State v. Nash

• Decision Date: 27 October 2015
• Docket Number: No. 1 CA-CR 15-0162,1 CA-CR 15-0162
• Parties: STATE OF ARIZONA, Appellee, v. ALBERT EDWARD NASH, JR., Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. ALBERT EDWARD NASH, JR., Appellant.

No. 1 CA-CR 15-0162

ARIZONA COURT OF APPEALS DIVISION ONE

October 27, 2015

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Yavapai County

No. P1300CR14337

The Honorable Jennifer B. Campbell, Judge

AFFIRMED IN PART, VACATED IN PART AND REMANDED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Colby Mills

Counsel for Appellee

David Goldberg, Attorney at Law, Fort Collins, CO

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Andrew W. Gould and Judge Pro Tempore Dawn M. Bergin¹ joined.

KESSLER, Judge:

¶1 Albert Edward Nash, Jr. appeals the revocation of his probation. Nash argues there was insufficient evidence to substantiate violations of Conditions 4 and 10 of his probation, and that these conditions are unconstitutionally vague and overbroad. For the following reasons, we affirm the order finding Nash in violation of two conditions of probation, vacate the order to the extent it found him in violation of a condition based on walking through a park, and remand this matter for the court to decide whether to revoke Nash's probation for the two other violations and the ultimate disposition.

FACTUAL AND PROCEDURAL HISTORY

¶2 In 1990, pursuant to an Alford² plea, Nash was found guilty of two counts of attempted child molestation, class 3 felonies. He was sentenced to imprisonment for count one and given a suspended sentence of standard probation for a term of twenty years for count two. In 2009, Nash pled guilty to furnishing harmful items to minors, a class 4 felony, and was sentenced as a repetitive offender to an aggravated term of six years' imprisonment.³ The court found that his crime also constituted a violation of the conditions of his probation, and ordered his probationreinstated for his lifetime upon his release from prison for the separate 2009 offense.

¶3 The 2009 conditions of probation imposed upon Nash for life stated in relevant part:

4. Not go to or loiter near school yards, parks, playgrounds, arcades or other places primarily used by children under the age of 18 without the prior written approval of the probation officer.

. . . .

10. Not possess any media that is sexually oriented and/or that contains depictions of partially or fully exposed breasts, buttocks, or male or female genitalia. Not possess or view any material deemed inappropriate by treatment staff or the probation officer. This includes, but is not limited to, the possession of any printed material or access to any electronic communications, Internet, cable network or satellite company that offers any depictions that contain partial or full nudity, sexual acts or inducements.

¶4 In October 2014, Nash's probation officer ("PO") was alerted by a probation surveillance officer that the officer viewed Nash's cell phone and found a photograph of a penis which Nash eventually admitted was a photograph that he took of himself to send to his girlfriend. The next day, the PO filed a petition to revoke Nash's probation on this basis as a violation of Condition 10. The petition also alleged two separate violations of Condition 4 based on Nash walking through Granite Creek Park on September 7, 2014, and going onto the grounds of the First Baptist Church/School without permission on September 8, 2014.

¶5 At the violation hearing, the PO testified that Nash admitted to taking the photograph of his penis while he was in a bathroom, and that he texted the photo to his 50-year-old girlfriend, M. The PO testified that it was not a violation of probation for Nash to associate with adult women, nor to have a cell phone, and there was nothing else on his phone constituting a probation violation, but he was not allowed to possess a photograph on his phone of his genitalia.

¶6 The PO further testified that on September 7, Nash walked through a public park that based on her experience is "frequented" by minors. According to Nash's GPS ankle bracelet which is monitored daily,he was in the park for five minutes, entering at 2:42 p.m. and exiting at 2:47 p.m. but he did not have the PO's prior written approval to be there. Although the PO confirmed that Nash told her he needed to take a shortcut through the park, she did not remember the weather that day or that it was storming. According to the PO, Nash was not loitering, there was no evidence that children were at the park at that time, and Nash never went to the park again.

¶7 The PO also testified that on Monday September 8, a surveillance officer monitoring Nash's GPS location noticed at 3:00 p.m. Nash was "sitting on the bench in front of First Baptist School" without prior written approval to be there. She testified that within minutes, the officer went to speak with Nash about being there and that the officer observed minors around. Nash, however, was not observed interacting with any minors.

