agreeing that “intimate” was broad but concluding that the case was distinguished from Penn because the probation condition included “sexual,” thus offering additional wording, “that goes beyond the word ‘intimate’ ” clarifying that “within the broad range of pos- sible ‘intimate’ relationships or encounters, the condition is focusing on the ‘sexual’ sort.”
How later courts described this case
- agreeing that “intimate” was broad but concluding that the case was distinguished from Penn because the probation condition included “sexual,” thus offering additional wording, “that goes beyond the word ‘intimate’ ” clarifying that “within the broad range of pos- sible ‘intimate’ relationships or encounters, the condition is focusing on the ‘sexual’ sort.”
Written by the judges who cited it.
The opinion
618
Submitted July 17, 2020, affirmed June 30, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DYLAN ROBERT FARRIS,
Defendant-Appellant.
Washington County Circuit Court
18CR25173; A169284
492 P3d 744
Defendant, who pleaded guilty to one count of second-degree sexual abuse,
ORS 163.425, challenges a special condition of his probation. That condition
prohibits defendant from entering into “any intimate or sexual relationship or
encounter (such as dating, romantic, or otherwise sexual) with any person with-
out prior written permission from [his] supervising officer.” Defendant argues
that the condition is vague, in violation of the state and federal constitutions,
and overbroad, in violation of the federal constitution. Held: The challenged pro-
bation condition was not vague in violation of the state or federal constitutions,
because a person of common intelligence and the supervising probation officer
would understand that the condition applies to relationships of a sexual nature,
and defendant’s supervising officer could offer additional guidance. The condition
was not overbroad in violation of the federal constitution because it interfered
with defendant’s right of association to a permissible degree in light of the pur-
poses of probation.
Affirmed.
Theodore E. Sims, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Affirmed.
Cite as 312 Or App 618 (2021) 619
DeVORE, P. J.
Defendant, who pleaded guilty to one count of
second-degree sexual abuse, ORS 163.425, challenges a
special condition of his probation that prohibits defendant
from entering into “any intimate or sexual relationship or
encounter * * * with any person without prior written per-
mission from [his] supervising officer.” Defendant argues
that the condition is vague, in violation of the state and fed-
eral constitutions, and overbroad, in violation of the federal
constitution. For the reasons below, we conclude that the
challenged condition is neither unconstitutionally vague nor
overbroad. We affirm.
Defendant’s conviction followed his guilty plea to
the sexual abuse of a 16-year-old girl who “functions and
presents as much younger [than] her chronological age.”
Defendant was 19 years old at the time of the abuse and had
moved in with the victim and her mother. Defendant admit-
ted that, over the course of a month, he began touching the
victim and eventually had sex with her. The victim told
investigators that she felt that she could not say no when
defendant approached her for sex.
The sentencing court imposed a sentence of five
years of probation and a number of probation conditions.
The ninth special condition of probation entered on the judg-
ment of conviction requires, in full, that
“[t]he defendant shall not enter into or participate in any
intimate or sexual relationship or encounter (such as
dating, romantic, or otherwise sexual) with any person
without prior written permission from the supervising
officer.”
That condition was not discussed at sentencing, and, con-
trary to the state’s assertion, there is no evidence in this
record that defendant had notice of that condition until it
appeared in the judgment of conviction. Preservation con-
cerns do not preclude review.
On appeal, defendant challenges the validity of
that condition in two ways. First, in a combined argument,
defendant contends that the probation condition violates
620 State v. Farris
Article I, sections 20 and 21, of the Oregon Constitution1
and the Due Process Clause of the Fourteenth Amendment
to the United States Constitution,2 because its terms are
vague. Specifically, defendant argues that the use of the
word “intimate” in the condition is so vague that it “grants
uncontrolled discretion to defendant’s probation officer to
interpret and enforce” the provision. Also, he contends that
the condition fails “to provide sufficient notice because it
fails to identify the prohibited conduct for a person of ordi-
nary intelligence.” Second, defendant contends that the con-
dition violates the Due Process Clause because it too greatly
infringes on defendant’s constitutionally protected right to
“association and privacy in marriage and family.” Therefore,
he concludes it is overbroad.
