State v. Causer, 20030124.

• Decision Date: 13 April 2004
• Docket Number: No. 20030124.,20030124.
• Citation: 678 N.W.2d 552,2004 ND 75
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dana CAUSER, Defendant and Appellant.
• Court: North Dakota Supreme Court

678 N.W.2d 552

2004 ND 75

STATE of North Dakota, Plaintiff and Appellee, v. Dana CAUSER, Defendant and Appellant.

No. 20030124.

Supreme Court of North Dakota.

April 13, 2004.

Dana Causer, pro se, defendant and appellant.

Lonnie Olson, State's Attorney, Devils Lake, for plaintiff and appellee.

NEUMANN, Justice.

[¶ 1] Dana Causer appeals from the trial court's order revoking his probation and resentencing him. We conclude the trial court did not err in revoking Causer's probation or in sentencing him to a term of imprisonment exceeding the original sentence. We affirm.

I

[¶ 2] On May 16, 1995, Causer pled guilty to gross sexual imposition after allegedly making a seven-year-old victim, A.B., perform oral sex on him. The trial court sentenced Causer to ten years' imprisonment, with four years suspended if Causer abided by the trial court's conditions of probation during the four-year suspended period. On July 3, 1999, Causer was released from the state penitentiary and placed on supervised probation, under conditions of probation imposed by the trial court. Among other conditions, Causer was prohibited from contacting A.B. and her mother, possessing dangerous weapons, drinking excessive amounts of alcohol, and violating any criminal laws or ordinances. In addition, Causer's probation required he submit to a search of his person, vehicle or residence by his probation officer at any time, regardless of whether the probation officer had a search warrant. Causer was required to submit to any drug or alcohol testing requested by his probation officer.

[¶ 3] After his release, the trial court revoked Causer's probation on four separate occasions. Based on the first three revocations, Causer's conditions of probation were expanded. In addition to the original conditions, Causer was required to immediately enroll in and successfully complete sex offender treatment, maintain complete sobriety from alcohol and drugs, be subject to random drug and alcohol testing, maintain no further contact with an ex-girlfriend known as T.L., and obtain daily urinalysis tests. Additional conditions were also imposed. The trial court also extended Causer's probation by one year, to July 3, 2004.

[¶ 4] Causer enrolled in a sex offender treatment program with Dr. Myron J. Veenstra of the Northeast Human Service Center in Grand Forks, North Dakota. Causer signed a sex offender treatment contract with the center containing a clause acknowledging he could be dismissed from the program if he engaged in "targeted sexual activity."

[¶ 5] The following events led to Causer's fourth and final probation revocation. On January 31, 2003, Causer's probation officer, Lila Thomas visited Causer's home. Causer lived alone. Thomas believed Causer should have expected her visit because she had told him she would be visiting before the end of January. Thomas knocked on Causer's door repeatedly, calling his name and asking him to step outside. Two uniformed police officers and two Bureau of Criminal Investigation agents, not in uniform, accompanied Thomas. Causer did not answer the door. Thomas and law enforcement entered the home. Thomas asserts she and law enforcement continued to call out for Causer while searching inside the home. Causer was discovered hiding in the attic.

[¶ 6] According to Causer, he was sleeping when Thomas arrived and was awakened by a loud pounding on his door. Causer glanced out his window and saw a man who was not in uniform standing outside his door with a gun. Allegedly, Causer did not know Thomas was present. Causer asserts he then hid in his attic and did not hear anything until the officers entered the attic.

[¶ 7] Thomas and the officers searched Causer's home. They found full beer bottles in the attic, beer bottle caps in the home, and empty beer cans in the garbage. Causer denied knowing there was beer in the attic and explained the beer cans and bottle tops were from a Super Bowl party. At Causer's revocation hearing, Paul Riemer testified he had placed beer in Causer's attic while housesitting and had forgotten about it.

[¶ 8] Thomas also found and seized a bow, arrows, a pocketknife, and two boxcutters, items she identified as dangerous weapons. According to Causer and his mother, the bow and arrows belonged to Causer's nine-year-old son and was a child's toy, including only practice arrows.

[¶ 9] Thomas discovered pornographic tapes, pornographic magazines, sex toys, female clothing, and Causer's own artwork depicting sexual acts. Causer claimed the items were locked away in his home because he was not using them and, when his son visited, the items were completely removed from his house. Riemer also testified he had stored the items for Causer when Causer's son visited. Causer also stated he drew the artwork while in Bismarck, presumably while in prison.

