State v. Oatis

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NOT DESIGNATED FOR PUBLICATION

No. 120,014

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DOMINIQUE LA VELLE OATIS,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed September 6, 2019.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Madeline Bjorklun, legal intern, Kate Duncan Butler, assistant district attorney, Charles E.
Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., GARDNER, J., and LAHEY, S.J.

PER CURIAM: Dominique La Velle Oatis appeals the district court's finding that he
absconded from supervision while on probation. Based on that finding, the district court
revoked Oatis' probation and ordered him to serve his underlying sentence without first
serving an intermediate sanction. Oatis argues that the State presented insufficient
evidence that he absconded so we should remand for a new probation hearing. But we
find substantial evidence supporting the district court's ruling and affirm.


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Factual and Procedural Background

In April 2011, the State charged Oatis with burglary and misdemeanor theft. Oatis
entered a no contest plea to conspiracy to commit burglary. In February 2012, the district
court sentenced Oatis to 12 months in prison and 12 months' postrelease supervision but
granted Oatis 12 months' supervised probation.

At the sentencing hearing, the district court told Oatis the conditions of his
probation, stating:

"The conditions of your probation are as follows: That you follow all federal,
state, and local laws and ordinances. You're to report to your probation officer as they
request and you are to allow them to visit you at home and elsewhere. You're not to leave
the state of Kansas unless you have their written permission.
. . . .
"You are to keep your probation officer informed of where you're residing. And
if you move or change phone numbers, you are to let them know within seven days."

In September 2012, Oatis' court services officer (CSO) filed an affidavit alleging
that Oatis had failed to report since being placed on probation, had failed to make
payment on his court costs and restitution, and had failed to complete any hours of
community service. A week later, the district court ordered a bench warrant.

In May 2018, five and a half years later, Oatis was arrested in Illinois and was
served with the Kansas warrant. During his first appearance hearing on the warrant, when
the district court asked Oatis what city he lived in the last few years, Oatis responded,
"I've lived in Illinois. I recently moved back in December." The district court and Oatis
did not further discuss Oatis' movements after he left Kansas.

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Soon thereafter, the CSO filed an amended affidavit adding that Oatis had failed to
notify the CSO of a change in address and had left the state without permission. The
parties agreed to delay a pending extradition for a hearing on Oatis' probation revocation.

In June 2018, at the probation violation hearing, the CSO testified about his
knowledge of Oatis' probation. Just after the sentencing hearing, Oatis reported to his
office and completed the questionnaire for new probationers. In that meeting, Oatis
provided the CSO with a local Kansas cell phone number and a local Kansas address.
That was the only time Oatis reported as required. Oatis tried to call the CSO twice in
2012, but the CSO's phone did not have Caller ID at the time, so he could not determine
what number Oatis was calling from. The CSO called the number Oatis had earlier
provided and left detailed voicemails, explaining to Oatis the importance of getting in
contact with him to schedule an appointment. But Oatis never responded. The CSO's last
call to Oatis was in March 2012, and he did not hear from Oatis after that date. From
Oatis' testimony at his first appearance hearing on the warrant, the CSO learned that Oatis
was living in Illinois and that Oatis had been charged with crimes in Illinois.

Oatis testified that he had made two phone calls to the CSO but could not reach
him. He did not recall receiving messages from the CSO. Oatis moved to Illinois with his
family and admitted that he did not discuss with his CSO his plans to leave Kansas. He
had never used a different name or a false ID to avoid officers. When he received a ticket
in Illinois for not having proof of insurance, the officer had not told him about any
outstanding warrants. Oatis understood that he was on probation. But when asked about
his knowledge of his probation obligations as explained to him by the court at sentencing,
Oatis stated that his obligation was merely to "stay out of trouble."

The State asked the district court to find that Oatis was an absconder, which would
permit the court to order Oatis to serve his underlying sentence without serving an
intermediate sanction. K.S.A. 2018 Supp. 22-3716(c) requires the district court to give a
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probationer intermediate sanctions before ordering the probationer to serve his or her
underlying sentence. But if the district court finds that the probationer has absconded
from supervision, the district court may immediately order the probationer to serve his or
her underlying sentence. K.S.A. 2018 Supp. 22-3716(c)(8)(B). Conversely, Oatis
requested an intermediate sanction, asserting that he was not an absconder because the
State had presented no evidence that he actively hid from the police.

This district court specifically found that Oatis was an absconder, stating:

"All indications are in January of 2012, he was a [local resident] living with his
mother. This court believes that he purposely chose not to comply with the conditions of
his probation, never reported on this probation, moved out of state, making it difficult to
apprehend him or respond to any notice since he didn't keep the probation office apprised
of where he was residing. He did not have permission to leave the state. I do consider that
this–his actions in these two cases is absconding. Basically, he was put on probation and
he disappeared.

"So I find he has absconded. . . .

"And the court notes, additionally, in this Presentence Investigation defendant's
criminal history is laid out and he has had—he had extensive contact in juvenile court.
And this is not the first time he has had contact with the criminal justice system. His
testimony that he did not know he had these requirements does not ring true with this
court."

