1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: April 27, 2015 4 NO. 33,004 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 ROBERT DINAPOLI, 9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 11 Angela J. Jewell, District Judge Pro Tempore
12 Hector H. Balderas, Attorney General 13 Paula E. Ganz, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Jorge A. Alvarado, Chief Public Defender 17 Kimberly Chavez Cook, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant 1 OPINION 2 WECHSLER, Judge. 3 {1} Defendant Robert Dinapoli, having previously been convicted of criminal 4 sexual penetration, signed a Sex Offender Supervision Behavioral Contract (the sex 5 offender contract) in which he agreed that he would not possess “any sexually 6 oriented or sexually stimulating material.” The district court revoked Defendant’s 7 probation because Defendant was found to be in possession of three R-rated, 8 theatrically released movies. Defendant argues that he did not have sufficient notice 9 that his possession of such movies would violate the terms of his probation and that 10 the district court erred by revoking his probation without reviewing the movies in 11 their entirety in order to assess the nature of the movies as a whole. We hold that 12 Defendant had sufficient notice as a result of both the sex offender contract and the 13 circumstances of a previous probation violation. We further hold that the district court 14 had sufficient evidence before it without reviewing the movies in their entirety. We 15 therefore affirm the revocation of Defendant’s probation. We nevertheless correct the 16 district court’s order and commitment to credit Defendant for days of probation he 17 already served.
1 BACKGROUND 2 {2} On December 4, 1992, Defendant was indicted for numerous crimes of criminal 3 sexual penetration taking place on June 25, 1990 after he had broken into the home 4 of two women while armed with a firearm. In 1994, Defendant pleaded guilty to four 5 counts of criminal sexual penetration, two counts of kidnapping, and one count of 6 aggravated battery. All the crimes involved the use of a deadly weapon. On January 7 30, 1992, Defendant was also indicted for attempted criminal sexual penetration, 8 kidnapping, and false imprisonment, among other crimes, involving another woman 9 in an incident that took place on October 3, 1991. 10 {3} Defendant was sentenced for the 1991 crimes after a plea and disposition 11 agreement to serve 364 days in custody followed by five years probation. For the 12 1990 crimes, he was sentenced to serve thirty years imprisonment followed by five 13 years probation. He was additionally ordered to participate in both inpatient and 14 outpatient treatment and sex offender counseling. 15 {4} Defendant was released from imprisonment on October 21, 2008 to the Sex 16 Offender Unit at the New Mexico Behavioral Health Institute in Las Vegas, New 17 Mexico. Two days later, Defendant was terminated from the program. Defendant’s 18 probation officer at that time reported that Defendant “informed staff members that 19 treatment was of no value to him and [that he] wished to be returned to prison where
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1 he did not have to put up with anyone asking questions about his past behavior.” The 2 probation officer reported that Defendant told him “I don’t belong out here, I raped 3 two women and I need to go back to prison. I have food and shelter over there and 4 [j]ust can’t make it out here, I need to go back to prison.” The district court revoked 5 Defendant’s probation and re-committed him to serve a term of six years 6 imprisonment to be followed by five years probation. 7 {5} After his subsequent release from prison, the district court allowed Defendant 8 to live at his mother’s house because he suffers from a degenerative neurological 9 disorder. Defendant signed the sex offender contract on December 2, 2011. Rosalind 10 Hankins, Defendant’s probation officer, reported that Defendant violated the 11 conditions of his probation and was arrested on February 29, 2012, charging that 12 Defendant (1) did not comply with Section 6(D) of the sex offender contract that 13 prohibited Defendant from accessing electronic devices for sexually stimulating 14 material, pornography, adult websites, and social networking sites; and (2) did not 15 attend the Sex Offender Treatment Program because he was asked to leave for being 16 disruptive (the February violation). As to the first charge, Ms. Hankins reported that 17 Defendant stated that the websites depicted rape victims and rapists and that he 18 “wanted to learn more about what kind of rapist he was.” The State filed a motion to 19 revoke probation, and the district court held a probation violation hearing on April
