STATE OF OREGON, Plaintiff-Respondent, v. DENNIS VERNE DOWTY, Defendant-Appellant.
Tillamook County Circuit Court 15CR32852; A163462
STATE OF OREGON
October 9, 2019
299 Or App 762 | 452 P3d 983
Argued and submitted December 5, 2017
Defendant appeals a judgment revoking his probation, asserting that the trial court erred in (1) denying his motion to suppress statements that he made to his probation officer on the basis that the exclusionary rule of Article I, section 12, of the Oregon Constitution does not apply in a probation-revocation hearing, and (2) revoking his probation based on his earlier stipulation to revocation upon his first nonfinancial violation of probation, rather than as an exercise of the court‘s discretion. Held: (1) The trial court‘s error, if any, in admitting defendant‘s statements did not prejudice defendant and therefore did not provide a basis for reversal. (2) Defendant failed to preserve his second assignment of error.
Affirmed.
Jonathan R. Hill, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
DEHOOG, P. J.
Affirmed.
DEHOOG, P. J.
In
Defendant first contends that the trial court erred when, reasoning that the exclusionary rule of
We first set out the historical facts, which are undisputed. We then discuss the evidence presented at the suppression and probation-revocation hearings. Because our resolution of the case ultimately turns on whether any error with respect to the admission of defendant‘s statements was prejudicial to him, our consideration of the record necessarily includes all pertinent portions. Cf. State v. Harding, 221 Or App 294, 302, 189 P3d 1259 (2008), rev den, 345 Or 503 (2008) (in assessing whether an evidentiary error is harmless, we “describe and review all pertinent portions of the record, not just those portions most favorable to the state“).
In November 2015, defendant entered a negotiated guilty plea and was convicted of second-degree sexual abuse,
In October 2016, defendant‘s probation officer, Seaholm, reported that defendant was in violation of General Condition 11 and the special condition regarding sex offender treatment. As Seaholm explained in a written report, she had learned of defendant‘s violations after meeting with him at her office. Seaholm had directed defendant to report to her office due to her concern that he had been attempting to contact the victim of his underlying crime in violation of his probation. When defendant reported to Seaholm‘s office as instructed, she asked him whether he had contacted the victim. Defendant denied having attempted to contact the victim directly or indirectly. Seaholm asked to see defendant‘s cellphone, but defendant said that it was at home. She then asked for his Facebook user name and password so that she could access his account on her office computer to confirm that he had not posted messages for the victim online. Defendant complied with that request. As Seaholm was logging on to defendant‘s Facebook account, she asked him whether she would find evidence of any probation violations; he indicated that she would not. However, when Seaholm opened his account, she
“immediately was faced with pictures of penises and female genitalia. There were two on-going conversations between [defendant] and two other women. These conversations had numerous, nude, sexual pictures that were sent back and forth between [defendant] and the other women. In addition, there were other images depicting masturbation and sexual poses that had been downloaded from the internet and sent on these messages.”
Further, according to Seaholm,
“[d]efendant admitted to sexting with four women; some dating back 6 months.
“One of the pictures was of high concern because it showed sexual content (anal penetration) similar to that described in the original police report for the crime that [defendant] is currently being supervised. This picture appeared to be downloaded from the internet.”
Seaholm eventually obtained defendant‘s phone from a companion waiting in the lobby,2 and defendant allowed Seaholm and a detective who was present to search it. According to Seaholm, the phone contained pictures of children (including a photo of defendant‘s minor son and “another boy about the same age“), as well as videos of sexual conduct—“females touching genitalia.” Seaholm contacted Dr. Cook, defendant‘s sex offender treatment provider, who confirmed that defendant‘s conduct placed him in violation of his treatment rules.3 (As Seaholm later testified at the probation-revocation hearing, Cook followed up with a written violation report, which included a copy of defendant‘s treatment rules; we discuss that report in some detail below.)
At Seaholm‘s request, defendant wrote and signed a statement in which he admitted to sexting—exchanging sexually explicit “selfies” by cellphone—with four different women, two of them for as long as six months. He indicated his awareness that his conduct violated the terms of his probation and that he had not been truthful with Seaholm, writing, “I lied [t]hinking I would never get caught. Thinking I could do what I want to.”
Based on Seaholm‘s report and defendant‘s written admissions, the state filed a motion requesting that the court schedule a show cause/probation-violation hearing and alleging that defendant had violated General Condition 11 and the special condition regarding sex offender treatment. The court granted the state‘s request.
