State v. Poston

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48742
STATE OF IDAHO, )
) Filed: September 30, 2022
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
WILLIAM PAUL POSTON, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Patrick J. Miller, District Judge.
Order revoking withheld judgment and reinstating probation, affirmed.
Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LORELLO, Chief Judge
William Paul Poston appeals from the order revoking his withheld judgment and reinstating
his probation. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
After Poston pled guilty to felony injury to child, the district court withheld judgment and
placed him on probation for seven years. Three years later, the State moved for a bench warrant
and order revoking Poston’s probation, alleging he violated his probation by frequenting an
“establishment where alcohol is the main source of income” and by failing to pay court fees,
supervision costs, and restitution.
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During the evidentiary hearing on the State’s motion, Poston’s probation officer testified
that Poston admitted frequenting a bar in downtown Boise two years prior. Although the probation
officer testified that the primary source of income for the bar was the sale of alcohol, she indicated
on cross-examination that she had not visited the bar in more than a decade. The probation officer
and a restitution coordinator with the prosecutor’s office further testified that Poston had not made
payments toward his outstanding restitution or court fees obligations for more than a year. At the
conclusion of the evidentiary hearing, Poston argued (among other things) that the State failed to
prove the frequenting allegation because there was “no credible testimony that the [bar] is any sort
of establishment where [the] main source of income is alcohol.” After taking judicial notice of the
fact that alcohol is the main source of income for the bar, the district court found that Poston
willfully violated his probation by frequenting an establishment where alcohol is the main source
of income and by failing to pay court fees, supervision costs, and restitution. The district court
then revoked Poston’s withheld judgment, sentenced him to a unified, aggregate term of seven
years (with a minimum period of confinement of two years), suspended the sentence, and placed
him back on probation for seven years. Poston appeals.
II.
STANDARD OF REVIEW
Decisions admitting evidence in probation revocation proceedings are reviewed for an
abuse of discretion. State v. Rose, 144 Idaho 762, 765, 171 P.3d 253, 256 (2007). The decision to
take judicial notice of an adjudicative fact is also reviewed for an abuse of discretion. Rome v.
State, 164 Idaho 407, 413, 431 P.3d 242, 248 (2018). When a trial court’s discretionary decision
is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
trial 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).
III.
ANALYSIS
Poston argues the district court erred by taking judicial notice of the fact that the main
source of income of the bar he frequented is alcohol, arguing that relying upon a judicially noticed
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fact to revoke his probation violated both due process and I.R.E. 201. The State responds that
Poston’s constitutional challenge is not preserved and his evidentiary challenge fails to establish
reversible error. We hold that Poston’s due process argument is not preserved for appeal and that
any error in the decision to take judicial notice was harmless.
A. Due Process
Probation revocation proceedings need not provide the full panoply of procedural
safeguards afforded in criminal prosecutions. See Rose, 144 Idaho at 765, 171 P.3d at 256. Thus,
probationers do not have a right to confront adverse witnesses under the Sixth Amendment in
revocation proceedings. Id. at 766, 171 P.3d at 257. However, probationers do have a protected
liberty interest in continued release on probation. State v. Blake, 133 Idaho 237, 243, 985 P.2d
117, 123 (1999). Consequently, probation revocation proceedings must satisfy the requirements
of due process by, among other things, providing probationers with the “right to confront and
cross-examine adverse witnesses,” unless the trial court “specifically finds good cause for not
allowing confrontation.” Morrissey v. Brewer, 408 U.S. 471, 489 (1972); see also State v.
Chapman, 111 Idaho 149, 151, 721 P.2d 1248, 1250 (1986).
On appeal, Poston contends that judicially noticing the fact that alcohol is the main source
of income of the bar he frequented violated due process by improperly depriving him of the
opportunity to confront adverse witnesses without good cause. Poston does not develop this
argument, however, by identifying a particular witness who he was not permitted to confront and
cross-examine. Thus, Poston’s ostensible, unstated argument seems to be that judicially noticing
that alcohol is the primary source of income for the bar he frequented deprived him of the
opportunity to confront a hypothetical witness who would have testified to the main source of
income for the bar. Even if this argument alleges a legitimate violation of the due process right to
confrontation,1 issues not raised below generally may not be considered for the first time on appeal.
1
Generally, a violation of the right to confrontation involves the admission into evidence of
a testimonial hearsay statement by a declarant who is unavailable to testify and was not subject to
prior cross-examination. See State v. Stanfield, 158 Idaho 327, 332, 347 P.3d 175, 180 (2015)
(discussing the right to confrontation under the Sixth Amendment); see also Rose, 144 Idaho at
768, 171 P.3d at 259 (observing that cases interpreting the Sixth Amendment Confrontation Clause
define what confrontation is in the probation revocation context).
