State v. Priester ( 2023 )

574
Submitted June 21, 2022; remanded for resentencing, otherwise affirmed
April 26, petition for review denied August 31, 2023 (371 Or 332)
STATE OF OREGON,
Plaintiff-Respondent,
v.
KYRII RASHAD PRIESTER,
Defendant-Appellant.
Clackamas County Circuit Court
19CR41155; A173289
530 P3d 118
Defendant was convicted of, among other things, attempted first-degree rape.
On appeal from the judgment of conviction, he raises three assignments of error,
one of which he concedes was mooted by an amended judgment. On his remaining
assignments of error, he first contends that the trial court erred when it denied
his motion for a judgment of acquittal. Defendant also challenges one probation
condition imposed by the trial court as part of a domestic violence package (DV
package), arguing that it was imposed for the first time in the judgment, was
not narrowly tailored to the purposes of his probation without infringing on his
fundamental right of association, and is unconstitutionally vague under the Due
Process Clause of the United States Constitution. Held: The record contained
sufficient evidence for a reasonable factfinder to find each element of attempted
first-degree rape; the trial court did not err in denying defendant’s motion for
a judgment of acquittal. However, because reference to a “DV package” at sen-
tencing did not establish that all parties had the same understanding of what it
included, the shorthand phrase was insufficient to meet the requirements of ORS
137.030(1), which requires a sentence to be announced in open court. Accordingly,
the challenged probation condition was erroneously imposed for the first time
in the judgment. Furthermore, the probation condition’s use of the phrase “any
domestic partner” is unconstitutionally vague.
Remanded for resentencing; otherwise affirmed.
Ulanda L. Watkins, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
Cite as 325 Or App 574 (2023) 575
HELLMAN, J.
Remanded for resentencing; otherwise affirmed.
Powers, J., concurring in part, dissenting in part.
576 State v. Priester
HELLMAN, J.
Following a bench trial, defendant was convicted
of, among other things, attempted first-degree rape, ORS
161.405 and ORS 163.375. On appeal from the judgment of
conviction, he raises three assignments of error. First, he
contends that the trial court erred when it denied his motion
for a judgment of acquittal on Count 1, attempted first-
degree rape. Second, defendant challenges one probation
condition imposed by the trial court as part of a domestic
violence package (DV package), arguing that it was imposed
for the first time in the judgment, was not narrowly tailored
to the purposes of his probation without infringing on his
fundamental right of association, and is unconstitutionally
vague under the Due Process Clause of the United States
Constitution. Defendant concedes that his third assign-
ment of error was made moot by an amended judgment.
Accordingly, we do not address it.
For the reasons below, we conclude that there is
sufficient evidence such that a reasonable factfinder could
find defendant guilty of each element of attempted rape in
the first degree and affirm the conviction. As to the pro-
bation condition, however, we conclude that the court erred
by imposing that condition for the first time in the written
judgment and, furthermore, that the condition is unconsti-
tutionally vague. Accordingly, we remand for resentencing
and otherwise affirm.
I. STATEMENT OF FACTS AND
PROCEDURAL HISTORY
Consistent with our standard for reviewing the
denial of a motion for judgment of acquittal, we state
the facts in the light most favorable to the state. State v.
Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den,
514 US 1005 (1995). We also state the procedural history
as it pertains to the imposition of the challenged probation
condition, which we review for legal error. State v. Gallo, 275
Or App 868, 869, 365 P3d 1154 (2015).
Defendant and CP were living together in an inti-
mate relationship the week that defendant’s cousin passed
away. Late one night, defendant wanted to have sex with
Cite as 325 Or App 574 (2023) 577
CP, pulled her panties down, and climbed on top of her. CP
said that she did not want to have sex and was able to stop
penetration by covering her vagina with her hand and push-
ing him off of her. Defendant then “popped up” on her by
climbing back on top of her once or twice more, “got in that
dominant position and tried to have sex again.” Though the
evidence does not clearly explain the sequence of what hap-
pened next, CP again refused to have sex, defendant yelled
at her about refusing sex, and defendant held CP by the
wrists or arms with both hands and/or used both hands to
choke her for what felt to CP like a minute. Finally, defen-
dant stopped choking her, then left the room to play video
games and smoke a cigarette to calm down.
The next morning, CP asked her sister to call the
police, and Officer Walther, Sergeant Foreman, and Officer
Campos responded. Defendant and CP both spoke to each
officer and the sergeant before defendant was arrested.
