State v. Dowty

                                        762

       Argued and submitted December 5, 2017, affirmed October 9, 2019


                         STATE OF OREGON,
                          Plaintiff-Respondent,
                                    v.
                      DENNIS VERNE DOWTY,
                         Defendant-Appellant.
                    Tillamook County Circuit Court
                         15CR32852; A163462
                                    

    Defendant appeals a judgment revoking his probation, asserting that the
trial court erred in (1) denying his motion to suppress statements that he made
to his probation officer on the basis that the exclusionary rule of Article I, section
12, of the Oregon Constitution does not apply in a probation-revocation hearing,
and (2) revoking his probation based on his earlier stipulation to revocation upon
his first nonfinancial violation of probation, rather than as an exercise of the
court’s discretion. Held: (1) The trial court’s error, if any, in admitting defendant’s
statements did not prejudice defendant and therefore did not provide a basis for
reversal. (2) Defendant failed to preserve his second assignment of error.
    Affirmed.



    Jonathan R. Hill, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Rolf C. Moan, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
    DEHOOG, P. J.
    Affirmed.
Cite as 

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        DEHOOG, P. J.
         In this case, the trial court found that defendant
had violated two of his probation conditions: (1) General
Condition 11, that he “[p]romptly and truthfully answer
all reasonable inquiries” by his probation officer, see ORS
137.540(1)(k), and (2) a special condition that he “enter into,
satisfactorily participate in and successfully complete a sex
offender treatment program … [and] comply with all written treatment rules and directives.” And, based on defendant’s earlier stipulation that his first nonfinancial violation of probation would result in revocation (referred to as a
“zero-tolerance stipulation”), the court entered a judgment
revoking defendant’s probation and imposing a 48-month
prison term. Defendant appeals that judgment, raising two
assignments of error.
         Defendant first contends that the trial court erred
when, reasoning that the exclusionary rule of Article I,
section 12, of the Oregon Constitution does not apply in
probation-revocation proceedings, it denied his motion
to suppress statements he made to his probation officer.
Second, defendant contends that the court erred in revoking
his probation based on his zero-tolerance stipulation rather
than as an exercise of the court’s discretion. As explained
below, we do not consider defendant’s second assignment
of error because defendant did not preserve that issue for
our review. ORAP 5.45(1) (“No matter claimed as error will
be considered on appeal unless the claim of error was preserved in the lower court ….”). Further, as to defendant’s
first assignment, we conclude that the trial court’s error—if
any—in admitting defendant’s statements into evidence did
not prejudice defendant and, therefore, does not provide a
basis for reversal. Accordingly, we affirm.
         We first set out the historical facts, which are undisputed. We then discuss the evidence presented at the suppression and probation-revocation hearings. Because our
resolution of the case ultimately turns on whether any error
with respect to the admission of defendant’s statements was
prejudicial to him, our consideration of the record necessarily includes all pertinent portions. Cf. State v Harding, 

, 

, rev den, 

 (2008)
764                                                        State v. Dowty

(in assessing whether an evidentiary error is harmless, we
“describe and review all pertinent portions of the record, not
just those portions most favorable to the state”).
          In November 2015, defendant entered a negotiated
guilty plea and was convicted of second-degree sexual abuse,
ORS 163.425, as a lesser included charge of first-degree
rape. Pursuant to the parties’ negotiations, the trial court
designated defendant’s conviction as grid block 10-F on
the sentencing guidelines grid, granted a downward dispositional departure, and sentenced defendant to 60
months’ probation.1 In the judgment, the court imposed
general and special conditions of probation on defendant,
including, as pertinent to this appeal, that defendant
(1) “[p]romptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency,” see ORS 137.540(1)(k) (General
Condition 11), and (2) “enter into, satisfactorily participate
in and successfully complete a sex offender treatment program … [and] comply with all written treatment rules and
directives.” The judgment also stated, “Defendant stipulates
to revocation for first non-financial proven probation violation with a 75-month [Department of Corrections] sentence
with no [Alternative Incarceration Programs].”
          In October 2016, defendant’s probation officer,
Seaholm, reported that defendant was in violation of General Condition 11 and the special condition regarding sex
offender treatment. As Seaholm explained in a written
report, she had learned of defendant’s violations after meeting with him at her office. Seaholm had directed defendant
to report to her office due to her concern that he had been
attempting to contact the victim of his underlying crime
in violation of his probation. When defendant reported to
Seaholm’s office as instructed, she asked him whether he had
contacted the victim. Defendant denied having attempted
to contact the victim directly or indirectly. Seaholm asked
to see defendant’s cellphone, but defendant said that it was
at home. She then asked for his Facebook user name and
password so that she could access his account on her office
   1
     Charges of first-degree sodomy, unlawful sexual penetration in the first
degree, and fourth-degree assault constituting domestic violence were dismissed
pursuant to the plea agreement.
Cite as 

