Cite as 2016 Ark. App. 85

                ARKANSAS COURT OF APPEALS
                                     DIVISION IV
                                     No. CR-15-561


                                                Opinion Delivered   February 10, 2016
JIMMY DALE FRAHM
                             APPELLANT          APPEAL FROM THE CRAWFORD
                                                COUNTY CIRCUIT COURT
V.                                              [NO. 17CR-13-90]

STATE OF ARKANSAS                               HONORABLE MICHAEL MEDLOCK,
                                APPELLEE        JUDGE

                                                REVERSED



                           M. MICHAEL KINARD, Judge

      Appellant Jimmy Dale Frahm appeals from the revocation of his suspended imposition

of sentence (SIS). He argues that his failure to comply with the terms of his SIS was not

inexcusable. We agree and therefore reverse the revocation.

      In 2013, appellant entered a negotiated plea of guilty to a Class B felony charge of

nonsupport. He was sentenced to one year of incarceration in a Department of Community

Correction Center and nine years’ SIS. The conditions of disposition attached to the

sentencing order stated that “defendant shall begin making regular child support payments

as previously ordered in 17DR-98-184 beginning 60 days after release as a term and

condition of suspended sentence.”

      On June 6, 2014, the State filed a petition to revoke. The State alleged that appellant

had been released from incarceration on February 14, 2014, and had failed to make any

child-support payments. The revocation hearing was held on April 16, 2015. The State
                                  Cite as 2016 Ark. App. 85

introduced child-support records showing that appellant owed a total of $64,813.16.

Appellant’s ex-wife, Ann McMurtry, testified that she had not received any child-support

payments since appellant pled guilty in 2013.

       The defense called Michael Rich, an investigator for the Office of Child Support

Enforcement (OCSE). Rich testified that McMurtry closed her case with OCSE when

appellant was incarcerated in 2013. Rich explained that the case then became a “monitoring

case,” and his office ceased enforcement. Rich said that if someone called OCSE and asked

how much was due on a monitoring case, the system would show a zero balance because the

account was closed out. He said that if someone wanted to make a payment on such a case

the secretaries were supposed to say, “You can pay if you wish, but we’re not enforcing it.”

       Rich said that on April 17, 2014, appellant had called the child-support office,

updated his information, and asked what was going on with his case. Rich said that

appellant’s wife or girlfriend later informed him that the secretary had told appellant the case

was closed and that he had a zero balance. The secretary was no longer working at OCSE,

but Rich agreed that the system would have shown that no payments were due when

appellant called.

       Appellant testified that when he pled guilty in 2013 his attorney told him to notify the

child-support office within sixty days of his release. He said that when he called OCSE he

was told there was a zero balance and the case was closed out. He said that the employee

became upset with him because he “kept asking her over and over if it was a zero balance.”

Appellant said that the employee did not tell him he needed to do anything.


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       Appellant said that when he was released from incarceration he lived in a shed in the

backyard of his boss’s house. He said that he did a little landscaping and construction for his

boss for a couple of months and was paid a “little bit.” Appellant said that he was aware of

how much he owed each week in child support, and he had saved money to try to make

payments. He currently had $70 saved. On cross-examination, appellant testified that he had

never checked with an attorney and had never called the circuit clerk about his child-support

obligation. He acknowledged that it had been a long time since he last made a payment.

       The trial court found that appellant had violated the terms and conditions of his SIS

due to nonpayment. The court found that OCSE was merely a collecting agency and that

appellant’s obligation did not “go away” when OCSE quit collecting. Appellant was

sentenced to nine years’ imprisonment and ten years’ SIS and ordered to pay $64,813.16 in

restitution to OCSE.

       This court will uphold a circuit court’s finding in a revocation proceeding unless it

is clearly against the preponderance of the evidence. Rhoades v. State, 2010 Ark. App. 730,

379 S.W.3d 659. Because the determination of a preponderance of the evidence largely

turns on credibility and weight to be given to testimony, this court defers to a trial court’s

superior position in making credibility determinations. Id. A circuit court must find by a

preponderance of the evidence that a defendant inexcusably violated one of the conditions

of his suspension or probation to justify a revocation. Id.

       When the alleged violation is that the defendant failed to pay restitution or some other

financial obligation, the State has the burden of proving that the defendant’s failure to pay


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was inexcusable. Holcombe v. State, 2011 Ark. App. 355. Once the State introduces evidence

of nonpayment, it is then up to the defendant to provide some reasonable excuse for his

nonpayment, though the ultimate burden of proving that the defendant’s failure to pay was

inexcusable always remains with the State. Id. Arkansas Code Annotated section

5-4-205(f)(3) (Supp. 2015) sets forth several factors to be considered by the trial court,

including the defendant’s employment status, earning ability, and financial resources; the

willfulness of the defendant’s failure to pay; and any other special circumstances that may

have a bearing on the defendant’s ability to pay. Owens v. State, 2009 Ark. App. 876, 372
S.W.3d 415.

       Appellant contends that his failure to pay was not inexcusable because he was willing

to pay but OCSE told him that he owed nothing. We find this case to be analogous to

Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). Barbee involved a defendant whose

driver’s license was revoked for three years as a condition of his probation. Barbee was

caught driving, and the State sought to revoke his probation. Barbee testified that during the

period of his probation he had attempted to obtain an identification card from the revenue

office, but the revenue-office employee informed him that his driving privileges were not

suspended and that he could only get a driver’s license. Barbee asked for his record to be

checked again to be sure. The revenue-office employee testified that she had no choice but

to issue a driver’s license, instead of an identification card, based on the information in the

computer.

       Noting the unique facts of the case, the supreme court reversed the revocation.


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The court noted that it was “the State” that incorrectly gave Barbee a driver’s license

when he was only attempting to obtain an identification card. The court held that

Barbee’s reliance on the State revenue office that he was allowed to have a driver’s license

surely constituted forgivable, pardonable, and excusable behavior.

       Here, appellant was told to make payments to OCSE upon his release. OCSE

records showed that he called the office, updated his information, and inquired about his

case. He was told he had a zero balance and the case was closed even after asking that the

records be checked again. Although OCSE, like the revenue office, does not have

authority over the conditions of appellant’s SIS, appellant attempted to comply with his

SIS and essentially relied on “the State.” As in Barbee, we hold that appellant’s reliance on

the State in this situation was excusable. Accordingly, we reverse the revocation.

Appellant’s obligation to pay child support as ordered in the 2013 sentencing order

remains undisturbed. See Hanna v. State, 2009 Ark. App. 809, 372 S.W.3d 375.

       Reversed.

       VIRDEN and GLOVER, JJ., agree.

       Lisa-Marie Norris, for appellant.

       Leslie Rutledge, Att’y Gen., by: Ashley Priest, Ass’t Att’y Gen., for appellee.




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