State v. Balfour

2018 UT App 122

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
OZWALD BALFOUR,
Appellant.

Opinion
No. 20160821-CA
Filed June 21, 2018

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 111905240

Ronald Fujino, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
KATE A. TOOMEY and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 After a jury convicted Defendant Ozwald Balfour of
forcibly sodomizing a seventeen-year-old girl (Victim), the
district court afforded him the privilege of probation: the court
imposed a suspended prison sentence of five years to life,
ordered Defendant to serve one year in jail, and thereafter
allowed him the opportunity to spend three years on probation,
during which time he would be required to abide by various
specific terms and conditions. Over a year later, however, the
district court determined that Defendant had violated the terms
and conditions of his probation, and consequently revoked his
probation and imposed the suspended prison sentence.
Defendant appeals the revocation of his probation. We affirm.
 State v. Balfour

BACKGROUND

¶2 Following his conviction, 1 the district court sentenced
Defendant to a prison term of five years to life, but suspended
the sentence on the condition that Defendant serve three years of
probation. The probation conditions required Defendant to serve
one year in jail, and to abide by various other usual and
customary terms and conditions, including reporting to and
maintaining contact with Adult Probation and Parole (AP&P),
maintaining a stable residence, completing a treatment
evaluation and any relevant follow-through, and refraining from
further violating any laws. In addition to having to satisfy those
general terms, Defendant was also required to abide by specific
“sex offender Group A conditions” as part of his probation.
Group A conditions apply to offenders who have committed a
sex offense against a minor. Among other things, these
conditions require an offender to successfully complete sex
offender therapy and to refrain from having contact with minors
without advance permission from AP&P.

¶3 While Defendant was serving his jail term, his probation
officer (Officer) met with him and asked him to sign a probation
agreement stipulating to the terms of his probation, including
the Group A conditions. Defendant refused to sign, arguing that
his seventeen-year-old “alleged victim” was not a minor and
thus that the Group A conditions should not be imposed.
Defendant also indicated that he did not see any reason why he
should have to get permission from AP&P to live at his house
with his thirteen-year-old son. Because Defendant refused to
sign the probation agreement, Officer filed a
“Progress/Violation” (P/V) report with the court recommending
that Defendant’s probation be revoked. By this time, the judge

1. We have already recounted the details of Defendant’s offense,
trial, and conviction in a previous opinion, see State v. Balfour,
2018 UT App 79, ¶¶ 2–6, 12–19, and therefore do not restate
those details here.

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who had sentenced Defendant had retired, and the case had
been assigned to another judge. After an April 27, 2015 hearing,
the new judge entered a minute entry ordering “AP&P and
defendant to meet at release date to sign contract.” Defendant
eventually signed the probation agreement.

¶4 Several months later, after Defendant’s release from jail,
Officer filed a second P/V report accompanied by an affidavit
alleging that Defendant was violating his probation in several
particulars. The affidavit contained five specific allegations.
First, Officer alleged that Defendant failed to establish a
residence of record or changed his residence or left the state of
Utah without permission. Second, Officer alleged that Defendant
failed to comply with the Utah Sex Offender Registration and/or
DNA requirements. Third, Officer alleged that Defendant failed
to report a July 2015 incident in which he was “arrested, cited or
questioned by a peace officer.” Fourth, Officer alleged that
Defendant “had [unauthorized] contact with children under the
age of 18.” And fifth, Officer alleged that Defendant “entered a
place where children congregate.” At this point, the district court
scheduled a hearing to contemplate revoking or modifying
Defendant’s probation, but for various procedural reasons the
hearing was delayed.

¶5 Before the hearing, Officer filed an additional affidavit
and P/V report to add a sixth allegation, alleging that Defendant
had not paid the supervision fees as required for his probation.
Officer also stated in the P/V report that Defendant “reported he
recently had a birthday party at his residence and disclosed
[that] his minor son was in attendance.” In the report, Officer
opined that it “appear[ed] as though [Defendant] [felt] the Sex
Offender Group A conditions of his probation [were] not
applicable to him” and that Defendant’s “attitude and
demeanor” did not appear to be “amenable to probation.”

¶6 Officer later learned that, in April 2014, police had
arrested Defendant in an unrelated incident and charged him
with theft and impersonating a public official. Upon learning of

20160821-CA 3 2018 UT App 122
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Defendant’s arrest in this earlier incident, Officer submitted
another affidavit, alleging that he was unaware of whether
Defendant ever reported this incident to AP&P.

