State v. Ross

• Decision Date: 04 April 2022
• Docket Number: Docket No. 48963
• Citation: 170 Idaho 58,507 P.3d 545
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Talon Scott ROSS, Defendant-Appellant.
• Court: Idaho Supreme Court

170 Idaho 58

507 P.3d 545

STATE of Idaho, Plaintiff-Respondent,

v.Talon Scott ROSS, Defendant-Appellant.

Docket No. 48963

Supreme Court of Idaho, Boise, January 2022 Term.

Opinion Filed: April 4, 2022

Eric D. Fredericksen, State Appellate Public Defender, Boise, for appellant, Talon Scott Ross. Andrea W. Reynolds argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent, State of Idaho. Kacey L. Jones argued.

STEGNER, Justice.

Talon Ross appeals from a district court's order revoking his probation and imposing his previously suspended sentence for a robbery he pleaded guilty to in 2011. In 2019, Ross was charged with violating the terms of his probation by allegedly committing the crimes of petit theft and injury to a child. At an evidentiary hearing on the probation violation allegations, the district court found that, despite Ross introducing a judgment of acquittal for the petit theft charge, the State had proved by a preponderance of the evidence that Ross had committed petit theft. Additionally, the district court found by a preponderance of evidence that Ross had committed injury to a child. The Idaho Court of Appeals affirmed the district court's order revoking Ross's probation and imposing his sentence. Ross petitioned this Court for review, which was granted. For the reasons that follow, we vacate the district court's order revoking Ross's probation and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2011, Ross pleaded guilty to robbery in violation of Idaho Code sections 18-6501, 18-6502, and 18-204. The district court sentenced Ross to a fixed term of three years followed by an indeterminate term of seven years. The district court retained jurisdiction and ordered Ross to complete a correction alternative placement program (CAPP, or "rider"). After completing his rider, the district court suspended Ross's sentence and placed him on supervised probation for a term of three years. One of Ross's probation conditions required that he "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 found to have committed four probation violations between 2012 and 2017.¹ Each time the district court retained jurisdiction and suspended Ross's sentence, imposing a term of either three or four years of supervised probation.

On November 15, 2019, Ross's probation supervisor alleged that Ross had once again violated his probation—this time by committing the crimes of petit theft and injury to a child. Ross denied both allegations. An evidentiary hearing took place on January 27, 2020, during which several witnesses testified regarding the allegations.

The following facts were elicited regarding Ross's petit theft charge. On November 13, 2019, Brian Lux, a part owner of Best Avenue Vapor in Coeur d'Alene, became aware of a possible theft at the "vape store" by reviewing video surveillance footage. Lux testified he observed Emily Vanvalkenberg, a temporary employee of the vape store, and Ross enter the store. According to Lux, Ross "reached behind inside the display case and grabbed a device and put it in his pocket ... and [Ross] then grabbed a jar of Kratom."² Lux also observed Ross take another vaping device and put it in his pocket. Lux had not given Vanvalkenberg or Ross permission to take the items and neither Vanvalkenberg nor Ross had paid for the items.

Officer Jacob Brazle responded to the theft allegations. Brazle reviewed the surveillance video and observed Ross take two items from the store. Brazle later questioned Ross, who admitted that he took the items from the store. Roxanne Bujko, an employee of the vapor store who was working at the time of the alleged theft, testified that Ross and Vanvalkenberg came into the shop on the evening of November 13, 2019, in order for Vanvalkenberg to retrieve her belongings. Ross helped Bujko by placing items on shelves that were out of her reach; to thank him, Bujko paid for a "vape stick" and gave it to Ross. Vanvalkenberg testified next, stating that Lux had given her permission to take a container of Kratom.

Finally, Ross testified in his own defense. According to Ross, he went to Best Avenue Vapor with Vanvalkenberg, and while he was there he helped Bujko stock the shelves with some products. In return, Bujko gave Ross a vape stick. Ross also testified that Vanvalkenberg had asked him to retrieve a jar of Kratom from the shelf; Vanvalkenberg previously stated that she had permission to take the Kratom from Lux. Ross clarified that he told Brazle he took the items from the store with permission. Ross was tried by a jury for the petit theft charge in a separate criminal proceeding; however, the jury acquitted Ross of the charge. The defense admitted the judgment of acquittal at the probation violation evidentiary hearing.

