1

NOT DESIGNATED FOR PUBLICATION

No. 121,437

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

GARY D. COWAN,

Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed March 13, 2020. 

Affirmed.

Submitted for summary disposition under K.S.A. 2019 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Gary D. Cowan appeals the district court's decision revoking his 

probation and ordering him to serve his original sentence. We granted Cowan's motion 

for summary disposition under Kansas Supreme Court Rule 7.041A (2019 Kan. S. Ct. R. 

47). The State has filed no response.

On July 1, 2016, Cowan pled no contest to one count of possession of 

methamphetamine. On August 11, 2016, the district court sentenced Cowan to 30 months'

imprisonment but granted probation for 18 months.

The record reflects that Cowan received both a 3-day jail sanction and a 120-day 

prison sanction for violating the conditions of his probation. The district court also 
2

extended the term of Cowan's probation. At a hearing on May 7, 2019, the district court 

found that Cowan violated the conditions of his probation by failing to report and by 

failing to abstain from the use of illegal drugs. Also, the district court had found at a prior 

hearing that Cowan violated the conditions of his probation on other grounds including 

failing to obey all laws. At the hearing on May 7, 2019, Cowan denied drug use despite 

the probation officer's testimony that Cowan twice tested positive for methamphetamine 

while he was wearing drug patches. After hearing the conflicting evidence, the district 

court found that the "State has met its burden of proving that there was [drug] usage 

during that period." The district court revoked Cowan's probation and ordered him to 

serve his original sentence. Cowan timely appealed. 

On appeal, Cowan claims the district court "abused its discretion because the 

decision to revoke probation and ordering him to serve a prison term was unreasonable, 

especially because [he] denied drug use." But Cowan concedes that once the State shows 

the defendant has violated the conditions of probation, the decision to revoke probation 

rests within the district court's sound discretion. 

The procedure for revoking a defendant's probation is governed by K.S.A. 2019

Supp. 22-3716. Generally, once there has been evidence of a violation of the conditions 

of probation, the decision to revoke probation rests in the district court's sound discretion. 

State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). An abuse of discretion 

occurs when judicial action is arbitrary, fanciful, or unreasonable; is based on an error of 

law; or is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). 

The party asserting the district court abused its discretion bears the burden of showing 

such an abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).

Cowan denied the allegation that he violated his probation by using drugs, but the 

district court found the probation officer's testimony supported the violation. "To sustain 

an order revoking probation on the grounds that a probationer has committed a violation 
3

of the conditions of probation, commission of the violation must be established by a 

preponderance of the evidence." Gumfory, 281 Kan. at 1170. Here, there was evidence to 

support the district court's finding that Cowan was using drugs while on probation, and 

we will not reweigh the evidence on appeal. See State v. Chandler, 307 Kan. 657, 668, 

414 P.3d 713 (2018). Moreover, the district court also found that Cowan violated the 

conditions of his probation on other grounds including failing to obey all laws and failing 

to report, and Cowan is not challenging these grounds on appeal.

Cowan received the intermediate sanctions required by law. See K.S.A. 2018

Supp. 22-3716(c)(1). The record shows that the district court gave Cowan many chances 

to succeed on probation, but he could not comply with the basic conditions of his 

supervision. The district court's decision to revoke Cowan's probation was not arbitrary, 

fanciful, or unreasonable, and it was not based on an error of fact or law. Cowan has 

failed to show that the district court abused its discretion by revoking his probation and 

ordering him to serve his original sentence. 

Affirmed.