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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 38541/38590/38600

STATE OF IDAHO,

Plaintiff-Respondent,

v.

JUSTIN RYAN MOSS,

Defendant-Appellant.

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2012 Unpublished Opinion No. 778

Filed: December 31, 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THIS IS AN UNPUBLISHED 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. Richard D. Greenwood, District Judge; Hon. Michael E. Wetherell, 

District Judge. 

Orders revoking probation and executing suspended sentences, affirmed. 

Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Justin Ryan Moss appeals from three orders that revoked his probation in three separate 

cases, consolidated for appeal. In each case, Moss argues the Idaho Supreme Court denied him 

due process and equal protection when it denied his motion to augment the record with 

transcripts from various hearings. Moss additionally argues that in each case, the district courts 

respectively abused their discretion in revoking his probation. Finally, Moss argues that, in just 

one of the cases, the district court abused its discretion when it denied his motion for a reduction 

in sentence. For the reasons set forth below, we affirm.
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I.

FACTS AND PROCEDURE

This appeal involves three underlying criminal cases and convictions for issuing checks 

without funds, grand theft, and forgery.1 In 2006, Moss pled guilty to issuing checks without 

funds. The district court withheld judgment and placed Moss on probation. In 2008, Moss 

fraudulently obtained an individual’s financial transaction card information and used it to make 

purchases. The State charged Moss with grand theft and alleged probation violations in the case 

relating to issuing checks without funds based on the new criminal conduct. Pursuant to a 

motion by the State, the cases were consolidated for purposes of entering a plea and sentencing. 

Moss pled guilty to grand theft and admitted the probation violations. The district court entered 

a judgment of conviction for grand theft and imposed a unified sentence of ten years, with five 

years determinate, but suspended the sentence and placed Moss on probation. After finding 

Moss had violated his probation, the district court revoked the withheld judgment in the issuing 

checks without funds case; imposed a unified sentence of three years, with eighteen months 

determinate; but suspended the sentence and continued probation. The court ordered the 

sentences in both cases to run concurrently. 

In 2009, Moss forged a relative’s signature on various student loan application 

documents after the relative had declined to co-sign on the loans. After Moss received the loan 

checks made out to both him and the co-signer, Moss again forged the signature of his relative in 

order to cash the checks. The State charged Moss with five counts of forgery and also filed 

allegations of probation violations in the prior two cases. Moss pled guilty to two counts of 

forgery. The State moved to dismiss the remaining counts and also dismissed a separate case 

charging Moss with four counts of again issuing checks without sufficient funds. Moss also 

admitted to violating his probation in the two prior cases. Upon entering a judgment of 

conviction to two counts of forgery, the district court imposed two concurrent, unified sentences 

of ten years, with five years determinate, but retained jurisdiction. As to the probation violations

in the prior two cases, the district court executed the suspended sentences, but retained 

 

1 The issuing checks without funds and grand theft cases were tried before the same district 

court, whereas the forgery case proceeded before a different court within the same district. The 

cases were not consolidated until the appeal; therefore, references to the “district court,” in 

relation to the respective probation revocations, refer to the district court before which the case 

was originally tried. 
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jurisdiction in those two cases as well. The district court ordered the sentences to run 

concurrently with the sentences imposed for the forgery convictions. Moss successfully 

completed his period of retained jurisdiction as to all the cases and the court placed Moss on 

probation. 

In June 2010, the State filed allegations of probation violations in each of the three cases, 

all of which were based on the fact Moss moved to California very shortly after he was placed on 

probation. By moving, Moss committed the following probation violations: he changed

residences without permission; he left his assigned district without permission; he failed to report 

to his probation officer as instructed; and he absconded from supervision. The district court held 

a probation violation evidentiary hearing in the forgery case and found violations on all four 

allegations. At the disposition hearing, Moss made an oral request for a reduction of his 

suspended sentences if probation was to be revoked. The district court revoked probation and 

executed the suspended sentences without reduction. Moss later filed a motion for a reduction of 

his sentences pursuant to Idaho Criminal Rule 35; however, no order regarding the court’s 

disposition of that motion appears in the record. 

In light of the finding of probation violations in the forgery case, the district court found 

Moss was collaterally estopped from challenging the probation violations in the other two cases, 

based on the same conduct, under the authority in State v. Dempsey, 146 Idaho 327, 193 P.3d 

874 (Ct. App. 2008). Thereafter, the district court revoked Moss’s probation in those cases and 

executed the suspended sentences, consistent with a request by Moss that it do so. The probation 

revocations, issued in three separate orders, were timely appealed and consolidated for 

disposition in this Court. 

