State v. Sprague

550 P.2d 769, 25 Or. App. 621, 1976 Ore. App. LEXIS 2128

• Court: Court of Appeals of Oregon
• Decided: June 14, 1976
• Docket: 75-3109, CA 5295
• Status: Published

Opinions

LANGTRY, J.

Defendant appeals from conviction by jury and judgment on an indictment charging him with "on or about the 17th day of June, 1975 * * *” unlawfully and without lawful excuse refusing and neglecting to provide support for his two children for more than 60 days. ORS 163.555. He had previously been charged with the same offense in another indictment which had been returned during 1974 and which alleged failure to support on April 9, 1974.

The trial on the former indictment was in May 1975 and resulted in a not guilty verdict on May 30, 1975. The second indictment was dated June 24, 1975. Thus, the 60 days preceding June 17, 1975, which was elected by the prosecutor as the time of the violation at bar necessarily included some 43 days of time preceding the trial which was concluded on May 30, 1975. It is conceded that defendant has not for several years paid any support for the two children involved. As an excuse therefor, apparently in the former trial and certainly in this trial, he contended that he belongs to a religion which is described as Tibetian Tantric Yoga and requires the practice of physical aspects of yoga twice a day for an hour to an hour-and-one-half a session and otherwise requires the follower thereof to engage only in activities like community service and healing from which he gets virtually no remuneration. Thus, he says he has no opportunity to engage in work for pay unless it comes incidental to the practice of his religion, and it does not, and consequently there is no prospect of his supporting his children.

On appeal defendant contends (1) that prosecution of him on the second indictment constituted placing him in double jeopardy; also (2) that it was error for the court to instruct that the practice of his religion was not an excuse for his violating the statute requiring him to support his children, since this is a violation of his First Amendment right to the free practice of religion.

In State v. Combs, 3 Or App 260, 473 P2d 672 (1970), where the prosecution was for failure to support a child under ORS 167.605 (which was repealed in 1971 by Oregon Laws 1971, ch 743, § 432 and replaced by ORS 163.555) we held "that the precise time at which the crime was committed need not be stated in the indictment * * *” (3 Or App at 262) unless the statement of time is necessary to prevent prejudice to the defendant, citing State v. Howard, 214 Or 611, 331 P2d 1116 (1958). We also noted in Combs that the failure to support under the terms of ORS 167.605 must continue for 60 days. When the new statute, ORS 163.555, was adopted mention of the 60-day provision was dropped. ORS 163.555(1) provides only that "[a] person commits the crime of criminal nonsupport if, being the parent * * * he refuses or neglects without lawful excuse to provide support for such child.” Apparently, some district attorneys have continued to specify or elect a 60-day period as they had done under the former statute. This may be because in State v. Francis, 126 Or 253, 267, 269 P 878 (1928), it is said the state is required to select some occasion within the period, and defendant’s guilt is to be determined "according to his status at that particular time * * However, allegation of a 60-day period is not necessary under ORS 163.555.

In the Commentary to the Oregon Criminal Code 177, § 175 (1971), the Criminal Law Revision Commission noted that this new version of the statute was taken from NY Penal Code § 260.05. Reference to NY Penal Code § 260.05 discloses that the wording of that section in 1970 was exactly the same as the part of ORS 163.555 which we have quoted above, except that at the very end it had the additional words "when he is able to do so.” The Commentary to this section in NY Penal Code § 260.05 (McKinney 1967) states that:

"A parent is 'able’ to provide support within the meaning of § 260.05 only when he possesses the financial resources to do so. [Cf. Social Welfare Law § 101(1): a parent is responsible for the support of his minor child, a recipient of public assistance, only if the parent is 'of sufficient ability.’ The term 'sufficient ability’ has been held to mean sufficient financial ability. In re Claiborn’s Estate, 1944, 51 N.Y.S.2d 543; Whalen v. Downs, 1960, 10 A.D.2d 148]. If he is without assets and is unemployed, he cannot be convicted of the crime of non-support of a child. And it matters not that his unemployment is by choice or unavoidable circumstances. Section 260.05 is not designed to punish a destitute parent who fails or refuses to seek remunerative employment that will provide sufficient support for his minor child * * (Brackets theirs.)

The annotation to the NY Penal Code discloses that § 260.05 was amended in 1972 by adding the words "or becomes unable to do so, when, though employable, he voluntarily terminates his employment, voluntarily reduces his earning capacity or fails to diligently seek employment.” The explanation in the Commentary states that the expansion of the definition of criminal nonsupport was in aid of efforts to obtain child support from defaulting parents, noting that unemployed parents, lacking other assets, had been relieved by the courts under the existing statute of the support obligation without regard to the reason for unemployment.

This review of the history of the pertinent parts of present ORS 163.555 avails us little in determining the question raised by this appeal. In 1971, by leaving the words "when he is able to do so” off the Oregon version of the New York statute, the Oregon Legislature implied roughly the same result in a case like this that the New York Legislature enacted by its amendments in 1972.

