Von Rosenberg (Jason) v. State ( 2013 )

 abuse its discretion by finding that appellant's conduct was not as good as
required by the conditions of his probation and revoking his probation.
Second, appellant argues that the district court abused its
discretion by revoking his probation because the plain language of the
condition which prohibited him from possessing sexually explicit material
required that his probation officer deem the material inappropriate before
he could be revoked for possessing it. Such a reading of the condition
would produce an absurd result, see Wilson v. State, 121 Nev. 345, 357,
114 P.3d 285, 293 (2005) (this court construes statutory language to avoid
absurd results); however, even assuming that appellant's reading of the
condition is correct, his probation officer testified that she explained to
him on multiple occasions that he was to possess or view no sexually
explicit or pornographic material whatsoever. We conclude that the
district court did not abuse its discretion by finding that appellant's
conduct was not as good as required by the conditions of his probation.
See Lewis v. State, 90 Nev. 436, 438, 529 P.2d 796, 797 (1974).
Third, appellant argues that the district court abused its
discretion by revoking his probation because all of his exposure to sexually
explicit material was a result of his employment, which was approved by
his probation officer and his sexual therapist. The district court conducted
. . . continued
materials did not constitute possessing them and that the parties resolved
this dispute in a way that "both sides could live with." Appellant failed to
provide this court with information regarding this resolution. See Greene
v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make
a proper appellate record rests on appellant.").
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multiple hearings related to this issue and listened to testimony from
appellant's probation officer, his sexual therapist, and a social media
expert, and ultimately concluded that appellant's exposure to sexually
explicit material went above and beyond that which was incidental to his
employment. This contention is supported by the record. We conclude
that the district court did not abuse its considerable discretion by finding
that appellant's conduct was not as good as required by the conditions of
his probation.
Having considered appellant's contentions and concluded that
they lack merit, we
ORDER the judgment of the district court AFFIRMED. 2
' J.
Hardesty
J.
arraguirre Q Cherry
2Appellant also argues that the condition of his probation which
prohibited him from possessing sexually explicit material was
unconstitutionally vague because sexually explicit material was not
defined. Appellant waived a challenge to the constitutionality of this
provision by failing to raise it on direct appeal from the judgment of
conviction. See United States v. Stine, 646 F.2d 839, 846 (3d Cir. 1981)
(noting that challenges to the constitutionality of probation conditions
must be raised on direct appeal); Franklin v. State, 110 Nev. 750, 752, 877
P.2d 1058, 1059 (1994) ("[C]laims that are appropriate for a direct appeal
must be pursued on direct appeal, or they will be considered waived in
subsequent proceedings."), overruled on other grounds by Thomas v. State,
115 Nev. 148, 979 P.2d 222 (1999).
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cc: Hon. Connie J. Steinheimer, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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