State v. Amburgey

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

Brian Amburgey, Appellant.

Appeal From Spartanburg County

 Gordon G. Cooper, Circuit Court Judge

Unpublished Opinion No.  2010-UP-496

Submitted November 1, 2010 – Filed
November 8, 2010

REVERSED

Chief Appellate Defender Robert M. Dudek, of Columbia, for
Appellant.

J. Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM: 
Brian Amburgey appeals the revocation of thirty days of his probationary
sentence, arguing the circuit court erred in finding he had impermissible
contact with a child under the age of eighteen.  We reverse[1] because the evidence adduced at the hearing does not support a
finding that Amburgey violated a condition of his probation. 

"This
court will not disturb the circuit court's decision to revoke probation unless
the decision was influenced by an error of law, was without evidentiary
support, or constituted an abuse of discretion."  State v. Archie, 322
S.C. 135, 136-37, 470 S.E.2d 380, 381 (Ct. App. 1996).  In a probation
revocation matter, the circuit court may abuse its discretion by entering an
arbitrary judgment, allowing its decision to be controlled by an error of law,
or failing to consider the particular circumstances of the case and whether the
evidence supports its decision.  State v. White, 218 S.C. 130, 135-37,
61 S.E.2d 754, 756-59 (1950).  Appellate courts are bound by the circuit
court's factual findings unless the findings are clearly erroneous.  State
v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). 

Amburgey's
probation was conditioned upon his "not hav[ing] contact with a person
under the age of 18" who was not a male blood-relative.  This condition specifically
addressed incidental contact: "If I have incidental contact with any
child, I will be civil and courteous and immediately remove myself from the
situation.  I will discuss the contact at my next treatment session and will
immediately report this contact to my agent."  The record supports
Amburgey's contention that he was unaware the child was in his home and
therefore was unable to exercise control over his proximity to the child.  The
child's mother testified her visit with her sister lasted approximately ten
minutes.  Both the child's mother and the probation agent testified Amburgey
entered the room where the child stood only after the probation agent arrived. 
Until that time, the child's mother stated, Amburgey remained in his bedroom,
and she and her child remained in the living room.  Accordingly, we find no
evidence supports the circuit court's finding that Amburgey violated the terms
of his probation.  No evidence indicates Amburgey invited the child or his
mother to his residence or even knew they were coming.  No evidence indicated
Amburgey's girlfriend was aware her sister and the child would come to the home. 
No evidence indicated the child's mother was aware of Amburgey's restriction
before his probation agent informed her.  Furthermore, the child's presence in
Amburgey's residence was "really the only violation" the probation
agent found.  Consequently, we find the circuit court erred in revoking thirty
days of Amburgey's probation. 

REVERSED.

HUFF,
KONDUROS, and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.