Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Judge ALLARD.
Jack Rueben Shaw was released on probation after serving time in prison for attempted first-degree sexual abuse of a minor. Shaw's probation was later revoked for failing to successfully complete sex offender treatment, failing to comply with no-contact orders related to his victim and his other children, and engaging in unsupervised contact with female minors in violation of his probation conditions. On appeal, Shaw argues that there was insufficient evidence of these probation violations. For the reasons explained here, we affirm the revocation of Shaw's probation.
Factual Background
In 2006, Shaw pleaded guilty to a reduced charge of attempted first-degree sexual abuse of a minor.1 His probation conditions required that he complete sex offender treatment, and that he abide by any special instructions issued by his probation officer. A few years later in 2010, pro tem Superior Court Judge David C. Stewart found Shaw in violation of the probation condition requiring him to complete sex offender treatment.
Judge Stewart modified the probation condition that previously prohibited Shaw from contacting his victim (one of his daughters) until she turned eighteen. The modified condition prohibited all future contact with the daughter unless she submitted written consent to the probation department. Having been further informed that Shaw's now-adult children also did not wish to have contact with Shaw, the judge also imposed a provision prohibiting Shaw from contacting any of his children unless they submitted written consent to such contact to the probation department.
In November 2013, Shaw's probation officer, Jennifer Mariscal, filed the current petition to revoke Shaw's probation. In this petition, Mariscal alleged that Shaw had violated his probation in six ways: (A) Non-compliance with sex offender treatment, leading to discharge from the program; (B) attempting to locate his daughter after being ordered not to do so; (C) mailing a birthday card to his other daughter in violation of the no-contact condition; (D) engaging in unsupervised contact with female minors by helping a young girl put on her boots at a friend's house, and by accepting a furnace repair job in a house where minor females were present; (E) sleeping in his car in the parking lot of a park frequented by children; and (F) searching the internet for his victim and obtaining her address. Shaw denied these allegations.
At the adjudication hearing in February 2014, the State's sole witness was Probation Officer Mariscal. Shaw did not testify at the hearing.
Mariscal testified that Shaw met with her following a polygraph examination. At that meeting, they discussed Shaw's responses to the polygraph examination, which alerted Mariscal to the conduct giving rise to the current petition to revoke probation. After speaking with Shaw, Mariscal observed one of Shaw's group therapy sessions. During this group therapy session, Shaw admitted that he had found his victim's address online and had sent a birthday card to his other daughter — contact that was prohibited under the modified probation condition. Shaw also admitted contact with other female minors: once when he helped a girl put on her boots, and at least once while working on a furnace at another girl's home. When the group pressed Shaw to take responsibility for his prohibited conduct, he made excuses and declined to take any responsibility. As a result of his failure to participate meaningfully in treatment and meet other probation conditions, Shaw's sex offender treatment provider discharged him from treatment after the group therapy session.
At the adjudication hearing, Mariscal admitted that she did not follow up with the families of the female minors to determine if either of Shaw's admitted contacts was supervised. However, she concluded that the contacts were unsupervised based on how Shaw had characterized them.
Based on Mariscal's testimony, the superior court found violations (A)-(D). However, the court found that the State had failed to establish violations (E) and (F). The court subsequently revoked Shaw's probation and imposed 1 year of suspended time. The court also ordered Shaw to reengage with treatment when he returned to probation.
Why we affirm the revocation of Shaw's probation
Shaw now appeals the revocation of his probation, arguing that the evidence at his adjudication hearing was insufficient to prove the probation violations. When we review a claim of insufficient evidence on appeal, we are required to view the evidence — and all reasonable inferences to be drawn from that evidence — in the light most favorable to upholding the factfinder's decision.2 Viewing the evidence presented at Shaw's adjudication hearing in this light, we conclude that the evidence presented to the superior court was sufficient to prove the probation violations.
On appeal, Shaw argues that he did not willfully end his participation in his sex offender treatment program because he did not voluntarily leave his program; instead he was involuntarily terminated. We find no merit to this claim. As we recently explained in Silas v. State, the critical inquiry in this context is whether good cause exists to revoke the defendant's probation based on the cessation of treatment.3 Here, unlike in Silas, the court specifically found that Shaw was not making active efforts to comply with the requirements of the program, and that good cause therefore existed to terminate Shaw from the program. This finding is well-supported by the record and sufficient to establish violation (A).
Shaw additionally argues that there was insufficient evidence that he understood that his attempted contact with his adult daughters violated his probation conditions. We also find no merit to this claim. Mariscal testified that she told Shaw that such contact was prohibited. Moreover, as already noted, Shaw's probation conditions were previously modified to expressly prohibit such contact unless the daughters provided written consent to the probation department.
Lastly, Shaw argues that there was insufficient evidence that the unsupervised contact with the female minors was actually unsupervised. Shaw points out that Mariscal failed to conduct follow-up interviews with the families, and he points to his later unsworn allocution. But Shaw's allocution partly supports the trial court's finding of a violation. In his allocution, Shaw referred to the contact with the girl and her boots as "the first contact ever," implicitly acknowledging that it was unauthorized contact. Shaw also attempted to justify the contact by asserting that he was trying to be helpful. Shaw's description of the furnace incident also suggested that there were moments when the contact was unsupervised. Thus, viewing the evidence presented at the adjudication hearing in the light most favorable to upholding the trial court's ruling, we conclude that there was sufficient evidence for the judge to find, by a preponderance of the evidence, that the contact was unsupervised.
Accordingly, we affirm the superior court's revocation of Shaw's probation.
Conclusion
The judgment of the superior court is AFFIRMED.