Pending appeal and before assignment to this Court, Moss filed a motion to augment the 

record and suspend the briefing schedule, requesting that the record on appeal be augmented 

with various transcripts. The State objected to augmenting the record, and the Idaho Supreme 

Court entered an order denying Moss’s motion. Upon assignment to this Court, Moss presents

three issues: (1) whether the Idaho Supreme Court denied him due process and equal protection 

when it denied his motion to augment the record; (2) whether the district courts abused their

discretion when they revoked Moss’s probation in all three cases; and (3) whether the district 

court abused its discretion when it failed to reduce Moss’s unified sentences of ten years, with 

five years determinate, for the two counts of forgery after revoking probation. 
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II.

DISCUSSION

A. Denial of the Motion to Augment the Record

Moss first argues the Idaho Supreme Court violated his rights to due process and equal 

protection and his right to effective assistance of counsel by denying his motion to augment the 

record with various transcripts from each of the three cases consolidated on appeal, including the 

transcripts of a plea hearing, a sentencing hearing, the first probation violation admission 

hearing, and the first probation violation disposition hearing. We recently addressed a nearly 

identical argument in State v. Morgan, ___ Idaho ___, ___, 288 P.3d 835, 837 (Ct. App. 2012) 

where we said:

We begin by disclaiming any authority to review and, in effect, reverse an 

Idaho Supreme Court decision on a motion made prior to assignment of the case 

to this Court on the ground that the Supreme Court decision was contrary to the 

state or federal constitutions or other law. Such an undertaking would be 

tantamount to the Court of Appeals entertaining an “appeal” from an Idaho 

Supreme Court decision and is plainly beyond the purview of this Court. 

Nevertheless, if a motion is, in effect, renewed by the movant, and new 

information or a new or expanded basis for the motion is presented to this Court 

that was not presented to the Supreme Court, we deem it within the authority of 

this Court to evaluate and rule on the renewed motion in the exercise of our 

responsibility to address all aspects of an appeal from the point of its assignment 

to this Court. Such may occur, for example, if the completed appellant’s and/or 

respondent’s briefs have refined, clarified, or expanded issues on appeal in such a 

way as to demonstrate the need for additional records or transcripts, or where new 

evidence is presented to support a renewed motion. 

This is not such a circumstance, as Moss has not filed a renewed motion with this Court, 

nor has he presented to this Court any significant new facts or new justification in his briefs 

beyond that already advanced in his motion to the Supreme Court. In his motion, Moss

requested the transcripts be augmented to the record because they “are necessary to address 

issues to be raised on appeal” and relevant “not only to the potential merits of the issues but also 

to create a complete record on appeal.” In asking this Court to review the Supreme Court’s 

denial of his motion, Moss asserts the same general arguments, but also more specifically asserts 

the denial of his motion violates his constitutional due process and equal protection rights. Thus, 

Moss does not assert new issues in asking us to review this issue, but asks that we find that by 

denying his request, the Idaho Supreme Court violated his constitutional rights. As this is clearly 

beyond the authority of this Court, we will not address the issue further. 
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B. Orders Revoking Probation

Preliminarily, the State argues Moss is precluded, by the doctrine of invited error, from 

challenging the revocation of his probation in the issuing checks without funds case and the 

grand theft case because Moss stipulated to the execution of the suspended sentences. The 

doctrine of invited error is the principle that a party is estopped from asserting an error when his 

or her own conduct induces the commission of the error. State v. Norton, 151 Idaho 176, 187, 

254 P.3d 77, 88 (Ct. App. 2011). Its purpose is to prevent a party who prompted a particular 

action before the trial court to later challenge that action on appeal. State v. Blake, 133 Idaho 

237, 240, 985 P.2d 117, 120 (1999). “One may not complain of errors one has consented to or 

acquiesced in.” Norton, 151 Idaho at 187, 254 P.3d at 88. The invited error doctrine applies to 

sentencing decisions. State v. Leyva, 117 Idaho 462, 465, 788 P.2d 863, 866 (Ct. App. 1990). 

