State v. Birch

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NOT DESIGNATED FOR PUBLICATION

Nos. 117,500
117,501

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BERNAISHA C. BIRCH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed October 26,
2018. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and BURGESS, S.J.

PER CURIAM: The district court revoked Bernaisha C. Birch's probation and
imposed the underlying sentences in case Nos. 11CR2781 and 12CR747 upon finding by
a preponderance of the evidence that she committed a theft while on probation. Birch
appeals.



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FACTUAL AND PROCEDURAL BACKGROUND

In case No. 11CR2781, Birch pled guilty to aggravated battery, aggravated
burglary, and theft. In return for her guilty plea, the State agreed to recommend the high
gridbox numbers for the aggravated battery and aggravated burglary, that the sentences
run consecutively, and a dispositional departure for probation. The district court
sentenced Birch to 48 months' incarceration for the aggravated battery and 34 months'
incarceration for the aggravated burglary, with the sentences to run consecutively. The
district court sentenced Birch to 12 months in jail for the theft, with that sentence to run
concurrent with the other counts. The district court granted the dispositional departure,
sentencing Birch to 36 months of probation. The district court imposed modified gang
conditions of probation because when Birch committed the offense, she was not a
documented gang member.

After one month on probation, the district court issued a warrant for violating
probation conditions. Birch's intensive supervision officer (ISO) alleged she failed to
adhere to a no contact order with her codefendant and associated with documented gang
members. Two months later, the district court issued a second warrant alleging that Birch
failed to adhere to her court-ordered curfew and committed a new offense of aggravated
battery. The district court revoked Birch's probation and reinstated it with new conditions
that she successfully complete the community corrections residential program and
designated the case as zero tolerance for violence, weapons, nonreporting to ISO, and
violations of the gang conditions. The district court also imposed standard gang
conditions because of Birch's becoming a documented gang member. The district court
extended Birch's probation for 36 months.

In December 2012, Birch pled guilty to aggravated battery in case No. 12CR747.
In return, the State agreed to recommend the high gridbox number but requested the
district court to grant a dispositional departure with the condition that Birch successfully
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complete the community corrections residential program as a condition of her probation.
The State also recommended that the case run consecutive to case No. 11CR2781. The
district court sentenced Birch to 31 months' incarceration but granted a dispositional
departure for 24 months' probation.

In May 2014, Birch served a three-day jail sanction for testing positive for alcohol.
Four months later, the district court issued an order to appear for allegations Birch was
driving with a suspended license, did not have proof of insurance, and did not properly
display the license plate on the vehicle. At the time of those offenses, Birch also violated
her curfew, a gang condition. Birch had also lost her job for nonattendance and failed to
make her monthly court payments. For the violations, the district court extended Birch's
probation for 12 additional months from November 24, 2015, and ordered her to return to
and successfully complete the residential program.

In September 2016, the district court issued a warrant for Birch based on
allegations that she committed theft and failed to make regular monthly court payments.
The next month, the district court issued an order to appear based on Birch's failure to
report contact with law enforcement after an officer stopped her and issued a notice to
appear for theft, case No. 16CR2614. Less than a month later, the district court issued
another order to appear because Birch tested positive for alcohol and admitted to
consuming beer. The district court issued another warrant the following week after Birch
allegedly removed her electronic monitoring bracelet and her whereabouts were
unknown. The district court issued another warrant two weeks later after the ISO verified
Birch was in the Murray County, Oklahoma jail and did not have permission to leave the
state of Kansas.

Because the State argued for revocation of Birch's probation based on her
commission of a new crime while on probation, the district court that heard the
preliminary hearing for case No. 16CR2614 made findings for both probable cause to
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bind the theft case over and preponderance of the evidence for her probation violation. At
the preliminary hearing, Dewayne Ice, the loss prevention specialist for Dillon's, testified
that while he walked through the store, he observed Birch and her sister, Bernarshea
Birch, "looking around acting suspicious" in the shampoo aisle. Ice explained they were
looking around for other people rather than focused on the items on the shelves. Ice
remained in the aisle and watched Bernarshea conceal shampoo in her purse while Birch
watched. As Birch and Bernarshea left, Ice confronted them in the lobby, displayed his
badge, and requested they return to the store to discuss the unpaid merchandise. Both
women refused and shoved Ice as they ran out the doors. Derby Police Officer Edward
Mora stopped their vehicle and transported the sisters back to Dillon's. Ice informed the
sisters they were no longer allowed to shop at Dillon's, Kwik Shop, or any other Dillon's
establishments and Officer Mora released the sisters with a notice to appear in court.

The district court found probable cause existed to believe Birch committed theft
and bound the case over for trial. The district court articulated the different standards
between a probable cause finding for preliminary hearing and the preponderance of the
evidence finding for a probation violation. The district court then found the State showed
Birch violated her probation in that she was with Bernarshea when she concealed the
items and left the store without paying. The district court determined Birch's presence
was not coincidental as she looked around in a suspicious manner before Bernarshea
concealed the items in her purse, both women pushed past Ice to leave, and Birch did not
try to discuss or explain her situation to Ice as they left the store. The district court found
that by a preponderance of the evidence Birch violated her probation by acting as a
lookout, not stopping, leaving the store, and facilitating Bernarshea's flight. The district
court determined that, at the least, Birch aided and abetted Bernarshea in the theft.

