State v. John Doe ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48895
In the Interest of: John Doe (2021-29), )
Juvenile Under Eighteen (18) Years. )
STATE OF IDAHO, )
) Filed: July 1, 2022
Petitioner-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
JOHN DOE (2021-29), ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Minidoka County. Hon. Jonathan Brody, District Judge, and Mick D. Hodges,
Magistrate.
Order of the district court, on intermediate appeal from the magistrate court,
affirming order finding probation violation, revoking probation, and directing
execution of previously suspended sentences, reversed; and case remanded.
Parmenter Rivera LLP; Nathan D. Rivera, Blackfoot, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C McKinney, Deputy Attorney
General, Boise, for respondent.
_________________________________________________
HUSKEY, Judge
John Doe appeals from the district court’s order, on intermediate appeal, affirming the
magistrate court’s order revoking probation and executing Doe’s previously suspended sentence
after finding Doe violated probation. Doe argues the district court erred by: (1) finding substantial
evidence supported the magistrate court’s determination that Doe violated probation; (2) finding
the magistrate court properly revoked probation; and (3) affirming the magistrate court’s execution
of an excessive sentence. The magistrate court’s finding that Doe violated his probation is not
supported by substantial evidence. Additionally, the magistrate court abused its discretion in
executing the previously suspended sentence. Consequently, the district court’s order affirming
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the magistrate court’s order revoking probation and executing Doe’s previously suspended
sentence after finding Doe violated probation is reversed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, pursuant to a plea agreement, Doe pleaded guilty to one count of attempted
rape, Idaho Code § 18-6101, and three counts of lewd conduct with a minor under sixteen (16)
years of age, I.C. § 18-1508. The magistrate court ordered a commitment to the Department of
Juvenile Corrections (Department) for an indeterminate amount of time, not to exceed Doe’s
nineteenth birthday, unless the Custody Review Board determined Doe should remain in the
custody of the Department until Doe’s twenty-first birthday. Upon release from the Department
in June 2019, Doe was placed on probation for three years. As a term of probation, Doe was
prohibited from entering Minidoka County and Cassia County (“Mini-Cassia”) without notifying
his probation officer.
In January 2020, a counselor at Minico High School in Minidoka County completed a
written statement in which he stated “sometime between Thanksgiving and Christmas [of 2019],
to the best of my recollection, I observed [Doe] on our campus and specifically in the building.”
Doe had not received permission from his probation officer to enter Minidoka County during the
time frame the counselor referenced. As a result, the State filed a probation violation against Doe
alleging two violations. First, the State alleged that Doe violated Condition 8 of the standard terms
of probation which, in relevant part, required Doe to “make arrangements with the parents or
guardians prior to leaving the home. The parents/guardians shall, at all times, know and approve
of the whereabouts and companions of the juvenile.”1 The State alleged Doe violated the condition
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Condition 8 reads as follows:
That the juvenile shall make arrangements with the parent/guardian prior to
leaving the home. The parent/guardian shall, at all times, know and approve of the
whereabouts and companions of the juvenile. The Probation Officer may restrict
the juvenile’s association with persons deemed to be an inappropriate influence.
The juvenile shall not spend the night at any friend’s house while on probation.
That the juvenile shall have no contact with gang members or other juveniles or
adults on probation and shall have no drug or gang-related paraphernalia, or violent
video games. Any and all gang and drug paraphernalia, including but not limited
to, items of clothing, belts, posters, . . . will be confiscated by the Probation
Department. Upon release of the juvenile from probation, items will be returned to
the parent/guardian, if requested in writing, within 15 days of the juvenile’s release
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by going to Minico High School between the dates of November 25, 2019, and December 25,
2019, “without the knowledge of his parents or his Probation Officer.” Second, the State alleged
that Doe violated a condition of the amended decree and order of disposition. That condition reads
as follows: “[Doe] shall give a 48 hour notice to the Mini-Cassia Juvenile Probation Department
BEFORE coming into either Minidoka or Cassia County.” The State alleged Doe violated this
condition because “This Probation Officer had no knowledge of [Doe] being in the area during
this time and had no knowledge of [Doe] being at Minico High School, which he was restricted
from being at.”
