Kirschke (Matthew) v. State ( 2014 )

 material deemed inappropriate by his probation officer, but alleges that
the State failed to meet its burden because his probation officer never saw
the alleged sexually explicit material. Such a reading of the condition
would produce an absurd result. See Wilson v. State, 121 Nev. 345, 357,
114 P.3d 285, 293 (2005) (this court construes statutory language to avoid
absurd results). At the probation revocation hearing, a witness testified
that Kirschke showed the witness his phone, on which was a website that
showed a female with male genitalia in her mouth. We conclude that the
district court did not abuse its discretion by finding that Kirschke's
conduct was not as good as required by the conditions of his probation.
See Lewis, 90 Nev. at 438, 529 P.2d at 797.
Second, Kirschke contends that he was not given sufficient
notice regarding a violation the district court determined he committed,
specifically that he was in or near a business that primarily has children
as customers or conducts events that primarily children attend. We
conclude that, while Kirschke did not receive advance notice, the district
court did not err by considering the testimony as it was relevant to a
condition of his probation. See Jaeger v. State, 113 Nev. 1275, 1285, 948
P.2d 1185, 1191 (1997) (Shearing, CA., concurring) (recognizing that the
dual nature of a revocation hearing, to determine whether there was a
violation and, if so, whether revocation is warranted, necessitates the
district court's consideration of other relevant factors, including a
probationer's failure to conform to the requirements of his probation).
Third, Kirschke claims that the evidence presented at the
revocation hearing did not establish some of the violations by verifiable
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facts, namely that children were the primary customers of the business he
frequented and that his game console could access the Internet.' Our
review of the record on appeal reveals that the district court heard
testimony from which it could reasonably infer that Kirschke's conduct
was not as good as required by the conditions of his probation. See Lewis,
90 Nev. at 438, 529 P.2d at 797. Accordingly, we conclude that Kirschke
has not demonstrated that the district court abused its discretion by
revoking his probation and entering a second amended judgment of
conviction, and we
ORDER the judgment of the district court AFFIRMED.
Pickering Saitta
cc: Hon. Elissa F. Cadish, District Judge
Bush & Levy, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
lAs a condition of his probation, Kirschke was to "[n]ot possess any
electronic device capable of accessing the Internet and not access the
Internet through any such device or any other means" without approval
from his probation officer.
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