State v. Snyder

2015 UT App 172

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
BARRY J. SNYDER,
Defendant and Appellant.

Memorandum Decision
No. 20140167-CA
Filed July 9, 2015

First District Court, Logan Department
The Honorable Thomas Willmore
No. 101100501

Angela F. Fonnesbeck, Wayne K. Caldwell, and
Aaron K. Bergman, Attorneys for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
concurred.

ORME, Judge:

¶1 Defendant Barry J. Snyder was convicted of sexual
exploitation of a minor, a second degree felony. See Utah Code
Ann. § 76-5a-3 (LexisNexis 2008). He appeals from a subsequent
order revoking his probation and imposing his suspended
prison sentence of one to fifteen years. We affirm. 1

1. In a decision released earlier this year, we affirmed the district
court’s order dismissing Defendant’s petition for postconviction
relief arising from this same criminal case. See Snyder v. State,
(continued…)
State v. Snyder

¶2 In 2010, Defendant was charged with ten counts of sexual
exploitation of a minor based on the discovery of child
pornography on his computer. 2 Defendant pled guilty to one
count; in exchange, the State dropped the remaining nine counts.
The district court suspended Defendant’s prison sentence and
placed him on probation for three years. The court also
sentenced Defendant to one year in jail but ordered that he be
transferred to the Northern Utah Community Correctional
Center (NUCCC) for in-patient sex-offender treatment as soon as
bed space became available. And the court ordered Defendant to
complete sex-offender treatment at NUCCC and to “abide by [a
particular set of] restrictions for sex offenders.”

¶3 In 2011, Defendant was transferred from jail to NUCCC.
In late 2011 and early 2012, Adult Probation and Parole (AP&P)
filed several probation violation reports detailing Defendant’s
difficulties in the NUCCC program, including his failure to gain
employment, his failure to attend and participate in his
scheduled classes, and his continued pattern of “blam[ing]
others and not himself.” AP&P requested revocation and
reinstatement of probation after Defendant served an additional
term in jail. After a hearing, the court revoked and then
reinstated probation, requiring Defendant to serve one year in
jail with early release to NUCCC after 280 days, followed by

(…continued)
2015 UT App 37, 346 P.3d 669 (per curiam). Defendant has not,
however, been without success in his appeals to this court. See
State v. Snyder, 932 P.2d 120 (Utah Ct. App. 1997); State v. Snyder,
860 P.2d 351 (Utah Ct. App. 1993).

2. “In reviewing a revocation of probation, we recite the facts in
the ‘light most favorable to the trial court’s findings.’” State v.
Legg, 2014 UT App 80, ¶ 2, 324 P.3d 656 (quoting State v. Jameson,
800 P.2d 798, 804 (Utah 1990)).

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State v. Snyder

thirty-six months of probation. This latest probation was
explicitly categorized as “zero tolerance.”

¶4 In the summer of 2013, AP&P filed another probation
violation report and an affidavit in support of an order to show
cause. AP&P alleged that Defendant had started a relationship
with a woman, M.L., whom he had met on a dating website.
When initially confronted about his relationship with M.L.,
Defendant told his AP&P caseworker and NUCCC staff that he
had never met M.L. face to face. But after Defendant gave them
access to his email account, as they requested for the purpose of
verifying his story, he told them that he had met with M.L. twice
in person for less than ninety minutes each time. Upon further
investigation, AP&P learned that Defendant and M.L. had
actually met on four occasions, sometimes for longer periods
than Defendant had reported.

¶5 Based on this information, AP&P alleged that Defendant
had violated his probation conditions in four ways: (1) he “failed
to be truthful in all dealings” with AP&P, (2) he “dated a person
with children residing at home who are under the age of 18,”
(3) he “failed to participate in sex offender therapy,” and (4) he
failed to complete the NUCCC program. As an addendum to its
charging report, AP&P attached both Defendant’s and M.L.’s
dating website profiles and a series of emails between them.
AP&P recommended that the court revoke Defendant’s
probation and impose his suspended prison sentence of one to
fifteen years.