The magistrate court held an evidentiary hearing on the allegations. At the hearing, the
counselor testified that Doe had been a student at Minico High School and that prior to his alleged
presence at the school in late 2019, the counselor had not seen Doe since January 2018. Initially,
the counselor testified that Doe was at the high school “prior to Thanksgiving in 2019.” The
prosecutor then tried to clarify the date, asking, “maybe you had indicated on a prior occasion that
it was sometime between Thanksgiving and Christmas.” The counselor then testified, “Well, I
know it was somewhere in there.” During cross-examination, the counselor testified that he did
not know the exact date he saw Doe but “it was either before Thanksgiving or right between
Thanksgiving and Christmas.” However, the counselor also acknowledged that due to either the
aging process or an illness, his “memory isn’t quite as sharp as it was.”
The counselor also testified that he saw Doe standing in the hallway of the high school
where he appeared to be waiting for someone or waiting to talk to the attendance secretary. The
counselor testified that he distinctly remembered saying, “Hey, [Doe], how you doing?” and Doe
said, “I’m good.” When asked if there was any doubt in his mind that he saw Doe at the high
school, the counselor answered, “No, there’s no doubt.” The counselor also testified that Doe’s
older brother, Jorge, had been a student at another high school where the counselor worked before
he worked at Minico High School. The counselor testified that Doe and Jorge “are similar,” but
he had not seen Jorge for two or three years. However, the counselor acknowledged that in his
written statement made in January 2020, he did not indicate that he addressed the person he saw
by Doe’s name, but he did not know why he did not include that in the written statement. In his
written statement, the counselor also indicated that in order to confirm whether he saw Doe, the
date. After the 15-day period has expired, the items will be destroyed, if return has
not been requested by the parent/guardian.
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counselor spoke with the attendance secretary present the day Doe was alleged to be on campus.
The counselor showed the attendance secretary a photo of Doe in an effort to identify him, but the
attendance secretary did not recognize Doe. The secretary also did not remember Doe or why Doe
would have been at the school.
Brandy Simmons, Doe’s probation officer, testified that Doe was required to obtain
permission from the probation office before entering the Mini-Cassia area and that Doe had
requested and received permission on multiple occasions. Simmons testified that Doe did not
request permission to go to the Mini-Cassia area or Minico High School at any time during
November or December 2019. She was surprised, but unconcerned, by the allegation that Doe had
been at the high school because Doe had been good about communicating with her and asking for
permission to be in the Mini-Cassia area and had passed a polygraph examination about whether
he had been at the high school. Simmons testified that aside from the alleged violation, Doe had
completed all the terms and conditions of his probation and done well.
Bret Wright, a juvenile probation officer in Minidoka County, testified that Doe had taken
two polygraph examinations and was specifically asked whether he had complied with all
conditions of probation. Each time, Doe passed the examination. Wright also testified that when
he asked Doe about the alleged violation, Doe adamantly denied ever being near Minico High
School.
Jorge testified that on October 29, 2019, he went to Minico High School to pick up his
cousin at his wife’s request. Defense Exhibit 2, a copy of electronic messages between Jorge’s
cousin and Jorge’s wife, supports this testimony. Jorge testified that while he was waiting for his
cousin, he saw the counselor who asked him, “Hey, how is it going?” and Jorge responded,
“Good.” Jorge testified that the counselor asked what he was doing at the school, and Jorge
explained that he was there to pick up his cousin. Jorge said that the counselor did not address
him by a specific name. Jorge explained “it takes [the counselor] a while to remember who we
are because he has so many students, so it takes him a while to remember our names.” Jorge
testified that every time he saw the counselor, the counselor would say “Hey, how is it going?” or
“Hey, how you doing?” Jorge testified that if the counselor had addressed him by Doe’s name, he
would have corrected him. Jorge’s fiancé and cousin testified, and their testimony corroborated
Jorge’s testimony and the electronic messages.