Defendant was indicted by a grand jury for attempted
first-degree rape, ORS 161.405 and ORS 163.375 (Count 1),
strangulation, ORS 163.187 (Count 2), unlawful possession
of cocaine, ORS 475.884 (Count 3), fourth-degree assault
constituting domestic violence, ORS 163.160 (Count 4), men-
acing constituting domestic violence, ORS 163.190 (Count 5),
and harassment, ORS 166.065 (Count 6).
After indictment, defendant waived his right to a
jury and proceeded to a bench trial. At the trial, Walther,
Foreman, Campos, CP, CP’s sister, and defendant testified,
and, among other things, CP’s recorded grand jury tes-
timony and recorded jail calls between CP and defendant
were entered as evidence. After the close of evidence, the
court found defendant guilty on all counts.
At the beginning of the sentencing hearing that
followed, the state presented its sentencing recommenda-
tions by giving the court and defendant a copy of a uniform
criminal judgment form. On that form, next to but separate
from a box entitled “probation,” there is a list of four dif-
ferent “package[s].” The state had checked the box for “DV
Package” for Counts 4, 5, and 6. In defendant’s presence,
the state explained most of the recommendations on that
form to the court but did not mention the packages or any
578 State v. Priester
probation conditions. Defendant responded to the state’s
recommendations, also not referring to the packages or pro-
bation conditions. The court then orally imposed sentences
for each conviction, including adding the “domestic violence
package” to probationary sentences for Counts 4 through 6.1
After announcing the sentence, in an apparent effort to
ensure that defendant did not blame CP for his convictions,
the court addressed defendant directly to tell him that its
finding concerning Count 1, attempted rape in the first
degree, was based entirely on police testimony. Defendant
made no objections throughout the sentencing hearing.
The special probation conditions contained in the
DV package—including, “Disclose nature of conviction to
any domestic partner”—were listed for the first time in the
written judgment that followed.
The two questions before us are (1) whether there
was sufficient evidence to deny a motion of acquittal of
Count 1, attempted first-degree rape, and (2) whether it was
error for the trial court to impose the special condition of
probation that requires defendant to disclose the nature of
his conviction to any domestic partner.
II. THE TRIAL COURT DID NOT ERR
WHEN IT DENIED DEFENDANT’S MOTION
FOR A JUDGMENT OF ACQUITTAL ON COUNT 1
As noted, defendant contends that the “trial court
erred when it denied defendant’s motion for judgment of
acquittal on Count 1, attempted first-degree rape.” A court
must grant a motion for a judgment of acquittal “if the evi-
dence introduced theretofore is such as would not support a
verdict against the defendant.” ORS 136.445. In reviewing
the court’s denial of a motion for acquittal, the question is
not whether we believe that the defendant committed the
offense beyond a reasonable doubt, but whether the evidence
is sufficient for the trier of fact to so find. Cunningham, 320
Or at 63.
In the instant case, we are tasked with determining
whether the state provided sufficient evidence for a rational
1
The court also imposed the “substance abuse package” for Counts 3 through 6;
nothing about that package is challenged on appeal.
Cite as 325 Or App 574 (2023) 579
factfinder to infer, beyond a reasonable doubt, that defen-
dant “intentionally engage[d] in conduct which constitutes
a substantial step toward” having sexual intercourse with
another person by subjecting them to “forcible compulsion.”
ORS 163.375 (first-degree rape); ORS 161.405(1) (attempt);
Cunningham, 320 Or at 63 (providing the standard of review).
As we recently explained, forcible compulsion requires that
“the physical force used by the defendant must be greater
than or qualitatively different from the simple movement
and contact that is inherent in the action of touching an
intimate part of another. The force also must be sufficient
to compel the victim, against the victim’s will, to submit to
or engage in the sexual contact. That is, there must be a
causal connection between the sexual contact and forcible
compulsion elements. However, the force need not be vio-
lent or dominating. Significantly, the force that is sufficient
to compel one person to submit to or engage in a sexual
contact against his or her will may be different from that
which is sufficient to compel another person to do so.”
State v. Nygaard, 303 Or App 793, 798, 466 P3d 692, rev den,
367 Or 115 (2020) (internal quotation marks and citations
omitted).
In this case, the evidence is sufficient to support
defendant’s conviction. Walther testified that during his
interview of defendant, defendant gave his own account of
the incident as follows:
“He said that, at about 1:00 a.m., he wanted to have sex.
He said—he told me, quote, ‘I pulled down her panties, got
on top of her, and tried to have sex, and she said no.’
“* * * * *
“[Defendant] told me that [CP] pushed him off of her
after telling him that she didn’t want to have sex.
