                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                 ALBERT EDWARD NASH, JR., Appellant.

                             No. 1 CA-CR 15-0162
                               FILED 10-27-2015


           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
                                STATE v. NASH
                               Decision of the Court



                         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.


K E S S L E R, 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 probation




1The Honorable Dawn M. Bergin, Judge Maricopa County Superior Court,
was authorized by the Chief Justice of the Arizona Supreme Court to
participate in the disposition of this appeal pursuant to Article 6, Section 3,
of the Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”)
sections 12-145 to -147 (2003).

2   North Carolina v. Alford, 400 U.S. 25, 31 (1970).

3 Nash placed a photograph of his genitalia with a telephone number in a
restroom at a public park.


                                          2
                             STATE v. NASH
                            Decision of the Court

reinstated 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,


                                      3
                            STATE v. NASH
                           Decision of the Court

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.”




4 The PO also testified that following the incident, Nash was given
permission to go on the First Baptist property on Mondays to attend the
soup kitchen and had never violated these permissible limitations: “We
allowed him for a very small window of time after school would be out and
kids would not be there unless they were helping with the soup kitchen.”


                                      4
                             STATE v. NASH
                            Decision of the Court

¶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 to


                                       5
                              STATE v. NASH
                             Decision of the Court

the 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 the court of the
opportunity to consider sentencing alternatives in light of the objections to
Condition 10. Nash raised his constitutional objections as to Condition 10
at the probation violation hearing, the court considered the objections and
made determinations in light of the objections. Unlike Smith, Nash does not
contend the challenged conditions should never have been imposed.
Unlike Smith, it cannot be said that Nash waived any objection to the
probation conditions simply because he did not appeal when the conditions
were imposed in 2009. Rather, Nash’s constitutional challenges based on
overbreadth and vagueness arose because of the way in which his 2009
conditions were interpreted and applied to him to find a violation and
revoke his probation. See, e.g., State v. Herrera, 121 Ariz. 12, 14 (1978) (“After
the revocation of probation the defendant could have appealed from the
sentence imposed or any issues raised by the revocation of his probation.”
(citation omitted)). Nash raised these objections at an appropriate time,
when the court was considering the proper construction of Condition 10 to
determine whether he violated probation. If, as the State argues, Nash
could only raise these objections in the abstract when they were first
imposed, the superior court may have been forced to consider a myriad of
speculative possibilities of how the conditions might be overbroad and
vague without context or any factual bases.

¶18          Nash’s case more closely resembles State v. Martin, 171 Ariz.
159 (App. 1992). Martin’s probation was revoked and he appealed alleging


                                        6
                              STATE v. NASH
                             Decision of the Court

the superior court erred by finding he violated his condition of probation.
Martin, 171 Ariz. at 160. Because we determined the condition was
overbroad and vague we determined the evidence was insufficient to
support the violation. Id. at 160.

¶19           Thus, we determine Nash is not procedurally precluded from
raising properly preserved constitutional challenges to the conditions of his
probation. However, because Nash did not argue in the superior court that
Condition 4 is vague and overbroad, he has waived these claims and we
review only for fundamental error. See, e.g., State v. Peralta, 175 Ariz. 316,
318 (App. 1993) (reviewing only for fundamental error in appeal from
probation revocation in which probationer waived four issues because he
did not raise them in superior court); State v. Nickerson, 164 Ariz. 121, 122
(App. 1990) (reviewing for fundamental error and finding none in appeal
from disposition continuing probation with additional conditions;
probationer challenged imposition of additional condition on appeal but
waived the issue because did not object in superior court); State v. Bouchier,
159 Ariz. 346, 347-48 (App. 1989) (finding waived claim that defendant is
not subject to sex offender registration as condition of probation because
failure to timely object in superior court; determining failure to object in
superior court to claim on appeal that ten-year term exceeded statutory
maximum was fundamental error which cannot be waived).5

II.    Condition 10

¶20            Nash argues that there is insufficient evidence showing he
violated Condition 10 and argues the condition is unconstitutionally vague
and overbroad. Because we have a duty to avoid deciding constitutional
issues if possible, Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 6 (App. 2005), we first