¶7 Shortly after this, Officer filed two more P/V reports
asserting that Defendant had not added his employer
information to the Utah State Sex Offender Registry, had still not
paid his supervision fees, and had “absconded from the
supervision of [AP&P]” after being informed he would be
arrested for his repeated probation violations. At a hearing
concerning these affidavits, the district court, at the State’s
request, appointed a new probation officer to work on
Defendant’s case. The court then continued the hearing and
emphasized that “Defendant must get into compliance with
AP&P.” A few weeks later, the court continued the hearing a
second time in order to give Defendant a third chance to comply,
and informed Defendant that he had “to become compliant by
the next hearing.”

¶8 Before the final hearing, Defendant’s new probation
officer (Second Officer) filed additional P/V reports. In one of
these reports, Second Officer emphasized Defendant’s poor
attitude and alleged that Defendant “continued to put in
minimal or partial effort” in complying with his probation
conditions, especially the Group A conditions. Second Officer
also noted that Defendant insisted on referring to Victim as his
“alleged victim,” and noted that Defendant also continued to
maintain that Victim was not a minor at the time of his offense.
Second Officer finally noted that Defendant was “living with his
minor son” despite failing to complete the steps required to live
with a minor child under the Group A probation conditions, and
opined that Defendant’s failure “to accept his conviction and
crime or acknowledge a victim exists” increased the risk
Defendant posed to public safety. In a final P/V report, Second
Officer further explained that Defendant refused to comply with
his sex offender treatment, had “shown defiance and push back
to his [t]herapist,” and had ultimately been discharged from his
treatment program without completing it.

20160821-CA 4 2018 UT App 122
 State v. Balfour

¶9 At the final hearing, the district court considered all of the
P/V reports and affidavits concerning Defendant, and heard
testimony and argument. At the conclusion of the hearing, the
court found that Defendant had violated his probation in four
ways: (1) by having contact with his minor son and
grandchildren without AP&P permission; (2) by failing to
comply with the sex offender registration requirements; (3) by
failing to report to AP&P; and (4) by failing to successfully
complete sex offender treatment. As a consequence of these
violations, the district court revoked Defendant’s probation and
imposed the original prison sentence.

ISSUES AND STANDARDS OF REVIEW

¶10 Defendant raises three issues on appeal. First, he contends
that the district court plainly erred when it relied on information
contained in multiple affidavits, instead of relying on only a
single affidavit. 2 “To demonstrate plain error, a defendant must
establish that (i) an error exists; (ii) the error should have been
obvious to the district court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.” State v. Crespo, 2017 UT
App 219, ¶ 23, 409 P.3d 99 (quotation simplified).

¶11 Second, Defendant contends that the district court did not
have subject matter jurisdiction over the probation hearing
because the judge who initially sentenced Defendant retired.

2. Defendant also contends that his counsel was ineffective for
failing to raise this error and demand that the district court rely
on a single “affidavit.” Because we determine, for reasons stated
below, that the district court did not err in relying on multiple
affidavits, it follows that any motion counsel made to restrict the
court to a single affidavit would have been futile. Failure to
make futile motions does not constitute ineffective assistance of
counsel. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.

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Whether a district court had subject matter jurisdiction is a
question of law, which we review for correctness. State v. Young,
2014 UT 34, ¶ 5, 337 P.3d 227.

¶12 Third, Defendant contends both that the district court
plainly erred in parsing the evidence presented in the P/V
reports and that the evidence presented was insufficient to
establish two of the four probation violations Defendant was
accused of committing. Defendant concedes that these issues are
unpreserved, but asks us to review them for plain error. See State
v. Johnson, 2017 UT 76, ¶¶ 18–19, 416 P.3d 443 (explaining that
appellate courts will review unpreserved issues only for plain
error or ineffective assistance of counsel, unless exceptional
circumstances are present).

ANALYSIS

¶13 Defendant first contends that the district court plainly
erred by considering more than one of the affidavits attached to
the P/V reports. In support, Defendant cites Utah Code section
77-18-1(12)(b)(i), which states that “[u]pon the filing of an
affidavit alleging with particularity facts asserted to constitute
violation of the conditions of probation, the court that
authorized probation shall determine if the affidavit establishes
probable cause to believe that revocation, modification, or
extension of probation is justified.” Id. § 77-18-1(12)(b)(i)
(LexisNexis 2017) (emphasis added). 3 Defendant argues that the
statute’s use of the singular term “affidavit” indicates that a
district court is barred from considering more than one affidavit
during a probation modification hearing.

