State v. Dinapoli, 350 P.3d 1259

Background

Defendant Robert Dinapoli is a convicted sex offender released to probation with a Sex Offender Supervision Behavioral Contract (signed Dec. 2, 2011) that prohibited possession of “any sexually oriented or sexually stimulating material,” including DVDs.
Defendant previously had a probation revocation in Feb. 2012 based on accessing websites on his cell phone depicting rapists and rape victims; probation was reinstated with an added condition barring internet access via cell phone.
On July 30, 2012, probation officers found three R-rated, theatrically released DVDs in Defendant’s bedroom: I Spit On Your Grave (2010), The Girl With the Dragon Tattoo (2009 Swedish), and The Girl With the Dragon Tattoo (2011 American).
At the revocation hearing the State played selected scenes (about twelve from I Spit On Your Grave and scenes from both versions of Dragon Tattoo) and presented DVD-cover descriptions warning of rape, torture, strong sexuality, and graphic nudity; Defendant testified he watched for revenge themes and denied sexual gratification.
The district court revoked probation, committing Defendant to five years’ imprisonment plus a new five-year probation term; the Court of Appeals affirmed revocation but remanded to credit Defendant for probation days served.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Defendant had sufficient notice that possessing mainstream R-rated DVDs violated Section 6(A) of the sex-offender contract	Sex offender contract language and circumstances of the Feb. 2012 violation put Defendant on notice that sexually oriented DVDs were prohibited	Defendant argued Section 6(A) reasonably meant only "pornographic" or adult material and he lacked notice that mainstream R-rated films were covered	Held: Sufficient notice — contract language ("sexually oriented or sexually stimulating material, including DVDs") plus Feb. violation made it reasonable to view the DVDs as prohibited
Whether Section 6(A) is unconstitutionally vague/overbroad or violates First Amendment rights	Probation condition is a permissible, rehabilitative restriction tailored to prevent reoffense	Defendant contended contract is vague, overbroad, and infringes First Amendment by banning non-pornographic mainstream films	Held: Not unconstitutionally vague or overbroad; condition is a reasonable probation restriction serving public safety and rehabilitation
Whether the district court erred by admitting only portions of the DVDs and not viewing them in their entirety	State played selected scenes and described other content sufficient to show sexually oriented material that undermines rehabilitation	Defendant argued due process required viewing the DVDs "taken as a whole" (citing obscenity-style review) to assess whether material is "sexually oriented"	Held: No abuse of discretion or due process violation — court could rely on played scenes, cover descriptions, and testimony to find portions were sexually oriented and relevant to probation objectives
Whether Defendant is entitled to credit for time served on probation when resentencing	State agreed Defendant should receive credit (disputed one-day difference)	Defendant sought credit for 298 days (State suggested 299)	Held: Defendant entitled to credit; remand for district court to modify order and recalculate remaining sentence and credit time served

Key Cases Cited

State v. Myers, 146 N.M. 128, 207 P.3d 1105 (N.M. 2009) (definition of "sexually explicit exhibition" as a graphic, unequivocal display of nudity or sexual activity)
State v. Lopez, 141 N.M. 293, 154 P.3d 668 (N.M. 2007) (probation’s rehabilitative purpose and district court authority to revoke when rehabilitation not occurring)
State v. Baca, 136 N.M. 667, 104 P.3d 533 (N.M. Ct. App. 2005) (probationers are entitled to credit for time served on probation when sentence is activated)
State v. Garcia, 137 N.M. 583, 113 P.3d 406 (N.M. Ct. App. 2005) (probation conditions are reasonably related to rehabilitation and prevention of future offenses)
State v. Nick R., 147 N.M. 182, 218 P.3d 868 (N.M. 2009) (applying ejusdem generis in statutory/contract construction)
Miller v. California, 413 U.S. 15 (U.S. 1973) (obscenity test and the requirement to assess material "taken as a whole")
State v. Leon, 292 P.3d 493 (N.M. Ct. App. 2013) (probation conditions may lawfully limit freedoms to serve public safety and rehabilitation)