{ "id": 6648552, "name": "Jeffery WOODBERRY v. STATE of Arkansas", "name_abbreviation": "Woodberry v. State", "decision_date": "1991-07-03", "docket_number": "CA CR 90-210", "first_page": "129", "last_page": "133", "citations": [ { "type": "official", "cite": "35 Ark. App. 129" }, { "type": "parallel", "cite": "811 S.W.2d 339" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "284 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878611 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0247-01" ] }, { "cite": "30 Ark. App. 196", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140657 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/30/0196-01" ] }, { "cite": "853 F.2d 1418", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10549113 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/853/1418-01" ] }, { "cite": "149 Wis. 2d 655", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8667954 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/149/0655-01" ] }, { "cite": "26 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136653 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/ark-app/26/0042-01" ] }, { "cite": "19 Ark. App. 292", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6651376 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/ark-app/19/0292-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-26-401", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1987, "pin_cites": [ { "parenthetical": "a" } ], "opinion_index": 0 }, { "cite": "201 Ark. 1031", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725798 ], "weight": 2, "year": 1941, "opinion_index": 0, "case_paths": [ "/ark/201/1031-01" ] }, { "cite": "712 S.W.2d 295", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1875456, 1875411 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0602-01", "/ark/289/0402-01" ] }, { "cite": "289 Ark. 402", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875411 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0402-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-96-507", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "parenthetical": "19S1" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 460, "char_count": 8006, "ocr_confidence": 0.92, "pagerank": { "raw": 6.309085738289258e-08, "percentile": 0.3881836354165822 }, "sha256": "4be18df4abadc45492c5b13673dc4e0609af63099747e56f8acbe306fccc8715", "simhash": "1:1bcfcbe8140858c4", "word_count": 1392 }, "last_updated": "2023-07-14T21:21:33.038957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J., agrees.", "Jennings, J., concurs." ], "parties": [ "Jeffery WOODBERRY v. STATE of Arkansas" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nJeffery Woodberry has appealed a conviction of failing to support his dependent spouse. Appellant was first convicted in Crossett Municipal Court. He then appealed to the Ashley County Circuit Court. Upon an appeal from municipal court to circuit court, a defendant \u201cshall be tried anew as if no judgment had been rendered.\u201d Ark. Code Ann. \u00a7 16-96-507 (19S1). See also Hogan v. State, 289 Ark. 402, 712 S.W.2d 295 (1986). This means that the trial in circuit court is de novo; the parties are in the same position as if there had been no trial in municipal court; all the evidence must be produced anew in circuit court; and the decision in circuit court must be based on the evidence introduced in that court. Strickbine v. State, 201 Ark. 1031, 148 S.W.2d 180 (1941).\nThis case was tried in circuit court without a jury in February of 1990. The evidence and the court\u2019s ruling is abstracted in appellant\u2019s brief as follows:\nDirect Examination of Donna Woodberry\nI am Donna Woodberry; married Jeffery Woodberry in November 1987. We separated in May or June 1989.1 can not work because I have high blood pressure and back problems. (T. 28-29) Mr. Woodberry does not work and has not supported me since our separation. He works for Carl J. Bierbaumb when he is able to work. (T. 30)\nI have had to go the doctor three (3) times since our separation. I worked a little while we were living together and quit because he didn\u2019t want me working at night. (T. 33)\nCross Examination of Donna Woodberry\nI have not filed for Social Security and am not under the care of a doctor. I just have to take high blood pressure medicine. (T. 33)\nMr. Woodberry has been ill or sick as a result of an injury, and I don\u2019t know whether he is drawing compensation or not.\nRedirect Examination of Donna Woodberry\nI received $162.00 per month for AFDC for my little girl, and Mr. Woodberry is not the father. (T. 39)\nFindings, Application of Law and Judgment\nThe Court: Now, its the order of the court that the order of the Municipal Court of Crossett be affirmed. I don\u2019t know what Mr. Woodberry\u2019s condition is, but if he has been injured on the job, certainly he is drawing compensation. Now, Mrs. Woodberry is entitled to the same type of support as long as she\u2019s married to Mr. Woodberry and he is able to provide that support. I have no proof here that he is not able, so the Municipal Judge\u2019s judgment will be affirmed. (T. 42)\nThe offense of which appellant was convicted is set out in Ark. Code Ann. \u00a7 5-26-401 (1987) as follows:\n(a) A person commits the offense of nonsupport if, without just cause, he fails to provide support to:\n(1) his spouse who is physically or mentally infirm, or financially dependent; ....