STATE v. ROBERT TROY STEPHENS, SC 18702

Judicial District of New Britain

 

     Criminal; Violation of Probation; Whether Condition of Probation Prohibiting Possession of Sexually Stimulating Material Deemed Inappropriate by a Probation Officer is Unconstitutionally Broad or Vague.  The defendant, who was serving a term of probation as a result of a conviction for possession of child pornography, was charged with violating a condition of his probation that prohibited him from possessing, or subscribing to, any sexually stimulating material deemed inappropriate by a probation officer.  The defendant was charged with violation of probation as a result of an investigation by the defendant's probation officer of a claim by the defendant's former girlfriend that the defendant was in possession of nude photographs of her.  The defendant admitted to his probation officer that he had previously possessed nude photographs of his former girlfriend but stated that he had deleted the photographs from his computer and that there was no pornography on his computer.  The defendant's computer was seized from his home and examined by the state forensic laboratory.  The forensic examiner found pictures of the defendant's former girlfriend on the computer, some of which depicted her nude.  According to the forensic examiner, there had been no attempt to delete any of the photographs.  The examiner also found that while the photographs were taken before the defendant's probationary period began, the photographs had been accessed during the probationary period.  After an evidentiary hearing, the trial court noted that there were no guidelines in place to assist probation officers in determining what is sexually stimulating but that such guidelines did not need to exist for one to conclude that the photographs in the present case were very sexually explicit.  The court then found that the state had established by a preponderance of the evidence that the defendant violated the condition of probation.  The court further found that the benefits of probation no longer existed and, accordingly, revoked the defendant's probation.  The defendant appeals, claiming that the condition of probation that prohibits the possession of any sexually stimulating material deemed inappropriate by a probation officer is unconstitutionally broad on its face because it prohibits the private possession of intimate material involving consenting adults.  He also claims that the condition is unconstitutionally vague on its face, and as applied to him, because there are no guidelines as to what is appropriate and the determination of appropriateness is left to the personal feelings of the individual probation officer.  The defendant also challenges the sufficiency of the evidence that he violated a condition of his probation.