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1 5, 2012. The district court reinstated Defendant’s probation with the additional 2 condition that Defendant not access the internet with his cell phone. 3 {6} On July 30, 2012, Ms. Hankins and another probation officer visited 4 Defendant’s residence on a routine probation call. While there, Ms. Hankins found 5 three DVDs in Defendant’s bedroom that she characterized in her probation violation 6 report attached to the State’s motion to revoke Defendant’s probation as “extremely 7 violent and sexually graphic in nature, and portray women being raped.” The State 8 again filed a motion to revoke probation. After a probation violation hearing held on 9 September 19, 2012 (September hearing), the district court found that Defendant 10 violated his probation by possessing sexually explicit materials in violation of Section 11 6(A) of the sex offender contract. The district court revoked Defendant’s probation 12 and committed Defendant to the Department of Corrections for a term of five years 13 to be followed by supervised probation for a new term of five years. 14 NOTICE 15 {7} Defendant first argues that the district court improperly revoked his probation 16 because he did not have sufficient notice that his possession of the movies would 17 violate the terms of his probation. Specifically, Defendant contends that neither the 18 sex offender contract nor the February violation provided him notice that his 19 possession of “popular, mainstream, R-rated movies” would be a violation of the
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1 terms of his probation. Notice is an issue to the extent it bears upon whether it was 2 reasonable for Defendant to have believed that he was not violating the terms of his 3 probation. See State v. Martinez, 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 4 1321 (“The proof necessary [to support the revocation of probation] is that which 5 inclines a reasonable and impartial mind to the belief that a defendant has violated the 6 terms of probation.”). 7 {8} We review the district court’s revocation of probation under an abuse of 8 discretion standard. Id. ¶ 5. In exercising its discretion, the court may consider that 9 the purpose of probation is the rehabilitation of a defendant. State v. Lopez, 2007- 10 NMSC-011, ¶ 7, 141 N.M. 293, 154 P.3d 668. A court has the authority to revoke 11 probation for a probation violation because rehabilitation is not occurring. Id. ¶ 8. 12 Evidence Before the District Court 13 {9} The DVDs consisted of three movies: (1) I Spit On Your Grave (2010); (2) The 14 Girl With the Dragon Tattoo (2009, Swedish); and (3) The Girl With the Dragon 15 Tattoo (2011, American). At the probation revocation hearing, the State played 16 “about twelve scenes” from I Spit On Your Grave for the court. The State asked the 17 court to review the box containing the movie, noting that the back cover stated, “A 18 group of local lowlifes subject the star of the movie to a nightmare of degradation, 19 rape, and violence.”
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1 {10} The State also played scenes from both versions of The Girl With the Dragon 2 Tattoo at the hearing. While the DVDs were playing, Ms. Hankins testified about 3 what was depicted. As to the Swedish version, she noted a scene in which a woman 4 is anally raped, an oral sex scene, and a scene in which “it happens in the office.” She 5 described a rape scene in which a woman is handcuffed to a bed, has her pants pulled 6 off, is fully nude from the back, and is being raped. She described the rape scene in 7 the American version as “very similar” and also noted a scene with oral sex. The State 8 drew the court’s attention to the warning on the back of the DVD cover, which read, 9 “Rated R for brutal, violent content, including rape and torture, strong sexuality, 10 graphic nudity” and characterized the plot as “a secret history of murder and sexual 11 abuse.” 12 {11} Defendant testified at the September hearing that he watched the movies 13 because of the revenge that the portrayed victims were able to impose upon their 14 rapists. He stated that he did not derive sexual satisfaction from the movies. He 15 assumed that the sex offender contract prohibitions only applied to pornography; he 16 was not “cautioned not to watch any scenes in a mainstream movie.” He further 17 testified that he did not believe that the proceedings concerning the February 18 violation indicated that the sex offender contract prohibited possession of more than
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1 pornography because the violation was based on his having a cell phone that could 2 access prohibited sites. 3 Notice Under Section 6(A) of the Sex Offender Contract 4 {12} The district court revoked Defendant’s probation for violating Section 6(A) of 5 the sex offender contract. That provision reads:
6 I will not purchase, possess or subscribe to any sexually oriented or 7 sexually stimulating material. This includes, but is not limited to: Sexual 8 devices, books, magazines, video/audio tapes, pictures, DVDs, CD 9 ROMs, and Internet websites.
