786
Argued and submitted March 4, affirmed August 11, petition for review denied
November 24, 2021 (368 Or 787)
STATE OF OREGON,
Plaintiff-Respondent,
v.
WILLIAM CONRAD BUTLER,
Defendant-Appellant.
Washington County Circuit Court
19CN00828; A171606
494 P3d 1031
Defendant appeals from a probation violation judgment. He was found to
have violated the no-contact provision of his probation by posting about the victim on his Facebook page. He argues that the trial court erred in concluding that
the evidence supported a finding by a preponderance of the evidence that he had
“contacted” the victim and that his probation conditions did not restrict him from
simply talking about the victim. Held: Viewed in the light most favorable to the
state, the record permits the conclusion that defendant was more likely than not
trying to contact the victim. The record reflects that defendant repeatedly created new Facebook accounts 24-48 hours after being blocked by the victim and
continued making posts directly addressed to the victim. Even after defendant’s
probation officer warned him that the victim was seeing his messages, he continued to create new accounts and post messages to her. The trial court did not err
in concluding that defendant violated his probation conditions.
Affirmed.
Ricardo J. Menchaca, Judge.
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.
Affirmed.
Cite as 313 Or App 786 (2021) 787
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.
788 State v. Butler
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 P3d 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 P3d 521, rev den,
365
Or 533 (2019); State v. Paez-Lopez,
155 Or App 617, 621,
964
P2d 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
Cite as 313 Or App 786 (2021) 789
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 P3d 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,1 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
1
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.”
790 State v. Butler
new profiles and posting on them even after his probation
officer made him aware that R was seeing the messages.
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.2
Affirmed.
2
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.
