Opinion
No. 106,218.
2012-08-24
STATE of Kansas, Appellee, v. Rodney CARTER, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Christina M. Waugh, of Kansas, Appellate Defender Office, for appellant. David Lowden, chief attorney appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Christina M. Waugh, of Kansas, Appellate Defender Office, for appellant. David Lowden, chief attorney appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rodney Carter appeals the revocation of his probation. The district court found Carter violated his probation by committing another crime, but Carter argues the evidence did not support the court's finding. Carter also contends the revocation was improper because of “mitigating circumstances.” We affirm the district court.
On June 10, 2009, Carter pled guilty to criminal threat and battery. He was placed on probation, but he violated the conditions by committing theft, failing to make payments, and failing to report to his probation officer. The district court revoked and reinstated Carter's probation with new conditions.
Subsequently, a probation revocation arrest warrant was issued for Carter alleging he had committed battery. Carter was arrested, and an evidentiary hearing was held on the motion to revoke probation.
Carter's probation officer, Misty Valentine, testified she requested the arrest warrant based on a police report indicating Carter had committed battery on November 3, 2010. A police officer, Elizabeth Martin, testified that Melissa Davis complained that Carter had grabbed her and pulled her from a residence. The State introduced a photograph showing a scratch on Davis' arm. Officer Martin said Davis had attributed the injury to Carter's battery.
The State called Davis as a witness. Davis admitted that Carter was her boyfriend, they lived together, and she was pregnant with their child. She admitted to being present at the residence on the day in question. She also admitted to speaking with Carter by telephone that day and informing him of her location. When asked whether Carter came to the residence, however, Davis claimed she could not remember. Davis attributed her memory lapse to having taken medication for her bipolar condition and depression.
“To sustain an order revoking probation, the violation must be established by a preponderance of the evidence.” State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). A preponderance exists when “the evidence demonstrates a fact is more probably true than not true.” 38 Kan.App.2d at 315. We review the district court's factual determination for substantial competent evidence. 38 Kan.App.2d at 315. We do not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. See State v. Marx, 289 Kan. 657, 660, 215 P.3d 601 (2009).
The State produced substantial competent evidence supporting the district court's finding. Davis claimed not to remember the battery, but even if credited, her testimony did not rule out what she had contemporaneously reported to Officer Martin. A reasonable person could conclude it was more probable than not that Carter committed the battery upon Davis. See Inkelaar, 38 Kan.App.2d at 315.
“Once a violation is proved, the decision to revoke probation rests in the sound discretion of the district court. Judicial discretion is abused only when no reasonable person would take the position adopted by the district court.” Inkelaar, 38 Kan.App.2d at 316. That Carter, for a second time, committed a crime while on probation suggests he was not amenable to probation. Moreover, Carter had previously violated his probation, and only days remained on his underlying prison sentence. The district court reasonably believed it could not enforce probation if reinstated because “there would be nothing hanging over [Carter's] head ... to assure that he was going to comply in the future.”
Finally, given the violent criminal conduct which constituted Carter's latest violation of his probation, we are not persuaded that his enrollment in high school was a sufficient mitigating factor to show, as argued by Carter, that “he was attempting to get his life together by complying with his probation and finishing high school.” On the contrary, we are convinced the district court did not abuse its discretion by revoking Carter's probation and requiring him to serve the remainder of his sentence.
Affirmed.