IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 19

OCTOBER TERM, A.D. 2015

February 16, 2016

HEATHER A. HARADA,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0181

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, State Public Defender; Tina 

N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant 

Appellate Counsel.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; and Joshua C. Eames, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] Heather Harada pled guilty to third degree sexual assault in exchange for a 

deferred prosecution and five years of probation. After Ms. Harada had served close to 

four years of probation, the district court entered an order modifying the terms of her 

probation to require that she submit to and pay for a psychosexual evaluation. Ms. 

Harada appeals that order claiming that there was no change of circumstances, 

rehabilitation benefit, or community protection interest to justify modifying the probation 

order and the district court therefore abused its discretion in ordering the modification. 

We affirm.

ISSUE

[¶2] Ms. Harada presents a single issue for our review:

I. Did the district court abuse its discretion by modifying 

its prior order without any evidence, specifically including a 

change of circumstances, a benefit to rehabilitation or 

protection of the community?

FACTS

[¶3] In February 2010, while Ms. Harada was an employee of Cheyenne Transitional 

Center, a community correctional facility, she had a sexual relationship with an inmate at 

the facility. On January 7, 2011, the State filed an information charging Ms. Harada with 

one count of second degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-

303(a)(vii), which prohibits a correctional employee from having a sexual relationship 

with an inmate. On May 6, 2011, the State and Ms. Harada entered into a plea agreement 

pursuant to which Ms. Harada agreed to plead guilty to a reduced charge of third degree 

sexual assault in exchange for a deferred prosecution and a five-year supervised 

probation. The plea agreement specified:

AS A RESULT of the Defendant’s plea(s) to the above 

Count(s), the Defendant and the State agree that the 

Defendant’s plea of guilty shall not be entered and that the 

Defendant shall be afforded first offender treatment pursuant 

to W.S. 7-13-301, providing that the Defendant is statutorily 

eligible, obeys all bond conditions and other conditions 

hereinafter. The recommendation regarding probation shall 

be for a five (5) year supervised probation with terms in 

accord with the P.S.R. [Presentence Report] in this matter.

[¶4] On July 1, 2011, a Presentence Report prepared and signed by a Department of 

Corrections Probation/Parole Agent was submitted to the district court. The report stated:
2

The Defendant before the Court is a twenty-two (22) year old 

female facing sentencing for the felony offense of 3rd Degree 

Sexual Assault-Sexual Contact. She does not have any 

previous criminal history, nor did she report any substance 

abuse history. The Defendant is currently living with the 

victim in this case and has a daughter with him. She relayed 

that although she is not particularly happy about her current 

legal situation, she is willing to complete probation so that 

she may resolve this matter.

[¶5] The Presentence Report thereafter listed a number of conditions that the 

probation/parole agent recommended be attached to Ms. Harada’s probation should 

probation be granted. Condition No. 14 specified that Ms. Harada shall “attend any 

counseling and/or submit to evaluations deemed appropriate by her probation agent.”

[¶6] On July 15, 2011, the district court held Ms. Harada’s sentencing hearing. The 

court confirmed that defense counsel had reviewed the Presentence Report with Ms. 

Harada and heard from defense counsel concerning inaccuracies in the report. The court 

then heard from defense counsel concerning any objections to the report’s recommended 

probation conditions and ruled on the defense objections as follows:

[Defense Counsel]: There are some parts of the 

probation recommendations I wanted to address.

THE COURT: I think now is fine. Go ahead, 

Counsel, before I call upon your client.

[Defense Counsel]: Your Honor, on page 9 it outlines 

the conditions and Number Nine says she will not associate 

with persons of disreputable character, which I always found 

to be a rather vague term to begin with. * * * [T]he man she 

lives with, [is a] convicted felon [who] * * * the district 

attorney’s office allowed contact with * * * early on in this 

case, and they have continued to reside together.