In February 2017, the district court revoked Birch's probation upon adopting the
preliminary hearing findings that she committed a new crime by a preponderance of the
evidence. The State withdrew all other pending allegations of condition violations and
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did not pursue allegations of battery against Ice. In making its revocation decision, the
district court considered only the theft allegations as the basis for revocation. The district
court noted that Birch had completed the residential program twice, had her probation
revoked and reinstated under the zero tolerance statute, had her probation extended,
served a quick-dip sanction, and had been placed on a GPS monitor. The district court
considered Birch's new felony theft charge, misdemeanor battery charge, actions while in
Oklahoma, noncompliance on probation, severity level of her criminal history, and the
recommendation of the ISO that the court revoke Birch's probation for unwillingness to
complete probation. The district court revoked Birch's probation in case No. 11CR2781,
ordering her to serve a modified sentence of 48 months' incarceration. In case No.
12CR747, the district court revoked Birch's probation, imposing the underlying 31-month
sentence.

Birch appealed the revocation determination.

DID THE DISTRICT COURT ERR BY REVOKING BIRCH'S
PROBATION UPON A FINDING THAT SHE COMMITTED A NEW CRIME?

Birch asserts that the State did not show by a preponderance of the evidence that
she committed theft or aided and abetted in theft while on probation. Birch does not
contest the discretion of the district court in revoking her probation, but she challenges
the sufficiency of the evidence. Birch asks this court to reverse the imposition of her
sentence and remand to the district court for proper sanctions under K.S.A. 2017 Supp.
22-3716(c). Contrariwise, the State contends Birch failed to provide a sufficient record by
failing to provide the State's exhibits in the record of appeal. The State also claims that if
this court determines Birch provided a sufficient record, it provided sufficient evidence at
the preliminary hearing to show that Birch acted as a lookout as her sister stole items
from Dillon's.

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Standard of Review

Revocation determinations typically involve a retrospective factual question of
whether a probationer violated a condition of probation and a discretionary determination
of whether the violation warrants revocation. State v. Skolaut, 286 Kan. 219, 227, 182
P.3d 1231 (2008) (quoting Black v. Romano, 471 U.S. 606, 611, 105 S. Ct. 2254, 85 L.
Ed. 2d 636 [1985]). Revocation determinations rest within the sound discretion of the
district court. State v. McFeeters, 52 Kan. App. 2d 45, 47, 362 P.3d 603 (2015). "A
district court has no 'discretion in a probation revocation proceeding until the evidence
establishes a probation condition violation.'" State v. Lloyd, 52 Kan. App. 2d 780, 782,
375 P.3d 1013 (2016) (quoting State v. Garcia, 31 Kan. App. 2d 338, 341, 64 P.3d 465
[2003]). The State has the burden of proving a probation violation by a preponderance of
the evidence. Lloyd, 52 Kan. App. 2d at 782. "A preponderance of the evidence is
established when the evidence demonstrates a fact is more probably true than not true."
State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007).

Discussion

First, the record Birch provided for appeal is sufficient for this court to review the
case. Though the State asserts that Birch's failure to provide the exhibits submitted in the
preliminary hearing would disallow proper review, the exhibits are inconsequential to the
merits of this appeal. During the preliminary hearing, the State admitted photos of the
stolen items and Birch and Bernarshea leaving the store. The State also admitted journal
entries from both sisters' previous convictions. The State correctly asserts that the party
claiming error has the burden of designating a record that establishes the claimed error,
but the information conveyed in the exhibits would not affect the outcome of the appeal if
Birch had provided them. Birch challenged the findings that she participated in
Bernarshea's theft, not her presence at the store. Birch also did not challenge that her
sister stole the items in the photograph. The record is sufficient for review.
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The district court did not determine Birch committed theft, but it held that she
aided and abetted Bernarshea in her theft. Under K.S.A. 2017 Supp. 21-5210(a): "A
person is criminally responsible for a crime committed by another if such person, acting
with the mental culpability required for the commission thereof, advises, hires, counsels
or procures the other to commit the crime or intentionally aids the other in committing
the conduct constituting the crime."

To establish Birch aided and abetted, the State must show that it was more likely
true than not true that she knowingly associated with Bernarshea's theft and participated
in such a way to facilitate the success of the theft. The State must have presented
evidence beyond mere presence in the vicinity or mere association with Bernarshea. See
State v. Baker, 287 Kan. 345, 366, 197 P.3d 421 (2008). Criminal responsibility for
conduct of another requires assistance either before or during the commission of the
crime. See State v. Potts, 304 Kan. 687, 695-96, 374 P.3d 639 (2016); PIK Crim. 4th
52.140 (2017 Supp.).

The district court determined Birch violated her probation by acting as a lookout,
not stopping when confronted by Ice, shoving Ice out of the way, leaving the store, and
facilitating Bernarshea's flight. See State v. Plummer, 45 Kan. App. 2d 700, 705, 251
P.3d 102 (2011). In determining Birch's claim of insufficiency of the evidence, this court
does not reweigh evidence presented to the trial court or the credibility of witnesses.
Potts, 304 Kan. at 694. This court must determine whether there was substantial
competent evidence to support the trial court's decision. Substantial competent evidence
is legal and relevant evidence that a reasonable person could accept as being adequate to
support a conclusion. Gannon v. State, 303 Kan. 682, 699-00, 368 P.3d 1024 (2016).

In this case, the trial court heard the evidence presented at the preliminary hearing,
observed the demeanor of the parties, and determined the credibility of the witnesses
testifying. Taking those matters into consideration, the trial court determined that there
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was probable cause to believe that Birch committed a new crime. Based on that evidence
and those same considerations, the trial court found by a preponderance of the evidence
that Birch violated her probation. The standard of probable cause obviously being higher
than a preponderance of the evidence, there was substantial competent evidence for the
trial court to have determined that Birch violated her probation.

Affirmed.