State v. Penn

1

State of Kansas, Appellee, v. Tyler C. Penn, Appellant.

No. 123, 553

Court of Appeals of Kansas

February 18, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Eric Williams, judge.

Randall L. Hodgkinson, of Kansas Appellate Defender Office for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.

Before Cline, P.J., Green, J., and Patrick D. McAnany, S.J.

MEMORANDUM OPINION

Per Curiam:

Tyler C. Penn challenges the sufficiency of the evidence supporting the district court's revocation of his probation and the legality of his underlying prison sentence. We find sufficient evidence supports the district court's decision, and Penn's sentence was legal when ordered. We affirm both the district court's revocation of Penn's probation and his sentence.

Facts

After Penn pleaded guilty to three crimes that occurred in March 2019, he was sentenced in accordance with a plea agreement. The district court granted Penn's motion for dispositional departure and sentenced him to 24 months' probation, with underlying prison and jail sentences.

In November 2019, the district court extended Penn's probation by 24 months and imposed a 60-day jail sanction after Penn admitted to violating his probation by committing a new crime.

In August 2020, the State filed a warrant alleging that Penn had violated the terms of his probation again. This time, the State alleged that Penn had committed the offenses of battery, domestic battery, battery against a law enforcement officer, and possession of a firearm.

At Penn's probation violation hearing, Rocheal Wallace-Kirk Penn's mother-in-law, testified. She claimed that she received a call after midnight from her grandchildren. Her grandson told her to "come get us now." Wallace-Kirk went to Penn's residence and entered the house.

Upon entering the home, Wallace-Kirk encountered one of her granddaughters and picked her up, holding her in her arms as she made her way through the residence. Once she made it to the back of the house, she encountered her daughter, Penn's wife, standing in the doorway of the bedroom. Wallace-Kirk testified that Penn then emerged from the bedroom, visibly inebriated, and punched his wife several times in the face. According to Wallace-Kirk, Penn then punched Wallace-Kirk in the face while she was holding the baby. Wallace-Kirk testified that Penn then tried to get in his car and leave, but she followed him outside and parked her car behind his car so that he could not leave.

Wallace-Kirk stated that her nose was bleeding and very swollen after the incident, and she thought it might be broken. She testified that she received treatment at the hospital for her injuries. She also said that, earlier that day, she had seen Penn in possession of a handgun at the house. She believed he kept this handgun at his business.

Wichita Police Officer Ryan Oliphant, who interviewed Wallace-Kirk at the hospital, also testified. Officer Oliphant said when he encountered Wallace-Kirk at the hospital, she had no visible injuries. He said Wallace-Kirk told him Penn hit her, and she had also seen Penn strike her daughter. He testified she told him that when she first arrived at Penn's house the door was open. She said she saw Penn kick her daughter and entered the home in response. Officer Oliphant also stated while interviewing Wallace-Kirk, they could hear Penn, who was in the emergency room as well, yelling at another officer. Officer Oliphant testified that Wallace-Kirk appeared visibly shaken in response to the sound of Penn yelling. Officer Oliphant said once he left the room where he interviewed Wallace-Kirk, he observed Penn standing up and walking around, yelling and pointing at the officer.

Penn was the last witness to testify. He said that, on the day of the incident, he and his wife had attended a cookout at a friend's house. He claimed Wallace-Kirk had been calling them all day. After they returned home, Wallace-Kirk showed up at his house. According to Penn, Wallace-Kirk often showed up unannounced to their home, inebriated. He said Wallace-Kirk walked into the bedroom, inebriated and holding a handgun, "mad about some money or some stuff with [Penn's] wife." While Wallace-Kirk was arguing with his wife, Penn claimed he grabbed the gun out of her hand and threw it over the bed. Wallace-Kirk then picked up a large glass vase that was sitting nearby and struck him over the head with it. Penn denied hitting Wallace-Kirk or his wife.

