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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38522

STATE OF IDAHO,

Plaintiff-Respondent,

v.

BENJAMIN R. HONE,

Defendant-Appellant.

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2012 Unpublished Opinion No. 533

Filed: June 25, 2012

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THIS IS AN UNPUBLISHED 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, Ada

County. Hon. Michael E. Wetherell, District Judge. 

Order revoking probation, affirmed. 

Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

MELANSON, Judge

Benjamin R. Hone appeals from the district court’s order revoking his probation. For the 

reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In 2005, Hone pled guilty to possession of a controlled substance, I.C. § 37-2732(c); petit 

theft by possession, I.C. §§ 18-2403(4) and -2407(2); grand theft, I.C. §§ 18-2403(1) 

and -2407(1)(b); and grand theft by possession of stolen property, I.C. §§ 18-2403(4) 

and -2407(1). Hone was sentenced to a unified term of six years, with a minimum period of 

confinement of two years, for possession of a controlled substance; a one year period of 

confinement for petit theft by possession; and unified terms of nine years, with minimum periods 

of confinement of four years, for the two grand theft counts. The district court ordered that the 

sentences run concurrently and retained jurisdiction. Following the period of retained 

jurisdiction, the district court suspended Hone’s sentences and placed him on probation. 
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The state filed a motion for probation violation alleging that Hone violated the conditions 

of his probation by committing domestic battery in the presence of children, using marijuana, 

and failing to obtain permission from his probation officer before leaving the state. The 

domestic battery charge was later amended to disturbing the peace. A no-contact order was 

entered in January 2010 in the domestic battery case and Hone was prohibited from having 

contact with the mother of their young daughter unless he met with the mother for exchange of 

the child and with the mother’s consent. The mother twice moved to terminate the no-contact 

order, but those motions were denied. At a hearing on the probation violation motion, Hone 

admitted to violating the conditions of his probation by committing the crime of disturbing the 

peace and using marijuana. However, the district court reinstated and extended Hone’s

probation with amended conditions. 

Thereafter, the state filed another motion for probation violation alleging that Hone 

violated the conditions of his probation by violating the no-contact order on June 3, failing to

reimburse Ada County for public defender fees, and committing the crime of unlawful 

overtaking and passing of a school bus. After a hearing, the district court found that Hone 

committed all three of the alleged probation violations and set the matter for a disposition 

hearing. Prior to the disposition hearing on those violations, the state filed another motion for 

probation violation alleging that Hone violated the no-contact order again on October 20, 

committed the crime of driving without privileges, failed to notify his probation officer of any 

and all contact with law enforcement personnel, and failed to actively seek employment or be 

enrolled as a full-time student. Hone admitted to violating the no-contact order on October 20 

and committing the crime of driving without privileges, and the state dismissed the remaining 

allegations. The district court revoked Hone’s probation and ordered that the underlying 

sentences be executed. The district court also reduced the fixed portion of Hone’s sentences for 

the two grand theft counts to three years pursuant to I.C.R. 35. Hone appeals.

II.

ANALYSIS

Hone argues that the district court erred by revoking his probation because the district 

court’s finding that he violated the no-contact order on June 3 as part of an intentional scheme to 

circumvent the provisions of the no-contact order was not supported by substantial evidence. In 

reviewing a probation revocation proceeding, we use a two-step analysis. State v. Knutsen, 138 
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Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003). First, we ask whether the defendant 

violated the terms of the probation. Id. If it is determined that the defendant has in fact violated 

the terms of his or her probation, the second question is what should be the consequences of that 

violation. Id. For the first step, a district court’s finding of a probation violation will be upheld 

on appeal if there is substantial evidence in the record to support the finding. State v. Lafferty, 

125 Idaho 378, 381, 870 P.2d 1337, 1340 (Ct. App. 1994). This first step involves a wholly 

retrospective factual question. Morrissey v. Brewer, 408 U.S. 471, 479 (1972). To comply with 

the principles of due process, “a court may revoke probation only upon evidence that the 

probationer has in fact violated the terms or conditions of probation.” Lafferty, 125 Idaho at 381, 

