                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38886

STATE OF IDAHO,                                  )     2012 Unpublished Opinion No. 662
                                                 )
        Plaintiff-Respondent,                    )     Filed: October 5, 2012
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
YUTDENY ROSA McLEOD,                             )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
        Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                 )

        Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
        Falls County. Hon. G. Richard Bevan, District Judge.

        Order revoking probation, affirmed.

        Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
        Appellate Public Defender, Boise, for appellant. Spencer J. Hahn argued.

        Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
        Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
                  ________________________________________________
PERRY, Judge Pro Tem
        Yutdeny Rosa McLeod appeals from the district court’s order revoking her probation.
For the reasons set forth below, we affirm.
                                                I.
                                  FACTS AND PROCEDURE
        In 2007, McLeod pled guilty to grand theft by unauthorized control, I.C. §§ 18-2403(3)
and 18-2407(1)(b), and was sentenced to a unified term of twelve years, with a minimum period
of confinement of three years.     The sentence was suspended and McLeod was placed on
probation for a period of thirteen years. McLeod was also ordered to pay court costs, fines, and
restitution.   Shortly after sentencing, McLeod was deported.       In January 2011, McLeod’s
probation officer filed a report of probation violation after she was informed that McLeod had
been seen in Idaho. Based on the probation officer’s report, the state filed a motion to revoke
probation. A warrant was issued and McLeod was located in New York and arrested.



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       McLeod was returned to Idaho and incarcerated. At an evidentiary hearing on the alleged
probation violations, the state called as a witness an immigration enforcement agent who
interviewed McLeod while she was incarcerated.            McLeod objected to the admission of
statements she made to the agent during the interview. After hearing argument from both
parties, the district court overruled McLeod’s objection. Thereafter, the district court determined
that McLeod violated her probation by failing to obey all municipal, county, state, and federal
laws by illegally re-entering the United States. The district court also determined that McLeod
violated her probation by failing to report to her probation officer as directed. After a disposition
hearing, the district court revoked McLeod’s probation and ordered execution of her sentence.
McLeod appeals.
                                                 II.
                                           ANALYSIS
       McLeod argues that the district court erred by admitting statements she made to the
immigration agent during the interview while she was incarcerated--that she illegally entered the
United States in 2011 and paid someone $8000 to smuggle her across the border. Specifically,
McLeod asserts that such statements were obtained in violation of her rights under the Fifth
Amendment because they were obtained in contravention of Miranda v. Arizona, 384 U.S. 436
(1966). The state asserts that, even if the district court erred by admitting the statements, such
error was harmless.
       Error in the admission or exclusion of evidence will not result in a reversal if the error
was harmless beyond a reasonable doubt. State v. Field, 144 Idaho 559, 572, 165 P.3d 273, 286
(2007). Thus, erroneous admission of evidence will not be grounds for reversal on appeal if,
absent that evidence, the result of the proceeding would have been the same. State v. Hall, 111
Idaho 827, 832, 727 P.2d 1255, 1260 (Ct. App. 1986).
       McLeod first argues that it was not harmless error for the district court to admit the
statement she made to the agent related to her illegal re-entry into the United States because,
aside from such statement, there was no evidence to show that McLeod’s re-entry was illegal
and, therefore, violated her probation. McLeod’s probation agreement required her to obey all
municipal, county, state, and federal laws.          Pursuant to removal proceedings under the
Immigration and Nationality Act and the order of an immigration judge, McLeod was prohibited
from entering, attempting to enter, or being in the United States for a period of ten years from the


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date of her deportation in 2007. In 2011, McLeod was found and arrested in New York before
being extradited to Idaho for probation revocation proceedings. At the evidentiary hearing on
the alleged probation violations, the agent identified McLeod without objection. Also without
objection, the agent testified that he knew McLeod had been previously deported and the agent
had obtained McLeod’s alien registration file.        Specifically, the agent testified that the
registration file contained a reinstatement of the original immigration judge’s deportation order
and that McLeod was currently deportable for illegal re-entry into the United States. The state
also called a witness who testified, without objection, that she saw McLeod in 2011 at a hospital
in Idaho where the witness worked. The state submitted as an exhibit a document from the
hospital dated in 2011 that contained the name of McLeod. In the report of probation violation
McLeod’s probation officer filed in January 2011, the probation officer indicated she called the
immigration office and was informed that their records showed no visa or other documentation
had been filed allowing McLeod to return to the United States. We also note that, while
incarcerated in New York, McLeod apparently filled out a record of sworn statement in affidavit
form pursuant to the Immigration and Nationality Act before an officer of Immigration and
Customs Enforcement. While McLeod refused to sign the affidavit, the document contains an
admission that, in January 2011, McLeod entered the United States illegally.           Given this
evidence that McLeod re-entered the United States in violation of the prohibition imposed
pursuant to removal proceedings under the Immigration and Nationality Act, this Court is
convinced beyond a reasonable doubt that, even without McLeod’s statement to the agent
regarding her illegal re-entry, the district court would have determined that McLeod violated her
probation by illegally re-entering the United States. 1 Therefore, even assuming that the district


