State v. Calhoon

No. 1098 November 12, 2026 665 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. AMY LEE CALHOON, Defendant-Appellant. Yamhill County Circuit Court 20CR57483; A186228 Ladd J. Wiles, Judge. Argued and submitted October 7, 2026. Kasey Anne Hooker, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Before Tookey, Presiding Judge, Egan, Judge, and Jacquot, Judge. JACQUOT, J. Affirmed. 666 State v. Calhoon Cite as 354 Or App 665 (2026) 667 JACQUOT, J. Defendant appeals a judgment revoking her six pro- bation terms after the trial court determined that she vio- lated her probation conditions in two ways: by using unpre- scribed drugs and by failing to report as required by her supervising probation officer. For each of the six terms, the trial court imposed incarceration sanctions of six months, to run consecutively. On appeal, defendant raises two assign- ments of error. In defendant’s first assignment of error, she argues that the evidence was legally insufficient to establish that she failed to report as required by her supervising pro- bation officer. In defendant’s second assignment of error, she argues that the trial court did not have authority to impose all six incarceration sanctions consecutively under OAR 213-012-0040(2)(b), because it only found two probation vio- lations. For the following reasons, we affirm. Relevant to this appeal, defendant was con- victed of three counts of first-degree forgery, ORS 165.013 (Counts 2, 4, and 7); two counts of first-degree possession of a forged instrument, ORS 165.022 (Counts 9 and 11); and one count of identity theft, ORS 165.800 (Count 13). Defendant was also convicted of another count of first- degree forgery (Count 1) and was sentenced to supervised probation on that count. The trial court previously revoked and reinstated probation on that first-degree forgery con- viction. In connection with that proceeding, on October 16, 2024, defendant was released after serving the first half of a 30-day jail sanction. After she was released, defen- dant texted her supervising probation officer, Christina Stephens, to inform Stephens that defendant intended to turn herself into jail for the second half of the jail sanction. Stephens responded: “Okay. I’m good with this as checking in, just make sure you get back to do the second half. Then come sec [sic] me once you’re released again.” On October 17, while on probation, defendant had an incident that prompted her to call the police. The responding police officers believed that defendant was under the influence. The police officers called the proba- tion office and spoke with the duty probation officer, Leah 668 State v. Calhoon Graff, because Stephens was out of the office. Graff con- tacted Stephens, who requested that defendant report to the probation office and complete a urinalysis. Stephens also told Graff that she wanted defendant to report in on October 21, when Stephens was back in the office. Graff told the police officers that defendant was required to report to the probation office, and they relayed that information to defendant. Later that same day, defendant reported to the probation office and asked to see Stephens. Defendant was informed that Stephens was not there and was directed to see Graff. Graff told defendant that she needed to complete a urinalysis. Graff also had defendant sign an action plan, which included that defendant’s next report date would be on October 21 at 9:30 a.m. Defendant testified that, in her view, it was Graff and not Stephens who directed her to report on October 21. Defendant testified that she was uncomfort- able both with Graff and submitting to a urinalysis test. Another probation officer, Jarae Spatz, testified that Graff had recognized defendant’s discomfort and recruited Spatz to assist. Defendant testified that she was skeptical that Stephens ordered her to complete the urinalysis because Stephens typically directed defendant to complete oral swabs. Defendant testified that she shared her skepticism with Spatz. Defendant also testified that Spatz informed her that Stephens requested she complete the urinalysis. Because of defendant’s discomfort completing a uri- nalysis, Spatz proposed doing an oral swab and defendant requested that Spatz call Stephens. Spatz and defendant then called Stephens in Spatz’s office. On that call, Stephens informed them that she was fine with defendant taking an oral swab. Defendant testified that, on that call, Stephens also confirmed that defendant was to report on October 21. After the call, Spatz completed the oral swab and sent the swab to a lab for processing. On October 21, at 8:02 a.m., defendant texted to inform Stephens of her new phone number and that she had moved residences. Defendant did not show up for her Cite as 354 Or App 665 (2026) 669 9:30 a.m. appointment. Defendant testified that she knew she was to report on October 21 at 9:30 a.m. However, she