State v. Cunningham

546               December 10, 2025          No. 1059

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

               STATE OF OREGON,
                Plaintiff-Respondent,
                          v.
           NOAH TYLER CUNNINGHAM,
                Defendant-Appellant.
             Curry County Circuit Court
               23CR26032; A184370

  Cynthia Lynnae Beaman, Judge.
  Submitted October 2, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, 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)                               547

         O’CONNOR, J.
         Defendant appeals from a judgment revoking his
probation. In a single assignment of error, defendant argues,
and the state concedes, that the trial court erred when it
relied on the finding that defendant failed to return to his
approved residence before his curfew as a basis for revoking his probation. State v. Hardges, 

, 

 (2018) (failure to comply with a probation officer’s
directive to follow the rules of transitional housing, including curfew, unrelated to the defendant’s reporting obligations, does not constitute a violation of the general condition that the defendant report as required and abide by the
direction of the supervising officer). The parties disagree as
to whether the trial court would have revoked defendant’s
probation on the basis of its additional finding that defendant failed to report to his probation officer, as instructed,
at his regularly scheduled time. The court did not state that
it would have revoked defendant’s probation on the basis of
a single instance of failing to report to his probation officer,
and we cannot otherwise determine from the record how the
trial court’s erroneous probation-violation finding affected
its decision to revoke defendant’s probation. Consequently,
we cannot determine on this record that the error did not
prejudice defendant. We vacate and remand.
         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. Id. at 777.
         In the probation violation context, the trial court
sits as a factfinder and must make a predicate determination that a defendant either engaged in new criminal
activity or violated the court-ordered terms of probation,
before deciding whether to revoke probation. OAR 213-010-
0001 (“The decision to revoke probation is discretionary
and may be exercised upon a finding that the offender has
548                                     State v. Cunningham

violated one or more of the conditions of probation, or that
the offender has participated in new criminal activity.”);
State v. Kelemen, 

, 

 (2019)
(“[T]he plain terms of [OAR 213-010-0001] make a trial
court’s exercise of its revocation authority contingent on a
finding of either a violation or a new crime.”).
         On appeal, if we conclude that one of those predicate
determinations was made in error, we consistently remand to
the trial court for it to exercise its revocation authority with
a proper understanding of the probation violations committed by the defendant. See, e.g., State v. Adams, 

, 

 (2020) (reversing and remanding
a judgment revoking probation when trial court discussed
both permissible and impermissible bases in its decision to
revoke and “did not give any indication what it would do in
the absence of the impermissible violation”); State v. Rivera-Waddle, 

, 

 (2016) (reversing
and remanding a judgment revoking probation for reconsideration in light of other bases for revocation); State v.
Milnes, 

, 

 (2013) (reversing
and remanding a judgment revoking probation where the
trial court relied in part on an erroneous conviction and “did
not indicate whether it would have revoked [the] defendant’s
probation … in the absence of that conviction”). By contrast, we have affirmed despite a trial court’s erroneous probation violation finding when the trial court has stated that
it would have exercised its discretion to revoke probation
based any one of the multiple violations that it found. See
State v. Monroe, 

, 

 (2015)
(affirming revocation where a single probation violation was
well founded, when the trial court stated that it would have
revoked probation based on any one of multiple violations).
In that instance, we need not speculate about how the trial
court would exercise its discretion on remand. With that
background, we briefly discuss the uncontested facts before
turning to the trial court’s ruling.
        The evidence at the probation revocation hearing
established that defendant failed to report in person to his
probation officer at his regularly scheduled time, 7:00 a.m. on
February 20. On that day, defendant called his supervising
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officer around 3:00 in the afternoon and explained that he
was “stuck” in a nearby town, that he had been there for
a couple days, and that he was unable to get to the office
because he did not have a ride to the probation office.
Defendant’s supervising officer instructed him to report the
following day, and when he reported to the probation office
at that time, he was arrested for violating his probation. The
supervising officer prepared a report in which he alleged
that defendant violated four general conditions of his probation: (1) failing to report as required, (2) failing to report
as a sex offender within 10 days of a change of residence,
(3) failing to truthfully answer the probation officer’s reasonable inquiries, and (4) failing to secure permission before
changing his residence. The second, third, and fourth violations were predicated on the factual assertion that defendant had stopped residing at his approved location in Bay
City sometime before February 20. How long defendant had
been away from that residence was the primary factual dispute at the probation violation hearing.
        The trial court found that defendant failed to abide
by the probation officer’s curfew direction in an action plan
that defendant and the probation officer had agreed to. The
court then explained:
   “I do find that the State has proved the probation violation
   by a preponderance of the evidence, and that he is in violation of his probation. Specifically, the main–You know, if
   I’m wrong about all the other things, if the Court of Appeals
   doesn’t agree with my findings, certainly it’s cut and dry
   that he was to appear at 7:00 am on Tuesday, February
   20th, and he did not.”
The court then asked defendant if he was prepared to proceed to sentencing, and defendant consented to sentencing. The court revoked defendant’s probation and imposed
13 months in prison followed by two years of post-prison
supervision.
         The trial court erred when it found defendant in
violation of probation for the curfew violation, as the state
correctly concedes. In Hardges, we held that the general
condition of probation in former ORS 137.540(1)(m) (2018),
renumbered as ORS 137.540(1)(k) (2022) that requires a
550                                      State v. Cunningham

probationer to “[r]eport as required and abide by the direction of the supervising officer” applies only to those directions that relate to a probationer’s obligation to “[r]eport as
required.” 

. The failure to comply with
other directives from a probation officer does not violate that
general condition, even when a probation officer and a probationer agree to an “action plan” that contains additional
directives that are related to the purposes of probation. 

; Kelemen, 

 (failure to
comply with probation officer’s directives to complete work
crew was an impermissible ground for revocation and a trial
court may not revoke probation based on a finding that the
purposes of probation were not being served).
          The only contested issue on appeal is whether the
trial court’s error prejudiced defendant. At issue here is a
statement the trial court made immediately after its analysis
of the curfew issue: “if I’m wrong about all the other things,
if the Court of Appeals doesn’t agree with my findings, certainly it’s cut and dry that he was to appear at 7:00 a.m. on
Tuesday, February 20th, and he did not.” The state urges us
to interpret that statement, which specifically addressed a
situation where “the Court of Appeals doesn’t agree with my
finding,” as tantamount to a statement that it would have
revoked on the independently sufficient basis of defendant’s
failure to report as required, and that as a result, any error
did not prejudice defendant. See Monroe, 

(concluding an error was harmless where the trial court
made an explicit statement that each probation violation
was an independently sufficient ground for revocation).
         Although the state’s interpretation of the trial
court’s statement is plausible, it is not the only interpretation. The trial court’s statement expressly addressed its
additional finding that defendant violated his probation by
failing to report on February 20. The trial court then immediately proceeded to sentencing—a separate phase of the
proceeding—and did not address the connection between
any of its probation violation findings and its discretionary
decision to revoke defendant’s probation. We cannot say on
this record that there is little likelihood that the trial court’s
erroneous conclusion that defendant violated a condition of
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probation by violating the curfew imposed by his probation
officer affected the trial court’s decision to exercise its discretion to revoke defendant’s probation.
         Thus, we remand the revocation judgment to the
trial court for the court to exercise its discretion with a correct understanding of the probation violations before it. 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 relied on a conviction
that was later reversed and remanded for entry of a conviction for a lesser-included offense to revoke a defendant’s
probation, we vacated and remanded “to signify our recognition that, after reconsidering the issue, the trial court could
reinstate the same judgment in the probation-revocation
case”).
        Vacated and remanded.