State v. Thomas Ray Kilgore ( 2011 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 37286
STATE OF IDAHO, ) 2011 Unpublished Opinion No. 413
)
Plaintiff-Respondent, ) Filed: March 24, 2011
)
v. ) Stephen W. Kenyon, Clerk
)
THOMAS RAY KILGORE, ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
Defendant-Appellant. ) BE CITED AS AUTHORITY
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Thomas F. Neville, District Judge.
Order denying motion to amend terms and conditions of probation, affirmed.
Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GRATTON, Chief Judge
Thomas Ray Kilgore appeals from the district court’s order denying his motion to amend
the terms and conditions of probation.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Kilgore pled guilty to grand theft, Idaho Code §§ 18-2403(1), 18-2407(1)(b). The district
court imposed a unified sentence of twelve years with two years determinate, suspended the
sentence, and placed Kilgore on probation with terms and conditions for twelve years. Kilgore
did not appeal. Subsequently, Kilgore filed a motion to amend the terms and conditions of his
probation, which the district court denied.
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II.
ANALYSIS
This case arises out of issuance of checks on closed accounts ostensibly involving both
Kilgore and his wife. The terms and conditions of Kilgore’s probation, to which he agreed,
included Special Condition (j) which states: “As a fundamental condition, the defendant may not
continue the relationship with his (new) wife, Tamara Kilgore, if she is convicted of any crime
(felony or misdemeanor) related to Ada County Case No. CR-FE-2009-0013875.” Kilgore
moved to amend the terms and conditions of his probation: “Specifically, the defendant requests
the court eliminate ‘Special Condition 3(j)’ from the judgment, which forbids [sic] from living
with his wife while [sic] probation.” The district court wrote across the face of a proposed order
that was submitted with the motion: “Denied. Defendant has made very bad decisions since
associating with his wife, Tamara, who is a bad influence on the Defendant whom she dominates
and controls. No grounds stated for the motion. So ordered.” Kilgore contends that the court
erred in refusing to grant the amendment.
The State contends that Kilgore did not appeal the probation order and, thus, this Court
lacks jurisdiction to review that order directly. We agree. However, at issue is the denial of the
motion to amend, not the underlying order of probation. The State further argues that Kilgore
failed to support the motion to amend with any new information or argument. Kilgore
“acknowledges that his motion provided no explicit factual grounds or legal arguments for
modification.” However, he argues that the nature of the term itself should have put the district
court on notice that he was asserting that the term interfered with the fundamental right to
marriage and was not reasonably related to the purposes of probation. We disagree. Kilgore
agreed to the terms of probation. Kilgore provided no grounds or support for the motion, which
itself may be a basis for denial of the motion. The district court was not required to divine the
basis for the motion, whether constitutionally based or otherwise. Moreover, the Idaho Supreme
Court recently reiterated the general rule that appellate court review is limited to the evidence,
theories, and arguments that were presented below. State v. Johnson, 148 Idaho 664, 670, 227
P.3d 918, 924 (2010). The court below was presented with no evidence, theories, or arguments
in support of the motion and, thus, there are none for this Court to review. Additionally, an
objection on one ground, to the extent one was asserted, is insufficient to preserve for appeal all
objections that could have been raised. State v. Stevens, 115 Idaho 457, 459, 767 P.2d 832, 834
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(Ct. App. 1989). The district court was not given the opportunity, in the first instance, to
entertain the arguments now asserted. Finally, issues not raised below may not be considered for
the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992).
III.
CONCLUSION
Kilgore failed to support his motion in the district court and, thus, the district court did
not err in denying the motion to amend. The order of the district court denying Kilgore’s motion
to amend the terms and conditions of probation is affirmed.
Judge GUTIERREZ and Judge MELANSON CONCUR.
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