5 The State also contends that at the revocation hearing, Nash conceded
Condition 4 was not overbroad or vague. We do not read the transcript to
contain such a concession. When asked by the superior court if he also
wanted to raise a constitutional objection to Condition 4, Nash maintained
that given the court’s conclusion that he could have asked his probation
officer to clarify Condition 10, any objection to Condition 4 was moot. We
do not agree that a challenge to one alleged violation somehow moots other
challenges to different alleged violations, see, e.g., infra ¶¶ 45-46, but can see
how counsel may have believed arguments about Condition 4 were futile
in light of the court’s resolution of essentially the same constitutional
arguments regarding Condition 10.


                                        7
                             STATE v. NASH
                            Decision of the Court

address whether there is sufficient evidence that Nash violated the
condition.

       A.     There is sufficient evidence of Nash’s violation of
              Condition 10

¶21            “We will uphold a trial court’s finding that a probationer has
violated probation unless the finding is arbitrary or unsupported by any
theory of evidence.” State v. Thomas, 196 Ariz. 312, 313, ¶ 3 (App. 1999).
Probation violations “must be established by a preponderance of the
evidence.” Ariz. R. Crim. P. 27.8(b)(3). “Revocation hearings are flexible
and not subject to the same rules of evidence and procedure as govern
criminal trials.” State v. Smith, 112 Ariz. 416, 419 (1975) (internal quotation
marks and citation omitted). “We view the evidence in the light most
favorable to sustaining the court’s finding.” State v. Tatlow, 231 Ariz. 34, 39-
40, ¶ 15 (App. 2012).

¶22           Nash argues that there was no reliable evidence as to
“whether the photo of [Nash’s] penis was ‘sexually oriented’ or that [Nash]
specifically knew that such harmless non-sexually deviant conduct was
prohibited under the terms of his sex offender probation.”

¶23            We disagree. Nash’s arguments conflate the requirements of
Condition 10 which states that Nash may “[n]ot possess any media that is
sexually oriented and/or that contains depictions of partially or fully
exposed . . . male . . . genitalia.” (Emphasis added.) According to the plain
language of Condition 10, a media depiction containing exposed male
genitalia is enough to violate Condition 10; the depiction need not also be
“sexually oriented.” In other words, Nash may not possess media that is
sexually oriented or media that contains depictions of exposed male
genitalia. Here, Nash does not challenge that the photograph on his phone
is media or that it depicts exposed male genitalia.

¶24           Nash also argues that there was no reliable evidence that he
willfully violated Condition 10. A court may revoke probation only if the
violation was willful, i.e., the defendant was either aware or could have
been aware of the condition and was able to comply with it. See State v.
Alves, 174 Ariz. 504, 506 (App. 1992) (determining court cannot revoke
probation if the defendant was not aware and could not have been aware
of the condition); State v. Robinson, 142 Ariz. 296, 297-98 (App. 1984)
(determining in case involving revocation for failure to pay fines that court
cannot revoke probation and sentence defendant to imprisonment unless it
considers defendant’s ability to comply and determines non-compliance



                                       8
                              STATE v. NASH
                             Decision of the Court

was willful refusal as opposed to failure after bona fide effort). Here, Nash
knew he was taking a photograph of his genitalia and admitted this to his
PO. See supra ¶ 5.

¶25           Assuming Condition 10 is constitutional, there is sufficient
evidence to support the superior court’s determination that Nash violated
that condition.

       B.     Condition 10 is not unconstitutionally vague

¶26           Nash argues that Condition 10 is unconstitutionally vague
because “it indicated in the same sentence that [Nash] not possess media
that is ‘sexually oriented and/or’ containing depictions of male genitalia
but did not expressly indicate that a non-sexually oriented picture of one’s
own or any other adult’s genitalia was prohibited.” Accordingly, he argues
“a person of ordinary intelligence would not be reasonably on notice that a
photo of one’s own penis in a non-sexually oriented pose violated this
condition.”

