation: 765 A.2d 824
• Decision Date: 26 January 2001
• Docket Number: No. 98-287-C.A.,98-287-C.A.
• Parties: STATE v. James PELZ.
• Court: United States State Supreme Court of Rhode Island

765 A.2d 824

STATE v. James PELZ.

No. 98-287-C.A.

Supreme Court of Rhode Island.

January 26, 2001.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Virginia M. McGinn, Aaron L. Weisman, Providence, Shilpa Naik, for plaintiff.

Paula Lynch Hardiman, Paula Rosin, Providence, for defendant.

OPINION

WEISBERGER, Chief Justice.

This case came before the Court for oral argument on November 15, 2000, pursuant to the appeal of the defendant from his conviction for failure to pay child support. We affirm the defendant's conviction. The facts insofar as pertinent to this appeal are as follows.

James Pelz (defendant) married Sally Pelz (wife) in 1975. Initially, the couple lived in Iowa. During the course of the marriage, they had three children. In 1980 the defendant and wife separated. In 1982 the wife returned to Rhode Island with the children to live with her parents. Shortly thereafter, defendant also moved to Rhode Island. He worked at various jobs. As of 1993, defendant was self-employed.

During the time defendant resided in Rhode Island, several orders were entered requiring him to pay child support. On June 16, 1986, defendant was ordered to pay $100 per week in child support. On September 1, 1990, the above order was modified to include an additional $45 per week forarrearage (bringing the weekly total to $145). On October 25, 1993, the order for child support was again modified; this time to $50 per week for child support and $30 per week for arrearage. This order was later modified to require defendant to pay $80 per week for arrearage, with no additional child support payments. On April 4, 1997, defendant was arrested and later charged with failure to pay child support, pursuant to G.L. 1956 § 11-2-1.1, upon information and belief that defendant had an outstanding arrearage of more than $30,000 and had failed to make scheduled child support payments.

A jury-waived trial was held in the Family Court on February 10 through February 12, 1998. At the beginning of the proceedings, the state introduced evidence that defendant had a principal arrearage in child support in the amount of $26,945.41 and a total arrearage of $43,930.41, including interest. Those figures represented the defendant's apparent outstanding obligations at the start of trial.¹ Under § 11-2-1.1, an arrearage in child support must total at least $30,000 for a criminal violation to have occurred. Thus, after the state introduced the evidence mentioned above concerning the amount of money owed by defendant, defendant moved to dismiss because of the state's inability to demonstrate probable cause for the charge against him. The trial judge denied defendant's motion. In doing so, he ruled that interest was included in determining the statutory amount for a criminal violation under § 11-2-1.1.

The defendant then moved to dismiss the case on the grounds that § 11-2-1.1 was unconstitutional because it gave no notice to him that what had previously been considered merely wrongful behavior was now criminalized. The judge denied this motion, finding that defendant had, in fact, received notice because § 11-2-1.1 merely constituted an enhanced penalty for abandonment ornonsupport, previously punished as a misdemeanor.²

At trial, Debra Cunningham (Cunningham), the accounting clerk responsible for overseeing child support payments in the Family Court, testified that as of April 4, 1997, defendant owed $29,215.41 in back child support. This figure represented the amount owed by defendant for the period when his wife was receiving Aid to Families with Dependent Children (AFDC). Cunningham was asked to check her records to determine how much in child support defendant owed for the times when the wife was not receiving AFDC. After checking her records, she determined that, as of June 1996, $1,135.49 was owed in non-AFDC child support payments.³ Thus, Cunningham determined that the total figure, as of June 1996, excluding interest, owed by defendant to wife, was $30,350. She further testified that defendant did not make any child support payments between January 1997 and April 1997. However, payments made by the defendant after his arrest in April 1997 had brought his arrearage down to $29,215.41, by the time the trial had started. Testimony was also adduced at trial concerning whether defendant had the means to pay his child support obligations. Joyce Fratantuono (Fratantuono), president of Central 2000 EmploymentAgency, Inc., testified that her company was a client of defendant from 1993 through March 1997. She testified that during that time period her company had paid him approximately $293,000. In a letter to the Attorney General's Office dated April 24, 1997, Fratantuono provided a summary of amounts paid to defendant between October 1994 and March 1997, showing that defendant had been paid approximately $224,000 during that period. She estimated that approximately 20 percent of the amount paid to defendant was for business expenses and 80 percent was for his services.