The probation violations alleged in the forgery case were identical to those alleged by the 

State in the issuing checks without funds case and the grand theft case. Moss had a full and fair 

opportunity to an evidentiary hearing on the probation violations in regards to the forgery case, 

the issue was decided on its merits, and the decision was contained in the final, appealable order 

that revoked Moss’s probation. The district court took argument as to whether Moss was entitled 

to another evidentiary hearing in regards to the other cases and determined that, under Dempsey, 

Moss was not entitled to another evidentiary hearing, and was collaterally estopped from 

challenging the probation violations in the two cases. Upon that decision, Moss stipulated to the 

execution of his suspended sentences in both cases. We agree with the State that the doctrine of 

invited error estops Moss from challenging the district court’s orders revoking his probation and 

requiring execution of his suspended sentences in the issuing checks without funds case and the 

grand theft case on appeal. 

As to the forgery case, although conceding he violated the terms of his probation, Moss

argues the district court abused its discretion when it revoked his probation. Idaho Code 

§ 20-222 authorizes the revocation of probation at any time if the probationer violates any 

condition of the probation. Hence, once a violation has been found, the district court must 

determine whether it is of such seriousness as to warrant revoking probation. State v. Chavez, 

134 Idaho 308, 312, 1 P.3d 809, 813 (Ct. App. 2000). Probation may not be revoked arbitrarily. 

State v. Adams, 115 Idaho 1053, 1055, 772 P.2d 260, 262 (Ct. App. 1989). In making this 

discretionary decision, the trial court must examine whether probation is achieving the goal of 
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rehabilitation and whether continuation of the probation is consistent with the protection of 

society. State v. Leach, 135 Idaho 525, 529, 20 P.3d 709, 713 (Ct. App. 2001); Chavez, 134 

Idaho at 312, 1 P.3d at 813; State v. Jones, 123 Idaho 315, 318, 847 P.2d 1176, 1179 (Ct. App. 

1993); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988). If a knowing and 

intentional probation violation has been proved, a district court’s decision to revoke probation 

will be reviewed for an abuse of discretion. I.C. § 20-222; Leach, 135 Idaho at 529, 20 P.3d at 

713; State v. Corder, 115 Idaho 1137, 1138, 772 P.2d 1231, 1232 (Ct. App. 1989). In 

determining whether such an abuse occurred, the appellate inquiry centers on whether the 

sentencing court acted within the boundaries of its discretion, consistent with any legal standards 

applicable to its specific choices, and whether the court reached its decision by an exercise of 

reason. State v. Lafferty, 125 Idaho 378, 381, 870 P.2d 1337, 1340 (Ct. App. 1994). 

Moss argues that in light of mitigating factors, the district court abused its discretion in 

revoking Moss’s probation. Specifically, Moss points to the fact he was found to have violated 

his probation only because he absconded to California and there were no allegations that any 

new crimes had been committed. Moss contends that because the State did not allege Moss 

committed any new crimes, Moss’s probation was not threatening to society. He further argues 

there were other mitigating factors such as the fact Moss was diagnosed with bipolar disorder 

and that his mental illness contributed to why he committed the underlying offenses. The State 

responds that Moss’s arguments ignore the fact Moss had numerous opportunities for probation

and, on each, he failed to comply with the terms either by committing additional crimes or 

violating other terms of probation. Additionally, the State argues the lack of a commission of a 

new crime does not, in and of itself, mean that Moss’s probation was not threatening to society. 

Moss has repeatedly shown he is unwilling or incapable of complying with the terms of 

probation. Moss committed his first offense, issuing checks without funds, which is included in 

this appeal, in 2006. While on probation for that offense, Moss committed a second offense and 

pled guilty to grand theft. Nonetheless, the district court suspended the imposed sentence for the 

grand theft conviction and placed Moss on probation; additionally, the district court continued 

probation in the first case despite the fact Moss violated his probation by incurring new criminal 

charges. During the probationary period for both of those offenses, Moss again committed new

crimes. The State charged Moss with roughly nine counts in two separate criminal cases, but

pursuant to a plea agreement, dismissed one case entirely and dismissed several charges in the 
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case to which Moss pled guilty to two counts of forgery. The district courts imposed two 

concurrent sentences for the forgery convictions, and on the probation violations in the other two 

cases, executed the suspended sentences. However, the district courts retained jurisdiction in all 

three cases, and at the completion of the retained jurisdiction period, again gave Moss the 

opportunity to successfully complete probation. At that juncture, Moss was fairly warned that 

was his last opportunity to comply with probationary terms and that further probation violations 

would result in the execution of his suspended sentences in each of the cases. Yet, within days of 

attending the probation orientation meeting, Moss left Idaho and moved to California. 

