Opinion
111,560.
06-05-2015
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case comes before the court on appeal from a probation revocation. While on probation, Elizabeth Tisdale accompanied a relative on some errands. After one pharmacy refused to fill the relative's prescription, Tisdale walked into another pharmacy and attempted to fill it for him. The prescription turned out to be a forgery, and Tisdale became a suspect in the crime of unlawfully obtaining a prescription-only drug. Based on this alleged offense and Tisdale's failure to pay down her balance of court costs, the district court issued a warrant for probation violations. The district court conducted an evidentiary hearing, revoked her probation, then reinstated that same probation after ordering a 60–day jail sanction and extending the probation term. Tisdale appeals. We affirm, finding substantial evidence supporting the fact that Tisdale violated her probation, and finding no abuse of discretion in the court's decision to revoke probation.
Procedural Background
In May of 2012, the State charged Tisdale with a single count of aggravated battery. A short time later, she pled guilty to this and other charges in exchange for a favorable sentencing recommendation from the State. The district court accepted her plea, convicted her, and sentenced her to 24 months' probation with an underlying term of 17 months' imprisonment.
In November of 2013, the district court issued a warrant for Tisdale at probation officer Bryan Ronk's request. The warrant alleged that Tisdale had violated her probation by failing to pay anything toward her court costs since May of 2013 and by becoming a suspect in an ongoing police investigation regarding a forged prescription. Tisdale received an evidentiary hearing at which she claimed lack of knowledge that the prescription was forged.
The district court disagreed with Tisdale's characterization of the evidence and determined that Tisdale had violated her probation, finding her explanation “not plausible.” The district court reasoned that under the circumstances, Tisdale either knew or should have known of the forgery, so it revoked Tisdale's probation.
During the argument regarding disposition, the State requested that Tisdale serve her underlying term of imprisonment, since another of Tisdale's criminal cases involved almost identical facts: Tisdale had attempted to pass a forged money order for a relative and had claimed ignorance of the forgery. The State argued that Tisdale was “continuing now down the same path, and [was] not willing to take any responsibility for what has happened,” which demonstrated that she had not truly progressed while on probation. Tisdale argued that she should be reinstated with a plan to enter some sort of residential facility at the end of the month. Tisdale pointed to her progress on her probation tasks, her willingness to face her violation, and her obligations in terms of her job and child.
The district court imposed a 60–day jail sanction, credited Tisdale with time served, and extended her probation for 24 additional months. Although the district court's stated “instincts” suggested Tisdale should serve out her imprisonment term, that consideration was outweighed by Tisdale's compliance and her willingness to turn herself in for her violations. The district court also warned Tisdale that due to her criminal history, “people in the court system, including the judges, are going to have a very difficult time trusting you and believing you.”
Standard of Review
Tisdale first contends that the State failed to meet its burden to prove her probation violations. In order for the district court to revoke a defendant's probation, the State must first establish commission of the violation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). This burden “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). Our review of a factual determination is generally governed by the substantial evidence standard. Inkelaar, 38 Kan.App.2d at 315. Substantial evidence is such legal and relevant evidence that a reasonable person might accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Under this standard, “it is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.” State v. Hartpence, 30 Kan.App.2d 486, 493, 42 P.3d 1197 (2002).
Failure to Pay Court Costs
Tisdale alleges that she paid some court costs as well as other fees associated with her probation term. She also argues that because her probation officer failed to set up a payment plan, she cannot be faulted for failing to pay down her balance.
Tisdale testified that she had made “several” payments toward her court costs. But her probation officer, Ronk, contradicted that testimony by stating that she never paid any of her outstanding costs. Moreover, Ronk indicated that he and Tisdale discussed her need to make monthly payments, even if they were minimal, and Tisdale appeared to acknowledge this by admitting that Ronk had told her, “Do what you can.” Ronk acknowledged that Tisdale likely paid for other items associated with her probation term, such as classes and urinalysis, but clarified that those payments did not reduce her outstanding balance. The district court discredited Tisdale's testimony and credited Ronk's testimony, which provides substantial competent evidence supporting the district court's conclusion that Tisdale failed to pay her court costs.
Failure to Remain Law–Abiding
Tisdale next argues that the State failed to prove by a preponderance of the evidence that she committed the offense of unlawfully obtaining or selling a prescriptiononly drug by possessing a forged prescription. This offense, codified at K.S.A.2014 Supp. 21–5708(a)(3), is defined as follows: “Unlawfully obtaining a prescription-only drug is ... possession of a prescription order with intent to distribute it and knowing it to have been made, altered or signed by a person other than a practitioner or a mid-level practitioner.” Tisdale objects only to the district court's finding that she knew the prescription to be a forgery, contending that she had no reason to doubt the prescription's authenticity.
