State v. Austin

368                October 22, 2025            No. 917

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
            KURTIS EUGENE AUSTIN,
                Defendant-Appellant.
           Columbia County Circuit Court
   23CR06425, 23CR17057; A183146 (Control), A183147

  Denise E. Keppinger, Judge.
  Submitted on July 30, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
  O’CONNOR, J.
  Vacated and remanded.
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 (2025)                                                 369

           O’CONNOR, J.
          Defendant appeals from judgments that revoked
his probation in two consolidated criminal cases.1 The trial
court revoked defendant’s probation after a hearing in which
it accepted defendant’s admission that he consumed intoxicants in violation of a condition of his probation, and after
finding that defendant violated two additional probation
conditions, which defendant now challenges. Defendant contends that the record was legally insufficient to find that he
violated the general condition of probation that he “[r]eport
as required and abide by the direction of the supervising
officer,” ORS 137.540(1)(k), and the condition of probation
prohibiting him from changing his residence without prior
permission, ORS 137.540(1)(e).2 We conclude that the evidence was legally insufficient to support the trial court’s
determination that defendant failed to report as required,
but that it was legally sufficient to prove that he violated
the prohibition on changing his residence. Because the erroneous determination might have impacted the trial court’s
decision to revoke defendant’s probation, we vacate the probation revocation judgments and remand for reconsideration.
         We first address the state’s contention that defendant did not preserve his first claim of error challenging
the sufficiency of the evidence for the court’s ruling that
defendant violated the general condition of probation that
he “report as required.” ORS 137.540(1)(k). At the probation violation hearing, the state proceeded under a theory
that defendant’s intentional failure to return to transitional
housing before curfew constituted a failure to report because
his probation officer instructed defendant to live in transitional housing and to follow the rules of the program, which
included checking in before curfew. Defendant argued in
     1
       Defendant pleaded guilty to attempted use of a child in a display of sexually
explicit conduct and encouraging child sexual abuse in the second degree (Case
No. 23CR17057), as well as unlawful delivery of a marijuana item, furnishing
alcohol to a person under 21, and two counts of third-degree sexual abuse (Case
No. 23CR06425). He was sentenced to 36 months’ probation along with, as a condition of probation, consecutive jail terms totaling 160 days.
     2
       ORS 137.540(1)(e) establishes a general condition of probation that a
probationer shall “[n]ot change residence without prior permission from the
Department of Corrections or a county community corrections agency and inform
the parole and probation officer of any change in employment.”
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closing that “the requirement to report as described in the
general conditions of probation is a requirement that a defendant report to his probation officer. And so, I would argue
that failing to report to a third party is not in violation of
that condition.” That argument raises the same issue defendant now raises on appeal, that is, a challenge to the legal
sufficiency of the state’s evidence that he failed to report
as required. A sufficiency of the evidence argument made
during closing argument of a proceeding in which a judge is
the factfinder adequately preserves for appeal a challenge to
the legal sufficiency of the evidence. See State v. Gonzalez,

, 

 (2003) (explaining that,
when a case is tried to the court, challenging the legal sufficiency of the evidence in closing argument is equivalent
to moving for judgment of acquittal). The trial court therefore had a meaningful opportunity to address the merits of
defendant’s argument and avoid error at the outset. State v.
Skotland, 

, 

 (2024). Accordingly,
defendant preserved the first assignment of error.
         We therefore turn to the merits of defendant’s challenge. “Whether there is sufficient evidence in the record
to satisfy the state’s burden is a legal question.” State v.
Stroud, 

, 

 (2018). In making
that determination, we view the evidence in the light most
favorable to the state. State v. Butler, 

,

, rev den, 

 (2021).
         At the probation revocation hearing, defendant’s
supervising officer was the state’s sole witness. He testified
that he directed defendant to live in transitional housing,
and that defendant had “a contract to reside at the transitional house, that you reside [sic] back to the house each
and every night by 10:00 p.m.” When he heard from an
employee of the transitional house that defendant did not
return to the house before the curfew, he contacted defendant. Defendant confirmed that he failed to return to the
house before curfew, which caused him to be locked out and
evicted from the house. Defendant told him that he does not
like living at the transitional housing, that he does not like
to be housed, and that he had acquired a tent to live in.
The supervising officer also testified that he did not instruct
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defendant to report for an appointment with him on that
day but explained that defendant violated the terms of his
probation by failing to report on the basis that “he failed to
check in for his 10:00 p.m. curfew, which is failing to report
as required.” Defendant also testified, explaining that he
knew that if he did not return to his housing by curfew, he
would not be able to stay there any longer. He agreed that he
intentionally evicted himself from the transitional housing,
and that he did not tell anyone in advance.
         The trial court found that defendant was “under an
action agreement and directive to reside at the transitional
house.” It then reasoned that it “may be a once removed
component,” but that “the spirit of this is that you report as
required by your [probation officer] and … it was a very
specific intention of probation that [defendant] reside at the
transitional house.” On the basis of those findings, it ruled
that defendant had violated the general condition of probation requiring defendant to “[r]eport as required and abide
by the direction of the supervising officer.”
         That conclusion, however, is foreclosed by State v.
Hardges, 

, 

 (2018). In Hardges,
we construed former ORS 137.540(1)(m) (2018), renumbered
as ORS 137.540(1)(k) (2022), which sets out the general condition that a probationer “[r]eport as required and abide by
the direction of the supervising officer.” We explained that
the condition “must be read as a whole: A probationer fails
to abide by the direction of the supervising officer within the
meaning of that provision only when the officer’s direction
relates to the requirement that the probationer report as
required.” 

 (internal quotation marks and
alteration omitted). We considered whether the defendant’s
admitted failure to comply with the terms of an “action
plan”—which was prepared by his supervising officer and
to which he agreed—constituted a violation of that general
condition. 

