State v. Bilek

2017 UT App 37THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
VRATISLAV ROGER BILEK,
Appellant.
Per Curiam Decision
No. 20160285-CA
Filed March 2, 2017
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 141401370
Nathalie S. Skibine and Daniel M. Torrence,
Attorneys for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
Before JUDGES MICHELE M. CHRISTIANSEN, KATE A. TOOMEY, and
JILL M. POHLMAN.
PER CURIAM:
¶1 Vratislav Roger Bilek appeals the district court’s order
revoking his probation and imposing the suspended sentence of
one to fifteen years in prison on his conviction of kidnapping, a
second degree felony. We affirm.
¶2 This court reviews a district court’s decision to revoke
probation for an abuse of discretion. See State v. Legg, 2014 UT
App 80, ¶ 7, 324 P.3d 656. “[W]e view the evidence of a
probation violation in a light most favorable to the trial court’s
findings and substitute our own judgment only if the evidence is
so deficient as to render the court’s action an abuse of
discretion.” State v. Maestas, 2000 UT App 22, ¶ 12, 997 P.2d 314.
State v. Bilek
“To revoke probation, the trial court must find a violation of the
probation agreement by a preponderance of the evidence.” Legg,
2014 UT App 80, ¶ 10. The trial court must also find by a
preponderance of the evidence that the violation was willful and
was not the result of circumstances beyond the probationer’s
control. Id. “[A] single violation of probation is legally sufficient
to support a probation revocation.” Id. ¶ 11.
¶3 Bilek was charged with aggravated kidnapping, assault,
and drug-related charges in two separate cases based upon two
incidents in which he allegedly lured women to his apartment,
detained them for several days, and assaulted them. As the
result of a plea bargain, Bilek pleaded no contest to a single
second degree felony kidnapping charge. The district court
sentenced Bilek to the statutory prison term of one to fifteen
years, suspended the prison term, and placed Bilek on sixty
months of probation to be supervised by Adult Probation and
Parole (AP&P). In addition to the standard and ordinary terms
of probation, the district court imposed special conditions,
including: “Not to possess or consume alcohol or non-prescribed
controlled substances” and “No female overnight stays during
probation without approval of Adult Probation and Parole.”
¶4 About forty days after Bilek was placed on probation,
Bilek’s probation supervisor and another AP&P agent did a field
visit to the extended stay hotel where Bilek was living. The
agents observed a female, E.C., sitting on a bed in the room. E.C.
stated that she was in the room because Bilek had bailed her out
of jail. Although E.C. told the agents that she was only there for
the day and that she lived with her mother in Utah County,
E.C.’s mother did not corroborate that account. E.C. then
admitted to the agents that she had stayed overnight with Bilek.
The agents placed Bilek under arrest for violating conditions of
his probation. In a search of the room incident to the arrest, the
agents found what appeared to be heroin and methamphetamine,
along with drug paraphernalia. Bilek consented to a search of his
20160285-CA 2 2017 UT App 37State v. Bilek
phone, which contained numerous photos and videos of E.C.,
showing her unconscious or incoherent, clothed and naked, and
lying naked on top of Bilek, who was also naked, with her face
near his penis.
¶5 The original probation violation report prepared by
AP&P listed three probation violations, alleging that Bilek had
violated a special condition of his probation by having a female
stay overnight in his room, as well as violating standard
conditions of his probation by possessing heroin and
methamphetamine. An amended probation violation report was
prepared after the filing of new criminal charges against Bilek.
The amended report alleged five additional violations: forcible
sexual abuse; distributing, offering, or arranging for the
distribution of a controlled substance; two acts of voyeurism by
electronic equipment concealed or disguised; and possession of
drug paraphernalia. The district court held an evidentiary
hearing on the order to show cause why probation should not be
revoked in conjunction with the preliminary hearing on the
criminal charges.
¶6 At the evidentiary hearing, the AP&P agents testified
about the field visit, their communication with E.C., and the
discovery of drugs and drug paraphernalia in the hotel room.
Subsequent testing of the substances collected from the hotel
room indicated that those substances were heroin and
methamphetamine. Bilek’s probation supervisor testified that
Bilek had signed a probation agreement that included both the
standard and special probation conditions.
¶7 E.C. testified that on previous occasions she had
performed sexual services for Bilek in exchange for money. At
around 9:00 or 10:00 p.m. on January 30, 2016, Bilek bailed E.C.
out of the Utah County Jail and drove her back to Salt Lake City
to the hotel where he was staying. They stayed for a few minutes
to allow E.C. to shoot up methamphetamine that Bilek had
20160285-CA 3 2017 UT App 37State v. Bilek
provided, after which they went to a homeless shelter area to
purchase illegal drugs. E.C. testified that she assisted Bilek in the
purchase of heroin and crack cocaine by telling him who to buy
it from. They returned to the hotel where E.C. used heroin and
cocaine. Bilek assisted her by providing syringes. E.C. also saw
Bilek shoot up methamphetamine that he already had in his
possession. E.C. testified that the methamphetamine Bilek
provided to her made her feel sick and that heroin makes her fall
asleep. She testified that she woke up naked lying on Bilek, who
also was naked. She did not know how her clothing came off.
