State v. Ross

S
                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 47771

 STATE OF IDAHO,                               )
                                               )     Opinion Filed: April 28, 2021
         Plaintiff-Respondent,                 )
                                               )     Melanie Gagnepain, Clerk
 v.                                            )
                                               )
 TALON SCOTT ROSS,                             )
                                               )
         Defendant-Appellant.                  )
                                               )

        Appeal from the District Court of the First Judicial District, State of Idaho,
        Kootenai County. Hon. John T. Mitchell, District Judge.

        Order revoking probation and executing previously suspended sentence, affirmed.

        Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
        Deputy Appellate Public Defender, Boise, for appellant.

        Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
        General, Boise, for respondent.
                  ________________________________________________

HUSKEY, Chief Judge
        Talon Scott Ross appeals from the district court’s order revoking probation and executing
his previously suspended sentence. Ross argues the district court erred when it found he violated
the terms of his probation by committing the crimes of petit theft and injury to child. We affirm
the district court’s order.
                                                I.
                       FACTUAL AND PROCEDURAL BACKGROUND
        In 2011, Ross pleaded guilty to robbery, Idaho Code § 18-6501. The district court
sentenced Ross to a unified term of ten years, with three years determinate, and retained
jurisdiction. The district court recommended that Ross participate in the Correctional Alternative
Placement Program (CAPP). Ross completed the CAPP, and the district court suspended the
sentence and placed Ross on supervised probation for three years.


                                                     1
       The State filed four reports of probation violation between 2012 and 2017. Each time,
Ross admitted violating his probation, and the district court revoked Ross’s probation, imposed
his previously suspended sentence, and retained jurisdiction. Following each period of retained
jurisdiction, Ross was placed on probation. In 2019, the State filed a fifth report of violation,
alleging that Ross violated his probation by committing the crimes of petit theft and injury to child.
Ross denied both alleged violations, and the district court held an evidentiary hearing.
       The district court found that both allegations had been proven by a preponderance of the
evidence. The district court revoked Ross’s probation and ordered execution of his previously
suspended sentence. Ross timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
       “Review of a probation revocation proceeding involves a two-step analysis. First, it is
determined whether the terms of probation have been violated. If they have, it is then determined
whether the violation justifies revocation of the probation.” State v. Garner, 

161 Idaho 708

, 710,

390 P.3d 434

, 436 (2017) (citations omitted).
               With regard to the first step, a district court may revoke probation only upon
       evidence that the probationer has violated probation. . . . A court’s finding that a
       violation has been proved will be upheld on appeal if there is substantial evidence
       in the record to support the finding. In the event of conflicting evidence of the
       violation charged, this Court will defer to the district court to determine the
       credibility of witnesses.
               As to the second step, the decision whether to revoke a defendant’s
       probation for a violation is within the discretion of the district court. Thus, we
       review a district court’s decision to revoke probation under an abuse of discretion
       standard.
State v. Knutsen, 

138 Idaho 918

, 923, 

71 P.3d 1065

, 1070 (Ct. App. 2003) (citations omitted). The
State bears the burden of providing satisfactory proof of a violation, though proof beyond a
reasonable doubt is not required. State v. Edelblute, 

91 Idaho 469

, 480, 

424 P.2d 739

, 750 (1967).
                                                 III.
                                            ANALYSIS
       Ross argues the district court erred in finding that he violated his probation in two ways.
First, Ross asserts the court erred in finding that Ross committed the crime of petit theft despite
Ross’s acquittal of the crime following a jury trial. Second, Ross contends the court erred in
finding he committed the crime of injury to child because the State did not present any evidence


