State v. Sprague

*1065YOUNG, J.

Defendant was convicted after trial by jury of the crime of harassment, a misdemeanor. ORS lél.OGSCIXa).1 On appeal, defendant challenges the validity of a curfew as a condition of probation. The court suspended execution of a 60-day sentence, placed defendant on "bench” probation for two years, required 48 hours of community service and ordered her to obey all laws and a 10 p.m. curfew for two years, unless she needs to be out for work-related purposes. Defendant contends the imposition of the curfew condition is "excessive” on the ground that it is not reasonably related to the nature of the offense or to the purpose of rehabilitation. We affirm.

The statutory standard of review as stated in ORS 138.040 is whether the sentence is "cruel, unusual or excessive in light of the nature and background of the offender or the facts and circumstances of the offense * * *.”

The harassment charge arose out of an episode occurring around midnight on a Portland street. Defendant’s companion was arrested. Defendant interceded in the companion’s arrest, and in the process defendant struck a police officer in the face and was arrested.

At sentencing, the trial judge explained his reason for the curfew at some length. Defendant is 20 years old, unemployed and the mother of an 11 month old child. She has no prior record. The court believed that the people defendant was associating with were a bad influence and that defendant would be wise to disassociate herself from them. A motion to reconsider the sentence asserted the impropriety of the curfew. The court repeated its earlier reasons for the condition and emphasized the late hours, defendant’s child, her being under 21 years old and her presence in a bar after midnight. Her choice of companions obviously concerned the judge:

"* * * I am convinced, based on the facts of the case and on the facts of her — her age, her situation with the child, *1066her habit of hanging around with the crowd, and then becoming a part of it, little things that I noticed — everybody that testified in her behalf had a tattoo — the same tattoo she had, obviously a member of some sort of group. It just means that she has very strong group ties. Those people, I don’t feel, are very good for her to be hanging around, at least after dark. They show an alarming lack of maturity and a propensity for getting into trouble. I don’t think that’s good for Ms. Sprague.”

Defendant mounts a two-pronged attack: (1) the condition violates the statutory standard in that it is not reasonably related to the offense or to the needs of an effective probation; and (2) the condition diminishes a fundamental, constitutionally protected right of a "free citizen to go where she chooses and when she chooses.” See State v. Holm, 34 Or App 503, 579 P2d 860 (1978).

Conditions of probation are reviewable on appeal. QRS 138.040. Our task on review has been facilitated by the trial judge’s careful explanation of his observations and reasons for the curfew condition. See State v. Troupe, 36 Or App 875, 883, 586 P2d 95 (1978) (Gillette, J., concurring).

With respect to defendant’s first concern, we view the condition as being reasonably related to the needs of an effective probation. State v. Hovator, 37 Or App 557, 562-564, 588 P2d 56 (1978). The trial judge saw this defendant as a young person who had formed unfortunate associations. Those associations, in the late evening hours, had led her into trouble. Clearly, there are a variety of alternatives available to the judge in terms of restructuring the defendant’s life to eliminate the potential for trouble. State v. Asher, 40 Or App 455, 459, 595 P2d 839 (1979). The judge chose, on balance, a less restrictive alternative than he might have, e.g., jail.

Instead of requiring that defendant entirely disassociate herself from her companions, as he might have done, the judge simply made it impossible for her to associate with them during that period of time when and in those places where, as both the facts of this case and general human experience show, trouble was most likely to occur. If the condition was more stringent in one respect than defendant would have liked — it took away late *1067evening hours out — it was less stringent in another — she could maintain her friendships at different times and places.

While we might have balanced the same considerations differently, were we imposing the sentence, we cannot say the trial judge was wrong in the way he balanced them. Probation is a very personal matter. Defendant and her friends were seen by the trial judge. He explained what he saw and what he felt was reasonably necessary. While we might do it differently, we could not do it better.

Defendant’s second contention is that the condition unnecessarily infringes upon a constitutional right. If probationary conditions diminish constitutionally protected rights, those conditions are tested by the necessities for making probation effective, i.e., a reasonable relationship to reformation of the offender or protection of the public. In State v. Culbertson, 29 Or App 363, 369, 563 P2d 1224 (1977), the court said:

"* * * a probationer is a free person possessed of all civil rights except those which are taken away from him for probationary purposes. Probation is a process of imposition of rehabilitative and protective conditions upon a convict in lieu of taking away his liberty by incarceration.”

In this case, we view the curfew as a minimal restraint on defendant’s liberty and reasonably related to an effective probation.

Affirmed.

ORS 166.065(l)(a) provides:

"A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he:
"(a) Subjects another to offensive physical contact; or * *