2024 UT App 61



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. M ARTIN A LEX S ALAZAR

- L OPEZ , Appell ant

.

Opinion N o. 20230194

- CA Filed April 25, 2024
Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 201908458 W. Andrew McCullough , Attorney for Appellant Sean D. Reyes and Connor Nelson , Attorney s for Appellee J UDGE J OHN D. L UTHY authored th is Opinion , in which J UDGES G REGORY K. O RME a nd R YAN M. H ARRIS concurred.

LUTHY , Judge : ¶1 Martin Alex Salazar

- Lopez pled guilty to multiple sexual offenses against a child, offenses he committed when he was still a minor. As part of Salazar

- Lopez’s sentence, the district court ordered a period of probation during which Salazar

- Lopez must, among other things, comply with the sex offender Group A conditions created by the Utah Department of Corrections. Salazar

- Lopez appeals that part of his sentence, asserting that because the court was statutorily prohibited from requiring him to register as a s ex offender, it erred by order ing him to comply with the sex offender Group A conditions. We mostly disagree with Salazar

- Lopez , and we affirm the district court’s imposition of all but one of the Group A conditions as part of Salazar

- Lopez’s probation

.State v. Salazar

- Lopez

20230194

- CA 2 2024 UT App 61 BACKGROUND
¶2 In 2020, w hen Salazar

- Lopez was twenty

- two years old, t he State charged him with four counts of sodomy on a child, two counts of sexual abuse of a child, and two counts of lewdness involving a child , all based on conduct he had allegedly engaged in some years earlier

— between January 1, 2015, and January 1, 2017

— when Salazar

- Lopez was occasionally babysitting a girl who was nine to eleven years old at the time . Salazar

- Lopez ultimately agreed to plead guilty to one count of sodomy on a child and one count of sexual abuse of a child, and the State agreed to drop the remaining c harges

. ¶3 As part of th e plea agreement, the date range for the charged conduct was changed slightly so that Salazar

- Lopez would be pleading guilty only to conduct that occurred before his eighteenth birthday. The parties agreed that Salazar

- Lopez would “not be subject to registration as a sex offender” d ue to his status as a minor at the time of the charged conduct

. This understanding
was refl ective of a then

- current law that provided, with limited exceptions, that “ if an individual [was] convicted in district court of a qualifying sexual offense and, at the time of the offense, the individual was at least 14 years old, but under 18 years old ,” then

“ the individual [was] not, based on the conviction, subject to the registration requirements described in Title 77, Chapter 41, Sex and Kidnap Offender Registry

. ” Utah Code § 76

- 3

- 209(3) (2022). 1

1

. Utah Code s ection 76

- 3

- 209 was later amended

— effective May 3, 2023

— to remove this specific provision

. See Act of Feb. 9, 2023 , ch. 123, § 1 , 2023 Utah Laws 1341 , 1341

. At the same time , the legislature enacted Utah Code section 77

- 41

- 114, which now addresses registration requirements for persons convicted of sex crimes that they committed as minors

. See Act of Feb. 9, 2023, ch. 123, § 15, 2023 Utah Laws 1341, 1352. T he other Utah Code sections cite d here in have not been amended in way s that impact this appeal, so we cite the current version s of those statutes.State v. Salazar

- Lopez

20230194

- CA 3 2024 UT App 61 The parties also agreed that no prison sentence would be imposed. However, t he plea agreement stated , “There will be a presentence report, and the parties will be free to argue over a jail sentence. The State will request a psycho

- sexual evaluation and treatment.”
¶4 The district court thereafter sentenced Salazar

- Lopez to sixty days in jail and 120 months of probation, and it imposed several requirements on Salazar

- Lopez during his probation

. One of those requirements was that Salazar

- Lopez would have to “[a]bide by sex offender Group A conditions.” The Utah Department of Correction s lists its Group A conditions as follows:

a. THERAPY: Enter into, participate in and successfully complete sex offender therapy as determined by the treating facility, therapists and the Utah Department of Corrections.

b. CURFEW: Enter into and successfully complete established progressive curfews or electronic monitoring where available, when required by Adult Probation and Parole.

c. VICTIM CONTACT: Have no direct or indirect contact with victim(s) or victim ’ s family without prior approval from Adult Probation and Parole.

d. CHILDREN UNDER 18: Have no contact or association with children under the age of 18 without prior written approval of Adult Probation and Parole.

e. NOT DATE: Not date persons with children residing at home under the age of 18 without prior written approval of Adult Probation and Parole.

