State v. Hagan

PER CURIAM.

Appeal from Sedgwick District Court; Gregorys L. Waller, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON, J., and BUKATY, S.J.

PER CURIAM.

The district court found that David Hagan violated his probation by committing a domestic battery and by possessing an illegal weapon (a knife); the court revoked Hagan's probation and ordered that he serve his prison sentence. Hagan appeals, arguing that his due-process rights were violated because the notice of probation violation didn't mention possession of an illegal weapon; the evidence didn't show he committed a domestic battery; the court should have granted a continuance so that he could call additional witnesses; and the court should have given him another chance, even if he did violate his probation.

We agree that the district court should not have considered the illegal-weapon claim because Hagan had no notice it would be an issue. But there was sufficient evidence to support the finding that Hagan had violated his probation by committing a domestic battery, and that violation was a sufficient basis to revoke the probation and send Hagan to serve his prison sentence—especially since this was his second probation violation and he'd been warned when his probation was reinstated after the first violation that he'd receive no more second chances. And the witness Hagan argues he should have been able to call had no information that would have negated evidence that Hagan had violated his probation by committing a domestic battery. We therefore affirm the district court.

In 2010, Hagan was sentenced to 18 months of probation with an underlying prison sentence of 58 months after he pled guilty to possession of cocaine with intent to sell and related drug offenses. (He was also sentenced to 12 months in county jail, consecutive to the prison term, for marijuana possession.) In February 2011, the district court found that Hagan had violated his probation—by testing positive for cocaine—but reinstated Hagan's probation. The court told Hagan that he would not receive further chances if he again violated his probation. In April 2011, Hagan pushed his live-in girlfriend, TaLesha Ashley, against a wall as he attempted to leave their house during an intense argument. Two days later, a warrant was issued alleging that Hagan had violated his probation because he had been charged with domestic battery and aggravated battery and because he wasn't working full-time hours; his probation order required that he comply with the law and be employed full-time.

A probation-revocation hearing was held in May 2011. Hagan's attorney requested a continuance so that witnesses could be subpoenaed, but the district court denied that request. At the end of the hearing, the district court found that Hagan violated his probation by committing domestic battery and by possessing an illegal weapon. (The court's written ruling also said that Hagan had violated his probation by not being employed full-time, but the State agrees on appeal that the court did not make such a finding in its oral ruling. We presume for the purpose of our decision that the written journal entry is in error on this point.) The court used its discretion to modify Hagan's sentence to 49 months in prison rather than imposing the original 58–month prison sentence.

Hagan has appealed to this court.

I. The District Court Violated Hagan's Right to Due Process by Finding a Probation Violation That Hagan Had No Notice Would Be at Issue.

Hagan makes several arguments that the district court erred in finding that he violated his probation. Specifically, Hagan argues that his right to due process was violated because the district court found a violation—possession of an illegal knife—that wasn't alleged in the warrant. He also argues that his right to due process was violated because the district court denied his motion for a continuance, which he made to have more time to subpoena a witness. The State argues that the district court's finding of domestic battery was supported by the evidence; the State then essentially contends that Hagan failed to show he was prejudiced by any error and that Hagan's other issues don't need to be considered.

We agree that Hagan's due-process rights were violated when the district court found a probation violation that wasn't alleged in the warrant. Minimum due-process rights apply to a probation-revocation hearing, though a defendant isn't entitled to all of the same rights due in a criminal prosecution. State v. Marquis, 292 Kan. 925, 928–29, 257 P.3d 775 (2011). The United States Supreme Court has held that due process for revoking probation requires that the probationer receive “written notice of the claimed violations of his probation.” Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 [1973] ); see also State v. Billings, 30 Kan.App.2d 236, 238, 39 P.3d 682 (2002). Here, the district court found that Hagan committed an aggravated-weapons violation for possessing an illegal knife. But all agree that Hagan didn't have written notice that the State was making such a claim: The warrant didn't list possession of an illegal weapon as a basis for revoking probation. Rather, the warrant provided written notice of only the battery charges and the lack of full-time employment. As a result, Hagan's due-process rights were violated by the district court revoking his probation based on possession of an illegal knife. The district court erred by revoking Hagan's probation for this reason.

We leave for consideration later in this opinion whether the error was what the law regards as a harmless one, i.e., one that had no effect on the outcome. Before we address that question, we must first determine whether the State presented sufficient evidence that Hagan violated his probation by committing a domestic battery. If not, then no probation-violation alleged in the warrant was found, and we would be required to reverse the district court.

The State contends that revocation of Hagan's probation was proper because the evidence established that he committed domestic battery. Hagan argues that the district court erred in revoking his probation because the State failed to prove that he committed domestic battery.

