State v. Salazar-Lopez

2024 UT App 61

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MARTIN ALEX SALAZAR-LOPEZ,
Appellant.

Opinion
No. 20230194-CA
Filed April 25, 2024

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 201908458

W. Andrew McCullough, Attorney for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1 Martin Alex Salazar-Lopez pled guilty to multiple sexual
offenses against a child, offenses he committed when he was still
a minor. As part of Salazar-Lopez’s sentence, the district court
ordered a period of probation during which Salazar-Lopez must,
among other things, comply with the sex offender Group A
conditions created by the Utah Department of Corrections.
Salazar-Lopez appeals that part of his sentence, asserting that
because the court was statutorily prohibited from requiring him
to register as a sex offender, it erred by ordering him to comply
with the sex offender Group A conditions. We mostly disagree
with Salazar-Lopez, and we affirm the district court’s imposition
of all but one of the Group A conditions as part of Salazar-Lopez’s
probation.
State v. Salazar-Lopez

BACKGROUND

¶2 In 2020, when Salazar-Lopez was twenty-two years old, the
State charged him with four counts of sodomy on a child, two
counts of sexual abuse of a child, and two counts of lewdness
involving a child, all based on conduct he had allegedly engaged
in some years earlier—between January 1, 2015, and January 1,
2017—when Salazar-Lopez was occasionally babysitting a girl
who was nine to eleven years old at the time. Salazar-Lopez
ultimately agreed to plead guilty to one count of sodomy on a
child and one count of sexual abuse of a child, and the State
agreed to drop the remaining charges.

¶3 As part of the plea agreement, the date range for the
charged conduct was changed slightly so that Salazar-Lopez
would be pleading guilty only to conduct that occurred before his
eighteenth birthday. The parties agreed that Salazar-Lopez would
“not be subject to registration as a sex offender” due to his status
as a minor at the time of the charged conduct. This understanding
was reflective of a then-current law that provided, with limited
exceptions, that “if an individual [was] convicted in district court
of a qualifying sexual offense and, at the time of the offense, the
individual was at least 14 years old, but under 18 years old,” then
“the individual [was] not, based on the conviction, subject to the
registration requirements described in Title 77, Chapter 41, Sex
and Kidnap Offender Registry.” Utah Code § 76-3-209(3) (2022). 1

1. Utah Code section 76-3-209 was later amended—effective May
3, 2023—to remove this specific provision. See Act of Feb. 9, 2023,
ch. 123, § 1, 2023 Utah Laws 1341, 1341. At the same time, the
legislature enacted Utah Code section 77-41-114, which now
addresses registration requirements for persons convicted of sex
crimes that they committed as minors. See Act of Feb. 9, 2023,
ch. 123, § 15, 2023 Utah Laws 1341, 1352. The other Utah Code
sections cited herein have not been amended in ways that impact
this appeal, so we cite the current versions of those statutes.

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State v. Salazar-Lopez

The parties also agreed that no prison sentence would be
imposed. However, the plea agreement stated, “There will be a
presentence report, and the parties will be free to argue over a jail
sentence. The State will request a psycho-sexual evaluation and
treatment.”

¶4 The district court thereafter sentenced Salazar-Lopez to
sixty days in jail and 120 months of probation, and it imposed
several requirements on Salazar-Lopez during his probation. One
of those requirements was that Salazar-Lopez would have to
“[a]bide by sex offender Group A conditions.” The Utah
Department of Corrections lists its Group A conditions as follows:

a. THERAPY: Enter into, participate in and
successfully complete sex offender therapy as
determined by the treating facility, therapists and the
Utah Department of Corrections.

b. CURFEW: Enter into and successfully complete
established progressive curfews or electronic
monitoring where available, when required by Adult
Probation and Parole.

c. VICTIM CONTACT: Have no direct or indirect
contact with victim(s) or victim’s family without prior
approval from Adult Probation and Parole.

d. CHILDREN UNDER 18: Have no contact or
association with children under the age of 18 without
prior written approval of Adult Probation and Parole.

e. NOT DATE: Not date persons with children
residing at home under the age of 18 without prior
written approval of Adult Probation and Parole.

f. CHILDREN CONGREGATE: Not enter places or
events where children congregate including, but not

