State v. Hight

406                     May 7, 2025               No. 414

   This is a nonprecedential memorandum opinion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.
               AIMEE KATHERINE HIGHT,
                   Defendant-Appellant.
              Washington County Circuit Court
                   22CR62508; A181879

  Eric Butterfield, Judge.
  Submitted April 3, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  JACQUOT, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)             407

        JACQUOT, J.
         Defendant was convicted by a jury of attempted delivery of marijuana to her 15-year-old daughter, ORS 161.405
(2)(e) and ORS 475C.345(3)(b)(B), and appeals a judgment
sentencing her to two-years of probation. Defendant assigns
error to the imposition of a special condition of probation that
prohibits her from having contact with her daughter without
the prior written permission of her supervising officer. We
conclude that this error is not preserved and affirm.
          On appeal, defendant argues that the special condition stating that “defendant shall not attempt to have
contact or have direct or indirect contact with the victim[ ]
… without the prior written permission of the supervising
officer” unduly restricts her constitutionally protected liberty interest in associating with her family members. See
Troxel v. Granville, 

, 

, 

 (2000) (plurality opinion) (“The liberty interest at issue
in this case—the interest of parents in the care, custody,
and control of their children—is perhaps the oldest of the
fundamental liberty interests recognized by this Court.”).
Defendant argues that this condition is overbroad because it
infringes on defendant’s fundamental right to associate with
her daughter and was not “reasonably related to the crime
of conviction or the needs of the probationer for the protection of the public or reformation of the probationer ….” ORS
137.540(2); State v. Mack, 

, 

 (1998). She argues further that even if the condition was
reasonably related to the purposes of probation, the trial
court did not make a record that it considered less restrictive
alternatives. See State v. Martin, 

, 

 (1978) (“[T]he sentencing court should have determined
from the record whether as a matter of fact the spouse would
be a bad influence so as to endanger rehabilitation or public
safety and, if so, what interference with marital rights less
than complete separation would serve to protect society’s
interests.”); State v. Saxon, 

, 

 (1994) (trial court erred in imposing a condition of probation prohibiting the defendant from having contact with her
husband for five years without making a record considering
availability of a less intrusive alternative restriction).
408                                             State v. Hight

         We conclude that this this claim of error is not preserved. We note that defendant did not raise an objection
when, after imposing the challenged condition, the court
directly inquired of defense counsel whether it “neglected
anything from your point of view.” This suggests that the trial
court would be “surprise[d]” if it found itself reversed on this
issue. State v. Skotland, 

, 329, 549 P3d 534 (2024).
During the sentencing hearing, defense counsel explained
to the court that, while the criminal charges were pending,
defendant “has not seen her daughter in nine months. … [I]n
her eyes, that is the greatest punishment that could happen.”
Defendant also expressed to the court that she deeply values
her relationship with her daughter, that the relationship is
central to her well-being, and that her house is “not a home”
without her daughter. Although these statements to the court
expressed defendant’s suffering resulting from the prior separation from her daughter and her profound grief when faced
with the potential loss of the relationship in the future, we
conclude that they do not raise the overbreadth challenge
to the condition of probation that defendant now raises on
appeal. See State v. Serven, 

, 335 P3d 875
(2014) (objection on different ground did not preserve claim
that special condition was overbroad).
         Defendant requests plain error review. To constitute plain error, the claimed error must be apparent, meaning that “the legal point is obvious, not reasonably in dispute.” State v. Brown, 

, 

 (1990).
It is not obvious that the challenged condition is not reasonably related to the rehabilitation of defendant: the court
explained that its goal in imposing probation was “to try
to encourage you to get the services and supports that you
need to be healthy, and hopefully, better parenting resource,
eventually, for your children.” Moreover, it is not obvious
that the challenged condition is overbroad: the prosecution
requested “no contact,” and the record supports an inference
that the trial court considered and adopted a less restrictive
probation condition that limits but does not foreclose contact
between defendant and her daughter. We conclude that the
error is not plain.
        Affirmed.