No. 315 April 9, 2025 583
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
HUTSON AIDAN NAYLOR,
Defendant-Appellant.
Deschutes County Circuit Court
23CR11360; A182026
Alycia M. Herriott, Judge.
Submitted February 12, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
SHORR, P. J.
Affirmed.
584 State v. Naylor
SHORR, P. J.
Defendant appeals from a judgment of conviction
entered after he pleaded guilty to strangulation, raising
five assignments of error challenging the trial court’s imposition of various special conditions of probation. Four of
those assignments are now moot given the issuance of an
amended judgment while this appeal was pending, deleting
the probation conditions challenged in defendant’s second
through fifth assignments of error. Defendant agrees that
the amended judgment renders those assignments of error
moot. Defendant’s remaining assignment of error challenges
a special probation condition requiring him to enter into and
successfully complete a sex offender treatment program. We
conclude that the sentencing court did not err in imposing
that condition, and therefore affirm.
The relevant facts are undisputed. Defendant and
the victim connected through an online dating platform.
The victim visited defendant’s home, and during an initially
consensual sexual encounter, defendant began strangling
the victim without her consent. The state charged defendant
with one count of strangulation, ORS 163.187. Defendant
pleaded guilty to that charge.
At the sentencing hearing, defendant objected to
sex offender treatment as a condition of probation, on the
grounds that he was not convicted of a sex crime. The court
imposed sex offender treatment as a special condition of probation pursuant to its authority under ORS 137.540(2), finding that the condition was reasonably related to the crime of
conviction and otherwise appropriate. Specifically, the court
declared that defendant “is subject to all general conditions
of probation” and imposed several special conditions of probation, including: “Enter into and successfully complete a
sex offender treatment program approved by the probation
officer. Abide by all rules and conditions of the sex offender
treatment program.” Defendant challenges the imposition of
that condition on appeal.
Before us, defendant renews his argument that the
sentencing court erred in imposing that special condition
because he was not convicted of a sex crime. He asserts that,
Cite as 339 Or App 583 (2025) 585
although the court has authority to impose special conditions
of probation under ORS 137.540(2), the court lacks authority to impose sex offender treatment as a special condition of
probation when the crime of conviction is not listed in ORS
137.540(1)(L). The state contends that ORS 137.540(1)(L) creates a default, general probation condition for sex offenders
and leaves open whether that condition may be imposed for
other types of offenses as a special condition. We agree with
the state.1
“We review the imposition of probation conditions
for errors of law.” State v. Borders, 293 Or App 791, 793,
429 P3d 1067 (2018). Because this case presents an issue
of statutory interpretation, our task is to discern the intent
of the legislature. ORS 174.020(1)(a). To do that, we begin
by examining the text and context of the statute. State v.
Gaines,
346 Or 160, 171,
206 P3d 1042 (2009) (citing PGE v.
Bureau of Labor and Industries,
317 Or 606, 610-11,
859 P2d
1143 (1993)). We then consider the “pertinent legislative history” if it “appears useful to the court’s analysis.” Id. at 172.
Finally, “[i]f the legislature’s intent remains unclear after
examining text, context, and legislative history, the court
may resort to general maxims of statutory construction to
aid in resolving the remaining uncertainty.” Id.
We start with the relevant statutes. ORS 137.540(1)
provides that the “court may sentence the defendant to probation subject to the following general conditions unless specifically deleted by the court.” The statute then lists the general conditions of probation that are automatically imposed
on all probationers. One of those general conditions is ORS
137.540(1)(L) which, at the time of sentencing, provided:
“(L) If recommended by the supervising officer, successfully complete a sex offender treatment program
approved by the supervising officer and submit to polygraph examinations at the direction of the supervising officer if the probationer:
1
We acknowledge that, in State v. Johnson, 329 Or App 57,
540 P3d 73 (2023),
the defendant raised the analogous issue of whether ORS 137.540(1)(L) limits the
imposition of polygraph conditions to sex offenders. In addition to imposing sex
offender treatment, ORS 137.540(1)(L) also requires a probationer under supervision for a sex offense to submit to polygraph examinations. In that case, we
acknowledged that the issue was reasonably in dispute and declined to resolve it
on plain error review.
Id. at 63.
586 State v. Naylor
“(A) Is under supervision for a sex offense under ORS
163.305 to 163.467;
“(B) Was previously convicted of a sex offense under
ORS 163.305 to 163.467; or
“(C) Was previously convicted in another jurisdiction
of an offense that would constitute a sex offense under ORS
163.305 to 163.467 if committed in this state.”
ORS 137.540(1)(L) (2023), amended by Or Laws 2023, ch 9,
§ 9, amended by OR Laws 2023, ch 282, § 1.2 ORS 137.540(2)
provides: “In addition to the general conditions, the court
may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the
probationer for the protection of the public or reformation of
the probationer, or both,” including, in certain cases, that
the probationer shall, among other things, be subject to certain confinement conditions or restrictions and comply with
other special conditions of probation imposed by the supervising officer in accordance with ORS 137.540(9).
We note first that the crime of strangulation, ORS
163.187, of which defendant was convicted, is not one of the
enumerated sex offenses requiring sex offender treatment
as a general condition of probation under ORS 137.540(1)(L).
Nor has defendant previously been convicted of a sex offense.
The issue before us is whether a sentencing court nevertheless has authority to impose sex offender treatment as a
special condition of probation pursuant to ORS 137.540(2).
Defendant argues that it does not. He relies on State v.