f. CHILDREN CONGREGATE: Not enter places or events where children congregate including, but notState v. Salazar

- Lopez

20230194

- CA 4 2024 UT App 61 limited to: schools, playgrounds, parks, arcades, parties, family functions, holiday festivities or any other place or function where children are present or reasonably expected to be present without prior written approval from Adult Probation and Parole o r without the supervision of a responsible adult previously approved by Adult Probation and Parole.

g. SEX STIMULUS MATERIAL: Not have in my possession or under my control any material that acts as a sexual stimulus for my particular deviancy(s) including, but not limited to: computer programs, computer links, photographs, drawings, video tapes, audio tapes , magazines, books, literature, writings, etc. without the written approval from Adult Probation and Parole.

h

. EXPLOIT MATERIAL: Not have in my possession or under my control any material that describes or depicts human nudity, the exploitation of children, consensual sex acts, non

- consensual sex acts, sexual acts involving force or violence including, but not limi ted to: computer programs, computer links, photographs, drawings, video tapes, audio tapes, magazines, books, literature, writings, etc. without prior approval from Adult Probation and Parole.

i. ENTERTAIN/LURE: Not have in my possession or under my control any items or materials either designed for, or used to, entertain, lure or attract the attention of children under the age of 18 without prior written approval from Adult Probation and Parole. j. POLYGRAPH: Submit to random polygraph examinations.State v. Salazar

- Lopez

20230194

- CA 5 2024 UT App 61 k. EMPLOYMENT: Employment must be approved by Adult Probation and Parole.

l. RESIDENCE: Residence and residence changes must be approved by Adult Probation and Parole.

m. INTERSTATE COMPACT: Execute and adhere to the terms of the Interstate Compact Waiver and Agreement if probation or parole is served outside the state of Utah.

n. REGISTRATION/DNA: Comply with requirements of the Utah Sex Offender Registration and DNA specimen requirements. Utah Dep’t of Corr., Sex Offender Group A Conditions , https://corrections.utah.gov/wp

- content/uploads/2022/03/Microsoft

Word

- Program

- A

- 03

- 14

- 22.pdf [ https://perma.cc/W4LN

- XRL9 ].
¶5 Salazar

- Lopez objected to the imposition of the Group A conditions and moved to amend his sentence

. He objected generally to the imposition of the Group A conditions on the basis that by statute he was not required to register as a sex offender , arguing :
It is obvious that [sex offender registration] requirements do not apply to [Salazar

- Lopez] because he cannot be, and will not be, required to comply with those requirements. It is only common sense that he is also not required to comply with the other requirements directed at those who are registered sex offenders and who therefore are subject to these rules.
Salazar

- Lopez also brought to the c ourt’s attention the specific impact of some of the Group A conditions on his family, saying:State v. Salazar

- Lopez

20230194

- CA 6 2024 UT App 61 [Group A conditions ] really have no relevance to [Salazar

- Lopez] and his situation. The [c]ourt was well aware that [Salazar

- Lopez] is now 24 years old, and that he is married and has a young son. The [c]ourt made no comment at his sentencing on his living arrangements, which obviously includes living with his wife and son.
¶6 In response, the district court amend ed Salazar

- Lopez’s sentence to allow him to have contact with his own son, but it did not remove the requirement that Salazar

- Lopez otherwise abide by the Group A conditions while on probation

. ¶7 Salazar

- Lopez timely appealed. He also moved for a stay pending appeal of the requirement t hat he abide by the Group A conditions , and the district court granted that request.

ISSUE AND STANDARD OF REVIEW
¶8 Salazar

- Lopez contends that the district court erred by impos ing the Utah Department of Corrections’ sex offender Group A conditions as part of his probation despite the fact that , due to his age at the time of the crimes , he “is not subject to registration as a [s]ex [o]ffender” and “is not required to abide by the conditions of that registration.” The parties disagree as to the standard of review we should apply in addressing Salazar

Lopez’s argument . The State argues that the district court’s sentence should not be overturned absent an abuse of discretion, while Salazar

- Lopez contends that we are to review the primary issue before us for correctness

. ¶9 The State is correct that , “[g]enerally, we will reverse a trial court ’ s sentencing decision only if it is an abuse of the judge ’ s discretion.” State v. Helms , 2002 UT 12, ¶ 8, 40 P.3d 626. However, “a trial court abuses its discretion if its decision is premised on flawed legal conclusions.” State v. Boyer , 2020 UT App 23, ¶ 18,State v. Salazar

