COURT OF APPEALS OF VIRGINIA

Present: Judg es Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia

JOHN TIMOTHY LEVESQUE MEMORANDUM OPINION * BY v. Record No. 0312-00-3 JU DGE SAM W. COLEMAN, III JUNE 26, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge Rhonda L. Overstreet (Lumsden, Ov erstreet & Hansen, on brief), for appellant. Kathleen B. Martin , Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

John Timothy Leve sque appeals the tr ial court's order revoking his probation and suspended se ntence that were imposed for a 1988 aggravated sexual battery convicti on. The trial court found Levesque violated a condition of probat ion by having contact with children. The qu estions on appeal are whether Leve sque had contact with children in violation of a cond ition of probation and whether the tria l judge abused his disc retion by revoking Levesque's probation an d suspended sentence. 1 We hold that the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 Levesque's brief presents four questions on appeal. However, Levesque's petition for appeal, and the appeal that we granted, presented the sole question of whether the trial court abused its discretion in revoking his suspended sentence.- 2

- evidence supports the trial judge's fi nding that Leve sque violated the "no contact" condition and th at the judge di d not abuse his discretion. Levesque was convic ted of aggravated sexual battery and sentenced to ten year s in prison, suspende d after serv ing four years. Levesque was also placed on su pervised probation and ordered to participate in a sex offender treatmen t program upon his release from prison . Herbert Hast ings, Levesque 's probation officer, testified that when Levesque was rele ased from prison he entered the sex offender treatment prog ram as his probation required. Hastings in structed Levesque that his probation also required that he could not po ssess materials that contained pictures of children. Hastings testified that be cause Levesque's offense had been aggrav ated sexual battery of children, Hastings verbally instructed Leve sque that he was to ha ve "no contact" with children, as a special co ndition of his probation. During Levesque's probation, Hastings was notified that Levesque was under poli ce investigatio n for having photographed young children in stores. The police ob tained copies of the photographs, which were random shots of chil dren looking at items in the stores. Levesq ue never talked to th e children and did not touch them. Levesque admitted taking the ph otographs an d told the investigating officer that he took the photogra phs to use as "masturbation tools" because a psychiat rist had told him that "would help him control his pedoph ilia." Levesque was cooperative- 3

- with the investigating officers and with his probation of ficer and did not attempt to conceal hi s activities. Debra Smith, the director of the sex offender treatment program, testified that the act of photographing children by Levesque was "very high risk behavior, suggesting . . . that he was in a pre-offense cycle, that he was going along the path of getting ready to re-offend . . . ." Smith explained that it did not matter that the children in the photographs were clothed because it was the photograph of the child that was sexually arousing to Levesque. Code § 19.2-306 pe rmits a trial co urt to revoke a suspended sentence "for any cause deemed by it sufficient." "'[W]hether to revoke the suspension of a sentence lies within the sound discretion of the trial court.'" Hess v. Commonwealth , 17 Va. App. 738, 741, 441 S.E.2d 29, 31 (1994) (citation omitted). A court may revoke a suspended sentence for substantial misconduct that does not involve a violation of the law. Resio v. Commonwealth , 29 Va. App. 616, 622, 513 S.E.2d 892, 895 (1999). The trial court "'undoubtedly has the power to revoke [the suspension of a sentence] when the defendant has failed to comply with the conditions of the suspension.'" Russnak v. Commonwealth , 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990) (quoting Griffin v. Cunningham , 205 Va. 349, 354, 136 S.E.2d 840, 844 (1964)).- 4

- Condition Six of the probation agreement signed by appellant provided, "I will follow my probation and parole officer's instructions and be truthful and cooperative." Hastings verbally instructed Levesque that he was to have "no contact" with children. Levesque acknowledged that Hastings had instructed him to have no "unsupervised" contact with children and that this was a special condition of his probation. Levesque also acknowledged that looking at children could sexually arouse him and that he was not supposed to use photographs of children as "masturbation tools." He acknowledged that he was not to possess pornography and that pornography included photographs, magazines or material that would sexually arouse him. Levesque asserts, however, that the trial judge abused his discretion in finding that he violated the special condition of his probation because when he took the photographs of the children they were being supervised by their parents and, moreover, photographing the children did not constitute having "contact" with them. Levesque essentially takes the position that contact with children in the context of his probation requires physical contact or touching or engaging in conversation. The trial judge did not expressly address Levesque's contention that he was only prohibited from having "unsupervised contact" with children. Nevertheless, implicit in the trial judge's finding was that any contact with children by Levesque- 5

- for the purpose of sexual arousal or gratification would violate Condition Six of his probation. Although Levesque did not have physical contact with the children, photographing the children was contact with the children that Levesque intended to use for his sexual arousal. Because of the nature of Levesque's conviction, the act of photographing the children was contact with children that violated Condition Six of his probation. The trial judge did not abuse his discretion in revoking Levesque's probation and suspended sentence. Thus, the trial judge did not err by finding that Levesque had contact with children, in violation of the special condition of his probation, when he photographed the children to obtain photographs for his own sexual arousal. Accordingly, the trial judge did not abuse his discretion in revoking Levesque's probation and suspended sentence for the violation. Affirmed.