State v. Moghadas

No. 381                 June 5, 2024                     103

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
             BABAK LOFTI MOGHADAS,
                  Defendant-Appellant.
           Washington County Circuit Court
                20CR02760, 22CR07792;
      A179637 (Control), A179638, A179901, A179902

   Erik M. Buchér, Judge (Judgment entered September 8,
2022; Amended Judgment entered September 14, 2022;
Second Amended Judgment entered October 6, 2023; corrected Second Amended Judgment entered October 11, 2023)
  Theodore E. Sims, Judge (Amended Judgment October 6,
2023)
   Argued and submitted April 24, 2024.
   Rond Chananudech, 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.
   Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
   AOYAGI, P. J.
   Reversed and remanded.
104                                       State v. Moghadas

        AOYAGI, P. J.
         This is a consolidated appeal of judgments revoking
defendant’s probation in two separate criminal cases, Case
No. 20CR02760 and Case No. 22CR07792. In four assignments of error, defendant argues that two of the trial court’s
violation findings were not supported by the evidence and
that the court therefore erred in each case by revoking probation based in part on those findings. Defendant asks that
we reverse the probation-revocation judgments and remand
for the trial court to reconsider whether to revoke defendant’s probation based on the remaining violations.
         Whether the evidence was legally sufficient to prove
a probation violation is a question of law. State v. Stroud,

, 

 (2018). We view the relevant evidence in the light most favorable to the state. State
v. Butler, 

, 

, rev den, 

 (2021).
         Violation based on residence. As a general condition of probation, defendant was required to get permission
before changing his residence, and, as a special condition of
probation, defendant was required to reside with his father.
The trial court found defendant in violation of the special
condition, based on evidence that defendant spent the night
elsewhere on two specific dates. The state concedes that the
evidence was legally insufficient to establish that defendant
changed residences, i.e., that he was no longer residing with
his father. We agree. The trial court erred in finding that
defendant violated the probation condition that he live with
his father.
         Violation based on failure to report. As a general
condition of probation, defendant was required to report
as directed by his probation officer. The trial court found
that defendant violated that condition by failing to report
for a month-and-a-half period while his probation officer did
not know where he was due to his failure to use his GPS
monitor as ordered. However, the failure to comply with the
GPS condition was a separate issue from failure to comply
with the reporting condition, and the only “failure to report”
allegation was that defendant failed to attend a scheduled
Nonprecedential Memo Op: 

 (2024)                               105

meeting with his probation officer on June 30, 2022. No evidence was admitted at the probation-violation hearing to
establish that defendant was supposed to meet with his probation officer on June 30, 2022, and did not show up. The
trial court therefore erred in finding that defendant violated
his probation by failing to report as directed.1
         Probation revocation. The trial court found defendant to have committed other probation violations in addition
to the two addressed above. The state urges us to conclude
on this record that the court would have revoked defendant’s
probation even without finding these two violations. We are
unpersuaded. Although it is entirely possible that the court
would have revoked defendant’s probation regardless, our
normal practice is to reverse and remand for reconsideration
when we cannot tell for certain whether that is actually
the case. See State v. Milnes, 

, 

 (2013) (reversing a probation-revocation judgment and
remanding where the trial court relied in part on an erroneous conviction and “did not indicate” whether it would have
revoked without that conviction); State v. Mast, 

, 

 (1991) (reversing and remanding for
reconsideration because it was “unclear” whether the trial
court relied on an improper basis in revoking probation). We
therefore reverse the revocation judgments and remand for
reconsideration.
           Reversed and remanded.




    1
      The state argues that defendant failed to adequately preserve his claim of
error regarding the “failure to report” violation. We disagree. Defendant challenged the sufficiency of the evidence to prove the alleged violations, except for
two not at issue here, which was sufficient to preserve the issue that he raises on
appeal.