Von Rosenberg (Jason) v. State

abuse its discretion by finding that appellant's conduct was not as good as required by the conditions of his probation and revoking his probation. Second, appellant argues that the district court abused its discretion by revoking his probation because the plain language of the condition which prohibited him from possessing sexually explicit material required that his probation officer deem the material inappropriate before he could be revoked for possessing it. Such a reading of the condition would produce an absurd result, see Wilson v. State, 121 Nev. 345, 357, 114 P.3d 285, 293 (2005) (this court construes statutory language to avoid absurd results); however, even assuming that appellant's reading of the condition is correct, his probation officer testified that she explained to him on multiple occasions that he was to possess or view no sexually explicit or pornographic material whatsoever. We conclude that the district court did not abuse its discretion by finding that appellant's conduct was not as good as required by the conditions of his probation. See Lewis v. State, 90 Nev. 436, 438, 529 P.2d 796, 797 (1974). Third, appellant argues that the district court abused its discretion by revoking his probation because all of his exposure to sexually explicit material was a result of his employment, which was approved by his probation officer and his sexual therapist. The district court conducted

. . . continued

materials did not constitute possessing them and that the parties resolved this dispute in a way that "both sides could live with." Appellant failed to provide this court with information regarding this resolution. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests on appellant.").

SUPREME COURT OF NEVADA

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V;SMIlla

multiple hearings related to this issue and listened to testimony from appellant's probation officer, his sexual therapist, and a social media expert, and ultimately concluded that appellant's exposure to sexually explicit material went above and beyond that which was incidental to his employment. This contention is supported by the record. We conclude that the district court did not abuse its considerable discretion by finding that appellant's conduct was not as good as required by the conditions of his probation. Having considered appellant's contentions and concluded that they lack merit, we ORDER the judgment of the district court AFFIRMED. 2

' J. Hardesty

J. arraguirre Q Cherry

2Appellant also argues that the condition of his probation which prohibited him from possessing sexually explicit material was unconstitutionally vague because sexually explicit material was not defined. Appellant waived a challenge to the constitutionality of this provision by failing to raise it on direct appeal from the judgment of conviction. See United States v. Stine, 646 F.2d 839, 846 (3d Cir. 1981) (noting that challenges to the constitutionality of probation conditions must be raised on direct appeal); Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) ("[C]laims that are appropriate for a direct appeal must be pursued on direct appeal, or they will be considered waived in subsequent proceedings."), overruled on other grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999).

SUPREME COURT OF NEVADA 3 (0) 1947A

cc: Hon. Connie J. Steinheimer, District Judge Washoe County Public Defender Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk