Opinion
No. 111,053.
2014-11-14
STATE of Kansas, Appellee, v. Tito ENRIQUEZ, Appellant.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Tito Enriquez appeals from a district court judgment revoking his probation and ordering him to serve his underlying sentence. He argues that the district court erred in finding the State had proved he had violated the terms of his probation. Finding no error, we affirm the judgment of the district court.
Factual and Procedural Background
In January 2010, Enriquez was charged with two counts of aggravated assault with a deadly weapon and one count of violation of a restraining order. He subsequently entered a plea of no contest to one count of aggravated assault with a deadly weapon, and the remaining counts were dismissed by the State pursuant to Enriquez' plea agreement. On June 4, 2010, the district court sentenced Enriquez to 24 months' probation, with an underlying prison term of 24 months.
On July 16, 2012, the State filed a motion to revoke Enriquez' probation, alleging numerous violations of the conditions of Enriquez' probation: six failures to report for office visits; entering a liquor store and purchasing alcohol on two occasions; testing positive for THC on three occasions; testing positive for alcohol on a breath alcohol test; failure to report to Job Club as directed; and admitting to leaving the county.
On August 7, 2012, the State filed an amended motion to revoke, alleging as an additional violation Enriquez' arrest for domestic battery and child endangerment. On August 15, 2012, the State filed a second amended motion to revoke probation, adding two more alleged probation violations: refusal to submit to a urinalysis test (UA) and another failure to report to Job Club as directed.
On September 5, 2012, the district court conducted a hearing on the State's motions to revoke Enriquez' probation. Enriquez stipulated to all of the alleged violations. The State asked the district court to execute his underlying prison sentence, pointing to his pattern of misconduct as evidence that he was a danger to the community. The district court revoked Enriquez' probation, imposed a sanction of 30 days in the county jail, then reinstated probation for 18 months after Enriquez had served his jail sanction.
On November 8, 2013, the State filed the current motion to revoke Enriquez' probation. It alleged that he had been in possession of a firearm, ammunition, drug paraphernalia, containers with drug residue, two kits designed to alter a UA, a sword, a club, a butterfly knife, and a bottle of alcohol. It further claimed that Enriquez had failed to report for an office visit and failed to complete community service work as directed. Finally, it alleged that Enriquez had been arrested for driving while suspended and an expired tag and had failed to notify his intensive supervision officer (ISO) that he had been fired from his employment.
On November 20, 2013, the district court conducted an evidentiary hearing to address the State's allegations. The State called Enriquez' ISO, Teresa Batchman, as a witness. She testified that Enriquez had been arrested for driving while suspended and later pled guilty to a charge of no driver's license on person in January 2013. She further testified that in May 2013, Enriquez was fired from his job but failed to notify Batchman of the change in his employment status.
Batchman testified that she had begun to suspect that Enriquez was tampering with his UA results after a coworker discovered a hand wanner in the bathroom after one of Enriquez' tests. She confronted Enriquez the next day. He told her that he had placed the hand warmer in his sock because of a sprained ankle and it must have fallen out. Batchman testified that in August 2013, Enriquez failed to report to her office as directed and failed to complete community service work as she had ordered.
In early November, another ISO directed Batchman to Enriquez' Facebook profile, registered under the assumed name of Marcus Escobar. On October 29, 2013, Enriquez had posted a photo of himself holding a firearm. When Batchman confronted Enriquez with the photo, he initially responded that the gun was not his. Then he said he had been at a friend's house and that the gun belonged to his friend. Batchman asked Enriquez for the name of this friend. Enriquez would not tell her. He then said that the gun was just an Airsoft gun—a type of pellet gun.
After discovering the photo, Batchman decided to visit the house at 1620 North Landon where Enriquez lived with his parents. She searched both the bedroom in which Enriquez was currently staying and the basement room he had inhabited until flooding forced him upstairs. In a closet adjacent to the basement room, Batchman found a box from a “Whizzinator” kit (a kit designed to alter UA results); a butterfly knife; a sword; a small vodka bottle; a box of ammunition; loose ammunition; drug paraphernalia; and a box with Enriquez' name on it that he identified as containing marijuana. In Enriquez' vehicle, Batchman found a club and another box from a Whizzinator kit.
Neither of the Whizzinator boxes had the device inside, but one contained a sales receipt and the other held fake urine. The sales receipt for the Whizzinator was dated September 12, 2013, and included a shipping address of: Tito Enriquez, 1620 Landon. The package had been shipped via Fed Ex priority overnight for $50. Enriquez told Batchman that he had used Whizzinator devices on several occasions to fake UAs.
The defense called Enriquez' mother as a witness. She testified that she had two other sons and three other stepsons, all of whom had stayed in her basement at one point or another. She said it had been “quite some time” since Enriquez lived in the basement area. After the flood, she said that many items from other parts of the basement had been stored in the room that Enriquez used to stay in and that Enriquez was not the only son who stored things at her house.
