Opinion
111,262.
04-03-2015
STATE of Kansas, Appellee, v. Anthony L. SCOTT, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Anthony L. Scott appeals from a district court order revoking and reinstating his probation, imposing a 3–day jail sanction, and extending his probation by 18 months. Scott contends that there was insufficient evidence to find that he violated the terms of his probation. Based on our review of the record, however, we find that there is ample evidence to support a finding that Scott associated with an active gang member and that he lied to police officers when they asked for the identity of the active gang member who was hiding inside Scott's house. Thus, we affirm the revocation, reinstatement, and extension of Scott's probation.
Facts
On March 28, 2013, Scott pled guilty to possession of hydrocodone with the intent to distribute, failure to affix a tax stamp, possession of paraphernalia, and driving while suspended. Since the district court found that Scott had a criminal history score of “A,” it imposed a 51–month underlying sentence for possession of hydrocodone with the intent to distribute, and it ordered the remaining counts to run concurrent. The district court also granted a downward dispositional departure and sentenced Scott to serve 18 months' probation. A term of Scott's probation provided that he was not to associate with known gang members.
About 2 months later, a warrant was issued alleging that Scott violated the terms of his probation by associating with Ronald Mathis who was a known member of a street gang. The warrant also alleged that Scott was uncooperative with police when they attempted to execute an arrest warrant on Mathis. Specifically, it stated that Scott gave the police the wrong name for Mathis.
On September 27, 2013, the district court conducted an evidentiary hearing during which several law enforcement officers testified on behalf of the State. Moreover, Scott testified on his own behalf along with Mathis. According to the officers, around 10:30 a.m. on May 21, 2013, three officers went to Scott's house to execute an arrest warrant for Mathis because they believed that he was staying with Scott. One of the officers walked to the back of the house while two others went to the front door.
As the officer approached the rear of the home, he saw Scott sitting in a chair and a person—who was later identified as Mathis—working on a lawn mower. When Mathis saw the officer, he ran through the back door into Scott's house. The officer testified that he did not recognize the individual who had fled, so he asked Scott for the person's name. According to the officer, Scott gave him a different name than Ronald Mathis. The officer then asked Scott to go to the front of the house to speak with the two other officers.
After Scott walked through the house and came out of the front door, an officer explained to Scott that they had a warrant for Mathis' arrest and showed him a photograph of Mathis. He also asked Scott for the name of the person who ran into the house. Again, Scott gave a different name than Ronald Mathis. In addition, Scott told the officers that the person in the photograph was not the person who went into the house. The officers then asked Scott for permission to search his home, but he refused to consent. As the officers began to explain to Scott that he was required to cooperate with law enforcement because he was on probation, Mathis voluntarily walked out of the house and was arrested.
Scott testified that he did not recognize the person in the photograph presented to him by the law enforcement officers because it was an older photo of Mathis when he was heavier and had longer hair. But during cross-examination, Scott testified that he identified the person to police as “John” because he knew that Mathis no longer wished to be referred to by his former name in order to dissociate himself from a gang. Scott also stated that he had been friends with Mathis since they were children. In addition, Scott testified that although he and Mathis had previously been involved with a gang, he did not know that Mathis was considered to be an active gang member at the time.
A Wichita Gang Intelligence Officer testified that in 2006, Mathis had admitted to officers that he was a gang member. Furthermore, he testified that an active gang member is considered to be inactive if he or she is not arrested, not on felony probation, or makes no contact with other gang members for a 3–year period. On the day of his arrest, Mathis was still considered an active gang member because he had been arrested in 2008 and 2009. And as a result, Mathis had been on felony probation within the previous 3 years. The officer also noted that Mathis had several tattoos that identified him as a gang member.
Mathis denied being an active gang member in 2006. Although he stated that he had been a member of a gang, he claimed to have ceased his involvement with the gang in 1997. Mathis also testified that he had since participated in anti-gang programs.
At the close of the evidence, the district court determined that Scott knowingly gave the false name of “John” when he knew that law enforcement officers were looking for Mathis. The district court also found the following:
“Was Mr. Scott associating with a person who is a documented gang member? Technically, yes. Was it in furtherance of, or some conspiracy to commit some criminal enterprise? Under the circumstances, I can't say it was. I do find it to be a technical violation. I'm more concerned with Mr. Scott's reluctance to fully help the police officers and deputies at the location.
“Mr. Scott, I have to believe they told you the name ‘Ronald Mathis.’ Or else why would you volunteer the name ‘John?’ That just doesn't make any logical sense.”
