Opinion
No. 110,400.
2014-10-3
STATE of Kansas, Appellee, v. Octavio BAUTISTA, Jr., Appellant.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Heather Cessna, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Octavio Bautista, Jr., appeals the district court's revocation of his probation, contending that (1) the State failed to prove by a preponderance of the evidence that he violated his probation and (2) the district court abused its discretion by revoking probation and ordering him to serve his underlying sentence rather than reinstating probation. We disagree with both assertions and affirm.
On September 14, 2011, pursuant to a plea agreement, Bautista pled guilty to one count of aggravated indecent liberties with a child. On November 2, 2011, the district court imposed a sentence of 71 months' imprisonment but granted Bautista's motion for a dispositional departure and placed him on probation for 36 months.
On May 16, 2012, Bautista's probation officer alleged that he had violated the terms of his probation by yelling at Paola Munoz, committing the crime of domestic battery, and being discharged from a required sex offender counseling program for non-attendance. Munoz and Bautista were involved in a custody dispute over their daughter; Bautista had supervised visitation rights but was attempting to get shared custody of the child. Prior to the incident in question, their daughter had been ill and Munoz had taken her to the hospital without informing Bautista.
The district court held an evidentiary hearing on June 26, 2012. Munoz testified that on April 30, 2012, Bautista approached her as she got off a bus and walked down the street toward their daughter's daycare facility; she said Bautista screamed her name, yelled at her, and asked why she had not informed him that their daughter had been in the hospital. Bautista also told her that he was going to take their daughter and Munoz would never see her again. Munoz further testified that although she told Bautista to leave her alone, he would not let her pass, grabbed her by her upper arms, swore at her, and slapped her hand when she tried to call 911. The interaction ended after about 5 minutes, with both of them walking away.
Joshua Cooper, who worked in the area, testified that he had seen Bautista blocking Munoz' path and trying to stop her from walking past him; although Bautista looked aggravated and angry, Cooper did not see Bautista touch Munoz. Bautista also testified. Regarding his discharge from the required counseling program for non-attendance, Bautista admitted that he had cancelled or rescheduled a couple of appointments due to conflicts with work, a death in his family, and a meeting with his probation officer. Bautista stated that he had not been aware that he was discharged from the counseling program until after he was arrested for the alleged probation violations and that he had since been readmitted to the program.
About the incident with Munoz, Bautista testified that he was on his way to set up an appointment to get his hair cut when he saw the bus he knew Munoz rode and, because he was extremely worried about their daughter, decided to ask Munoz how their daughter was doing. Bautista was upset that he had found out their daughter had been in the hospital from a woman who scheduled his supervised visitation and from his lawyer, rather than from Munoz. Bautista stated that he called Munoz' name and raised his voice while talking to her so that she could hear him over the traffic. He testified that he asked Munoz why she had not told him that their daughter was in the hospital and tried to explain to her that he had insurance for their daughter and would have gone to the hospital to provide the insurance information.
By this point, according to Bautista, he was walking backward in front of Munoz, who told him to get away from her. Bautista put up his hand because he was worried he would fall if he kept walking backwards and he wanted Munoz to stop walking as well, but Munoz slapped his hand away. He stated that Munoz had pulled out her cell phone, but he thought she was trying to threaten him with it and he did not think she was trying to call anyone. At this point, Bautista stated that he realized Munoz would not tell him anything about their daughter, so he gave up and walked away. He testified that he did not believe he had touched Munoz at any point during the interaction.
The State asked the district court to find that Bautista had violated his probation by yelling at Munoz, thereby violating the condition of his probation in which he agreed not to engage in verbal or physical assaults; by committing the crime of battery; and by being discharged from his required counseling program. Bautista argued that there was insufficient evidence to establish the first two allegations and pointed out that he had been readmitted to the counseling program. The district court found that Bautista had violated his probation in the three ways the State alleged, and the district court revoked Bautista's probation and ordered him to serve the original sentence.
Bautista did not timely pursue an appeal of his probation revocation, but as part of the proceedings in a subsequently filed K .S.A. 60–1507 motion, the district court found that the exceptions to the rule requiring a timely notice of appeal under State v. Ortiz, 230 Kan. 733, 735–37, 640 P.2d 1255 (1982), applied to Bautista. Accordingly, the district court granted Bautista an out-of-time appeal of the probation revocation. Bautista's appeal from the district court's denial of the remainder of his K.S.A. 60–1507 motion is currently before this court in Bautista v. State, No. 110,401. Bautista filed his untimely notice of appeal from the probation revocation on April 30, 2013.
On appeal, Bautista argues that there was insufficient evidence to support the district court's finding that he violated his probation by battering Munoz because he testified that he did not touch her and Cooper testified that he did not see any physical contact between the two. The State must establish a probation violation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). At the evidentiary hearing, Munoz testified that Bautista grabbed her arms and slapped her hand, and Cooper admitted that it was possible that Bautista had put his hands on Munoz and Cooper simply had not seen it.
The district court obviously chose to believe Munoz' testimony, and when reviewing sufficiency of the evidence, this court does not assess the credibility of witnesses or resolve conflicting evidence. See State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013). Therefore, Bautista's argument on this point fails. In any event, even if we agreed with Bautista's argument on this issue, he does not challenge the district court's additional reasons for revoking probation and the revocation could be affirmed for those reasons alone. See Sauls v. McKune, 45 Kan.App.2d 915, 918, 260 P.3d 95 (2011) (“Generally, failing to address an alternative basis for a district court's ruling is a sufficient reason to deny the appeal. [Citations omitted.]”).
Next, Bautista argues that the district court abused its discretion by ordering him to serve his underlying sentence rather than reinstating probation. Specifically, Bautista points out that he was reinstated in the counseling program shortly after his dismissal and again asserts that he did not batter Munoz. “Probation from serving a sentence under Kansas law is generally considered ‘an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege and not as a matter of right.’ [Citation omitted.]” State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has established a violation of probation conditions, the decision to revoke lies within the sound discretion of the district court. Gumfory, 281 Kan. at 1170. A judge abuses his or her discretion when the judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based upon an error of law; or (3) based upon an error of fact. State v. Dobbs, 297 Kan. 1225, 1232, 308 P.3d 1258 (2013).
As the district court noted, Bautista received a significant opportunity when the court granted his request for a dispositional departure to probation although the presumptive sentence was imprisonment. Moreover, his altercation with Munoz and his failure to attend court-ordered sex offender counseling support the district court's conclusion that Bautista was not a viable candidate for continued probation. The district court's imposition of Bautista's underlying prison sentence was not arbitrary, fanciful, or unreasonable, nor was it based upon an error of law or fact. Thus, the district court did not abuse its discretion by ordering Bautista to serve his underlying prison sentence.
Affirmed.