Enriquez also testified in his own defense. He denied owning the sword, the butterfly knife, or the ammunition, although he admitted ownership of the “little club” found in his car. Enriquez also admitted to buying the Whizzinator kits “[a] long, long time ago,” before he was on probation. He said he had used the device to get a job. Enriquez denied telling Batchman that he used it to alter UAs while on probation. Enriquez also denied telling Batchman she would find marijuana in the basement.
Regarding the photo posted to Facebook, Enriquez said he was holding a toy Airsoft gun at a friend's Halloween party. He said that his friend painted it up to look like a real gun as part of his costume. Batchman asked who his friend was, but Enriquez said that “it was just one of those friends that it was, like, just a person that I met, like, a couple times through an actual friend so I didn't really know the person.”
The State recalled Enriquez to confront him about the discrepancy between his testimony that he had bought the Whizzinator kits “[a] long, long time ago” and the sales receipt in one of the boxes indicating it had been purchased approximately 2 months before the hearing. Enriquez “suppose[d]” that he had meant September 12, 2013, when he said it was a long time ago. He admitted purchasing the Whizzinator while on probation but denied using it to alter his UAs. Enriquez said his intent had been to wait until he got off probation and then use it to get jobs.
After all the evidence had been presented, the district court judge issued his ruling from the bench. He expressed skepticism of Enriquez' testimony that the gun in the Facebook photo was an Airsoft gun because Enriquez refused to identify the unknown friend to whom he said it belonged. The judge further stated that Enriquez' testimony had no credibility based on his inconsistent accounts regarding the Whizzinator kits. “You don't pay $50.00 extra to get a Whizzinator kit overnight so that you can have it to use to take a urine test some years in the future when you're off Community Corrections,” the judge remarked.
The judge determined that both the boxed and loose ammunition were in an area accessible to Enriquez and that the box containing drug paraphernalia had Enriquez' name on it. Enriquez also told Batchman that the box contained marijuana. The judge further found that Enriquez possessed two kits to alter his UA results and told Batchman that he used them while on probation. He found that Enriquez had possessed alcohol and that he did not immediately notify his ISO that he had been fired. The judge concluded:
“It's pretty clear to this court that Mr. Enriquez has not really embraced the opportunity of Community Corrections. He's not decided to make the changes he needs to make.... You know, we can't depend upon Mr. Enriquez to tell me the truth here when he's on the stand. He doesn't tell Miss Batchman the truth so we don't know what he's doing or whether or not he's complying with the conditions of probation and here we are after all these years we should be getting a lot closer to the kind of pro social behavior that we should have for a person that's getting ready to return to society off supervision, so it doesn't look like we've made any progress at all.... It's not looking good enough for me to take another chance on Mr. Enriquez so sentence is executed.”
Enriquez timely appeals the district court's finding that he violated the terms of his probation and its imposition of his underlying prison sentence.
Issue on Appeal
Enriquez' sole argument on appeal is that the district court erred in finding the State had proved he violated the terms of his probation. He contends the State presented insufficient evidence to prove that he violated “key” provisions of his probation. He asks this court to reverse the district court's imposition of his underlying prison sentence.
Standard of Review
“We review a district court's ultimate decision to revoke probation under an abuse of discretion standard, but the State must first establish a violation of the terms of probation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). There is a preponderance of the evidence 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, rev. denied 286 Kan. 1183 (2007).
“We review a district court's determination that the State has proven a probation violation by a preponderance of the evidence under a substantial competent evidence standard. Under this standard, the appellate court determines whether there is such legal and relevant evidence as a reasonable person might accept as being sufficient to support the district court's finding the State has proven a probation violation by a preponderance of the evidence. See 38 Kan.App.2d at 315–16[ ].” State v. Quiralte–Perez, No. 100,606, 2009 WL 3737375, at *1 (Kan.App.), rev. denied 290 Kan. 1102 (2009).
Analysis
The district court found that Enriquez had violated the terms of his probation by possessing a firearm, possessing ammunition, possessing drug paraphernalia, possessing two kits designed to alter UAs, altering his UAs on multiple occasions, possessing alcohol, failing to report for an office visit, failing to complete his community service work, failing to notify his ISO that he had lost his job, and being convicted of a new offense. The credible testimony of Enriquez' ISO, the physical evidence admitted at the State's request, and the municipal court records documenting Enriquez' conviction were sufficient to demonstrate that the alleged probation violations were more probably true than not true.
In assessing the testimony and evidence, the district court properly exercised its function to weigh the credibility of the witnesses. The judge noted Enriquez' evasive testimony regarding the alleged Airsoft gun and his refusal to identify the “friend” to whom it allegedly belonged. The judge also discounted Enriquez' credibility based on his inconsistent and implausible accounts regarding the purchase and use of the Whizzinator kits.
We would also note that the district court had accorded Enriquez substantial leniency by reinstating his probation after he had stipulated to numerous violations on a previous occasion.
While it would not have been necessary for the State to have proved all of the currently alleged violations, the record is replete with substantial competent evidence in support of each violation found by the court. Clearly, reasonable persons could accept such evidence as being sufficient to support the district court's exercise of discretion in revoking Enriquez' probation.
Affirmed.