Gladys Garcia (Garcia), a friend of defendant, also testified. She said that on April 4, 1997, defendant gave her approximately $15,000 to hold for him. In turn, Garcia gave the money to her father, who went to New York. The defendant later accompanied Garcia and her mother to New York to obtain the money a couple of weeks after he was released from jail. Ostensibly, defendant needed the money to reimburse his brother for posting his bail.

At the conclusion of the state's case, defendant moved for a judgment of acquittal. Defense counsel later changed that motion to a motion to dismiss. The trial judge denied the motion. The defendant renewed his motion to dismiss at the close of all the evidence. This motion was also denied. The trial judge found defendant guilty of failure to pay child support under § 11-2-1.1. He found that the arrearage amount exceeded the statutory amount, without the inclusion of interest. The trial judge further found that defendant had the ability to pay child support, but willfully and intentionally had chosen not to do so. The defendant was sentenced to five years imprisonment, with three years to serve and two years suspended with probation. The defendant filed a timely appeal.

In support of his appeal, defendant argues that the state lacked probable cause to charge him under § 11-2-1.1, that the trial judge erred in denying defendant's motion to dismiss at the close of thestate's case, that the trial judge erred in limiting cross-examination, and that § 11-2-1.1, as applied to him, was unconstitutional. We shall address each of these arguments in sequence.

I

The defendant first argues that the state lacked probable cause to charge him under § 11-2-1.1. He notes that the state's own evidence showed that he owed $26,945.41 in child support arrearage. Thus, the defendant argues that his arrearage did not meet the statutory mandate of $30,000 set forth in § 11-2-1.1. Additionally, because § 11-2-1.1 is silent on whether interest should be included in the total calculation, defendant argues that the statute must be strictly construed to exclude interest in calculating total arrearage.

Section 11-2-1.1 provides in pertinent part:

"Failure to pay child support. — (a) Every person who is obligated to pay child support pursuant to an order or decree established by or registered with the family court pursuant to chapter 11 of title 15, who has incurred arrearage of past-due child support in the amount of thirty thousand dollars ($30,000), and who shall willfully thereafter, having the means to do so, fail to pay one or more installments of child support in an amount previously set by the court, according to the terms previously set by the court shall be guilty of a felony for each instance of failure to make such subsequent payments and upon conviction be punished by imprisonment for a period not to exceed five (5) years."

Subsection (c) of § 11-2-1.1 states that "the term, `subsequent payments', shall mean those payments or installments due and owing after a person has incurred an arrearage of thirty thousand dollars ($30,000) as specified in subsection (a)."

The standard for determining whether probable cause exists to believe that a defendant has committed an offense is as follows:

"In assessing a motion to dismiss an information, the trial justice must `examine the information and the attached exhibits to determine"whether there exists probable cause to believe that the offense charged ha[d] been committed and that [the] defendant had committed it.'" * * * The probable-cause standard applied to a motion to dismiss is the same as that for an arrest. * * * Probable cause to arrest `consist[s] of those facts and circumstances within the police officer's knowledge at the moment of arrest and of which he had reasonably trustworthy information that would warrant a reasonably prudent person's believing that a crime had been committed and that the prospective arrestee had committed it.' * * * In deciding a motion to dismiss, the trial justice's findings are `entitled to great weight and will not be set aside unless they are clearly erroneous or fail to do justice between the parties.'" State v. Aponte, 649 A.2d 219, 222 (R.I.1994).

Testimony at trial established that at the time of his arrest, defendant owed $30,350, exclusive of interest. Additionally, after his arrearage had reached the statutory minimum of $30,000, defendant failed to make any payments between January and April 1997, despite the fact that he had the financial means to do so. These facts alone provide the requisite probable cause to establish that defendant violated § 11-2-1.1.

Having concluded that there was sufficient evidence to establish that probable cause existed to charge defendant under § 11-2-1.1, without including interest in meeting the statutory threshold, we do not address the question of whether interest should or should not be included...