870 P.2d at 1340. In the event of conflicting evidence, we will defer to the district court’s 

determinations regarding the credibility of witnesses. Knutsen, 138 Idaho at 923, 71 P.3d at 

1070. After the court has determined that the defendant has violated his or her probation, it must 

then go to the second step and determine whether to revoke or continue probation. Lafferty, 125 

Idaho at 381, 870 P.2d at 1340. A district court’s decision to revoke probation will not be 

overturned on appeal absent a showing that the court abused its discretion. State v. Sanchez, 149 

Idaho 102, 105, 233 P.3d 33, 36 (2009); Lafferty, 125 Idaho at 381, 870 P.2d at 1340. 

At the hearing on the probation violation motion, the property manager of the apartment 

complex where the mother of Hone’s child lived testified that she knew and recognized Hone 

and that the mother and Hone applied for the apartment together in 2009. The manager further 

stated that, while the mother’s name was the only name on the lease, Hone was allowed to reside 

in the apartment as a permanent guest and was given a parking permit. The manager testified 

that, between January and June 2010, both Hone and the mother’s vehicles were frequently

parked at the apartment complex. The manager also testified that she served the mother with a 

notice of nonrenewal on May 17 to vacate on June 30 and that this led to a conversation with 

Hone wherein he expressed his displeasure with the notice and a second confrontation wherein 

Hone stated he was going to file a complaint. 

Hone’s probation officer testified that, during a telephone conversation with Hone on 

June 3, Hone told the probation officer that he was at the mother’s residence. The probation 

officer testified that he ended the phone call, drove to the mother’s apartment, and met with two 

other police officers there. The probation officer explained that, when Hone walked out of the 

mother’s apartment with their daughter, Hone indicated he was going to take the mother to work. 
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The probation officer explained that he arrested Hone for a probation violation and noted that he 

did not know of any exception to the no-contact order that allowed Hone to take the mother to 

work. The probation officer testified that Hone stated he was not living at the apartment with the 

mother between January 2010 and June 2010 and never requested to stay overnight there. The 

probation officer stated that, at a meeting with the property manager on June 3, the property 

manager told him that Hone had been living at the apartment for several months. 

The mother testified that Hone had moved out of the apartment in September 2009 and 

never lived there after that date. The mother stated that the only time Hone was in the apartment 

was to pick up their daughter, which frequently occurred because she was a full-time student, 

worked, and had no other babysitter. She testified that Hone was the child’s caretaker nearly 

every day while the mother was in school and that on June 3, 2010, Hone came to the apartment 

to pick up their daughter because the mother was going to work. The mother testified that she 

never heard Hone say to the police that he was taking her to work, but did hear him say he was 

there to pick up his daughter. The mother testified that she let the police search her apartment 

and they found no evidence that Hone was living there. On cross-examination, the mother stated 

that Hone never stayed the night with her after October 2009. Following the mother’s testimony, 

the state recalled Hone’s probation officer who testified that the mother had previously stated

that Hone was at her apartment on June 3, 2010, to take her to work.

The district court found that the evidence established Hone violated the no-contact order

on June 3. The district court explained that the manager’s testimony established that Hone’s 

vehicle was frequently present at the apartment where the mother resided after the no-contact 

order was entered. The district court also found that, despite the conflicting evidence, the most 

credible evidence was that Hone stated on June 3 that he was there to give the mother a ride to 

work. The district court concluded:

It stretches credulity beyond the breaking point to believe that this 

behavior, viewed over months by the apartment manager was not an intentional 

scheme to circumvent the provisions of the No Contact Order and the Court finds 

that a willful violation of the No Contact Order, which is in turn a willful 

violation of [Hone’s probation] has occurred and has been proved by the 

substantial evidence standard. 