“* * * * *
“At that point, he angrily stated, and I quote, ‘I didn’t
rape her.’
“* * * * *
“I told [defendant] that no one was accusing him of rape
and asked him what happened next.
580 State v. Priester
“[Defendant], at that point, told me, quote, ‘I got—I got
back on top, got in that dominant position, and tried to
have sex again.’
“* * * * *
“The one comment that he made [about strangling her]
at the initial contact was that he told me, ‘I didn’t choke
her. I know how it feels, and I didn’t like it. I don’t need to
choke anyone.’
“* * * * *
“I asked him at that time, when he got back on top of her,
if he maybe accidentally had put his hands on her shoul-
ders or upper chest or on her neck. And [defendant] replied,
and I quote, ‘I grabbed her arms and pinned her—pinned
them down.’ And then he added that he didn’t need to choke
someone, telling me, ‘I might pin you to the ground. I might
pin your arms down.’ ”
With deference to the trial court’s explicit and
implicit credibility determinations, Walther’s testimony
that CP told defendant that she did not want to have sex and
pushed him off of her, then he “got back on top, got in that
dominant position, and tried to have sex again” while “grab-
b[ing] her arms and * * * pinning them down,” is sufficient
evidence on its own for a reasonable factfinder to conclude
that defendant “intentionally engage[d] in conduct which
constitutes a substantial step toward” having sexual inter-
course with CP by subjecting her to “forcible compulsion.”
III. THE TRIAL COURT ERRED
WHEN IT IMPOSED A PROBATION CONDITION
FOR THE FIRST TIME IN THE JUDGMENT
Defendant also contends that “[t]he trial court
erred when it required, as a special condition of probation,
that defendant disclose the nature of his conviction to any
domestic partner.” Defendant contends that the imposi-
tion of that condition is erroneous for three reasons: (1) the
court erred when it imposed the challenged probation con-
dition for the first time in the judgment; (2) the condition is
not narrowly tailored to the purposes of his probation, as
required by the federal constitution; and (3) the terms of the
Cite as 325 Or App 574 (2023) 581
probation condition are unconstitutionally vague. His first
and last arguments are determinative, so we do not address
the second.
A. The condition was imposed for the first time in the
judgment.
A criminal defendant has the right to have their
sentence announced in open court. ORS 137.030(1); State v.
Jacobs, 200 Or App 665, 671, 117 P3d 290 (2005). A trial
court commits reversible error if it does not do so, and the
result is usually a resentencing. State v. Bates, 315 Or App
402, 404, 500 P3d 746 (2021).
During its oral pronouncement of defendant’s sen-
tence, the trial court listed “DV package” as a condition for
Counts 4, 5, and 6, but did not provide any further expla-
nation of that phrase. Defendant argues that because the
trial court simply referenced the “DV package” in open
court without explaining what conditions were specifically
included, the court imposed the challenged condition for the
first time in the written judgment. Defendant asserts that
doing so was reversible error.
The state disagrees, contending that the trial
court’s use of the shorthand phrase “DV package” satisfied
its statutory obligation to announce probation conditions in
open court.
At its core then, the dispute in this case is whether
the use of the shorthand phrase “DV package” conveyed
enough about the conditions that were listed in the writ-
ten judgment such that we can conclude that the challenged
condition was announced in open court. We agree with
defendant that it did not.
In some circumstances, we have held that the use
of a shorthand phrase in open court gives sufficient notice
of specific conditions that are included. Those situations
occur when shorthand phrases refer to conditions that were
previously discussed in open court or when the phrase is a
term of art that has an agreed upon meaning. In those situ-
ations, we do not consider a list of the specific conditions in
the judgment to be the first time a condition is announced.
582 State v. Priester
For example, in State v. White, 269 Or App 255, 344
P3d 510, rev den, 357 Or 300 (2015), the defendant alleged
that a probation fee was erroneously imposed for the first
time in the written judgment. In that case, the challenged
fee was included in a statute listing general probation con-
ditions, which the state referred to in shorthand by recom-
mending “all the other general conditions that are normally
asked for.” Id. at 256. The trial court adopted that portion
of the state’s recommendation. We concluded that, when the
state makes a sentencing recommendation and the trial
court explicitly adopts the state’s recommendation without
elaborating on the details of that recommendation, those
details are still a part of a sufficiently “orally pronounced
sentence.” Id. at 256-57.
In contrast, in State v. Macy, 312 Or App 234, 492
P3d 1277 (2021), we found that the use of the phrase “drug
package” did not include a DUII conviction fee that was later
imposed in the written judgment. At sentencing, the state
separately listed its sentencing recommendations in open
court, including the conviction fee and a “drug package.”
