                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 44852

STATE OF IDAHO,                                   )    2018 Unpublished Opinion No. 320
                                                  )
          Plaintiff-Respondent,                   )    Filed: January 12, 2018
                                                  )
v.                                                )    Karel A. Lehrman, Clerk
                                                  )
ERIC SCOTT SPOKAS,                                )    THIS IS AN UNPUBLISHED
                                                  )    OPINION AND SHALL NOT
          Defendant-Appellant.                    )    BE CITED AS AUTHORITY
                                                  )

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
          County. Hon. Patrick H. Owen, District Judge.

          Order      revoking     probation,    executing     sentence,     and     retaining
          jurisdiction, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds,
          Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

GUTIERREZ, Judge
          Eric Scott Spokas appeals from the district court’s order revoking his probation,
executing his sentence, and retaining jurisdiction. He contends the district court’s finding that he
violated probation is not supported by substantial evidence. For the reasons explained below, we
affirm.
                                                  I.
                       FACTUAL AND PROCEDURAL BACKGROUND
          After Spokas was convicted of aggravated assault on January 20, 2016, the court placed
him on supervised probation for a period of four years. The next day, Spokas signed an Idaho
Department of Correction (IDOC) Agreement of Supervision (probation agreement). Spokas’s
probation agreement includes a provision stating that Spokas will “report as directed by my


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probation/parole officer.”    It contains another provision stating that Spokas will not use
controlled substances other than those that are lawfully prescribed.
       On May 12, 2016, the State filed a motion for probation violation, which alleged, inter
alia, that Spokas used marijuana on or about March 3, 2016. On October 18, 2016, pursuant to
Spokas admitting to committing three of the non-drug-related violations, the district court
revoked Spokas’s probation. However, it suspended the execution of sentence and reinstated
probation upon the same terms and conditions as before.
       On November 15, 2016, the State filed a motion for probation violation, alleging seven
violations, including marijuana use and failure to report. Spokas denied all of the allegations.
An evidentiary hearing was held. At the hearing, a probation officer, who was not Spokas’s
supervising officer, testified that he administered a urinalysis drug test, which came back
presumptively positive for THC, on October 21, 2016.           The district court found that the
urinalysis, despite being an unconfirmed presumptive test, was sufficiently reliable to establish
that Spokas had used marijuana on or about October 21, 2016. The district court also found that
the testing officer had told Spokas to make immediate contact with his supervising officer
regarding the positive drug test and that Spokas had failed to do so. The district court, after the
conclusion of the evidentiary hearing, found that Spokas had violated his probation by using
marijuana on or about October 21, 2016, and by failing to report to his supervising officer as
instructed by the testing officer. The district court then revoked Spokas’s probation, executed his
sentence, and retained jurisdiction. 1 Spokas timely appealed from the district court’s order.
                                                II.
                                           ANALYSIS
       In reviewing a probation revocation proceeding, we employ a two-step analysis. State v.
Knutsen, 138 Idaho 918, 923, 71 P.3d 1065, 1070 (Ct. App. 2003). First, we ask whether the
defendant violated the terms of probation. Id. If it is determined that the defendant has in fact



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        The Idaho Department of Correction Offender Search reflects that Spokas was released to
supervision on September 1, 2017. Due to the likelihood that the issues presented in this case
will arise in future probation revocation proceedings, we address this case on the merits. See
Mallery v. Lewis, 106 Idaho 227, 234, 678 P.2d 19, 26 (1983) (holding that absent the “capable
of repetition, yet evading review” exception to the mootness doctrine, pretrial detainees would
not be afforded appellate review because detention for pretrial detainees averaged six to eight
months).
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violated the terms of 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). 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. 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. Lafferty, 125
Idaho at 381, 870 P.2d at 1340; see Idaho Code § 20-222. Thus, we review a district court’s
decision to revoke probation under an abuse of discretion standard. Lafferty, 125 Idaho at 381,
870 P.2d at 1340. When a district court’s discretionary decision is reviewed on appeal, the
appellate court conducts a multi-tiered inquiry to determine whether the lower court correctly
perceived the issue as one of discretion, acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it, and reached its
decision by an exercise of reason. Knutsen, 138 Idaho at 923, 71 P.3d at 1070.
A.     Unlawful Use of a Controlled Substance
       Spokas argues that the urinalysis that the district court relied on in finding that Spokas
had used marijuana on or about October 21, 2016--in violation of the tenth term of his probation
agreement--cannot constitute substantial evidence, as it was merely an unconfirmed presumptive
test based on marijuana metabolites.      The State contends that Spokas did not present this
argument below, but the record shows that Spokas’s trial counsel challenged whether an
unconfirmed urinalysis could be used as proof of recent marijuana use. We will first address
Spokas’s argument that because the urinalysis only tests for marijuana metabolites, the results
cannot constitute substantial evidence of marijuana use.        Then we will discuss whether a
confirmatory test is necessary before the test results can constitute substantial evidence of
marijuana use.
       In State v. Stark, 157 Idaho 29, 32-33, 333 P.3d 844, 847-48 (Ct. App. 2013), this Court
noted that a positive test for Carboxy-THC, a metabolite of marijuana, is only proof that the
subject used marijuana at some point in the past.         The fact that Carboxy-THC is only a
metabolite of marijuana was important in Stark because the defendant was charged with driving
under the influence, meaning that evidence of past drug use is only relevant if the State proves a

