State v. McCallum
| Decision Date | 27 April 2017 |
| Docket Number | Docket No. 43701,Docket No. 43738,2017 Unpublished Opinion No. 451 |
| Parties | STATE OF IDAHO, Plaintiff-Respondent, v. JUSTIN LYNN MCCALLUM, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. Cheri C. Copsey, District Judge.
Docket No. 43701, order revoking probation and executing underlying sentence, affirmed. Docket No. 43738, judgment for felony destruction of evidence, vacated, and case remanded. Judgment and sentence for felony lewd conduct with a minor under the age of sixteen and the denial of McCallum's Idaho Criminal Rule 35 motion, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.
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Justin Lynn McCallum appeals from two consolidated cases. In Supreme Court Docket No. 43701, McCallum appeals from the district court's order revoking probation and executing the underlying sentence for aiding and abetting the delivery of a controlled substance. There, McCallum alleges the district court abused its discretion when it revoked his probation and executed the underlying sentence. In Supreme Court Docket No. 43738, McCallum appeals from his judgment of conviction for felony lewd conduct with a minor under sixteen years of age and felony destruction of evidence, and the denial of his Idaho Criminal Rule 35 motion. In that case, McCallum's issues on appeal are: (1) there was insufficient evidence to support the conviction for felony destruction of evidence; (2) the district court erred in admitting irrelevant text messages; (3) the district court abused its discretion when it imposed aggregate unified sentences of twenty-five years, with five years determinate; and (4) the district court abused its discretion when it denied McCallum's I.C.R. 35 motion for a sentence reduction. Although the cases were consolidated for purposes of appeal, we will address them separately because the issues in each case are distinct.
In 43701, the district court did not abuse its discretion when it revoked McCallum's probation and executed the underlying sentence. In 43738, the district court erred in entering a judgment of conviction for the offense of felony destruction of evidence because there was insufficient evidence of an element of the offense--that the crime being investigated was a felony. We therefore vacate the judgment of conviction for felony destruction of evidence and remand the case for sentencing on the charge of misdemeanor destruction of evidence. However, the district court did not err when it admitted the text messages. Furthermore, the district court did not abuse its discretion when it imposed sentence for the lewd conduct conviction and denied McCallum's I.C.R. 35 motion for a sentence reduction.
In 43701, McCallum was involved in the purchase of marijuana from a confidential informant. McCallum was charged with two counts of felony aiding and abetting delivery of a controlled substance, Idaho Code §§ 37-2732(a)(1)(B), 18-204, and one count of misdemeanor possession of drug paraphernalia, I.C. § 37-2734A(1). McCallum pleaded guilty to one count of aiding and abetting delivery, and in exchange, the State agreed to dismiss the remaining counts. The district court imposed a unified sentence of four years, with one year determinate, suspended the sentence and placed McCallum on probation for three years. The remaining charges were dismissed. While on probation, McCallum was charged with the crimes in 43738. As a result of the convictions in 43738, McCallum admitted to violating his probation for the aid and abet drug delivery charge. The district court revoked McCallum's probation and executed the underlying four-year sentence, with one year determinate.1
In 43738, McCallum engaged in sexual contact with a thirteen-year-old female, A.M. McCallum and A.M. engaged in sexual intercourse and communicated by text messaging before and after the incident. A.M.'s mother discovered the sexual contact, took possession of A.M.'s cell phone, and informed the police. Police then contacted McCallum and requested his phone. When McCallum turned over his cell phone to the police, McCallum explained he had performed a factory reset which deleted all text messages and contact information on the device. In the course of the investigation, the police obtained McCallum's phone records from his phone carrier and also recovered numerous text messages between McCallum and A.M. from A.M.'s phone.
The State filed an information charging McCallum with felony lewd conduct with a minor under sixteen years of age, I.C. § 18-1508, and felony destruction of evidence, I.C. § 18-2603. The State also filed a motion for probation violation in McCallum's aid and abet drug delivery case. Prior to trial, the State filed a notice of intent to introduce evidence under Idaho Rule of Evidence 404(b), which included the text messages exchanged between McCallum and A.M., as well as eight messages from McCallum that A.M. saved in a memo application on her phone. McCallum objected to the admission of all the messages. The district court held the messages would be admissible at trial if the proper foundation was laid. The court explained the messages were admissible under I.R.E. 404(b) because some messages were admissions and others supported knowledge, intent, and motive of the charges. The court further determined that the probative value of all the messages was not substantially outweighed by undue prejudice to McCallum.
At trial, the State admitted the text messages into evidence and A.M. testified about her relationship with McCallum, including the sexual activity. The jury found McCallum guilty of felony lewd conduct with a minor under sixteen years of age and felony destruction of evidence. The district court imposed a unified sentence of twenty-five years, with five years determinate, for the lewd conduct charge and a five-year determinate sentence for felony destruction of evidence charge. The district court ordered all sentences to run concurrently. In 43738, McCallum filed a timely I.C.R. 35 motion for sentence reduction, which the district court denied.
In 43701, McCallum timely appeals from the revocation of probation and execution of the underlying sentence. In 43738, McCallum timely appeals from the judgment of conviction and order denying I.C.R. 35 motion.
McCallum makes five arguments on appeal. In 43701, McCallum argues the district court abused its discretion when it revoked McCallum's probation and executed the underlying sentence. In 43738, McCallum argues: (1) there was insufficient evidence to support the conviction for felony destruction of evidence; (2) the district court erred in admitting irrelevant text messages; (3) the district court abused its discretion when it imposed aggregate unified sentences of twenty-five years, with five years determinate; and (4) the district court abused its discretion when it denied McCallum's I.C.R. 35 motion for a sentence reduction.
In 43701, McCallum appeals, contending that the district court abused its discretion in revoking probation. It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). In determining whether to revoke probation, a court must examine whether the probation is achieving the goal of rehabilitation and consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under I.C.R. 35 to reduce the sentence. Beckett, 122 Idaho at 325, 834 P.2d at 327; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct. App. 1989). The court may also order a period of retained jurisdiction. I.C. § 19-2601. A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 325, 834 P.2d at 327. In reviewing the propriety of a probation revocation, the focus of the inquiry is the conduct underlying the trial court's decision to revoke probation. State v. Morgan, 153 Idaho 618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the record before the trial court relevant to the revocation of probation issues which are properly made part of the record on appeal. Id. Applying the foregoing standards, and having reviewed the record in this case, we cannot say that the districtcourt abused its discretion either in revoking probation or in ordering the execution of McCallum's sentence.
In 43738, McCallum argues the record does not support his conviction for felony destruction of evidence because the State did not provide evidence that the subject offense was a felony. According to McCallum, the accusations of evidence destruction were unrelated to any evidence of a felony investigation and, thus, there is insufficient evidence in the record to support a felony conviction. We agree.
Appellate review of the sufficiency of the evidence is limited in scope. A finding...
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