State v. Kreiter

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NOT DESIGNATED FOR PUBLICATION

No. 112,607

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRANDON JAY KREITER,
Appellant.


MEMORANDUM OPINION

Appeal from Cloud District Court; KIM W. CUDNEY, judge. Opinion filed November 6, 2015.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.

Per Curiam: Brandon Jay Kreiter solicited an underage girl for sexual activity
through text messages. He pled no contest to indecent solicitation of a child and received
probation. As his probation period wore on, he repeatedly violated the terms of that
probation by, among other things, consuming alcohol, breaking curfew, and using a smart
phone to access the internet. After a hearing, the district court determined that he violated
his probation and required he serve his underlying prison sentence. Kreiter appeals that
ruling. We affirm.


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FACTUAL AND PROCEDURAL BACKGROUND

After Kreiter repeatedly text messaged a 15-year-old girl in an attempt to engage
her in sexual activity, the State charged him with a single count of indecent solicitation of
a child. Kreiter eventually pled no contest to this charge, and the district court convicted
him. Kreiter received a sentence of 24 months' probation with an underlying prison
sentence of 18 months.

Kreiter agreed to numerous conditions of probation, including: not living with
minors, not contacting minors, completing a state-approved sex offender program, not
viewing or posting pornographic materials, not consuming alcohol, submitting to random
drug and alcohol tests, gaining and maintaining employment, and obeying curfew. Kreiter
also agreed to participate in a sex offender management program, which restricted his
access to computers and the internet. Specifically, the program forbade him from using
devices that connect to the internet, as well as any chat rooms, instant messaging
accounts, or unapproved internet services or accounts. The program also banned Kreiter
from using any "software application that wipes any disc space or drives."

Several months into his probation term, a community corrections officer
authorized Kreiter's arrest for his failure to attend an appointment with his supervising
officer. He served 2 days in jail for this violation. A few months later, Kreiter again
violated his probation, this time by breaking curfew and by consuming alcohol at a party.
Kreiter again served 2 days in jail for these violations.

Shortly thereafter, the State moved to revoke Kreiter's probation. In addition to the
foregoing violations, the State's motion alleged that Kreiter possessed an unauthorized
smart phone, accessed the internet, maintained an online account at Plenty of Fish, and
engaged in text messaging. The phone also contained hidden files and a sexually explicit
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photograph of a man's clothed crotch. The motion also alleged that Kreiter failed to
maintain regular employment.

At a hearing on the motion, Community Corrections Officer Christine Witt
outlined all these violations and noted that Kreiter had lost his most recent job since the
filing of the motion to revoke. Witt also provided that she had received phone calls from
"concerned parents" claiming that Kreiter used Facebook under an alias and attempted to
solicit sex through that account. However, Witt never uncovered a Facebook account but
did find one on an online dating service. Witt testified that when Kreiter turned over his
phone, she uncovered numerous hidden files and discovered several applications that
connected to the internet and used internet data. Additionally, Witt testified that when
Kreiter submitted to a polygraph test, "there was a significant reaction" to questions
concerning illegal sexual activity and the consumption of drugs and alcohol.

Overall, Witt believed that Kreiter "ha[d] not taken his probation seriously,"
noting that he had been discharged from the only sex offender treatment program
available outside the prison system. Witt acknowledged that Kreiter struggled with
alcohol but never received treatment and that other sex offender treatment programs
existed. Witt further admitted that she had no way of knowing what Kreiter searched for
or viewed while using the internet on his phone.

While the State requested that the district court revoke Kreiter's probation, Kreiter
proposed that he remain on probation but complete a brief prison sanction and be subject
to stricter conditions, including the requirement that he obtain alternate sex offender
treatment and be banned from possessing any sort of cell phone. Ultimately, the district
court rejected Kreiter's proposal. The district court determined that Kreiter violated his
probation in a number of ways, including by using the internet, an "activity that was
similar to what caused [his] conviction in this case." Because of concern that Kreiter's
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online activity "was somehow sexual," the district court revoked Kreiter's probation and
ordered him to serve his underlying sentence.

Kreiter timely appealed.

ANALYSIS

Did the district court abuse its discretion revoking Kreiter's probation?

Unless required by law, probation is a privilege and not a matter of right. State v.
Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once there is evidence of a probation
violation, revocation of that probation is in the sound discretion of the district court. State
v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). An abuse of discretion only occurs when a
judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or based
on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).

On appeal, Kreiter raises no objection to the district court's determination that he
violated his probation. He also points to no errors of law or fact that might justify
reversing the district court's decision. Instead, he argues only that the district court acted
unreasonably by revoking his probation due to his young age, his struggles with alcohol
abuse, and the availability of other sex offender treatment programs.

Kreiter fails to recognize that the district court focused not on the alcohol
consumption or his discharge from sex offender treatment but on the internet-based
nature of his violations. Kreiter's conviction for indecent solicitation of a child stemmed
from inappropriate text messages he exchanged with a 15-year-old girl. These messages
included requests for pictures "in various states of undress." Due to the nature of his
offense, Kreiter agreed to participate in a sex offender management program that limited
his access to the internet and instant messaging services. When Witt searched his smart
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phone, she discovered a picture of a clothed, male crotch, an online dating account in
Kreiter's name, and a number of text messages, all of which violated the sex offender
management program and Kreiter's probation. The severity of these activities, especially
in light of Kreiter's conviction, overrides the potentially mitigating effects he now
emphasizes on appeal.

Based on the record as a whole and Kreiter's numerous probation violations, it
cannot fairly be said that the district court acted fancifully, arbitrarily, or unreasonably by
revoking Kreiter's probation.

Affirmed.