3. This statute has recently been amended, but the recent
amendments are not substantive and do not affect the outcome
of this appeal. Accordingly, we refer to the most recent edition of
the Utah Code for convenience. See State v. Peraza, 2018 UT App
68, ¶ 28 n.7.

20160821-CA 6 2018 UT App 122
 State v. Balfour

¶14 We disagree. When interpreting a statute, an appellate
court’s “primary goal is to ascertain the intent of the legislature.”
State v. Mooers, 2017 UT 36, ¶ 7. Our legislature has specifically
advised us that when interpreting a statute we should read
“[t]he singular” to “include[] the plural,” “unless the
construction” yielded by this rule would be “(i) inconsistent with
the manifest intent of the Legislature; or (ii) repugnant to the
context of the statute.” Utah Code Ann. § 68-3-12(1)(a), (b)
(LexisNexis 2016). Defendant does not argue that either of those
exceptions apply. Indeed, as the State points out, adopting
Defendant’s proposed rule would simply result in the creation of
“larger, consolidated affidavit[s],” duplicative of all previous
affidavits, for probation modification hearings. We fail to see
how allowing the use of multiple affidavits would be
inconsistent with, or repugnant to, the context of the statute or
legislative intent. Accordingly, the district court did not err at
all—let alone commit plain error—when it considered more than
one affidavit during the probation modification hearing.

¶15 Defendant next contends that the district court did not
have subject matter jurisdiction over the probation hearing
because the judge who initially sentenced Defendant to
probation had retired from the bench by the time of that hearing.
In support, Defendant cites the statute governing probation
modification hearings, which states that “the court that authorized
probation shall” determine whether a revocation or other
modification of probation is warranted. Id. § 77-18-1(12)(b)(i)
(emphasis added). Defendant maintains that the specific judge
who sentenced him was “the court that authorized probation”
and that any other judge would be a new court, and thus that it
is “jurisdictional error for a different judge [than the one who
sentenced Defendant] to address the” probation modification
hearing.

¶16 Defendant misapprehends the law. The term “the court,”
as used in the statute Defendant references, does not refer to a
specific judge, but rather to a specific judicial office that
individual judges may occupy. See Blackmore v. L&D Dev. Inc.,

20160821-CA 7 2018 UT App 122
 State v. Balfour

2016 UT App 198, ¶ 31, 382 P.3d 655 (noting that, “when a
second judge has taken over” a case, “the two judges, while
different persons, constitute a single judicial office” (quotation
simplified)); see also Macris v. Sculptured Software, Inc., 2001 UT
43, ¶ 30, 24 P.3d 984 (noting that a ruling from a substitute judge
is a ruling by “the same judicial officer,” and not a ruling by a
distinct “co-equal court”). Thus both the judge who presided
over Defendant’s sentencing and the subsequently assigned
judge were part of “the court that authorized probation.” See
Utah Code Ann. § 77-18-1(12)(b)(i). Accordingly, the district
court—represented by the newly assigned judge—had
jurisdiction to revoke Defendant’s probation.

¶17 Finally, Defendant contends, for two reasons, that the
evidence presented to the district court was insufficient to
support the revocation of his probation. First, Defendant asserts
that the district court plainly erred when it rephrased the facts
presented in the P/V reports to articulate Defendant’s probation
violations. Second, Defendant asserts that the evidence was
insufficient to support the district court’s finding as to two of the
four probation violations, and that the district court plainly erred
by finding otherwise.

¶18 On the first point, Defendant asserts that the district court
infringed on the power of the executive branch when it phrased
its findings—that Defendant had violated the terms and
conditions of his probation—in different terms than the
probation officers used in their various affidavits and P/V
reports. For example, Defendant notes that the P/V reports
described a problem with Defendant’s participation in sex
offender treatment, but phrased that problem as Defendant
having “[failed] to participate in sex offender therapy.”
Defendant correctly notes that this allegation, as phrased in the
P/V reports, is not true, because Defendant did—at least
minimally—participate in treatment. The district court
eventually found, however, that Defendant failed to complete
sex offender treatment due to having been unsuccessfully
discharged from his treatment program because of his refusal to

20160821-CA 8 2018 UT App 122
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comply with basic program requirements. Defendant asserts that
“‘[b]eing unsuccessfully discharged’ from therapy is different
than . . . ‘having failed to participate in sex offender therapy,’”
and contends that the district court overstepped its bounds by
determining that Defendant was unsuccessfully discharged.

