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NOT DESIGNATED FOR PUBLICATION

No. 124,009

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DOMINIC P. ZALES,

Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed September 2, 

2022. Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney,

and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., MALONE and CLINE, JJ.

PER CURIAM: Dominic P. Zales claims the district court abused its discretion 

when revoking his probation because the evidence did not support its finding that he 

violated his probation conditions. We find no error in the district court's decision and 

therefore affirm.
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Zales' unsuccessful probation

In October 2019, Zales received a dispositional departure to probation after he 

pleaded guilty to four crimes: (1) distribution of heroin/certain stimulants, a severity 

level 3 nonperson felony; (2) possession of paraphernalia with intent to 

manufacture/plant/cultivate a controlled substance, a severity level 5 nonperson felony; 

(3) criminal possession of a firearm by a felon, a severity level 8 nonperson felony; and 

(4) use/possess with intent to use drug paraphernalia, a class B misdemeanor.

About eight months later, Zales stipulated to seven violations of the conditions of 

his probation, including: (1) engaging in illegal activity—giving a false alarm that led to

a building evacuation in November 2019; (2) testing positive for methamphetamines in 

November and December 2019 and February 2020; and (3) failing to report. While 

discussing what sanction to impose for these violations, Zales' counsel told the district 

court that Zales had relapsed in his drug use but had since successfully completed 

inpatient treatment. She said Zales was doing well in outpatient drug treatment, which 

Zales confirmed.

The district court imposed a 30-day jail sanction, which it suspended for 60 days 

as long as Zales committed no new violations and missed no treatment without a valid 

excuse. The court reminded Zales that it could revoke his probation at any time, without 

imposing graduated sanctions, given his criminal history.

Within 60 days, the State moved to revoke Zales' probation. Its first motion recited 

that Zales failed to attend mental health appointments on July 6, 16, and 22, failed to 

attend outpatient treatment on July 2, failed to contact his ISO on August 10 and 12, and 

failed to provide documentation that he was required to quarantine. The State filed 

several amended motions in the following months, adding additional violations:

committing domestic battery on August 16, 2020, continuing to miss mental health and 
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drug treatment appointments, not contacting his ISO on other dates in July, August, and 

September 2020, being unsuccessfully discharged from outpatient treatment on August 

27, 2020, and testing positive for methamphetamines on February 8, 2021.

The district court found Zales violated his probation terms after an evidentiary 

hearing. When pronouncing its ruling, the court summarized Zales' long criminal history 

and reminded Zales it had granted him a departure in hopes that Zales would take 

advantage of that opportunity to succeed. It reminded Zales of his prior probation 

violations and opportunity to participate in drug treatment. It then found he had continued 

to violate the terms of his probation by getting unsuccessfully discharged from outpatient 

treatment, missing treatment appointments, and failing to report. It also found the State 

proved Zales had committed domestic battery. The court revoked Zales' probation and 

imposed his underlying sentence.

The district court did not abuse its discretion in revoking Zales' probation.

On appeal, Zales challenges the sufficiency of the evidence to support the district

court's findings that he violated his probation. He claims COVID-19 quarantines affected 

his ability to attend outpatient treatment and therapy appointments, and he noted his wife

recanted her domestic abuse allegations.

We find there was sufficient evidence to support the district court's finding and it 

did not abuse its discretion in revoking Zales' probation.

Applicable law and standard of review

A district court's decision to revoke an offender's probation consists of two steps: 

(1) making a factual determination that the offender violated a condition of probation and 

(2) making a discretionary determination on whether the violation warrants revoking the 

offender's probation. State v. Lyon, 58 Kan. App. 2d 474, 478, 471 P.3d 716 (2020) 
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(citing State v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 [2008]). The probation 

violation must be established by a preponderance of the evidence—which is established 

when the evidence shows that a fact is more probably true than not true. Lyon, 58 Kan. 

App. 2d at 478; State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007). And 

we review the district court's factual finding that a probation violation occurred for 

substantial competent evidence. Lyon, 58 Kan. App. 2d at 478.

"'Substantial evidence is evidence which possesses both relevance and substance and 

which furnishes a substantial basis of fact from which the issues can reasonably be 

resolved. Stated another way, substantial evidence is such legal and relevant evidence as 

a reasonable person might accept as being sufficient to support a conclusion. [Citations 

omitted.]'" Inkelaar, 38 Kan. App. 2d at 315.