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Doe testified that he understood the conditions of his probation and had sought permission
from his probation officer every time he wanted to travel to the Mini-Cassia area, as required. Doe
stated multiple times that he had not been at Minico High School or in the Mini-Cassia area without
permission. During closing argument, Doe’s counsel argued the counselor had mistaken Jorge for
Doe. Doe’s counsel further argued that the mistaken identity was the only evidentiary support for
the probation violation allegations and that the counselor was not credible.
The magistrate court acknowledged that Doe and Jorge look similar but ultimately
concluded Doe violated his probation. At a subsequent disposition hearing, the magistrate court
found that Doe violated both terms of his probation as alleged, and the court revoked probation,
and executed Doe’s previously suspended detention time of 621 days. Doe appealed, arguing the
magistrate court lacked substantial evidence to support finding a probation violation, abused its
discretion by failing to cite the proper standard when revoking Doe’s probation and executing his
sentence, and abused its discretion by executing a sentence that was excessive and/or inappropriate
given the violation alleged. Doe also filed a motion for release pursuant to Idaho Criminal Rule
46(d), and the magistrate court released Doe from custody on his own recognizance pending the
outcome of his appeal.
The district court affirmed the magistrate court’s order, finding substantial evidence
supported the magistrate court’s determination that Doe violated his probation. The district court
noted that Doe failed to provide a transcript of the disposition hearing and, therefore, the court was
required to presume the transcript would support the disposition. Accordingly, the district court
found that the magistrate court did not abuse its discretion in revoking probation and executing
Doe’s suspended sentence. Doe timely appealed.
II.
STANDARD OF REVIEW
For an appeal from the district court, sitting in its appellate capacity over a case from the
magistrate court, we review the record to determine whether there is substantial and competent
evidence to support the magistrate court’s findings of fact and whether the magistrate court’s
conclusions of law follow from those findings. State v. Korn, 148 Idaho 413, 415, 224 P.3d 480,
482 (2009). However, as a matter of appellate procedure, our disposition of the appeal will affirm
or reverse the decision of the district court. State v. Trusdall, 155 Idaho 965, 968, 318 P.3d 955,
958 (Ct. App. 2014). Thus, we review the magistrate court’s findings and conclusions, whether
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the district court affirmed or reversed the magistrate court and the basis therefor, and either affirm
or reverse the district court.
III.
ANALYSIS
Doe alleges the district court erred in affirming the magistrate court because the magistrate
court lacked sufficient evidence to support finding a probation violation and because the magistrate
court abused its discretion when it revoked Doe’s probation and ordered execution of a sentence
that was excessive and/or inappropriate given the violation alleged. In response, the State asserts
Doe has failed to show error in the district court’s decision affirming the magistrate court’s
revocation of Doe’s probation and order executing Doe’s sentence.
Review of a probation revocation proceeding involves a two-step analysis. State v. Garner,
161 Idaho 708, 710, 390 P.3d 434, 436 (2017). First, we determine whether the terms of probation
were violated. Id. If they were, we then determine whether the violation justifies revocation of
the probation. Id. With regard to the first step, a trial court may revoke probation only upon
evidence that the probationer has violated probation. State v. Ross, 170 Idaho 58, 62, 507 P.3d
545, 549 (2022). 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. Id.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. Id. Thus, we review a district court’s decision to
revoke probation under an abuse of discretion standard. Id. When a trial court’s discretionary
decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine
whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within
the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the
specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera,
164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
In the event of conflicting evidence of the alleged violation, this Court will defer to the trial
court to determine the credibility of witnesses. See State v. Barton, 119 Idaho 114, 118, 803 P.2d
1020, 1024 (Ct. App. 1991); State v. Roy, 113 Idaho 388, 390-91, 744 P.2d 116, 118-19 (Ct. App.
1987). We will not set aside a trial court’s credibility determination unless it is not supported by
substantial and competent evidence. Ross, 170 Idaho at 62, 507 P.3d at 549.
