Florida Case Law

CONHAGEN v. STATE, 2D06-686 (Fla.App. 2 Dist. 11-17-2006)
DONALD CONHAGEN, Appellant, v. STATE OF FLORIDA, Appellee.
Case No. 2D06-686. District Court of Appeal of Florida,
Second District. Opinion filed November 17, 2006.

Appeal from the Circuit Court for Collier County, Cynthia
A. Ellis, Judge.

Stephen M. Grogoza, Naples, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and
Susan D. Dunlevy, Assistant Attorney General, Tampa, for
Appellee.

CHARLES E. ROBERTS, Associate Judge.

Donald Conhagen appeals an order revoking his sex offender
probation and sentencing him to nine years and eleven
months’ prison. Because the State failed to prove that
Conhagen willfully and substantially violated a condition
of his probation, we reverse and remand with instructions
to reinstate his probation.

The State charged Conhagen with violating condition
twenty-eight of his probation, which reads as follows:

Until successful completion of a sex offender treatment
program, you will not have any unsupervised contact with a
child under the age of eighteen unless authorized by the
sentencing Court without another adult present who is
responsible for the child’s welfare, and has been advised
of the crime and is approved by the sentencing Court.

The evidence presented at the violation of probation
hearing included the following: Conhagen is a pilot and an
aircraft owner. He kept his airplane at the Naples airport.
European American Aviation (EAA) is a tenant of the airport
and had advertised an “open house” event to be held at the
Naples airport on December 3, 2005. EAA is a supplier of
avionics and other aircraft equipment and a provider of
flight instruction.

Bruce Bottelaum, EEA’s chief flight instructor, described
the purpose of the open house:

This was a presentation on new avionics equipment, and we
were going to be — we had already taken delivery of
an airplane with that sort of equipment. This open day was
kind of an introduction to existing customers and to new
customers, marketing basically, to advertise the fact that
we would have two of these airplanes available for rental
and training.

The event was scheduled to take place from 11:00 a.m.
until 2:00 p.m., with most of the time devoted to various
seminars. The program included a seminar about new
equipment and an afternoon seminar to explain the tax
advantages of airplane ownership and leaseback.
Approximately twenty minutes were available for a lunch
break. EAA provided lunch for the attendees and set up
several picnic tables in the parking lot which could be used
by the attendees to eat lunch. EAA also set up an
inflatable “bounce house” to entertain any children who
might accompany their parents to the open house, although
it is clear from the record that the event was not for the
benefit of children. EAA posted a sign warning that parents
must supervise their children’s use of the bounce house.
Further, children were not allowed to wander about the
airport without parental supervision. The bounce house was
set up in one of the parking spaces adjacent to the picnic
tables.

Although the open house was publicly advertised, EAA also
sent invitation cards to licensed pilots and other persons
known to be interested in aviation. Conhagen received an
invitation card and advised his probation officer that he
was going to attend the airport open house. Conhagen had no
reason to anticipate the presence of children at this
event. He did attend, and during the lunch break he joined
other attendees at the picnic tables to eat the lunch
provided by EAA.

When Vicki Martinez, the office manager for EAA, was told
that Conhagen, a registered sex offender, would be
attending the event, she contacted Deputy Parker to ask
what she should do. Parker advised her that if Conhagen was
there and “noticed the children and didn’t leave,” that
Martinez should contact him.

When Martinez observed Conhagen seated at one of the
picnic tables, she called Deputy Parker. When Parker
arrived, he observed Conhagen seated with a group of adults
at one of the tables and caused photographs to be taken of
Conhagen. The photographs show a group of adults, including
Conhagen, sitting at a picnic table four parking spaces
from the bounce house. Conhagen did not leave the table and
did not make any contact with a child. Following lunch,
Conhagen returned to the seminars. Several days later,
Conhagen was arrested on a warrant charging him with
violating probation condition twenty-eight.

The trial court may revoke probation only if the State
proves by the greater weight of the evidence that the
defendant willfully and substantially violated a specific
condition of the probation. Hicks v. State, 890 So. 2d 459
(Fla. 2d DCA 2004). Here, the State failed to meet its
evidentiary burden.

The State charged Conhagen with violating condition
twenty-eight by alleging that he had unsupervised contact
with children. However, none of the evidence, including
the photographs, supports the allegation of contact,
whether supervised or not. The revocation order is reversed
and the case is remanded with instructions to reinstate
Conhagen’s probation.

Reversed and remanded with instructions.

KELLY and WALLACE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.