10 {13} As framed by Martinez, 1989-NMCA-036, ¶ 4, we analyze the sufficiency of 11 the notice of this section to ascertain whether it enables a reasonable person to believe 12 that Defendant’s possession of the movies would constitute a violation of the sex 13 offender contract. We do not believe that Defendant could have reasonably believed 14 that his possession of the DVDs did not violate Section 6(A). 15 {14} Section 6(A) prohibited Defendant from possessing “any sexually oriented or 16 sexually stimulating material.” Section 6(A) does not limit the type of material that 17 may be prohibited as sexually oriented or sexually stimulating; it specifies that such 18 material may include DVDs. Although Defendant argues that grammatically the word 19 “sexual” in the listing of types of material included within the prohibition restricts the 20 type of DVD included to a “sexual DVD,” we read the word as specifying a particular
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1 kind of “device” rather than describing all of the listed items. Indeed, reading 2 “sexual” to pertain to the items other than “devices” would be mere surplusage in that 3 the listed items are merely examples of “material” that must be either “sexually 4 oriented” or “sexually stimulating” to be prohibited. See Mayfield Smithson Enters. 5 v. Com-Quip, Inc., 1995-NMSC-034, ¶ 14, 120 N.M. 9, 896 P.2d 1156 (“In New 6 Mexico it is almost axiomatic that a contract must be construed as a harmonious 7 whole, and every word or phrase must be given meaning and significance according 8 to its importance in the context of the whole contract.” (alteration, internal quotation 9 marks, and citation omitted)). Thus, to fall within the prohibition of Section 6(A), a 10 DVD must be either “sexually oriented” or “sexually stimulating.” 11 {15} In addition, for the purposes of our analysis, we need not consider whether the 12 DVDs in question were “sexually stimulating” to Defendant. The standard of whether 13 a reasonable person would consider Defendant’s possession to be a violation is an 14 objective one. Defendant’s testimony that he was not sexually stimulated is not 15 relevant to this inquiry. We therefore focus our discussion on whether a reasonable 16 person would believe that the material was “sexually oriented.” 17 {16} We have guidance with regard to this terminology in State v. Green, 2015- 18 NMCA-007, 341 P.3d 10, cert. denied, 2014-NMCERT-012, ___ P.3d ___. In that 19 case, the probation violation report included within its allegations that the defendant
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1 had possession of sexual images on his computer that violated a provision of the 2 defendant’s sexual offender behavior contract similar to the provision in this case. Id. 3 ¶ 21. The defendant argued that the evidence did not support the revocation of his 4 probation because the contract was overly vague in that a reasonable person would 5 not understand that the nude images depicted would be considered pornography or 6 prohibited by the contract. Id. The contract in that case also prohibited the defendant 7 from possessing “any sexually oriented or sexually stimulating material[,]” including, 8 but not limited to “[s]exual devices, books, magazines, video/audio tapes, DVDs, CD 9 ROMs, and [i]nternet websites.” Id. ¶ 23 (alterations in original). In interpreting the 10 contractual prohibition in that case, this Court stated:
11 Our Supreme Court has defined the term “sexually explicit exhibition” 12 as a “graphic and unequivocal display or portrayal of nudity or sexual 13 activity.” State v. Myers, 2009-NMSC-016, ¶ 10, 146 N.M. 128, 207 14 P.3d 1105. Furthermore, our Legislature defines “sexual conduct” as an 15 “act of masturbation, . . . physical contact with a person’s clothed or 16 unclothed genitals, pubic area, buttocks or, if such person be a female, 17 breast[.]” NMSA 1978, § 30-37-1(C) (1973). We conclude each of these 18 definitions encompasses that which is “sexually oriented” within the 19 terms of [the d]efendant’s sex offender behavior contract.
