State v. Webb

CLIFFORD, Justice.

Randy Webb appeals from the judgment of the Superior Court (Cumberland County, Cole, J.) revoking his probation and imposing the entire suspended portion of his underlying sentence. Webb contends that the court erred in finding that his failure to obtain sex abuser counseling was inexcusable and thus a violation of a condition of probation. Finding no error, we affirm the judgment.

In June 1994, Webb entered a plea of guilty to one count of unlawful sexual contact, 17-A M.R.S.A. § 255(1X0 (Supp.1995).1 The court sentenced Webb to four years’ incarceration, all but nine months suspended, and placed Webb on probation for three years. As a condition of his probation, Webb was to “undergo sex abuser counseling/treatment to the satisfaction of the probation officer.” Webb was to contribute to the cost of counseling based on his financial ability as determined by the probation officer. Webb raised no objection to the conditions of probation and did not appeal from those conditions.

When his probationary period commenced, Webb had an initial psychotherapeutic session with a licensed sex abuse counselor. Based on Webb’s assertion of his innocence of any sex crime, the counselor determined that any future sex abuser counseling or treatment would be fruitless and a waste of time and money. Webb thereafter went to one session with a substance abuse counselor, but discontinued treatment after learning that the counselor was not licensed as a sex abuse counselor.

*1346At the hearing on the State’s motion to revoke Webb’s probation for failure to comply with the sex abuse counseling and treatment condition, Webb testified that although he pleaded guilty to the sex offense, he did so only because he feared going to trial and that he is, in fact, innocent of that conduct. He further testified that he could benefit from sex abuse counseling, and that he would seek a new counselor once he found a job. He asked for an additional month to find a job.

The court denied Webb’s request for more time to find a job and concluded that Webb violated his probation. The court found that Webb’s failure to obtain the required counseling was not due to his finances, but resulted from his attitude and mind set; his refusal to accept responsibility for the criminal act. After making the finding, the court indicated that it would revoke part of the suspended sentence, with Webb to serve eighteen months and then be placed on probation again on his release. Webb rejected that option, however, and requested that the court revoke his probation in full. The court did so and sentenced Webb to three years and three months, the entire remaining portion of his underlying sentence.2

The court may revoke the probation if, inter alia, it finds by a preponderance of the evidence that the defendant has “inexcusably failed to comply with a condition of probation.” State v. Scott, 637 A.2d 1159, 1161 (Me.1994) (citation omitted). We will uphold the court’s finding of an inexcusable violation unless that finding is clearly erroneous. Id.

Webb contends that the court’s finding that his failure to obtain counseling was inexcusable is error. He argues that his inability to afford the counseling excused his failure to comply with the condition. He points out that the State lacked the resources to provide counseling, and that in any event, it was the counselor, and not he, who ended the counseling sessions. We are unpersuaded by Webb’s contentions.

The court’s conclusion that Webb inexcusably failed to comply with the condition of probation is based on the fact that Webb was in denial and “had not made a good faith effort to engage in counseling.”3 Further, the court determined that it was Webb’s denial and mind set that caused the counselor to conclude that further treatment was fruitless. Although Webb’s testimony would support a contrary conclusion, “[i]t is for the fact finder to decide the credence to be given the various witnesses and their testimony.” State v. Reardon, 486 A.2d 112, 117 (Me.1984); see also Hammond v. Gaboury, 609 A.2d 1180, 1181 (Me.1992) (due regard given to trial court’s opportunity to judge the credibility of witnesses and weigh the evidence).

Although the court made no explicit finding that Webb had the financial ability to cover the entire cost of the required counseling, such a finding was not essential to the court’s determination. Rather, the court made clear that it was Webb’s attitude that was the reason that the condition was violated. That finding is not clearly erroneous.

The entry is;

Judgment affirmed.

WATHEN, C.J., and ROBERTS, CLASSMAN, RUDMAN, and LIPEZ, JJ., concurring.

. 17-A M.R.S.A. § 255(1)(C) provides in pertinent part:

1. A person is guilty of unlawful sexual contact if the person intentionally subjects another person to any sexual contact, and:
C. The other person, not the actor’s spouse, has not in fact attained the age of 14 years and the actor is at least 3 years older; ...

. Webb’s challenge is to the finding that he violated the sex abuse counseling condition of his probation. He does not challenge the court’s decision to revoke the entire probationary period.

. In response to Webb’s contention that he was willing to undergo counseling but could not afford it, the court stated:

I don’t hear that there’s a problem with him going to counseling sessions. I hear that the problem is that he is not cooperating with counseling. I mean, that's what is suggested to me. It's not a financial thing, it's his commitment to accept responsibility for his criminal acts and to be involved in good faith counseling, and denial is not being involved in good faith counseling. That’s what I hear his probation officer telling me.

Following Webb's testimony, the court stated:

“[Ht's a red herring to suggest that this is a financial problem and not a mind set of the defendant.”