When reviewing the district court's factual findings, we cannot reweigh the evidence nor 

reassess witness credibility. State v. Yazell, 311 Kan. 625, 627-28, 465 P.3d 1147 (2020); 

see also State v. Penn, No. 123,553, 2022 WL 497316, at *3 (Kan. App. 2022) 

(unpublished opinion) (stating rule in context of reviewing district court's factual finding 

of probation violation for substantial competent evidence). 

Once a probation violation is established, a district court's decision to revoke an 

offender's probation and impose the underlying prison sentence is discretionary, unless 

otherwise limited by statute. State v. Tafolla, 315 Kan. 324, 328, 508 P.3d 351 (2022); 

Lyon, 58 Kan. App. 2d at 478. We review the propriety of the sanction the district court 

imposed for the probation violation for an abuse of discretion. A district court abuses its 

discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error 

of law; or (3) based on an error of fact. Tafolla, 315 Kan. at 328. Unreasonable means 

that "no reasonable person would have taken the view adopted by the trial court." State v. 

Jones, 306 Kan. 948, Syl. ¶ 7, 398 P.3d 856 (2017). Zales bears the burden of showing an 

abuse of discretion. Tafolla, 315 Kan. at 328.
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Sufficient evidence supports the district court's findings.

Zales challenges the findings of violation based on his non-attendance at treatment

by arguing COVID-19 quarantines affected his ability to attend outpatient treatment and 

therapy appointments. He relies on his testimony at the hearing where he stated he was 

quarantined in April, June, July, and August.

Zales asks us to reweigh the evidence, which we cannot do. Not only did Zales'

ISO provide conflicting testimony about Zales' claimed quarantines, but even Zales 

provides no excuse for missing appointments in September 2020. And even if the district 

court had accepted Zales' testimony over his ISO's, Zales' drug and alcohol counselor 

testified he could have attended his appointments by telephone or Zoom.

Zales similarly asks us to reweigh the testimony about the domestic battery 

incident. The district court found Zales' wife's recanting of her allegations unbelievable, 

based on the testimony of Zales' wife, her mother, and the police officer who responded 

to the domestic battery call. It made a credibility determination based on its observation 

of the testimony of all the witnesses, which we cannot overturn. See State v. Brown, No. 

112,454, 2015 WL 9457875, at *1-2 (Kan. App. 2015) (unpublished opinion) (finding 

police officer's testimony at probation revocation hearing detailing victim's original 

report that defendant punched her, which district court credited over victim's recantation 

at the hearing, sufficient to support district court's finding that defendant punched victim 

and violated his probation by committing battery); State v. Larraga, No. 112,261, 2015 

WL 7433531, at *1-2 (Kan. App. 2015) (unpublished opinion) (presenting similar facts 

and affirming based on "district court's unreviewable determination that [victim's] 

recantation was not credible"). 
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And, last, Zales did not challenge the sufficiency of the evidence of the final 

probation violation—his failure to report to his ISO. His ISO testified that Zales failed to 

contact him on August 10, 2020, and August 12, 2020. 

We find substantial competent evidence supports the district court's probation 

violation findings. Any of these grounds, alone, could establish the probation violation 

necessary to revoke Zales' probation. See State v. Grossman, 45 Kan. App. 2d 420, 428, 

248 P.3d 776 (2011) (indicating district court has not abused its discretion when it relied 

on multiple probation violations to revoke an offender's probation and one ground is 

invalid, so long as alternative ground is valid); State v. McGregor, No. 123,340, 2022 

WL 628692, at *8 (Kan. App. 2022) (unpublished opinion) (citing Grossman, 45 Kan. 

App. 2d at 428, for the proposition: "[O]nly one valid probation violation is needed to 

uphold the trial court's revocation of an offender's probation."), petition for review filed

April 4, 2022. 

Zales admits the district court had the legal authority to revoke his probation since 

it was originally granted as the result of a dispositional departure. See K.S.A. 2021 Supp. 

22-3716(c)(7)(B). And we do not find the court acted unreasonably in doing so.

Affirmed.