20 Id. ¶ 25 (alteration and omission in original). 21 {17} The DVD covers were enough to raise a reasonable question concerning 22 whether the DVDs contained “sexually oriented” material. The cover to I Spit On 23 Your Grave stated that the movie involved “a nightmare of degradation, rape, and
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1 violence.” The cover to the American version of The Girl With the Dragon Tattoo 2 stated that the movie involved “violent content, including rape and torture, strong 3 sexuality, [and] graphic nudity” as well as “sexual abuse.” From this language, a 4 reasonable person would be on notice of the sexually oriented material in the DVDs. 5 And, even if the covers were not sufficient notice, the graphic content of The Girl 6 With the Dragon Tattoo, as described by Ms. Hankins, would put a reasonable person 7 viewing the DVD on notice that the material was “sexually oriented.” 8 {18} The fact that the movies were “mainstream movies that anybody can buy at any 9 video store” as Defendant contended below is not of consequence. Under Section 10 6(A) of the sex offender contract, Defendant agreed that he would not possess any 11 sexually oriented material, including sexually oriented DVDs. Nothing in that 12 provision excludes sexually oriented material of general availability. Section 6(A) is 13 a condition of Defendant’s probation, which, by its language, is designed to prevent 14 Defendant from possessing material that may lead to recurring criminal activity or 15 hinder his rehabilitation. With this intent, it is reasonable to believe that, standing 16 alone, the source of any sexually oriented material is not relevant.
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1 Notice Under Section 6(A) Read in Conjunction with Other Provisions of the Sex 2 Offender Contract
3 {19} Nor do we believe, as Defendant further contends, that, in the context of this 4 case, Section 6(A) is limited to “adult” or “pornographic” material when read in 5 conjunction with other provisions of the sex offender contract. Other provisions of 6 the sex offender contract provide:
7 I understand that any computer, camera, computer tablet, cell phone, 8 thumb drive (USB drive), memory or any other electronic device I have 9 access to, including the hard drive and removable drives may be 10 examined for inappropriate content at any time. Inappropriate content 11 includes, but is not limited to: Sexually stimulating material, 12 Pornography (adult or child), adult websites, social networking sites, 13 such as, but not limited to Facebook, Myspace and Mocospace, dating 14 websites, and personal ads to include cell phone applications.
15 Section 6(D).
16 I will not patronize any establishment in which sexually oriented 17 material or entertainment is available. Including, but not limited to: 18 adult book/video stores, and topless/nude clubs.
19 Section 6(F).
20 I understand that I may be asked to provide my telephone, satellite 21 television, or cable bill for examination. Prohibited charges on these 22 bills include: calls to adult hotlines, and adult channels.
23 Section 6(G). 24 {20} Section 6(D) prohibits Defendant from maintaining “inappropriate content” on 25 any electronic device. “Inappropriate content” is not defined other than to state that
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1 it includes, but is not limited to, certain types of material. It clearly includes sexually 2 stimulating material, and it may be assumed that, applying the principle of ejusdem 3 generis, the sex offender contract intends to embrace pornography and the other listed 4 items in the same manner as sexually stimulating material. See State v. Nick R., 2009- 5 NMSC-050, ¶ 21, 147 N.M. 182, 218 P.3d 868 (stating that, under the statutory 6 construction principle of ejusdem generis, when words with a general meaning follow 7 words with a more specific meaning, “the general words are not construed in their 8 widest extent but are instead construed as applying to persons or things of the same 9 kind or class as those specifically mentioned” (internal quotation marks and citation 10 omitted)); State v. Strauch, 2014-NMCA-020, ¶ 13, 317 P.3d 878 (applying the 11 principle of ejusdem generis when words of specific meaning follow general words), 12 rev’d on other grounds, 2015-NMSC-009, ___ P.3d. ___. While unstated, by virtue 13 of the nature of the provision, we further believe that Section 6(D) intends for 14 sexually oriented material to be included within the scope of “inappropriate content.” 15 Indeed, the sex offender contract treats “sexually oriented” and “sexually stimulating” 16 material in a similar fashion. 17 {21} Defendant points to the statutory construction principle of ejusdem generis and 18 argues that, when the provisions of the sex offender contract are considered together, 19 Section 6(A) would be reasonably understood to prohibit only pornographic