Penn testified the blow to his head caused severe bleeding. As he tried to make his way outside, he lost consciousness. He said when he regained consciousness he was in an ambulance on the way to the hospital. Penn claimed that as a result of the blow to his head, he received lacerations to his head, neck, and shoulders. Penn claimed he received staples in his scalp and stiches in his neck and shoulders at the hospital.

Penn admitted to cussing at a police officer while at the hospital but denied balling his fist at the officer or slapping the officer on the arm. Penn said he was angry with the officer because the officer was asking him questions while doctors were stapling his scalp, and because the officer told him that he was not a victim.

When asked on cross-examination, Wallace-Kirk denied hitting Penn at any point on the day of the incident.

Following witness testimony, the State withdrew the allegation of battery against a police officer and asked the district court to find Penn violated his probation based on the three remaining allegations. The State urged the district court to find Wallace-Kirk's testimony credible based on Officer Oliphant's testimony that she appeared scared of the sound of Penn's voice. The State asked the district court to find Penn's testimony unreliable because of what he had to lose if found to have violated his probation. Defense counsel argued Wallace-Kirk's reaction to the sound of Penn's voice did not necessarily mean she was telling the truth on the stand. He then noted the standard of proof necessary to establish a probation violation was "incredibly low" but urged the district court to find that Penn did not violate his probation.

Based on Wallace-Kirk's and Officer Oliphant's testimony, the district court found that Penn committed the offenses of battery, domestic battery, and possession of a firearm, and revoked Penn's probation. The district court found Wallace-Kirk's testimony was credible and backed up by Officer Oliphant's testimony about Penn's demeanor at the hospital and Wallace-Kirk's reaction to Penn's voice. The district court also made a finding that Wallace-Kirk's version of events was more credible than Penn's self-serving version of events. In revoking Penn's probation, the district court found Penn was not amenable to probation, had committed new criminal offenses, and was a danger to the community based on the nature of the violations. The district court imposed the underlying prison and jail sentences.

On appeal, Penn argues the district court erred by finding that he violated the terms of his probation.

Analysis

Penn first challenges the sufficiency of the evidence supporting the district court's finding that he violated his probation. Although the initial decision to impose probation is an act of grace by the district court, once a defendant is placed on probation, he or she acquires a conditional liberty interest which is subject to substantive and procedural due process limits on its revocation. So a probationer may not have his or her probation revoked unless the State shows that the probationer has violated one of the conditions of probation. State v. Hurley, 303 Kan. 575, 581, 363 P.3d 1095 (2016). Yet the State need not establish commission of the violation by proof beyond a reasonable doubt. Rather the State need only establish the violation by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A "preponderance of the evidence" means evidence sufficient to show a fact is more probably true than not true. In re Estate of Moore, 310 Kan. 557, 565, 448 P.3d 425 (2019).

Appellate courts review a district court's factual finding that a probation violation occurred for substantial competent evidence. State v. Inkelaar, 38 Kan.App.2d 312, 315, 164 P.3d 844 (2007). Substantial competent evidence is legal and relevant evidence that a reasonable person might accept as sufficient to support a conclusion. State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).

In addressing challenges to the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether a rational fact-finder could have come to the same conclusion as the fact-finder below. State v. Colson, 312 Kan. 739, 753, 480 P.3d 167 (2021). We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021).

The district court weighed the credibility of the witnesses here and resolved their conflicting stories, finding Wallace-Kirk's testimony was more credible than Penn's self-serving version of events. While Penn acknowledges that we must defer to the district court's credibility findings, he argues the district court relied on the uncorroborated testimony of a single witness (Wallace-Kirk). He says we must review her testimony to determine if it is so unbelievable as to not be able to sustain the district court's findings. In support of this argument, Penn cites State v. Matlock, 233 Kan. 1 4, 660 P.2d 945 (1983), where the Kansas Supreme Court held that the uncorroborated testimony of a prosecutrix...