State v. Lang

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NOT DESIGNATED FOR PUBLICATION

No. 118,390

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHAYNE M. LANG,
Appellant.


MEMORANDUM OPINION

Appeal from Osage District Court; PHILLIP M FROMME, judge. Opinion filed October 19, 2018.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2017 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Shayne Michael Lang appeals the district court's decision revoking
his probation and ordering him to serve his underlying prison sentence. We granted
Lang's motion for summary disposition under Kansas Supreme Court Rule 7.041A (2018
Kan. S. Ct. R. 47). The State has filed no response.

On November 30, 2015, Lang pled no contest to one count of failure to register as
an offender. On January 4, 2016, the district court sentenced Lang to 18 months'
imprisonment but granted probation for 24 months to be supervised by community
corrections.

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The State later filed a motion to revoke Lang's probation. Lang's intensive
supervision officer (ISO), Megan Hall, filed an affidavit alleging that Lang violated his
probation by failing to provide verification of employment, by failing to pay court costs
as directed, and by failing to report as directed. The district court held a hearing on
August 7, 2017, and Hall testified to support the allegations in her affidavit. Specifically,
Hall testified that Lang failed to report within 48 hours of his release from his 180-day
prison sanction. Hall testified that she unsuccessfully tried to complete two home visits at
Lang's registered address, which was his grandmother's house. She also testified that she
mailed two letters to the same address directing Lang to report.

Lang testified at the hearing and denied receiving any letters from Hall. He also
testified that he tried to contact Hall by leaving a voice message on her phone. Lang's
grandmother testified and denied receiving any letters from Hall in her daily mail.

After hearing the evidence, the district court found that Lang violated his
probation by failing to provide verification of his employment, by failing to pay court
costs as directed, and by failing to report as directed. The district court revoked Lang's
probation, noting that he had received intermediate sanctions, and ordered him to serve
his underlying prison sentence. Lang timely appealed.

On appeal, Lang claims the district court erred in revoking his probation. Lang
challenges the sufficiency of the evidence to support his probation violation, asserting
that "[a]lthough he did not report directly to his ISO, he repeatedly called her and left
messages. He was, however, not able to reach her." Lang does not challenge the district
court's dispositional order that he serve his underlying prison sentence.

To sustain an order revoking probation, the violation must be established by a
preponderance of the evidence. State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d
844 (2007). A preponderance of the evidence is established when the evidence
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demonstrates a fact is more probably true than not true. 38 Kan. App. 2d at 315.
Generally, appellate review of a factual determination is governed by the substantial
evidence standard. 38 Kan. App. 2d at 315. 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. 38 Kan. App. 2d at 315.

Here, the district court's finding that Lang failed to report as directed is supported
by substantial competent evidence in the form of Hall's testimony. Although there was
some conflicting testimony on whether Hall mailed letters to Lang's registered address,
the district court found Hall's testimony to be credible. "In making a sufficiency
determination, the appellate court does not reweigh evidence, resolve evidentiary
conflicts, or make determinations regarding witness credibility." State v. Dunn, 304 Kan.
773, 822, 375 P.3d 332 (2016). The district court also found that Lang violated his
probation by failing to provide verification of employment and by failing to pay court
costs as directed. Lang makes no attempt to challenge these findings on appeal.

"Once there has been evidence of a violation of the conditions on which probation
was granted, the decision to revoke probation rests in the sound discretion of the district
court." State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Here, the district
court's findings that Lang violated the conditions of his probation were supported by
substantial competent evidence. The district court did not err in revoking Lang's
probation and ordering him to serve his underlying prison sentence.

Affirmed.