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computer to confirm that he had not posted messages for
the victim online. Defendant complied with that request. As
Seaholm was logging on to defendant’s Facebook account,
she asked him whether she would find evidence of any probation violations; he indicated that she would not. However,
when Seaholm opened his account, she
   “immediately was faced with pictures of penises and female
   genitalia. There were two on-going conversations between
   [defendant] and two other women. These conversations had
   numerous, nude, sexual pictures that were sent back and
   forth between [defendant] and the other women. In addition, there were other images depicting masturbation and
   sexual poses that had been downloaded from the internet
   and sent on these messages.”
Further, according to Seaholm,
   “[d]efendant admitted to sexting with four women; some
   dating back 6 months.
   “One of the pictures was of high concern because it showed
   sexual content (anal penetration) similar to that described
   in the original police report for the crime that [defendant]
   is currently being supervised. This picture appeared to be
   downloaded from the internet.”
         Seaholm eventually obtained defendant’s phone from
a companion waiting in the lobby,2 and defendant allowed
Seaholm and a detective who was present to search it.
According to Seaholm, the phone contained pictures of
children (including a photo of defendant’s minor son and
“another boy about the same age”), as well as videos of sexual
conduct—“females touching genitalia.” Seaholm contacted
Dr. Cook, defendant’s sex offender treatment provider, who
confirmed that defendant’s conduct placed him in violation
of his treatment rules.3 (As Seaholm later testified at the
probation-violation hearing, Cook followed up with a written
violation report, which included a copy of defendant’s treatment rules; we discuss that report in some detail below.)
     2
       Freeman, the mother of defendant’s youngest son, accompanied him to
Seaholm’s office and waited in the lobby while Seaholm interviewed defendant.
     3
       As we explain below, defendant’s treatment rules prohibited, among other
things, possessing images of children or adult females, possessing “pornographic
literature,” and possessing a “computer” with access to the internet.
766                                                           State v. Dowty

          At Seaholm’s request, defendant wrote and signed
a statement in which he admitted to sexting—exchanging
sexually explicit “selfies” by cellphone—with four different
women, two of them for as long as six months. He indicated
his awareness that his conduct violated the terms of his probation and that he had not been truthful with Seaholm, writing, “I lied [t]hinking I would never get caught. Thinking I
could do what I want to.”
          Based on Seaholm’s report and defendant’s written admissions, the state filed a motion requesting that the
court schedule a show cause/probation-violation hearing and
alleging that defendant had violated General Condition 11
and the special condition regarding sex offender treatment.
The court granted the state’s request.
          Before the scheduled hearing, defendant filed a motion
to suppress “all statements made by [defendant] to his
Probation Officer.” He argued that the statements he made to
Seaholm—including his written admissions—were involuntary because he had been in compelling circumstances and
that suppression of the statements was therefore required
under Article I, section 12, of the Oregon Constitution and
the Fifth Amendment to the United States Constitution.4
The state responded, in essence, that the exclusionary rule
does not extend to probation-violation hearings, relying on
federal case law under the Fifth Amendment.
          At the hearing, Seaholm testified to the facts
described above, and the parties largely relied on the legal
arguments that they had made in their written submissions.5 The trial court denied defendant’s motion to suppress,
concluding that, although he had made the statements to
Seaholm under “compelling circumstances” and they would
be inadmissible in a new criminal case, neither the state nor
     4
       Article I, section 12, provides, in part, that “[n]o person shall be …
compelled in any criminal prosecution to testify against himself.” The Fifth
Amendment provides, in part, that “[n]o person shall be … compelled in any
criminal case to be a witness against himself[.]”
     5
       Seaholm also testified that her office is in the same building as the sheriff’s office, state police office, and county jail; that she wore a badge and a gun
when she interviewed defendant; and that defendant was told that it would be a
violation of his conditions of probation if he left without her permission. A copy
of Seaholm’s report and defendant’s written admissions were admitted into evidence for purposes of the motion.
Cite as 