We first reiterate that, in the event of conflicting evidence, we will defer to the district 

court’s determinations regarding the credibility of witnesses. See Knutsen, 138 Idaho at 923, 71 
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P.3d at 1070. Here, the district court determined that, despite the conflicting evidence, the

testimony indicating that Hone was at the mother’s apartment on June 3 to take her to work was 

the most credible. Additionally, given the testimony of the apartment manager regarding the 

frequent presence of Hone’s vehicle at the mother’s apartment after the no-contact order was

entered, we conclude that the district court’s finding that Hone violated the terms of his 

probation on June 3 by willfully violating the no-contact order was supported by substantial 

evidence. Hone admits as much. He asserts, however, that the district court’s finding that the 

violation was part of an intentional scheme to circumvent the provisions of the order was not 

supported by the evidence. He argues that this finding was the basis for revocation of his 

probation and because it was not supported by substantial evidence the order revoking his 

probation should be reversed. 

We need not decide whether there was insufficient evidence to support the district court’s 

finding. 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. State v. Upton, 127 

Idaho 274, 276, 899 P.2d 984, 986 (Ct. App. 1995). Therefore, if the district court erred in 

finding one probation violation but correctly found one or more other violations, remand is not 

necessary if it is clear from the record that the district court would have revoked probation based 

solely upon the other violations. Id. 

As described above, after the no-contact order was entered, at a hearing on the state’s 

first motion for probation violation, Hone admitted to violating the conditions of his probation by 

committing the crime of disturbing the peace and using marijuana. However, the district court 

reinstated and extended Hone’s probation with amended conditions. One such condition was as 

follows:

Defendant has had prior opportunities for probation and a rider. The 

Defendant is advised that this is his/her final opportunity at probation. Failure to 

abide by the conditions of probation resulting in a motion for probation violation, 

will, if proven or admitted, be considered a violation of a fundamental condition 

of probation which will result in imposition of the underlying sentence.

Thereafter, the state filed another motion for probation violation alleging that Hone violated the 

conditions of his probation by violating the no-contact order on June 3, failing to reimburse Ada 

County for public defender fees, and committing the crime of unlawful overtaking and passing of 

a school bus. After a hearing, the district court found that Hone committed all three of the 
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alleged probation violations and set the matter for a disposition hearing. Hone does not 

challenge the district court’s finding that he violated his probation by failing to reimburse Ada 

County or committing the crime of unlawful overtaking and passing of a school bus. Further, 

prior to the disposition hearing on those violations, the state filed another motion for probation 

violation and Hone admitted to violating the conditions of his probation by violating the 

no-contact order on October 20 and committing the crime of driving without privileges. 

In revoking Hone’s probation, the district court cited the amended probation condition 

described above and noted that such condition specifically advised Hone in unambiguous 

language that he was being given a final opportunity at probation and that other violations would 

result in imposition of the underlying sentences. Therefore, it is clear from the record that the 

district court would have revoked Hone’s probation based solely upon the other violations that 

the district court found and the violations that Hone admitted to. Accordingly, even if we were 

to determine there was insufficient evidence to support the district court’s finding that Hone 

violated the terms of his probation on June 3 as part of an intentional scheme to circumvent the 

provisions of the no contact order, remand is not necessary. 

III.

CONCLUSION

The district court’s finding that Hone willfully violated the terms of his probation on 

June 3 was supported by substantial evidence. Even assuming, without deciding, there was 

insufficient evidence to support the district court’s finding that the violation was part of an 

intentional scheme to circumvent the no-contact order, remand is not necessary because it is 

clear from the record that the district court would have revoked Hone’s probation based solely 

upon the other violations that the district court found and the violations that Hone admitted to. 

Thus, we conclude there was no abuse of discretion in the district court’s revocation of probation 

and the order is affirmed. 

Chief Judge GRATTON and Judge LANSING, CONCUR.