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        McLeod asserts that, if this Court vacates the district court’s determination that McLeod
violated her probation by illegally re-entering the United States because it was based upon an
improperly admitted statement, then remand for a new evidentiary hearing is necessary pursuant
to State v. Blake, 133 Idaho 237, 243, 985 P.2d 117, 123 (1999). In that case, the trial court took
judicial notice of Blake’s recent convictions and Blake admitted to missing a meeting with his
probation officer, each of which the trial court noted constituted a probation violation. Because
the Idaho Supreme Court set aside Blake’s recent convictions, the only basis upon which the trial
court could revoke Blake's probation was his admitted failure to attend a meeting with his
probation officer. Thus, the Court remanded the case back to the trial court for redetermination
of the status of Blake’s probation. Id. Here, however, we need not vacate the district court’s
determination that McLeod violated her probation by illegally re-entering the United States
because we conclude that such violation was proven from the record apart from McLeod’s

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court erred by admitting such statement, the error was harmless with respect to the district
court’s determination that McLeod had re-entered the United States illegally.
        McLeod also argues that it was not harmless error for the district court to admit the
statement she made to the agent that she paid someone $8000 to smuggle her across the border
because the district court used such fact in aggravation when announcing its decision to revoke
McLeod’s probation and execute the underlying sentence. At the disposition hearing, the district
court explained that, when it originally sentenced McLeod to probation, it did so failing to
consider McLeod’s immigration status. The district court also explained that the probation
sentence was designed to facilitate repayment to the victims for McLeod’s wrongful conduct.
The district court stated:
        To me, these types of cases are solely made right through restitution; and that’s
        why, in your case, I chose probation initially, frankly with little understanding of
        my own omission to the potential for you to be deported and thereby outside of
        any type of supervisory regulation at all.
                 Had I known that in hindsight, it’s likely this sentence would have simply
        been directly to the penitentiary. People don’t steal a hundred thousand dollars
        plus and just walk out and get really a slap on the wrist and jail for it. . . .
        [T]here’s not been one cent paid to these people, notwithstanding where you’ve
        been and what you have been able to do. Certainly, the documents from the state
        indicate there was a means. You had money to get back into the States. You
        chose to do that . . . certainly not towards any eye towards restitution or making
        any recompense to those whom you have harmed. . . .
                 ....
                 [Defense counsel] says, if I impose this sentence, I’m solely taking a
        retributive approach to you and punishing you. While that certainly is a large part
        of it, as a sentencing court, I also, particularly in probation violations settings such
        as this one, feel I have an overriding obligation to uphold the requirements of the
        law. And the law requires probationers to do things and not just forget about
        their victim, notwithstanding how hard their life is, notwithstanding how much
        collateral damage has occurred, but to make efforts; and that hasn’t happened
        here.
                 The law requires people to abide by it and not make decisions without
        consequences. And so by imposing your sentence today, I’m not simply saying
        I’m dropping the hammer on you for your horrible choices. I’m saying that
        probationers need to abide by the court’s conditions. They need to take care of




statement to the agent. Additionally, McLeod does not challenge the district court’s
determination that McLeod violated her probation by failing to report to her probation officer as
directed. Accordingly, remand for a new evidentiary hearing is not necessary pursuant to Blake.

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       making payments, whatever amount and whatever small value. Certainly, in my
       eyes, sends a much greater message of rehabilitation than simply totally ignoring
       the fact because of the way this case came down on you and the fact that you were
       deported and so forth.

(Emphasis added.)
       It is clear from the record that the district court would not have placed McLeod on
probation initially had it understood that McLeod would be deported upon such placement. The
district court was made aware by the agent’s testimony at the evidentiary hearing that, pursuant
to the reinstatement of the original immigration judge’s deportation order, if the State of Idaho
were to release McLeod, she would be moved to an immigration facility to await deportation.
The district court was clear that, had the district court considered the deportation issue, probation
would not have been granted in the first place. While the district court referenced the money
McLeod had to “get back into the States,” that comment was unmistakably made in the context
of the district court’s concern with restitution. To be sure, the district court would not have
reduced the restitution amount or the term of sentence imposed to facilitate repayment in
“whatever amount and whatever small value” which would not occur upon deportation. This
Court is convinced beyond a reasonable doubt that, even without McLeod’s statement to the
agent that she paid someone $8000 to smuggle her across the border, the district court would
have revoked McLeod’s probation and ordered execution of her underlying sentence without
modification. Therefore, even assuming that the district court erred by admitting such statement,
the error was harmless.
                                                III.
                                         CONCLUSION
       Even assuming that the district court erred by admitting the challenged testimony of the
agent, such error was harmless.       Therefore, the district court’s order revoking McLeod’s
probation is affirmed.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




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