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We note, although Doe argues on appeal that the State failed to establish a probation
violation by a preponderance of the evidence, that is not the standard. The standard is whether
there was substantial evidence of a violation. State v. Lafferty, 125 Idaho 378, 381, 870 P.2d 1337,
1340 (Ct. App. 1994). Regardless of the standard applied, Doe asserts the evidence was “woefully
insufficient” to support a conclusion that he violated his probation.
The first step in the analysis of a probation violation involves a wholly retrospective factual
question. State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 (2009). When conflicting
evidence is presented, this Court defers to the trial court’s determination of credibility so long as
the determination is supported by substantial and competent evidence. Id.There is no evidence in the record to support the magistrate court’s finding that Doe
committed the first alleged violation--violating Condition 8 of his probation. First, Condition 8
did not restrict Doe from being in the Mini-Cassia area, or from being at Minico High School;
instead, it generally limited the people with whom Doe could have contact and the kind of material
Doe could have. To the extent there was a restriction on where Doe could be geographically, the
only restriction was that his parents or guardian know and approve of Doe’s whereabouts and
companions. Second, Condition 8 does not require that Doe’s probation officer know or approve
of Doe’s whereabouts. Instead, it requires Doe’s parents or guardians to be apprised of and
approve of Doe’s whereabouts. Thus, to establish that Doe violated Condition 8, Doe’s parents
had to testify that Doe had gone somewhere without their knowledge or approval. No such
testimony exists in the record. Thus, there is no evidence to support the magistrate court’s
conclusion that Doe violated Condition 8.
As to the second allegation, the magistrate court heard conflicting evidence from Doe,
Jorge, Doe’s probation officer, and the counselor regarding Doe’s alleged presence at the high
school without having given prior notice to the probation department. In light of that conflicting
evidence, we defer to the credibility findings by the trial court if such findings were made. In this
case, the magistrate court made no explicit findings about which witnesses were more credible.
The magistrate court’s credibility findings, in their entirety, are as follows:
I don’t think [Doe’s] family’s lying. I think the family would do what they
could to get [Doe] out of this mess.
I’m not saying that they’re lying, but I do--I do find [the counselor is] an
unbiased witness who was absolutely certain of his identification of [Doe].
....
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I think [the counselor] properly ID’d [Doe] at the high school when he
wasn’t supposed to be there based on the testimony I’ve heard today.
The magistrate court’s conclusion that Doe violated the specified terms or conditions of
probation would have necessarily required weighing the credibility of the witnesses. However,
the magistrate court did not address the credibility of Doe or Doe’s probation officer or make
explicit credibility findings that support its decision. It did not find Doe’s family not credible, but
rather the court stated twice it did not think the family (Jorge, his wife, and his cousin presumably)
were lying. Likewise, it did not think the counselor was lying, stating the counselor was
“absolutely certain of his identification.” Essential to this case’s resolution, however, was
weighing the testimony of all the witnesses to determine whether the counselor saw Jorge or
whether he saw Doe, which the court did not do. The court could have resolved the conflicting
testimony by concluding that the counselor must have both seen Jorge and seen Doe at different
times, but instead it expressly found “I don’t know if two events took place.” Absent finding two
events took place, the court had to weigh the credibility of the witnesses to find the counselor was
more credible in order to conclude that Doe violated his probation. In that regard, the magistrate
court did not make any explicit findings regarding which witness(es) it found most credible. Even
if we could conclude the magistrate court implicitly found the counselor to be more credible, that
implicit finding is not supported by substantial and competent evidence.
A credibility determination, like other factual determinations, must be set aside if it is not
supported by substantial and competent evidence and is therefore, clearly erroneous. See Stuart v.
State, 127 Idaho 806, 813, 907 P.2d 783, 790 (1995). Substantial evidence is such relevant
evidence as a reasonable mind might accept to support a conclusion. State v. Hess, 166 Idaho 707,
710, 462 P.3d 1171, 1174 (2020). Here, the counselor was the sole witness who testified to seeing
Doe at the high school, and his testimony on the two critical elements--whether Doe was at Minico
High School and on what date--was repeatedly undermined.
