State v. Balfour

429 P.3d 752

STATE of Utah, Appellee,

v.Ozwald BALFOUR, Appellant.

No. 20160821-CA

Court of Appeals of Utah.

Filed June 21, 2018

Rehearing Denied November 15, 2018

Ronald Fujino, Layton, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.

Opinion

Harris, Judge:

¶1 After a jury convicted Defendant Ozwald Balfour of forcibly sodomizing a seventeen-year-old girl (Victim), the district court afforded him the privilege of probation: the court imposed a suspended prison sentence of five years to life, ordered Defendant to serve one year in jail, and thereafter allowed him the opportunity to spend three years on probation, during which time he would be required to abide by various specific terms and conditions. Over a year later, however, the district court determined that Defendant had violated the terms and conditions of his probation, and consequently revoked his probation and imposed the suspended prison sentence. Defendant appeals the revocation of his probation. We affirm.

BACKGROUND

¶2 Following his conviction,¹ the district court sentenced Defendant to a prison term of five years to life, but suspended the sentence on the condition that Defendant serve three years of probation. The probation conditions required Defendant to serve one year in jail, and to abide by various other usual and customary terms and conditions, including reporting to and maintaining contact with Adult Probation and Parole (AP&P), maintaining a stable residence, completing a treatment evaluation and any relevant follow-through, and refraining from further violating any laws. In addition to having to satisfy those general terms, Defendant was also required to abide by specific "sex offender Group A conditions" as part of his probation. Group A conditions apply to offenders who have committed a sex offense against a minor. Among other things, these conditions require an offender to successfully complete sex offender therapy and to refrain from having contact with minors without advance permission from AP&P.

¶3 While Defendant was serving his jail term, his probation officer (Officer) met with him and asked him to sign a probation agreement stipulating to the terms of his probation, including the Group A conditions. Defendant refused to sign, arguing that his seventeen-year-old "alleged victim" was not a minor and thus that the Group A conditions should not be imposed. Defendant also indicated that he did not see any reason why he should have to get permission from AP&P to live at his house with his thirteen-year-old son. Because Defendant refused to sign the probation agreement, Officer filed a "Progress/Violation" (P/V) report with the court recommending that Defendant’s probation be revoked. By this time, the judge who had sentenced Defendant had retired, and the case had been assigned to another judge. After an April 27, 2015 hearing, the new judge entered a minute entry ordering "AP&P and defendant to meet at release date to sign contract." Defendant eventually signed the probation agreement.

¶4 Several months later, after Defendant’s release from jail, Officer filed a second P/V report accompanied by an affidavit alleging that Defendant was violating his probation in several particulars. The affidavit contained five specific allegations. First, Officer alleged that Defendant failed to establish a residence of record or changed his residence or left the state of Utah without permission. Second, Officer alleged that Defendant failed to comply with the Utah Sex Offender Registration and/or DNA requirements. Third, Officer alleged that Defendant failed to report a July 2015 incident in which he was "arrested, cited or questioned by a peace officer." Fourth, Officer alleged that Defendant "had [unauthorized] contact with children under the age of 18." And fifth, Officer alleged that Defendant "entered a place where children congregate." At this point, the district court scheduled a hearing to contemplate revoking or modifying Defendant’s probation, but for various procedural reasons the hearing was delayed.

¶5 Before the hearing, Officer filed an additional affidavit and P/V report to add a sixth allegation, alleging that Defendant had not paid the supervision fees as required for his probation. Officer also stated in the P/V report that Defendant "reported he recently had a birthday party at his residence and disclosed [that] his minor son was in attendance." In the report, Officer opined that it "appear[ed] as though [Defendant] [felt] the Sex Offender Group A conditions of his probation [were] not applicable to him" and that Defendant’s "attitude and demeanor" did not appear to be "amenable to probation."