The court did not adopt all the state’s recommendations.
Instead, the court listed each element of the defendant’s
sentence in open court, including the drug package but not
the conviction fee. However, the court later imposed that fee
in the judgment. On appeal, the state argued that the fee
was implied by the court’s imposition of the drug package.
We disagreed. We explained that “[a] ‘drug package’ in sen-
tencing is not a term of art that means the same thing in all
contexts, but we have acknowledged that, as a general mat-
ter, it is a package of special conditions of probation whose
precise contours may vary among counties or judges.” Id. at
237. Accordingly, because it was not made apparent “that
the ‘drug package’ included the DUII conviction fee,” that
fee was not announced in open court. Id. at 236.
Together, those cases illustrate that two things
must be true before use of a shorthand phrase can legally
suffice as announcing a sentencing condition in open court.
First, it must be apparent somewhere in the record that all
parties had the same understanding of the meaning of the
shorthand phrase and what it referred to. Second, it must
be apparent somewhere in the record that the shorthand
Cite as 325 Or App 574 (2023) 583
phrase included the conditions that were eventually listed
in the written judgment.
Neither of those requirements were met here. There
is no evidence that there was a common understanding
among the parties and the court of what the court meant
when it used the shorthand phrase “DV package.” As we
recognized in Macy, shorthand references to “packages” can
mean different things across different counties, or among
judges. 312 Or App at 237. Here, there is no evidence of what
“DV package” meant to these parties in Clackamas County
at the time of defendant’s sentencing.
Furthermore, there is no evidence that the con-
dition defendant challenges here was included in the “DV
package” the court imposed. In so concluding, we place no
weight on the document the state appended to its brief on
appeal. That undated document lists conditions, includ-
ing the challenged condition, apparently included in a DV
package in Clackamas County. However, there is no proof
that that document was in effect at the time of defendant’s
sentencing, that the document was given to defendant, or
that there was an understanding by anyone involved in this
case—let alone defendant—that the court meant that exact
document when it said “DV package.”
We similarly disagree with the dissent that the exis-
tence of a standard county practice of submitting a proposed
judgment and the use of the shorthand phrase “DV package”
provides sufficient support for a conclusion that the chal-
lenged condition was announced in open court. Although the
general practice of sentencing is a routine matter for courts,
prosecutors, and defense attorneys, each defendant’s sen-
tencing proceeding is unique. And it is defendant’s unique
sentencing proceeding that we are examining here, not the
general practice in Clackamas County. Thus, the existence
of a general practice does not answer the question as to
whether use of that practice resulted in compliance with the
statutory and constitutional requirements in defendant’s
case.
The right to have one’s sentence announced in open
court means that the court must state all the terms of a
defendant’s sentence on the record at the time it sentences
584 State v. Priester
the defendant. The use of shorthand is a deviation from that
statutory and constitutional requirement; a deviation that
the court chooses to employ. Thus, when a court uses short-
hand, it is the court, not the defendant, that must ensure
that the record of that sentencing proceeding reflects com-
pliance with the statutory and constitutional requirements.
We are mindful of the dissent’s concern that use
of shorthand is a common practice for trial judges who are
tasked with managing fast-paced and high-volume dockets.
Nothing in this opinion should be read to hold that a trial
court cannot use shorthand in satisfying the requirement
to pronounce sentence in open court. What we do hold is
that when shorthand is used, there must be evidence in the
record to show exactly what the shorthand referred to, such
that the shorthand did, in fact, serve as a mechanism to
comply with the statutory and constitutional requirements
to pronounce a defendant’s sentence in open court. And
although that evidence may exist in other cases, there was
no such evidence in defendant’s case.
In sum, references to the “DV package” in this case
were not made in a manner that made the required pro-
bation conditions “apparent when viewed in context.” Macy,
312 Or App at 238. Because it was not made clear—either
in the record prior to sentencing or as presented in open
court—that the challenged condition was a part of the “DV
Package,” that condition was imposed for the first time in
the judgment. As noted, we will remand for resentencing
when a court imposes conditions of probation in a judgment
that have not been announced in open court.
B. The probation condition requiring disclosure of convic-
tions to “any domestic partner” is unconstitutionally
vague under the Fourteenth Amendment to the United
States constitution.
Although we normally would remand for resen-
tencing at this juncture, defendant does not simply ask
for resentencing, he also asks us to determine whether
the probation condition requiring disclosure of his convic-
tion to “any domestic partner” is unconstitutionally vague.
Defendant asserts that preservation is not required because
the error appeared for the first time in the judgment. The
Cite as 325 Or App 574 (2023) 585
state disagrees, contending that “[b]ecause the trial court
pronounced that defendant would be subject to the ‘DV
Package’ in open court, defendant had an opportunity and
obligation to object to the imposition of any of its conditions.”
As a result, the state asserts, defendant had sufficient
opportunity to object to both the DV package and its condi-
tions such that preservation requirements are not excused.
The state further argues that defendant’s failure to object
means the challenge was not preserved, so that any error
must be plain for this court to address it. Again, we agree
with defendant.
As we determined above, the use of the short-
hand term “DV package” in open court was insufficient to
announce the specific challenged condition. We have previ-
ously held that preservation is not required when “the error
appears for the first time in the judgment.” State v. Bates,
315 Or App 402, 404, 500 P3d 746 (2021). Because that is
the situation here, we address the merits of defendant’s
argument.
We review a sentencing court’s imposition of a pro-
bation condition for legal error. Gallo, 275 Or App at 869.
Here, defendant claims that the probation condition that
requires him to disclose the nature of his conviction “to any
domestic partner” is unconstitutionally vague under the
Fourteenth Amendment to the United States Constitution.2
“A statute or probation condition is vague under the Due
Process Clause if it contains a lack of notice so that [people]
of common intelligence must necessarily guess at its mean-
ing,” or so that it “allows those who enforce it to do so in
an arbitrary or discriminatory manner.” State v. Farris, 312
Or App 618, 624, 492 P3d 744 (2021).
To determine whether the phrase “any domestic
partner” is unconstitutionally vague, we first determine
2
While a similar argument can be made under Article I, sections 20 and 21,
of the Oregon State Constitution, defendant did not make such an argument.
Accordingly, despite the “first things first” doctrine, we do not address it. State
v. Link, 367 Or 625, 640, 482 P3d 28 (2021) (Oregon appellate courts “frequently
state[ ] a preference for resolving disputes under state law, including the state
constitution, if possible. On the other hand, it is a bedrock principle of appellate
jurisprudence that courts generally should decide cases as framed by the parties’
properly raised and preserved arguments.”).
586 State v. Priester
whether a definition has been provided to explain its use in
this instance, such as in the probation condition or a related
statute. See, e.g., Penn v. Board of Parole, 365 Or 607, 631-
32, 451 P3d 589 (2019) (first determining whether a disputed
word is defined by the statute in which it is used). Then, we
look to any available definitions of the term including dic-
tionary and legal definitions to determine its ordinary or
legal meaning. See, e.g., Penn, 365 Or at 637 (considering
the ordinary meaning of the word in question in a probation
condition, citing a dictionary definition); Farris, 312 Or App
at 621-22 (same). If a word or phrase remains vague, we
then look to the context to determine whether the remain-
ing text of the probation condition at issue will provide suf-
ficient clarification to put a person “of common intelligence”
on notice of its meaning. Id.; see also Penn, 365 Or at 637-38
(noting that the full text of a condition did not provide “addi-
tional wording or context” to narrow the meaning of a vague
phrase). That approach is similar to how we analyze stat-
utes under State v. Gaines, 346 Or 160, 206 P3d 1042 (2009),
and PGE v. Bureau of Labor and Industries, 317 Or 606, 859
P2d 1143 (1993), but we frequently do not have the benefit of
a robust legislative history to aid our analysis when it comes
to determining the meaning of probation conditions.
“[A]ny domestic partner” is not defined in the pro-
bation condition, nor is there a statutory definition that
directly applies to the criminal statutes involved in this
case. We thus look to any other available definitions of the
phrase.
As relevant here, the dictionary defines “domestic
partner” as “either one of two people of the same or opposite
sex who are unmarried and live together in a committed
relationship especially when considered as to eligibility for
spousal benefits.” Merriam-Webster Unabridged Dictionary,
http://unabridged.merriam-webster.com/unabridged/
domestic partner (accessed Apr 18, 2023). The same dictio-
nary defines “committed relationship” as “a serious and last-
ing romantic relationship with someone.” Merriam-Webster
Unabridged Dictionary, http://unabridged.merriam-webster.
com/unabridged/committed relationship (accessed Apr 18,
2023). Thus, under the dictionary definition, a “domestic
partner” is “either one of two people of the same or opposite
Cite as 325 Or App 574 (2023) 587
sex who are unmarried and live together in [a serious and
lasting romantic relationship with someone.]”