                                                        2
that Ross acted willfully in causing or permitting his children to be placed in a dangerous situation.
Ross has failed to show the district court erred.
A.     The District Court Did Not Err When It Found Ross Violated His Probation by
       Committing the Crime of Petit Theft
       The terms of Ross’s probation included the following provision: “you shall commit no
violations of any law of the United States of America, or of any law of any other country, or of
any law of any state, county, city, or other political subdivision.” Ross was charged with petit
theft but was acquitted after a jury trial. Despite the judgment of acquittal, the district court found
by a preponderance of the evidence that Ross violated the above term of his probation by
committing petit theft. Ross argues he did not violate the term of probation because he was
acquitted of the crime that constitutes the basis for the probation violation allegation. In response,
the State argues that the judgment of acquittal is irrelevant, both as a matter of fact and law, and
that the district court correctly found that Ross committed petit theft by a preponderance of the
evidence. Ross and the State agree that the Idaho appellate courts have not addressed the issue of
whether an acquittal of a criminal offense precludes a later finding of a probation violation based
on the same underlying conduct.
         The United States Supreme Court has held an acquittal in a criminal case does not
preclude the government from relitigating an issue when it is presented in a subsequent action
governed by a lower standard of proof. For example, in United States v. One Assortment of 89
Firearms, 

465 U.S. 354

(1984), a gun owner had been acquitted on a charge of dealing firearms
without a license. The Court held that the gun owner was still subject to a subsequent civil
forfeiture proceeding involving those firearms as neither collateral estoppel nor the Double
Jeopardy Clause provided a basis for precluding the civil proceeding.

Id. at 366.

The Court
reasoned:
       [The acquittal did] not prove that the defendant is innocent; it merely proves the
       existence of a reasonable doubt as to his guilt . . . . [T]he jury verdict in the criminal
       action did not negate the possibility that a preponderance of the evidence could
       show that [the defendant] was engaged in an unlicensed firearms business.


Id. at 361-62.

See also One Lot Emerald Cut Stones and One Ring v. United States, 

409 U.S. 232

,
235 (1972) (holding Double Jeopardy Clause did not bar subsequent civil forfeiture proceeding
following acquittal in criminal case because of different standards of proof).
       A decisive majority of jurisdictions that have addressed the issue have held or
acknowledged that an acquittal in a criminal prosecution does not bar finding a probation violation
                                                       3
based on the same underlying conduct. 1 Generally speaking, the various opinions reason that a
criminal trial is a different type of hearing than a probation violation hearing and different burdens
of proof and evidentiary requirements apply to each hearing. The holdings of the majority of cases
are consistent with the opinion of the Maryland Court of Appeals:
              [The defendant] errs in asserting that his earlier acquittal on criminal
       charges precludes revocation. A verdict of not-guilty is hardly tantamount to a
       finding that no wrong was done. [The defendant’s] acquittal does not necessarily
       prove his innocence; rather, it reflects the State’s inability to prove its case beyond
       a reasonable doubt.
Gibson v. State, 

616 A.2d 877

, 881 (Md. 1992).
       Because the burdens of proof differ, collateral estoppel does not apply. One Assortment of
89 

Firearms, 465 U.S. at 361-62

; see also 

Gibson, 616 A.2d at 881

. Similarly, various courts have
held that the Double Jeopardy Clause does not apply to probation violation proceedings because
the defendant is not being tried twice for the same offense. In re Coughlin, 

545 P.2d 249

, 260-61
(Cal. 1976); Knecht v. State, 

85 N.E.3d 829

, 835 (Ind. Ct. App. 2017); Johnson v. State, 

235 S.E.2d
550

, 552 (Ga. Ct. App. 1977); People v. Colon, 

866 N.E.2d 207

, 222-23 (Ill. 2007). Consequently,
there are no constitutional prohibitions on finding a probation violation based on a preponderance
of the evidence for the same conduct for which there is an acquittal in a criminal case. As a result,
even when the defendant is acquitted of the underlying crime leading to the probation revocation
proceeding, probation may still be revoked based on a finding by a preponderance of the evidence
that the defendant committed the act. State v. Benjamin, 

9 A.3d 338

, 345 (Conn. 2010).
       Like other jurisdictions, Idaho has recognized the difference between a criminal trial and a
probation revocation hearing. In State v. Rose, 