As to the dates that Doe was allegedly at the high school, the counselor initially testified it
was prior to Thanksgiving of 2019. The probation violation allegation stated that Doe was at the
high school sometime between November 25 and December 25, 2019. This Court can take judicial
notice of the fact that the Thanksgiving Holiday was November 28, 2019, leaving, at most,
November 25, 26, or 27 for Doe to be at the high school prior to the date on which the school
would have released the students for the Thanksgiving holiday recess. Aside from the counselor’s
initial testimony which the counselor later contradicted, the record does not contain substantial
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and competent evidence to support a finding that Doe was at the high school during those days. If
Doe was allegedly present at the high school between “Thanksgiving and Christmas 2019,” the
time period during which Doe could have been at the high school is further limited because the
evidence indicates that Doe left on December 11, 2019, to go to Mexico for two weeks, returning
“right before New Year’s Eve.” Again, the record lacks substantial and competent evidence to
support a finding that Doe was at the high school during the dates he was not in Mexico and the
high school would have been open: December 2-6, 2019, and December 9-10, 2019.
In addition to the very limited dates on which Doe could have been at the high school and
the counselor’s lack of specificity of the dates, the counselor’s testimony was inconsistent with his
written statement. The counselor acknowledged this discrepancy; admitted his memory had
declined; stated he was unable to recall exactly when Doe was allegedly present at the high school;
and when pressed on the dates, stated, “And, honestly, I don’t specifically remember. . . . And like
I said, it may have been between Thanksgiving and Christmas. All I know is that I remember
seeing [Doe] standing there in the hallway.”
Not only was the counselor unsure of the date Doe was alleged to have been at the high
school, but his identification of Doe was also unsupported by substantial evidence. As noted, the
counselor’s memory was compromised by age and recent illness. The counselor’s written
statement, which was completed in January 2020, less than two months after the event, did not
indicate that the counselor addressed Doe by name. Nonetheless, the counselor testified: “I
remember distinctly saying, ‘Hey, [Doe], how you doing?’” This testimony was further
undermined by his written statement, wherein he stated he attempted to confirm his identification
of Doe by showing the attendance secretary a photograph of Doe, but the attendance secretary did
not recognize Doe and could not confirm the counselor’s identification of Doe as someone who
had been at the school during either time frame.
In contrast, Doe’s probation officer testified that Doe consistently sought approval for
traveling to the Mini-Cassia area before going there, Doe successfully completed all the terms of
his probation, and she was surprised that Doe would travel to Minico High School without
permission in light of Doe’s previous behavior of seeking approval for such travel. Doe denied
going to Minico High School and twice passed a polygraph test on whether he complied with the
terms of his probation. Finally, Jorge’s testimony, corroborated by the electronic messages, is not
only consistent with the counselor’s testimony regarding the counselor’s failing memory (which
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explained why he did not address Jorge by name), but also corroborates Doe’s testimony and
theory--that it was Jorge, not Doe, who the counselor saw at the attendance office. In light of the
above, we cannot say there was substantial evidence to support either an explicit or implicit finding
that the counselor was either “absolutely certain” of his identification of Doe or more credible than
other witnesses. Consequently, the magistrate court’s conclusion that Doe violated his probation
is unsupported by the evidence and must be vacated.