The state responds that the challenged probation
condition is not vague in violation of the state or federal con-
stitutions, because a person of common intelligence and the
supervising probation officer would understand that the con-
dition applies to relationships of a sexual nature. Further,
the state contends, the supervising officer can advise defen-
dant if questions arise in order to further mitigate against
any possibility of vagueness. Given the circumstances of
defendant’s conviction, the state argues that the condition is
reasonably related to the policies underlying supervision—
public safety and reformation—and is not unconstitution-
ally overbroad. The state has the better argument.
We consider defendant’s state constitutional claim
first, State v. Sanders, 343 Or 35, 39, 163 P3d 607 (2007),
and review the sentencing court’s imposition of a probation
1
Article I, section 20, of the Oregon Constitution provides:
“No law shall be passed granting to any citizen or class of citizens privileges,
or immunities, which, upon the same terms, shall not equally belong to all
citizens.”
Article I, section 21, of the Oregon Constitution provides:
“No ex-post facto law * * * shall ever be passed, nor shall any law be passed,
the taking effect of which shall be made to depend on any authority, except
as provided in this Constitution; * * *.”
2
The Due Process Clause of the Fourteenth Amendment to the United States
Constitution provides, in part:
“nor shall any State deprive any person of life, liberty, or property, without
due process of law * * *.”
Cite as 312 Or App 618 (2021) 621
condition for legal error, State v. Gallo, 275 Or App 868, 869,
365 P3d 1154 (2015).
A probation condition violates Article I, sections 20
and 21, of the Oregon Constitution if its terms are so vague
that the condition is not “sufficiently explicit to inform those
who are subject to it of what conduct on their part will ren-
der them” in violation of the condition. State v. Graves, 299
Or 189, 195, 700 P2d 244 (1985); see Murphy v. Board of
Parole, 241 Or App 177, 186, 250 P3d 13, rev den, 350 Or
571 (2011) (applying the same vagueness principles applica-
ble to statutes to parole conditions). A probation condition
is also vague in violation of those provisions of the Oregon
Constitution where its terms delegate “uncontrolled discre-
tion” to judges and enforcement personnel to decide what
conduct is prohibited by the condition. State v. Illig-Renn, 341
Or 228, 239, 142 P3d 62 (2006); see State v. Rogers, 352 Or
510, 528, 288 P3d 544 (2012) (explaining that “[v]agueness
concerns typically arise when a statute contains terms that
are so indeterminate or standardless that they leave ques-
tions about its application to the ad hoc judgments of judge,
jury, or police”). The condition does not need to be defined
with such precision that a person in every case can deter-
mine in advance that specific conduct will fall within the
condition, but a reasonable degree of certainty is required
by Article I, sections 20 and 21. Graves, 299 Or at 195.
Defendant’s fair notice criticism focuses on a sin-
gle word in the probation condition: “intimate.” Defendant
argues that given the “vagaries of human experience,” no
man of common intelligence, including defendant and his
probation officer, would be able to agree on what type of rela-
tionship would qualify as “intimate.”
Defendant is correct that the meaning of the word
“intimate” is broad. As the Oregon Supreme Court has
explained in the context of a statutory challenge to a parole
condition,
“[t]he ordinary meaning of ‘intimate’ is broad—essentially,
to be ‘marked by a very close physical, mental or social
association, connection, or contact.’ Webster’s [Third New
Int’l Dictionary 1184 (unabridged ed 2002)]. As that defini-
tion reflects, a relationship that is ‘intimate’ could just as
622 State v. Farris
easily be describing a familial one, such as between a par-
ent and child; a close friendship; or a sexual relationship.”
Penn v. Board of Parole, 365 Or 607, 637, 451 P3d 589 (2019).
The court concluded that, although the board enjoys signif-
icant authority to impose special conditions of post-prison
supervision, it had acted outside that authority. 365 Or at
638.
In Penn, however, the challenged post-prison super-
vision condition was less specific than defendant’s probation
condition in this case. The supervision condition required
that the petitioner not “ ‘enter into or participate in any inti-
mate relationship or intimate encounters with any person
(male or female) without the prior written permission’ of
his supervising officer.” Id. at 609. In that instance, where
the state argued that “intimate” clearly only encompassed
relationships of a sexual nature, the Oregon Supreme Court
concluded that
“[i]n the absence of additional wording or context that
establishes unambiguously that the narrower meaning—
‘sexual’—is intended, a ‘person of ordinary intelligence will
not know, with any degree of certainty, whether the condi-
tion extends to close social and mental relationships and
other close physical relationships as well as sexual ones.”
