District Court, West Jordan Department The Honorable Bruce C.
Lubeck No. 141401370
Nathalie S. Skibine and Daniel M. Torrence, Attorneys for
D. Reyes and William M. Hains, Attorneys for Appellee
Judges Michele M. Christiansen, Kate A. Toomey, and Jill M.
Vratislav Roger Bilek appeals the district court's order
revoking his probation and imposing the suspended sentence of
one to fifteen years in prison on his conviction of
kidnapping, a second degree felony. We affirm.
This court reviews a district court's decision to revoke
probation for an abuse of discretion. See State v.
Legg, 2014 UT App 80, ¶ 7, 324 P.3d 656. "[W]e
view the evidence of a probation violation in a light most
favorable to the trial court's findings and substitute
our own judgment only if the evidence is so deficient as to
render the court's action an abuse of discretion."
State v. Maestas, 2000 UT App 22, ¶ 12, 997
P.2d 314. "To revoke probation, the trial court must
find a violation of the probation agreement by a
preponderance of the evidence." Legg, 2014 UT
App 80, ¶ 10. The trial court must also find by a
preponderance of the evidence that the violation was willful
and was not the result of circumstances beyond the
probationer's control. Id. "[A] single
violation of probation is legally sufficient to support a
probation revocation." Id. ¶ 11.
Bilek was charged with aggravated kidnapping, assault, and
drug-related charges in two separate cases based upon two
incidents in which he allegedly lured women to his apartment,
detained them for several days, and assaulted them. As the
result of a plea bargain, Bilek pleaded no contest to a
single second degree felony kidnapping charge. The district
court sentenced Bilek to the statutory prison term of one to
fifteen years, suspended the prison term, and placed Bilek on
sixty months of probation to be supervised by Adult Probation
and Parole (AP&P). In addition to the standard and
ordinary terms of probation, the district court imposed
special conditions, including: "Not to possess or
consume alcohol or non-prescribed controlled substances"
and "No female overnight stays during probation without
approval of Adult Probation and Parole."
About forty days after Bilek was placed on probation,
Bilek's probation supervisor and another AP&P agent
did a field visit to the extended stay hotel where Bilek was
living. The agents observed a female, E.C., sitting on a bed
in the room. E.C. stated that she was in the room because
Bilek had bailed her out of jail. Although E.C. told the
agents that she was only there for the day and that she lived
with her mother in Utah County, E.C.'s mother did not
corroborate that account. E.C. then admitted to the agents
that she had stayed overnight with Bilek. The agents placed
Bilek under arrest for violating conditions of his probation.
In a search of the room incident to the arrest, the agents
found what appeared to be heroin and methamphetamine, along
with drug paraphernalia. Bilek consented to a search of his
phone, which contained numerous photos and videos of E.C.,
showing her unconscious or incoherent, clothed and naked, and
lying naked on top of Bilek, who was also naked, with her
face near his penis.
The original probation violation report prepared by AP&P
listed three probation violations, alleging that Bilek had
violated a special condition of his probation by having a
female stay overnight in his room, as well as violating
standard conditions of his probation by possessing heroin and
methamphetamine. An amended probation violation report was
prepared after the filing of new criminal charges against
Bilek. The amended report alleged five additional violations:
forcible sexual abuse; distributing, offering, or arranging
for the distribution of a controlled substance; two acts of
voyeurism by electronic equipment concealed or disguised; and
possession of drug paraphernalia. The district court held an
evidentiary hearing on the order to show cause why probation
should not be revoked in conjunction with the preliminary
hearing on the criminal charges.
At the evidentiary hearing, the AP&P agents testified
about the field visit, their communication with E.C., and the
discovery of drugs and drug paraphernalia in the hotel room.
Subsequent testing of the substances collected from the hotel
room indicated that those substances were heroin and
methamphetamine. Bilek's probation supervisor testified
that Bilek had signed a probation agreement that included
both the standard and special probation conditions.
E.C. testified that on previous occasions she had performed
sexual services for Bilek in exchange for money. At around
9:00 or 10:00 p.m. on January 30, 2016, Bilek bailed E.C. out
of the Utah County Jail and drove her back to Salt Lake City
to the hotel where he was staying. They stayed for a few
minutes to allow E.C. to shoot up methamphetamine that Bilek
had provided, after which they went to a homeless shelter
area to purchase illegal drugs. E.C. testified that she
assisted Bilek in the purchase of heroin and crack cocaine by
telling him who to buy it from. They returned to the hotel
where E.C. used heroin and cocaine. Bilek assisted her by
providing syringes. E.C. also saw Bilek shoot up
methamphetamine that he already had in his possession. E.C.
testified that the methamphetamine Bilek provided to her made
her feel sick and that heroin makes her fall asleep. She
testified that she woke up naked lying on Bilek, who also was
naked. She did not know how her clothing came off. She was
not aware that Bilek had taken photographs and videos of her.
E.C. testified that she spent a total of three days in the
hotel room with Bilek, including staying overnight.
At the end of the hearing, the district court found by a
preponderance of the evidence that each of the allegations of
the amended probation violation report and order to show
cause were established and that the violations were willful
and knowing. Defense counsel requested that Bilek be given
another chance at probation and also argued that all of the
activity with E.C. was consensual. The State requested that
probation be revoked and the original prison sentence be
imposed, noting similarities between the facts underlying the
earlier charges and the new charges. Bilek addressed the
court, claiming that the special probation conditions with
which he disagreed- including the condition regarding no
overnight visits by females-were dropped at the time of
sentencing and therefore should be waived. The district court
concluded that Bilek had agreed to the probation conditions,
including the prohibition about overnight visits by females.
The district court found that, even without the condition
prohibiting overnight visits by females, it was a standard
condition that Bilek not commit any new violations of the
law. After finding that Bilek posed a danger to the public,
the court revoked and terminated probation and ordered Bilek
to serve one to fifteen years in prison.
Bilek challenges only the district court's findings
related to the new charges of voyeurism by electronic
equipment concealed or disguised in violation of Utah Code
section 76-9-702.7. Specifically, Bilek argues that although
he took photographs and videos of E.C. while she was
unconscious, the statute requires that the equipment be
"concealed or disguised, " while the photographs
and videos in this case "were taken openly from a cell
phone." Bilek argues that the district court erred when
it found that the device was ...