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State v. Salazar-Lopez

limited to: schools, playgrounds, parks, arcades,
parties, family functions, holiday festivities or any
other place or function where children are present or
reasonably expected to be present without prior
written approval from Adult Probation and Parole or
without the supervision of a responsible adult
previously approved by Adult Probation and Parole.

g. SEX STIMULUS MATERIAL: Not have in my
possession or under my control any material that acts
as a sexual stimulus for my particular deviancy(s)
including, but not limited to: computer programs,
computer links, photographs, drawings, video tapes,
audio tapes, magazines, books, literature, writings, etc.
without the written approval from Adult Probation
and Parole.

h. EXPLOIT MATERIAL: Not have in my possession
or under my control any material that describes or
depicts human nudity, the exploitation of children,
consensual sex acts, non-consensual sex acts, sexual
acts involving force or violence including, but not
limited to: computer programs, computer links,
photographs, drawings, video tapes, audio tapes,
magazines, books, literature, writings, etc. without
prior approval from Adult Probation and Parole.

i. ENTERTAIN/LURE: Not have in my possession or
under my control any items or materials either
designed for, or used to, entertain, lure or attract the
attention of children under the age of 18 without prior
written approval from Adult Probation and Parole.

j. POLYGRAPH: Submit to random polygraph
examinations.

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State v. Salazar-Lopez

k. EMPLOYMENT: Employment must be approved
by Adult Probation and Parole.

l. RESIDENCE: Residence and residence changes
must be approved by Adult Probation and Parole.

m. INTERSTATE COMPACT: Execute and adhere to
the terms of the Interstate Compact Waiver and
Agreement if probation or parole is served outside the
state of Utah.

n. REGISTRATION/DNA: Comply with requirements
of the Utah Sex Offender Registration and DNA
specimen requirements.

Utah Dep’t of Corr., Sex Offender Group A Conditions,
https://corrections.utah.gov/wp-content/uploads/2022/03/Microsoft-
Word-Program-A-03-14-22.pdf [https://perma.cc/W4LN-XRL9].

¶5 Salazar-Lopez objected to the imposition of the Group A
conditions and moved to amend his sentence. He objected
generally to the imposition of the Group A conditions on the basis
that by statute he was not required to register as a sex offender,
arguing:

It is obvious that [sex offender registration]
requirements do not apply to [Salazar-Lopez] because
he cannot be, and will not be, required to comply with
those requirements. It is only common sense that he is
also not required to comply with the other
requirements directed at those who are registered sex
offenders and who therefore are subject to these rules.

Salazar-Lopez also brought to the court’s attention the specific
impact of some of the Group A conditions on his family, saying:

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State v. Salazar-Lopez

[Group A conditions] really have no relevance to
[Salazar-Lopez] and his situation. The [c]ourt was
well aware that [Salazar-Lopez] is now 24 years old,
and that he is married and has a young son. The
[c]ourt made no comment at his sentencing on his
living arrangements, which obviously includes
living with his wife and son.

¶6 In response, the district court amended Salazar-Lopez’s
sentence to allow him to have contact with his own son, but it did
not remove the requirement that Salazar-Lopez otherwise abide
by the Group A conditions while on probation.

¶7 Salazar-Lopez timely appealed. He also moved for a stay
pending appeal of the requirement that he abide by the Group A
conditions, and the district court granted that request.

ISSUE AND STANDARD OF REVIEW

¶8 Salazar-Lopez contends that the district court erred by
imposing the Utah Department of Corrections’ sex offender
Group A conditions as part of his probation despite the fact that,
due to his age at the time of the crimes, he “is not subject to
registration as a [s]ex [o]ffender” and “is not required to abide by
the conditions of that registration.” The parties disagree as to the
standard of review we should apply in addressing Salazar-
Lopez’s argument. The State argues that the district court’s
sentence should not be overturned absent an abuse of discretion,
while Salazar-Lopez contends that we are to review the primary
issue before us for correctness.