But Tisdale fails to recognize that a conviction of even the gravest offense can be based on circumstantial evidence. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). As long as the evidence in question provides a basis from which the factfinder may reasonably infer the existence of the fact in issue, a verdict may be supported by circumstantial evidence. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008). Here, the State's burden is much lower than in a criminal prosecution, as the State must prove only that “a fact is more probably true than not true.” Inkelaar, 38 Kan.App.2d at 315.
Ample circumstantial evidence demonstrates Tisdale's knowledge that the prescription was forged. Tisdale's mother, Lucretia, testified that Eddie Caddell asked Tisdale to fill the prescription at Salyer Pharmacy because he did not feel well. At the scene and in her testimony, Tisdale claimed that Caddell asked her to fill the prescription because he feared his frequent visits to Salyer Pharmacy would prevent the pharmacy from filling his prescription for insurance reasons. Apparently believing this explanation, Tisdale agreed to fill the prescription.
But at the scene, Tisdale also told Officer Christopher Marceau that Caddell had first attempted to fill the prescription at another pharmacy. Lucretia confirmed that fact and added that she and Tisdale were both in the car when Caddell had told them the first pharmacy had refused to fill his prescription. Additionally, Tisdale told Marceau, and Lucretia confirmed, that despite his complaints of not feeling well, Caddell had been sufficiently able-bodied to try to fill the prescription himself earlier that day at Parklane Pharmacy. And three of the witnesses for the State—including Marceau, a police officer not associated with the business of prescribing or dispensing medication—testified that this particular prescription was on paper that was photocopied, was too thin, or was obviously the wrong type. The chain of events leading up to Tisdale's entering Salyer Pharmacy with the prescription, as well as the prescription itself, creates a reasonable inference that Tisdale knew the prescription was not authentic.
After hearing Tisdale testify, the district court determined that her story was not credible. It is not this court's prerogative to reevaluate witness credibility. See Hartpence, 30 Kan.App.2d at 493. The record contains substantial competent evidence to support the district court's conclusion that it is more likely than not that Tisdale knew the prescription to be forged or altered. Therefore, the district court did not err in finding that she violated her probation on this ground.
Tisdale also contends that the district court improperly relied on facts not in evidence by commenting on her prior forgery cases. After referencing the facts supporting his finding that Tisdale had violated her probation, the district court stated: “She's already been involved and convicted of forgery cases, so it doesn't take a stretch of the imagination for this Court to make the finding that it has.” Tisdale cites no caselaw supporting this point and devotes only a few sentences to the argument. A point raised incidentally is considered abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013) ; State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). But even had this issue been properly preserved, no reversible error has been shown. The district court did not rely on Tisdale's prior convictions in finding that she violated her probation, but merely referenced them after having made that finding based on the independent evidence noted above.
Abuse of Discretion
Tisdale next argues that the district court abused its discretion by revoking her probation. She contends that the district court should have allowed her to finish her original term, especially since the district court expressed doubt that she would succeed on her extended term.
Unless required by law, probation is a privilege and not a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the court finds evidence of a probation violation, revocation of that probation is in its sound discretion. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). An abuse of discretion occurs only when a judicial action is arbitrary, fanciful, or unreasonable, or is based on an error of fact or law. Ward, 292 Kan. at 550.
Because the district court correctly found two probation violations, the decision to revoke and reinstate Tisdale's probation rested in its discretion. Nothing in the record shows that this decision was based on factual or legal error, or was arbitrary, fanciful, or unreasonable. Instead, the record demonstrates that the district court carefully considered the facts of Tisdale's particular case when deciding to revoke and reinstate her probation.
Opportunity to Be Heard
As a final matter, Tisdale contends that the district court denied her an opportunity to argue that she had a justifiable excuse for her violations or that a disposition other than revocation might be better suited to her case. When the district court has the discretion to either continue or revoke an individual's probation, that individual “is entitled to an opportunity to show that he or she did not violate the conditions of probation, or that there was a justifiable excuse for the violation, or that revocation is not the appropriate disposition.” State v. Walker, 260 Kan. 803, Syl. ¶ 3, 926 P.2d 218 (1996). But contrary to Tisdale's argument, the district court clearly gave her an opportunity to be heard. Even before the district court found that she had violated the terms of her probation, Tisdale was allowed to testify that she wanted to be allowed to finish her probation term. In support of her request, she pointed to her track record of having completed probation tasks. Additionally, after the district court revoked her probation, Tisdale was permitted to argue that she should be reinstated and allowed to enter a residential facility. In short, nothing in the record supports this claim of error.
Affirmed.