State v. Burr

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(Corrected)
NOT DESIGNATED FOR PUBLICATION

No. 114,144
No. 114,145
No. 114,146
No. 114,147
No. 114,148
No. 114,149

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MINDY DAWN BURR,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed August 5, 2016.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, C.J., GREEN and GARDNER, JJ.

Per Curiam: The trial court placed Mindy Dawn Burr on probation for her
convictions in 09CR690, 09CR727, 09CR814, 10CR1117, 10CR1121, and 11CR894.
The trial court revoked her probation and ordered her to serve her underlying sentences
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on July 3, 2014. Burr appeals, arguing that the trial court erred when it revoked her
probation. We affirm.
On October 5, 2009, Mindy Dawn Burr pled guilty in 09CR690 to one count of
possession of methamphetamine and one count of possession of stolen property. She also
pled guilty in 09CR727 to one count of theft, one count of violation of a protective order,
and one count of contributing to the misconduct of a child. In case 09CR814, she pled
guilty to one count of possession of marijuana and one count of violation of a protective
order.

The trial court sentenced Burr for those convictions on November 23, 2009. In
09CR690, the trial court sentenced Burr to 24 months' imprisonment for her possession
of methamphetamine conviction and 12 months' imprisonment for her possession of
stolen property conviction. The two sentences were ordered to run concurrently. In
09CR727, the trial court sentenced Burr to 12 months' imprisonment for her theft
conviction, 12 months' imprisonment for her violation of a protective order conviction,
and 12 months' imprisonment for her conviction of contributing to the misconduct of a
child. The sentences in 09CR727 were ordered to run concurrently to each other but were
ordered to run consecutively to the sentence in 09CR690. In 09CR814, the trial court
sentenced Burr to 12 months' imprisonment for her possession of marijuana conviction
and 12 months' imprisonment for her conviction of violation of a protective order. These
sentences were ordered to run concurrently to each other but consecutively to the
sentences in 09CR690 and 09CR727.

The presumptive sentence for the convictions was imprisonment, but the trial court
found substantial and compelling reasons to depart from the presumption because Burr
was more amenable to available substance abuse treatment, and the needs and
rehabilitation of Burr and the safety of the community would be served by Burr's
participation in substance abuse treatment. Therefore, the trial court placed her on
probation with community corrections for 30 months.
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On February 9, 2010, the State moved to revoke Burr's probation in 09CR690,
09CR727, and 09CR814 alleging that Burr had violated the terms of her probation by
violating the law and by having contact with Uriel Torres.

On October 7, 2010, the State charged Burr in 10CR1117 with eight counts of
forgery and four counts of theft by deception. On the same day, the State charged her in
10CR1121 with one count of sale of methamphetamine, one count of possession with the
intent to sell methamphetamine, one count of conspiracy to sell methamphetamine, and
one count of possession of methamphetamine.

On October 8, 2010, the State filed an amended motion to revoke Burr's probation.
The amended motion alleged that Burr had violated the conditions of her probation by
violating the law, by possessing or consuming alcohol or other mood altering chemicals,
by failing to report to her intensive supervision officer (ISO) as directed, by not abiding
by the curfew set by her ISO, by failing to complete a treatment program, and by failing
to work faithfully at suitable employment.

On January 20, 2011, Burr pled guilty in 10CR1117 to two counts of forgery. She
also pled guilty in 10CR1121 to one count of possession of methamphetamine. The trial
court sentenced Burr in 10CR1117 and 10CR1121 on March 4, 2011. In 10CR1117, the
trial court sentenced Burr to 18 months' imprisonment for the first conviction and 8
months' imprisonment for the second conviction. The trial court ordered the two
sentences to run concurrently with each other but consecutively to 09CR690, 09CR727,
09CR814, and 10CR1121. Nevertheless, the trial court placed Burr on probation with
community corrections for 12 months. The trial court also ordered that Burr pay
$3,872.95 in restitution.

In 10CR1121, the trial court sentenced Burr to 30 months' imprisonment for her
conviction of possession of methamphetamine. In addition, the trial court found
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substantial and compelling reasons to grant Burr a dispositional departure to probation
because a treatment facility was available for her and the safety of the public would not
be jeopardized by placing her on probation. The trial court granted Burr a 12-month
probation term with community corrections and ordered that she pay $125 in restitution.

The trial court also held a probation violation hearing in 09CR690, 09CR727, and
09CR814 on March 4, 2011. Burr stipulated that she had materially violated the terms of
her probation. The trial court revoked Burr's probation and reinstated it for another 12-
month term with the additional condition that she successfully complete inpatient
treatment.

On August 11, 2011, the State charged Burr with two counts of intimidation of a
witness or victim and one count of conspiracy to intimidate a witness. On August 16,
2011, the State moved to revoke Burr's probation. The motion alleged that Burr had
violated the conditions of her probation by violating the law and by having contact with
codefendants from her prior convictions.

On September 4, 2012, Burr pled no contest to one count of intimidation of a
witness or victim in 11CR894. The trial court sentenced Burr to 6 months' imprisonment,
but it suspended the sentence and granted her a 12-month supervised probation term with
community corrections. The trial court ordered the sentence to run consecutively to her
sentences in 09CR960, 09CR727, 09CR814, 10CR1117, and 10CR1121.

The trial court also held a probation violation hearing on September 4, 2012. Burr
stipulated to materially violating the conditions of her probation. The trial court revoked
Burr's probation and reinstated it for another 1-year term with community corrections.