[¶ 10] During the search, Thomas found an antibiotic prescription for T.L.'s child in Causer's refrigerator. The prescription was dated January 18, 2003. A restraining order prohibiting contact between Causer and T.L. was in effect from July 9, 2002, to July 8, 2003. Causer explained that T.L.'s mother had called Causer and asked him to pick up the prescription. According to Causer, he picked up the prescription, but it was never retrieved from his home. [¶ 11] In a letter dated February 4, 2003, Dr. Veenstra notified Thomas that Causer was discharged from the sex offender treatment program because his lapse in behavior indicated he was unable to be treated in a community-based treatment program. Dr. Veenstra determined Causer had a lapse in behavior based on the pornographic items discovered during the January 31, 2003, search of his home. According to Thomas, Causer was discharged from the program for violating his contract with the center.

[¶ 12] On March 11, 2003, Thomas subjected Causer to a urinalysis. The sample tested positive for amphetamines. Thomas sent the sample to a laboratory, which confirmed the presence of amphetamines and also showed the presence of methamphetamine. Causer denied using methamphetamine, explaining the positive drug test could have resulted from Sudafed he had taken for a sinus cold.

[¶ 13] Thomas moved for probation revocation on March 19, 2003, alleging six violations of Causer's probation. The trial court held a probation revocation hearing on April 11, 2003, and subsequently revoked Causer's probation. In its order the trial court found, by a preponderance of the evidence, that Causer had committed all six of the alleged violations of the probation conditions. The trial court found Causer violated his probation by refusing to answer the door during the probation officer's January 31, 2003, visit; Causer violated his probation by possessing T.L.'s child's prescription, concluding that possession violated the July 9, 2002, restraining order; Causer violated the conditions of his probation by possessing alcohol and dangerous weapons; Causer violated the conditions of his probation by testing positive for amphetamine TLC and methamphetamine; and Causer violated the conditions of his probation because he was discharged from a sex offender treatment program.

[¶ 14] The trial court sentenced Causer to thirteen years and fifty-two days' imprisonment, with credit for six years and fifty-two days for time served. The trial court ordered Causer to complete sex offender treatment and ordered Causer to be placed on three years of supervised probation upon his release from prison. Causer appeals.

II

[¶ 15] Causer argues he was not given proper notice of the revocation proceedings in violation of his right to due process. According to Causer, his court-appointed attorney notified him of the revocation proceedings on March 20, 2003, the day of the revocation hearing. For reasons not shown in this record, the hearing was rescheduled for April 11, 2003. Causer claims he was not aware of the State's allegations until the April hearing.

[¶ 16] Rule 32(f)(2)(B), North Dakota Rules of Criminal Procedure, requires the State to provide a probationer with "a prior written notice of the alleged violation" when a probation revocation hearing is conducted. Causer correctly asserts he should have been given notice of the alleged violations, as required under North Dakota rules of procedure. However, Causer failed to preserve this issue for appeal. A review of the record shows Causer did not object to the State's failure to provide notice.

One of the touchstones for an effective appeal on any proper issue is that the issue was appropriately raised at trial so the trial court could intelligently rule on it. This Court will not consider questions that were not presented to the trial court and are raised for the first time on appeal.

City of Fargo v. Roberson, 2001 ND 204, ¶ 5, 636 N.W.2d 926 (citations omitted). When an issue is not preserved for appeal, we may provide limited review of the issue to determine whether obvious error affecting substantial rights has been committed. Rule 52(b), N.D.R.Crim.P. (providing, "[o]bvious errors ... may be noticed although they were not brought to the attention of the court"); see State v. Lemons, 2004 ND 44, ¶ 15, 675 N.W.2d 148

. The defendant must show "(1) error, (2) that is plain, and (3) affects substantial rights." Lemons, at ¶ 15. A substantial right is not affected unless the obvious error was prejudicial to the defendant or affected the outcome of the case. Id. On appeal, we review the entire record to determine the existence of the alleged obvious error and its probable effect in light of all the evidence. Id.

[¶ 17] Causer admitted his attorney notified him of the revocation proceedings. The notice was provided March 20, 2003, the morning of the scheduled hearing. The trial court granted a continuance, rescheduling the hearing for April 11, 2003. The reason for the continuance does not appear in the record. Causer had three weeks to prepare for his hearing after receiving actual notice...