The opinion
PARKS, Judge,
dissenting:
The pivotal issue is whether the appellant “willfully neglected” his children in violation of 21 O.S.1981, § 853. While willful neglect can be inferred from the surrounding circumstances, such neglect must be purposeful or without just cause and not merely a result of inability to pay. Ballard v. State, 92 Okl.Cr. 420 , 223 P.2d 782, 784 (1950); Williams v. State, 62 Okl.Cr. 298 , 71 P.2d 496, 498 (1937); State v. McMains, 95 Okl.Cr. 176 , 241 P.2d 976, 983 (1952). Therefore, the State was required to show that appellant’s failure to pay child support was intentional and not simply due to inability to pay.
The facts presented are not sufficient to warrant a finding of “willfulness.” Although the appellant failed to pay child support, the record indicates that he was unable to find work. After the divorce from his wife, he did not see his children because they lived in a different state, and he lacked the funds to make the trip. Further, he did contact them by telephone at least twice. These facts do not indicate that appellant intentionally withheld the child support payments, but rather that appellant was unable to make payments due to his inability to find work.
Accordingly, I would reverse and remand with instructions to dismiss based upon the insufficiency of the evidence. Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978).