Ultimately, the district court revoked Scott's probation, imposed a 3–day jail sanction, reinstated his probation, and extended probation for an additional 18 months. Thereafter, Scott filed a timely appeal.
Analysis
Standards of Review
Probation from service of a sentence is an act of grace by the sentencing judge and unless otherwise required by law is a privilege rather than a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). A district court's decision to revoke probation typically involves two steps: (1) a retrospective factual question of whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation. State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).
In reviewing the first step, this court will uphold a district court's determination that the defendant violated his or her probation if a preponderance of the evidence supports the district court's finding. See State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). A preponderance of the evidence indicates a probation violation when the existence of a violation is more likely true than not. State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007) (citing Ortega v. IBP, Inc., 255 Kan. 513, 527–28, 874 P.2d 1188 [1994] ), rev. denied 286 Kan. 1183 (2008). In addition, this court reviews a district court's findings of fact to determine if they are supported by substantial competent evidence. State v. Weber, 297 Kan. 805, 816, 304 P.3d 1262 (2013). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
Establishing a Probation Violation
Scott first contends that the evidence in this case was inconclusive to support the district court's reasons for revoking his probation. In support of this contention, Scott relies entirely on the testimony presented by Scott and Mathis during the evidentiary hearing. The district court weighed this testimony against the testimony of the law enforcement officers presented at the hearing and determined that Mathis was—at least in a technical sense—an active gang member on May 21, 2013.
In essence, Scott asks this court to reweigh the conflicting testimony presented at the probation revocation hearing. But when appellate courts review the sufficiency of the evidence; we are not to reweigh the evidence, resolve evidentiary conflicts, or determine a witness' credibility. See State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013). Rather, we are to review the record to determine if there is substantial evidence to support the district court's determination.
A review of the record reveals that there was testimony from law enforcement officers that Mathis was considered to be an active gang member at the time Mathis was arrested at Scott's house. Specifically, testimony was presented that Mathis admitted to officers in 2006 that he was a member of a gang. Furthermore, a gang intelligence officer testified that an active gang member becomes inactive when he or she is not on felony probation for 3 years and that Mathis had been on felony probation within the three previous years. There was also evidence that Mathis had tattoos indicating that he was a gang member. Accordingly, there is substantial evidence in the record upon which a reasonable person could conclude that Mathis was still considered an active gang member.
Scott also argues without explanation that the evidence was inconclusive to establish that he obstructed law enforcement officers. The district court found his failure to cooperate with the officers to be a more compelling reason to revoke his probation than his association with an active gang member. Specifically, the district court found that the officers asked Scott whether Mathis was in the house and that he intentionally gave them a false name. In fact, Mathis even testified that he had heard the officers ask Scott for the name of the person inside the home. As the district court pointed out, it would make little sense that Scott would volunteer the name “John” for Mathis if the officers had not asked him the name of the person inside the house. Therefore, we conclude that there is substantial evidence in the record to support the district court's determination that Scott violated the terms of his probation.
Revocation, Reinstatement, and Extension of Probation
Because decisions to revoke, reinstate, and extend probation rest in the sound discretion of the district court, appellate courts generally review such a decision under the abuse of discretion standard. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Abuse of discretion means that the decision was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013). The party asserting that the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Rojas–Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
This court has consistently found that even technical violations warrant revocation of probation. See State v. Beddingfield, No. 110,842, 2014 WL 7152349, at *4 (Kan.App.2014) (unpublished opinion) (failing to appear at appointments with probation officer); State v. Hernandez, No. 103,294, 2011 WL 3658363, at *3 (Kan.App.2011) (unpublished opinion) (same); State v. Crawford, No. 103,585, 2011 WL 1377002, at *1 (Kan.App.2011) (unpublished opinion) (failing to attend anger management classes).
As discussed above, there is substantial evidence in the record to indicate that Scott lied to the police by giving them a false name for the person in his house as well as by associating with an active gang member. Moreover, the record reveals that Scott violated his probation less than 2 months after he began his probation, which makes the district court's decision all the more reasonable. See State v. Monzon, No. 102,970, 2010 WL 2348696, at *2 (Kan.App.2010) (unpublished opinion) (“The fact that he violated his probation four times within 6 to 8 weeks of the commencement of his probation establishes the district court did not abuse its discretion in refusing to reinstate Monzon's probation for two violent offenses.”). Therefore, we conclude that the district court did not abuse its discretion by imposing a 3–day sanction and extending Scott's probation for 18 months. See K.S.A.2012 Supp. 22–3716(b).
Affirmed.