Id. at 637-38. The board’s refusal, even after administrative
review, to modify the condition so that it had a narrower
focus proved fatal to the condition. Id. at 639.
In this case, the probation condition offers addi-
tional wording that goes beyond the word “intimate” to
describe when defendant must seek permission from his
probation officer before entering into a relationship. The
condition provides that defendant must seek permission
before participating in any “intimate or sexual relationship
or encounter (such as dating, romantic, or otherwise sexual)
* * *.” (Emphases added.) Unlike in Penn, that phrasing
clarifies that, within the broad range of possible “intimate”
relationships or encounters, the condition is focusing on the
“sexual” sort. The condition goes on to provide examples of
the relevant behavior. Those surrounding terms of the con-
dition provide context and meaning to the word “intimate”;
Cite as 312 Or App 618 (2021) 623
those terms clarify the targeted relationships or encounters
are those of a sexual nature and not of a familial nature.
Defendant’s remaining argument as to fair notice is
that, even if the condition requires him to seek approval for
only intimate relationships of a sexual nature, he would not
know if he needed to seek approval to send a “love letter to a
person who does not have reciprocal romantic feelings.”
The condition, however, mitigates against a lack of
fair notice by providing a procedural mechanism for remov-
ing any doubt as to whether defendant needs to seek prior
permission before entering a given relationship. If defen-
dant is unsure whether a relationship is of an “otherwise
sexual” nature, he can ask his probation officer for guid-
ance. See Long v. Board of Parole, 189 Or App 56, 63, 73 P3d
934 (2003) (explaining that a probationer may be guided as
to the meaning of a condition by the further explanation
or instruction from his probation officer). Given that proce-
dural mechanism and the clarifying supporting terms, the
condition provides a person of common intelligence suffi-
cient notice to know when to seek approval or guidance from
his probation officer.
For similar reasons, the challenged condition is not
vague in Oregon constitutional terms on the basis that it
vests unbridled discretion with defendant’s probation officer.
A condition typically raises the risk of subjecting a proba-
tioner to the ad hoc judgments of a judge or an enforcement
officer when it contains terms that are “indeterminate” or
“standardless.” Rogers, 352 Or at 528. The fact that a condi-
tion contains terms that may require an enforcing officer to
interpret the condition in certain situations does not neces-
sarily render it unconstitutionally vague. Id.
As explained above, the condition provides guiding
terms and definitions beyond the general definition of the
word “intimate” relied on by defendant, “any contact that
is ‘marked by a very close physical, mental, or social con-
nection.’ ” Penn, 365 Or at 637 (quoting Webster’s at 1184).
Defendant does not explain, other than providing a mere
assertion, why the explanatory terms “sexual,” “dating,”
and “romantic” would not sufficiently guide a probation
officer when determining if approval is required for a given
624 State v. Farris
relationship. Although those words individually may have
varying meanings, taken together, they all sufficiently con-
tain common elements so that, even absent a list of every
possible permutation or relationship that the condition may
encompass, an enforcing officer would have sufficient guid-
ance to understand that the sentencing court intended to
encompass relationships that may become sexual. The con-
dition is not so indeterminate or standardless as to leave the
determination of applicable relationships totally to the ad
hoc whims of the probation officer.
The challenged condition is also not vague in vio-
lation of the federal Due Process Clause. The vagueness
analysis under the federal constitution is very similar to the
Oregon constitutional analysis. State v. Plowman, 314 Or
157, 162, 838 P2d 558 (1992), cert den, 508 US 974 (1993).
A statute or probation condition is vague under the Due
Process Clause if it contains a lack of notice so that men of
common intelligence must necessarily guess at its meaning,
United States v. King, 608 F3d 1122, 1128 (9th Cir 2010),
or allows those who enforce it to do so in an arbitrary or
discriminatory manner. Kolender v. Lawson, 461 US 352,
357, 103 S Ct 1855, 75 L Ed 2d 903 (1983); see United States
v. Johnson, 626 F3d 1085, 1090 (9th Cir 2010) (applying
the same vagueness principles of the Due Process Clause
applicable to statutes to conditions of supervised release).
