Opinion
No. 107,185.
2012-10-5
STATE of Kansas, Appellee, v. Bradley Wayne ISE, Appellant.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge.
Submitted for summary disposition pursuant to K.S.A.2011 Supp. 21–6820(g) and (h).
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Bradley Wayne Ise appeals the district court's decision revoking his probation. He contends the court abused its discretion. We granted Ise's motion for summary disposition pursuant to Supreme Court Rule 7.041a (2011 Kan. Ct. R. Annot. 60). The State responded that the district court did not abuse its discretion because Ise admitted he had violated two conditions of his probation, and evidence supported a third violation—the commission of a hit-and-run accident. We find no error and affirm the ruling of the district court.
A jury convicted Ise of three counts of aggravated assault. On October 2, 2009, he was sentenced to an underlying controlling sentence of 28 months' imprisonment and placed on probation for 24 months. On September 28, 2010, the State filed a motion to revoke Ise's probation based on allegations that he twice drove on a revoked driver's license. Additionally, the State alleged a third incident wherein Ise drove on a revoked driver's license and was involved in a hit-and-run accident, among other violations.
On July 15, 2011, the district court conducted a probation revocation hearing. At the conclusion of the State's evidence, Ise did not contest the two allegations of driving with a revoked license. But Ise claimed there was insufficient evidence to show he was the driver of the hit-and-run vehicle. The district court found a preponderance of the evidence supported the State's allegations, including that Ise was the driver of the hit-and-run vehicle. In revoking Ise's probation, the district judge stated: “I just believe defendant is a significant public safety risk. He doesn't get it. He uses automobiles as weapons.” Ise appeals.
On appeal, Ise claims the district court abused its discretion in revoking his probation. Ise provides no basis for his claim, although in the district court he did request being sent to a residential center in order to get counseling, rather than imprisonment.
“To sustain an order revoking probation on the ground that a probationer has committed a violation of the conditions of probation, commission of the violation must be established by a preponderance of the evidence.” State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). “A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.” State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). On appeal, this court reviews a district court's findings of fact to determine if they are supported by substantial competent evidence and then determines de novo whether those facts support the district court's conclusions of law. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007).
At the evidentiary hearing, witnesses testified about Ise's aggressive driving and his act of speeding up to rear end the vehicle in front of him and then leaving the scene of the accident. Ise became a suspect when officers identified the owner of the vehicle involved in the hit-and-run through its license plate. When contacted, the owner stated she had loaned her vehicle to Ise on the day in question. One witness identified Ise as the driver of the hit-and-run vehicle from a photographic line-up.
The district court's conclusion that it was probably more true than not that Ise was the driver of the hit-and-run vehicle is supported by substantial competent evidence. This finding, as well as Ise's admission that on two occasions he drove with a revoked license, supports the district court's decision to revoke his probation.
Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). In this case, Ise was on probation for crimes committed with a vehicle, and his probation violations all involved the illegal use of a vehicle. Under these circumstances, we conclude the district court did not abuse its discretion by revoking Ise's probation and ordering him to serve his underlying sentences.
Affirmed.