Opinion
111,929.
07-10-2015
STATE of Kansas, Appellee, v. Stephen PARKER, Appellant.
Carol Longenecker Schmidt, of Kansas Appellant Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellant Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Stephen Parker appeals the revocation of his probation, contending the evidence did not show he committed a new crime while on probation. We affirm.
The district court granted Parker a downward dispositional departure to probation after he pled guilty to several drug crimes. As a condition of probation, the district court ordered Parker to obey the law. A few weeks later, the State of Kansas filed a warrant alleging Parker had committed aggravated kidnapping and domestic battery of his wife, and other probation violations.
At the evidentiary hearing on the State's allegations, the State called Parker's wife, who admitted that she had called 911 and had told them Parker had attacked her. She also admitted that she had given the same account to the police when they arrived. But at the evidentiary hearing on the probation revocation, Parker's wife retracted her statements, saying she had just wanted Parker out of the way in preference for a boyfriend.
The hearing transcript reveals that Parker's wife told police Parker had brandished a firearm, grabbed her, pulled her about by the hair, and tore off her clothing. Parker argues his wife “clarified” at the hearing that her earlier statements “were untruthful,” and the record reflects that statement.
The State admitted ten exhibits during the hearing, none of which is in the record on appeal. Among them are tom clothing belonging to Parker's wife, photographs of her injuries, recordings of her 911 call, and her statement to the police. Noting “I can take into consideration credibility,” the district court credited the recordings of the previous statements by Parker's wife over her live testimony at the probation revocation hearing. The district court noted that compared to the “very compelling” State's exhibits, Parker's wife “came across today like she's just having buyer's remorse.” The district court therefore revoked probation and ordered Parker to serve a modified prison sentence.
Parker argues the district court abused its discretion by revoking his probation. A district court abuses its discretion by action which is arbitrary, fanciful, or unreasonable, or which is based on an error of law or fact. See State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Parker also complains that the State failed to show by a preponderance of the evidence that he committed a new felony or misdemeanor while on probation. This court reviews the district court's factual findings for substantial evidence, meaning:
“ ‘evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ “ State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008) (quoting State v. Luna, 271 Kan. 573, 574–75, 24 P.3d 125 [2001] ).
Our consideration of whether the evidence was substantial, however, is necessarily incomplete because Parker omitted from the record the exhibits expressly relied on by the district court, especially the recording of his wife's call to 911 and her statement to the police. Parker bore the burden to designate a record affirmatively showing error. Since he did not do so, we presume the action below was correct. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013).
Nonetheless, many of the facts are established in the hearing transcript from the probation revocation. It confirms that Parker's wife told police that Parker had brandished a firearm, grabbed her, pulled her about by the hair, and tore her clothing off. It also shows that she contradicted those events at the hearing, stating that her earlier statements “were untruthful.” Parker's chief assertion on appeal is that the district court was bound to accept her testimony at the revocation hearing as the truth and reject her prior statements. But the district court had the prerogative to give the recordings and other evidence more credit and weight than his wife's live testimony, and an appellate court does not reweigh the evidence or pass on witness credibility. See State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). The judge explained his credibility finding by stating, “She is the defendant's wife. And obviously, she doesn't want to see her husband go to prison .... so she's having a bout of buyer's remorse.” He also found her to be “very believable on the tape,” which was made contemporaneously or soon after the events occurred.
The district court also found the “exhibits, the evidence [to be] very compelling.” The district court specifically mentioned the wife's statement to law enforcement, her 911 call, her tom clothing, and three photographs: State's Exhibit 7, showing a frontal view of Mrs. Parker where she appears to have a red mark on her right cheek; State's Exhibit 8, showing redness on the right side of her neck; and State's Exhibit 9, showing an injury to the back of her knee.
Having reviewed the record, we find substantial evidence supporting the finding that Parker violated his probation and no abuse of discretion in the decision to revoke probation.
Affirmed.