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Brumme v. State

Supreme Court of Wyoming

October 16, 2018

BRENDA MARIE BRUMME, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Uinta County The Honorable Joseph B. Bluemel, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.


         [¶1] Appellant, Brenda Marie Brumme, appeals from the district court's order revoking her probation and imposing the underlying sentences for her child endangerment and controlled substance convictions. We affirm.


         [¶2] Ms. Brumme presents three issues for our review:

1. Whether the district court abused its discretion by relying solely on hearsay evidence to find Ms. Brumme violated a condition of her probation on two occasions?
2. Whether the district court abused its discretion in finding Ms. Brumme violated a probation condition by failing to submit to a scheduled urinalysis when the violation was not proven by a preponderance of the evidence?
3. Whether the district court's finding that Ms. Brumme willfully violated a probation condition requiring her to report for a urinalysis test was clearly erroneous because there was no evidence of willfulness?


         [¶3] In June 2017, Ms. Brumme entered into a plea agreement and pled guilty to two felonies: endangering children (controlled substance), a violation of Wyo. Stat. Ann. § 6-4-405(b) and (c) (Lexis Nexis 2017), and possession of a controlled substance, a violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(C) and (c)(ii) (Lexis Nexis 2017). The district court deferred entering a judgment on Ms. Brumme's child endangerment charge under Wyo. Stat. Ann. § 7-13-301 and placed her on three years of supervised probation. On the possession charge, the district court imposed a sentence of not less than two, nor more than four years, which it suspended in favor of three years of supervised probation. The court ordered the probationary periods to be served concurrently.

         [¶4] As a condition of probation, the district court noted Ms. Brumme's addiction to methamphetamine and required her participation in a treatment program. The court also mandated Ms. Brumme's compliance with the Wyoming Department of Corrections Probation and Parole Agreement, which, in relevant part, required Ms. Brumme to appear for appointments with her probation agent; report any changes to her address, phone number, and living arrangements within 24 hours; and submit to alcohol and drug screenings. The district court emphasized these requirements to Ms. Brumme during the sentencing hearing:

You'll not cancel any appointments related to supervision without the prior permission of your probation agent. Those appointments include but are not limited to office meetings, counseling appointments, doctor[']s appointments, and appointments with Job Service. And when I talk about not absconding from probation, that means that you'll sleep in the house that you tell your agent you'll sleep in.

(Emphasis added.) The court's written judgment and sentence incorporated these terms.

         [¶5] The State asked the district court to revoke Ms. Brumme's probation in September 2017, alleging three violations within two months of sentencing:

• On or about August 8, 2017, the Defendant was found to not be living at the address she provided to her Probation Agent.
• On or about August 18, 2017, the Defendant failed to attend an office visit for a urinalysis as previously scheduled.
• On or about August 21, 2017, the Defendant was found to not be living at the new address she had provided to her Probation Agent.

         The district court held an initial probation revocation proceeding on October 17, 2017. Ms. Brumme denied the allegations and the district court set an adjudicatory hearing for the following week.

         [¶6] During the adjudicatory hearing, the State called Ms. Brumme's probation officer, Agent Hatch, as its sole witness. Agent Hatch testified that when Ms. Brumme registered for probation in July 2017, she informed his office she lived with her sister, Ms. Hutcherson, and provided her sister's address and phone number as her contact information. After Ms. Brumme missed a scheduled appointment on August 8, 2017, Agent Hatch attempted to locate Ms. Brumme at her sister's home. Ms. Brumme was not at the residence when Agent Hatch arrived. Over a hearsay objection overruled by the district court, Agent Hatch testified "Ms. Hutcherson told me that since she was a foster parent, that M[s]. Brumme was never allowed to live there [nor] did she ever live there." Ms. Brumme called Agent Hatch later that day. Agent Hatch informed her of his visit to her sister's house and inquired about her living situation. Ms. Brumme provided an updated address and stated she lived with her cousin on Grass Valley. Agent Hatch rescheduled Ms. Brumme's appointment for August 17, 2017.

         [¶7] Ms. Brumme appeared for her appointment in Evanston on August 17, 2017, but the urinalysis could not be performed because a female probation officer was not available. Agent Hatch verbally instructed Ms. Brumme to report back at 8:00 a.m. the next morning. Agent Hatch confirmed he attempted to contact Ms. Brumme after she failed to report back as directed by going to the Grass Valley address she previously provided. Ms. Brumme was not at the residence when he arrived. Over another hearsay objection, Agent Hatch testified that Ms. Brumme's cousin stated Ms. Brumme did not live at that address. The district court overruled the objection, finding the testimony was probative, trustworthy, and credible and, thus, admissible.

         [¶8] Defense counsel called Adam Rhodes, Ms. Brumme's significant other, as her sole witness. Mr. Rhodes testified that on August 18, 2017, he went to work and took the "only car [they] had." He also testified that Ms. Brumme was "really mad" at him for leaving her without a vehicle that day.

         [¶9] Defense counsel argued in closing that the State failed to establish the terms of probation purportedly violated and, in any event, the State's evidence did not support revocation because it was based solely on hearsay. Defense counsel further argued Ms. Brumme missed her scheduled urinalysis because she lacked transportation. The district court took judicial notice of Ms. Brumme's probation conditions and determined Ms. Brumme violated her probation as to each of the State's allegations.

         [¶10] After hearing from counsel and Ms. Brumme at the disposition hearing, the district court remarked it provided Ms. Brumme "three bites out of the apple" and yet she still refused to take responsibility for her underlying criminal actions and she had not enrolled in, much less successfully completed, the requisite treatment course for her substance abuse issues as previously ordered. The court also noted Ms. Brumme failed to take responsibility for misleading her probation agent about her living arrangements, instead blaming her failure to provide accurate addresses on her family members. The district court revoked its prior order deferring judgment on Ms. Brumme's child endangerment charge and revoked probation on the ...

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