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connection between the past drug use and the driver’s impairment at the time the vehicle was
being operated. Id. Unlike in Stark, the timing of the marijuana usage is not as important in the
present case. Spokas was bound by the terms of the probation agreement since he signed it on
January 21, 2016. Furthermore, the district court’s findings used “on or about” language, thus
contemplating that the drug use may have occurred prior to the day of testing. Finally, Spokas’s
own scientific source sets a seventy-seven-day cutoff for positive test of marijuana metabolites,
meaning the positive test from October could not have been caused by the alleged marijuana use
in March. See Ellis Jr., GM, Mann MA, et al., Excretion Patterns of Cannabinoid Metabolites
After Last Use in a Group of Chronic Users, CLINICAL PHARMACOLOGY              AND   THERAPEUTICS,
Nov. 1985, pp. 572-78, available at https://www.ncbi.nlm.nih.gov/pubmed/3902318 (last visited
December 26, 2017) (“We demonstrated that under very strictly supervised abstinence, chronic
users can have positive results for cannabinoids in urine at 20 ng/ml or above on the EMIT-d.a.u.
assay for as many as 46 consecutive days from admission, and can take as many as 77 days to
drop below the cutoff calibrator for 10 consecutive days. For all subjects, the mean excretion
time was 27 days.”). Assuming the urinalysis is reliable, it constitutes substantial evidence that
Spokas used marijuana at some point after the marijuana use incident on March 3, 2016.
       However, Spokas challenges the reliability of the urinalysis, asserting that it cannot
constitute substantial evidence absent a confirmatory test. In his brief, Spokas directs this
Court’s attention to State v. Farmer, 131 Idaho 803, 964 P.2d 670 (Ct. App. 1998). In Farmer,
the defendant was challenging the admissibility of a urinalysis at a probation revocation hearing,
claiming that the test was unreliable. Id. at 805, 964 P.2d at 672. Unlike Farmer, who had
objected to admission of the test results for lack of foundation at the revocation hearing, Spokas
did not object to the admission of the urinalysis results. Id.
       The crux of Farmer’s argument was that without testimony as to the qualifications of the
person performing the test and the procedures used in administering the test, the results were
unreliable. In the present case, the testing officer testified as to the test procedure, specifically
that the testing cup was sealed, that the defendant then provided a sample after breaking the seal,
and that the defendant then sealed the sample with a lid once he was finished. In Farmer, this
Court also noted that the reliability of a urinalysis is enhanced by a confirmatory test, but that
observation did not make confirmatory tests a sine qua non for admitting the results of a
urinalysis. Id. at 806, 964 P.2d at 673. In fact, this Court observed that Farmer presented no