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1 materials. According to Defendant, all the language describing prohibited materials 2 in Sections 6(D), (F), and (G) “clarify” the terms “sexually stimulating or sexually 3 oriented material” in Section 6(A) to relate to “adult” or pornographic material. We 4 again note, in this regard, that Section 6(A) prohibits possession of “sexually oriented 5 or sexually stimulating materials[,]” and Section 6(D) defines “inappropriate content” 6 to include both “[s]exually stimulating material” and pornography, as well as “adult 7 websites.” Sections 6(F) and (G) focus their prohibitions on “adult” activities. 8 {22} However, Section 6(D), by defining “inappropriate content” to include both 9 “[s]exually stimulating material” and pornography, does not use the two terms 10 interchangeably. While there certainly may be overlap, if the intent were to equate 11 sexually stimulating material with pornography, there would be no reason to list both 12 items. Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 19, 131 13 N.M. 100, 33 P.3d 651 (“[W]e view the contract as a harmonious whole, give 14 meaning to every provision, and accord each part of the contract its significance in 15 light of other provisions.”). We do not believe that it would be reasonable to assume 16 the two terms to be fully inclusive. 17 Impact of the February Violation 18 {23} Moreover, to the extent that there is ambiguity, it was reasonably resolved with 19 respect to Defendant because of the additional notice afforded him by the proceeding
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1 related to the February violation. That proceeding involved Section 6(D) and the 2 allegations that Defendant accessed websites depicting rapists and rape victims on his 3 cell phone. Defendant agreed not to access the internet using his cell phone. 4 {24} At the September hearing, Defendant’s previous probation officer testified, 5 over defense counsel’s relevance objection, regarding the February violation. On 6 cross-examination, Defendant later stated that he had viewed websites on his cell 7 phone that included statements of people who were raped. He acknowledged that he 8 violated his probation because he viewed sexually stimulating material that did not 9 include pornographic pictures. This acknowledgment was inconsistent with 10 Defendant’s position that he was unaware that sexually stimulating materials were not 11 limited to pornography. In closing, the prosecutor argued that Defendant was aware 12 that the sex offender contract was not limited to pornography as a result of the 13 February violation. At sentencing, the district court, in finding that Defendant had 14 violated the sex offender contract by possessing the DVDs, stated:
15 There had been a prior revocation or motion revoking probation, 16 wherein it was another scene viewed that was pretty similar to 17 the—well, it was a scene viewed that had nuances of the same scenes 18 that were viewed in these other tapes. It’s just troubling, when you’ve 19 been corrected once, that you would do the same thing again.
20 {25} Defendant argues on appeal that the violation underlying the current 21 proceedings is “completely distinct” from the February violation such that the earlier
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1 proceedings were not sufficient to give a “person of ordinary intelligence” notice that 2 possession of the DVDs at issue would violate the sex offender contract. He further 3 argues that the district court misapprehended the substance of the earlier proceedings 4 and erroneously relied upon them. As to the latter argument, we agree with Defendant 5 that the district court may have misstated the facts of the February violation. It was 6 not clear that Defendant viewed any scenes or images on his cell phone. However, we 7 do not consider this discrepancy to be a material one because we do not agree with 8 Defendant that the February violation was “completely distinct” from or unrelated to 9 the current one. 10 {26} The two violations are related, even though they are not factually the same, 11 because the circumstances of the February violation were sufficient to provide a 12 reasonable person with notice that possession of sexually oriented or sexually 13 stimulating material was forbidden by the sex offender contract even if it were not 14 considered pornographic. The February violation involved Defendant’s accessing 15 websites on his cell phone that depicted rape victims and rapists. Regardless of 16 whether the websites included scenic material, the State moved to revoke Defendant’s 17 probation for violating Section 6(D) of the sex offender contract. That section, as we 18 have described, prohibits Defendant from accessing sexually stimulating material, 19 pornography, adult websites, and social networking sites that “include cell phone
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1 applications.” The State did not assert, and nothing in the record indicates, that the 2 websites involved pornography. Indeed, Defendant testified at the September hearing 3 that the websites pertaining to the February violation did not have pornographic 4 pictures and that there was a probation violation because he was “viewing sexually 5 stimulating material.” 6 {27} A reasonable person would conclude from this information that material need 7 not be pornographic in order to be sexually stimulating. A reasonable person would 8 further conclude that, although the February violation was of Section 6(D), material 9 also would not need to be pornographic in order to be considered sexually stimulating 10 as prohibited by Section 6(A). Because the terms “sexually stimulating” and “sexually 11 oriented” are used interchangeably in Section 6(A), a reasonable person would thus 12 necessarily conclude that material need not be pornographic to be prohibited as 13 “sexually oriented” by Section 6(A). We therefore conclude that the circumstances 14 of the February violation provided notice to Defendant that the DVDs that contained 15 sexually oriented material would be a violation of Section 6(A) even though the 16 material may not be considered pornographic as that term is used in the sex offender 17 contract.
