State v. Thompson ( 2015 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
KYLE MATTHEW THOMPSON, Appellant.
No. 1 CA-CR 14-0445
FILED 10-01-2015
Appeal from the Superior Court in Mohave County
No. S8015CR201100601
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee
Christian C. Ackerley, Attorney at Law, Phoenix
By Christian C. Ackerley
Counsel for Appellant
STATE v. THOMPSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which
Judge Andrew W. Gould and Judge Patricia K. Norris joined.
K E S S L E R, Presiding Judge:
¶1 Kyle Matthew Thompson (“Thompson”) appeals from the
trial court’s judgment finding him guilty of violating his probation. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In June 2011, Thompson was indicted on ten counts of sexual
exploitation of a minor, each a class 2 felony and a dangerous crime against
children. In November 2013, he entered a plea pursuant to North Carolina
v. Alford, 400 U.S. 25 (1970), to one count of attempted sexual exploitation
of a minor, a class 3 felony and dangerous crime against children. In
exchange for his plea, Thompson was placed on five years of supervised
probation, which began in December 2013.
¶3 As part of the special conditions of probation, Term 14
provided that Thompson could not “possess, use, or have personal access
to any computer or similar equipment that has internet capability without
prior written permission of [his] Probation Officer.” In January 2014, the
State filed a Petition to Revoke Probation, alleging that Thompson
“accessed the internet via Facebook on at least seven (7) occasions soliciting
friends, including a 13 year [old] female.”
¶4 At the contested probation violation hearing, the State
presented evidence that Thompson’s Facebook account—which can only be
accessed with a username and password—showed activity on multiple
dates in January 2014. Thompson’s probation officer testified that when
asked about the activity, Thompson acknowledged that it was his account
but denied accessing it himself. He claimed “he had given his identifiers to
a friend and he was watching his friend access the internet.” Thompson,
however, refused to provide his friend’s name.
¶5 The trial court ultimately found that the State proved by a
preponderance of the evidence that Thompson had “personal access to a
computer or other equipment that had internet capability,” and as a result,
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STATE v. THOMPSON
Decision of the Court
violated Term 14 of his conditions of probation. The court further noted,
that regardless of whether or not it believed Thompson’s story, he had and
controlled access to his account.
The Court believes that if the defendant is directing
somebody else to access his Facebook account and to send out
these friend requests which is basically what he admitted
doing or whether he’s doing it himself, he is still having
personal access to a computer or other equipment that has
internet capability.
Moreover, the court reasoned that directing another person to access the
account on Thompson’s behalf is contrary to the term’s “goal of monitoring
what somebody [who is] convicted of a sex offense does with respect to the
internet.”
¶6 Thompson timely appealed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, as well as Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003) and 13-
4033(A)(3) (2010).
STANDARD OF REVIEW
¶7 “We will uphold a trial court’s finding that a probationer has
violated probation unless the finding is arbitrary or unsupported by any
theory of evidence.” State v. Thomas, 196 Ariz. 312, 313, ¶ 3, 996 P.2d 113,
114 (App. 1999). Probation violations “must be established by a
preponderance of the evidence.” Ariz. R. Crim. P. 27.8(b)(3). “Revocation
hearings are flexible and not subject to the same rules of evidence and
procedure as govern criminal trials. It is enough for the trial court to have a
reason to believe that the individual is violating the conditions of his
probation or engaging in criminal practices to revoke his probation.” State
v. Smith, 112 Ariz. 416, 419, 542 P.2d 1115, 1118 (1975) (internal quotation
marks and citation omitted). “We view the evidence in the light most
favorable to sustaining the court’s finding.” State v. Tatlow, 231 Ariz. 34, 39-
40, ¶ 15, 290 P.3d 228, 233-34 (App. 2012).
DISCUSSION
¶8 Thompson argues the trial court abused its discretion in
finding that he violated his probation by accessing the internet. Thompson
specifically argues that the State provided no evidence that he had
“personal access” to a computer, and it failed to refute his statement that
another person accessed it on his behalf. We disagree.
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STATE v. THOMPSON
Decision of the Court
¶9 There was sufficient evidence to support a finding that
Thompson personally accessed the internet. Thompson admitted to his
probation officer that the password-protected Facebook account in question
was his, and that “he had given his identifiers to [an unnamed] friend and
he was watching his friend access the internet.” The State presented
evidence that the account showed activity on several dates at the end of
January 2014. The court did not abuse its discretion in finding that the
inherent nature of the activity was equivalent to Thompson having
personal access to the internet. We do not see how Thompson giving his
username and password to a friend to access his account, under his
direction, for his benefit, while he watched, is different from him physically
touching the computer keyboard. Therefore, we agree with the trial court,
that even under this version of the facts, Thompson’s actions still constitute
having personal access to a computer with internet capability.
CONCLUSION
¶10 For the foregoing reasons, we affirm.
:ama
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