Opinion
No. 73748
04-11-2018
MATTHEW DAVID WARD, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Matthew David Ward appeals from a district court order revoking probation and an amended judgment of conviction. Eighth Judicial District Court, Clark County; Eric Johnson, Judge.
First, Ward argues the district court erred by revoking his probation based solely on hearsay evidence presented at the revocation hearing. At the probation revocation hearing, Ward's probation officer testified she accompanied Ward as he attempted to pay restitution in another criminal matter, but the Division of Parole and Probation's fees window refused to accept Ward's check. The officer and Ward then traveled to a Wells Fargo branch, the company listed on the check as its issuer, and employees of Wells Fargo informed her the check was fraudulent. Based on this testimony, the district court concluded Ward violated the terms of his probation and revoked probation.
In support of his claim, Ward relies primarily on Anaya v. State, 96 Nev. 119, 606 P.2d 156 (1980), but, unlike the appellant in that case, he did not object to the probation officer's testimony on due process or hearsay grounds. Id. at 121, 606 P.2d at 157. Thus, Ward has the burden to demonstrate plain error. See Browning v. State, 124 Nev. 517, 533, 188 P.3d 60, 71 (2008). "In conducting plain error review, we must examine whether there was error, whether the error was plain or clear, and whether the error affected the defendant's substantial rights." Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotation marks omitted).
Here, the record reveals the probation officer witnessed Ward attempt to pay restitution with the check and her personal investigation revealed the fraudulent nature of the check. Recognizing hearsay may be allowed at a probation violation hearing in certain circumstances, see NRS 47.020(3)(c); Anaya, 96 Nev. at 122-24, 606 P.2d at 157-59, we conclude Ward has not shown error affecting his substantial rights, see United States v. Olano, 507 U.S. 725, 734 (1993) (An error that affects substantial rights is one that "affected the outcome of the district court proceedings.")
Second, Ward argues the district court erred by revoking his probation for issues stemming from nonpayment of restitution when he was not ordered to pay restitution in this case. We review the district court's decision to revoke probation for abuse of discretion. Lewis v. State, 90 Nev. 436, 438, 529 P.2d 796, 797 (1974). The record demonstrates the district court concluded Ward violated the terms of his probation by uttering a fraudulent check to the Division of Parole and Probation. This action violated Ward's probation condition directing him to comply with all laws. Accordingly, the record supports the district court's conclusion that Ward's conduct was not as good as required by the conditions of his probation. See id. Under these circumstances, we conclude Ward has not demonstrated the district court abused its discretion when revoking probation. Accordingly, we
ORDER the order revoking probation and amended judgment of conviction AFFIRMED.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Eric Johnson, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk