Opinion
A171606
08-11-2021
STATE of Oregon, Plaintiff-Respondent, v. William Conrad BUTLER, Defendant-Appellant.
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.
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 try.....give it a chance......see what happens....I love you wife.
"I'm not doing anything other than trying to save our marriage[.] * * * I've put 1000 in contributions into the account in less than a month...has it even been seen?....or does it matter?......This family loves you.....always has....they were
your mom and dad too remember?....my daughter was like your daughter....we all love and miss you.....none more than your husband...."
(Ellipses in original.) In addition to containing language directly addressing R, the posts often concerned topics that appear to relate only to R, including posts about the timing of future monetary contributions:
"Just found out my long-term disability pays once a month.....so my contributions to help out will be monthly starting in April.....I just hope that works.......I know it's not what was expected....but it's the best I can."
(Ellipses in original.) The fact that defendant repeatedly created new profiles shortly after R blocked him, combined with the content of the messages on those profiles, could lead to the inference that it was more likely than not that defendant was attempting to contact R. See State v. Crombie , 267 Or. App. 705, 711, 341 P.3d 841 (2014) (concluding that defendant "contacted" victim by including messages directed to her attached to court pleadings in their marital dissolution case because a rational trier of fact could conclude that he wanted the victim to read the messages).
Defendant contends that his creation of profiles was evidence only that he was attempting to see R's profile, not trying to communicate with her. Further, defendant points out that R would not see the messages without taking the proactive step of navigating to defendant's page, meaning that defendant did not intend to communicate as much as R sought out the messages. Although those may very well be permissible inferences, they are not the only ones. According to R, she usually kept her profile public, meaning that defendant did not need to make any new accounts to see it. Moreover, that R clicked when Facebook's algorithm continually made her aware of defendant's new profiles is not dispositive. The question is whether defendant intended her to see the posts. A rational factfinder could conclude that he created nine profiles for no reason other than to make it possible that R would see the posts, and he continued making new profiles and posting on them even after his probation officer made him aware that R was seeing the messages.
Although not addressed by the parties or the trial court, the definition of "contact" in defendant's probation conditions includes "accessing victim's social networking sites."
Although the trial court could have permissibly reached the opposite result, the evidence allows a reasonable trier of fact to conclude that it was more likely than not that defendant was attempting to communicate with R.
At oral argument, the state contended that the result in this case would be the same if defendant published similar messages in a book entitled "Dear Wife" that he hoped R would read, but took no steps to provide to her. We disagree. This case turns on the inference that defendant took steps to put the posts in R's view, not on his desire to express his feelings about R.
Affirmed.