John Timothy Levesque v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 26, 2001
• Docket: 0312003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia

JOHN TIMOTHY LEVESQUE MEMORANDUM OPINION * BY v. Record No. 0312-00-3 JUDGE SAM W. COLEMAN, III JUNE 26, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge

Rhonda L. Overstreet (Lumsden, Overstreet & Hansen, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

John Timothy Levesque appeals the trial court's order

revoking his probation and suspended sentence that were imposed

for a 1988 aggravated sexual battery conviction. The trial court

found Levesque violated a condition of probation by having contact

with children. The questions on appeal are whether Levesque had

contact with children in violation of a condition of probation and

whether the trial judge abused his discretion by revoking

Levesque's probation and suspended sentence. 1 We hold that the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Levesque's brief presents four questions on appeal. However, Levesque's petition for appeal, and the appeal that we granted, presented the sole question of whether the trial court abused its discretion in revoking his suspended sentence. evidence supports the trial judge's finding that Levesque violated

the "no contact" condition and that the judge did not abuse his

discretion.

Levesque was convicted of aggravated sexual battery and

sentenced to ten years in prison, suspended after serving four

years. Levesque was also placed on supervised probation and

ordered to participate in a sex offender treatment program upon

his release from prison. Herbert Hastings, Levesque's probation

officer, testified that when Levesque was released from prison he

entered the sex offender treatment program as his probation

required. Hastings instructed Levesque that his probation also

required that he could not possess materials that contained

pictures of children. Hastings testified that because Levesque's

offense had been aggravated sexual battery of children, Hastings

verbally instructed Levesque that he was to have "no contact" with

children, as a special condition of his probation.

During Levesque's probation, Hastings was notified that

Levesque was under police investigation for having photographed

young children in stores. The police obtained copies of the

photographs, which were random shots of children looking at items

in the stores. Levesque never talked to the children and did not

touch them. Levesque admitted taking the photographs and told the

investigating officer that he took the photographs to use as

"masturbation tools" because a psychiatrist had told him that

"would help him control his pedophilia." Levesque was cooperative -2- with the investigating officers and with his probation officer and

did not attempt to conceal his activities.

Debra Smith, the director of the sex offender treatment

program, testified that the act of photographing children by

Levesque was "very high risk behavior, suggesting . . . that he

was in a pre-offense cycle, that he was going along the path of

getting ready to re-offend . . . ." Smith explained that it did

not matter that the children in the photographs were clothed

because it was the photograph of the child that was sexually

arousing to Levesque.

Code § 19.2-306 permits a trial court to revoke a suspended

sentence "for any cause deemed by it sufficient." "'[W]hether to

revoke the suspension of a sentence lies within the sound

discretion of the trial court.'" Hess v. Commonwealth, 17 Va.

App. 738, 741, 441 S.E.2d 29, 31 (1994) (citation omitted). A

court may revoke a suspended sentence for substantial misconduct

that does not involve a violation of the law. Resio v.

Commonwealth, 29 Va. App. 616, 622, 513 S.E.2d 892, 895 (1999).

The trial court "'undoubtedly has the power to revoke [the

suspension of a sentence] when the defendant has failed to

comply with the conditions of the suspension.'" Russnak v.

Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990)

(quoting Griffin v. Cunningham, 205 Va. 349, 354, 136 S.E.2d

840, 844 (1964)).

-3- Condition Six of the probation agreement signed by

appellant provided, "I will follow my probation and parole

officer's instructions and be truthful and cooperative."

Hastings verbally instructed Levesque that he was to have "no

contact" with children. Levesque acknowledged that Hastings had

instructed him to have no "unsupervised" contact with children

and that this was a special condition of his probation.

Levesque also acknowledged that looking at children could

sexually arouse him and that he was not supposed to use

photographs of children as "masturbation tools." He

acknowledged that he was not to possess pornography and that

pornography included photographs, magazines or material that

would sexually arouse him. Levesque asserts, however, that the

trial judge abused his discretion in finding that he violated

the special condition of his probation because when he took the

photographs of the children they were being supervised by their

parents and, moreover, photographing the children did not

constitute having "contact" with them. Levesque essentially

takes the position that contact with children in the context of

his probation requires physical contact or touching or engaging

in conversation.

The trial judge did not expressly address Levesque's

contention that he was only prohibited from having "unsupervised

contact" with children. Nevertheless, implicit in the trial

judge's finding was that any contact with children by Levesque -4- for the purpose of sexual arousal or gratification would violate

Condition Six of his probation. Although Levesque did not have

physical contact with the children, photographing the children

was contact with the children that Levesque intended to use for

his sexual arousal. Because of the nature of Levesque's

conviction, the act of photographing the children was contact

with children that violated Condition Six of his probation. The

trial judge did not abuse his discretion in revoking Levesque's

probation and suspended sentence.

Thus, the trial judge did not err by finding that Levesque

had contact with children, in violation of the special condition

of his probation, when he photographed the children to obtain

photographs for his own sexual arousal. Accordingly, the trial

judge did not abuse his discretion in revoking Levesque's

probation and suspended sentence for the violation.

Affirmed.

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