144 Idaho 762

, 

171 P.3d 253

(2007), the Idaho


1
        See Antinarelli v. State, 

268 So. 3d 1002

, 1003 (Fla. Dist. Ct. App. 2019); State v.
Benjamin, 

9 A.3d 338

, 345 (Conn. 2010); Vaughn v. State, 

962 P.2d 149

, 152 (Wyo. 1998); State
v. Smith, 

721 A.2d 847

, 848 (R.I. 1998); Gibson v. State, 

616 A.2d 877

, 881 (Md. 1992); People
v. McEntyre, 

339 N.W.2d 538

, 540 (Mich. Ct. App. 1983); State ex rel. Cooper v. Hutcherson,

684 S.W.2d 857

, 858 (Mo. App. W.D. 1984); Knecht v. State, 

85 N.E.3d 829

, 836 (Ind. Ct. App.
2017); People v. Ruff, 

854 N.Y.S.2d 787

(N.Y. App. Div. 2008); Farmer v. State, 

449 P.3d 1116

,
1127 (Alaska Ct. App. 2019); Ward v. Smith, 

573 P.2d 781

, 782 (Utah 1978); Johnson v. United
States, 

763 A.2d 707

, 709 (D.C. 2000); State v. Monroe, 

349 S.E.2d 315

, 317 (N.C. Ct. App. 1986);
Stallworth v. State, 

21 So. 3d 84

, 86 (Fla. Dist. Ct. App. 2009); People v. Colon, 

866 N.E.2d 207

,
224 (Ill. 2007); In re Coughlin, 

545 P.2d 249

, 255 (Cal. 1976); State v. Jameson, 

541 P.2d 912

,
915 (Ariz. 1975) (disapproved on other grounds by State v. Ojeda, 

769 P.2d 1006

, 1008 (Ariz.
1989)); State v. Eckley, 

579 P.2d 291

, 293 (Or. Ct. App. 1978). See also Cruz v. State, 

990 A.2d
409

, 411-16 (Del. 2010); Johnson v. State, 

235 S.E.2d 550

, 552 (Ga. Ct. App. 1977).
                                                      4
Supreme Court noted that probationers do not enjoy the full panoply of constitutional rights
granted to criminal defendants, a probation revocation hearing is not a criminal prosecution, and
that neither the Sixth Amendment’s confrontation clause nor the Idaho Rules of Evidence apply to
probation revocation proceedings.

Id. at 765-66, 171

P.3d at 256-57.
       Only one jurisdiction--Pennsylvania--has concluded that an acquittal of the charges that
served as the basis for a probation violation precludes finding a violation. Commonwealth v.
Giliam, 

233 A.3d 863

, 867 (Pa. 2020). In Pennsylvania, a defendant’s probation can be revoked
only upon finding a defendant violated a specific term of probation or committed a new crime.

Id.
at 867.

There, the Court held that “because Giliam’s violation of probation was based solely on
allegations of new criminal charges for which he was later acquitted, ultimately, no violation of
probation occurred.”

Id. at 868.

       Notwithstanding Pennsylvania’s position on the issue, we agree with the reasoning adopted
by the majority of jurisdictions and hold that an acquittal in a criminal proceeding does not bar
revocation of probation based on the same conduct. Having determined that the judgment of
acquittal did not prohibit the district court from finding that Ross violated his probation by
committing petit theft, we turn our analysis to whether this finding is supported by a preponderance
of the evidence.
       On appeal, Ross concedes that the district court arguably could have found the State proved
that Ross committed the crime of petit theft, but for the judgment of acquittal. Because the
judgment of acquittal has no preclusive effect, Ross’s concession resolves the issue. Even without
Ross’s concession, the evidence adduced at the probation revocation hearing provided the district
court with sufficient evidence that Ross violated a term of his probation by committing petit theft.
       Brian Lux, the owner of a “vape” store testified. Lux said he met Ross through Emily
Vanvalkenberg, who worked at the store. Lux was reviewing video surveillance of the store from
November 2019 when he became aware of a possible theft. Lux saw Ross enter the store with
Vanvalkenberg, who was not scheduled to work that day. Lux saw Ross reach behind a display
case, take a device, and put it in his pocket. Ross also took a jar of Kratom and a vape pen and put
both items in his pocket. Ross left the store without paying for the items. Lux testified that the
items Ross took were the property of the store; he did not give Ross permission to take them; and
his employees did not have permission to allow Ross to take the items without paying for them.