¶9 The State is correct that, “[g]enerally, we will reverse a trial
court’s sentencing decision only if it is an abuse of the judge’s
discretion.” State v. Helms, 2002 UT 12, ¶ 8, 40 P.3d 626. However,
“a trial court abuses its discretion if its decision is premised on
flawed legal conclusions.” State v. Boyer, 2020 UT App 23, ¶ 18,

20230194-CA 6 2024 UT App 61
State v. Salazar-Lopez

460 P.3d 569 (cleaned up), cert. denied, 466 P.3d 1075 (Utah 2020).
And that is the nature of the argument Salazar-Lopez makes
here—that the district court reached a flawed legal conclusion
when it decided that it could impose the sex offender Group A
conditions as part of Salazar-Lopez’s probation even though the
court was statutorily prohibited from requiring Salazar-Lopez to
register as a sex offender. Because “we review the district court’s
legal conclusions for correctness,” we afford no deference to its
legal conclusion regarding its ability to impose Group A
conditions as part of Salazar-Lopez’s probation. State v. Lusk, 2001
UT 102, ¶ 10, 37 P.3d 1103. The correct interpretation of the
applicable statute is likewise a question of law that we review for
correctness. See State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993). 2

2. Because the State mistook Salazar-Lopez’s argument as an
assertion that the district court abused its discretion by imposing
certain probation conditions under the facts of this case, it argues
that a transcript of the sentencing hearing, which Salazar-Lopez
initially failed to provide, is “vital” to show “how the court
weighed relevant factors when deciding to impose Group A
conditions.” In response, Salazar-Lopez submitted, as an
addendum to his reply brief, a sentencing hearing transcript,
which the State moved to strike. Salazar-Lopez then filed a motion
to supplement the record with the transcript, which motion the
State opposed. Record supplementation generally “may not be
done by simply including the omitted material in [a] party’s
addendum.” State v. Pliego, 1999 UT 8, ¶ 7, 974 P.2d 279. Moreover,
record supplementation is appropriate only when “anything
material is omitted.” Id. (emphasis added). Our review of the legal
question Salazar-Lopez raises—namely, whether as a matter of
law the district court could impose the sex offender Group A
conditions as part of Salazar-Lopez’s probation—is not impacted
by the availability of the sentencing hearing transcript. The
transcript is therefore not material to this appeal. For this reason,
(continued…)

20230194-CA 7 2024 UT App 61
State v. Salazar-Lopez

ANALYSIS

¶10 Salazar-Lopez contends that because he is statutorily
exempt from the requirement to register as a sex offender, it was
error, as a violation of statute, for the district court to impose the
Department of Corrections’ sex offender Group A conditions as
part of his probation. In other words, he asserts that because he
was not required to register as a sex offender, it was “common
sense” that he cannot be “required to comply with the other
requirements directed at those who are registered sex offenders.”

¶11 Salazar-Lopez’s argument rests on Utah Code section 76-3-
209, which, as it existed at the time of sentencing, provided that
individuals convicted in district court of certain qualifying sexual
offenses committed when they were not yet eighteen years old
were “not . . . subject to the registration requirements described in
Title 77, Chapter 41.” Utah Code § 76-3-209(3) (2022). 3 Salazar-
Lopez was sixteen or seventeen years old at the time of the
charged conduct, and his convictions are for qualifying sexual
offenses, see id. § 76-3-209(1) (2023) (defining a “qualifying sexual
offense” as including “an offense described in Chapter 5, Part 4,
Sexual Offenses”); id. § 76-5-403.1 (sodomy on a child); id. § 76-5-
404.1 (sexual abuse of a child). Thus, this provision is applicable
to him, and he is therefore not subject to the sex offender
registration requirements of Title 77, Chapter 41. This appeal thus
turns on a proper understanding of what are and are not the sex
offender registration requirements of Title 77, Chapter 41.

¶12 Title 77, Chapter 41 defines the term “[r]egister” as
meaning “to comply with the requirements of this chapter and

we grant the State’s motion to strike and deny Salazar-Lopez’s
motion to supplement the record.

3. This provision contained certain exceptions, which are not
relevant to this case. See Utah Code § 76-3-209(3), (4) (2022).

20230194-CA 8 2024 UT App 61
State v. Salazar-Lopez

administrative rules of the department made under this chapter.” Id.
§ 77-41-102(15) (emphasis added). According to this definition,
the sex offender registration requirements of Title 77, Chapter 41
include only (1) the requirements imposed by Title 77, Chapter 41
itself and (2) any requirements imposed by rules promulgated by
the Department of Corrections under the rulemaking authority
granted in Title 77, Chapter 41. See id. And we do not see that the
Group A conditions generally fall into either of these categories.
They generally are not requirements imposed by that chapter of
the code, and they are not requirements imposed by any
administrative rule promulgated by the Department of
Corrections under authority granted in that chapter; indeed,
Salazar-Lopez points to no link between the provisions in Title 77,
Chapter 41 and the existence of the Group A conditions. Thus,
section 76-3-209 generally did not prohibit the district court from
requiring Salazar-Lopez to abide by Group A conditions.