Bowden, 292 Or App 815,
425 P3d 475 (2018) and State v.
Schwab,
95 Or App 593,
771 P2d 277 (1989) for his assertion
that “[w]here the legislature has included a probation condition in the list of general conditions of probation and made
that condition subject to certain limitations, trial courts
lack the authority to bypass those limitations.”
We are not convinced that Bowden and Schwab
apply to this case. In Bowden, the sentencing court imposed
a special condition of probation that limited the defendant’s
use of medical marijuana, which directly conflicted with a
general condition requiring that probationers “[n]ot use or
2
ORS 137.540(1) has been amended since sentencing. All references in this
opinion to ORS 137.540(1)(L) are to the version in effect at the time of sentencing.
Cite as 339 Or App 583 (2025) 587
possess controlled substances except pursuant to a medical
prescription.”
292 Or App at 816 (citing ORS 137.540(1)(b)
(2017)) (emphasis in Bowden). We concluded that the “sentencing court does not have the discretion to impose a [special] probation condition that runs counter to” a general
condition.
Id. at 818-19. Unlike in the present case, Bowden
involved a situation where the special condition contradicted
a general condition.
In Schwab, the sentencing court imposed a special
condition of probation requiring that the defendant submit
to searches “without consent and without a search warrant.”
95 Or App at 596. We concluded that that condition conflicted
with another legislatively created special condition which
required a probationer to submit to searches if the probation
officer had “reasonable grounds to believe such search will disclose evidence of a probation violation.”
Id. (citing former ORS
137.540(2)(L) (1985)) (emphasis in Schwab). We explained
that ORS 137.540(2) “only allows a court to impose other
types of conditions that are not already addressed in the
statute. Conditions that the legislature specifically defined
are statutory restrictions to which a court must conform
when imposing probation conditions.”
Id. at 597. Although
the first sentence in that explanation implies a broader limitation on sentencing courts, both sentences properly read
together, in the context of the case as a whole, stand for the
proposition that a sentencing court cannot impose a special
condition that conflicts with an existing special condition.
Bowden and Schwab are both distinguishable from this case
where defendant challenges a special condition which does
not contradict a general or special condition.
ORS 137.540(1)(L) lists the crimes for which sex
offender treatment is imposed as an automatic general
condition of probation, but it does not expressly limit the
imposition of sex offender treatment to only those offenses.
Although a court may not impose a special condition of
probation that overrides a general condition, Bowden, 292
Or App at 818, this case does not present such a situation.
The imposition of sex offender treatment as a special condition for crimes other than sex crimes does not contradict or
override any part of ORS 137.540(1)(L). Read plainly, ORS
588 State v. Naylor
137.540(1) and (2) do not prohibit a sentencing court from
imposing sex offender treatment as a special condition of
probation to non-sex offenders, provided that the requirements of ORS 137.540(2) are met. See ORS 174.010 (in construing a statute, a court’s role is to “ascertain and declare
what is, in terms or in substance, contained therein, not to
insert what has been omitted”). In other words, just because
the legislature identified general conditions of probation
that the court shall include unless specifically deleted by
the court, under ORS 137.540(1), that does not mean that
the court is without authority to use those conditions as special conditions of probation when they otherwise satisfy the
requirements of ORS 137.540(2). However, the court lacks
authority to impose special conditions that conflict with or
override the particular limitations present in any of the general conditions of probation in ORS 137.540(1).
The state also points to relevant legislative history
from 1993, when the legislature added the general probation
condition requiring sex offender treatment and amended the
special conditions provision to its current form. We agree
that the legislative history is consistent with our conclusion.
During a public hearing, Chairman Del Parks asked Dale
Penn of the Oregon District Attorney Association about the
specific language of the bill regarding probation conditions.
Penn explained that the intent was to standardize general
conditions of probation and give the court authority to fashion any special condition the court believes is necessary, if
“at all tied to the crime.” He stated that the language is not
a restriction, but was meant to give sentencing courts more
authority. Tape Recording, House Committee on Judiciary,
SB 139, June 21, 1993, Tape 49, Side A.
Finally, we turn to ORS 137.540(2) and whether the
imposed sex offender treatment was a proper special condition of probation under that statutory section. As noted,
ORS 137.540(2) allows a court to impose special conditions
that are “reasonably related to the crime of conviction or
the needs of the probationer for the protection of the public
or reformation of the probationer, or both.” If a defendant is
convicted of a crime that is not a sexual offense, “but acted
with a sexual purpose, imposition of a sex offender package
Cite as 339 Or App 583 (2025) 589
as a special condition of probation … could be reasonably related to the conviction.” State v. Mack,
156 Or App
423, 429,
967 P2d 516 (1998). Moreover, we have previously
affirmed the imposition of sex offender treatment as a condition of probation where the defendant was not convicted
of a sex crime, but where the defendant’s conduct showed a
sexual purpose. See State v. Phillips,
206 Or App 90, 97-98,
135 P3d 461, rev den,
341 Or 548 (2006) (affirming the imposition of sex offender treatment as a special condition where
the defendant was convicted of coercion in the furtherance
of a sexual purpose). On appeal, defendant does not appear
to contest that there is a factual record to support the finding that he acted with a sexual purpose when he strangled
the victim during the act of sex, such that sex offender treatment is reasonably related to the crime of conviction and
imposed for his reformation or the public protection. We conclude that the trial court did not err in imposing that special
condition of probation.
Affirmed.
