State v. McClure

Decision Date28 August 2020
Docket NumberNo. 121,658,121,658
Citation469 P.3d 686 (Table)
Parties STATE of Kansas, Appellee, v. Cody L. MCCLURE, Appellant.
CourtKansas Court of Appeals

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Malone, J., and Walker, S.J.

MEMORANDUM OPINION

Per Curiam:

Cody L. McClure appeals from the district court's order revoking his probation. In its motion to revoke probation, the State alleged that McClure violated the terms of his probation by unlawfully abusing toxic vapors and subsequently getting arrested for that abuse. But at the probation violation hearing, the State failed to provide evidence of what substance McClure was alleged to have abused. Despite this, the district court revoked McClure's probation, essentially finding that McClure violated the spirit of his probation through his continued substance abuse. On appeal, McClure argues that there was insufficient evidence to support the revocation, and we agree. Under these circumstances we reverse the district court's decision revoking McClure's probation and remand for further proceedings.

FACTS

In March 2017, McClure pled no contest to aggravated battery, criminal threat, domestic battery, and violation of a protection order. The district court granted McClure probation with an underlying 14-month prison sentence.

While on probation, McClure was required to not violate the law or possess or consume alcohol or illegal drugs. Additionally, McClure was required to complete substance abuse treatment. A further condition provided that, if McClure was admitted into a drug court program, he was required to follow all program requirements.

In January 2019, the State moved to revoke McClure's probation alleging that he violated several conditions of his probation. McClure stipulated to violating the terms of his probation. The district court sanctioned him with up to 60 days in jail, pending the results of a drug and alcohol evaluation.

Just over two weeks after the violation hearing, the State filed a second motion to revoke McClure's probation alleging that he violated the terms of his probation. McClure again stipulated to violating his probation and the district court ordered a second 60-day sanction.

After the second revocation hearing, McClure was accepted into a drug court program. While in the program, McClure violated its terms by using or admitting to using drugs.

In July 2019, the State moved to revoke McClure's probation for a third time. The State alleged that McClure violated the terms of his probation by violating the law and possessing or consuming alcohol or drugs. According to the motion, McClure was arrested for abuse of toxic vapors in mid-July 2019. Both allegations related to the abuse of toxic vapors charge.

At the probation violation hearing, the State called Mitchell Shivers, McClure's supervising probation officer. According to Shivers, McClure admitted to taking a box of cold medicine in an attempt to get high. The drug court team worked with McClure on a way to prevent further relapses. However, the attempt was unsuccessful. McClure admitted to taking a second box of cold medicine in another attempt to get high. McClure objected to the testimony relating to his ability to follow the requirements of drug court because the drug court issues were not included in the State's motion to revoke or supporting documents. The district court stated that it would "treat it as evidence that might be relevant to a disposition order."

Shivers also testified that urinalysis tests typically do not, and in this case did not, show whether a person is using cold medicine. Nor could probation officers test whether an individual was using intoxicating vapors.

The State also called Jeremy Hansford, an intensive supervision officer, to testify. Hansford explained that he met with McClure after his most recent arrest—the subject of the State's motion to revoke McClure's probation. Hansford and McClure discussed what happened to lead to his arrest. According to Hansford, McClure said that while he was huffing he was thinking that there was no way to test for huffing and that he "didn't believe that it was an illegal activity because the substance he was abusing was not on the toxic vapor list." Hansford did not know what substance McClure was huffing.

At the conclusion of the hearing, the district court revoked McClure's probation. The court found that the State "demonstrated in this case violation of the probation conditions." The court noted that it based its decision in large part on McClure's "own representations that he was using a product at a time when he knew there was not a test to test for the product." As the court saw it, because McClure considered that he could not be tested for what he was doing, he knew he should not be doing it. The court went on to note that "if not violating the exact language of the probation assignment, it certainly violates the approach that's taken to try and rehabilitate an individual." In the written journal entry, the court noted that probation was revoked because McClure "used product because he knew that it couldn't be test[ed] for, substances that were inappropriate for the way used."

The district court ordered McClure to serve the remainder of his sentence. McClure timely appeals the revocation of his probation.

ANALYSIS

On appeal, McClure argues that the district court erroneously revoked his probation because the State did not prove that he possessed or consumed illegal drugs or violated the law by abusing toxic vapors.

A district court's decision to revoke a defendant's probation is reviewed for an abuse of discretion. A district court abuses its discretion when its decision is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact. State v. Lloyd , 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016). However, a district court "has no ’discretion in a probation revocation proceeding until the evidence establishes a probation condition violation.’ " 52 Kan. App. 2d at 782 (quoting State v. Garcia , 31 Kan. App. 2d 338, 341, 64 P.3d 465 [2003] ). The State must establish, by a preponderance of the evidence, that the probationer has violated the terms of his or her probation. "’A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true.’ " Lloyd , 52 Kan. App. 2d at 782 (quoting State v. Inkelaar , 38 Kan. App. 2d 312, 315, 164 P.3d 844 [2007] ). We review the district court's factual findings for substantial competent evidence. Inkelaar , 38 Kan. App. 2d at 315.

After a defendant is arrested and detained for violating the terms of his or her probation, the court services officer "shall immediately notify the court and shall submit in writing a report showing in what manner the defendant has violated the conditions of release or assignment or a nonprison sanction." K.S.A. 2019 Supp. 22-3716(b)(1). In this case, the final affidavit supporting the State's motion to revoke McClure's probation stated that McClure violated his probation by (1) violating the law by abusing toxic vapors and (2) possessed or consumed alcohol or illegal drugs.

Based on the State's motion and supporting affidavit, the State was required to prove by a preponderance of the evidence that McClure either violated the law by abusing toxic vapors or possessed or consumed alcohol or illegal drugs. See Lloyd , 52 Kan. App. 2d at 782.

McClure asserts, without comment from the State, that the State was alleging that he violated K.S.A. 2019 Supp. 21-5712. Under K.S.A. 2019 Supp. 21-5712(a), unlawful use of toxic vapors is defined as "possessing, buying, using, smelling or inhaling toxic vapors with the intent of causing a condition of euphoria, excitement, exhilaration, stupefaction or dulled senses of the nervous system." Under the statute, a "toxic vapor" is a vapor from:

"[ (c) ... :] (1) Alcohols, including methyl, isopropyl, propyl or butyl;
(2) aliphatic acetates, including ethyl, methyl, propyl or methyl cellosolve acetate;
(3) acetone;
(4) benzene;
(5) carbon tetrachloride;
(6) cyclohexane;
(7) freons, including freon 11, freon 12 and other halogenated hydrocarbons;
(8) hexane;
(9) methyl ethyl ketone;
(10) methyl isobutyl ketone;
(11) naptha;
(12) perchlorethylene;
(13) toluene;
(14) trichloroethane; or
(15) xylene." K.S.A. 2019 Supp. 21-5712(e).

Based on the affidavit supporting the State's motion to revoke probation, the State was required to prove by a preponderance of the evidence that McClure violated K.S.A....

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