¶6 Officer later learned that, in April 2014, police had arrested Defendant in an unrelated incident and charged him with theft and impersonating a public official. Upon learning of Defendant’s arrest in this earlier incident, Officer submitted another affidavit, alleging that he was unaware of whether Defendant ever reported this incident to AP&P.

¶7 Shortly after this, Officer filed two more P/V reports asserting that Defendant had not added his employer information to the Utah State Sex Offender Registry, had still not paid his supervision fees, and had "absconded from the supervision of [AP&P]" after being informed he would be arrested for his repeated probation violations. At a hearing concerning these affidavits, the district court, at the State’s request, appointed a new probation officer to work on Defendant’s case. The court then continued the hearing and emphasized that "Defendant must get into compliance with AP&P." A few weeks later, the court continued the hearing a second time in order to give Defendant a third chance to comply, and informed Defendant that he had "to become compliant by the next hearing."

¶8 Before the final hearing, Defendant’s new probation officer (Second Officer) filed additional P/V reports. In one of these reports, Second Officer emphasized Defendant’s poor attitude and alleged that Defendant "continued to put in minimal or partial effort" in complying with his probation conditions, especially the Group A conditions. Second Officer also noted that Defendant insisted on referring to Victim as his "alleged victim," and noted that Defendant also continued to maintain that Victim was not a minor at the time of his offense. Second Officer finally noted that Defendant was "living with his minor son" despite failing to complete the steps required to live with a minor child under the Group A probation conditions, and opined that Defendant’s failure "to accept his conviction and crime or acknowledge a victim exists" increased the risk Defendant posed to public safety. In a final P/V report, Second Officer further explained that Defendant refused to comply with his sex offender treatment, had "shown defiance and push back to his [t]herapist," and had ultimately been discharged from his treatment program without completing it.

¶9 At the final hearing, the district court considered all of the P/V reports and affidavits concerning Defendant, and heard testimony and argument. At the conclusion of the hearing, the court found that Defendant had violated his probation in four ways: (1) by having contact with his minor son and grandchildren without AP&P permission; (2) by failing to comply with the sex offender registration requirements; (3) by failing to report to AP&P and (4) by failing to successfully complete sex offender treatment. As a consequence of these violations, the district court revoked Defendant’s probation and imposed the original prison sentence.

ISSUES AND STANDARDS OF REVIEW

¶10 Defendant raises three issues on appeal. First, he contends that the district court plainly erred when it relied on information contained in multiple affidavits, instead of relying on only a single affidavit.² "To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the district court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Crespo , 2017 UT App 219, ¶ 23, 409 P.3d 99 (quotation simplified).

¶11 Second, Defendant contends that the district court did not have subject matter jurisdiction over the probation hearing because the judge who initially sentenced Defendant retired. Whether a district court had subject matter jurisdiction is a question of law, which we review for correctness. State v. Young , 2014 UT 34, ¶ 5, 337 P.3d 227.

¶12 Third, Defendant contends both that the district court plainly erred in parsing the evidence presented in the P/V reports and that the evidence presented was insufficient to establish two of the four probation violations Defendant was accused of committing. Defendant concedes that these issues are unpreserved, but asks us to review them for plain error. See State v. Johnson , 2017 UT 76, ¶¶ 18–19, 416 P.3d 443 (explaining that appellate courts will review unpreserved issues only for plain error or ineffective assistance of counsel, unless exceptional circumstances are present).

ANALYSIS

¶13 Defendant first contends that the district court plainly erred by considering more than one of the affidavits attached to the P/V reports. In support, Defendant cites Utah Code section 77-18-1(12)(b)(i), which states that "[u]pon the filing of an affidavit alleging with particularity facts asserted to constitute violation of the conditions of probation, the court that authorized probation shall determine if the affidavit establishes probable cause to believe that revocation, modification, or extension of probation is justified." Id. § 77-18-1(12)(b)(i) (LexisNexis 2017) (emphasis added).³ Defendant argues that the statute’s use of the singular term "affidavit" indicates that a district court is barred...