So we would certainly ask that he not be included in 

the group of people that she’s not allowed to associate with, 

and he’s the father of the child that they’re raising together. 

Also No. 17 says she will notify all future employers 

about this case. I’m not – I know this happened at work, but 

if it’s – it doesn’t seem like it’s the kind of situation that 

would affect her future employment. It’s not like she stole 

from an employer or something along those lines, and it is a 

301 disposition.
3

So we would ask that No. 9 be modified to that extent 

and No. 17 be withdrawn.

* * * 

THE COURT: * * * I want to go to those 

conditions of probation. You agreed with all of them. You 

know what’s going on here, [Ms. Harada]. I’ve been asked, 

however, to make an exception. I will, to Paragraph 9; that is, 

the disreputable persons prohibition[,] [m]ake an exception 

for your husband or the father of your child with whom you 

cohabitate or any other person approved by your agent. That 

way if there’s a real need in the course of your life, generally, 

to make allowance[,] the agent can do so.

As to 17, no, I decline to strike 17. This occurred in 

the course of employment. One of the consequences she’s 

avoided, consequences [of] sex offender registration, 

conviction, prison, all that sort of thing, but she can’t really 

avoid the manner that she is publicly and always on 

probation. In fact, that very thing has run counter to effective 

supervision in the past because then agent shows up at work, 

interferes with the job, if agent can’t find that information 

because of it.

So I decline to modify 17, but I will modify 9. I’ll ask 

[the State] to ensure that the final order is prepared in that 

fashion.

[¶7] On July 28, 2011, the district court issued its judgment and order. The order 

deferred entry of Ms. Harada’s plea and deferred her sentencing, and it placed her on 

probation for a period of five years, to run from the date of the court’s judgment and 

order. The order reflected the probation conditions specifically discussed during the 

sentencing hearing, along with the requested modification granted by the court. The 

order further specified that “Defendant shall conform to the rules, regulations and 

conditions imposed by law, by the Court, and by the Probation Officer and shall sign a 

Probation Agreement[.]”

[¶8] On August 4, 2011, Ms. Harada signed a document entitled Department of 

Corrections Sex Offender Probation/Parole Agreement. In signing the agreement, Ms. 

Harada affirmed that the agreement had been read to her and that she fully understood 

and agreed to abide by the conditions of supervision outlined in the agreement. Ms. 

Harada initialed each of the conditions, including the following:

16. I will submit to a sex offender evaluation by a Sex 

Offender Therapist approved by my Agent and will 

successfully complete any recommended treatment at my own 
4

expense. I will comply with all requirements and actively 

participate in treatment until released by my treatment 

provider.

17. I will not be allowed to change from the approved Sex 

Offender Therapist or treatment program without prior 

approval of my Agent.

18. I will submit to, participate in, and pay for sex 

offender assessment including, but not limited to, polygraph 

examinations at the request of my Agent or Sex Offender 

Therapist.

[¶9] On November 20, 2014, the State filed a petition to revoke Ms. Harada’s 

probation. The petition alleged that Ms. Harada had violated the terms of her probation 

by failing to obtain a psychosexual evaluation as directed by her probation agent. Ms. 

Harada opposed the petition, contending that her probation agent did not have the 

authority to require her to undergo the evaluation because the district court did not 

directly order the evaluation as a condition of her probation.

[¶10] On April 17, 2015, the district court held a hearing on the petition to revoke. 

During that hearing, the court asked the parties whether the question of whether the 

psychosexual evaluation was in fact a condition of Ms. Harada’s probation could be 

resolved by simply modifying the court’s final order to expressly require the evaluation.

THE COURT: And neither one of you 

mentioned, but the first thing that occurs to me when 

someone said there was, in effect, a condition of probation 

has been violated, and you say it wasn’t listed in the order, 

nobody has asked me to modify it.

[Defense Counsel]: Right.

THE COURT: Can’t I modify it?

[Defense Counsel]: You sure can.