As explained above with respect to the Oregon Constitution,
the probation condition does neither of those things and,
accordingly, does not violate the Due Process Clause.
Defendant next argues that the probation condi-
tion is overbroad because it encroaches upon his freedom of
association under the Fourteenth Amendment to the United
States Constitution. A condition is overbroad when it pur-
ports to prohibit conduct that is constitutionally protected.
State v. Ausmus, 336 Or 493, 504, 85 P3d 864 (2003).
Defendant contends that the challenged condition
violates his fundamental rights to marriage, familial
association, religion, procreation, and privacy. In respect
to overbreadth, defendant renews his arguments that the
definitions of the words “intimate” and “encounters” are
so expansive as to cover almost any interaction with any
Cite as 312 Or App 618 (2021) 625
person. Specifically, he argues that by its plain language,
the condition restricts his ability to spend time with all of
his close family and friends, have a conversation with his
neighbor or professional colleague, give confession to a
priest, seek a mentor at Alcoholics Anonymous, or write to
a pen pal.
We disagree. As explained above, the scope of the
probation condition is not so expansive. When read as a com-
plete sentence, the probation condition guides defendant to
seek approval from his probation officer before beginning a
relationship that may become sexual. It does not logically
follow that such a prohibition would impede defendant’s
ability to form a typical relationship with a religious leader,
neighbor, family member, or stranger in a coffee shop.
To the extent that the probation condition does impli-
cate defendant’s fundamental rights under the Fourteenth
Amendment by potentially restricting his personal decisions
relating to marriage, procreation, and intimate association,
that intrusion is not necessarily fatal. See, e.g., Obergefell v.
Hodges, 576 US 644, 646, 135 S Ct 2584, 192 L Ed 2d 609
(2015); Lawrence v. Texas, 539 US 558, 578, 123 S Ct 2472,
156 L Ed 2d 508 (2003) (both describing the constitutional
protection afforded those rights by the Due Process Clause).
Where fundamental rights are affected, the sen-
tencing court does have “less discretion” to impose conflict-
ing conditions. State v. Donahue, 243 Or App 520, 526, 259
P3d 981 (2011) (internal quotation marks omitted). However,
inherent in the nature of probation is that probationers “do
not enjoy the absolute liberty to which every citizen is enti-
tled.” United States v. Knights, 534 US 112, 119, 122 S Ct
587, 151 L Ed 2d 497 (2001) (internal quotation marks omit-
ted). A sentencing court may impose reasonable probation
conditions that curtail a probationer’s fundamental rights in
relation to those enjoyed by other citizens. Id. The degree to
which a probation condition interferes with a probationer’s
fundamental rights is balanced against its reasonable rela-
tion to the two primary goals of probation—rehabilitation
and protecting the public from future criminal violations.
Id.; Donahue, 243 Or App at 526.
626 State v. Farris
We conclude that, on this record, the challenged pro-
bation condition is not impermissibly broad in light of defen-
dant’s invocation of his freedom of association. There is a
direct relationship between the nature of defendant’s crimes
and the purposes of probation. Defendant’s conviction
involves an abusive relationship with a minor. After mov-
ing in with the victim and her mother, defendant cultivated
trust with the victim so as to put himself into a position of
power making the victim feel as if she could not refuse when
he initiated a sexual relationship. The circumstance that
the victim was underage and functioned at a level far below
her actual age did not deter defendant from pursuing a sex-
ual relationship with her.
Requiring defendant to alert his probation officer
to ask permission before entering into another potentially
sexual relationship is a reasonable mechanism to protect
the public from defendant once again entering into an inap-
propriate relationship with someone he has cultivated trust.
The condition serves the purposes of rehabilitation by help-
ing to prevent defendant from reoffending through the guid-
ance of his probation officer.
The precautionary restriction is limited in scope
and duration. Defendant is allowed to enter into a poten-
tially sexual relationship once he has obtained the permis-
sion of his probation officer, and the condition imposed is
limited to the term of defendant’s probation—five years. The
probation condition interferes with defendant’s right of asso-
ciation to a permissible degree in light of the purposes of
probation.
In all, the probation condition is not impermissibly
vague under either the state or federal constitutions, and it
is not overly broad in violation of the federal constitution.
Affirmed.