. That “action plan” stated, among other
things, that the defendant “must stay at [a transitional
housing facility] each night and follow the curfew there ….
Follow all program rules.” 

 The defendant moved into
transitional housing, but violated curfew and other program
rules, and was subsequently discharged. 

 We explained
372                                                State v. Austin

that a violation of the “report as required” condition of probation can only be found when the probation officer’s direction is related to the probationer’s reporting obligations:
   “It would appear to be beyond dispute that … a probation
   officer may direct a probationer as to what, where, when,
   and how to report, and the probationer, under penalty of
   being found in violation of probation, must comply. Here,
   however, the action plan to which defendant agreed bore
   no discernible relationship to defendant’s reporting duties.
   It is not enough to simply say that requiring defendant to
   stay each night at [transitional housing] and follow a curfew increased the likelihood that defendant would report
   as required; the same may be said of any number of conditions, including restrictions on drug or alcohol use, limits on
   certain associations, or even the imposition of house arrest,
   yet no one could credibly argue that such measures were
   related to reporting. And here, the action plan at issue bore
   no more tangible a relationship to defendant’s obligation to
   report than would such other measures. Accordingly, we
   must conclude that the trial court erred in revoking defendant’s probation for failing to abide by that plan.”

. Because the “action plan” was unrelated to the
defendant’s reporting obligations, the defendant’s failure to
comply with the rules of the transitional housing program
contained therein, as a matter of law, did not constitute a
violation of the general condition established by former ORS
137.540(1)(m) (2018). 

          We come to the same conclusion here. Here, as in
Hardges, the evidence shows that defendant was instructed
by his supervising officer to live in transitional housing, and
that he entered into a written agreement to abide by the
rules of the house. But the record is devoid of any evidence
suggesting that defendant’s failure to abide by the house
rules bears any relationship to his reporting duties. As a
result, his failure to return to the house before curfew is
not, as a matter of law, a violation of the general condition
of probation that he “report as required.” ORS 137.540(1)(k);
Hardges, 

; see also State v. Kelemen,

, 

 (2019) (“The probation
officer’s work crew directive did not pertain to defendant’s
reporting obligation and, thus, is not the type of directive
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 (2025)                             373

on which a violation of [former] ORS 137.540(1)(m) can be
founded.”).
         In his second assignment of error, defendant contends that the record was insufficient to prove that he violated the general condition of probation that he “[n]ot change
residence without prior permission,” ORS 137.540(1)(e), when
he was evicted from his transitional housing. He argues, as
he did below, that because his eviction was an act of a third
party, he did not willfully change his residence. The trial
court rejected that argument and found, based on the statements defendant made to his probation officer, that he “willfully stopped residing at the transitional house without first
getting permission and notifying his probation officer.” That
determination is supported by the record. Defendant testified that he knew that he would be evicted from his transitional housing if he did not return before curfew. He does not
now dispute that he willfully took an action that he knew
would result in his eviction, and that he took that action
without telling anyone in advance. As a direct result of that
deliberate action, defendant changed his residence—when
he next spoke to his probation officer, he was living in a tent
in a different location. The record is sufficient to support a
finding that defendant violated the condition of probation
requiring prior approval before changing his residence. See
State v. Gray, 

, 

 (2016)
(trial court properly exercised its discretion to revoke probation based on a determination that the defendant violated
probation when the defendant claimed he was evicted from
a group home but did not contest that he changed his residence without prior permission).
         That leaves the question of disposition. We will
affirm a judgment revoking probation only if we can determine that the defendant was not prejudiced by the trial
court’s error. State v. Dowty, 

, 

 (2019), rev den, 

 (2020) (recognizing that
the standard for prejudicial error in the probation context
is equivalent to that of harmless error in the trial context).
A defendant is not prejudiced if there is “little likelihood”
that the trial court’s error affected the outcome of the probation revocation proceeding. See id. at 777. A trial court has
374                                                          State v. Austin

discretion to revoke probation when it finds a defendant committed a probation violation. Kelemen, 

 (a
trial court has “discretionary authority to revoke probation”
upon the “finding of a new crime or other violation of the
conditions of probation”). When a trial court finds multiple
probation violations and we conclude that one of the findings
was erroneous, we have consistently reversed and remanded
for the trial court to exercise its discretion anew, unless
the trial court indicated on the record that it would have
revoked the defendant’s probation even if it had not found
the violation that we concluded was in error. See, e.g., State
v. Rivera-Waddle, 

, 

 (2016)
(reversing a probation revocation judgment and remanding
for reconsideration when trial court erroneously found the
defendant in violation of probation on an improper ground
and there remained four other potentially valid bases for
revocation); State v. Burkette, 

, 

 (2015) (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 probation without that conviction); State v.
Milnes, 

, 

 (2013) (same). In
those circumstances, we cannot say that there is little likelihood that the trial court would have exercised its discretion
to revoke probation absent its error in finding the violation.
        Here, the trial court did not indicate on the record
whether it would have revoked defendant’s probation on
the basis of the controlled-substance and change-of-residence violations alone. Because the failure-to-report violation could have affected the trial court’s decision to revoke
defendant’s probation, we vacate the revocation judgments
and remand for the trial court to exercise its discretion on
reconsideration.3
           Vacated and remanded.


    3
       We vacate and remand because the trial court could, after considering the
issue, reinstate the judgment revoking defendant’s probation. See State v. Stutte,

, 99 n 7, 

 (2025) (Where a trial court has relied on a conviction that has since been reversed to revoke a defendant’s probation, we vacate
and remand “to signify our recognition that, after reconsidering the issue, the
trial court could reinstate the same judgment in the probation-revocation case”).