At the probation revocation evidentiary hearing in the forgery case, both Moss’s 

probation officer and Moss testified. The probation officer stated he never met Moss, until the 

day of the evidentiary hearing, because Moss never checked in with the probation officer. The 

probation officer had left several messages for Moss that went unreturned, though Moss did 

return one call and left a message stating that he did not understand why the Idaho probation 

office was trying to talk to him because he had transferred his probation to California. The 

probation officer also attempted to contact Moss at the residence Moss listed on the probation 

packet only to discover the Idaho address did not exist. It was not until the probation officer 

relayed via voicemail that he was going to file allegations of probation violations that Moss 

actually spoke to the probation officer. During that phone conversation, Moss claimed to have 

received permission to go to California in the form of a travel permit from a duty officer at 

probation services. Moss was told to fax a copy of the travel permit the following day; the 

probation officer never received a copy. The probation officer also checked the interstate 

compact records and searched for travel permit records and found none relating to Moss in 

regards to the most recent probationary period. The probation officer again spoke with 

Moss--who claimed to have sent a copy of the travel permit--and ordered Moss to return to Idaho 

within one week. Moss did not do so. The probation officer checked on the address Moss 

provided him as to Moss’s residence in California and found that it, too, was incorrect. The 

probation officer had no further contact with Moss until he was arrested and extradited to Idaho 

nearly seven months later. When Moss testified, he claimed to have received verbal permission 

to go to California. He claimed he attempted to contact the probation officer numerous times but 

that the probation officer failed to return his calls. He also admitted that he did not have an 

assigned probation officer in California, though he supposedly transferred probation supervision
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to California; did not contact the probation officer in Idaho for a period of nearly six months 

after they spoke on the phone; and went unsupervised for that period of time until his arrest and 

extradition to Idaho. 

The district court made specific findings that Moss’s testimony was not credible. The 

district court determined that, based on Moss’s familiarity with probation terms and 

requirements, it was not credible that Moss thought he could receive verbal permission to move 

to California and that he could remain unsupervised for a prolonged period of time. Based on the 

facts and testimony presented, the district court concluded each of the probation violations was

willful. At the probation violation disposition hearing, defense counsel argued Moss’s mental 

health was a mitigating factor. He asserted that without medication for the bipolar disorder, 

Moss was likely to reoffend and that after probation began, Moss did not have the money to 

purchase the necessary medication. Although defense counsel argued Moss could have 

succeeded on probation if properly medicated, defense counsel did not ask that the court not 

revoke probation. Rather, defense counsel asked for another period of retained jurisdiction or a 

reduced determinate portion of the sentence. After listening to argument, the district court made 

clear that Moss had been given numerous opportunities to comply. The district court pointed out 

that Moss, before even meeting the probation officer, took it upon himself to move to California

whether or not he was continuing to take medications for his mental health condition and that 

Moss was not, under the circumstances, an appropriate candidate for probation. 

Additionally, the argument that Moss’s recent probation violations were not as serious as 

the underlying crimes and did not involve the commission of new offenses is unavailing. 

According to the language in Idaho Code § 20-222, it is clear that a probation revocation does 

not have to be based on the commission of a new crime. Though the district court did not 

specifically speak of whether Moss’s probation was achieving the goal of rehabilitation and 

whether continuation of the probation was consistent with the protection of society, the record 

demonstrates that Moss had no period of successful probationary time after serving the period of 

retained jurisdiction--Moss’s third opportunity at probation as opposed to incarceration--and that 

without medication, Moss was likely to reoffend unless in a controlled environment. The district 

court did not abuse its discretion in revoking Moss’s probation based on the foregoing facts and 

findings. 
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C. Failure to Reduce the Sentences after Revoking Probation

The court may, after a probation violation has been established, order that the suspended 

sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 

to reduce the sentence. State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct. App. 1992). 

Whether to reduce a sentence is committed to the discretion of the trial court. State v. McCarthy, 

145 Idaho 397, 400, 179 P.3d 360, 363 (Ct. App. 2008). Under our abuse of discretion review, a 

court’s decision not to reduce a sentence after revoking probation is subject to the 

well-established standards governing whether a sentence is excessive. State v. Hanington, 148 

Idaho 26, 27, 218 P.3d 5, 7 (Ct. App. 2009); State v. Marks, 116 Idaho 976, 978, 783 P.2d 315, 

317 (Ct. App. 1989). Where a sentence is not illegal, the appellant has the burden to show that it 

is unreasonably harsh in light of the primary objective of protecting society and the related goals 

of deterrence, rehabilitation, and retribution. State v. Hoskins, 131 Idaho 670, 672, 962 P.2d 

1054, 1056 (Ct. App. 1998). In such appeals, an appellate court will not consider whether the 

sentence was excessive when originally pronounced in the judgment of conviction; our review is 

limited to whether the sentence was excessive in light of the circumstances existing when the 

court revoked probation. State v. Jensen, 138 Idaho 941, 944, 71 P.3d 1088, 1091 (Ct. App. 