Before the scheduled hearing, defendant filed a motion to suppress “all statements made by [defendant] to his Probation Officer.” He argued that the statements he made to Seaholm—including his written admissions—were involuntary because he had been
At the hearing, Seaholm testified to the facts described above, and the parties largely relied on the legal arguments that they had made in their written submissions.5 The trial court denied defendant‘s motion to suppress, concluding that, although he had made the statements to Seaholm under “compelling circumstances” and they would be inadmissible in a new criminal case, neither the state nor
the federal constitution affected “the admissibility of [the challenged] statements in the probation violation proceeding.”
The court then proceeded to hear the merits of the alleged probation violations. Defendant stipulated to Seaholm‘s testimony from the suppression hearing, and Seaholm further testified as to the basis for the state‘s allegations. Seaholm explained that the first violation was based on defendant‘s statements to her that his cellphone was at home and that a review of his Facebook account would not reveal any violations of his sex offender treatment rules; the second violation was based on Cook‘s report. Seaholm‘s violation report and defendant‘s written admissions were admitted into evidence, as was a DVD containing screen shots taken by Seaholm of images that she had found on defendant‘s Facebook account.
Cook also testified at the hearing, and the state entered a copy of his treatment violation report into evidence. Cook‘s report included a copy of defendant‘s treatment rules, which defendant had signed in January 2016. Cook testified that the rules all applied to defendant, that he had gone over all of them with defendant, and that defendant had initialed each rule as he read through them. Cook‘s report stated that defendant had violated Group Rule (GR) 1 (“Group members must openly discuss and report any past and present deviant behaviors.“); GR 5 (“Group members are not to engage in any type of sexual contact6 with another unless involved in an ongoing relationship with that other that has been approved.“); GR 18 (“Group members may not possess, own or use pornographic literature, movies or videos and must avoid all adult entertainment businesses.”7); and GR 26 (“Photos or objects of (or belonging to) minors, victims, or target range victims is prohibited.“). In his testimony, Cook also stated that possession of a smartphone that has internet access violates GR 20 (“Group members may not own, possess or operate hard drives, discs or computers.“).
In response to questioning, Cook testified that sexting is considered deviant behavior and thus violates GR 1. He also testified that possession of nude photos, photos of male and female genitalia, and photos of anal penetration qualifies as possession of pornographic literature and therefore violates GR 18. As to GR 26, he testified that, given defendant‘s prior convictions, he was not allowed to have pictures of minors or adult females. Cook acknowledged that he had not viewed “any of the photos in question here.”
In closing, the state argued that defendant‘s statements to Seaholm, that he had left his phone at home and that she would
Defendant, in his closing, addressed each alleged violation in turn. Defendant first argued that his statement to Seaholm regarding his phone could not be a basis for a violation of General Condition 11 because it was “in response to a [request for] consent to search, not an inquiry.” As to the second violation, defendant raised various challenges to the state‘s interpretation of the treatment rules, contending that his conduct did not constitute a violation of those rules “as written.”8 He also argued that GR 20 and 26 were overbroad—GR 20 because “[e]very single thing that *** we use on a daily basis has hard drives,” and there was “no
evidence regarding the phone, what type of phone, whether or not it contained a hard drive,” and GR 26 because it would prohibit him from “having photographs of [virtually] any person living.” Defendant did not deny that the cellphone and Facebook account were his or that he had engaged in the alleged conduct. Defendant did, however, point out that Cook “never actually saw any of the pictures, photographs, any of the things that are at question here.”
At the conclusion of the hearing, the trial court concluded that defendant was in violation of both General Condition 11 and the special probation condition related to sex offender treatment. As to the latter, the court found that defendant failed to comply with the rules of his treatment program—specifically, GR 1, 5, 18, and 20—as required by that condition.9 The court explained:
“The smart—the internet access with smartphone, Dr. Cook testified that in and of itself would be a violation of group rules. So, based on that alone, he would be in violation of the second allegation.
“Additionally, there‘s very graphic photographs involving sex, anal sex, human genitalia, breasts, all of which Dr. Cook described why that would violate Group Rules 1, 5, and 18. And so we‘d find based on his testimony and what‘s in State‘s 4 that it would violate Group [Rules] 1, 5, and 18.”
(Emphases added.)