Regarding the injury to a child charge, the following evidence was presented the district court during the probation violation hearing: on November 14, 2019, Brandy Traxler was waiting in the lobby of an attorney's office in Coeur d'Alene when she saw "two little girls [on] 3rd Avenue running across the street." The older child, about three years old, was wearing a "pink T-shirt [ ] and no bottoms, no diaper, no shoes, [and] no pants," while the younger child, about one year old, "only had on a saturated diaper that was hanging down past her knees," with no shoes on. Traxler ushered the children inside the office and warmed them up, as it was somewhere between 30 and 40 degrees outside that day.

Law enforcement officers and child protective services (CPS) responded to the attorney's office. Shadra Aragon, a CPS case worker, knew both Ross and Taylor Tottenham, the children's mother, from a previous referral she had received on November 8, 2019. On November 13, 2019, Aragon went to Ross's home to speak with him and Tottenham about a prior incident where the girls had gone outside through the sliding glass door. Ross and Tottenham explained to Aragon that this was an accident and that it would not happen again. Aragon responded again the following day, November 14, when she learned that the girls had crossed the street alone. Once at Ross's residence with Officer Henry Dunham, Aragon and Dunham knocked on the door for approximately five minutes³ before Ross's roommate answered the door.

Ross and Tottenham eventually came to the door, and both appeared to have just awakened. Both Ross and Tottenham were upset that the girls were missing. The State admitted photographs from Dunham's body camera showing both girls inside the attorney's office.

After the close of evidence at the probation violation hearing, Ross argued that the State had failed to prove both alleged probation violations. First, Ross argued that because a jury had acquitted him of petit theft, and because Bujko and Vanvalkenberg testified that Ross had permission to take a vape pen and the Kratom, the State had failed to prove that Ross committed the crime of petit theft "even to a probable cause standard." Next, Ross argued that the State failed to show that Ross "willfully" permitted his children to be in a dangerous situation.

The district court found that "both allegations [ ] have been proven by a preponderance of the evidence." The district court first concluded that Ross had committed petit theft because Ross's claim that he took the items from the vapor store but did not steal them was "inherently incredible." Next, the district court concluded that Ross had a "special relationship" with the children and that the State had proved the elements of the injury to a child statute "certainly on a more probable than not basis." The district court then imposed Ross's original sentence on the underlying 2011 robbery, which was three years fixed followed by seven years indeterminate with credit for time served.

Ross timely appealed. The Idaho Court of Appeals affirmed the district court's decision to impose his original sentence. State v. Ross , No. 47771, 2021 WL 1651295, at *1 (Idaho Ct. App. Apr. 28, 2021). Ross petitioned this Court for review, which was granted.

II. STANDARD OF REVIEW

"When reviewing a case on petition for review from the Court of Appeals this Court gives due consideration to the decision reached by the Court of Appeals, but directly reviews the decision of the trial court." State v. Chernobieff , 161 Idaho 537, 539, 387 P.3d 790, 792 (2016) (quoting State v. Lute , 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011) ). "This Court is not merely reviewing the correctness of the Court of Appeals’ decision; rather, this Court is hearing the matter as if the case were on direct appeal from the trial judge's decision." Gilpin-Grubb v. State , 138 Idaho 76, 79, 57 P.3d 787, 790 (2002).

Marsalis v. State , 166 Idaho 334, 339, 458 P.3d 203, 208 (2020).

Review of a probation revocation proceeding involves a two-step analysis. State v. Sanchez , 149 Idaho 102, 105, 233 P.3d 33, 36 (2009) ; State v. Knutsen , 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003). First, it is determined whether the terms of probation have been violated. Sanchez , 149 Idaho at 105, 233 P.3d at 36. If they have, it is then determined whether the violation justifies revocation of the probation. Knutsen , 138 Idaho at 923, 71 P.3d at 1070.

State v. Garner , 161 Idaho 708, 710, 390 P.3d 434, 436 (2017).

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. ...

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.

Id. (quoting State v....