On April 29, 2014, the State moved to revoke Burr's probation in each of her
cases. The motion alleged that Burr had violated the conditions of her probation by not
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reporting to her ISO as directed, by using drugs, by not submitting to random urinalysis
testing as directed, by not complying with curfew, by not maintaining employment, and
by not paying court costs, restitution, and fines.

The trial court held a probation revocation hearing on July 3, 2014. Burr did not
stipulate to the violations and an evidentiary hearing was held. Cindy Davis, Burr's ISO
since December 2009, testified that the conditions of Burr's probation were the same for
all of her cases except for the amounts of restitution she owed.

Davis testified that Burr had failed to report on October 15, 2013; September 30,
2013; November 14, 2013; December 19, 2013; December 26, 2013; January 23, 2014;
and April 21, 2014. When the motion to revoke probation was filed on April 29, 2014,
Burr had not reported since April 15, 2014. A condition of Burr's probation was to refrain
from using illegal drugs. Burr had tested positive for methamphetamines three times
since the prior probation revocation hearing on September 4, 2012. Burr had also missed
nine urinalysis tests since the previous hearing. Although Burr had completed substance
abuse treatment on December 1, 2011, Davis had placed her in a substance abuse
program at community corrections that met once a week. She, however, only attended a
couple of times.

Davis also testified that Burr had an 11 p.m. curfew and had violated curfew 11
times. As a result of missing curfew, Davis moved the curfew to 10 p.m. and conducted
more frequent surveillance checks. Burr was also required to gain and maintain
employment while on probation. Burr had provided employment verification from only
one employer; however, she was let go from that job and was unemployed for a least a
year before the filing of the motion to revoke probation. Davis had referred Burr to Job
Tech but she was not going regularly and had not provided a reason for why she could
not get a job or go to Job Tech.

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Burr still owed court costs and restitution in the amount of $1,458 in 09CR690,
$148 in 09CR727, and $148 in 09CR814. She had made one $20 payment since
September 2012. Ultimately, Davis recommended that Burr serve her sentence because
community corrections had no other viable programs for her.

On cross-examination, Davis testified that she had not employed a 120-or 180-day
sanction because Burr had not reported for over 30 days and had absconded. Davis did
not check on Burr at her residence during this time because law enforcement had told
Davis that the residence was involved in drug activities. As a result, Davis did not feel
safe going to Burr's residence. Burr told Davis at their last appointment that she was
going to get a job at La Casita, but Davis never received verified information of this
employment.

Davis testified that she had sanctioned Burr for some of her violations internally.
Specifically, every curfew violation, except for two in April, was addressed verbally. She
had also internally sanctioned or addressed with Burr the missed appointments from
October 2013 to January 2014. The three positive urinalysis tests were addressed with a
jail sanction. Every missed drug test had been addressed as well except for two in April.

Burr never disclosed that she had transportation difficulties. Burr did mention that
she had to pay child support, which limited her from paying costs and restitution in her
cases. Finally, Davis testified that Burr also had a pending probation violation in
McPherson County but no new convictions.

Burr did not testify or present any evidence at the hearing.

After hearing the evidence, the trial court found that Burr had materially violated
the terms of her probation as alleged in the motion to revoke. The trial court revoked
Burr's probation and ordered her to serve the underlying sentence in each of her six cases.
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Burr filed a timely notice of appeal in each of her six cases. This court
consolidated the six cases on appeal.

Did the Trial Court Err in Revoking Burr's Probation?

The only issue Burr raises on appeal is that the trial court erred when it revoked
her probation. Specifically, Burr argues that there was insufficient evidence to support the
revocation of her probation because Davis was unaware of Burr's employment at La
Casita and because most of Burr's violations had been handled internally. The State,
however, argues that there was sufficient evidence to support the revocation of Burr's
probation. Moreover, the State contends that her argument is merely a request for this
court to evaluate the credibility of Davis, which is not an appropriate function of an
appellate court.

Before a trial court may revoke a defendant's probation, a violation of a condition
of probation must be proved by a preponderance of the evidence. State v. Gumfory, 281
Kan. 1168, 1170, 135 P.3d 1191 (2006). "'A preponderance of the evidence is established
when the evidence demonstrates a fact is more probably true than not true."' State v.
Roose, 41 Kan. App. 2d 435, 441, 203 P.3d 18 (2009). The State has the burden to prove
a defendant has violated a condition of his or her probation. K.S.A. 2015 Supp. 22-
3716(b)(2).

Davis' testimony provided sufficient evidence for the trial court to find by a
preponderance of the evidence that Burr had violated the conditions of her probation.
Burr's arguments do not refute the evidence that she had violated the terms of her
probation. While Burr had mentioned to Davis that she might be getting a job at La
Casita, she had not provided Davis with verification of this employment. As a result, Burr
was still in violation of her probation because she had not provided verification of
employment.
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The fact that many of Burr's probation violations had been sanctioned or addressed
internally does not show that there was insufficient evidence that Burr had violated the
conditions of her probation. Even if the violations that were internally addressed were
removed from consideration, there was still evidence that Burr had violated the
conditions of her probation by missing urinalysis tests in April, missing appointments in
April, not obtaining employment, and not making payments toward court costs and
restitution.

Burr seems to question the credibility of Davis by arguing that Davis' answers to
cross-examination questions were so equivocal that this court should question whether
the State proved that Burr had violated the conditions of her probation by a
preponderance of the evidence. Nevertheless, when this court is reviewing a sufficiency
of the evidence challenge, it does not reweigh the evidence or pass on the credibility of
the witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). For this
reason, Burr's arguments fail.

Finally, Burr does not argue that the trial court's decision to order her to serve her
underlying sentences was an abuse of discretion. An issue not briefed by the appellant is
deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).

Affirmed.