State v. Butler

313 Or.App. 786

494 P.3d 1031

STATE of Oregon, Plaintiff-Respondent,

v.William Conrad BUTLER, Defendant-Appellant.

A171606

Court of Appeals of Oregon.

Argued and submitted March 4, 2021.

August 11, 2021

John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Weston Koyama, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

KAMINS, J.

Defendant appeals from a judgment that he violated the no-contact provision of his probation by posting about the victim on his Facebook page. Because the evidence was sufficient for a rational factfinder to conclude by a preponderance of the evidence that defendant was intending to communicate with the victim, we affirm.

Defendant posted numerous messages both about and addressed to the victim, R, as well as pictures of the two of them together, on his Facebook page. After R blocked defendant's Facebook account, which would prevent her from seeing his page, defendant created another account, which Facebook displayed on R's homepage as a suggested friend. When she visited that suggested account and saw that defendant had posted more messages about her, she blocked him again. After that, defendant created another account and the pattern repeated. Defendant would typically create a new profile within 24 to 48 hours of R blocking defendant. Defendant's probation officer informed him that R was in fact reading the posts and instructed him to stop, but defendant continued to create new accounts and post new messages. In the end, R blocked nine different Facebook accounts with different permutations of defendant's name, some or all of which had no Facebook friends.

The state charged defendant with a violation of a special probation condition that provided, "The defendant shall not attempt to contact or have direct or indirect contact with the victim[ ]." After a hearing, the trial court concluded that, although it was a "gray area," it was clear that the posts on those accounts were "meant for really nobody's eyes * * * other than [R's]." Accordingly, the court concluded that defendant was attempting to have indirect contact with R in violation of his probation.

Defendant appeals, arguing that his probation conditions do not preclude him from speaking publicly about R, which is essentially what posting on a Facebook page is. The state responds that the nature of the posts and the efforts of creating new unblocked profiles allowed for the inference that defendant was attempting to communicate with R.

Whether or not sufficient evidence exists to support a finding of a probation violation is a legal question.

State v. Stroud , 293 Or. App. 314, 318, 428 P.3d 949 (2018). In reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the state to determine whether the state proved by a preponderance of the evidence that the defendant violated a condition of his probation. State v. Moravek , 297 Or. App. 763, 769-70, 444 P.3d 521, rev. den., 365 Or. 533, 451 P.3d 999 (2019) ; State v. Paez-Lopez , 155 Or. App. 617, 621, 964 P.2d 1083 (1998).

This case is largely resolved by our standard of review. We are tasked with determining whether the evidence was sufficient to allow the trial court to infer that defendant intended to contact R when he posted Facebook messages on his own Facebook page, and thus that it was more likely than not that defendant violated a condition of his probation. There are two pieces of evidence that, taken together, allow for that inference.

First, defendant created new Facebook profiles, some or all of which had no actual Facebook friends, each time R blocked him. He would create those profiles within 24 to 48 hours of R blocking a previous profile. Once a profile was blocked by R, defendant could continue to post to the public; he simply could no longer communicate to R . Rather than accept that limitation, defendant repeatedly created new profiles that would be viewable by R.

Second, the text of the posts further supports the inference that defendant intended R to see them. Many of them were framed in language that appeared to be addressing R directly:

"Can't we just talk.....I'm guessing from the message I got today and how angry he was....he made you take your Facebook down.....I'm worried and scared for you... I'm here....always.....and you're loved more than you know......I just wish you'd

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