The concepts of “domestic partnership” and other
“domestic” matters arise in areas of the law not directly
related to this case. For example, ORS 106.310(1) defines
“[d]omestic partnership” as “a civil contract described in ORS
106.300 to 106.340 entered into in person between two indi-
viduals of the same sex who are at least 18 years of age, who
are otherwise capable and at least one of whom is a resident
of Oregon.” Oregon law also recognizes unregistered domes-
tic partners and nonmarital domestic relationships between
opposite sex couples. See, e.g., Staveland v. Fisher, 366 Or
49, 455 P3d 510 (2019) (considering property rights in the
dissolution of an unregistered nonmarital domestic partner-
ship between two individuals of the opposite sex); Wilbur v.
DeLapp, 119 Or App 348, 850 P2d 1151 (1993) (same).
Here, the two definitions differ in some signifi-
cant respects. The dictionary definition deals with both
opposite-sex and same-sex couples; the statutory definition
only addresses same-sex couples. The dictionary definition
requires that the couple live together; the statutory defini-
tion does not. The dictionary definition contains subjective
factors about the duration and nature of the relationship;
the statutory definition contains no such descriptors. There
is thus not one universally agreed upon definition of “domes-
tic partner” that we can point to.
Although it is highly unlikely that the condition
was intended to apply only to same-sex partners, and thus
unlikely that the probation condition tracks the definition
in ORS 106.310, that does not end the vagueness inquiry.
The dictionary definition still requires interpretation of the
meaning of “serious” and “lasting” in terms of a “romantic
relationship.” In United States v. Reeves, 591 F3d 77, 79 (2d
Cir 2010), the Second Circuit determined that the phrase
“significant romantic relationship” was an unconstitution-
ally vague condition, because “[w]hat makes a relationship
‘romantic,’ let alone ‘significant’ in its romantic depth, can
be the subject of endless debate that varies across genera-
tions, regions and genders.” Reeves, 591 F3d at 81.
588 State v. Priester
Like the condition in Reeves, the dictionary definition
here includes terms—“serious,” “lasting,” and “romantic”—
that “can be the subject of endless debate.” Accordingly,
although Reeves is not binding on us, we find its reasoning
persuasive. We thus conclude that the dictionary definition
of “domestic partner” standing on its own has a level of sub-
jectivity that makes it unconstitutionally vague.
Adding to the vagueness of the meaning of the
phrase is that ORS 135.230(3) defines “domestic violence” as
“abuse between family or household members” which, under
ORS 135.230(4), includes spouses, former spouses, adult per-
sons related by blood or marriage, persons cohabiting with
each other, persons who have cohabitated with each other
or have been involved in a sexually intimate relationship,
and unmarried parents of a minor child. Although ORS
135.230 applies to statutes that govern pretrial release, it
demonstrates that “domestic” can refer to a larger range of
relationships than the dictionary definition contemplates. It
could be, then, that the term “any domestic partner” in the
probation condition has a meaning that is something other
than that provided by the dictionary.
Because the phrase “any domestic partner” is
vague, we look to see if there is any context that could assist
in determining its meaning. Here, the condition states in
its entirety: “Disclose nature of conviction to any domestic
partner.” There is no “additional wording or context,” Penn,
365 Or at 637-38, in the probation condition itself that pro-
vides any clarity about what relationships are covered. That
makes this case unlike Farris, in which we concluded that
the context surrounding the word “intimate” made it clear
when the defendant would have to seek permission from his
probation officer prior to starting a relationship. 312 Or App
at 622.
As we have held, a condition is vague when people
must guess at its meaning or when it allows arbitrary or
discriminatory enforcement. Id. at 624. Here, both are true.
There is no universally agreed upon meaning of the phrase
“domestic partner.” And, given the wording of the condi-
tion, there is no way to determine with the needed amount
of certainty what relationships count as relationships
Cite as 325 Or App 574 (2023) 589
between “domestic partners” and thus require disclosure
of defendant’s convictions. That lack of certainty is the
same for both people subject to the condition and people
charged with enforcing compliance with it. For that rea-
son, we disagree with the state’s position that defendant
could cure any vagueness problems by simply asking his
probation officer for clarification. This is not a situation
in which a seemingly vague phrase has an agreed upon
meaning that is simply unfamiliar to the general public.
Because of the lack of a singular definition for the phrase,
it is possible for the condition to be enforced in an arbitrary
or discriminatory manner. The probation condition that
defendant “[d]isclose nature of conviction to any domestic
partner” is unconstitutionally vague under the Fourteenth
Amendment.
