State v. Sizemore
Decision Date | 17 April 1973 |
Citation | 12 Or.App. 482,506 P.2d 502,96 Adv.Sh. 978 |
Parties | STATE of Oregon, Respondent, v. Larry Dale SIZEMORE, Appellant. |
Court | Oregon Court of Appeals |
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Osburn, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Burgess, Asst. Atty. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
Defendant was convicted of nonsupport of his two minor children. ORS 167.605. He appeals from the resulting judgment. His sole assignment of error is the denial by the court of his motion for a judgment of acquittal.
He did not take the stand and offered no evidence in his own behalf. The evidence showed that he was divorced on April 5, 1971. At that time he was a young, able-bodied man who had been working during the marriage at physical labor, particularly driving log trucks, which he was doing at the time of his divorce. The divorce court entered a support order against him requiring him to contribute $50 a month to the support of each of his two children. The wife testified that he normally received $225 take-home pay every two weeks.
The support ledger showed that on May 26 he paid $50. Thereafter, he paid nothing.
The indictment of February 18, 1972, charged failure to support for more than the 60-day period, and the state elected to stand on the period of July 1 to August 31, 1971. The essence of defendant's position is that the state was required, in order to establish a prima facie case, to show that during that 60-day period he was gainfully employed and actually received funds therefrom sufficient to enable him to have paid the required support money. In the absence of such direct evidence, he contends that the state has not shown that his failure to pay was wilful.
We disagree. This case is somewhat similar to State v. Francis, 126 Or. 253, 256, 269 P. 878, 879 (1928), where the court stated:
In other words, the element of wilfulness was established, in part, by circumstantial evidence of the defendant's ability to pay at least some support money during the period of nonsupport.
The facts in this case, that the defendant is a young, able-bodied man, who generally made $225 take-home pay every...
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Mahoney v. Linder
...State ex rel. Juv. Dept. v. Mack, Or.App., 96 Adv.Sh. 1392, 507 P.2d 1161 (1973), and cases cited therein. Compare, State v. Sizemore, Or.App., 96 Adv.Sh. 978, 506 P.2d 502, Sup.Ct. review denied (1973), which involved criminal nonsupport. ORS 163.555 3 (formerly ORS 167.605). It is undispu......
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State ex rel. Mikkelsen v. Hill
...support payments, because he was capable of making at least partial payments but failed to do so. Likewise, in State v. Sizemore, 12 Or.App. 482, 484, 506 P.2d 502 (1973), we held that "the element of wilfullness was established, in part, by circumstantial evidence of the defendant's abilit......