also testified that she felt that she had “approval” to miss, but she did not testify as to why she reached that conclusion. At 10:42 a.m., Stephens texted defendant: “I did have you scheduled at 9:30 this morning. Are you able to come in later today?” Defendant responded that she could not come in and proposed a different day to meet. Defendant and Stephens went back and forth over the next two days to find an alternative time to meet in the office but could not find a time that worked. On October 23, defendant’s lab results from her oral swab came back presumptively posi- tive for amphetamine and methamphetamine. The state moved to revoke defendant’s probation, alleging that defendant violated two general conditions of her probation: that she “[n]ot use or possess controlled sub- stances except pursuant to a medical prescription” and that she “[r]eport as required and abide by the direction of [her] supervising [probation] officer.” At the probation revoca- tion hearing, the trial court found that defendant violated those two conditions. The trial court revoked defendant’s six terms of probation and imposed six months of incarceration on each of the six counts to run consecutively. On appeal, defendant raises two assignments of error. In her first assignment of error, defendant argues that the trial court erred in finding that she violated the gen- eral condition of her probation that she “[r]eport as required and abide by the direction of [her] supervising officer.” ORS 137.540(1)(k). In her second assignment of error, defendant argues that the trial court erred in imposing six consecu- tive probation revocation sanctions when the trial court only found two probation violations. As a preliminary matter, we turn first to the state’s argument that defendant did not preserve her first assign- ment of error. Defendant explains in her reply brief that there are two aspects to her first assignment of error—one aspect that is preserved and one that is not. First, defen- dant argues that a directive to report “must come from the 670 State v. Calhoon defendant’s supervising officer, not any probation officer.”1 To the extent defendant argues that the directive for her to report must have come from her supervising probation offi- cer, Stephens, her argument is not preserved, because defen- dant did not argue that point to the trial court. Further, defendant does not request plain-error review. Accordingly, we do not address the first aspect of defendant’s first assign- ment of error.2 Even if defendant had preserved that argument, she testified that her supervising officer, Stephens, confirmed that defendant was required to report to the probation office in person at 9:30 a.m. on October 21 when they were on the phone together in Spatz’s office on October 17. Defendant did not report in person on October 21, or any time in the following week. The facts in the record undercut her merits argument that a directive from a different probation offi- cer would not support a violation of the “report as required” condition. The second aspect of defendant’s argument is that she preserved her argument that texting was a sufficient way to report to Stephens. Defendant argued before the trial court “that the PO * * * considered text message sufficient for reporting.” That is part of the same argument defen- dant raises on appeal. Further, that argument is a “chal- lenge to the legal sufficiency of the state’s evidence that [she] failed to report as required.” State v. Austin, 344 Or App 368, 370, 580 P3d 348 (2025). Defendant’s argument does not concern a dispute over the facts—it is undisputed that 1 We note that, in making this argument, defendant relies on our nonprec- edential memorandum decision State v. Stark, 343 Or App 705 (2025) (nonprec- edential memorandum opinion), in a manner that does not comport with ORAP 10.30(1). A nonprecedential opinion may be cited “to identify nonprecedential memorandum opinions that conflict with each other if relevant to an issue before the court or to identify recurring legal issues for which there is no clear prece- dent.” ORAP 10.30(1)(d). Rather than using Stark for that purpose, defendant utilizes the case to argue that a directive to report must come directly from a defendant’s supervising probation officer. We disagree with defendant that “there is a lack of binding case law addressing” the issue of whether defendant failed to report under the circumstances of this case. Accordingly, we do not rely on Stark. 