Remanded for resentencing; otherwise affirmed.
POWERS, J., concurring in part, dissenting in
part.
It is undisputed that the trial court told defendant
in open court that it was imposing the “DV package” of pro-
bation conditions for Counts 4, 5, and 6, as part of defen-
dant’s sentence. Notwithstanding that pronouncement, the
majority opinion concludes that one of those conditions,
which requires defendant to “[d]isclose [the] nature of [the]
conviction to any domestic partner,” was imposed for the
first time in the written judgment. That conclusion, in my
view, gives short shrift to the court’s oral pronouncement at
sentencing and the important context that existed in that
courtroom and in courtrooms around the state every day.
Because the majority opinion does not adequately address
both the written and oral circumstances surrounding the
trial court’s imposition of the DV package of conditions, I
respectfully dissent from the majority opinion’s discussion
of defendant’s third assignment of error. I fully join the por-
tions of the majority opinion that (a) reject the first assign-
ment of error challenging the trial court’s ruling on the
motion for judgment of acquittal, and (b) conclude that the
third assignment of error is moot. Accordingly, I concur in
part and dissent in part.
590 State v. Priester
The circumstances leading up to the trial court
entering a judgment with a condition of probation to
“Disclose nature of conviction to any domestic partner” seem
unremarkable and could happen in any court across Oregon.
After the trial court found defendant guilty of several
crimes following a bench trial, sentencing was set over for
a week. When the parties returned to court, the prosecutor
began the sentencing hearing by informing the court that
it “handed up a UCJ [Uniform Criminal Judgment] that is
the State’s [sentencing] recommendation” and then turned
to arguing about specific aspects of its recommendation.
The UCJ referenced by the prosecutor—a portion of which
is included as an appendix to this separate opinion—was a
six-page recommendation that appears to be consistent with
the routine practice for criminal cases in Clackamas County
Circuit Court. In particular, the UCJ provided checkboxes
for various packages of special conditions:
Importantly, defendant acknowledged the UCJ at the sen-
tencing hearing as part of his argument before the trial
court. Defense counsel explained, “It looks like the State
is not asking for any financial obligations. At least in the
UCJ parts that I’m looking at, it doesn’t look like they’re
asking for any financial obligations, and so I’m not going
to address that issue.” After hearing the parties’ sentenc-
ing arguments, the trial court then fulfilled its obligation
to pronounce judgment in open court. See State v. Jacobs,
200 Or App 665, 671, 117 P3d 290 (2005) (explaining that
the right to be present at sentencing “has both statutory
and constitutional sources”). As part of its pronouncement,
the trial court told defendant what sentencing grid block it
was using, the length of probation, whether it was imposing
a jail sanction or reserving that for later, and what special
conditions of probation it was imposing, including that it
Cite as 325 Or App 574 (2023) 591
was imposing the “DV package” for Counts 4, 5, and 6.1 The
written judgment then included the specific details to those
provisions, including the special condition of probation that
defendant challenges on appeal. In sum, “DV Package” was
listed on the UCJ and provided to the defendant and to the
court prior to sentencing. The UCJ was referenced by the
prosecutor and acknowledged by defendant during sentenc-
ing, and the court made three oral pronouncements that the
“DV Package” was being imposed as it sentenced defendant.
The majority opinion does not grapple with this
context when it concludes that the challenged condition was
imposed for the first time in the judgment. As we have previ-
ously acknowledged, “trial courts sometimes speak in short-
hand at sentencing and adopt by specific reference a state’s
recommended sentence in a manner where the imposition of
the fine or fee is apparent when viewed in context * * *.” State
v. Macy, 312 Or App 234, 237-38, 492 P3d 1277 (2021). In my
view, the context here provided sufficient clarity about the
sentence imposed by the trial court.
Given that context, which is undoubtedly similar
to sentencing hearings across Oregon that refer to oft-used
special conditions of probation, the use of the UCJ belies
defendant’s assertion that the challenged condition was
imposed for the first time in the judgment. The UCJ is a
form that includes checkboxes and blank spaces describing
various parts of a defendant’s sentence, including whether
there is a durational or dispositional departure, the type of
probation (i.e., bench or supervised) and length, and check-
boxes for special conditions of probation that are routinely
1
More specifically, the trial court told defendant in open court:
“Count 4, misdemeanor, 60 months of probation. No contact with [the
victim]. I don’t know how—well, I’m not sure how you could get weapons and
firearms in the penitentiary, but when [defendant] gets out, no weapons, no
firearms.