¶27            We review questions of constitutional law de novo. Thiele v.
City of Phoenix, 232 Ariz. 40, 42, ¶ 11 (App. 2013); see Maricopa Cty. Juv. Action
No. J-83341-S, 119 Ariz. 178, 181 (App. 1978) (“[P]robation is not to be
considered a matter of grace, ‘but is a liberty protected by the 14th
Amendment of the United States Constitution, a liberty of which the
probationer may not be deprived without due process of law . . . .’”).

¶28            Conditions of probation “violate due process rights if a
person of ordinary intelligence cannot understand what conduct is required
or prohibited,” State v. Elmore, 174 Ariz. 480, 483 (App. 1992), or if the
condition “permits arbitrary and discriminatory enforcement,” State v.
Kessler, 199 Ariz. 83, 87, ¶ 15 (App. 2000); see City of Chicago v. Morales, 527
U.S. 41, 56 (1999) (explaining a law can be unconstitutionally vague in two
ways).6 “[A] finding of a violation of probation is unconstitutional if that
finding is premised upon a statutory construction that denies a probationer
fair warning that certain conduct would be construed by the court to be in
violation of the court’s order of probation.” State v. Sheehan, 167 Ariz. 370,




6 We do not understand Nash to be arguing the condition is vague because
it could permit arbitrary and discriminatory enforcement.




                                        9
                             STATE v. NASH
                            Decision of the Court

372 (App. 1991) (citing Douglas v. Buder, 412 U.S. 430, 432 (1973)).7 A
probation condition is unconstitutionally vague if a person of ordinary
intelligence must necessarily guess at its meaning because it lacks
ascertainable standards of guilt. Pima Cty. Juv. Appeal No. 74802-2, 164 Ariz.
25, 27-28 (1990) (holding that statute which formed basis for probation
revocation was not unconstitutionally vague), abrogated on other grounds by
State v. Getz, 189 Ariz. 561, 566 n.4 (1997).

¶29            Nash’s argument is unavailing. Just because Condition 10
does not explicitly state that media containing a depiction of a person’s own
genitalia is also a violation, it does not diminish the clarity of the condition
with respect to the all-encompassing prohibition of possessing any media
that contains depictions of exposed male genitalia. This necessarily
includes a media depiction of a person’s own genitalia. The same is true as
to Nash’s argument that the probationary term does not expressly refer to
adult genitalia. A person of common intelligence would understand that
no media containing a depiction of any exposed male genitalia, whether
that of an adult or a minor, is permitted under Condition 10.

       C.     Condition 10 is not unconstitutionally overbroad

¶30             Nash also argues that Condition 10 is unconstitutionally
overbroad because it “prohibited [Nash] from possessing photos of his own
genitalia and consensually sharing it with his adult girlfriend” which is not
otherwise a violation of law and is protected conduct under the First
Amendment rights to speech and association. He asserts this provision is
overly broad because it would also prohibit a probationer from painting a
picture or taking a photo of a consenting nude man or woman, or drawing
a picture of one’s own body. Nash acknowledges that although
probationary conditions may restrict a defendant’s constitutional rights,
such as those of speech and association, to a degree not permissible outside
the criminal justice system, courts only uphold such conditions when the
conditions bear a reasonable relationship to the goals of probation. Nash
argues that the conditions here have “literally no relationship to the goals
of [his] sex offender probation as they bear no direct relationship to children
and in fact punished behavior that probation should condone as part of a
child sex offender’s treatment―consensual adult sexual behavior.”



7 We recognize that the superior court did not expressly rule on any of
Nash’s constitutional arguments except to indicate that if he had any
question about them he could have talked to his PO. See supra ¶ 10. This is
of no moment since our review is de novo.