- Lopez

20230194

- CA 7 2024 UT App 61 460 P.3d 569 (cleaned up) , cert. denied , 466 P.3d 1075 (Utah 2020)

. And that is the nature of the argument Salazar

- Lopez makes here

— that the district court reached a flawed legal conclusion when it decided that it could impose the sex offender Group A conditions as part of Salazar

- Lopez’s probation even though the court was statutorily prohibited from requiring Salazar

- Lopez to register as a sex offender. Because “ w e review the district court ’ s legal conclusions for correctness , ” we afford no deference to i ts legal conclusion regarding its ability to impose Group A conditions as part of Salazar

- Lopez’s probation

. State v. Lusk , 2001 UT 102, ¶ 10, 37 P.3d 1103. T he correct interpretation of the applicable statute is likewise a question of law that we review for correctness. See State v. Larsen , 865 P.2d 1355 , 1357 (Utah 1993)

. 2

2

. Because t h e State mistook Salazar

- Lopez’s argument as an assertion that the district court abused its discretion by imposing certain probation conditions under the facts of this case , it argue s that a transcript of the sentencing hearing , which Salazar

- Lopez initially failed to provide, is “vital” to show “how the court weighed relevant factors when deciding to impose Group A conditions.” In response, Salazar

- Lopez submitted, a s an addendum to his reply brief , a sentencing hearing transcript , which the State moved to strike

. Salazar

- Lopez then filed a motion to supplement the record with th e transcript, which motion the State opposed. R ecord supplementation generally “may not be done by simply including the omitted material in [a] party’s addendum.” State v. Pliego , 1999 UT 8, ¶ 7, 974 P.2d 279. Moreover , record supplementation is appropriate only when “anything material is omitted

. ” Id. (emphasis added). O ur review of the legal question Salazar

- Lopez raise s

— namely , whether as a matter of law the district court could impose the sex offender Group A conditions as part of Salazar

- Lopez’s probation

— is not impacted by the availability of the sentencing hearing transcript

. T he transcript is therefore not material to this appeal . For this reason, (continued...)State v. Salazar

- Lopez

20230194

- CA 8 2024 UT App 61 ANALYSIS
¶10 Salazar

- Lopez contends that because he is statutorily exempt from the requirement to register as a sex offender, it was
error , as a violation of statute, for the district court to impose the Department of Corrections’ s ex o ffender Group A c onditions as part of his probation. In other words, he asserts that because he was not required to register as a sex offender , it was “common sense” that he can not be “required to comply with the other requirements directed at those who are registered sex offenders.”
¶11 Salazar

- Lopez’s argument rests on Utah Code section 76

- 3

- 209, which, as it existed at the time of sentencing, provided that individual s convicted in district court of certain qualifying sexual offenses committed when they were not yet eighteen years old
were “not . . . subject to the registration requirements described in T itle 77, C hapter 41.” Utah Code § 76

- 3

- 209(3) (2022). 3 Salazar

Lopez was sixteen or seventeen years old at the time of the charged conduct, and his convictions are for qualifying sexual offenses , s ee id. § 76

- 3

- 209(1) (2023) (defining a “qualifying sexual offense ” as including “an offense described in Chapter 5, Part 4, Sexual Offenses”); id. § 76

- 5

- 403.1 (sodomy on a child); id. § 76

- 5

- 404.1 (sexual abuse of a child). Thus, this provision i s applicable to him , and he is therefore not subject to the sex offender registration requirements of Title 77, Chapter 41

. This appeal thus turns on a proper understanding of what are and are not the sex offender registration requ irements of Title 77, Chapter 41

. ¶12 Title 77, Chapter 41 defines the term “ [ r ] egister” as meaning “ to comply with the requirements of this chapter and

w e grant the State’s motion to strike and deny Salazar

- Lopez’s motion to supplement the record.

3

. This provision contained certain exceptions, which are not relevant to this case. See Utah Code § 76

- 3

- 209(3), (4) (2022).State v. Salazar

- Lopez

20230194

- CA 9 2024 UT App 61 administrative rules of the d epartment made under this chapter

. ” Id. § 77

- 41

- 102 (15) (emphasis added)

. According to this definition, the sex offender registration requirements of Title 77, Chapter 41 include only (1) th e requirements imposed by Title 77, Chapter 41 itself and (2) any requirements imposed by rules promulgated by the Department of Corrections under the rulemaking authority granted in Title 77, Chapter 41