“Reserve all sanction units. And DV package and substance abuse
package.
“Count 5, 60 months of supervision, substance abuse package, DV pack-
age, reserve all sanction units, no contact with [the victim], no weapons and
no firearms.
“And on Count 6, 60 months of supervised probation, substance abuse
package, DV package, no contact with [the victim], no weapons and no fire-
arms, reserve all sanction units.”
592 State v. Priester
imposed. For instance, there are checkboxes for “Community
Service,” “Theft Talk,” and “Anger Management,” as well as
checkboxes for packages of special conditions such as the
“Substance Abuse Package,” “Financial Crimes Package,”
and the “DV Package.” All of those checkboxes are routinely
used shorthand for special conditions of probation that place
various requirements on a defendant, the details of which
are generally sorted out by the supervising authority.
For example, if a defendant’s sentence includes 16
hours of community service, the court or the supervising
authority will explain what type of community service will
count toward that requirement. Similarly, if a defendant is
ordered to complete “Theft Talk” or “Anger Management” as
a special condition of probation, the supervising authority
will explain what type of class or seminar will fulfill that
sentence requirement. Although the “DV Package” includes
a variety of special conditions of probation, fundamentally
it is no different than imposing community service or a spe-
cific type of class like anger management.
This would be a different case if defendant’s argu-
ment suggested that there was some confusion because the
DV package had been recently changed to add a new special
condition of probation or that the context of the trial court’s
reference to the “DV package” created some confusion
because it was not part of the routine criminal practice in
the circuit court. Here, however, defendant does not advance
such an argument and, indeed, the majority opinion gives
no effect to the trial court’s pronouncement of the “DV pack-
age” at all. That is problematic in my view, especially given
the parties’ discussion of the UCJ at the sentencing hearing,
which included references to the DV package. Although we
must be sensitive to confusion that can arise from the use
of shorthand or abbreviated phrases, this is not a situation
where we should excuse defendant from raising his chal-
lenge when the trial court fulfilled its obligation to announce
what special conditions of probation applied to defendant’s
probation. Accordingly, I would reject defendant’s assertion
on appeal that he is excused from the preservation require-
ment. Indeed, adherence to preservation principles would
have given the trial court and the parties an opportunity to
address defendant’s underlying complaint that the special
Cite as 325 Or App 574 (2023) 593
condition of probation is too vague for him to understand
and follow. See Peeples v. Lampert, 345 Or 209, 219-20, 191
P3d 637 (2008) (explaining that the prudential requirement
of preservation serves several purposes, including providing
the trial court the chance to consider and rule on an issue,
ensuring fairness to the opposing party by giving that party
an opportunity to respond, and fostering full development of
the record).
Finally, I also dissent from the majority opinion’s
decision to address the merits of defendant’s challenge. Had
defendant raised his objection, the parties could have made
a record on whether the term “any domestic partner” is con-
stitutionally vague, and the trial court could have provided
clarity on the meaning of that term. To me, that is no differ-
ent than a defendant asking whether volunteer service at a
church or place of worship would qualify as community ser-
vice or whether a particular online class fulfills the anger
management special condition of probation. Thus, at the
very least, we should remand the case back to the trial court
to address the constitutional argument in the first instance,
as we have done in other situations where we concluded that
the challenged condition was imposed for the first time in
the judgment. See, e.g., State v. Keen, 304 Or App 89, 90,
466 P3d 95 (2020) (remanding for resentencing when spe-
cial probation conditions were not announced in open court
and noting that on remand “the parties may raise, and the
court may address,” the merits of the defendant’s argu-
ment). See also ORS 138.257(4)(a)(B) (“The appellate court
shall remand the case to the trial court * * * [i]f the appellate
court determines that the trial court, in imposing or failing
to impose a sentence in the case, committed an error that
requires resentencing.”).
For the foregoing reasons, I would give meaning
to the trial court’s pronouncement of the “DV package” of
special conditions and reject defendant’s contention that the
challenged condition was imposed for the first time in the
judgment. Further, even assuming that the challenged con-
dition was imposed for the first time in the judgment, I would
remand the case to the trial court instead of addressing the
merits of defendant’s challenge. In my view, our unwilling-
ness to recognize the context of the trial court’s sentencing
594 State v. Priester
hearing undercuts preservation principles and could make
sentencing proceedings unnecessarily cumbersome.
Accordingly, I respectfully concur in part, dissent in
part.
Cite as 325 Or App 574 (2023) 595
APPENDIX
596 State v. Priester
Cite as 325 Or App 574 (2023) 597