April 27, 2015 – State of New Mexico v. Robert Dinapoli, No. 33,004

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _April 27, 2015

NO. 33,004

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ROBERT DINAPOLI,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Angela J. Jewell, District J udge Pro Tempore

Hector H. Balderas, Attomey General
Paula E. Ganz, Assistant Attomey General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Robert Dinapoli, having previously been convicted of criminal
sexual penetration, signed a Sex Offender Supervision Behavioral Contract (the sex
offender contract) in which he agreed that he would not possess “any sexually
oriented or sexually stimulating material.” The district court revoked Defendant’s
probation because Defendant was found to be in possession of three R-rated,
theatrically released movies. Defendant argues that he did not have sufficient notice
that his possession of such movies would violate the terms of his probation and that
the district court erred by revoking his probation without reviewing the movies in their
entirety in order to assess the nature of the movies as a whole. We hold that Defendant
had 	sufficient 	notice 	as 	a 	result 	of 	both 	the 	sex 	offender 	contract 	and 	the
circumstances of a previous probation violation. We further hold that the district court
had sufficient evidence before it without reviewing the movies in their entirety. We
therefore affirm the revocation of Defendant’s probation. We nevertheless correct the
district court’s order and commitment to credit Defendant for days of probation he
already served.

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BACKGROUND
{2} 	On December 4, 1992, Defendant was indicted for numerous crimes of criminal
sexual penetration taking place on June 25, 1990 after he had broken into the home
of two women while armed with a firearm. In 1994, Defendant pleaded guilty to four
counts of criminal sexual penetration, two counts of kidnapping, and one count of
aggravated battery. All the crimes involved the use of a deadly weapon. On January
30, 1992, Defendant was also indicted for attempted criminal sexual penetration,
kidnapping, and false imprisonment, among other crimes, involving another woman
in an incident that took place on October 3, 1991.
{3} 	Defendant was sentenced for the 1991 crimes after a plea and disposition
agreement to serve 364 days in custody followed by five years probation. For the 1990
crimes, he was sentenced to serve thirty years imprisonment followed by five years
probation. He was additionally ordered to participate in both inpatient and outpatient
treatment and sex offender counseling.
{4} 	Defendant was released from imprisonment on October 21, 2008 to the Sex
Offender Unit at the New Mexico Behavioral Health Institute in Las Vegas, New
Mexico. Two days later, Defendant was terminated from the program. Defendant’s
probation officer at that time reported that Defendant “informed staff members that
treatment was of no value to him and [that he] wished to be returned to prison where

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he did not have to put up with anyone asking questions about his past behavior.” The
probation officer reported that Defendant told him “I don’t belong out here, I raped
two women and I need to go back to prison. I have food and shelter over there and
[j]ust can’t make it out here, I need to go back to prison.” The district court revoked
Defendant’s 	probation 	and 	re-committed 	him 	to 	serve 	a 	term 	of 	six 	years
imprisonment to be followed by five years probation.
{5} 	After his subsequent release from prison, the district court allowed Defendant
to live at his mother’s house because he suffers from a degenerative neurological
disorder. Defendant signed the sex offender contract on December 2, 2011. Rosalind
Hankins, Defendant’s probation officer, reported that Defendant violated the
conditions of his probation and was arrested on February 29, 2012, charging that
Defendant (1) did not comply with Section 6(D) of the sex offender contract that
prohibited Defendant from accessing electronic devices for sexually stimulating
material, pornography, adult websites, and social networking sites; and (2) did not
attend the Sex Offender Treatment Program because he was asked to leave for being
disruptive (the February violation). As to the first charge, Ms. Hankins reported that
Defendant stated that the websites depicted rape victims and rapists and that he
“wanted to learn more about what kind of rapist he was.” The State filed a motion to
revoke probation, and the district court held a probation violation hearing on April 5,