(1) We do not perceive the second prosecution as falling within the constitutional prohibition against double jeopardy. U.S. Constitution, Fifth Amendment; Oregon Constitution, Art I, § 12. We said in State v. Combs, supra, that the prosecution could choose any time within the three-year statute of limitations for its proof of the crime, regardless of the date stated in the indictment, so long as the defendant was not prejudiced in making his defense thereby. He is in jeopardy only as to that time. State v. Francis, supra. At bar, the prosecution clearly announced before trial that the time it elected to prove was the 60 days preceding the date alleged in the indictment. This was in 1975. The 60 days for which defendant was acquitted in the former trial was 60 days preceding April 9 in 1974. Regardless of the fact, which it apparently was, that defendant continued not to pay child support, the different times involved constituted different crimes if the proof was sufficient. One was not the same act or transaction as the other, nor was the second wholly known or ascertainable to the prosecutor at the time the first was tried.

Although double jeopardy does not attach, we perceive that collateral estoppel might very well attach if there were a complete record of the cases involved before us. In State v. George, 253 Or 458, 455 P2d 609 (1969), defendant was prosecuted for and acquitted of murder of one man. It appeared from the evidence that the bullet that killed that man went through him and entered and killed another. Defendant was secondly indicted for murder of the second man. On appeal from conviction of the second charge the Oregon Supreme Court held that the doctrine of collateral estoppel should have prevented the second prosecution.¹

As in George, the defendant at bar might successfully assert that the jury heard exactly the same defense (the freedom-of-religion defense) in the 1974 case as in the 1975 case and necessarily determined that the defense was "a lawful excuse” (ORS 163.555) for the failure to support. Of course, until the defense was heard in the second case, it would not be known whether at the time elected for the second the defendant still embraced and practiced the same religion.

Be that as it may, in George the report of the decision indicates the appellate court had the record of the first case, and a transcript of the evidence and instructions therein, to which it referred in making its decision. We have no such record or transcript here inasmuch as it was not made a part of this record; hence, we cannot make the decision. See State v. Hoare, 20 Or App 439, 532 P2d 240 (1975).

(2) Under this claim of error, defendant mixes a claim that the court erred in instructing the jury "that the practice of one’s religion is not a lawful excuse to the crime of criminal non-support” with another, namely, that it was error not to allow defendant to introduce evidence about his religious beliefs and practices. It is true that the court, in colloquy with counsel before the defense put on its case, indicated that it might accede to the prosecution’s request that such evidence (similar to that presented in the first case) be excluded. But the judge then said he would not rule in a "vacuum” and that when the evidence was offered the prosecution should "be quick on your feet.” This is shown on page 31 of the transcript. The next 90 pages of transcript (three-quarters of all of it) is almost solid testimony by defendant and his witnesses on the religion defense, with no material objection being made. Obviously, there was no such ruling which prejudiced the defense.

With reference to the instruction, quoted supra, it was combined with others that copiously defined and explained the crime. Among them was "the phrase 'without lawful excuse’ is not defined by the law and is left for you, the jury, to apply to the particular facts of the case.”

In State v. Soto, 21 Or App 794, 795, 537 P2d 142, Sup Ct review denied (1975), cert denied 424 US 955 (1976), we reviewed in detail the applicable cases which have established the principle of the "two-pronged concept of the First Amendment” which

" '* * * embraces two concepts, —freedom to believe and freedom to act. The first is absolute but,-in the nature of things, the second cannot be. * * *’ ” Quoting from Cantwell v. Connecticut, 310 US 296, 303-04, 60 S Ct 900, 84 L Ed 1213, 128 ALR 1352 (1940).

We think it unnecessary here to review the precedents again.

It is of compelling interest to the state that parents of children, when they are able, should be required by law under penalty of criminal law sanctions to support their children, and that their actions in such regard should be governed by such laws, regardless of their religious beliefs.

Affirmed.

1 "The doctrine of collateral estoppel prevents the relitigation of an issue between the same parties. It is the subject of a statute, ORS 43.160, which provides as follows:

" 'That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto.’

The doctrine is somewhat similar to that of res judicata, but it is distinguishable. The distinction is made in State of Oregon v. Dewey, 206 Or 496, 504, 292 P2d 799 (1956). The court said:

" 'In its consideration of the subject this court, like others, has uniformly made a distinction between cases in which the second action is upon the same claim or demand as the first, and those in which it is upon a different claim or demand. In the former case the judgment, if upon the merits, is an absolute bar and concludes the parties and their privies not only as to every matter that was actually litigated but as to any other matter that might have been litigated. But in the latter case it is essential that the issue in the second action was a material issue in the first and necessarily determined therein * *

"The same case also defines the breadth of the doctrine of collateral estoppel by quoting from 2 Freeman on Judgments (5th ed) 1465, § 693 as follows:

" ' "Matters which follow by necessary and inevitable inference from an adjudication because the judgment could not have been rendered without determining them are as effectually concluded thereby as though specifically and in terms adjudicated.” ’ ” State v. George, 253 Or 458, 462-63, 455 P2d 609 (1969).