                                                     5
       The State called Officer Jacob Brazle to testify. Officer Brazle testified that he responded
to the store for a potential theft. He reviewed the surveillance video and saw Ross take two items
and hide them in his clothing. Lux informed Officer Brazle that the items were a container of
Kratom and an Orion Q vape pen. Officer Brazle spoke with Ross about the incident. Ross
admitted to Officer Brazle that he had been in the store and did not make any purchases. Ross also
stated that he had been given a vape pen by an employee and that he had been given a different
vape pen on an earlier date. Ross told Officer Brazle that Vanvalkenberg knew that he had taken
the Kratom and that Roxanne Bujko, the employee working during the alleged theft, also knew
that he had taken the vape pen. Officer Brazle told Ross that he had reviewed the surveillance
video, and Ross began to cry. When Officer Brazle described the video, Ross admitted to taking
the items and said they were at his home.
       Officer Brazle further testified that he spoke with Bujko who said she was not aware that
Ross had taken the Kratom and the vape pen. Bujko testified that she was working at the store
when Ross and Vanvalkenberg came in. Bujko said that Ross helped her stock shelves so she gave
him a Zebra F vape pen, which she paid for. Bujko explained that the Zebra F vape pen is a
different vape pen than the Orion Q. Bujko also testified that she did not give Ross the Kratom or
an Orion Q vape pen.
       The State called Vanvalkenberg who testified that she and Ross went to the store on
November 13, 2019, and that Lux had given her permission to take the Kratom. Vanvalkenberg
said she asked Ross to take the Kratom for her and he did.
       Ross testified in his defense at the probation violation evidentiary hearing. Ross testified
that he went to the store with Vanvalkenberg and helped Bujko stock shelves. According to Ross,
Bujko gave him a vape pen in return for his help and told him she would pay for it. Ross took the
Kratom for Vanvalkenberg, believing that she had been given permission to take it. Ross also
introduced his judgment of acquittal entered after a jury trial on the petit theft charge.
       The district court considered the evidence, including Ross’s judgment of acquittal, and
stated that it did not find Ross, Bujko, or Vanvalkenberg to be credible. The district court also
said it understood Ross’s testimony to be that he took, but did not steal, the items, which it found
to be an inherently incredible claim, especially in light of Officer Brazle’s testimony that Ross
began to cry when confronted with the theft. Based on the evidence and Ross’s concession on



                                                      6
appeal, this Court concludes that the district court’s finding that Ross violated his probation by
committing the crime of petit theft is supported by substantial evidence.
B.     The District Court Did Not Err When It Found Ross Violated His Probation by
       Committing the Crime of Injury to Child
       Ross argues the State failed to present any evidence that he acted willfully in causing or
permitting his children to be placed in a dangerous situation. The State asserts that the testimony
at the evidentiary hearing established that Ross willfully permitted his children to be placed in a
dangerous situation and that, as such, the district court properly concluded that Ross violated his
probation by committing the crime of injury to child.
       The crime of injury to child is defined in Idaho Code § 18-1501(1), which provides:
                Any person who, under circumstances or conditions likely to produce great
       bodily harm or death, willfully causes or permits any child to suffer, or inflicts
       thereon unjustifiable physical pain or mental suffering, or having the care or
       custody of any child, willfully causes or permits the person or health of such child
       to be injured, or willfully causes or permits such child to be placed in such situation
       that its person or health is endangered, is punishable by imprisonment in the county
       jail not exceeding one (1) year, or in the state prison for not less than one (1) year
       nor more than ten (10) years.
       For purposes of the statute, “willfully” is defined as “acting or failing to act where a
reasonable person would know the act or failure to act is likely to result in injury or harm or is
likely to endanger the person, health, safety or well-being of the child.” I.C. § 18-1501(5). The
willful element “requires that the person providing care or custody of the child willfully endanger
the child by subjecting the child to a known risk of harm.” State v. Morales, 

146 Idaho 264

, 267,

192 P.3d 1088

, 1091 (Ct. App. 2008). “This does not require that the defendant intended to harm
the child, but it does require that the defendant placed the child in a potentially harmful situation
with knowledge of the danger.”