4
2012. The district court reinstated Defendant’s probation with the additional condition
that Defendant not access the internet with his cell phone.
{6} 	On 	July 	30, 	2012, 	Ms. 	Hankins 	and 	another 	probation 	officer visited
Defendant’s residence on a routine probation call. While there, Ms. Hankins found
three DVDs in Defendant’s bedroom that she characterized in her probation violation
report attached to the State’s motion to revoke Defendant’s probation as “extremely
violent and sexually graphic in nature, and portray women being raped.” The State
again filed a motion to revoke probation. After a probation violation hearing held on
September 19, 2012 (September hearing), the district court found that Defendant
violated his probation by possessing sexually explicit materials in violation of Section
6(A) of the sex offender contract. The district court revoked Defendant’s probation
and committed Defendant to the Department of Corrections for a term of five years
to be followed by supervised probation for a new term of five years.
NOTICE
{7} 	Defendant first argues that the district court improperly revoked his probation
because he did not have sufficient notice that his possession of the movies would
violate the terms of his probation. Specifically, Defendant contends that neither the
sex offender contract nor the February violation provided him notice that his
possession of “popular, mainstream, R-rated movies” would be a violation of the

5
terms of his probation. Notice is an issue to the extent it bears upon whether it was
reasonable for Defendant to have believed that he was not violating the terms of his
probation. See State v. Martinez, 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 1321
(“The proof necessary [to support the revocation of probation] is that which inclines
a reasonable and impartial mind to the belief that a defendant has violated the terms
of probation.”).
{8} 	We review the district court’s revocation of probation under an abuse of
discretion standard. Id. ¶ 5. In exercising its discretion, the court may consider that the
purpose of probation is the rehabilitation of a defendant. State v. Lopez, 2007-NMSC-
011, ¶ 7, 141 N.M. 293, 154 P.3d 668. A court has the authority to revoke probation
for a probation violation because rehabilitation is not occurring. Id. ¶ 8.
Evidence Before the District Court
{9} 	The DVDs consisted of three movies: (1) I Spit On Your Grave (2010); (2) The
Girl With the Dragon Tattoo (2009, Swedish); and (3) The Girl With the Dragon
Tattoo (2011, American). At the probation revocation hearing, the State played “about
twelve scenes” from I Spit On Your Grave for the court. The State asked the court to
review the box containing the movie, noting that the back cover stated, “A group of
local lowlifes subject the star of the movie to a nightmare of degradation, rape, and
violence.”

6
{10} 	The State also played scenes from both versions of The Girl With the Dragon
Tattoo at the hearing. While the DVDs were playing, Ms. Hankins testified about what
was depicted. As to the Swedish version, she noted a scene in which a woman is
anally raped, an oral sex scene, and a scene in which “it happens in the office.” She
described a rape scene in which a woman is handcuffed to a bed, has her pants pulled
off, is fully nude from the back, and is being raped. She described the rape scene in
the American version as “very similar” and also noted a scene with oral sex. The State
drew the court’s attention to the warning on the back of the DVD cover, which read,
“Rated R for brutal, violent content, including rape and torture, strong sexuality,
graphic nudity” and characterized the plot as “a secret history of murder and sexual
abuse.”
{11} 	Defendant testified at the September hearing that he watched the movies
because of the revenge that the portrayed victims were able to impose upon their
rapists. He stated that he did not derive sexual satisfaction from the movies. He
assumed that the sex offender contract prohibitions only applied to pornography; he
was not “cautioned not to watch any scenes in a mainstream movie.” He further
testified that he did not believe that the proceedings concerning the February violation
indicated 	that 	the 	sex 	offender 	contract 	prohibited 	possession 	of 	more 	than