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See State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). To properly preserve an issue
for appeal, a party must present both the issue and the party’s position on the issue to the district
court. State v. Wilson, 169 Idaho 342, 347, 495 P.3d 1030, 1035 (2021). Although a party may
present refined legal arguments on an issue considered and decided by the court below, we cannot
decide new legal issues in the first instance. State v. Temple, 170 Idaho 148, 153, 508 P.3d 1222,
1227 (2022).
Poston acknowledges that he “did not specifically cite [his] due process right to confront
witnesses” during the probation revocation proceedings before the district court. Nevertheless,
Poston contends that “such an objection is encompassed in the broad objection” his counsel lodged
in the evidentiary hearing, asserting that the State had to prove he violated his probation “by a
preponderance of the evidence through evidence.” According to Poston, this broad assertion
preserved the due process argument he raises on appeal because the purpose of an evidentiary
hearing is “to contest the State’s evidence, and the way to contest the State’s evidence is to confront
it.” However, Poston does not cite to a portion of the record indicating that the district court
perceived the challenge to the sufficiency of the evidence submitted during the evidentiary hearing
as also presenting a due process challenge based on the reasoning he advances on appeal. To the
contrary, the record shows that the district court focused on whether judicially noticing the main
source of income for the bar would comply with I.R.E. 201--without considering possible
confrontation issues. Poston failed to cite his constitutional right to due process as a basis for
objecting to the district court taking judicial notice that alcohol is the main source of income of
the bar Poston frequented. The lack of objection on this ground deprived the district court of the
opportunity to consider the issue and rule accordingly. Defendants cannot slumber on a defense,
take no exception to an adverse ruling, and then attempt to present the defense for the first time on
appeal. State v. Garcia-Rodriguez, 162 Idaho 271, 276, 396 P.3d 700, 705 (2017). Consequently,
we will not consider the merits of Poston’s argument that his due process right to confrontation
was violated.
B. Judicial Notice
Poston argues that the district court erred by taking judicial notice of the fact that the main
source of income of the bar he frequented is alcohol because that fact “is not the type of information
the district court can take judicial notice of under [I.R.E.] 201.” Courts may not revoke probation
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absent a finding the probationer violated the terms of probation. Rose, 144 Idaho at 765, 171 P.3d
at 256. The State bears the burden of proving such a violation by a preponderance of evidence.
See State v. Ross, 170 Idaho 58, 64, 507 P.3d 545, 551 (2022) (holding that the trial court did not
err in finding by a preponderance of the evidence that a probationer violated his probation by
committing petit theft). If the State satisfies its burden, the trial court has the discretionary
authority to revoke probation. Rose, 144 Idaho at 765, 171 P.3d at 256.
As previously stated, probation revocation proceedings must satisfy the requirements of
due process, but need not provide all the procedural safeguards afforded in criminal prosecutions
because probationers have already been convicted of a crime. See id. Due process is a flexible
standard and, in the probation context, permits consideration of evidence potentially inadmissible
in a criminal trial. See id. Accordingly, with the exception of rules governing privilege, the Idaho
Rules of Evidence do not apply during probation revocation proceedings. I.R.E. 101(e)(3).
Consequently, even if finding alcohol was the main source of income for the bar Poston frequented
is not the type of information noticeable under I.R.E. 201, it does not necessarily follow that the
district court erred.
Nevertheless, even though evidentiary restrictions are relaxed in probation revocation
proceedings, they are not altogether absent. A decision to revoke probation must be based upon
“verified facts” and an “accurate knowledge” of the probationer’s behavior. See Morrissey, 408
U.S. at 484 (discussing the informal hearing structure of state parole hearings); State v. Rogers,
144 Idaho 738, 742, 170 P.3d 881, 885 (2007) (observing that the United States Supreme Court
has held that, when revoking probation, the State must provide the same process as in the
revocation of parole). Although procedural rules are subordinate to the dictates of due process,
see State, Bureau of Child Support Servs. v. Garcia, 132 Idaho 505, 511, 975 P.2d 793, 799 (Ct.
App. 1999), compliance with Idaho’s court rules generally will provide litigants with due process.