                                      10
                              STATE v. NASH
                             Decision of the Court

¶31            The Arizona Supreme Court has explained that although
arguments about constitutional overbreadth of statutes are primarily
attacks on the facial validity of statutes to protect the constitutional rights
of others, courts also consider such attacks as applied to the constitutionally
protected conduct of the specific defendant. Pima Cty. Juv. Appeal No.
74802-2, 164 Ariz. at 30. As applicable here, “to successfully challenge the
facial validity of a statute, the challenging party must demonstrate no
circumstances exist under which the challenged statute would be found
valid.” Lisa K. v. Ariz. Dep’t of Econ. Sec., 230 Ariz. 173, 177, ¶ 8 (App. 2012).

¶32            Nash has not shown that on its face there are no circumstances
in which Condition 10 would be found valid. For instance, if a defendant
had possession of child pornography or similar media showing “exposed
breasts, buttocks, or . . . genitalia,” see supra ¶ 3, it would be constitutional.
Although it is also possible to envision certain instances in which Condition
10 might arguably be overbroad, such as possession of an anatomy book for
a class, or a depiction of highly regarded art such as Michelangelo’s David,
this does not prove that Condition 10 is overbroad on its face.

¶33            Nor can Nash prevail on an “as applied” challenge based on
the facts here. As we understand his argument, Condition 10 is not
constitutional because it does not reasonably relate to the goals of his
rehabilitation, and thus, not reasonably related to his probation because
part of his rehabilitation is being permitted to have a consensual sexual
relationship with an adult woman. However, Condition 10 does not limit
his ability to have a consensual sexual relationship with another adult. It
only limits his ability to possess media depicting exposed genitalia. He is
free to have a consensual relationship with another adult without having
possession of that media. Moreover, we note that contrary to his argument,
such a restriction on Nash is not totally disconnected from his past acts or
reasonable rehabilitation goals because he previously violated probation by
placing a photograph of his genitalia in a public area where people could
be expected to find it. See supra ¶ 2 and n.3.

III.   Condition 4

       A.     There is insufficient evidence Nash violated Condition 4 by
              going to a park primarily used by minors

¶34           Nash argues that Condition 4 prohibits him from going to
places primarily used by minors and that there was no “reliable evidence
that children frequented . . . the park.” The State argues that the places
listed in Condition 4 are examples of places that are necessarily primarily



                                       11
                            STATE v. NASH
                           Decision of the Court

used by minors and that all the terms of Condition 4 are modified by the
phrase “primarily used by children.”

¶35            Because “this court is obliged to try and construe the law so
as to declare it constitutional,” State v. Boyd, 201 Ariz. 27, 29, ¶ 13 (App.
2001), we agree with the State that Condition 4’s reference to parks is
necessarily modified by the phrase “primarily used by children.”
Condition 4 states Nash was to “[n]ot 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.” If the reference to park was a standalone term, then Nash would
have been forbidden to enter any park for any reason regardless of whether
the park was primarily used by minors. We have previously held a
condition that prohibits a person convicted of a sex offense from having any
contact with minors, is unconstitutionally vague to the extent it was not
limited, as applied, to contact even with the minors’ parents’ consent or
with other adults present. Martin, 171 Ariz. at 160. Similarly, we held that
a probationary term which prohibited patronizing any place where
sexually stimulating or sexually-oriented materials were available was
unconstitutionally vague and overbroad as applied to food, drug, and
department stores as well as movie theaters where such materials might be
found. Maricopa Cty. Juv. Action No. JV-511237, 189 Ariz. 18, 21 (App. 1996).
Similarly, if Condition 4 was read so broadly as to prevent Nash from ever
visiting any park, even if it were restricted to adults or primarily used by
adults, it might be unconstitutional. Narrowly reading Condition 4 to limit
the reference to “parks primarily used by children” avoids us having to
reach constitutional questions of overbreadth and vagueness of the
condition. See Fragoso, 210 Ariz. at 430, ¶ 6.

