State v. McAvoy

2007 ND 178, 741 N.W.2d 198, 2007 WL 3358129
CourtNorth Dakota Supreme Court
DecidedNovember 14, 2000
Docket20070095
StatusPublished
Cited by9 cases

This text of 2007 ND 178 (State v. McAvoy) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McAvoy, 2007 ND 178, 741 N.W.2d 198, 2007 WL 3358129 (N.D. 2000).

Opinion

SANDSTROM, Justice.

[¶ 1] Rae W. McAvoy, Jr., appeals from a district court order revoking his probation and resentencing him for a period of ten years’ imprisonment. We affirm.

I

[¶ 2] In 1995, McAvoy was found guilty of gross sexual imposition, a class A felony. His probation was subsequently revoked in 1999, 2000, and 2002. He was released from the North Dakota Department of Corrections in February 2005 and was placed on supervised probation. Supervision of his probation was transferred to Pennsylvania under the Interstate Compact for Adult Offender Supervision. One of the conditions of his probation was “no contact with minor children or vulnerable adults, unless under appropriate supervision.” The conditions of probation provided, “failure to follow any one or more of those conditions may and probably will result in a revocation of the probation.”

[¶ 3] In January 2007, on the basis of information from Pennsylvania authorities, the State of North Dakota petitioned to revoke McAvoy’s probation. The State alleged McAvoy violated his probation by: 1) admitting to having been alone with minor children on three occasions; and 2) failing to reimburse the State’s Attorney’s office $500 for transportation costs. McA-voy reimbursed the State’s Attorney’s office in full prior to the revocation hearing.

[¶ 4] The North Dakota district court heard the matter on March 28, 2007. At the hearing, McAvoy denied the State’s allegations. During the hearing, Christin Thelen, a North Dakota Department of Corrections probation officer, testified McAvoy had not completed a sex-offender treatment program. At the hearing, McA-voy admitted not completing treatment. The State also introduced evidence of a polygraph examination that had been administered to McAvoy. The polygraph examination was given because McAvoy’s probation supervisor in Pennsylvania doubted whether McAvoy was being truthful in their meetings. The district court allowed the polygraph evidence because it *200 was a part of the sex-offender treatment program. The results indicated McAvoy was in need of more intense treatment. Frank Horvath, McAvoy’s probation supervisor in Pennsylvania, testified McAvoy admitted he had been alone with his girlfriend’s children on three occasions. He testified McAvoy admitted to him that he had picked up his girlfriend’s children at daycare. McAvoy himself testified he picked up his girlfriend’s children at daycare. He said he walked into the daycare center by himself and picked the children up.

[¶ 5] In its order, the district court found McAvoy had violated a term of his probation by being alone with minor children on three occasions. The court revoked his probation and resentenced him to ten years in prison. He received credit for the six and one-half years he had previously served.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This appeal is timely under N.D.RApp.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 2, and N.D.C.C. § 29-28-06.

II

[¶ 7] In revocation-of-probation appeals, we first review the district court’s factual findings and then review the district court’s decision to revoke probation. State v. Wardner, 2006 ND 256, ¶ 17, 725 N.W.2d 215. When a violation is contested, the State need only prove a probation violation by a preponderance of the evidence. N.D.R.Crim.P. 32(f)(3)(B).

A

[¶ 8] First, we review the district court’s factual finding of a probation violation under the clearly erroneous standard. State v. Causer, 2004 ND 75, ¶ 31, 678 N.W.2d 552. “ ‘A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, when there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence, the court is left with a definite and firm conviction that a mistake has been made.’ ” Wardner, 2006 ND 256, ¶ 19, 725 N.W.2d 215 (quoting State v. Oien, 2006 ND 138, ¶ 11, 717 N.W.2d 593).

[¶ 9] One of the conditions of McAvoy’s probation was “no contact with minor children or vulnerable adults, unless under appropriate supervision.” He was also required to successfully complete a rehabilitative or treatment program. At the revocation hearing, McAvoy admitted he had not completed his sex-offender treatment program. He also admitted to having been alone with his girlfriend’s children on three occasions. McAvoy’s own admissions provided sufficient evidence to support the district court’s findings. Therefore, the court’s findings were not clearly erroneous.

[¶ 10] McAvoy argues his contact with the children was minimal. He testified he was alone with the children for only a very short time. He would pick them up at daycare and then walk with them alone to the car, where the children’s mother or McAvoy’s father would be waiting.

[¶ 11] Interpretation of a condition of probation is a question of law, fully reviewable on appeal. Wardner, 2006 ND 256, ¶ 22, 725 N.W.2d 215. Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer’s activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior. Id.

[¶ 12] “Contact” is defined as “ ‘[t]he coming together or touching of two objects’ or ‘[t]he state of being in communica *201 tion.’ ” Id. at ¶ 25 (quoting American Heritage Dictionary 315 (2d College ed.1985)). In this case, McAvoy admitted having contact with the children, regardless of how minimal it may have been. He was alone with the children when he picked them up at daycare, and he walked alone with them from the daycare to the vehicle. The district court found McA-voy’s contact with the children was a violation of his probation. This finding was not clearly erroneous.

[¶ 13] McAvoy argues the district court erred in finding that he violated his probation by failing to complete sex-offender treatment. He argues the State did not allege that in its petition for revocation. During the hearing, however, when the State presented evidence that he had not completed treatment, he did not object.

[¶ 14] Because McAvoy did not object to the testimony regarding his failure to complete sex-offender treatment, this Court’s review is for obvious error under N.D.R.Crim.P. 52(b). The burden is upon the defendant to show the error caused the defendant to suffer a serious injustice. State v. Austin, 2007 ND 30, ¶ 19, 727 N.W.2d 790. An obvious error is one that is prejudicial or affects the outcome of a proceeding. State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631.

[¶ 15] In its order for revocation, the district court found McAvoy violated his probation by having been alone with minor children on three occasions. It did not find a violation for failure to complete sex-offender treatment. Therefore, the omission of McAvoy’s failure to complete treatment from the petition for revocation was not prejudicial. The court found he had violated his probation by being alone with minor children, not by failing to complete treatment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jemal
2025 ND 167 (North Dakota Supreme Court, 2025)
State v. Goldsack
2019 ND 36 (North Dakota Supreme Court, 2019)
State v. Wetzel
2011 ND 218 (North Dakota Supreme Court, 2011)
Finstad v. Ransom-Sargent Water Users, Inc.
2011 ND 215 (North Dakota Supreme Court, 2011)
Disciplinary Board v. Kirschner
2011 ND 8 (North Dakota Supreme Court, 2011)
Interest of C.J., S.J., and K.W.
2008 ND 81 (North Dakota Supreme Court, 2008)
VOISINE v. State
2008 ND 91 (North Dakota Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2007 ND 178, 741 N.W.2d 198, 2007 WL 3358129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcavoy-nd-2000.