ROBB, C.J.
Troy R. Smith appeals the trial court’s revocation of his probation for failure to pay child support weekly, a condition of his probation. On appeal, he raises one issue which we restate as two: whether the State satisfied its burden, if any, to prove 1) Smith’s failure to pay was reckless, knowing, or intentional; or 2) his ability to pay. Concluding the State bears the burden to prove Smith recklessly, knowingly, or intentionally failed to pay his child support weekly, that proving such requires Smith’s ability to pay, and that the State failed to satisfy its burden, we reverse.
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At the outset, we decline to consider Smith’s partial payments as knowing failures to pay that would establish violation of his probation. [Footnote omitted.] . . . Here, there is no indication that Smith knew – or was aware of a high probability – that his partial payments would equate to a failure to make weekly payments. [Footnote omitted.]
To conclude Smith’s partial payments constitute a knowing failure to make weekly payments would discourage partial payment for the benefit (albeit limited) of his children in favor of no payment at all. No payment at all, although certain to harm his children, would allow a probationer to avoid one route to a judicial finding of knowingly failing to pay and resulting revocation. Despite the possibility that an understanding trial court might prevent an injustice by limiting revocation as appropriate, an incongruous incentive would remain because probationers might not willingly violate their probation with a partial payment with the hopeful expectation of an understanding trial court at the second step of the process.
For that reason, a ruling that Smith’s partial payments constitute a knowing failure to make weekly payments would render the statutory mental state requirement for revocation meaningless, illusory, superfluous, and contrary to public policy. . . . Consequently, we interpret and apply the governing statutes, Indiana Code sections 35-38-2-3(f) (regarding violation of conditions of probation imposing financial obligations) and 35-41-2-2 (regarding mental state) such that Smith’s partial payments do not constitute a knowing failure to make weekly child support payments. We do not, however, hold that partial payments always foreclose a finding of a knowing or intentional failure to pay. Nevertheless, partial payments, without more, do not establish a knowing failure to pay.
Similarly, a portion of Runyon that discusses step one of the revocation process indicates that the State bears the burden to prove Smith’s ability to pay. Addressing the statutory framework of revocation proceedings, the supreme court stated:
As to the fact of [probation] violation, the statute expressly imposes the burden of proof upon the State. But with respect to the ability to pay, the burden of proof is not explicitly designated [in the statute]. Where the claimed violation is that the probationer failed to comply with financial conditions of probation, the trial court must be convinced both that the condition was violated and that the failure to pay was reckless, knowing, or intentional. Because proof of both of these components is required before a trial court may revoke probation, we hold that it is the State’s burden to prove both the violation and the requisite state of mind in order to obtain a probation revocation.
Runyon, 939 N.E.2d at 616.
In clarifying who bears the burden to prove “the ability to pay,” the supreme court concluded the State bears the burden of proving the probationer’s “requisite state of mind.” Id. This reasoning logically implies that a probationer’s failure to pay cannot be considered reckless, knowing, or intentional if he was unable to pay. Although Runyon focused on the second step, this portion of the opinion clarifies the burden to prove each element of a violation – the first step. [Footnote omitted.]
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Therefore, we hold that a trial court may revoke probation for failure to satisfy a financial obligation only if the State satisfies its burden to prove by a preponderance of the evidence: 1) less than full payment; and 2) the probationer submitted less than full payment recklessly, knowingly, or intentionally. To prove “knowingly” the State must show by a preponderance of the evidence that the probationer was able to pay. Our holdings do not apply, of course, where a probationer admits his violation and the trial court proceeds directly to the second step of the revocation process.
At Smith’s revocation hearing, neither Smith nor the State made an explicit argument as to his ability or inability to pay during any period. The transcript reveals Smith was employed during part of the time he did not make full payments (which was the basis for the trial court ruling), but it does not clearly indicate his income was such that he was able to pay. Notably, the hearing focused on Smith’s various medical problems, hospital stays (at a free clinic), required treatments, and lack of health insurance, all of which lead to an inference of Smith’s restrained finances – not an ability to pay. Because the State did not present evidence to establish Smith’s ability to pay during the relevant period, it failed to satisfy its burden and the trial court abused its discretion in revoking Smith’s probation.
RILEY, J., and BROWN, J., concur.