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the federal constitution affected “the admissibility of [the
challenged] statements in the probation violation proceeding.”
         The court then proceeded to hear the merits of
the alleged probation violations. Defendant stipulated to
Seaholm’s testimony from the suppression hearing, and
Seaholm further testified as to the basis for the state’s allegations. Seaholm explained that the first violation was based
on defendant’s statements to her that his cellphone was at
home and that a review of his Facebook account would not
reveal any violations of his sex offender treatment rules;
the second violation was based on Cook’s report. Seaholm’s
violation report and defendant’s written admissions were
admitted into evidence, as was a DVD containing screen
shots taken by Seaholm of images that she had found on
defendant’s Facebook account.
          Cook also testified at the hearing, and the state
entered a copy of his treatment violation report into evidence.
Cook’s report included a copy of defendant’s treatment rules,
which defendant had signed in January 2016. Cook testified
that the rules all applied to defendant, that he had gone over
all of them with defendant, and that defendant had initialed
each rule as he read through them. Cook’s report stated that
defendant had violated Group Rule (GR) 1 (“Group members
must openly discuss and report any past and present deviant behaviors.”); GR 5 (“Group members are not to engage
in any type of sexual contact[6] with another unless involved
in an ongoing relationship with that other that has been
approved.”); GR 18 (“Group members may not possess, own
or use pornographic literature, movies or videos and must
avoid all adult entertainment businesses.”7); and GR 26
(“Photos or objects of (or belonging to) minors, victims, or
target range victims is prohibited.”). In his testimony, Cook
also stated that possession of a smartphone that has internet access violates GR 20 (“Group members may not own,
possess or operate hard drives, discs or computers.”).
    6
      The rules provided that “[s]exual contact is considered to be any touching,
viewing or discussion of sexual activities or sex organs for the purposes of engaging in sexual activities or sexual arousal.”
    7
      That rule also provided, “If there are questions about specifics, the definition of pornographic literature is to be discussed with group until members are
clear about the nature and scope of various publications.”
768                                                          State v. Dowty

         In response to questioning, Cook testified that sexting is considered deviant behavior and thus violates GR 1.
He also testified that possession of nude photos, photos of
male and female genitalia, and photos of anal penetration
qualifies as possession of pornographic literature and therefore violates GR 18. As to GR 26, he testified that, given
defendant’s prior convictions, he was not allowed to have pictures of minors or adult females. Cook acknowledged that he
had not viewed “any of the photos in question here.”
         In closing, the state argued that defendant’s statements to Seaholm, that he had left his phone at home and
that she would not find anything on his Facebook account,
both of which turned out to be false, were sufficient to prove a
violation of General Condition 11 (requiring probationers to
“[p]romptly and truthfully answer all reasonable inquiries”).
With regard to the second violation, the state emphasized
Cook’s testimony, including his testimony that he had gone
over the treatment rules with defendant and defendant had
initialed each one; the Facebook material contained on the
DVD; and defendant’s written statements, which the state
pointed out, indicated that his behavior had been “going on
going back six months while he’s been on treatment” and
that he “didn’t think he was gonna get caught.”
         Defendant, in his closing, addressed each alleged
violation in turn. Defendant first argued that his statement
to Seaholm regarding his phone could not be a basis for a
violation of General Condition 11 because it was “in response
to a [request for] consent to search, not an inquiry.” As to
the second violation, defendant raised various challenges to
the state’s interpretation of the treatment rules, contending that his conduct did not constitute a violation of those
rules “as written.”8 He also argued that GR 20 and 26 were
overbroad—GR 20 because “[e]very single thing that … we
use on a daily basis has hard drives,” and there was “no
    8
      Specifically, he argued that “deviant behaviors,” as used in GR 1, should be
defined by reference to deviate sexual intercourse under ORS 163.305(1) (2015),
which does not include sexting. He also argued that “sexual contact” for purposes
of GR 5 requires physical touch, which did not occur in this case, and that there
was no evidence that Cook had not approved defendant’s relationship with the
women with whom he had been sexting. He further argued that the photographs
contained in Exhibit 4 do not qualify as pornographic “literature” and there was
no evidence of movies or videos.
Cite as 

