STATE v. MCMICHAEL
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) PATRICK WILLIAM MCMICHAEL, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 06/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 11-0468 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR1997-003340 The Honorable Jeffrey A. Rueter, Judge Pro Tem AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section And Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Louise Stark, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ O R O Z C O, Judge ¶1 Appellant Patrick William McMichael (Defendant) appeals the trial court s finding that he violated his probation. The sole issue on appeal is whether the court s finding that Defendant willfully violated his probation was supported by a preponderance of the evidence. Finding no error, we affirm. FACTUAL and PROCEDURAL HISTORY ¶2 In June 1997, Defendant pleaded guilty to attempted sexual abuse and attempted molestation of a child, both class 3 felonies. Defendant was sentenced to lifetime probation on both counts. ¶3 sex As part of his probation, Defendant agreed to abide by offender restrictions. Two requirements offender restrictions are at issue here. under the sex Defendant was to not initiate, establish or maintain contact with any male or female child under the age of 18, or attempt to do so, without the prior written approval of the probation officer. Also Defendant was required to [a]ttend, and actively participate in sex offender treatment and remain in such treatment at the direction of [his] probation required officer. to report (Emphasis to a added.) probation Defendant officer and give was also truthful answers to all inquiries posed by the officer. ¶4 Beginning in October 2009, Defendant was assigned to Probation Officer Jones. Jones, Defendant met monthly basis. At In addition to monthly meetings with with the Surveillance probation Officer violation Kenner hearing, on a Jones testified that she gave Defendant the terms of his probation 2 during their initial meeting in October 2009. At that time, Defendant was instructed to read over and sign the terms to ensure he probation. understood the restrictions and requirements for When Defendant received the terms in October 2009, it was at least the second time that he read and signed the terms, including his initial receipt of them in 1997. ¶5 Jones testified that Defendant admitted to increased contact with minors. She specified that Defendant told her this often took place on buses where Defendant had conversations and physical contact happened on indicating minors. with numerous that minors. She occasions Defendant also over admitted to a testified period monthly that of this months, contact with Specifically, Jones testified that Defendant admitted to contact occurring in December 2010, twice in March of 2011, in April 2011, and in May 2011. Defendant also admitted to Kenner that there were other contacts that were not reported and that he was having dreams and fantasies of having sex with minors. ¶6 opinion, Defendant s admissions concerned Jones because, in her while some contact with minors is normal and unavoidable, the type and frequency of Defendant s contacts and his physical proximity to the minors during those contacts could have been avoided. Jones opined that Defendant s behaviors were becoming very high risk to the community. 3 In March 2011, Jones warned Defendant not to have verbal or physical contact minors and to avoid excessive contact with minors while riding buses. ¶7 Jones and Kenner also testified that in April 2011, Defendant filled out a form in which he admitted unnecessary contact with Defendant. minors. The form was written and signed by Therein, Defendant stated: I get on buses that have a lot of minors, when I knew that I should either wait for another bus or ride my bike, putting the want and need to get where I m going over probation rules. ¶8 During Defendant was testified this same discharged that period from Defendant of sex was time, offender discharged in April treatment. for 2011, Jones [h]igh risk behaviors, and the Defendant failed to redirect those behaviors by seeking assistance from his support system, or addressing these issues with the treatment provider or with the help that he was offered. ¶9 At the hearing, Defendant argued that he did not get on buses with the purpose of having contact with minors and that he attended all discharged. treatment However, sessions he did until not he dispute was that involuntarily on multiple occasions he got on buses knowing that minors were on board and subsequently had contact with them. he did not report all contacts. 