Probation may be revoked only if the defendant on probation fails to comply with the conditions of probation. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). A failure to comply with the conditions of probation must be proved by a preponderance of the evidence. State v. Lumley, 267 Kan. 4, 8, 977 P.2d 914 (1999). Probation may be revoked based on the commission of another crime even if the defendant isn't charged with the crime or is charged but later acquitted. State v. Yura, 250 Kan. 198, 202, 825 P.2d 523 (1992). We review a challenge to the sufficiency of the evidence by looking at the evidence in a light most favorable to the State. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012); see also State v. Ingram, No. 107,100, 2012 WL 1524578, at *1 (Kan.App.2012) (unpublished opinion) (applying this standard to probation revocation); Costes v. State, 103 Ark.App. 171, 173, 287 S.W.3d 639 (2008) (same).

Hagan was charged with domestic battery and aggravated battery for the incident at the house. The district court concluded that Hagan at “the very least” committed domestic battery. Domestic battery is “(1) Intentionally or recklessly causing bodily harm by a family or household member against a family or household member; or (2) intentionally causing physical contact with a family or household member by a family or household member when done in a rude, insulting, or angry manner.” K.S.A. 21–3412a(a).

Here, Ashley said that her head hit the wall, but she admitted she wasn't injured and didn't suffer bodily harm from the physical contact with Hagan. Hagan argues that the State failed to prove that the contact was done “in a rude, insulting, or angry manner” as required by K.S.A. 21–3412a(a)(2). Hagan testified that he pushed Ashley into the doorway and against the wall, so the element of physical contact is not disputed. Hagan's testimony can also be read to indicate that he said, “[O]h, hell, no,” when he pushed Ashley.

Hagan's testimony is somewhat unclear on that point—he may have been talking about the thoughts he was having rather than the statements he was making. His first reference to “oh, no” came as he described the events in narrative form. Some references were to things that must have been said. For example, Hagan said his boss “was like, don't try and provoke this,” and Hagan said that Ashley “was like, this isn't going to happen,” apparently referring to her statements that he wasn't going to take the camping equipment he wanted to take from the residence. Hagan then described his own reaction: “I'm like oh, no.”

Later, in cross-examination, Hagan testified that he “said” the words, “[0]h, hell, no,” although that might have been a reference to his earlier testimony rather than what he said at the time of the alleged battery:

“Q. Did you push her against the wall?

“A. Yes.

“Q. Did you say oh, hell, no, because you weren't going to put up with that?

“A. I said oh, hell, no, because I knew it was time to escape, so no, that's incorrect.”
But the district court heard the testimony and concluded that a domestic battery had occurred. Because we take the facts in the light most favorable to the State and the trial court's findings, we conclude that Hagan said, “[O]h, hell, no,” to Ashley at or about the time he pushed her.

Hagan testified that Ashley was throwing things at him and blocking the exit. He also testified that Ashley was screaming as they argued about the camping equipment. In a similar case, our court held that when physical contact was made during an intense argument, a rational fact-finder could conclude that it was done in a rude, insulting, or angry manner. State v. Brown, 46 Kan.App.2d 210, 212, 262 P.3d 1055 (2011), rev. denied 293 Kan. –––– (February 17, 2012). But one judge dissented in Brown, concluding that the mere co-occurrence of physical contact during an intense argument does not necessarily mean the contact was done in a rude, insulting, or angry manner. See Brown, 46 Kan.App.2d at 216 (Atcheson, J., dissenting).

The evidence here was sufficient to prove a domestic battery, taking the facts in the light most favorable to the State (as we must do since the district court, which acts as the fact-finder, found in the State's favor). Not only did the contact occur during an intense argument, Hagan said, “[O]h, hell, no,” when he pushed Ashley, and the force of his shove was strong enough to push Ashley into the wall and cause her to hit her head against the wall, though she wasn't injured. Ashley testified at one point that the force caused her to “fly into the wall.” Additionally, the record doesn't show that Hagan asked Ashley to move out of his way before he pushed her. That Hagan failed to ask Ashley to move before pushing her is a factor tending to make the contact rude, insulting, or angry. See Brown, 46 Kan.App.2d at 216 (Atcheson, J., dissenting) (“Had [the defendant] said nothing to announce his desire to leave and simply pushed [his girlfriend] aside in the course of the argument and left the residence, those circumstances would have been much closer to the line.”). Finally, unlike Brown, a criminal case in which guilt had to be proved beyond a reasonable doubt, this case involves only the allegation of a probation violation, which need only be proved by a preponderance of the evidence. The State's evidence—taken in the light most favorable to the State—was sufficient to prove domestic battery.

