State v. J.H., Jr.

• Decision Date: 06 July 2007
• Docket Number: No. 96,770.,96,770.
• Citation: 197 P.3d 467,287 Kan. 574
• Parties: STATE of Kansas, Appellee, v. J.H., Jr., Appellant.
• Court: Kansas Court of Appeals

197 P.3d 467

287 Kan. 574

STATE of Kansas, Appellee, v. J.H., Jr., Appellant.

No. 96,770.¹

Court of Appeals of Kansas.

July 6, 2007.

LeRoy C. Rose, of Garden City, for appellant.

Lara Blake Bors, assistant county attorney, John P. Wheeler, county attorney, and Paul Morrison, attorney general for appellee.

Before RULON, C.J, GREENE, J., and KNUDSON, S.J.

KNUDSON, S.J.

J.H. was convicted as an extended jurisdiction juvenile pursuant to K.S.A. 38-16,126. The State subsequently filed a motion to revoke probation alleging J.H. violated the provisions of the juvenile sentence and committed new offenses. After an evidentiary hearing, the trial court revoked J.H.'s probation, ordering that he serve the 48-month adult criminal sentence previously imposed pursuant to 38-16,126(a)(2). J.H. appeals, challenging the sufficiency of the evidence to establish probation violation and the trial court's refusal to consider sentencing alternatives before sending J.H. to prison.

We affirm.

The underlying facts are not in material dispute. J.H. was convicted of aggravated battery in violation of K.S.A. 21-3414(a)(1)(A), a severity level 4 person felony. Under K.S.A. 21-4704, J.H.'s sentence carries a presumptive disposition of imprisonment. At the evidentiary hearing to revoke probation, the State presented evidence that J.H. had violated the provisions of probation and committed new criminal offenses. J.H. did not present any evidence at the hearing. The trial court revoked probation and ordered J.H. to serve the alternative 48-month adult sentence that had been previously imposed.

Revocation of Probation

Our standard of review is to ascertain whether substantial competent evidence was presented at the revocation hearing to support revocation. K.S.A. 38-16,126(b). "Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]" State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).

On appeal, J.H. argues the police officer's testimony was not corroborated and the brass knuckles and other physical evidence were not introduced in evidence. All true, but corroboration and the admission of the instruments of the crime are not necessary to justify revocation of J.H.'s probation. The fact is that there was substantial competent evidence introduced through the testimony of witnesses to establish the violations of probation. Undoubtedly, the State's failure to present additional corroborative evidence might influence the trier of fact but does not present a persuasive issue on appeal. An appellate court does not weigh evidence or normally look to what was not introduced in evidence when considering a sufficiency issue; our duty is to consider the adequacy of the evidence that was presented. Under our standard of review, the trial court's findings are sufficient to support a conclusion J.H. violated probation.

Imposition of Adult Sentence

J.H. contends under K.S.A. 38-16,126 the district court was required to consider alternatives other than commitment. The State argues under 38-16,126 the district court has no discretion other than to order commitment.

Interpretation of a statute is a question of law over which we exercise unlimited review. State v. Bryan, 281 Kan. 157, 130 P.3d 85 (2006).

K.S.A. 38-16,126(b) (now K.S.A.2006 Supp. 38-2364(b)) provides:

"When it appears that a person convicted as an extended jurisdiction juvenile has violated the conditions of the juvenile sentence or is alleged to have committed a new offense, the court, without notice, may revoke the stay and probation and direct that the juvenile offender be taken into immediate custody and deliver to the secretary of corrections pursuant to K.S.A. 21-4621, and amendments thereto. The court shall notify the juvenile offender and such juvenile offender's attorney of record, in writing by personal service, as provided in K.S.A. 60-303, and amendments thereto, or certified mail, return receipt requested, of the reasons alleged to exist for revocation of the stay of execution of the adult sentence. If the juvenile offender challenges the reasons, the court shall hold a hearing on the issue at which the juvenile offender is entitled to be heard and represented by counsel. After the hearing, if the court finds by...