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

20140167-CA 2 2015 UT App 172

¶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)).
State v. Snyder

20140167-CA 3 2015 UT App 172

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 
State v. Snyder

20140167-CA 4 2015 UT App 172

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 
State v. Snyder

20140167-CA 5 2015 UT App 172

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-anda-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.
State v. Snyder

20140167-CA 6 2015 UT App 172

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-ahalf 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.
State v. Snyder

20140167-CA 7 2015 UT App 172

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 
State v. Snyder

20140167-CA 8 2015 UT App 172

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 
State v. Snyder

20140167-CA 9 2015 UT App 172

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
State v. Snyder

20140167-CA 10 2015 UT App 172

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 
State v. Snyder

20140167-CA 11 2015 UT App 172

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.