¶6 At a December 16, 2013 evidentiary hearing, Defendant,
his AP&P caseworker, his NUCCC therapist, and M.L. testified.
After hearing the testimony, the district court found that
Defendant had violated the terms of his probation in three ways:
(1) he was not always truthful in his dealings with AP&P, (2) he
dated a woman with children under the age of eighteen residing
at home, and (3) he failed to complete the NUCCC program.
Based on these findings, the district court revoked Defendant’s

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probation and reinstated his suspended prison sentence.
Defendant appeals.

¶7 “The decision to grant, modify, or revoke probation is in
the discretion of the trial court.” State v. Peterson, 869 P.2d 989,
991 (Utah Ct. App. 1994) (citation and internal quotation marks
omitted). “To revoke probation, the trial court must find a
violation of the probation agreement by a preponderance of the
evidence.” State v. Legg, 2014 UT App 80, ¶ 10, 324 P.3d 656. “In
addition, the trial court must find, also by a preponderance of
the evidence, that the violation was willful, and not merely the
result of circumstances beyond the probationer’s control.” Id.
(internal citations omitted). “[A] finding of willfulness merely
requires a finding that the probationer did not make bona fide
efforts to meet the conditions of his probation.” Peterson, 869
P.2d at 991 (citation and internal quotation marks omitted).
“[T]he word ‘willful’ should not be equated with the word
‘intentional.’” Id. Even in routine cases, “a single violation of
probation is legally sufficient to support a probation revocation.”
Legg, 2014 UT App 80, ¶ 11. And this premise is doubly true in a
case where probation is expressly characterized as “zero
tolerance.”

¶8 We now consider Defendant’s first issue on appeal.
Defendant contends that there was insufficient evidence to
support the district court’s findings that he violated three of his
probation conditions. We first consider the district court’s
finding that Defendant was not always truthful in his dealings
with AP&P.

¶9 On July 31, 2013, NUCCC staff and Defendant’s AP&P
caseworker asked him about his relationship with M.L. At first,
Defendant told them that “he had never met [M.L.]” and that
“they had only had contact through email and phone.”
Defendant then gave his login information to an NUCCC
supervisor, who then discovered that “there were comments
from [M.L.] and [Defendant] indicating that they had met at the

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Del Taco in Roy.” When the supervisor confronted Defendant
with the emails, Defendant conceded that he had met with M.L.
two different times that month, for less than ninety minutes
each.

¶10 Defendant claims that despite his initial denial and
subsequent mischaracterization, he was “ultimately truthful
with NUCCC and AP&P personnel.” However, at the
evidentiary hearing, M.L. testified that she and Defendant had
met for lunch on four occasions, with one lunch lasting two-and-
a-half hours, which contradicted Defendant’s testimony as to the
number of times he met with M.L. and the length of those visits.
Despite Defendant’s current effort to more charitably
characterize his deception, Defendant admitted at the
evidentiary hearing that he lied to his AP&P caseworker and to
NUCCC personnel about the number of visits he had with M.L.
So without looking beyond his own testimony, the evidence was
sufficient to establish by a preponderance of the evidence that
Defendant was not always truthful in his dealings with AP&P.
Especially given the “zero tolerance” character of Defendant’s
probation, his admitted lies to AP&P are alone enough to
warrant revocation of his probation.

¶11 We will, however, briefly touch upon the other two
grounds for revocation, primarily for the guidance our analysis
might provide in future cases. 3 As indicated, the district court
found that Defendant “dated a person with children residing at
home who are under the age of 18.”

¶12 At the evidentiary hearing, M.L. testified that Defendant
initially contacted her by sending her a “flirt” on a “website for

3. In the event a petition for certiorari is filed, the additional
discussion might also aid the Utah Supreme Court’s decision
whether to grant the petition.

