FILED: April 20, 2005
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
LAWRENCE CONLEY EAGLE,
Appeal from Circuit Court, Washington County.Gayle Nachtigal, Judge. Argued and submitted February 7, 2005. Patrick M. Ebbett argued the cause for appellant. With him on the brief was Chilton, Ebbett & Rohr, LLC. Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before Landau, Presiding Judge, and Brewer, Chief Judge,* and Armstrong, Judge.
LANDAU, P. J.Affirmed.
* Brewer, C. J., vice Leeson, J. pro tempore.
LANDAU, P. J.
"A person commits the crime of criminal nonsupport if, being the parent, lawful guardian or other person lawfully charged with the support of a child under 18 years of age, born in or out of wedlock, the person refuses or neglects without lawful excuse to provide support for such child."In State v. Timmons, 75 Or App 678, 681, 706 P2d 1018, rev den, 300 Or 451 (1985), we concluded that a "lawful excuse" commonly refers to "some condition, not of the defendant's own making, which prevents the defendant from being able to provide support." We held that the state may demonstrate the absence of a lawful excuse by showing
"(1) there was a court mandate that [the] defendant pay child support, (2) [the defendant] had an ability to generate an income, and that, in fact, he had earned wages during the time period in question and (3) [the defendant] had made no payment in any amount towards [the] child support obligation."Id. at 682. In this case, it is undisputed that there was a court mandate that defendant pay child support and that he made no payment during the relevant two-year period. The parties dispute whether the state demonstrated that, during that time, defendant had an ability to generate an income and, in fact, did so. Viewing the evidence in the light most favorable to the state, we conclude that a rational trier of fact could find beyond a reasonable doubt that defendant was capable of generating an income, and did so, during the relevant two-year period. We note, in particular, that (1) the mother knew defendant to be without any physical disabilities and capable of employment shortly before the commencement of the two-year period; (2) defendant, in fact, made a child support payment in the month immediately preceding the two-year period; (3) defendant admitted to the mother that he had been working in the months immediately following the two-year period; and (4) defendant had failed to make support payments over a significant number of years, during which he was without any disabilities and capable of working and providing support. Nuzman is not to the contrary. In that case, the state relied solely on evidence that the defendant was neither incarcerated nor on public assistance during the relevant time to demonstrate that he had failed to make support payments without lawful excuse. We rejected the state's argument because, in fact, the state had failed to establish either that the defendant had not been incarcerated or that he was not on public assistance. 194 Or App at 356. The dissenting opinion suggested that, in any event, the state had shown that the defendant was capable of employment based on the testimony of the mother in that case that, some ten years earlier, the defendant had been gainfully employed. Id. at 359-60 (Armstrong, J., dissenting). We responded that evidence of gainful employment so long ago could not be a basis for an inference that the defendant continued to be capable of generating an income a decade later. Id. at 357. In this case, the state is not relying on ten-year-old information about defendant's capacity to generate an income. The information dated from only a few weeks before and after the two-year period at issue. We conclude that the trial court did not err in denying defendant's motion for a judgment of acquittal. Affirmed.