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1 DEFENDANT’S ADDITIONAL ARGUMENTS CONCERNING THE SEX 2 OFFENDER CONTRACT
3 {28} Defendant additionally argues in connection with his notice argument that the 4 prohibitions of the sex offender contract are vague and overly broad. According to 5 Defendant, the sex offender contract is vague and overly broad because it does not 6 provide sufficient notice that the possession of mainstream movies was prohibited 7 and because it therefore gives rise to the risk of arbitrary enforcement by probation 8 officers. However, the sex offender contract couches the prohibitions of Section 6(A) 9 in terms of “sexually oriented or sexually stimulating material.” As we discussed in 10 Green, the meaning of “sexually oriented” can be gleaned from case law and statute. 11 2015-NMCA-007, ¶ 25. Moreover, as we have discussed, Defendant had additional 12 notice of the prohibitions of the sex offender contract by virtue of the February 13 violation. We do not consider the sex offender contract to be impermissibly vague 14 such as to have denied Defendant notice. We consider the sex offender contract to be 15 necessarily broad in order to accomplish its rehabilitative purpose. See Lopez, 2007- 16 NMSC-011, ¶ 7 (stating the rehabilitative intent of probation). 17 {29} Defendant further argues that the sex offender contract violates his First 18 Amendment rights. However, conditions of probation are, by their very nature, 19 restrictions on an offender’s lifestyle. Probation “is not a matter of right”; it is “an act
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1 of clemency” within the court’s discretion. Id. (internal quotation marks and citation 2 omitted). Probation conditions are permissible if they serve the best interests of the 3 public and the interest of the offender’s rehabilitation. See id. (“Probation assumes 4 that the best interests of the public and the offender will be served and also that the 5 offender can be rehabilitated without serving the suspended jail sentence.” (internal 6 quotation marks and citation omitted)). “Probation is a criminal sanction, and the 7 district court may impose reasonable conditions that deprive the offender of some 8 freedoms enjoyed by law-abiding citizens.” State v. Leon, 2013-NMCA-011, ¶ 27, 9 292 P.3d 493 (internal quotation marks and citation omitted). By prohibiting 10 Defendant from possessing sexually oriented material, the sex offender contract 11 addresses both the need to deter Defendant from reoffending and the effort to bolster 12 his rehabilitation. Such a prohibition is a permissible restriction of Defendant’s First 13 Amendment rights. 14 THE DISTRICT COURT’S EVIDENTIARY REVIEW 15 {30} At the probation revocation hearing, the State played scenes from each of the 16 three DVDs for the district court’s review, including twelve scenes from I Spit On 17 Your Grave. The scenes from both versions of The Girl With the Dragon Tattoo were 18 described by Ms. Hankins. The district court did not view other portions of the 19 DVDs.
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1 {31} Defendant objected to the district court’s viewing only portions of the DVDs, 2 arguing that, unless the movies were viewed in their entirety, the court would not be 3 viewing the complete evidence and the scenes selected by the State would not be 4 within context. On appeal, Defendant argues that the district court abused its 5 discretion and violated his due process rights by failing to view the movies in their 6 entirety. Defendant acknowledges that Rule 11-106 NMRA, pertaining to a court’s 7 ability to receive evidence of parts of a writing or recorded statement that, in fairness, 8 should be considered along with other parts of the same writing or recorded statement 9 received in evidence, does not apply to a probation revocation hearing. See Rule 11- 10 106 (“If a party introduces all or part of a writing or recorded statement, an adverse 11 party may require the introduction, at that time, of any other part—or any other 12 writing or recorded statement—that in fairness ought to be considered at the same 13 time.”); Rule 11-1101(D)(3)(d) NMRA (stating that the rules of evidence do not 14 apply to proceedings to revoke probation). Indeed, the district court offered to view 15 additional parts of the DVDs identified by Defendant as demonstrating the absence 16 of a probation violation. 17 {32} “We review the district court’s evidentiary rulings for an abuse of discretion.” 18 Green, 2015-NMCA-007, ¶ 27 (internal quotation marks and citation omitted). To the 19 extent that Defendant contends that the district court violated his due process rights,