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pornography because the violation was based on his having a cell phone that could
access prohibited sites.
Notice Under Section 6(A) of the Sex Offender Contract
{12} 	The district court revoked Defendant’s probation for violating Section 6(A) of
the sex offender contract. That provision reads:
I will not purchase, possess or subscribe to any sexually oriented or
sexually stimulating material. This includes, but is not limited to: Sexual
devices, books, magazines, video/audio tapes, pictures, DVDs, CD
ROMs, and Internet websites.
{13} 	As framed by Martinez, 1989-NMCA-036, ¶ 4, we analyze the sufficiency of
the notice of this section to ascertain whether it enables a reasonable person to believe
that Defendant’s possession of the movies would constitute a violation of the sex
offender contract. We do not believe that Defendant could have reasonably believed
that his possession of the DVDs did not violate Section 6(A).
{14} 	Section 6(A) prohibited Defendant from possessing “any sexually oriented or
sexually stimulating material.” Section 6(A) does not limit the type of material that
may be prohibited as sexually oriented or sexually stimulating; it specifies that such
material may include DVDs. Although Defendant argues that grammatically the word
“sexual” in the listing of types of material included within the prohibition restricts the
type of DVD included to a “sexual DVD,” we read the word as specifying a particular
kind of “device” rather than describing all of the listed items. Indeed, reading “sexual”

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to pertain to the items other than “devices” would be mere surplusage in that the listed
items are merely examples of “material” that must be either “sexually oriented” or
“sexually stimulating” to be prohibited. See Mayfield Smithson Enters. v. Com-Quip,
Inc., 1995-NMSC-034, ¶ 14, 120 N.M. 9, 896 P.2d 1156 (“In New Mexico it is almost
axiomatic that a contract must be construed as a harmonious whole, and every word
or phrase must be given meaning and significance according to its importance in the
context of the whole contract.” (alteration, internal quotation marks, and citation
omitted)). Thus, to fall within the prohibition of Section 6(A), a DVD must be either
“sexually oriented” or “sexually stimulating.”
{15} 	In addition, for the purposes of our analysis, we need not consider whether the
DVDs in question were “sexually stimulating” to Defendant. The standard of whether
a reasonable person would consider Defendant’s possession to be a violation is an
objective one. Defendant’s testimony that he was not sexually stimulated is not
relevant to this inquiry. We therefore focus our discussion on whether a reasonable
person would believe that the material was “sexually oriented.”
{16} 	We have guidance with regard to this terminology in State v. Green, 2015-
NMCA-007, 341 P.3d 10, cert. denied, 2014-NMCERT-012, ___ P.3d ___. In that
case, the probation violation report included within its allegations that the defendant
had possession of sexual images on his computer that violated a provision of the

9
defendant’s sexual offender behavior contract similar to the provision in this case. Id.
¶ 21. The defendant argued that the evidence did not support the revocation of his
probation because the contract was overly vague in that a reasonable person would not
understand that the nude images depicted would be considered pornography or
prohibited by the contract. Id. The contract in that case also prohibited the defendant
from possessing “any sexually oriented or sexually stimulating material[,]” including,
but not limited to “[s]exual devices, books, magazines, video/audio tapes, DVDs, CD
ROMs, and [i]nternet websites.” Id. ¶ 23 (alterations in original). In interpreting the
contractual prohibition in that case, this Court stated:
Our Supreme Court has defined the term “sexually explicit exhibition”
as a “graphic and unequivocal display or portrayal of nudity or sexual
activity.” State v. Myers, 2009-NMSC-016, ¶ 10, 146 N.M. 128, 207
P.3d 1105. Furthermore, our Legislature defines “sexual conduct” as an
“act of masturbation, . . . physical contact with a person’s clothed or
unclothed genitals, pubic area, buttocks or, if such person be a female,
breast[.]” NMSA 1978, § 30-37-1(C) (1973). We conclude each of these
definitions encompasses that which is “sexually oriented” within the
terms of [the d]efendant’s sex offender behavior contract.
Id. ¶ 25 (alteration and omission in original).
{17} 	The DVD covers were enough to raise a reasonable question concerning
whether the DVDs contained “sexually oriented” material. The cover to I Spit On
Your Grave stated that the movie involved “a nightmare of degradation, rape, and
violence.” The cover to the American version of The Girl With the Dragon Tattoo