Regarding disposition, the state recommended revocation and 60 months’ incarceration based on defendant‘s zero-tolerance stipulation.10 Defendant, on the other hand, urged the court to continue probation, arguing that allowing defendant to remain on supervision would be beneficial to everyone: “[I]t would probably be better off for everyone if [defendant] continued into his treatment, continued on probation, continued being supervised and monitored and continued going through the steps required to help deal
with some of these underlying issues.” Defense counsel noted that defendant had been “very straightforward with his probation officer,” and that he had been compliant
After confirming that defendant had in fact agreed to the zero-tolerance stipulation, the trial court ruled:
“Well, sir, the way—so, on your judgment, it says:
“‘Defendant stipulates to revocation for the first non-financial proven probation violation with a 75-month DOC sentence with no AIP.’
“The reason I always inquire with the person for that is because they‘re agreeing if there‘s a proven probation violation that‘s not financial, they‘re agreeing to revocation. It pretty much—well, not pretty much, it ties the court‘s hands because there‘s already been agreement to that.
“So, I need to follow that.”
Believing that it could not legally impose a 75-month sentence, see 299 Or App at 769 n 10, the court revoked defendant‘s probation and sentenced him to “48 months in prison with good time, credit for time served, but no AIP, with the balance of the 60 months on post-prison.”
Defendant appeals, raising the two assignments of error noted above. For reasons that will become apparent, we consider them in reverse order, first considering defendant‘s second assignment of error: that the trial court erred in revoking defendant‘s probation based on his zero-tolerance stipulation.
We review a trial court‘s decision to revoke probation for abuse of discretion, unless an assignment of error raises a question of law, in which case we review that question for legal error. State v. Hammond, 218 Or App 574, 577, 180 P3d 137 (2008). “If the trial court‘s decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion.” State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000).
Defendant argues on appeal that the trial court here abused its discretion because it failed to exercise that discretion, relying instead on defendant‘s zero-tolerance stipulation as the basis for its revocation decision. Referencing Barker v. Ireland, 238 Or 1, 4, 392 P2d 769 (1964) (“Probation is not a matter of right, but a matter of discretion.“), and
The state responds that defendant did not preserve that legal argument for our review. We agree and, for that reason, do not consider it. See
We return to defendant‘s first assignment of error. As noted, in that assignment, he asserts that the trial court erred in denying his motion to suppress the statements he made to Seaholm, which raises the significant and as-yet-unresolved question whether evidence obtained in violation of
We have often recognized that, notwithstanding trial court error, we may not reverse a judgment if the error was harmless.
Thus, the analysis that
Specifically, notwithstanding trial court error, we will affirm a judgment revoking probation if we can determine that the defendant was not prejudiced by that error. State v. Johnson, 13 Or App 79, 508 P2d 840 (1973); see also
In the years since Johnson, we have often based our decision whether to reverse a judgment revoking probation on whether an error in the course of the revocation proceedings may have been “prejudicial,” as opposed to whether the error was “harmless” under constitutional standards.13 For example, in State v. Milnes, 256 Or App 701, 711, 301 P3d 966 (2013), we noted that the defendant‘s erroneous conviction for felon in possession of a firearm “also formed the basis, in part, for the court‘s revocation of defendant‘s probation,” and
that the trial court had “not indicate[d] whether it would have revoked defendant‘s probation or imposed the same sentence in the absence of that conviction.” Accordingly, we reversed the probation revocation judgment and remanded to the trial court for reconsideration in light of the reversal of the defendant‘s conviction. Id. (citing in support for that disposition, State v. McMilian, 191 Or App 62, 69, 80 P3d 538 (2003), rev den, 337 Or 248 (2004)).
Similarly, in State v. Rivera-Waddle, 279 Or App 274, 280-81, 379 P3d 820 (2016), we reversed a judgment revoking probation and remanded to the trial court for reconsideration. That was because, although the court had erroneously found the defendant in violation of probation on an improper ground, there remained four other potentially valid bases for revocation. Id. (citing State v. Mast, 109 Or App 485, 486, 819 P2d 1392 (1991) (reversing and remanding for reconsideration because it was “unclear” whether trial court had relied on an improper basis for revoking probation)). Given those precedents, it is apparent to us that, to determine the proper disposition of defendant‘s appeal in light of his assertion that the trial court erred in admitting his statements, we must evaluate whether any such error could have prejudiced defendant in his probation case.
Ultimately, however, there appears to be little distinction between an assessment whether a trial court error was “prejudicial” to a probationer and an assessment of
Defendant contends that the erroneous admission of the evidence here was reversible error “because defendant‘s statements were necessary for [the first violation] and the trial court did not say whether it would have revoked probation without that violation.” (Boldface omitted.) We readily acknowledge that the admission of defendant‘s statements to Seaholm would have been prejudicial with respect to the court‘s finding of the first violation—defendant‘s failure to truthfully answer Seaholm‘s questions. Indeed, that violation was predicated solely on defendant‘s statements—both his verbal statements as recounted by Seaholm in her report and testimony and his written statement admitting that he had lied.