Additionally, the magistrate court’s determination that Doe violated his probation appears
to be based, in part, on its memory of prior proceedings. Defense counsel argued in closing that it
was “baffling” that Doe, who had done very well on probation, would risk a probation violation
and incarceration by going to a high school where everyone knew who he was. The magistrate
court responded to this comment by relying on its memory of a pretrial circumstance where Doe
was alleged to have gone to a coffee shop and was visiting with two minors, “which amazed [the
court]. Everybody knew him, and he did the same thing.” This comparison is inconsistent with
legal standards because the court cannot base its decision on its memory of prior events in the
criminal proceeding, Matthews v. State, 122 Idaho 801, 808, 839 P.2d 1215, 1222 (1992) (district
court may not take judicial notice of prior reported but untranscribed testimony), and because there
was no evidence presented that Doe “did the same thing” both times. Additionally, in addressing
whether this was a case of mistaken identity, the court found, “I looked at [Doe and Jorge.] They
are similar, they’re not exact. And I think they can be told apart. They look different.” The district
court inappropriately relied on its own evaluation of the brothers’ personal appearances to resolve
the factual issue of Doe’s identification as the individual at Minico High School. The issue was
not whether the district court could distinguish Doe from Jorge, but rather, whether there was
substantial and competent evidence to support the counselor’s identification of Doe. With no
evidence to support the finding that Doe committed the first probation violation allegation, and
with insufficient evidence to support finding Doe committed the second allegation, the magistrate
court erred in finding Doe violated the terms of his probation.
Following its determination that Doe violated the terms of his probation, the magistrate
court held a disposition hearing. The State argues that because the district court was not provided
with a transcript of the probation violation disposition hearing, this Court cannot consider the
transcript of the disposition hearing on appeal despite its inclusion in the record. We disagree. On
intermediate appeal, this Court reviews the record to determine whether there is substantial and
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competent evidence to support the magistrate court’s findings of fact and whether the magistrate
court’s conclusions of law follow from those findings. Korn, 148 Idaho at 415, 224 P.3d at 482.
As such, we must review the disposition hearing to determine whether the magistrate court acted
within its discretion when revoking probation. That review properly includes a transcript of that
proceeding.
At the disposition hearing, a mother of one of the named victims testified.2 Following the
testimony and arguments, the State requested that Doe’s probation be revoked while Doe requested
that he be permitted to continue on probation. After Doe’s request to remain on probation, the
magistrate court did not address the various disposition options or even explicitly find that the
nature of the probation violations justified revoking probation. Instead, the magistrate court
executed the previously suspended sentence, explaining: “Thank you [Doe’s attorney]. The
number of days, if divided by 20 or 22 different young girls, is no[t] so much per girl, as [the
witness] pointed out.” The magistrate court continued: “The concern--one concern I have is not
just the protection of a community, but when you have 20 aggrieved--or 22, however many it
was--families who are violently offended by what this boy did to their relatives, it’s for his own
protection.”
The magistrate court erred in revoking probation because there was not substantial
evidence of a probation violation, there is nothing in the record indicating the magistrate court had
any other basis to revoke probation, and there is no indication that the decision to revoke probation
was reached by an exercise of reason. Consequently, the magistrate court erred in revoking Doe’s
probation and we need not further address whether the magistrate court erred in executing the
previously suspended sentence.
2
In part, the victim’s mother testified that she was at the disposition hearing “in the hopes
of protecting just one child from going through the traumatization that these 22 girls survived.”
There is nothing in the record indicating that Doe traumatized “22 girls,” as Doe was only charged
with criminal conduct involving four of the disclosed victims; instead, this information came from
an amended psychosexual evaluation that Doe participated in while in treatment. Doe argues that
this confidential information was inappropriately given to the witness and impacted the magistrate
court’s decision to execute the previously suspended sentence. Because we conclude that the
magistrate court erred in revoking probation, we need not address Doe’s arguments regarding the
execution of the previously suspended sentence.
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Because the magistrate court erred, the district court similarly erred in affirming the
magistrate court’s order. This Court reverses the district court’s order affirming the magistrate
court’s order revoking probation and executing Doe’s previously suspended sentence after finding
Doe violated probation, and remands the case for further proceedings consistent with this opinion.
IV.
CONCLUSION
The magistrate court’s finding that Doe violated probation is not supported by substantial
evidence. The magistrate court abused its discretion in revoking probation and executing the
previously suspended sentence. Accordingly, the district court’s order affirming the magistrate
court’s order revoking Doe’s probation and executing his previously suspended sentence is
reversed, and the case is remanded for further proceedings consistent with this decision.
Chief Judge LORELLO and Judge BRAILSFORD CONCUR.
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