THE COURT: Right. So if the State – if the 

State instead of revoking the probation, which of course 

involves a 301 treatment thing, if the State revokes the – or 

moves to modify, do you object to me adding the condition 

from this point forward?

[Defense Counsel]: Well, I believe we should have a 

discussion about that. Absolutely. I would like a couple 

minutes to talk about that issue, but I think it would be well 

within your authority to consider the issue in that way, and I 

would prefer the matter be brought before the Court in that 

posture.

* * * 
5

THE COURT: All right. Rather than delay this, 

is it – is it agreeable that instead of treating the revocation of 

probation, revoking her, reinstating her, is it agreeable to the 

parties that the Court at this time treat it as a motion to 

modify the terms of probation, and let you both argue whether 

it should be added as a term, and you could live with 

whatever order? Can you live with that?

[Prosecutor]: Yes, Your Honor. That’s agreeable to 

the State.

[Defense Counsel]: Perfect.

[¶11] After the district court changed the question to one of modification as opposed to 

revocation, it heard argument from both parties as to the appropriateness of requiring the 

psychosexual evaluation and counseling. The court then announced its finding that the 

evaluation and counseling was appropriate based on the fact that the offense committed 

was a sexual assault and there was a need to assess and, if necessary, address through 

counseling the disconnect between Ms. Harada’s actions and her responsibilities to 

others. The court then directed that an order be entered modifying its final judgment and 

order to require the evaluation and counseling.

[¶12] On April 30, 2015, the district court entered its Order Modifying the Conditions of 

Probation. The order required that Ms. Harada “submit to and pay for a psycho-sexual 

evaluation by a sex offender counselor approved of by the probation agent,” and that she 

“successfully complete any subsequently recommended sex offender counseling at her 

own expense.” On May 27, 2015, Ms. Harada timely filed her notice of appeal to this 

Court.

STANDARD OF REVIEW

[¶13] Orders regarding probation are sentencing decisions. Daugherty v. State, 2002 

WY 52, ¶ 13, 44 P.3d 28, 33 (Wyo. 2002) (“Probation is a form of sentencing that must 

be authorized by the legislature.”); Hicklin v. State, 535 P.2d 743, 752 (Wyo. 1975) 

(authority over sentencing, including probation, comes from legislature). A district court 

has broad discretion in making sentencing decisions, and we review those decisions 

according to the following standard of review:

We review a district court’s sentencing decisions for 

abuse of discretion. Roeschlein v. State, 2007 WY 156, ¶ 17, 

168 P.3d 468, 473 (Wyo.2007). A sentence will not be 

disturbed because of sentencing procedures unless the 

defendant can show an abuse of discretion, procedural 

conduct prejudicial to him, circumstances which manifest 

inherent unfairness and injustice, or conduct which offends 
6

the public sense of fair play. Id. An error warrants reversal 

only when it is prejudicial and it affects an appellant’s 

substantial rights. Id. The party who is appealing bears the 

burden to establish that an error was prejudicial. Id.

Croy v. State, 2014 WY 111, ¶ 6, 334 P.3d 564, 567 (Wyo. 2014) (quoting Magnus v. 

State, 2013 WY 13, ¶ 24, 293 P.3d 459, 467–68 (Wyo. 2013)); see also Noel v. State, 

2014 WY 30, ¶ 38, 319 P.3d 134, 147 (Wyo. 2014) (quoting Vaughn v. State, 962 P.2d 

149, 152 (Wyo. 1998)) (“An abuse of discretion does not occur unless a court has acted 

in a manner which exceeds the bounds of reason under the circumstances.”); Hamburg v. 

State, 820 P.2d 523, 531 (Wyo. 1991) (“[P]robation decisions should not be disturbed, 

absent an abuse of discretion.”).