We disagree, however, with defendant‘s assertion, citing Milnes, that the judgment must consequently be reversed “because the court did not say whether it would have revoked probation without that violation.” In contrast to the circumstances present in Milnes and the other cases discussed above, here it is clear that the trial court would have revoked defendant‘s probation based only on the second violation, which concerned defendant‘s failure to comply with the special condition of probation. As detailed above, the court concluded that it was required, as a result of defendant‘s zero-tolerance stipulation, to revoke defendant‘s probation upon his first nonfinancial violation of his probation conditions; moreover, we have now rejected defendant‘s challenge to that conclusion. 299 Or App at 770-72. Further, there is no dispute that the second violation found by the court—defendant‘s failure to comply with the written rules and directives of his sex offender treatment program—was nonfinancial. Thus, unlike in Milnes, there is no uncertainty whether the court would have revoked defendant‘s probation based only on that violation—it would have done so because it believed that the parties’ stipulation required that outcome.
The question here, therefore, reduces to whether any error in admitting defendant‘s statements was prejudicial with regard to that basis for revoking defendant‘s probation—that is, that he had failed to comply with the rules of his sex offender treatment program. Defendant suggests that it was prejudicial; he argues that the admitted statements “were highly probative” of that violation “because his initial statements—denying that he had his phone with him or that Seaholm would find anything on his Facebook account—reflected consciousness of guilt, and his signed confession was overwhelming evidence of guilt.”
We disagree. Defendant‘s written statements—admitting to sexting various women over a period of several months—were, of course, pertinent to a fundamental issue in the case—whether defendant had violated the rules of his sex offender treatment program. But, the court also received ample other and highly probative evidence on that issue. Significantly, defendant sought to suppress only his statements (as noted above, he moved to suppress “all statements made by [defendant] to his Probation Officer“); he did not contend—and does not argue to us—that the trial court also was required to suppress any derivative evidence. That evidence includes the following.
First, Seaholm‘s report and her subsequent testimony informed the court that defendant‘s Facebook account showed pictures of penises and female genitalia, masturbation, and anal penetration, as well as the sharing of nude photos between defendant and several women. The evidence also includes a DVD of screenshots taken by Seaholm of defendant‘s Facebook account, which the court found contained “very graphic photographs involving sex, anal sex, human genitalia, [and] breasts.” Seaholm also stated that there were videos on defendant‘s phone of sexual conduct, specifically, “females
In short, there was overwhelming evidence of defendant‘s failure to comply with his treatment rules—without considering defendant‘s inculpatory statements—and there is little likelihood that suppression of those statements would have assisted defendant. See, e.g., Harding, 221 Or App at 302 (concluding that there was little likelihood that the defendant‘s inculpatory statements would have affected
the jury‘s verdict “in light of the overwhelming evidence of defendant‘s involvement in the crimes of which he was convicted“); cf. State v. Villanueva-Villanueva, 262 Or App 530, 535, 325 P3d 783 (2014) (concluding that erroneously admitted hearsay evidence was not harmless because “there was no overwhelming evidence of guilt for defendant‘s convictions“).
Further, because this case involved a court hearing as opposed to a jury trial, we also have the benefit of the factfinder‘s evaluation of the evidence. Although the state, in closing, referred briefly to defendant‘s written admissions to show that his sexting conduct had been “going on going back six months while he‘s been on treatment,” it appears that defendant‘s statements did not weigh at all in the court‘s ultimate determination. In explaining its decision, the court first found, based on Cook‘s testimony, that defendant‘s possession of a smartphone with internet access was itself sufficient to establish the second probation violation.15 The court next explicitly stated that its finding that defendant also failed to comply with other rules of his sex offender treatment program (specifically, GR 1, 5, and 18) was based on Cook‘s testimony and the material on the DVD. Thus, although defendant‘s written statements were qualitatively different from the other evidence supporting the second probation violation, there is nothing in the record to suggest that the trial court relied on those statements as a basis for its decision.
Accordingly, viewing the record as a whole, we conclude that, even if the trial court erred in admitting defendant‘s statements, that error could not have affected the court‘s determination that defendant had violated the special condition of his probation or its ultimate decision to revoke defendant‘s probation, and, consequently, defendant was not prejudiced by the asserted error.
Affirmed.
DEHOOG, P. J.
Affirmed.