COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Agee and Senior Judge Coleman 

Argued at Salem, Virginia 

JOHN TIMOTHY LEVESQUE 

 MEMORANDUM OPINION* BY 

v. Record No. 0312-00-3 JUDGE 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, Overstreet & 

Hansen, on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 John Timothy Levesque appeals the trial court's order 

revoking his probation and suspended sentence that were imposed 

for a 1988 aggravated sexual battery conviction. The trial court 

found Levesque violated a condition of probation by having contact 

with children. The questions on appeal are whether Levesque had 

contact with children in violation of a condition of probation and 

whether the trial judge abused his discretion by revoking 

Levesque's probation and 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. 
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evidence supports the trial judge's finding that Levesque violated 

the "no contact" condition and that the judge did not abuse his 

discretion. 

 Levesque was convicted of aggravated sexual battery and 

sentenced to ten years in prison, suspended after serving four 

years. Levesque was also placed on supervised probation and 

ordered to participate in a sex offender treatment program upon 

his release from prison. Herbert Hastings, Levesque's probation 

officer, testified that when Levesque was released from prison he 

entered the sex offender treatment program as his probation 

required. Hastings instructed Levesque that his probation also 

required that he could not possess materials that contained 

pictures of children. Hastings testified that because Levesque's 

offense had been aggravated sexual battery of children, Hastings 

verbally instructed Levesque that he was to have "no contact" with 

children, as a special condition of his probation. 

 During Levesque's probation, Hastings was notified that 

Levesque was under police investigation for having photographed 

young children in stores. The police obtained copies of the 

photographs, which were random shots of children looking at items 

in the stores. Levesque never talked to the children and did not 

touch them. Levesque admitted taking the photographs and told the 

investigating officer that he took the photographs to use as 

"masturbation tools" because a psychiatrist had told him that 

"would help him control his pedophilia." Levesque was cooperative 
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with the investigating officers and with his probation officer and 

did not attempt to conceal his 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 permits a trial court 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)). 
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 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 
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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.