 (2019)                                             769

evidence regarding the phone, what type of phone, whether
or not it contained a hard drive,” and GR 26 because it would
prohibit him from “having photographs of [virtually] any
person living.” Defendant did not deny that the cellphone
and Facebook account were his or that he had engaged in
the alleged conduct. Defendant did, however, point out that
Cook “never actually saw any of the pictures, photographs,
any of the things that are at question here.”
         At the conclusion of the hearing, the trial court
concluded that defendant was in violation of both General
Condition 11 and the special probation condition related to
sex offender treatment. As to the latter, the court found that
defendant failed to comply with the rules of his treatment
program—specifically, GR 1, 5, 18, and 20—as required by
that condition.9 The court explained:
       “The smart—the internet access with smartphone,
   Dr. Cook testified that in and of itself would be a violation
   of group rules. So, based on that alone, he would be in violation of the second allegation.
       “Additionally, there’s very graphic photographs involving sex, anal sex, human genitalia, breasts, all of which
   Dr. Cook described why that would violate Group Rules
   1, 5, and 18. And so we’d find based on his testimony and
   what’s in State’s 4 that it would violate Group [Rules] 1, 5,
   and 18.”
(Emphases added.)
         Regarding disposition, the state recommended revocation and 60 months’ incarceration based on defendant’s
zero-tolerance stipulation.10 Defendant, on the other hand,
urged the court to continue probation, arguing that allowing defendant to remain on supervision would be beneficial
to everyone: “[I]t would probably be better off for everyone
if [defendant] continued into his treatment, continued on
probation, continued being supervised and monitored and
continued going through the steps required to help deal
   90
      The court found that the state had not proved a violation of GR 26.
   10
      Although the stipulation in the earlier judgment included a “75-month
DOC sentence” upon revocation, the state and the trial court understood that the
court could not impose a 75-month sentence because it exceeded the 60-month
statutory maximum indeterminate sentence for a Class C felony.
770                                              State v. Dowty

with some of these underlying issues.” Defense counsel noted
that defendant had been “very straightforward with his probation officer,” and that he had been compliant for 11 months
on a “very, very tight probation,” not missing meetings with
his probation officer or Cook, recently passing a polygraph,
and working full time. In other words, defense counsel told
the court, “[h]e’s pretty much doing all the things that we
would want a probationer to do except [he] had a slip-up
where he was, you know, eventually just brutally honest
about what had been going on and what was causing it.”
         After confirming that defendant had in fact agreed
to the zero-tolerance stipulation, the trial court ruled:
      “Well, sir, the way—so, on your judgment, it says:
      “ ‘Defendant stipulates to revocation for the first non-financial proven probation violation with a 75-month DOC
   sentence with no AIP.’
       “The reason I always inquire with the person for that is
   because they’re agreeing if there’s a proven probation violation that’s not financial, they’re agreeing to revocation.
   It pretty much—well, not pretty much, it ties the court’s
   hands because there’s already been agreement to that.
      “So, I need to follow that.”
Believing that it could not legally impose a 75-month sentence, see 299 Or App at 769 n 10, the court revoked defendant’s probation and sentenced him to “48 months in prison
with good time, credit for time served, but no AIP, with the
balance of the 60 months on post-prison.”
        Defendant appeals, raising the two assignments of
error noted above. For reasons that will become apparent,
we consider them in reverse order, first considering defendant’s second assignment of error: that the trial court
erred in revoking defendant’s probation based on his zero-tolerance stipulation.
        We review a trial court’s decision to revoke probation
for abuse of discretion, unless an assignment of error raises
a question of law, in which case we review that question for
legal error. State v. Hammond, 