10
stated that the movie involved “violent content, including rape and torture, strong
sexuality, [and] graphic nudity” as well as “sexual abuse.” From this language, a
reasonable person would be on notice of the sexually oriented material in the DVDs.
And, even if the covers were not sufficient notice, the graphic content of The Girl
With the Dragon Tattoo, as described by Ms. Hankins, would put a reasonable person
viewing the DVD on notice that the material was “sexually oriented.”
{18} 	The fact that the movies were “mainstream movies that anybody can buy at any
video store” as Defendant contended below is not of consequence. Under Section 6(A)
of the sex offender contract, Defendant agreed that he would not possess any sexually
oriented material, including sexually oriented DVDs. Nothing in that provision
excludes sexually oriented material of general availability. Section 6(A) is a condition
of Defendant’s probation, which, by its language, is designed to prevent Defendant
from possessing material that may lead to recurring criminal activity or hinder his
rehabilitation. With this intent, it is reasonable to believe that, standing alone, the
source of any sexually oriented material is not relevant.
Notice Under Section 6(A) Read in Conjunction with Other Provisions of the Sex
Offender Contract
{19} 	Nor do we believe, as Defendant further contends, that, in the context of this
case, Section 6(A) is limited to “adult” or “pornographic” material when read in

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conjunction with other provisions of the sex offender contract. Other provisions of the
sex offender contract provide:
I understand that any computer, camera, computer tablet, cell phone,
thumb drive (USB drive), memory or any other electronic device I have
access to, including the hard drive and removable drives may be
examined for inappropriate content at any time. Inappropriate content
includes, 	but 	is 	not 	limited 	to: 	Sexually 	stimulating 	material,
Pornography (adult or child), adult websites, social networking sites,
such as, but not limited to Facebook, Myspace and Mocospace, dating
websites, and personal ads to include cell phone applications.
Section 6(D).
I will not patronize any establishment in which sexually oriented
material or entertainment is available. Including, but not limited to: adult
book/video stores, and topless/nude clubs.
Section 6(F).
I understand that I may be asked to provide my telephone, satellite
television, or cable bill for examination. Prohibited charges on these bills
include: calls to adult hotlines, and adult channels.
Section 6(G).
{20} 	Section 6(D) prohibits Defendant from maintaining “inappropriate content” on
any electronic device. “Inappropriate content” is not defined other than to state that
it includes, but is not limited to, certain types of material. It clearly includes sexually
stimulating material, and it may be assumed that, applying the principle of ejusdem
generis, the sex offender contract intends to embrace pornography and the other listed
items in the same manner as sexually stimulating material. See State v. Nick R., 2009-

12
NMSC-050, ¶ 21, 147 N.M. 182, 218 P.3d 868 (stating that, under the statutory
construction principle of ejusdem generis, when words with a general meaning follow
words with a more specific meaning, “the general words are not construed in their
widest extent but are instead construed as applying to persons or things of the same
kind or class as those specifically mentioned” (internal quotation marks and citation
omitted)); State v. Strauch, 2014-NMCA-020, ¶ 13, 317 P.3d 878 (applying the
principle of ejusdem generis when words of specific meaning follow general words),
rev’d on other grounds, 2015-NMSC-009, ___ P.3d. ___. While unstated, by virtue
of the nature of the provision, we further believe that Section 6(D) intends for sexually
oriented material to be included within the scope of “inappropriate content.” Indeed,
the sex offender contract treats “sexually oriented” and “sexually stimulating”
material in a similar fashion.
{21} 	Defendant points to the statutory construction principle of ejusdem generis and
argues that, when the provisions of the sex offender contract are considered together,
Section 6(A) would be reasonably understood to prohibit only pornographic materials.
According to Defendant, all the language describing prohibited materials in Sections
6(D), (F), and (G) “clarify” the terms “sexually stimulating or sexually oriented
material” in Section 6(A) to relate to “adult” or pornographic material. We again note,
in this regard, that Section 6(A) prohibits possession of “sexually oriented or sexually