Thus, the district court revoked his probation and ordered Oatis to serve his
underlying sentence. The journal entry confirms that the district court revoked
Oatis' probation pursuant to K.S.A. 22-3716(c)(8)(B) because Oatis had
absconded. Oatis timely appeals.


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Does Sufficient Evidence Support the District Court's Finding that Oatis Absconded?

Oatis argues that no facts support the district court's finding that he had absconded,
so the district court was required to impose intermediate sanctions.

Standard of Review

Although Oatis argues the standard of review ought to be unlimited, Oatis does not
contend that the district court incorrectly interpreted K.S.A. 2018 Supp. 22-3716(c)(8)(B)
or the legal standard set by State v. Dooley, 308 Kan. 641, Syl. ¶ 4, 423 P.3d 469 (2018)
(defining "absconder"). Instead, Oatis solely argues that the district court did not have an
evidentiary basis to prove that Oatis was an absconder.

Under these circumstances, we apply the substantial competent evidence standard.
To invoke the absconder bypass of K.S.A. 2018 Supp. 22-3716(c)(8)(B), the State has the
burden to prove by a preponderance of the evidence that a probationer absconded.
Dooley, 308 Kan. at 657; State v. Huckey, 51 Kan. App. 2d 451, 457, 348 P.3d 997
(2015). The district court must base its finding that a probation violator absconded on
substantial competent evidence. Substantial evidence means legal and relevant evidence
that a reasonable person would find adequate to support a conclusion. State v. Gray, 270
Kan. 793, 796, 18 P.3d 962 (2001). "This court normally gives great deference to the
factual findings of the district court. The appellate court does not reweigh evidence,
assess the credibility of witnesses, or resolve conflicts in evidence. [Citations omitted.]"
State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015).

Analysis

Recently, the Kansas Supreme Court settled what "absconds from supervision"
means. Dooley, 308 Kan. at 657. Absconding means than an offender engaged in a course
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of action or inaction to avoid supervision with the intent to hide from or otherwise evade
the legal process. 308 Kan. at 656-58.

"We are persuaded to adopt that concept with respect to the phrase 'absconds
from supervision' in K.S.A. 2013 Supp. 22-3716(c)(8). Relying on ordinary dictionary
meanings, the State must show that the probation violator engaged in some course of
action (or inaction) with the conscious intent to hide from or otherwise evade the legal
process. 345 Or. at 33. Evading the legal process of the court includes the offender's
conduct in intentionally avoiding probation supervision, for example, by intentionally
avoiding detection by one's probation officer. In determining whether an offender has
'abscond[ed] from supervision,' district courts must consider whether the offender's
"'acts show the intent that inheres in the definitions of "abscond"—not simply that the
[offender] failed to attend one meeting with a probation officer or could not be located
for a brief period of time, but that the [offender] sought to "evade the legal process of a
court by hiding within or secretly leaving the jurisdiction."' 345 Or. at 36 (quoting
Webster's Third New Int'l Dictionary 6)." Dooley, 308 Kan. at 657.

We apply this definition here.

First, it is undisputed that the evidence shows Oatis failed to report during
probation for over five years. He had no contact with his CSO during that time. And he
was well aware of the following probation requirements:

 that he report to his probation officer as requested;
 that he allow his probation officer to visit him at home and elsewhere;
 that he not to leave the state of Kansas unless he had his probation officer's
written permission;
 that he keep his probation officer informed of where he was residing;
 that if he moved or changed phone numbers, he let his probation officer know
within seven days.

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Oatis claims that he did not understand these duties and thought his only duty was to
"stay out of trouble." But the district court plainly told Oatis at his sentencing hearing
what was expected of him while he was on probation. And after the probation revocation
hearing, the district court expressly discredited Oatis' testimony about his ignorance of
his probation conditions. We do not second guess that credibility finding on appeal. See
Talkington, 301 Kan. at 461.

Second, Oatis' acts show the intent that inheres in the definitions of "abscond"—
not simply that Oatis failed to attend one meeting with a probation officer or could not be
located for a brief period of time. See Dooley, 308 Kan. at 657. Even if Oatis tried to
contact the CSO twice by phone, the evidence shows that he did not further try to notify
the CSO that he intended to leave the state. Nothing in the record suggests that Oatis tried
to obtain written permission from his CSO to do so. Instead, the evidence shows that after
two phone calls, Oatis left the state and did not try to contact the CSO. Then for over five
years, Oatis made no attempt to contact his probation officer. He purposely chose to
evade the legal process of the district court by secretly leaving the jurisdiction. See 308
Kan. at 657.

Based on the evidence, a reasonable person could conclude that Oatis did more
than just fail to report. See State v. Anhorn, No. 111,903, 2015 WL 3632493, at *3 (Kan.
App. 2015) (unpublished opinion) (failing to report for three months, leaving the state
without telling the probation officer or providing a forwarding address, and being
arrested out of state provides substantial evidence that a probationer departed secretly and
thus absconded using the Huckey standard). Oatis' secret move to Illinois and his
consistent flouting of the conditions of his probation for over five years show his intent to
evade the legal process. Thus, we find substantial competent evidence supporting the
district court's finding that Oatis absconded.

Affirmed.