, 

 (2008). “If the trial court’s decision was within the
Cite as 

 (2019)                               771

range of legally correct discretionary choices and produced a
permissible, legally correct outcome, then the trial court did
not abuse its discretion.” State v. Rogers, 

,

 (2000).
           Defendant argues on appeal that the trial court here
abused its discretion because it failed to exercise that discretion, relying instead on defendant’s zero-tolerance stipulation
as the basis for its revocation decision. Referencing Barker v.
Ireland, 

, 

 (1964) (“Probation is not a
matter of right, but a matter of discretion.”), and OAR 213-
010-0001 (“The decision to revoke probation is discretionary and may be exercised upon a finding that the offender
has violated one or more of the conditions of probation, or
that the offender has participated in new criminal activity.”), defendant contends that relying on a “preexisting ‘zero
tolerance’ agreement is inconsistent with the trial court’s
duty to exercise discretion.” Thus, according to defendant,
“[t]he court’s decision ‘flow[ed] from [the] mistaken legal
premise’ that it was required to revoke defendant’s probation for any non-financial violation, so ‘its decision [did] not
fall within the range of legally correct choices and [did] not
produce a permissible legally correct outcome.’ ” (Quoting
State v. Romero, 

, 

 (2010)
(alterations by defendant).).
         The state responds that defendant did not preserve
that legal argument for our review. We agree and, for that
reason, do not consider it. See ORAP 5.45(1) (“No matter
claimed as error will be considered on appeal unless the
claim of error was preserved in the lower court ….”); Peeples
v. Lampert, 

, 

 (2008) (observing
that the preservation requirement, which is “prudential in
nature,” is “well-settled in our jurisprudence”). To be sure,
defendant told the trial court that defendant’s conduct did
not warrant revocation, and he urged the court to instead
continue probation, arguing that it “would be better off
for everyone” if defendant remained on supervision and in
treatment. However, defendant did not argue to the trial
court—as he does on appeal—that the court was precluded,
as a legal matter, from relying on defendant’s zero-tolerance
stipulation as the basis for revoking his probation. Even
after the court clearly expressed its intention to rely on the
772                                                        State v. Dowty

stipulation, explaining that “it tie[d] the court’s hands” and
the court “need[ed] to follow” it, defendant did not inform
the court of his contention that it was legally impermissible
for the court to simply impose the stipulated sanction without exercising its discretion whether to do so. Had defendant raised that issue, the state could have responded, and
the trial court would have had the opportunity to correct
its error, if correction were warranted. Peeples, 

 (explaining that the preservation rule “ensures fairness
to an opposing party, by permitting the opposing party to
respond to a contention and by otherwise not taking the
opposing party by surprise” and “gives a trial court the
chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already
made, which in turn may obviate the need for an appeal”).
Thus, we reject defendant’s second assignment of error for
lack of preservation.11
         We return to defendant’s first assignment of error.
As noted, in that assignment, he asserts that the trial court
erred in denying his motion to suppress the statements he
made to Seaholm, which raises the significant and as-yetunresolved question whether evidence obtained in violation
of Article I, section 12, is admissible in a probation-violation
proceeding.12 We do not, however, reach that question,
because, as we next explain, we conclude that, even assuming that the trial court erred in admitting defendant’s statements, that error was unlikely to have affected the outcome
of defendant’s case.
         We have often recognized that, notwithstanding
trial court error, we may not reverse a judgment if the error
was harmless. Or Const, Art VII (Amended), § 3. And, under
our Article VII (Amended), section 3, case law, an error is
harmless if there is “little likelihood” that it affected the
verdict. State v. Davis, 