¶13 Salazar-Lopez apparently presumes that because he is not
“subject to the registration requirements described in Title 77,
Chapter 41,” see id. § 76-3-209(3)(a) (2022), he is also not subject to
any other restriction that might apply to sex offenders. But that
presumption is not supported by the statutory language, which
by its terms provides only that certain specific registration
requirements do not apply to a person in Salazar-Lopez’s
position. See id. Moreover, even if we were to agree with his
assertion that through section 76-3-209 “the legislature
acknowledged that a young person should not be branded as a
sex criminal and scarred for life,” requiring him to abide by Group
A conditions for the limited period of his probation does no such
thing.

¶14 The district court is granted considerable latitude in
crafting conditions of probation and may impose “terms and
conditions the court considers appropriate to ensure public safety
or increase a defendant’s likelihood of success on probation.” Id.
§ 77-18-105(6)(a)(ix) (2023). And should such terms overlap with

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conditions frequently imposed on registered sex offenders, we see
no legal error in their imposition, so long as they are not
“registration requirements described in Title 77, Chapter 41,” id.
§ 76-3-209(3)(a) (2022). 4

¶15 This leads us to the one aspect of the district court’s order
that we determine requires reversal: condition n of the Group A
conditions (Condition N), which requires an individual to
“[c]omply with requirements of the Utah Sex Offender
Registration and DNA specimen requirements.” Utah Dep’t of
Corr., Sex Offender Group A Conditions, https://corrections.utah.gov/
wp-content/uploads/2022/03/Microsoft-Word-Program-A-03-14-
22.pdf [https://perma.cc/W4LN-XRL9]. While the Group A
conditions generally do not amount to “registration requirements
described in Title 77, Chapter 41,” see Utah Code § 76-3-209(3)(a)

4. Salazar-Lopez takes issue with the State presenting arguments
on appeal where it failed to file any opposition to several of his
motions below. He suggests that by its silence on this front, the
State essentially waived its appellate arguments: “If the
[d]efendant, upon appeal, has a duty to show the appellate court
that he presented his case fully to the trial court, does not the State
have some duty to show that it provided reasons to the district
court to support the trial court’s ruling?” The answer to this
question is no. While Salazar-Lopez is correct that “[a]s a general
rule, claims not raised before the trial court may not be raised on
appeal,” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346, the State
has raised no issues on appeal. Rather, Salazar-Lopez, as the
appellant, has raised issues for our review, and the State, as the
appellee, is free to make arguments in response to those issues—
even if those arguments were not advanced below. See Gressman
v. State, 2013 UT 63, ¶ 45, 323 P.3d 998 (“Issues must be preserved,
not arguments for or against a particular ruling on an issue raised
below.”); Cochegrus v. Herriman City, 2020 UT 14, ¶ 36, 462 P.3d
357 (“It is within our discretion to affirm a judgment on an
alternative ground if it is apparent in the record.” (cleaned up)).

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State v. Salazar-Lopez

(2022), the specific requirements listed within Condition N are
such requirements, see id. § 77-41-105 (2023) (setting forth sex
offender registration requirements); id. § 77-41-105(7)(g)
(requiring sex offenders to provide “a DNA specimen” to the
Department of Corrections “or the registering entity”). Thus,
Salazar-Lopez is not subject to the registration requirement or the
requirement to provide a DNA specimen, and those requirements
may not be a part of the conditions of his probation. We therefore
reverse the district court’s inclusion of Condition N as part of
Salazar-Lopez’s probation conditions.

CONCLUSION

¶16 Because Condition N of the sex offender Group A
conditions mandates compliance with certain registration
requirements of Title 77, Chapter 41, and because Salazar-Lopez
is exempt from such compliance, we reverse the district court’s
imposition of Condition N as a condition of his probation. We
otherwise affirm the court’s imposition of Group A conditions as
part of his probation, as they are not registration requirements of
Title 77, Chapter 41 of the Utah Code.

20230194-CA 11 2024 UT App 61