2 Plain error review is discretionary under ORAP 5.45(1) and “we normally will not exercise that discretion in the absence of an explicit request for plain- error review and concomitant plain-error arguments.” State v. Atwood, 332 Or App 495, 498 n 2, 549 P3d 51 (2024). Cite as 354 Or App 665 (2026) 671 defendant texted Stephens on October 21. Rather, defendant argues that she was allowed to text as a means of report- ing to Stephens. That argument invites us to weigh the evi- dence whereas the standard of review is whether there was any evidence to support the state’s position. As we explain below, the state presented evidence to support its position and defendant’s argument based on legal sufficiency fails. We next turn to the merits of the preserved aspect of defendant’s first assignment of error. Defendant argues that the trial court erred in finding that she did not report as required to her supervising probation officer because the state did not present legally sufficient evidence of that find- ing. “Whether there is sufficient evidence in the record to satisfy the state’s burden is a legal question.” State v. Stroud, 293 Or App 314, 318, 428 P3d 949 (2018). “In reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the state to determine whether the state proved by a preponderance of the evidence that the defen- dant violated a [probation] condition.” State v. Butler, 313 Or App 786, 788, 494 P3d 1031, rev den, 368 Or 787 (2021). Here, we must determine whether the state pre- sented legally sufficient evidence that defendant failed to report as required by Stephens. We conclude that our stan- dard of review necessitates affirming the trial court’s find- ing that defendant failed to report as required. Looking at the facts in the light most favorable to the state, two facts support the inference that more likely than not defendant failed to report as required. First, defendant was aware that Stephens was in contact with the other probation officers at the probation office. Defendant knew that Stephens requested that she complete a urinalysis, because Spatz told her. Further, defendant testified that, while speaking to Stephens on the phone in Spatz’s office, Stephens confirmed that defendant should report on October 21. Thus, a reasonable trier of fact could conclude that defendant knew that Stephens was directing probation officers Graff and Spatz. Second, though defendant typically checked in with Stephens over text, the record indicates that defendant was aware that Stephens wanted to physically see defendant at some time in the 672 State v. Calhoon future. Thus, a reasonable trier of fact could conclude that defendant knew that texting was not always an appropriate way to report to Stephens. Accordingly, viewing the facts in the light most favorable to the state, the trial court could conclude more likely than not that defendant understood she was required to physically report to the probation office on October 21. Lastly, we turn to defendant’s second assignment of error. Defendant challenges the trial court’s authority to impose six incarceration sanctions consecutively when the trial court only found two probation violations. Under OAR 213-012-0040(2)(b), “[i]f more than one term of probationary supervision is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanc- tions concurrently or consecutively.” In defendant’s view, that rule gives trial courts the authority to impose consec- utive incarceration sanctions only when there is a “one-to- one correspondence between the separate violations and the consecutive sanctions.” Thus, defendant’s position in this case is that the trial court only had authority to impose two consecutive sanctions because it only found two violations. Defendant acknowledges that we rejected that argument in State v. McFerrin, 289 Or App 96, 408 P3d 263 (2017), rev dismissed, 365 Or 194 (2019) and requests that we over- rule our holding in that case. We decline to do so. Although we have the “obligation to reach what we regard as a correct interpretation of statutes and rules,” we do not lightly overrule our prior interpretations of admin- istrative rules. Assoc. Unit Owners of Timbercrest Condo. v. Warren, 352 Or 583, 598, 288 P3d 958 (2012). Typically, we regard our prior interpretations as “binding precedent unless they are plainly wrong.” Hostetter v. Board of Parole and Post-Prison Supervision, 255 Or App 328, 333, 296 P3d 664, rev den, 353 Or 747 (2013) (internal quotation marks omitted). Here, defendant has not identified a problem with the McFerrin methodology that persuades us that the approach we undertook or the reasoning we applied in mak- ing the decision in McFerrin was plainly wrong: we consid- ered the same arguments defendant raises on appeal and evaluated the text of OAR 213-012-0040(2)(b) in accordance Cite as 354 Or App 665 (2026) 673 with our “usual framework.” Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011); cf. Hostetter, 255 Or App at 333-35 (overruling a previous interpretation of an admin- istrative rule when we did not apply our usual framework to adequately analyze the controlling issue). Accordingly, we apply McFerrin and conclude that the trial court did not exceed its authority in imposing six consecutive incarcera- tion sanctions for defendant’s two probation violations. Affirmed.