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stimulating materials[,]” and Section 6(D) defines “inappropriate content” to include
both “[s]exually stimulating material” and pornography, as well as “adult websites.”
Sections 6(F) and (G) focus their prohibitions on “adult” activities.
{22} 	However, Section 6(D), by defining “inappropriate content” to include both
“[s]exually stimulating material” and pornography, does not use the two terms
interchangeably. While there certainly may be overlap, if the intent were to equate
sexually stimulating material with pornography, there would be no reason to list both
items. Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082, ¶ 19, 131
N.M. 100, 33 P.3d 651 (“[W]e view the contract as a harmonious whole, give meaning
to every provision, and accord each part of the contract its significance in light of
other provisions.”). We do not believe that it would be reasonable to assume the two
terms to be fully inclusive.
Impact of the February Violation
{23} 	Moreover, to the extent that there is ambiguity, it was reasonably resolved with
respect to Defendant because of the additional notice afforded him by the proceeding
related to the February violation. That proceeding involved Section 6(D) and the
allegations that Defendant accessed websites depicting rapists and rape victims on his
cell phone. Defendant agreed not to access the internet using his cell phone.

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{24} 	At the September hearing, Defendant’s previous probation officer testified, over
defense counsel’s relevance objection, regarding the February violation. On cross-
examination, Defendant later stated that he had viewed websites on his cell phone that
included statements of people who were raped. He acknowledged that he violated his
probation because he viewed sexually stimulating material that did not include
pornographic pictures. This acknowledgment was inconsistent with Defendant’s
position that he was unaware that sexually stimulating materials were not limited to
pornography. In closing, the prosecutor argued that Defendant was aware that the sex
offender contract was not limited to pornography as a result of the February violation.
At sentencing, the district court, in finding that Defendant had violated the sex
offender contract by possessing the DVDs, stated:
There had been a prior revocation or motion revoking probation, wherein
it was another scene viewed that was pretty similar to the—well, it was
a scene viewed that had nuances of the same scenes that were viewed in
these other tapes. It’s just troubling, when you’ve been corrected once,
that you would do the same thing again.
{25} 	Defendant 	argues 	on 	appeal 	that 	the 	violation 	underlying 	the 	current
proceedings is “completely distinct” from the February violation such that the earlier
proceedings were not sufficient to give a “person of ordinary intelligence” notice that
possession of the DVDs at issue would violate the sex offender contract. He further
argues that the district court misapprehended the substance of the earlier proceedings

15
and erroneously relied upon them. As to the latter argument, we agree with Defendant
that the district court may have misstated the facts of the February violation. It was not
clear that Defendant viewed any scenes or images on his cell phone. However, we do
not consider this discrepancy to be a material one because we do not agree with
Defendant that the February violation was “completely distinct” from or unrelated to
the current one.
{26} 	The two violations are related, even though they are not factually the same,
because the circumstances of the February violation were sufficient to provide a
reasonable person with notice that possession of sexually oriented or sexually
stimulating material was forbidden by the sex offender contract even if it were not
considered pornographic. The February violation involved Defendant’s accessing
websites on his cell phone that depicted rape victims and rapists. Regardless of
whether the websites included scenic material, the State moved to revoke Defendant’s
probation for violating Section 6(D) of the sex offender contract. That section, as we
have described, prohibits Defendant from accessing sexually stimulating material,
pornography, adult websites, and social networking sites that “include cell phone
applications.” The State did not assert, and nothing in the record indicates, that the
websites involved pornography. Indeed, Defendant testified at the September hearing
that the websites pertaining to the February violation did not have pornographic

16
pictures and that there was a probation violation because he was “viewing sexually
stimulating material.”
{27} 	A reasonable person would conclude from this information that material need
not be pornographic in order to be sexually stimulating. A reasonable person would
further conclude that, although the February violation was of Section 6(D), material
also would not need to be pornographic in order to be considered sexually stimulating
as prohibited by Section 6(A). Because the terms “sexually stimulating” and “sexually
oriented” are used interchangeably in Section 6(A), a reasonable person would thus
necessarily conclude that material need not be pornographic to be prohibited as
“sexually oriented” by Section 6(A). We therefore conclude that the circumstances of
the February violation provided notice to Defendant that the DVDs that contained
sexually oriented material would be a violation of Section 6(A) even though the
material may not be considered pornographic as that term is used in the sex offender
contract.
DEFENDANT’S ADDITIONAL ARGUMENTS CONCERNING THE SEX
OFFENDER CONTRACT
{28} 	Defendant additionally argues in connection with his notice argument that the
prohibitions of the sex offender contract are vague and overly broad. According to
Defendant, the sex offender contract is vague and overly broad because it does not
provide sufficient notice that the possession of mainstream movies was prohibited and

