Marks v. State

The defendant's posting of statements about his ex-wife on the internet did not constitute contact with her because the evidence did not suggest that he authored the web postings in order to get in touch with or communicate with his ex-wife.

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On November 30, 2009, Otis Marks pled guilty to two counts of aggravated stalking. The trial court sentenced Marks to a term of five years, with a one-year term of confinement reduced to time served, and the remainder to be served on probation. Several conditions were placed on Marks’ probationary sentence, including that he have “no contact” with the victim. On April 16, 2010, the trial court found that Marks had violated several of the conditions, and it revoked two years of the probationary sentence. We granted Marks’ application for discretionary review; and because insufficient evidence supported the revocation of Marks’ probation, we reverse. A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.1 This court will not interfere with a probation revocation unless a trial court has manifestly abused its discretion.2

Viewed in the light most favorable to upholding the trial court’s findings,3 the record shows that Marks’ probationary sentence included conditions that, among other things, he i have “no contact” with his ex-wife, who was his stalking victim, ii “enter into and successfully complete” a domestic violence intervention program, and iii “perform a minimum of 96 hours, and up to a maximum of 132 hours, of community service as directed by the probation staff.” The requirements related to the domestic violence intervention program and community service work were to be performed during a one-year period during which Marks was assigned to “Intensive Probation Supervision.”

Marks v. State

The defendant's posting of statements about his ex-wife on the internet did not constitute contact with her because the evidence did not suggest that he authored the web postings in order to get in touch with or communicate with his ex-wife.

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