DISCUSSION

[¶14] Ms. Harada contends that a court may not modify the conditions of probation 

unless there is a change in circumstances that requires the modification and the evidence 

establishes that the modification is reasonably related to rehabilitation or community 

protection. She argues that because there was no such showing of a change in 

circumstances and no evidence was presented to establish the need for the psychosexual 

evaluation in this case, the district court abused its discretion in modifying her probation 

to require the evaluation and any recommended counseling. We will first address Ms. 

Harada’s contention that a probation order may not be modified absent a change in 

circumstances and will then turn to the question of whether the district court abused its 

discretion in ordering the modification.

A. Change of Circumstances as Prerequisite to Modification

[¶15] Ms. Harada asks this Court to hold that before a trial court may modify a 

defendant’s probation conditions, it must first find a change of circumstances that 

warrants such modification. Because the Wyoming statutes that govern probation 

modification impose no such requirement, we deny this request.

[¶16] A trial court’s authority over probation, like all sentencing functions, comes from 

the legislature. Daugherty, ¶ 13, 44 P.3d at 33; Burke v. State, 746 P.2d 852, 859 (Wyo. 

1987); Hicklin, 535 P.2d at 752. This Court has observed:

[I]t is important to recognize that “the authority over 

sentencing comes from the legislature.” Hicklin v. State,

Wyo., 535 P.2d 743, 752 (1975) citing in fn. 7 Affronti v. 

United States, 350 U.S. 79, 76 S.Ct. 171, 100 L.Ed.2d 62 

(1955); Andrus v. Turner, 421 F.2d 290 (10th Cir.1970); State 

v. Perez, 15 Ariz.App. 300, 488 P.2d 505 (1971); In re 
7

Gutierrez, 82 Ariz. 21, 307 P.2d 914, cert. denied, 355 U.S. 

17, 78 S.Ct. 79, 2 L.Ed.2d 23 (1957); Pete v. State, Alas., 379 

P.2d 625 (1963); and State v. Smith, 83 Okl.Cr. 188, 174 P.2d 

932 (1946).

“‘The power to determine what acts shall constitute 

crimes, and what acts shall not, and to prescribe 

punishment for acts prohibited belongs to the 

legislative branch of government. This power is 

said to be inherent in the state legislature and it is 

also comprehended in the general grant of 

legislative power contained in the state 

constitution. The power is exclusive and is not 

shared by the courts. So long as constitutional 

prohibitions are not infringed, the will of the 

legislature in this respect is absolute. But the power 

to define crimes is of course subject to the 

limitations contained in state and federal 

constitutions.’ 21 Am.Jur.2d Criminal Law § 14 

(1965). * * *”

Furthermore, the inherent right of the legislature to prescribe 

sentence includes the right to specify the bounds in which 

probation, parole or sentence annulment may be granted. See, 

King v. State, Wyo., 720 P.2d 465 (1986); Peterson v. State, 

Wyo., 586 P.2d 144 (1978); Sorenson v. State, supra; Hicklin 

v. State, supra. Therefore, in this instance, we must inquire 

into the intent of the legislature and defer to their statutory 

enactments.

Ward v. State, 735 P.2d 707, 708 (Wyo. 1987).

[¶17] By statute, probation is defined as “a sentence not involving confinement which 

imposes conditions and retains authority in the sentencing court to modify the conditions 

of the sentence or to resentence the offender if he violates the conditions.” Wyo. Stat. 

Ann. § 7-13-401(a)(x) (LexisNexis 2015). The governing statutes flesh out the 

sentencing court’s authority to revoke or modify probation. Before revoking a 

defendant’s probation, the sentencing court must find the defendant violated a condition 

of his or her probation. Wyo. Stat. Ann. § 7-13-305(c) (LexisNexis 2015). With regard 

to the sentencing court’s authority to modify a probation condition, the governing statute 

specifies that “[t]he court may impose, and at any time modify, any condition of 

probation or suspension of sentence.” Wyo. Stat. Ann. § 7-13-304(a) (LexisNexis 2015) 