. See id. And we do not see that the Group A conditions generally fall into either of thes e categories. They generally are not requirements imposed by that chapter of the code , and they are not requirements imposed by any administrative rule promulgated by the Department of Corrections under authority granted in that chapter ; indeed, Salaza r - Lopez points to no link between the provisions in Title 77, Chapter 41 and the exist e nce of the Group A conditions. T hus, section 76

- 3

- 209 generally did not prohibit the district court from requiring Salazar

- Lopez to abide by Group A conditions

. ¶13 Salazar

- Lopez apparently presumes that because he is not “subject to the registration requirements described in Title 77, Chapter 41,” see id. § 76

- 3

- 209(3) (a) (2022) , he is also not subject to any other restriction that might appl y to sex offenders. But th at presumption is not supported by the statutory language , which by its terms provid es only that certain specific registration requirements do not apply to a person in Salazar

- Lopez’s positio n
. See id. M oreover, even if we were to agree with his assertion that through section 76

- 3

- 209 “the legislature acknowledged that a young person should not be branded as a sex criminal and scarred for life,” requiring him to abide by Group A conditions for the limited period of his probation does no such thing.
¶14 The district court is granted considerable latitude in crafting conditions of probation and may impose “ terms and conditions the court considers appropriate to ensure public safety or increase a defendant ’ s likelihood of success on probation .” Id. § 77

- 18

- 105(6)(a)(ix) (2023) . And should such terms overlap withState v. Salazar

- Lopez

20230194

- CA 10 2024 UT App 61 conditions frequently imposed on registered sex offenders , we see no legal error in their imposition, so long as they are not “registration requirements described in Title 77, Chapter 41,” i d. § 76

- 3

- 209(3) (a) (2022)

. 4
¶15 T his leads us to the one aspect of the district court’s order that we determine requires reversal: c ondition n of the Group A conditions (Condition N) , which requires an individual to

“ [c] omply with requirements of the Utah Sex Offender Registration and DNA specimen requirements. ” Utah Dep’t of Corr., Sex Offender Group A Conditions , https://corrections.utah.gov/ wp - content/uploads/2022/03/Microsoft

- Word

- Program

- A

- 03

- 14

- 22.pdf [https://perma.cc/W4LN

- XRL9]. While the Group A conditions generally do not amoun t to “ registration requirements described in Title 77, C hapter 41, ” s ee Utah Code § 76

- 3

- 209(3) (a)

4

. Salazar

- Lopez takes issue with the State presenting arguments on appeal where it failed to file any opposition to several of his motions below . He suggests that by its silence on this front, the State essentially waived its appellate arguments : “If the [d]efendant, upon appeal, has a duty to show the appellate court that he presented his case fully to the trial court, does not the State have some duty to show that it provided reasons to the district court to support the trial court’s ruling?” The answer to this question is no. While Salazar

- Lopez is correct that “[a]s 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 S tate has raised no issues on appeal. Rather, Salazar

- Lopez, as the appellant, has raised issues for our review, and the State, as the appellee , is free to make arguments in response to those issues

— even if those arguments were not advanced below. See Gressman v. State , 2013 UT 63, ¶ 45, 323 P.3d 998 ( “ Issues must be preserved, not arguments for or against a particular ruling on an issue raised below.” ) ; Cochegrus v. Herriman City , 2020 UT 14, ¶ 36, 462 P.3d 357 (“It is within our discretion to affirm a judgment on an alternative ground if it is apparent in the record.” (cleaned up)).State v. Salazar

- Lopez

20230194

- CA 11 2024 UT App 61 (202 2 ), the specific requirements listed within C ondition N are such requirements, see id. § 77

- 41

- 105 (2023) ( setting for th sex offender registration requirements) ; id. § 77

- 41

- 105(7)(g) (requiring sex offender s to provide “ a DNA specimen ” to the Department of Corrections “ or the registering entity ”). Thus, Salazar

- Lopez is not subject to the registration requirement or the requirement to provide a DNA specimen, and those requirements may not be a part of the conditions of his probation

. W e therefore reverse the district court’s inclusion of C ondition N as part of Salazar

- Lopez’s probation conditions

.

CONCLUSION
¶16 Because C ondition N of the s ex o ffender Group A
c onditions mandates compliance with certain registration requirements of Title 77, Chapter 41 , and because Salazar

- Lopez is exempt from such compliance, we reverse the district court ’ s imposition of C ondition N as a condition of his probation. We otherwise affirm the court’s imposition of Group A c onditions as part of his probation , as they are not registration requirements of Title 77, Chapter 41 of the Utah Code

.