Id.
At Ross’s evidentiary

hearing, a woman testified that on the morning of November 14,
2019, she saw two young girls run across the street towards an attorney’s office where she was
sitting in the waiting area. The children looked to be about one and four years old and were not
accompanied by an adult. The children crossed the street, came to the glass doors of the attorney’s
office, and tapped on the window to be let inside. The woman let the children into the office and
still did not see an adult with them. The temperature outside was around thirty degrees. The
woman testified that both girls were cold to the touch and dressed in minimal clothing; the older
child was wearing a t-shirt and no pants, the younger child was wearing only a diaper, and neither

                                                     7
child was wearing shoes. The woman asked the older child where her mother was, and the child
said her mother was sleeping and pointed across the street to the direction she had come from.
Police were notified of the situation.
       Next, a child protection worker, Shadra Aragon, testified. Aragon knew Ross and Taylor
Tottenham to be the parents of the two girls from a case involving Ross and Tottenham a few years
prior and based on a similar referral the previous week. Aragon testified that on November 8,
2019, she received a referral for failure to supervise after Ross’s children were left alone outside.
On November 13, 2019, Aragon went to Ross’s home and spoke with Ross and Tottenham. They
discussed the family’s current living situation and status, and Aragon observed the children. They
also discussed the referral Aragon had received in response to the children being left alone outside.
Ross and Tottenham explained that the children had gotten out through the sliding back door and
that it would not happen again.
       The next day, November 14, 2019, Aragon was contacted by law enforcement and
responded to the attorney’s office.      Aragon recognized the children and explained to law
enforcement that a similar event had happened just a few days prior. Aragon accompanied law
enforcement to Ross’s home in an attempt to make contact with the children’s parents. Aragon
said that when she arrived at the home, she did not know if the back door was open, but she
believed the children had left the house using the back door.
       Officer Henry Dunham, the responding officer, also testified. Dunham responded to the
attorney’s office after receiving a call for a welfare check on two small children. After going to
the office, Dunham went to Ross’s home. Dunham testified that he knocked on the front door of
the home for about five minutes before Ross’s roommate answered the door. Sometime later,
Tottenham came to the door, followed by Ross. Dunham testified that he spoke with Ross who
said he was unaware that his children had left the house because he had been asleep. At the time
Dunham made contact with Ross, the children had been gone for about two hours.
       Ross argues the State failed to present evidence that Ross placed his children in a
potentially harmful situation with knowledge of the danger. Ross claims that the fact that his
children were endangered by a lack of supervision is not enough to show he had knowledge of the
danger. We disagree.
       On November 13, 2019, the day before the events in this case, Ross spoke with Aragon
about the danger of his children getting out of the house if left unsupervised. Ross was aware that

                                                     8
his children had left the house using the sliding back door. He recognized the risk of allowing his
children to have unsupervised access to the back door, and he assured Aragon that it would not
happen again. Ross’s conversation with Aragon establishes that Ross had knowledge of the
potentially harmful situation created by failing to ensure his children were properly supervised.
Despite that knowledge, on November 14, 2019, nothing in the record indicates that Ross took any
affirmative steps to ensure his children were supervised while he slept. He did nothing to prevent
his children from leaving unaccompanied through the back door, and he did not take any steps to
ensure his children were supervised by one of the other adults while he slept. Under these
circumstances, a reasonable person would know that such a failure was likely to result in injury or
harm or was likely to endanger the health, safety, or well-being of his children, As such, Ross’s
failure to act was willful. The district court’s finding that Ross violated his probation by
committing the crime of injury to a child is supported by a preponderance of the evidence, and the
district court did not err in reaching this conclusion.
         Ross does not challenge the second part of the analysis--whether the district court abused
its discretion when it revoked Ross’s probation and ordered into execution the previously
suspended sentence--other than to claim that the Court should remand for reconsideration of the
revocation decision if we conclude that the district court erred in finding one of the violations.
Because we have concluded that the district court did not err in finding either violation, we need
not address whether remand would be the proper remedy if we reached a contrary conclusion. As
a result, this Court affirms the district court’s decision to revoke Ross’s probation.
                                                 IV.
                                          CONCLUSION
         We hold that an acquittal in a criminal proceeding does not bar a finding that a probationer
violated a term of his probation based on the same underlying conduct. Additionally, there is
substantial evidence in the record to support the district court’s finding, by a preponderance of the
evidence, that Ross violated his probation by committing the crimes of petit theft and injury to
child.   Accordingly, the district court’s order revoking Ross’s probation and executing his
previously suspended sentence is affirmed.
         Judge LORELLO and Judge BRAILSFORD CONCUR.




                                                       9

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