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LDS singles.” 4 From there, Defendant and M.L. began emailing
at least every other day, and they eventually started speaking on
the phone. The two also met for lunch at two fast food
restaurants, a total of four times, over a four-week period. These
meetings lasted anywhere from forty-five minutes to two-and-a-
half hours. Defendant paid for lunch each time, and at the last
lunch, he held M.L.’s hand and put his arm around her.
Although M.L. testified that she did not think of Defendant as
her boyfriend or of their relationship as “being a romance,”
when asked if she felt “that this was the beginnings or the very
beginnings of a dating relationship,” she testified, “I did, yeah. I
felt we connected on a lot of levels.” In addition, Defendant had
told her that he hoped to be exonerated, and she “was just
hoping that all this was going to come back and be [found to
have been] a lie like he said it was and that he was going to be let
go and everything was going to kind of go from there.” M.L. also
testified that Defendant “brought up marriage a lot.” This record
evidence is more than sufficient to show by a preponderance of
the evidence that Defendant “dated” M.L., as that term is
commonly understood.

¶13 Turning to the district court’s finding that Defendant
failed to complete the NUCCC program, Defendant contends
that the district court erred because he “desired to complete
NUCCC and the terms of his probation,” and thus his expulsion
from the program should not be counted against him and, in any
case, could not be considered willful. In finding that Defendant
failed to complete the NUCCC program, the district court
discussed Defendant’s lying and the fact that he knew he was
meeting with a woman with minor children. The district court
also relied on the testimony of Defendant’s therapist from

4. “LDS” is the acronym for Latter-day Saint and is used in this
context as a shorthand reference to members of the Church of
Jesus Christ of Latter-day Saints.

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NUCCC. The therapist, who acknowledged that Defendant had
seemed to be doing well in his program, testified that he was
concerned that “a lot of [Defendant’s] behaviors and his conduct
in the community were kind of the antithesis of what we were
seeing in therapy.” He also testified that he was particularly
concerned that Defendant was telling M.L. that he was not guilty
of the charge to which he pled guilty because “[t]his then reflects
that he still wasn’t taking full accountability for it. He didn’t
really own the fact that he actually committed this crime or had
done something wrong.” The therapist was also troubled by
Defendant’s lying. The therapist ultimately testified that
Defendant was no longer an appropriate candidate for NUCCC
and that his participation in the program had been ended. This
evidence is sufficient to support the district court’s
determination that Defendant failed to complete his NUCCC
treatment program.

¶14 Finally, we turn to Defendant’s contention that the district
court “never made an express finding that [Defendant]
committed a willful violation.” This claim is without merit.
Although the district court did not use the word “willful” in its
findings of fact, we have previously held that a “trial court’s
finding of willfulness may be implicit rather than explicit.” State
v. Robinson, 2014 UT App 114, ¶ 16, 327 P.3d 589. In this case, the
district court explained the evidence it relied on and its reasons
for finding that Defendant violated his probation conditions.
There is no suggestion that the court considered any of
Defendant’s misbehavior to be accidental, the product
of coercion, or the result of an honest mistake. The district court
thus implicitly found that Defendant’s violations were willful,
i.e., that he “did not make bona fide efforts to meet the conditions
of his probation.” State v. Peterson, 869 P.2d 989, 991 (Utah Ct.
App. 1994) (citation and internal quotation marks omitted).
Viewed in the light most favorable to the district court’s
findings, the record evidence supports the district court’s
“implicit finding of willfulness.” See Robinson, 2014 UT

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App 114, ¶ 19. We conclude that the evidence was sufficient to
support a finding that Defendant violated the terms of his
probation.

¶15 Defendant’s second issue on appeal concerns whether the
district court erred when it “relied upon information not
presented or entered as evidence” in finding that Defendant
violated his probation by not being truthful with AP&P and by
dating M.L. Specifically, Defendant contends that the district
court improperly relied on his emails with M.L. in making these
findings.

¶16 At the evidentiary hearing, the court explained the basis
for its finding that Defendant and M.L. dated:

Part of that is that you were not to date a person
who had children residing in the home. Well, you
met four times. You met anywhere from 45
minutes to three hours by [M.L.’s] testimony.
That’s more than turning in an application and
somebody from Del Taco or Wendy’s telling you
well we’re going to hold that application as you
testified. . . .

Furthermore, what shows it was a date?
There doesn’t have to be sexual contact or kissing
or anything like that. It’s the time increases with
[M.L.] every time you meet with her and then
there’s physical touching. You held hands. You put
your arm around her and by her own testimony it
was going further is what she said. And then you
bought her meals. Now, if that’s not a date I don’t
know what a date is.