¶36           Thus, the question presented is whether the State introduced
sufficient evidence that Granite Creek Park was primarily used by minors.
The only evidence was by the PO who testified that minors frequented the
park. Even construing the evidence in the light most favorable to affirm,
Tatlow, 231 Ariz. at 39-40, ¶ 15, that evidence is insufficient to show a
violation by Nash’s single visit to a park for several minutes. That minors
frequent a park does not necessarily mean that a park is primarily used by
minors. Primarily means “[c]hiefly,” “mainly,” or “[a]t first,” “originally.”
The American Heritage Dictionary of the English Language 1398 (5th ed.
2011). On the other hand, “frequent” or “frequented” means “[o]ccurring




                                     12
                            STATE v. NASH
                           Decision of the Court

or appearing quite often” or “[h]abitual or regular.” Id. at 702.8 In any
event, based on the circumstances described in supra ¶ 6, we cannot agree
that Nash’s brief shortcut through the park on this one particular occasion
is the type of willful conduct that Condition 4 was designed to prohibit.
See, e.g., U.S. v. Burroughs, 613 F.3d 233, 246 (D.C. Cir. 2010) (construing
probation term imposing associational restrictions including not loitering
near places where minors congregate as not extending to incidental,
unintentional, inadvertent, or chance contact with minors and finding
support in survey of case law); Martin, 171 Ariz. at 160 (determining mere
presence with minors in conventional places impermissibly penalizes
“innocent physical presence with other human beings”).

¶37            Thus, a preponderance of the evidence does not support a
finding that Nash willfully violated Condition 4 by going to a park
primarily used by minors and therefore we reverse the finding of a
violation. See State v. Stroud, 209 Ariz. 410, 412 n.2, ¶ 6 (2005) (stating
conviction based on insufficient evidence is fundamental error); Martin, 171
Ariz. at 160 (reversing after determining evidence “insufficient to support
a violation of [probation condition] as phrased in the probation
document”); see also State v. Veloz, 236 Ariz. 532, 534, ¶ 3 (App. 2015)
(determining failure to specifically argue fundamental error does not
require court to deliberately overlook fundamental error when it is found);
State v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007) (vacating and
remanding for resentencing after explaining “[a]lthough we do not search
the record for fundamental error, we will not ignore it when we find it”).

       B.     There is sufficient evidence Nash violated Condition 4 by
              loitering near a school yard

¶38             Nash also argues that there was insufficient evidence that he
violated Condition 4 which prohibited him from “loiter[ing] near school
yards . . . without the prior written approval of the probation officer.” Nash
asserts that the evidence was insufficient to show a violation because he
was not on school grounds but briefly stopped on church property on his
way to the soup kitchen.

¶39          We disagree. It is undisputed that Nash was sitting on a
bench in front of or near a church school. The PO testified that Nash was
on a bench in front of the school, but not actually on school grounds. The


8 On appeal, the State contends there was a playground in the park. We
find no such reference in the record and that would still not necessarily
establish that the park was primarily used by minors.


                                     13
                             STATE v. NASH
                            Decision of the Court

PO testified that within minutes of discovering Nash was there, a
surveillance officer went to go speak with Nash. According to the PO, the
surveillance officer saw minors around at that time although Nash was not
interacting with them. Evidence established that Nash did not have prior
written approval to loiter near the school yard. See supra ¶ 7. While the PO
testified she did not know how the school buildings worked, she admitted
the building where he was is not school grounds. A worker at the soup
kitchen explained that the school and church sanctuary are across an alley
from the building where the meals were served, and that meals were served
on Monday nights. Construing the evidence in the light most favorably to
affirm, the State showed by a preponderance of the evidence that Nash was
sitting in front of or nearby the school at 3 p.m. Nash failed to rebut that
evidence by testifying that he was supposed to be by the soup kitchen at
that time to help serve meals that evening.

       C.     Condition 4 is not unconstitutionally vague or overbroad
              despite not defining the word “primarily”

¶40           Condition 4 prohibited Nash from “go[ing] to or loiter[ing]
near school yards . . . or other places primarily used by children under the
age of 18 without prior written approval of the probation officer.” Nash
argues the meaning of the term “primarily” is not further defined. Nash
also argues that “no children were seen when [he] briefly stopped on
Church property shared with a school on his way to assist with setting up
and eating a meal at the Church’s soup kitchen across the alley and where
children were ‘never’ seen.” Finally, Nash argues Condition 4 “broadly
prohibited [him] from simply going and assembling . . . [at the Church’s]
soup kitchen . . . in a place never frequented by children and certainly where
no children were present . . . .” We disagree.

