State v. Taylor ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,536
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
FLOYD EARL TAYLOR III,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed September 4,
2020. Affirmed.
Submitted by the parties for summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h).
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
PER CURIAM: Floyd Earl Taylor III appeals following the district court's
revocation of his probation and imposition of his underlying sentences. We granted
Taylor's motion for summary disposition in lieu of briefs pursuant to Kansas Supreme
Court Rule 7.041A (2020 Kan. S. Ct. R. 47). On appeal, Taylor contends that the district
court abused its discretion in revoking his probation and in imposing his underlying
sentence. Specifically, Taylor argues that two of his three violations were technical in
nature and that the district court should have reinstated his probation. Based on our
review of the record, we conclude that the district court did not abuse its discretion in
revoking Taylor's probation or in ordering him to serve his underlying sentence. Thus, we
affirm.
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FACTS
As part of a plea deal in July 2019, Taylor pleaded guilty to one count of
aggravated assault of a law enforcement officer using a deadly weapon. The court found
him guilty of the charge and sentenced him to an underlying term of 18 months'
imprisonment and a postrelease supervision term of 12 months. However, the district
court suspended the sentence and granted Taylor probation.
In December 2019, the State filed a motion for an order to show cause why
Taylor's probation should not be revoked. In support of the motion, the State submitted
an affidavit from Taylor's probation officer. In the affidavit, Taylor's probation officer
attested that Taylor had failed to remain law abiding, had failed to report as directed, and
had failed to remain drug and alcohol free.
At a probation hearing in January 2020, the State presented evidence that Taylor
was arrested on December 17, 2019, at the Capital Plaza Hotel. In a search of Taylor's
backpack incident to his arrest, the police found a camera and three bank deposit bags.
One of the deposit bags had the words "Museum Deposit" printed on it. The arresting
officer knew that there had been a burglary the previous night at the Harley-Davidson
dealership and museum located nearby. Subsequently, the police learned that the serial
number on the camera found in Taylor's backpack matched that of one stolen from the
Harley-Davidson dealership the night before.
Two more things linked Taylor to the burglary of the Harley-Davidson. First,
Taylor was wearing steel-toed boots at the time of his arrest that matched prints left in the
snow and on one of the doors of the Harley-Davidson dealership. Second, the police
found a bag on Taylor that contained a large amount of cash and receipts from the
Harley-Davidson dealership. The police also found Taylor to be in possession of a plastic
bag that contained a white substance. This substance later tested positive for cocaine.
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In addition, Taylor's probation officer testified at the hearing. She stated that
Taylor had failed to report to her as instructed after he was released from jail on
December 12, 2019. The probation officer also testified that Taylor admitted to using
marijuana and had signed an admission of drug use statement.
After hearing the evidence, the district court found that it was sufficient to
establish that Taylor had violated the terms of his probation by failing to remain law
abiding, failing to report to his probation officer as directed, and failing to remain drug
free. The district court acknowledged that the second and third violations were—by
themselves—fairly minor and would usually merit lesser sanctions. However, when
viewed together with the evidence of the commission of new crimes, the district court
revoked Taylor's probation and ordered him to serve his original sentence.
Thereafter, Taylor filed a timely notice of appeal.
ANALYSIS
On appeal, Taylor contends that the district court abused its discretion by refusing
to reinstate his probation in light of the fact that two of the three violations of the terms of
his probation were "technical" in nature. Judicial discretion is abused only if (1) no
reasonable person would take the view adopted by the district court; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Jones, 306 Kan. 948, Syl. ¶ 7,
398 P.3d 856 (2017). The party asserting the district court abused its discretion—in this
case Taylor—bears the burden. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Taylor argues that the district court's decision to revoke his probation was
unreasonable. Despite his invitation to have us do so, we cannot focus simply on his two
less severe probation violations. Rather, we must look at the entire record. In doing so,
we find that Taylor violated the terms of his probation in at least three ways. We also
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reject the premise that failure to report to one's probation officer as directed or using
drugs is insignificant. Nevertheless, these violations must be viewed together with the
evidence of the new crimes which the district court found that he had committed.
We note that Taylor does not challenge the sufficiency of the evidence presented
at the revocation hearing to establish that he committed at least three probation violations.
In addition to failing to report to his probation officer as directed and using marijuana, a
review of the record shows that substantial evidence was presented upon which the
district court could reasonably conclude that Taylor committed new crimes. This
evidence is set forth above. In addition to being found to be in possession of items
reported stolen from the Harley-Davidson dealership, Taylor was also found to be in the
possession of cocaine at the time of his arrest.
We conclude that based on the evidence presented at the probation hearing the
district court did not act unreasonably in revoking Taylor's probation or in requiring him
to serve his underlying sentence. Likewise, we do not find that the district court made an
error of law or fact. Accordingly, we conclude that the district court did not abuse its
discretion, and we affirm its decision.
Affirmed.
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