Thus, despite being largely inapplicable in the probation revocation context, the Idaho Rules of
Evidence still provide helpful guidelines to ensure a trial court’s findings in revocation hearings
are based upon verified facts and accurate knowledge, the touchstones of due process in the
probation context. See United States v. Bari, 599 F.3d 176, 179 (2nd Cir. 2010) (applying
F.R.E. 201 “in some relaxed form” to review a trial court’s performance of an internet search “to
confirm its intuition that there are many types of yellow rain hats for sale”); cf. Marshall v. Bramer,
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828 F.2d 355, 358 (6th Cir. 1987) (applying F.R.E. 201 as a guideline in affirming a trial court
taking judicial notice when ruling on a pretrial discovery motion).
However, we need not determine whether the district court’s decision to take judicial notice
of the fact that alcohol is the bar’s main source of income was erroneous if any error in the decision
was harmless. When a discretionary ruling has been tainted by legal or factual error, we ordinarily
vacate the decision and remand the matter for a new, error-free discretionary determination by the
trial court. See State v. Morgan, 109 Idaho 1040, 1043, 712 P.2d 741, 744 (Ct. App. 1985).
However, a remand may be avoided where it is apparent from the record that the result would not
change or that a different result would represent an abuse of discretion. McDonald v. State, 124
Idaho 103, 107, 856 P.2d 893, 897 (Ct. App. 1992); Dyer v. State, 115 Idaho 773, 776, 769 P.2d
1145, 1148 (Ct. App. 1989).
In addition to the allegedly erroneous frequenting violation, the district court found that
Poston violated his probation by failing to pay court fees, supervision costs, and restitution. Poston
does not challenge these additional violations. Accordingly, the issue we must address is whether
the district court would have revoked Poston’s probation based upon these unchallenged
violations.
The record does not show, nor does Poston argue on appeal, that either the number of
violations or the frequenting violation in particular played a significant role in the district court’s
decision to revoke his probation. To the contrary, the district court noted during the disposition
hearing that the principal consideration in determining whether to revoke Poston’s probation was
protection of the public and his original victim--his son. On this point, the district court was
particularly concerned with Poston’s mental health. Poston had been diagnosed with antisocial
personality disorder--a disorder the district court indicated was not treatable with medication and
would require life-long management. In relation to Poston’s rehabilitative prospects, the district
court further noted its concern that, despite some progress, Poston “can be manipulative” and “try
different avenues” to get what he wants. When discussing Poston’s probation violations, the
district court noted that they did not “directly relate to any violent conduct” or “conduct that’s
independently illegal.” However, the violations were troubling as the purpose of probation
conditions is to ensure probationers are “appropriately monitored and not doing things that might
get them in trouble or in danger.” Notably, of the violations the State alleged Poston committed,
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only his failure to pay court fees, supervision costs, and restitution were ongoing when the
revocation proceeding occurred. In contrast, Poston’s alleged frequenting of the bar occurred
nearly two years prior to the motion to revoke his probation and apparently had not reoccurred.
At the time of the disposition hearing, however, Poston was behind in his payments toward his
court fees, supervision costs, and restitution.
The district court summarized its reasoning for revoking Poston’s probation as follows:
So taking into account my goal--first goal of protecting the public and my
continued worry that Mr. Poston really does want to have a relationship with his
kids, I think he wants to be doing it an appropriate way, I continue to worry about
his ability to do so given--given his ongoing mental health. And I do agree with
[the State’s attorney] that mental health is a life-long condition that you will have
to deal with the rest of your life, and in that regard, you’re not different than a lot
of people. A lot of people have mental health conditions that just require life-long
maintenance and attention. And I think that’s you from the record presented.
So to try to balance all those interests, in the exercise of this Court’s
discretion I am going to revoke your probation and revoke the withheld judgment
in this case. I’m going to impose a sentence of two years fixed and five years
indeterminate for a unified sentence of seven years and place you on probation for
seven years.
Conspicuously absent from this summary is a reference to Poston’s alleged frequenting of the bar
while on probation. Accordingly, the above discussion shows that the district court based its
probation revocation and sentencing decisions upon concerns over Poston’s mental health, not the
allegedly erroneous frequenting violation. As a result, we conclude that any error in the district
court’s decision to take judicial notice of the main source of income of the bar was harmless. Thus,
it is unnecessary to address the parties’ arguments regarding whether the decision to judicially
notice that fact was error.
IV.
CONCLUSION
Poston’s constitutional due process claim is not preserved; therefore, we decline to consider
it. Poston has failed to show reversible error in the district court’s decision to take judicial notice
of the fact that alcohol is the main source of income of the bar he admitted he frequented.
Accordingly, the order revoking Poston’s withheld judgment and reinstating his probation is
affirmed.
Judge HUSKEY and Judge BRAILSFORD, CONCUR.
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