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because it therefore gives rise to the risk of arbitrary enforcement by probation
officers. However, the sex offender contract couches the prohibitions of Section 6(A)
in terms of “sexually oriented or sexually stimulating material.” As we discussed in
Green, the meaning of “sexually oriented” can be gleaned from case law and statute.
2015-NMCA-007, ¶ 25. Moreover, as we have discussed, Defendant had additional
notice of the prohibitions of the sex offender contract by virtue of the February
violation. We do not consider the sex offender contract to be impermissibly vague
such as to have denied Defendant notice. We consider the sex offender contract to be
necessarily broad in order to accomplish its rehabilitative purpose. See Lopez, 2007-
NMSC-011, ¶ 7 (stating the rehabilitative intent of probation).
{29} 	Defendant further argues that the sex offender contract violates his First
Amendment rights. However, conditions of probation are, by their very nature,
restrictions on an offender’s lifestyle. Probation “is not a matter of right”; it is “an act
of clemency” within the court’s discretion. Id. (internal quotation marks and citation
omitted). Probation conditions are permissible if they serve the best interests of the
public and the interest of the offender’s rehabilitation. See id. (“Probation assumes
that the best interests of the public and the offender will be served and also that the
offender can be rehabilitated without serving the suspended jail sentence.” (internal
quotation marks and citation omitted)). “Probation is a criminal sanction, and the

18
district court may impose reasonable conditions that deprive the offender of some
freedoms enjoyed by law-abiding citizens.” State v. Leon, 2013-NMCA-011, ¶ 27, 292
P.3d 493 (internal quotation marks and citation omitted). By prohibiting Defendant
from possessing sexually oriented material, the sex offender contract addresses both
the 	need 	to 	deter 	Defendant 	from reoffending 	and 	the 	effort 	to 	bolster 	his
rehabilitation. Such a prohibition is a permissible restriction of Defendant’s First
Amendment rights.
THE DISTRICT COURT’S EVIDENTIARY REVIEW
{30} 	At the probation revocation hearing, the State played scenes from each of the
three DVDs for the district court’s review, including twelve scenes from I Spit On
Your Grave. The scenes from both versions of The Girl With the Dragon Tattoo were
described by Ms. Hankins. The district court did not view other portions of the DVDs.
{31} 	Defendant objected to the district court’s viewing only portions of the DVDs,
arguing that, unless the movies were viewed in their entirety, the court would not be
viewing the complete evidence and the scenes selected by the State would not be
within context. On appeal, Defendant argues that the district court abused its
discretion and violated his due process rights by failing to view the movies in their
entirety. Defendant acknowledges that Rule 11-106 NMRA, pertaining to a court’s
ability to receive evidence of parts of a writing or recorded statement that, in fairness,

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should be considered along with other parts of the same writing or recorded statement
received in evidence, does not apply to a probation revocation hearing. See Rule 11-
106 (“If a party introduces all or part of a writing or recorded statement, an adverse
party may require the introduction, at that time, of any other part—or any other
writing or recorded statement—that in fairness ought to be considered at the same
time.”); Rule 11-1101(D)(3)(d) NMRA (stating that the rules of evidence do not apply
to proceedings to revoke probation). Indeed, the district court offered to view
additional parts of the DVDs identified by Defendant as demonstrating the absence
of a probation violation.
{32} 	“We review the district court’s evidentiary rulings for an abuse of discretion.”
Green, 2015-NMCA-007, ¶ 27 (internal quotation marks and citation omitted). To the
extent that Defendant contends that the district court violated his due process rights,
he must show prejudice. State v. Neal, 2007-NMCA-086, ¶ 42, 142 N.M. 487, 167
P.3d 935.
{33} 	Defendant argues that, although the DVDs “contain isolated scenes depicting
sex[,]” the district court was required to view the DVDs in their entirety in order to
determine if they “overall” constituted “sexually oriented” material. He draws a
parallel to the constitutional test for obscenity, asserting that the test for “sexually
oriented” is similarly dependent on a review of the material “taken as a whole.” Miller