, 

 (2003).
As the Supreme Court has explained, “[t]he correct focus of
    11
       Defendant does not request that we exercise our discretion to review the
error as plain error. See ORAP 5.45(1) (providing for discretionary plain error
review).
    12
       Defendant does not reassert his argument that his statements were inadmissible under the Fifth Amendment; indeed, he acknowledges that he conceded
that point at the suppression hearing below.
Cite as 

 (2019)                             773

[that inquiry] is on the possible influence of the error on the
verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and
compelling.” 

 In determining whether a trial court’s error
was harmless, we consider, among other factors, “the nature
of the erroneously admitted evidence in the context of other
evidence on the same issue.” State v. Maiden, 

, 

 (2008), rev den, 

 (2009); see Davis,

 (considering whether a factfinder would
regard the evidence as duplicative, cumulative, or unhelpful in its deliberations). That is, although we do not independently weigh the evidence, we nonetheless “consider[ ]
the significance of challenged evidence in light of the presence or absence of other overwhelming evidence of a defendant’s guilt.” State v. Stewart, 

, 

, rev den, 

 (2015) (internal quotation marks
omitted). “[I]f the erroneously admitted testimony is merely
cumulative of other evidence that established the same fact,
then the evidence is less likely to have affected the verdict.
Similarly, the less substantial the evidence of guilt, the
more likely it is that an error affected the result.” State v.
Kayfes, 

, 

, rev den, 

 (2007) (internal citations omitted). We also consider
“the importance of the erroneously admitted evidence to a
party’s theory of the case.” Maiden, 

 (citing
Davis, 

).
         Thus, the analysis that Article VII (Amended), section 3, would require if it applied to defendant’s appeal is
clear. What is less clear, however, is whether that provision
applies to appeals such as this one, where the argument is
not that the alleged error may have affected the verdict in
defendant’s case, but that it may have formed the basis of
the trial court’s decision to revoke defendant’s probation.
Defendant assumes in his briefing that it does apply, but
he argues that the error was not harmless. In its response,
the state does not address whether Article VII (Amended),
section 3, applies; in fact, the state does not argue harmlessness at all. We conclude, however, that, like the question
regarding Article I, section 12, we need not reach that question, because our case law regarding probation revocation
appeals guides our disposition in this case.
774                                                          State v. Dowty

          Specifically, notwithstanding trial court error, we
will affirm a judgment revoking probation if we can determine that the defendant was not prejudiced by that error.
State v. Johnson, 

, 

 (1973); see
also ORS 19.415(2) (prohibiting reversal of a judgment on
appeal “except for error substantially affecting the rights
of a party”). In Johnson, we concluded that the trial court
had erroneously accepted a nonunanimous verdict in a sixperson jury trial; as a result, we reversed the defendant’s
conviction for a misdemeanor firearm offense. 

. We
affirmed, however, the trial court’s revocation of the defendant’s felony probation based upon the same conduct. 

. We reasoned that, although the trial court could not
rely on the defendant’s erroneous conviction as a basis for
finding a probation violation, it was free to rely on the facts
underlying that conviction to determine that the defendant
had violated the law and, therefore, the conditions of his probation. 

 And, because that evidence was clear—indeed,
defense counsel had acknowledged the defendant’s conduct
at his probation hearing—and the trial court had not limited its reason for revoking probation to his erroneous conviction, we determined that the trial court had not erred in
revoking the defendant’s probation. 