(emphasis added).
8

[¶18] By the plain terms of the governing statute, a sentencing court retains the authority 

to modify a condition of probation at any time. Nothing in the statute requires a finding 

of a change in circumstances before a court may modify a condition of probation, and in 

our prior consideration of a sentencing court’s modification authority, we have 

recognized the lack of statutory restrictions on that authority:

Consistent with Morrissey and Gagnon, our statutes 

and rules recognize that a defendant is entitled to a hearing on 

a petition to revoke his probation. See, e.g., Wyo. Stat. Ann. § 

7–13–305(c) (LexisNexis 2007) and W.R.Cr.P. 39(a). In 

contrast, Wyo. Stat. Ann. § 7–13–304(a) and W.R.Cr.P. 39(b)

delineate the process that is due a defendant on a motion to 

modify the conditions of probation. Section 7–13–304(a)

states: “The court may impose, and at any time modify, any

condition of probation or suspension of sentence.” That 

statute indicates that the court can modify the conditions of 

probation at “any time,” suggesting that a hearing is not 

necessary.

DeMillard v. State, 2008 WY 93, ¶ 12, 190 P.3d 128, 130-31 (Wyo. 2008).

[¶19] It is the legislature’s prerogative to define a sentencing court’s authority to modify 

probation, and we will not add terms to the statute governing that authority. See

Accelerated Receivable Solutions v. Hauf, 2015 WY 71, ¶ 16, 350 P.3d 731, 736 (Wyo. 

2015) (Court will not add language when interpreting a statute). A sentencing court is 

not statutorily required to specifically find a change of circumstances before modifying a 

defendant’s probation, and we will not read such a requirement into the statute. That is 

not to say that a change in circumstances or lack thereof will not be relevant to our 

review of a district court’s modification order. Our review looks to whether the district 

court abused its discretion in modifying the probation conditions, and the circumstances 

that compelled the modification are certainly a consideration. 

[¶20] We turn then to the district court’s exercise of discretion in modifying the terms of 

Ms. Harada’s probation and our consideration of whether the court’s decision 

“exceed[ed] the bounds of reason.” Noel, ¶ 38, 319 P.3d at 147.

B. District Court’s Exercise of Discretion

[¶21] A probation condition “must be reasonably related to rehabilitation, to the criminal 

conduct for which the probationer was convicted, and to the deterrence of future criminal 

conduct.” Perkins v. State, 2014 WY 11, ¶ 16, 317 P.3d 584, 588 (Wyo. 2014) (quoting 
9

Jones v. State, 2002 WY 35, ¶ 36 41 P.3d 1247, 1257-58 (Wyo. 2002)). We have further 

added:

[A]fter a district court considers the wide latitude of variables 

in a defendant’s case and circumstances, it can impose any 

probation condition so long as it is reasonably related to a 

penal goal such as rehabilitation, deterrence, or public 

protection. See Jones, ¶ 36, 41 P.3d at 1257–58. The court 

must “take into consideration on a case-by-case basis the 

nature and circumstances of the offense and the probationer’s 

history and characteristics.” State v. McAuliffe, 2005 WY 

165, ¶ 17, 125 P.3d 276, 280 (Wyo.2005).

Perkins, ¶ 17, 317 P.3d at 588.

[¶22] During the probation modification hearing, the district court heard argument from 

both parties concerning the appropriateness of the psychosexual evaluation and any 

recommended counseling that might result from the evaluation. The State argued that 

given the nature of the crime, the goals of rehabilitation and community supervision, and 

the probation agent’s recommendation, the order and judgment should be modified to 

expressly require the psychosexual evaluation. The defense argument followed, along 

with the district court’s ruling, with our emphasis added:

[Defense Counsel]: * * * The question is whether or 

not an individual such as Heather Harada, who in an adult 

fashion, in a non-authoritative manner, could technically 

violate the state statute that makes sexual contact between 

these two people a crime, is that even anything that a 

psychosexual evaluation can address?