4 Defendant also admitted that ¶10 The trial court found the State proved that Defendant willfully violated the terms of his probation. The court reinstated Defendant s lifetime probation and sentenced him to an additional three-months probation. Defendant incarceration timely appealed. as a condition We have of jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010), and 13-4033.A.1 (2010). DISCUSSION ¶11 For the trial court to find a probation violation, the State must prove by a preponderance of the evidence that Defendant knew of the probation terms, was given the terms in writing and willfully violated the terms. Ariz. R. Crim P.27.8.b; State v. Alves, 174 Ariz. 504, 506, 851 P.2d 129, 131 (App. 1992). probation We terms will have uphold been a trial violated court s unless finding the finding that is arbitrary or unsupported by any theory of evidence, i.e., unless the court abuses its discretion. State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113, 114 (App. 1999). the trial court is in the best In addition, because position to determine the credibility of witnesses, we will not reweigh the evidence and we defer to the court s factual findings if they are supported by any theory of evidence. Id. 5 ¶12 In this case, the State alleged Defendant violated the terms of his probation by failing to: (1) avoid contact with minors; and (2) actively participate in sex offender treatment. The trial court found the State proved both allegations by a preponderance of evidence. Contact with Minors ¶13 Under the terms of his probation, Defendant was forbidden from initiating, establishing, or maintaining contact with minors. Defendant was At the hearing, the State presented evidence that aware of the terms of his nevertheless having contact with minors. probation but was Specifically, during the March 8, 2011 meeting, Jones warned Defendant not to have verbal or physical contact with minors and to avoid excessive contact with minors while riding buses. Defendant ignored that instruction, however, and continued to have verbal and physical contact with minors while riding buses, admitting that he got on buses with minors knowing that to do so was against probation rules. Defendant also admitted to having verbal and physical contact with minors during an April 12, 2011 meeting with Jones, just one month after she reviewed with Defendant the probation restriction that he avoid contact with minors. ¶14 probation The court because found his Defendant contact with violated minors was this term beyond of [the] incidental contact that s necessary just to basically function in 6 society. The court also found that the contact was avoidable but Defendant placed himself in situations where he [was] around minors excessively. ¶15 court Based on our review of the record, we cannot say the abused probation its terms. discretion. Defendant His officer probation was aware warned him of to his avoid contact with minors while riding buses, yet he disregarded that warning and continued to have contact with minors. Accordingly, there was sufficient evidence for the court to determine that Defendant knowingly violated this probation term. Failure to Participate in Sex Offender Treatment ¶16 Defendant admits that he was discharged from the sex offender treatment program. He contends, however, that merely failing to complete the treatment is not a willful act that can lead to a probation violation. Defendant argues that [s]ince the decision for [Defendant] to be discharged was not his own, he cannot be found in violation. ¶17 failing We have previously upheld a probation violation for to complete a third-party treatment. Elmore, 174 Ariz. 480, 851 P.2d 105 (App. 1992). See State v. In Elmore, this court recognized that failing to complete a required treatment or rehabilitation violation, program even where was sufficient the discharged from the program. evidence probationer was of probation involuntarily Id. at 483, 851 P.2d at 108. 7 We reasoned that when a defendant is adequately notified of what is required to complete the treatment program, a subsequent failure to follow the requirements of the program constitutes a probation violation. ¶18 Id. at 483-84, 851 P.2d at 108-109. In this case, while the court found that Defendant did attend and participate in sex offender treatment, it also found that Defendant was discharged from the program due to his high risk behaviors and his inability to utilize the tools that he had been given in his treatment to properly . . . curtail the high risk behavior. The court thus concluded that Defendant failed to actively participate in treatment, as required by the terms of his probation. ¶19 Accordingly, we find the reasoning and holding in Elmore to be applicable to this case. required to attend and actively Defendant knew he was participate in treatment. However, his engagement in high risk behavior and failure to apply the tools he learned in treatment led to his discharge from the treatment program. He thus failed to actively participate and remain in such treatment at the direction of [his] probation officer. Therefore, trial court did Defendant violated this term of probation. CONCLUSION 8 not err in finding ¶20 court We find there was sufficient evidence for the trial to determine probation. that Defendant violated the terms of his We therefore affirm the trial court s ruling. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ JON W. THOMPSON, Judge /S/ ____________________________________ DIANE M. JOHNSEN, Judge 9
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