         In the years since Johnson, we have often based our
decision whether to reverse a judgment revoking probation
on whether an error in the course of the revocation proceedings may have been “prejudicial,” as opposed to whether the
error was “harmless” under constitutional standards.13 For
example, in State v. Milnes, 

, 

(2013), we noted that the defendant’s erroneous conviction
for felon in possession of a firearm “also formed the basis, in
part, for the court’s revocation of defendant’s probation,” and
    13
       One notable exception is when the defendant’s due process rights have
been violated or the trial court committed other federal “structural error” in the
course of probation proceedings. In those circumstances, we have held that the
error was not harmless under the federal standard, see State v. Terry, 

, 

 (2011) (admission of hearsay at probation hearing
violated due process), or that the presence of structural error precluded reliance
on a harmless error analysis, see State v. Blanchard, 

, 

 (2010) (court’s denial of defendant’s request to represent himself violated defendant’s Sixth Amendment right to self-representation). Here, as noted,
defendant no longer argues that the admission of his statements violated the
federal constitution.
Cite as 

 (2019)                             775

that the trial court had “not indicate[d] whether it would
have revoked defendant’s probation or imposed the same
sentence in the absence of that conviction.” Accordingly, we
reversed the probation revocation judgment and remanded
to the trial court for reconsideration in light of the reversal
of the defendant’s conviction. 

 (citing in support for that
disposition, State v. McMilian, 

, 

 (2003), rev den, 

 (2004)).
         Similarly, in State v. Rivera-Waddle, 

, 

 (2016), we reversed a judgment
revoking probation and remanded to the trial court for
reconsideration. That was because, although the court had
erroneously found the defendant in violation of probation on
an improper ground, there remained four other potentially
valid bases for revocation. 

 (citing State v. Mast, 

, 

 (1991) (reversing and remanding for reconsideration because it was “unclear” whether
trial court had relied on an improper basis for revoking probation)). Given those precedents, it is apparent to us that,
to determine the proper disposition of defendant’s appeal in
light of his assertion that the trial court erred in admitting
his statements, we must evaluate whether any such error
could have prejudiced defendant in his probation case.
         Ultimately, however, there appears to be little distinction between an assessment whether a trial court error
was “prejudicial” to a probationer and an assessment of
“harmlessness” in an appeal from a judgment of conviction.
And, because defendant’s arguments regarding harmlessness provide a helpful context for addressing prejudice, we
consider those arguments for their persuasive value regarding prejudice. As we explain below, however, we are not persuaded. That is, we ultimately conclude that defendant was
not prejudiced by any error in admitting his statements to
Seaholm; we therefore affirm.
         Defendant contends that the erroneous admission of
the evidence here was reversible error “because defendant’s
statements were necessary for [the first violation] and the
trial court did not say whether it would have revoked probation without that violation.” (Boldface omitted.) We readily
acknowledge that the admission of defendant’s statements
776                                            State v. Dowty

to Seaholm would have been prejudicial with respect to the
court’s finding of the first violation—defendant’s failure to
truthfully answer Seaholm’s questions. Indeed, that violation was predicated solely on defendant’s statements—both
his verbal statements as recounted by Seaholm in her report
and testimony and his written statement admitting that he
had lied.

         We disagree, however, with defendant’s assertion,
citing Milnes, that the judgment must consequently be
reversed “because the court did not say whether it would
have revoked probation without that violation.” In contrast
to the circumstances present in Milnes and the other cases
discussed above, here it is clear that the trial court would
have revoked defendant’s probation based only on the second violation, which concerned defendant’s failure to comply
with the special condition of probation. As detailed above,
the court concluded that it was required, as a result of defendant’s zero-tolerance stipulation, to revoke defendant’s probation upon his first nonfinancial violation of his probation
conditions; moreover, we have now rejected defendant’s
challenge to that conclusion. 299 Or App at 770-72. Further,
there is no dispute that the second violation found by the
court—defendant’s failure to comply with the written rules
and directives of his sex offender treatment program—was
nonfinancial. Thus, unlike in Milnes, there is no uncertainty whether the court would have revoked defendant’s
probation based only on that violation—it would have done
so because it believed that the parties’ stipulation required
that outcome.

