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State v. Dowty

Court of Appeals of Oregon

October 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DENNIS VERNE DOWTY, Defendant-Appellant.

          Argued and Submitted December 5, 2017

          Tillamook County Circuit Court 15CR32852; 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.

         Case Summary: 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 1, 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.

         [299 Or.App. 763] DEHOOG, P.J.

         In this case, the trial court found that defendant had violated two of his probation conditions: (1) General Condition 11, that he "[p]romptly and truthfully answer all reasonable inquiries" by his probation officer, see ORS 137.540(1)(k), and (2) a special condition that he "enter into, satisfactorily participate in and successfully complete a sex offender treatment program * * * [and] comply with all written treatment rules and directives." And, based on defendant's earlier stipulation that his first nonfinancial violation of probation would result in revocation (referred to as a "zero-tolerance stipulation"), the court entered a judgment revoking defendant's probation and imposing a 48-month prison term. Defendant appeals that judgment, raising two assignments of error.

         Defendant first contends that the trial court erred when, reasoning that the exclusionary rule of Article I, section 12, of the Oregon Constitution does not apply in probation-revocation proceedings, it denied his motion to suppress statements he made to his probation officer. Second, defendant contends that the court erred in revoking his probation based on his zero-tolerance stipulation rather than as an exercise of the court's discretion. As explained below, we do not consider defendant's second assignment of error because defendant did not preserve that issue for our review. ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court ***."). Further, as to defendant's first assignment, we conclude that the trial court's error-if any-in admitting defendant's statements into evidence did not prejudice defendant and, therefore, does not provide a basis for reversal. Accordingly, we affirm.

         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 P.3d 1259, rev den, 345 Or. 503 (2008) [299 Or.App. 764] (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, ORS 163.425, as a lesser included charge of first-degree rape. Pursuant to the parties' negotiations, the trial court designated defendant's conviction as grid block 10-F on the sentencing guidelines grid, granted a downward dispositional departure, and sentenced defendant to 60 months' probation.[1] In the judgment, the court imposed general and special conditions of probation on defendant, including, as pertinent to this appeal, that defendant (1) "[p]romptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency," see ORS 137.540(1)(k) (General Condition 11), and (2) "enter into, satisfactorily participate in and successfully complete a sex offender treatment program * * * [and] comply with all written treatment rules and directives." The judgment also stated, "Defendant stipulates to revocation for first non-financial proven probation violation with a 75-month [Department of Corrections] sentence with no [Alternative Incarceration Programs]."

         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 [299 Or.App. 765] 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,

"[defendant 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-violation 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.)

         [299 Or.App. 766] 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 in compelling circumstances and that suppression of the statements was therefore required under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution.[4]The state responded, in essence, that the exclusionary rule does not extend to probation-violation hearings, relying on federal case law under the Fifth Amendment.

         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 [299 Or.App. 767] 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 ...


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