20
v. California, 413 U.S. 15, 24 (1973) (setting forth the “basic guidelines” for the
factual determination that material is obscene as “(a) whether the average person,
applying contemporary community standards would find that the work, taken as a
whole, appeals to the prurient interest; (b) whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.” (internal quotation marks and citation omitted)). We do
not agree.
{34} 	The purpose of the test for obscenity is to determine whether speech is not
protected by the First Amendment of the United States Constitution because it is
obscene. See id. at 23 (“This much has been categorically settled by the [United States
Supreme] Court, that obscene material is unprotected by the First Amendment.”). The
issue before us in this case, however, is not a matter of protected speech or First
Amendment jurisprudence. It does not matter whether the material is protected by the
First Amendment. Rather, the issue is whether Defendant violated the terms of his
probation by possessing sexually oriented material. As we have discussed, the
purposes of probation are to both prevent an offender from engaging in additional
criminal activity and to rehabilitate the offender. The restrictions of the sex offender
contract further these purposes by limiting Defendant’s access to materials that may

21
reasonably lead to susceptibility of other criminal acts or impede rehabilitation. See
State v. Garcia, 2005-NMCA-065, ¶ 11, 137 N.M. 583, 113 P.3d 406 (“Conditions
of probation are reasonably related to rehabilitation if they are relevant to the offense
for 	which 	probation 	was 	granted. 	The 	court 	has 	broad 	discretion 	to 	effect
rehabilitation and may impose conditions designed to protect the public against the
commission of other offenses during the term, and which have as their objective the
deterrence of future misconduct.” (internal quotation marks and citations omitted)).
{35} 	For the same reasons, it does not matter whether other portions of the DVDs did
not contain sexually oriented material or that the DVDs, taken as a whole, would not
be considered “sexually oriented.” The issue is whether the DVDs contained sexually
oriented material that would undermine the purposes of Defendant’s probation. The
district court did not abuse its discretion or violate Defendant’s due process rights in
concluding that the DVDs met that standard based on the evidence before it.
CREDIT FOR TIME ON PROBATION
{36} 	In revoking Defendant’s probation, the district court entered its October 2, 2012
order and commitment to the Department of Corrections, ordering Defendant’s
imprisonment for a period of five years followed by a new term of probation for five
years. Defendant claims on appeal that the district court erred by neglecting to credit

22
Defendant with 298 days that Defendant served on probation. The State does not
oppose a credit but states that the proper credit is 299 days rather than 298.
{37} 	We agree that Defendant is entitled to credit for the time he served on
probation. See State v. Baca, 2005-NMCA-001, ¶ 21, 136 N.M. 667, 104 P.3d 533
(“A probationer whose sentence has been suspended is entitled to credit against his
or her sentence for the time served on probation.”). We thus remand to the district
court to modify its order and commitment to the Department of Corrections to
recalculate Defendant’s remaining sentence. We suggest that, when doing the
recalculation, the district court expressly set out, as done in its January 6, 2009 order
and commitment to the Department of Corrections, (1) the term remaining in
Defendant’s sentence, (2) the term of the sentence to be suspended, (3) the term of
imprisonment, and (4) the time for which Defendant is given credit.
CONCLUSION
{38} 	We affirm the district court’s revocation of Defendant’s probation and remand
to the district court to modify its sentence to provide credit for time served on
probation.
{39} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

M. MONICA ZAMORA, Judge

23