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1 he must show prejudice. State v. Neal, 2007-NMCA-086, ¶ 42, 142 N.M. 487, 167 2 P.3d 935. 3 {33} Defendant argues that, although the DVDs “contain isolated scenes depicting 4 sex[,]” the district court was required to view the DVDs in their entirety in order to 5 determine if they “overall” constituted “sexually oriented” material. He draws a 6 parallel to the constitutional test for obscenity, asserting that the test for “sexually 7 oriented” is similarly dependent on a review of the material “taken as a whole.” 8 Miller v. California, 413 U.S. 15, 24 (1973) (setting forth the “basic guidelines” for 9 the factual determination that material is obscene as “(a) whether the average person, 10 applying contemporary community standards would find that the work, taken as a 11 whole, appeals to the prurient interest; (b) whether the work depicts or describes, in 12 a patently offensive way, sexual conduct specifically defined by the applicable state 13 law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, 14 political, or scientific value.” (internal quotation marks and citation omitted)). We do 15 not agree. 16 {34} The purpose of the test for obscenity is to determine whether speech is not 17 protected by the First Amendment of the United States Constitution because it is 18 obscene. See id. at 23 (“This much has been categorically settled by the [United States 19 Supreme] Court, that obscene material is unprotected by the First Amendment.”). The
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1 issue before us in this case, however, is not a matter of protected speech or First 2 Amendment jurisprudence. It does not matter whether the material is protected by the 3 First Amendment. Rather, the issue is whether Defendant violated the terms of his 4 probation by possessing sexually oriented material. As we have discussed, the 5 purposes of probation are to both prevent an offender from engaging in additional 6 criminal activity and to rehabilitate the offender. The restrictions of the sex offender 7 contract further these purposes by limiting Defendant’s access to materials that may 8 reasonably lead to susceptibility of other criminal acts or impede rehabilitation. See 9 State v. Garcia, 2005-NMCA-065, ¶ 11, 137 N.M. 583, 113 P.3d 406 (“Conditions 10 of probation are reasonably related to rehabilitation if they are relevant to the offense 11 for which probation was granted. The court has broad discretion to effect 12 rehabilitation and may impose conditions designed to protect the public against the 13 commission of other offenses during the term, and which have as their objective the 14 deterrence of future misconduct.” (internal quotation marks and citations omitted)). 15 {35} For the same reasons, it does not matter whether other portions of the DVDs 16 did not contain sexually oriented material or that the DVDs, taken as a whole, would 17 not be considered “sexually oriented.” The issue is whether the DVDs contained 18 sexually oriented material that would undermine the purposes of Defendant’s 19 probation. The district court did not abuse its discretion or violate Defendant’s due
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1 process rights in concluding that the DVDs met that standard based on the evidence 2 before it. 3 CREDIT FOR TIME ON PROBATION 4 {36} In revoking Defendant’s probation, the district court entered its October 2, 5 2012 order and commitment to the Department of Corrections, ordering Defendant’s 6 imprisonment for a period of five years followed by a new term of probation for five 7 years. Defendant claims on appeal that the district court erred by neglecting to credit 8 Defendant with 298 days that Defendant served on probation. The State does not 9 oppose a credit but states that the proper credit is 299 days rather than 298. 10 {37} We agree that Defendant is entitled to credit for the time he served on 11 probation. See State v. Baca, 2005-NMCA-001, ¶ 21, 136 N.M. 667, 104 P.3d 533 12 (“A probationer whose sentence has been suspended is entitled to credit against his 13 or her sentence for the time served on probation.”). We thus remand to the district 14 court to modify its order and commitment to the Department of Corrections to 15 recalculate Defendant’s remaining sentence. We suggest that, when doing the 16 recalculation, the district court expressly set out, as done in its January 6, 2009 order 17 and commitment to the Department of Corrections, (1) the term remaining in 18 Defendant’s sentence, (2) the term of the sentence to be suspended, (3) the term of 19 imprisonment, and (4) the time for which Defendant is given credit.
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1 CONCLUSION 2 {38} We affirm the district court’s revocation of Defendant’s probation and remand 3 to the district court to modify its sentence to provide credit for time served on 4 probation. 5 {39} IT IS SO ORDERED.
6 ________________________________ 7 JAMES J. WECHSLER, Judge
8 WE CONCUR:
9 ________________________________ 10 JONATHAN B. SUTIN, Judge
11 ________________________________ 12 M. MONICA ZAMORA, Judge