She was not aware that Bilek had taken photographs and videos
of her. E.C. testified that she spent a total of three days in the
hotel room with Bilek, including staying overnight.
¶8 At the end of the hearing, the district court found by a
preponderance of the evidence that each of the allegations of the
amended probation violation report and order to show cause
were established and that the violations were willful and
knowing. Defense counsel requested that Bilek be given another
chance at probation and also argued that all of the activity with
E.C. was consensual. The State requested that probation be
revoked and the original prison sentence be imposed, noting
similarities between the facts underlying the earlier charges and
the new charges. Bilek addressed the court, claiming that the
special probation conditions with which he disagreed—
including the condition regarding no overnight visits by
females—were dropped at the time of sentencing and therefore
should be waived. The district court concluded that Bilek had
agreed to the probation conditions, including the prohibition
about overnight visits by females. The district court found that,
even without the condition prohibiting overnight visits by
females, it was a standard condition that Bilek not commit any
new violations of the law. After finding that Bilek posed a
danger to the public, the court revoked and terminated
probation and ordered Bilek to serve one to fifteen years in
prison.
20160285-CA 4 2017 UT App 37State v. Bilek
¶9 Bilek challenges only the district court’s findings related
to the new charges of voyeurism by electronic equipment
concealed or disguised in violation of Utah Code section 76-9-
702.7. Specifically, Bilek argues that although he took
photographs and videos of E.C. while she was unconscious, the
statute requires that the equipment be “concealed or disguised,”
while the photographs and videos in this case “were taken
openly from a cell phone.” Bilek argues that the district court
erred when it found that the device was concealed because E.C.
was not conscious. However, it is unnecessary to our decision to
consider this argument, and we decline to do so.
¶10 Bilek acknowledges that a single violation of probation is
legally sufficient to support a probation revocation. However,
relying upon State v. Legg, 2014 UT App 80, ¶¶ 11, 25, 324 P.3d
656, Bilek argues that if one probation violation was found in
error and this court is not confident that the remaining violations
would have resulted in a revocation of probation, the court
should remand the case to the district court for further
consideration and explanation. In Legg, the district court found
that the defendant had violated probation “in three ways: (1) he
knowingly possessed a controlled substance; (2) he failed to be
cooperative, compliant, and truthful with his probation officer;
and (3) he failed to establish a residence of record.” Id. ¶ 6.
Although this court affirmed the finding on the second
probation violation, the court was “not confident that, standing
on its own, the single violation that [it] affirm[ed] would have
resulted in a revocation of probation.” Id. ¶ 25. Accordingly, this
court remanded for further consideration on the alleged
violations of possession of a controlled substance and failure to
establish a residence of record. Id.
¶11 The case now before this court is distinguishable from
Legg. Bilek challenges only the findings based upon the charges
of voyeurism. Bilek does not challenge the sufficiency of the
evidence to support the district court’s findings on any of the
20160285-CA 5 2017 UT App 37State v. Bilek
remaining six probation violations. The evidence, when viewed
in the light most favorable to the district court’s findings, see
State v. Maestas, 2000 UT App 22, ¶ 12, 997 P.2d 314, was
sufficient to support its finding, by a preponderance of the
evidence, that Bilek willfully violated the special condition of his
probation that he could not have overnight visits with females
without the approval of AP&P. Bilek’s claim that the condition
was dropped and should be waived is not supported by the
record. Furthermore, both E.C.’s testimony and the physical
evidence collected by the AP&P agents from the hotel room
established, by a preponderance of the evidence, that Bilek
purchased, possessed, and distributed methamphetamine and
heroin, in violation of the conditions of his probation. Similarly,
the evidence was sufficient to establish that Bilek possessed drug
paraphernalia, i.e., syringes. Finally, the photographs and
videos, even if not considered in the context of the voyeurism
charge, depicted an incoherent or unconscious woman lying
naked on top of naked Bilek with her head near his penis.
Viewed in the light most favorable to the district court’s
findings, this evidence supported the district court’s finding by a
preponderance of the evidence that Bilek committed the offense
of forcible sexual abuse. Unlike Legg, this case does not present
the situation where this court would not be confident that the
remaining six probation violations would support a probation
revocation.
¶12 Under these circumstances, Bilek has not demonstrated
that the district court abused its discretion in revoking probation
and imposing the original prison sentence. Accordingly, we
affirm.
20160285-CA 6 2017 UT App 37