2003); State v. Coffin, 122 Idaho 392, 393-94, 834 P.2d 909, 910-11 (Ct. App. 1992). When 

reviewing the reasonableness of a sentence on an appeal from a probation revocation order, we 

do not base our review only upon events that occurred after the original pronouncement of 

sentence, but will examine the entire record, encompassing events before and after the original 

judgment, including, but not limited to, events that occurred during the probationary period. 

Chavez, 134 Idaho at 314, 1 P.3d at 815; Coffin, 122 Idaho at 394, 834 P.3d at 911. 

Moss orally requested a reduction of his sentences at the probation violation disposition 

hearing in the forgery case and also filed a motion pursuant to Idaho Criminal Rule 35 for 

reduction of his sentences after his suspended sentences were executed. Though Moss states he 

is appealing the denial of either his oral request for a reduction of his sentences or his 

subsequently filed Rule 35 motion, we cannot find in the record a dispositive order or decision 

on the Rule 35 motion. We, therefore, construe this argument as one relating to the order 

revoking probation and executing the suspended sentences, in that the district court failed to sua 

sponte reduce the sentences upon revoking probation. 
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Moss asserts that, given any view of the facts, his concurrent unified sentences of ten 

years, with five years determinate, for the two forgery convictions are excessively harsh, largely 

because the district court did not consider his mental health issues. The State responds that the 

district court did not abuse its discretion in executing the original sentences based on the same 

reasons the court did not abuse its discretion in revoking probation. 

Mental health evidence is a relevant mitigating factor when considering the imposition of 

a sentence. State v. Payne, 146 Idaho 548, 570, 199 P.3d 123, 145 (2008). Nonetheless, mental 

health as a mitigating factor need not always outweigh aggravating factors that contribute to the 

imposition of the sentence. See State v. Miller, 151 Idaho 828, 836, 264 P.3d 935, 943 (2011) 

(noting a defendant’s mental condition need not be a controlling factor at sentencing). In 

originally imposing the sentences, Moss’s defense counsel argued that Moss’s bipolar disorder, 

young age, and family support were all mitigating factors. Contrary to Moss’s statements that 

his mental health was ignored, the district court first stated that the presentence investigation 

painted a picture of Moss as self-centered, greedy, and manipulative and then specifically 

referred to Moss’s bipolar disorder:

I have met other people who are bipolar. It doesn’t cause greed, and it doesn’t 

cause theft. It causes excess behavior, but it doesn’t necessarily cause excess 

illegal behavior. 

So I do not see that as a justification or excuse or even an explanation. It 

is certainly something that has to be dealt with and should be dealt with. 

The district court examined the need to protect society, rehabilitation, and deterrence. It 

concluded that this was not a case to “make an example” out of and then accepted the State’s 

recommendation for unified ten-year sentences, with five years determinate. 

At the disposition hearing on the probation violations, defense counsel again argued that 

mental health was a mitigating factor and asked for a reduced sentence. The district court, in 

response, noted that whether medicated for his bipolar disorder or not, Moss moved to 

California, made excuses as to why he absconded, and delayed coming back to Idaho until he 

was arrested. The district court stated:

I thought carefully when I imposed the original sentence--that is, the 

underlying sentence--as to what was appropriate at that time, taking into account 

your prior record as well as the circumstances of this case. And I think the 

original sentence was appropriate for the crimes, given your background and the 

goals of protecting society as well as deterrence to you and others. 
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In considering the many opportunities Moss had been provided to show his amenability and 

compliance with lesser punishments (probation and a rider) and avoid the imposed sentences, the 

district court determined it was time Moss was required to be accountable and that a reduction in 

the sentences at the time of disposition was not warranted. Upon this record, we find no abuse of 

discretion in the court’s decision to execute the suspended sentences without reduction. 

III.

CONCLUSION

Moss is precluded, by the application of the invited error doctrine, from challenging the 

district court’s orders revoking his probation in two of the three cases presented on appeal. We 

conclude, in regards to the forgery case, that the district court did not abuse its discretion either 

in revoking probation or in executing the suspended sentences without reduction. Accordingly, 

we affirm the orders of the district courts revoking probation and executing the suspended 

sentences in all three cases. 

Judge LANSING and Judge MELANSON CONCUR.