¶41            First, as noted above, a commonly accepted definition of
“primarily” is “chiefly,” “mainly,” or “at first,” “originally.” See supra ¶ 36.
A person of ordinary intelligence would know that primary and secondary
schools are chiefly used by minors. Second, Nash’s contention that there
were no children around when he was sitting on the bench assumes that
the condition requires minors to be present when he is there. However,
there is no such requirement in the probationary term. In any event, the PO
testified that when one of the officers went to Nash’s location at about 3
p.m., there were students present.

¶42           Nash’s final argument about vagueness and primary
argument on overbreadth is that he was really just briefly stopped before
going to the soup kitchen and the condition cannot be read to preclude him


                                      14
                             STATE v. NASH
                            Decision of the Court

from working at the kitchen where no students are present. Nothing in
Condition 4 affected or related to his serving meals or helping to prepare
meals at the soup kitchen. Nor, based on the evidence presented, did the
court apply the term to find Nash in violation by helping to prepare the
meals at the soup kitchen.

¶43          Accordingly, we find Condition 4 is not unconstitutionally
vague or overbroad as it relates to school yards.

IV.    Remand for a new disposition hearing is required

¶44           We determine there was insufficient evidence that Nash
violated Condition 4 by going to a park primarily used by minors, but that
there was sufficient evidence he violated Condition 4 for loitering near a
school yard. We also determine the evidence is sufficient that he violated
Condition 10. In addition, we conclude that Conditions 4 and 10, as we
have construed them, are not unconstitutionally vague or overbroad. We
must now decide if we need to remand this matter to the superior court to
determine if the court intended to revoke Nash’s probation for the two
violations rather than the three found by the court.

¶45            Our supreme court has held that when on appeal from a
probation revocation the appellate court affirms fewer than all violations
leading to revocation, the court must remand the matter for a new
disposition hearing “unless the record clearly shows the trial judge would
have made the same disposition even without consideration of the
violations set aside on appeal.” State v. Ojeda, 159 Ariz. 560, 562 (1989); State
v. Davis, 159 Ariz. 562, 563-64 (1989) (citing Ojeda); accord Martin, 171 Ariz.
at 161 (stating “the trial court appears to have relied upon the term 20
violation as a major but not exclusive factor in sentencing,” and remanding
for a new disposition because “[f]rom the record we cannot determine what
the disposition would be without the term 20 violation”); State v. Jones, 163
Ariz. 498, 499 (App. 1990) (remanding for new disposition after setting
aside one probation violation finding even though superior court had
sentenced defendant to presumptive term and stated defendant was getting
a “real break”).

¶46           We cannot tell from the record whether the superior court
would have still revoked probation and sentenced Nash to six years’
imprisonment based only on the two violations that remain. At the
disposition hearing, the court merely recounted that Nash “has violated the
conditions of his probation” and that the court was revoking probation and
sentencing Nash to six years’ imprisonment. We also note that although



                                       15
                            STATE v. NASH
                           Decision of the Court

the school yard violation occurred in early September 2014, the State did
not seek to revoke Nash’s probation until October 23, 2014, the day after it
found Nash with the photo. Furthermore, even after the school yard
violation, the PO allowed Nash to continue to work at the soup kitchen. See
supra n.4. Accordingly, we affirm the court’s order finding violations of
Condition 4 based on the school yard and Condition 10, but vacate the
portion of the order for violation of Condition 4 based on going to the park
and remand this matter to the superior court to determine if it wants to
revoke Nash’s probation for the two violations we have affirmed and if so,
any sentence to be imposed.


                             CONCLUSION

¶47           For the reasons stated, we affirm the order finding two
violations of Nash’s conditions of probation, vacate the order as to the
violation based on going to the park and remand for further proceedings
consistent with this decision.




                                 :ama




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