Hagan also contends that his use of force was justified “for the purpose of preventing or terminating an unlawful interference” with Hagan's property—the camping gear he was trying to retrieve. See K .S.A.2011 Supp. 21–5225. But in Brown, where the defendant claimed he properly used force in self-defense, we rejected that argument. 46 Kan.App.2d at 212 (“Finding that a defendant was justified in using physical force to escape an angry verbal argument is simply not supported by established law.”). The statute cited by Hagan regarding the use of force when someone is interfering with the lawful possession of property and the self-defense statute at issue in Brown are similar. Under the latter, “[a] person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force.” K.S.A.2010 Supp. 21–3211(a). Similarly, under the statute Brown cites, “[o]nly such use of force as a reasonable person would deem necessary to prevent or terminate the interference may intentionally be used.” K.S.A.2011 Supp. 21–5225. Here, Ashley had thrown a glass and a lantern in Hagan's direction, but not directly at him. Hagan testified that Ashley was blocking his way out of the kitchen. But there was no testimony that Ashley was about to use unlawful force or that Hagan pushing her against a wall was necessary either for Hagan to defend himself against her imminent use of unlawful force or to reestablish lawful possession of his camping gear. As in Brown, Hagan's physical contact with Ashley wasn't justified. See Brown, 46 Kan.App.2d at 212.

The district court found two violations—possession of an illegal knife and domestic battery—but only one of them can be upheld. Even so, that's sufficient to support the revocation of Hagan's probation: the State need only prove one material violation to support revocation. See State v. Grossman, 45 Kan.App.2d 420, 428, 248 P.3d 776 (2011) (finding that clearly established probation violations were sufficient basis for revocation even if another cited ground for revocation was invalid because of lack of due process); Costes, 103 Ark.App. at 173 (“The State need only prove one violation in order to support revocation.”). The district court had warned Hagan when it reinstated his probation after he had violated it by testing positive for cocaine that he would get no more second chances. We are confident (based in part on the reasons we discuss in the final section of this opinion) that the district court's decision would not have been different had it found only the domestic-battery violation. See State v. Mireles, No. 102,997, 2011 WL 135027, at *5 (Kan.App.2011), rev. denied 291 Kan. 916 (2011).

Hagan also argues that his right to due process was violated when the district court denied his motion for a continuance, which in effect denied Hagan the ability to subpoena a witness. But even if we assume that the district court should have given Hagan a continuance, any error was harmless.

The witness Hagan wanted to present was his employer, referred to in our record only by his first name, Samuel. Samuel was also present at Hagan's residence when the domestic battery occurred. But by Hagan's own testimony, Samuel was outside on the porch and didn't see Hagan and Ashley interact until after Hagan had pushed her into a wall. Ashley testified that someone on the front porch wouldn't have been able to see into the kitchen where the altercation occurred. So Samuel's testimony wouldn't have added anything to the determination of whether Hagan committed domestic battery against Ashley because both parties testified that he didn't see it. And even though Samuel could have testified regarding whether Hagan was employed full-time, the district court didn't rely upon that claimed violation to revoke Hagan's probation. Thus, the outcome of the probation-revocation proceeding would not have been affected even if Samuel had testified.

Hagan argues that Samuel could have provided testimony about what he saw, but Hagan makes no proffer of what Samuel saw, if anything. And, at the revocation hearing, Hagan didn't offer details of what Samuel may have seen. The domestic battery was largely proven by Hagan's own testimony that he pushed Ashley into a wall while saying, “[O]h, hell, no,” in circumstances that gave him no legal justification to do so. Even if the denial of a continuance is deemed a violation of Hagan's constitutional due-process right to present evidence, “[a]n exercise of discretion that results in an error of constitutional magnitude” may still be held harmless if the court concludes beyond a reasonable doubt that the outcome was not affected. See State v. Murray, 285 Kan. 503, 520, 174 P.3d 407 (2008). Therefore, depriving Hagan of his right to due process by effectively not allowing Samuel to testify was harmless error beyond a reasonable doubt because the outcome would have been the same. See Murray, 285 Kan. at 520. The State has shown beyond a reasonable doubt that any error on this issue had no impact on the outcome of the probation-revocation hearing. See State v. Holman, 295 Kan. ––––, Syl. ¶ 11, 284 P.3d 251(2012).

Hagan finally argues that the district court abused its discretion by revoking his probation and ordering a 49–month prison term. He contends that the district court erred by not considering whether mitigating factors outweighed the domestic-battery charge.

When there is evidence of a probation violation, revocation is in the sound discretion of the district court. Walker, 260 Kan. at 808. Revocation isn't automatic—rather, the person found to have violated probation must have the opportunity to show that there was a justifiable excuse for any violation or to argue that revocation isn't appropriate. Walker, 260 Kan. at 809 (quoting Black, 471 U.S. at 612). Here, Hagan attempted to show his action was justifiable, and he had the opportunity to argue that revocation wasn't appropriate. The district court considered Hagan's arguments before revoking his probation, citing his lack of progress “in regard to assaultive behavior, in regard to temper control and management.” Hagan had already been given a second chance on probation; the district court had warned that no more chances would be given; and a domestic-battery offense is a serious probation violation. In addition, the court had initially granted Hagan probation even though—with a criminal history A, the worst possible score, when he was sentenced—he had been subject to a presumptive-prison sentence. On these facts, the district court's decision to revoke Hagan's probation and order that he serve his prison sentence wasn't arbitrary, fanciful, or unreasonable. Hagan has not shown an abuse of discretion.

We affirm the district court's judgment.