State v. Vongnavanh

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NOT DESIGNATED FOR PUBLICATION

No. 113,689

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

VANKHAM N. VONGNAVANH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed July 1, 2016.
Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., HILL and BRUNS, JJ.

Per Curiam: Vankham N. Vongnavanh appeals the district court's decision
revoking his probation. As a result of the revocation, Vongnavanh was ordered to serve
his underlying prison sentence. On appeal, he argues that the State failed to prove by a
preponderance of the evidence that he violated the terms of his probation. Although
Vongnavanh did not admit to violating the terms of his probation, we find that there is
substantial competent evidence in the record on appeal to support a finding that the State
proved the violations by a preponderance of the evidence. Thus, we affirm the district
court's decision.
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FACTS

On May 2, 2012, Vongnavanh pled guilty to one count of aggravated battery and
two counts of aggravated assault. On July 11, 2012, the district court granted his motion
for downward dispositional departure and sentenced him to 24 months of probation with
an underlying 16-month prison sentence. Vongnavanh's conditions of probation included
that he obey the law and not possess any firearms or ammunition. On May 7, 2014, the
State filed a warrant stating that Vongnavanh had violated the terms of his probation and
a revocation hearing was held on August 28, 2014. Although the district court determined
that Vongnavanh violated the terms of his probation, it reinstated and extended his
probation to July 11, 2015.

On October 1, 2014, the State filed another warrant alleging the following
probation violations:

"1. On September 30, 2014, the defendant committed the offense of Aggravated
Assault, as alleged in Wichita Police Department Incident Report Number 14C065587.

"2. On September 30, 2014, the defendant pointed a gun at his sister, as alleged
in Wichita Police Department Incident Report Number 14C065587.

"3. On September 30, 2014, the defendant fired two rounds of ammunition and
later gave the gun to another party to hide, as alleged in Wichita Police Department
Incident Report Number 14C065587.

"4. The defendant has made no payments to the court for court costs.

"5. The defendant has made no payment of AISP fees since April 30, 2014."

On October 16, 2014, the district court held an evidentiary hearing to determine
whether Vongnavanh violated the conditions of his probation. The hearing also acted as
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the preliminary hearing in the criminal case that was also filed against Vongnavanh for
the conduct alleged in the probation violation warrant. Before receiving the evidence, the
district court noted that the State was amending the first allegation in the warrant to
allege that Vongnavanh committed the offense of criminal possession of a firearm instead
of aggravated assault. Additionally, Vongnavanh's attorney stated that he was waiving an
evidentiary hearing on allegations four and five from the warrant and would admit those
allegations. The district court then received testimony from two witnesses.

Lindsey Healan testified that she and her boyfriend—along with two other
people—were living in a house with Vongnavanh on September 30, 2014. Healan
testified that on that day, while she was sitting in the living room, she heard Vongnavanh
and his sister arguing in one of the bedrooms. Healan also testified that she heard
Vongnavanh's sister say, "'[D]on't point that gun at me.'" She then saw Vongnavanh's
sister leave the house, followed shortly by Vongnavanh. Healan testified that
Vongnavanh had a handgun with him when he left the house.

Further, Healan testified that about 5 minutes later, Vongnavanh came back into
the house and shot his gun twice towards the wall, shattering a glass shelf. Healan
indicated that Vongnavanh did not speak to her during these events. Healan testified that
after Vongnavanh shot the wall, he went into the bathroom, and when law enforcement
arrived about 5 minutes later, he ran out the back door of the house.

The next witness called was Wichita Police Officer Joshua Lewis who testified
that he was dispatched to the scene of a disturbance at Vongnavanh's house on September
30, 2014. As he walked toward the house, another officer told him that someone had ran
out the back of the house, so he went through the back yard, jumped a few fences, and
located Vongnavanh. After speaking with another person who lived at the house, Officer
Lewis located a handgun hidden in the back yard of the house.