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evidence contesting the accuracy of the reports and also that Farmer did not seek to have an
independent retest performed on the urine sample. Id. In the present case, the testing officer
admitted the possibility of false positives, but also testified that the test was “generally reliable”
based on his experience providing thousands of tests. The State need only prove probation
violations by a preponderance of the evidence. See State v. Edelblute, 91 Idaho 469, 480, 424
P.2d 739, 750 (1967) (holding that proof of probation violation beyond a reasonable doubt is not
required).   A “generally reliable” scientific test conducted in a manner likely to avoid
contamination constitutes substantial evidence; therefore, the district court did not err in finding
Spokas violated this term of his probation.
B.      Failure to Immediately Contact Supervising Officer
        The district court found that Spokas had violated a condition of his probation by failing to
immediately contact his supervising officer after being instructed to do so by the officer who
administered the urinalysis on October 21, 2016. Spokas makes three arguments in regard to this
finding. First, Spokas contends that the testing officer never “instructed” Spokas to contact his
supervising officer, but merely “suggested” that Spokas make contact. Second, Spokas argues
that he was never told to “immediately” report to his supervising officer. Finally, Spokas asserts
that his probation agreement only requires him to report as directed by his supervising officer,
not as directed by other IDOC agents.
        Spokas’s first argument fails because, despite the testing officer using the word
“suggested” in his notes, the testing officer testified that he “instructed” Spokas to contact his
supervising officer. Spokas’s second argument fails because although he was not instructed to
“immediately” report to his supervising officer, Spokas was nevertheless instructed to contact his
supervising officer to discuss the test results and failed to do so. This would make the word
“immediately” superfluous language in the motion for probation violation, but would not negate
a finding that he failed to report as instructed.
        Turning to Spokas’s third argument, the record reflects that Spokas was not instructed to
report by his supervising officer, meaning that the failure to report did not violate any terms of
probation. Spokas’s probation agreement uses the phrase “my probation/parole officer” when
discussing Spokas’s duty to report as directed. Because the testing officer was not Spokas’s
supervising officer, Spokas argues he was not required to follow the testing officer’s order to
report to the supervising officer. This interpretation of the second term of Spokas’s probation

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agreement is strengthened by the language used in the eleventh term, which states that the
probationer shall submit to substance abuse testing as directed by “any IDOC agent or other law
enforcement officer.”      The drafters of the probation agreement distinguished between “my
probation/parole officer” and “any IDOC agent,” so we must interpret “my probation/parole
officer” to mean Spokas’s supervising officer.         Moreover, no other term of the probation
agreement expressly addresses a requirement to obey instructions or directions to report given by
individuals other than Spokas’s supervising officer.
          Because Spokas was instructed to report by the testing officer, rather than his supervising
officer, Spokas’s failure to comply with that instruction cannot constitute a probation violation
under the language of the probation agreement as it is currently written. Accordingly, the district
court’s finding that Spokas violated his probation agreement by failing to immediately contact
his supervising officer on October 21, 2016, was not supported by substantial evidence in the
record.
C.        Remand Unnecessary
          In his opening brief, Spokas argues that if this Court holds that only one of the district
court’s findings is supported by substantial evidence, this case must be remanded for a new
disposition hearing. Spokas argues, without citing to any authority, that this outcome is required
because this Court cannot speculate as to whether the district could would have revoked his
probation and executed his sentence based on only a minor violation. While that argument was
successful in State v. Blake, 133 Idaho 237, 243, 985 P.2d 117, 123 (1999), it is not persuasive in
this case, as the marijuana use violation was the more serious violation. In Blake, the appellant
appealed from his conviction on two drug charges, as well as from the the district court’s order
revoking probation, as the order was based on the new criminal convictions as well as the
appellant’s failure to attend a meeting with his probation officer. The Idaho Supreme Court
vacated the new convictions, leaving the failure to attend a single meeting as the sole basis of the
probation revocation. In that context, the Supreme Court remanded the probation revocation to
the district court. But the Supreme Court has previously explained that if it is unconvinced that
the district court would exercise its discretion to revoke an appellant’s probation differently,
remand is unnecessary. See State v. Mummert, 98 Idaho 452, 455, 566 P.2d 1110, 1113 (1977);
see also State v. Upton, 127 Idaho 274, 276, 899 P.2d 984, 986 (Ct. App. 1995) (holding that
“remand is not necessary if it is clear from the record that the district court would have revoked

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probation based solely upon the other violations”). We believe that the marijuana use violation
in this case is sufficiently serious to render remand unnecessary.
                                                III.
                                         CONCLUSION
       We hold that there is substantial evidence in the record to support the district court’s
finding that Spokas violated his probation by using marijuana on or about October 21, 2016.
Due to the fact that the marijuana use is the more serious probation violation--and also the basis
for the failure to report allegation--we are confident that the district court would have revoked
probation on that basis alone.      Accordingly, the district court’s order revoking Spokas’s
probation, executing Spokas’s sentence, and retaining jurisdiction is affirmed.
       Chief Judge GRATTON and Judge HUSKEY CONCUR.




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