Notably, the court did not refer to the emails as a basis for its
finding that Defendant dated M.L. In addition, the court did not

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rely on the emails in finding that Defendant was not truthful
with AP&P:

You admitted you lied and you said to protect
[her]. That just doesn’t make any sense. You were
protecting [yourself], trying to and that’s why you
did [it].

[T]hey gave you many chances to fess up
and it’s clear from the testimony of [your therapist]
that they gave you those chances. They said you
can stay in the program if you’ll just tell us the
truth and you chose to lie as to the number of times
you met with [M.L.] and how long you met with
her which required them to go out and spend
hours to try to figure this out and so they did. So
I’m finding that you have violated and that the
State has met its burden concerning, No. 1, that
you have failed to be truthful in all your dealings
with AP&P on or about July 31st.

Thus, our review of the record indicates that the court did not
rely on the emails in finding that Defendant violated the terms of
his probation, warranting its revocation.

¶17 In any event, even if the district court did rely on the
emails to support its findings, or at least in deciding to reimpose
Defendant’s prison sentence, it was not necessarily improper.
We have previously recognized that “sentencing and probation
hearings are relatively informal. Most rules of evidence do not
apply.” State v. Hodges, 798 P.2d 270, 279 (Utah Ct. App. 1990).
Indeed, rule 1101 of the Utah Rules of Evidence states that other
than the rules regarding privileges, the rules of evidence do not
apply to “sentencing, or granting or revoking probation.” Utah
R. Evid. 1101(c)(3). “While evidence presented at such hearings
is certainly subject to challenge on the basis of the traditional
reliability concerns underlying evidentiary rules, the overall

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informality suggests a standard of proof that is comprehensible
and relatively simple.” Hodges, 798 P.2d at 279. See also Gagnon v.
Scarpelli, 411 U.S. 778, 782 & n.5 (1973) (stating that courts may
rely on “conventional substitutes for live testimony, including
affidavits, depositions, and documentary evidence” in deciding
whether to revoke probation); Morrissey v. Brewer, 408 U.S. 471,
489 (1972) (stating that in parole and probation revocation
proceedings, “the process should be flexible enough to consider
evidence including letters, affidavits, and other material that
would not be admissible in an adversary criminal trial”).

¶18 Here, the emails were attached to AP&P’s amended
probation violation report, which was submitted with its
affidavit in support of an order to show cause. Defendant was
not precluded from refuting the emails’ accuracy when they
were specifically addressed by the district court at the
subsequent sentencing hearing, but he chose not to do so—not
even in the course of a colloquy directly between Defendant and
the court. And he does not explain why, or even assert that, had
the emails been proffered as evidence at the earlier evidentiary
hearing, they would have been deemed inadmissible. We
therefore conclude that no error occurred in connection with any
limited consideration the district court may have given the
emails.

¶19 Finally, Defendant argues that it was a violation of his
due process rights for the district court to accept filings, i.e., the
emails, “by non-parties to the legal proceedings.” The State
contends that Defendant failed to preserve this issue for appeal.
“As 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 Utah Supreme Court has held that “the
preservation rule applies to every claim, including constitutional
questions, unless a defendant can demonstrate that ‘exceptional
circumstances’ exist or ‘plain error’ occurred.” Id. To preserve an
issue for appeal, “the issue must be presented to the trial court in

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such a way that the trial court has an opportunity to rule on that
issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d
801 (citation and internal quotation marks omitted). “Thus, if a
party makes an objection . . . based on one ground, this objection
does not preserve for appeal any alternative grounds for
objection.” State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867.

¶20 In the district court, counsel objected on the ground that
the State did not submit the emails as evidence at the evidentiary
hearing. Counsel did not argue that it would violate due process
for the district court to consider the emails for the first time at
the later sentencing hearing, without their having been entered
into evidence. We agree with the State that Defendant’s
ambiguous objection did not preserve his due process claim for
appeal, and Defendant does not argue that his claim falls within
an exception to our preservation rule. See Holgate, 2000 UT 74,
¶ 11. Accordingly, we decline to address Defendant’s due
process claim.

¶21 Affirmed.

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