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After the State presented its evidence, it asked the district court to also amend the
third allegation in the warrant to strike the language stating that he gave the gun to
another party to hide because the State did not present any evidence of that. Vongnavanh
did not present any evidence. The district court determined that it was more probably true
than not that Vongnavanh violated the conditions of his probation as alleged in the first
three allegations in the warrant as amended. The district court stated that it was not going
to rely on the fourth and fifth allegations in the warrant because Vongnavanh did not
personally admit those violations. The district court then deferred a decision on the
disposition of his probation until after his criminal case was resolved.

On January 27, 2015, the district court held a hearing on the disposition of
Vongnavanh's probation. At that time, the district court revoked his probation and
ordered him to serve his original sentence. However, in a journal entry entered by the
district court on February 5, 2015, it was stated that "Defendant admits to allegation
number 2 and amended allegation numbers 1 and 3 of the warrant dated 10/01/14. The
court does not make findings on allegation number 4 or 5." Thereafter, Vongnavanh
timely filed a notice of appeal.

ANALYSIS

On appeal, Vongnavanh contends that the district court erred in finding that he
violated the terms of his probation. To revoke probation, the State must establish that the
probationer violated the terms of his or her probation by a preponderance of the evidence.
State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). The State meets its burden
when the evidence shows that "a fact is more probably true than not true." State v.
Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183
(2008).

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Our review of a factual determination is generally governed by the substantial
competent evidence standard. 38 Kan. App. 2d at 315. Substantial evidence is legal and
relevant evidence that a reasonable person could accept as being adequate to support a
conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Under this standard,
we do not "reweigh the evidence, substitute its evaluation of the evidence for that of the
trial court, or pass upon the credibility of the witnesses." State v. Hartpence, 30 Kan.
App. 2d 486, 493, 42 P.3d 1197 (2002).

Once there is evidence of a probation violation, the decision to revoke probation is
within the sound discretion of the district court. Gumfory, 281 Kan. at 1170. An abuse of
discretion occurs when a judicial action is arbitrary, fanciful, or unreasonable; is based on
an error of law; or is based on an error of fact. State v. Turner, 300 Kan. 662, 675, 333
P.3d 155 (2014). Here, Vongnavanh bears the burden to establish an abuse of discretion.
See State v. Brown, 300 Kan. 565, 571, 331 P.3d 797 (2014).

Vongnavanh's sole argument on appeal is that that the State failed to prove by a
preponderance of the evidence the three violations the district court used to revoke his
probation. In response, the State asserts that Vongnavanh admitted to the violations. That
assertion, however, does not appear to be supported by the record. Nevertheless, as the
State points out, there was sufficient evidence presented at the probation revocation
hearing to prove by a preponderance of the evidence that Vongnavanh violated the terms
of his probation. Specifically, we find that the testimony of Healan—if believed—was
sufficient to meet the State's burden proof. The State also points out that Vongnavanh
was ultimately convicted of criminal possession of a firearm, which was the conduct that
formed the basis for the first allegation in the warrant.

A review of the record reveals Healan testified that while Vongnavanh was
arguing with his sister, she heard his sister say, "'[D]on't point that gun at me.'" Healan
also testified that she saw Vongnavanh carry the gun with him when he left the house.
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Furthermore, she testified that when Vongnavanh returned to the house that he fired two
shots from the gun. Moreover, she testified that when the police arrived, Vongnavanh
went out the back of the house. In addition, Officer Lewis testified that he found
Vongnavagh running from the house and that he subsequently found a gun in the back
yard. Accordingly, we find that substantial competent evidence was presented to support
a finding that it was more probably true than not that Vongnavanh violated the terms of
his probation.

Further, we find nothing in the record to suggest that the district court's decision
was arbitrary, fanciful, or unreasonable. As such, there was no abuse of discretion in the
district court's revocation of Vongnavanh's probation based on the evidence presented at
the probation hearing. We, therefore, affirm the district court's decision revoking
Vongnavanh's probation.

Affirmed.