¶19 We disagree. In so doing, we note that Defendant appears
to misapprehend which branches of government are involved
during the imposition, modification, or revocation of probation.
“[T]he judicial branch has the authority to begin probation and
to terminate probation.” State v. Phillip, 2016 UT App 245, ¶ 14,
391 P.3d 334; see also Padilla v. Utah Board of Pardons & Parole, 947
P.2d 664, 668 (Utah 1997) (stating that “[t]he power to execute
sentences remains in the exclusive control of the judiciary”).
Thus, the district court had the authority to determine that
Defendant had violated his probation and revoke his probation,
with or without input from AP&P. Although AP&P—which is “a
division of the Department of Corrections” and is therefore “a
creature of the executive branch,” see Phillip, 2016 UT App 245,
¶ 15—assisted the court in that role by bringing suspected
probation violations to the court’s attention, that assistance did
not rob the court of its ultimate authority to determine whether
Defendant had violated the terms and conditions of his
probation. The district court did not violate separation of powers
principles when it chose to couch its probation violation findings
in different terms than the probation officers used in their
affidavits. See id. (stating that “the authority to terminate
probation before its natural expiration has been allocated by
statute to the judicial branch”). The district court did not err at
all—let alone plainly err—by using its own verbiage, rather than
AP&P’s, to describe Defendant’s conduct.

¶20 Defendant next argues that the district court plainly erred
by revoking his probation, and claims that the evidence before
the district court was insufficient to support its findings that
Defendant violated his probation by: (1) having unauthorized
contact with his minor son and grandchildren; and (2) failing to

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complete sex offender treatment. 4 We find Defendant’s
arguments unpersuasive.

¶21 With respect to the first probation violation, Defendant
alleges that, while he did have unauthorized contact with minor
children, that contact was “innocuous at best.” Defendant
contends that he should, as a father, be allowed “to have contact
with his own son.” With respect to his minor grandchildren,
Defendant states that his unauthorized contact with them at a
family birthday party was “brief,” “incidental,” and
“unintentional,” and insists that “[t]here was no predatory
behavior like stalking or enticing a minor” during the
interaction. Even if we assume that Defendant had no predatory
sexual intent during these encounters, his assertion is irrelevant.
There is no “family exception” to the Group A conditions that
were part of the terms of Defendant’s probation, and he does not
argue otherwise. Part of those conditions is the requirement that
AP&P give permission for Defendant to have any contact with
minors, and Defendant does not claim that AP&P gave its
permission for him to live with his son or to attend the birthday
party with children present. Moreover, criminal intent need not
be proven before a probation violation can be found. Instead, a
court need only find that a probation violation was “willful,”
which “merely requires a finding that the probationer did not
make bona fide efforts to meet the conditions of his probation.”
State v. Snyder, 2015 UT App 172, ¶ 7, 355 P.3d 246 (quotation
simplified). It was reasonable for the court to make such a
finding in this case where Defendant by his own admission had

4. Defendant does not contest the court’s finding that he also
violated his probation by refusing to comply with sex offender
reporting requirements and by failing to report to AP&P.
Because we determine that the district court did not err with
respect to the two probation violations Defendant challenges, we
need not reach the question of whether Defendant’s probation
could properly have been revoked based solely on the
unchallenged probation violations.

20160821-CA 10 2018 UT App 122
 State v. Balfour

voluntary contact with his minor son without obtaining AP&P’s
permission, and did not make any documented attempt to avoid
contact with his minor grandchildren. This is especially true in
view of the evidence the court had before it that Defendant
refused to acknowledge that his victim was a minor and thus
refused to concede that the Group A conditions should apply to
him. Accordingly, the district court did not err by finding that
Defendant violated his probation by having contact with minor
children without AP&P’s permission.

¶22 Finally, Defendant alleges that the district court erred in
finding that he failed to successfully complete sex offender
therapy. Defendant does not assert, however, that he did in fact
successfully complete sex offender therapy. Nor does Defendant
cite to any evidence in the record challenging AP&P’s
representation that Defendant was unsuccessfully discharged
from therapy because he had “shown defiance and push[ed]
back” against his therapist. In the absence of any contrary
assertion from Defendant, the evidence was clearly sufficient for
the district court to determine that Defendant did not complete
sex offender therapy and that this violation was “willful.”

CONCLUSION

¶23 The district court did not err when it relied on more than
one affidavit in making its factual determinations, and it was not
without subject matter jurisdiction to modify or revoke
Defendant’s probation simply because the sentencing judge
retired. With regard to the merits of the district court’s decision
to revoke Defendant’s probation, there was sufficient evidence to
support the district court’s findings. Accordingly, we affirm the
district court’s decision to revoke Defendant’s probation.

20160821-CA 11 2018 UT App 122