        The question here, therefore, reduces to whether
any error in admitting defendant’s statements was prejudicial with regard to that basis for revoking defendant’s
probation—that is, that he had failed to comply with the
rules of his sex offender treatment program. Defendant
suggests that it was prejudicial; he argues that the admitted statements “were highly probative” of that violation
“because his initial statements—denying that he had his
phone with him or that Seaholm would find anything on his
Facebook account—reflected consciousness of guilt, and his
signed confession was overwhelming evidence of guilt.”
Cite as 

 (2019)                                   777

         We disagree. Defendant’s written statements—
admitting to sexting various women over a period of several months—were, of course, pertinent to a fundamental
issue in the case—whether defendant had violated the rules
of his sex offender treatment program. But, the court also
received ample other and highly probative evidence on that
issue. Significantly, defendant sought to suppress only his
statements (as noted above, he moved to suppress “all statements made by [defendant] to his Probation Officer”); he did
not contend—and does not argue to us—that the trial court
also was required to suppress any derivative evidence. That
evidence includes the following.
         First, Seaholm’s report and her subsequent testimony informed the court that defendant’s Facebook account
showed pictures of penises and female genitalia, masturbation, and anal penetration, as well as the sharing of nude
photos between defendant and several women. The evidence
also includes a DVD of screenshots taken by Seaholm of
defendant’s Facebook account, which the court found contained “very graphic photographs involving sex, anal sex,
human genitalia, [and] breasts.” Seaholm also stated that
there were videos on defendant’s phone of sexual conduct,
specifically, “females touching genitalia.”14 Cook testified
that that conduct—sexting, sending sexually explicit photos
of male and female genitalia, and possessing nude photos,
photos of anal penetration, and photos of genitalia—violated
GR 1, 5, and 18, and that possession of a smartphone with
internet access was a violation of GR 20. Cook also testified
that those rules were applicable to defendant and that defendant had initialed each one, indicating his understanding of
the rules.
         In short, there was overwhelming evidence of defendant’s failure to comply with his treatment rules—without
considering defendant’s inculpatory statements—and there
is little likelihood that suppression of those statements
would have assisted defendant. See, e.g., Harding, 

 (concluding that there was little likelihood that
the defendant’s inculpatory statements would have affected

   14
      Defendant does not dispute that the phone Seaholm obtained from
Freeman belonged to him.
778                                                           State v. Dowty

the jury’s verdict “in light of the overwhelming evidence of
defendant’s involvement in the crimes of which he was convicted”); cf. State v. Villanueva-Villanueva, 262 App 530, 535,

 (2014) (concluding that erroneously admitted
hearsay evidence was not harmless because “there was no
overwhelming evidence of guilt for defendant’s convictions”).
          Further, because this case involved a court hearing
as opposed to a jury trial, we also have the benefit of the
factfinder’s evaluation of the evidence. Although the state,
in closing, referred briefly to defendant’s written admissions
to show that his sexting conduct had been “going on going
back six months while he’s been on treatment,” it appears
that defendant’s statements did not weigh at all in the
court’s ultimate determination. In explaining its decision,
the court first found, based on Cook’s testimony, that defendant’s possession of a smartphone with internet access was
itself sufficient to establish the second probation violation.15
The court next explicitly stated that its finding that defendant also failed to comply with other rules of his sex offender
treatment program (specifically, GR 1, 5, and 18) was based
on Cook’s testimony and the material on the DVD. Thus,
although defendant’s written statements were qualitatively
different from the other evidence supporting the second probation violation, there is nothing in the record to suggest
that the trial court relied on those statements as a basis for
its decision.
         Accordingly, viewing the record as a whole, we conclude that, even if the trial court erred in admitting defendant’s statements, that error could not have affected the
court’s determination that defendant had violated the special condition of his probation or its ultimate decision to
revoke defendant’s probation, and, consequently, defendant
was not prejudiced by the asserted error.
           Affirmed.

    15
       Although defendant argued to the trial court—in the context of arguing
that GR 20 was overbroad—that “there was no evidence regarding the phone,
what type of phone, whether or not it contained a hard drive,” he does not contend
on appeal that the evidence was legally insufficient for the court to have found
that his cellphone had internet access, nor that the court erred as a matter of law
in accepting Cook’s opinion that possession of such a phone violated GR 20.