¶8 On cross-examination the PO testified both that "the building where [Nash] was is not school grounds" and "I don't know how the buildings work." The PO was aware that First Baptist operates a soup kitchen on Mondays and testified that Nash told her he was there to help set-up for the soup kitchen.⁴

¶9 AA, who worked at the soup kitchen, explained that although the school and the soup kitchen are on the same property, First Baptist has separate buildings, both the school and the church sanctuary are across the alley from the building where soup kitchen dinners are held, and there are never children in the soup kitchen building.

¶10 Nash argued in closing that Condition 10 was unconstitutionally vague and overbroad, but did not contest the constitutionality of Condition 4. The superior court noted that if there was anything in either condition which was vague to Nash, he had the "opportunity to discuss this issue and to ask questions. So if there was any unclear portion . . . Nash was given ample opportunity to discuss that with his probation officer."

¶11 The superior court determined Nash violated Condition 10: "When you read [Condition 10] in its entirety, it's quite clear not to possess any media that is also sexually oriented. When we talk about the definition of media, that could be pictures. That could be videos. That could be anything or that contains depictions of partially or fully exposed . . . male . . . genitalia. So when I look at that first line [of Condition 10] . . . just independently from the rest of the communication, I think it's clear that a picture of anyone's genitalia . . . possessed by [Nash] is a violation of his probation." The court also determined that Nash violated Condition 4 because he "voluntarily went into a park," and because he "loitered near a school." The court stated: "What we heard from [the PO] was that at 3:00 o'clock when school typically let's [sic] out, [Nash] was sitting on a bench, not in the soup kitchen. . . . Three o'clock in the afternoon he was sitting on a bench on the Baptist property when school was letting out is much different than being in the building working in the soup kitchen."

¶12 The superior court revoked Nash's lifetime probation and sentenced him to a slightly mitigated term of 6 years' imprisonment with 249 days' presentence incarceration credit.

¶13 Nash timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4033(A)(3), (4) (2010). See State v. Regenold, 226 Ariz. 378, 380, ¶ 12 (2010) (determining A.R.S. § 13-4033(B) did not preclude an appeal from a contested probation revocation and leaving open the possibility that A.R.S. § 13-4033(A)(3) or (A)(4) provides jurisdiction); State v. Ponsart, 224 Ariz. 518, 519-22, ¶¶ 2-12 (App. 2010) (stating any defendant may appeal a contested finding that probation was violated, and determining in appeal from probation revocation that A.R.S. § 13-4033(A)(3) or (A)(4) provided jurisdiction).

DISCUSSION

I. Nash's constitutional challenges to his conditions of probation are not procedurally precluded, but his challenges to Condition 4 are waived absent fundamental error

¶14 Relying on State v. Smith, 129 Ariz. 28, 31 (App. 1981), the State contends that Nash is precluded from claiming on appeal from his probation revocation that Conditions 4 and 10 are unconstitutional because he did not raise such arguments when the conditions were first imposed.

¶15 We disagree. Smith does not govern the situation here. Upon conviction, Smith told the court that he was willing to make restitution tothe victim and might sell his house to do that. Smith, 129 Ariz. at 29. The superior court sentenced Smith to probation and imposed a condition that prohibited Smith from allowing his house to be homesteaded. Id. Smith did not object to the imposition of the condition. He then appealed from the probation order, and for the first time on appeal, argued the condition violated public policy and was illegal. Id. at 29-30.

¶16 Because Smith argued for the first time on appeal that statutes granting a homestead exemption are paramount and not susceptible to interference, we held he willingly waived his homestead rights and the waiver did not violate public policy or constitute an illegal condition of probation. Id. at 30-31. "We also [held] that [Smith] by his conduct has waived his right to object to the trial court's imposition of the homestead waiver condition as a term of probation. The appropriate time to consider any objections which a defendant might have to the terms of his probation is the time of imposition of those terms. Otherwise, the trial judge is effectively deprived of the opportunity to consider the imposition of other sentencing alternatives that might then be open to the trial court." Id. at 31.

¶17 In contrast, Nash has not deprived ...