\nThe only argument for reversal is that the evidence is insufficient to sustain the conviction. Appellant contends he was found guilty on evidence which did not establish that he was able to work or had any source of income. The appellant says \u201cspeculation cannot serve as a substitute for proof,\u201d and his conviction should be reversed. He also contends that the trial court has erroneously shifted the burden of proof to appellant.\nThe state responds by citing Nelke v. State, 19 Ark. App. 292, 295, 720 S.W.2d 719 (1986), which held that the phrase \u201cwithout just cause,\u201d used in Ark. Code Ann. \u00a7 5-26-401 (a), means \u201cthe inability to pay,\u201d and that the inability cannot be brought about intentionally and willfully by the defaulting party. The state also argues that it introduced evidence from which the trial court could find that the appellant had the duty and ability to provide support to his spouse but had failed to do so. The state does not think it should be required to \u201cnegate any possible excuses for nonpayment\u201d because this \u201cwould create a burden it could never meet.\u201d Our case of Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988), and the case of Wisconsin v. Duprey, 149 Wis. 2d 655, 439 N.W.2d 837 (Wis. Ct. App. 1989), are cited in support of the state\u2019s position.\nIn Reese the issue was whether the defendant\u2019s suspended sentence should be revoked for inexcusably failing to make monthly payments on his restitution and fine as required by the conditions of his suspension. We said \u201conce the state has introduced evidence of non-payment, the burden of going forward does shift to the defendant to offer some reasonable excuse for his failure to pay.\u201d 26 Ark. App. at 44. The case of Wisconson v. Duprey relied upon Davis v. Barber, 853 F.2d 1418 (7th Cir. 1988), for the statement in Duprey that \u201c[a] state may require a defendant to prove an affirmative defense provided it does not serve to negate any elements of the crime that the state is to prove in order to convict.\u201d 439 N.W.2d at 839.\nIn reaching our decision in the present case, we do not need to discuss the question of \u201cshifting the burden of proof\u2019 or the problems associated with requiring a defendant to prove an affirmative defense. Here, the case was tried without a jury and the question before us is whether there is substantial evidence to support the appellant\u2019s conviction. On appeal in criminal cases, whether tried by a judge or jury, we review the evidence in the light most favorable to the state and affirm if there is any substantial evidence to support the trial court\u2019s judgment. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Based upon our standard of review, we do not believe the judgment in this case is supported by substantial evidence.\nAccording to Nelke v. State, supra, the phrase \u201cwithout just cause,\u201d used in Ark. Code Ann. \u00a7 5-26-401, means \u201cthe inability to pay\u201d and that cannot be brought about \u201cintentionally and willfully.\u201d There is testimony in the record to support a finding that the appellant and his spouse were separated, that she was dependent, and that he had not supported her since the separation. However, on the issue of whether he had the ability to pay and whether any inability in that regard was intentionally or willfully caused by appellant, the evidence produced by the state simply is not, in our judgment, \u201cof sufficient force and character that it will, with reasonable certainty, compel [the trial judge\u2019s conclusion] without resorting to speculation or conjecture.\u201d\nThe problem is that appellant\u2019s spouse testified that appellant \u201chas been ill or sick as a result of an injury, and I don\u2019t know whether he is drawing compensation or not.\u201d She also testified that \u201che works for Carl J. Bierbaumb when he is able to work.\u201d Obviously that testimony will not support a finding that appellant has been intentionally or willfully failing to work. And as to whether the appellant has been drawing some kind of compensation while he has been unable to work \u2014 the trial judge\u2019s finding that \u201cif he has been injured on the job, certainly he\u2019s drawing compensation\u201d is clearly speculation or conjecture. Although appellant\u2019s spouse testified he had been ill or sick as a result of an injury, we do not know whether or not the injury was job-related. And even if it was job-related, we can take judicial notice of the fact that there are reasons why one who is hurt on the job may not draw compensation. Therefore, we do not think the trial court\u2019s decision is supported by substantial evidence.\nIn Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the court held that where the appellate court finds the' evidence insufficient to support the judgment of conviction it would be double jeopardy to allow the case to be tried again.\nReversed and dismissed.\nCracraft, C.J., agrees.\nJennings, J., concurs.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [ "Don E. Glover, for appellant.", "Steve Clark, Att\u2019y Gen., by: Ann Purvis, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jeffery WOODBERRY v. STATE of Arkansas\nCA CR 90-210\n811 S.W.2d 339\nCourt of Appeals of Arkansas\nOpinion delivered July 3, 1991\nDon E. Glover, for appellant.\nSteve Clark, Att\u2019y Gen., by: Ann Purvis, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0129-01", "first_page_order": 153, "last_page_order": 157 }