I’m not all that familiar with what psychosexual 

evaluations are or are not, and I’m regretting a little bit here 

not coming to the Court prepared with what those tests do. 

Who are the class of individuals who the tests are validated 

for? Is this the kind of scenario that they were talking about?

I’m going to throw myself out on a limb a little bit 

here and say I don’t think so. I think those are for things like 

when people have sex with children, maybe rape people, and 

do things like that. We are four and a half years into 

probation. She’s done well. She’s in a relationship. She has 

children. She’s employed.

And there is the cost. I think these things cost around 

$1,500. I guess I would be a little less offended if it was just 

$150, or maybe was something the State of Wyoming wanted 
10

to pay for. You know, they pay for the ASIs and so forth for 

the Court. If they’re that important, great. It’s a lot of 

money. * * * 

* * * 

THE COURT: Thank you. Do you know from 

the agent, [Prosecutor], why four and a half years in a request 

is made, as opposed to – I mean, was it a policy change, as 

[Defense Counsel] suggests, or did something arise in this 

woman’s conduct that triggered it?

[Prosecutor]: Well, there are a couple of factors at 

play. You’ll recall that Ms. Harada was originally 

adjudicated in this jurisdiction, and then she relocated. So 

there was a change in probation agents.

Additionally, my understanding is, in communication 

with her current supervising agent, that finances have been a 

big issue for Ms. Harada. So what [Defense Counsel] 

represents to the Court is true. It is expensive to get the 

psychosexual evaluation, and that has been a barrier 

according to the agent. The agent also expressed to me that 

the other barrier, from her perspective, in dealing with her 

probationer, Ms. Harada, is that Ms. Harada doesn’t want to 

get a psychosexual evaluation, and doesn’t think she should 

have to.

So there has been a tension there between what Ms. 

Harada feels she’s obligated to do under the order, and what 

she’s been financially able to do, and then whether or not 

Probation and Parole has the authority to require her to get it.

* * * 

THE COURT: All right. Thank you. Well, first 

off, the Court has no difficulty in saying a couple of things. 

Had I been asked this up front, I would have ordered it. I

mean, it’s a sex offense. * * * 

What’s happened the Court can’t ignore is the 

legislature has decided who is too young, and called it child 

abuse, child sexual assault, called it third degree sexual 

assault. They’ve picked the sexual assaults. I have no 

hesitation ordering specific evaluations for anyone convicted 

of a crime where the disconnect between their responsibility 

towards others around them, [whether that] be * * * because 

they drink too much, because they assault somebody, because 

they – domestic violence is another key, sort of, and 

pervasive example in our system. 
11

However you are wired – that wire is not connected, 

evaluations at a minimum are called for, so I don’t have any 

hesitation to have ordered it in the first instance. It isn’t the 

agent’s fault that because of transfers and back it’s delayed so 

long. 

I do fear if she doesn’t come up with the money, or she 

comes up with the money and barely gets the evaluation and 

then doesn’t have time for treatment that this is all going to 

end with another argument over the same thing because they 

try to revoke her, but I can’t order somebody to come up with 

1,500 bucks.

I’m going to leave that, as I always do, between the 

agent and the individual. If there is a way, she has to do it, 

and I’ll modify the order to require psychosexual evaluation, 

and completion of any recommended treatment.

And I don’t want to be too gratuitous about this. This 

is a first offender case. When she gets to the end, she gets to 

the end, but on behalf of the community after that, I think it’s 

a perfectly wonderful idea that she knows what that 

psychosexual evaluation says, and I’m ordering it as a 

modified – or modifying the Judgment and Sentencing and 

conditions of probation to add that paragraph. 

And then as to the money, as to the commitment you 

make, as to what the events say, and whether you get to the 

end of probation, I wish you the best. I want every first 

offender to be off the docket as not a felon, but I think my 

responsibilities all along in sentencing would have required 

this. It wasn’t done in a clear fashion. It’s unfortunate 

we’re this late into it, but I’m ordering it.

[¶23] Under the circumstances of this case, we find no abuse of discretion in the district 

court’s modification of its final judgment and order. First, we have held that where the 

offense committed is a sex offense, a probation condition requiring sex offender 

counseling is reasonably related to rehabilitating the defendant and deterring future 

prohibited conduct and is therefore a valid probation condition. Leyba v. State, 882 P.2d 

863, 865 (Wyo. 1994). As the district court observed, it is the legislature that defines 

what constitutes a sex offense, and the legislature has decreed that sexual contact between 

a correctional employee and an inmate constitutes third degree sexual assault. See Wyo. 

Stat. Ann. §§ 6-2-303(a)(vii), 304(a)(iii) (LexisNexis 2015). Ms. Harada crossed a legal 

boundary and committed a sexual offense when she, as a correctional employee, had 

sexual contact with an inmate in the facility where she worked. We can find no abuse of 

discretion in the district court’s determination that the evaluation and any recommended 
12

counseling resulting from that evaluation are necessary to assess and correct the 

disconnect between Ms. Harada’s actions and her legal responsibilities.

[¶24] Moreover, as is clear from our discussion of the facts in this appeal, the district 

court’s modification of its final judgment and order did not impose a new probation 

condition. The requirement of an evaluation and counseling as a probation condition was 

on the table as early as the issuance of the Presentence Report. In particular, that report 

recommended that if probation were granted, Ms. Harada be required to “attend any 

counseling and/or submit to evaluations deemed appropriate by her probation agent.”

During sentencing, the court confirmed that defense counsel had reviewed the report with 

Ms. Harada and specifically heard from the defense concerning any objections to the 

conditions. Ms. Harada did not object to the recommended condition that required an 

evaluation and counseling, and the court noted her agreement to the recommended 

conditions and directed that the conditions would be included in its order, with a 

modification only to the condition affecting her ability to associate with the father of her 

child.

[¶25] The condition then appeared at least indirectly in the district court’s final judgment 

and order in that order’s requirement that Ms. Harada sign a “Probation Agreement.” 

The Probation Agreement, which Ms. Harada signed without objection, specified:

16. I will submit to a sex offender evaluation by a Sex 

Offender Therapist approved by my Agent and will 

successfully complete any recommended treatment at my own 

expense. I will comply with all requirements and actively 

participate in treatment until released by my treatment 

provider.

17. I will not be allowed to change from the approved Sex 

Offender Therapist or treatment program without prior 

approval of my Agent.

18. I will submit to, participate in, and pay for sex 

offender assessment including, but not limited to, polygraph 

examinations at the request of my Agent or Sex Offender 

Therapist.

[¶26] We conclude that while the district court’s modification order did modify the 

terms of its final judgment and order, the modification was a clarification of Ms. 

Harada’s probation terms rather than a change or addition to those terms. Additionally, 

the condition was reasonably related to rehabilitating Ms. Harada and deterring future 
13

prohibited conduct. Under these circumstances, the court’s modification did not exceed 

the bounds of reason and we find no abuse of discretion.1

CONCLUSION

[¶27] A change in circumstances may be relevant to a determination of whether a 

sentencing court abused its discretion in modifying the conditions of a defendant’s 

probation, but a sentencing court is not specifically required to find a change in 

circumstances before entering a modification order. Under the circumstances of the 

present case, the district court did not abuse its discretion in modifying its probation 

order. Affirmed.

 

1 We share in the district court’s concern that the requirement for a psychosexual evaluation has come to a 

head so late in Ms. Harada’s probationary period. We further agree with the district court that the 

concerns regarding whether Ms. Harada has sufficient time remaining in her probationary period and the 

financial ability to comply with the requirement are matters that must be left to the court’s discretionary 

consideration should a revocation petition be filed.