State v. Thompson

                  IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 49492

 STATE OF IDAHO,                         )
                                         )
    Plaintiff-Respondent,                )
                                         )                      Boise, May 2023 Term
 v.                                      )
                                                                Opinion Filed: December 19, 2023
                                         )
 DOUGLAS SHANE THOMPSON,                 )                      Melanie Gagnepain, Clerk
                                         )
    Defendant-Appellant.                 )
 _______________________________________ )

       Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
       Ada County. Steven J. Hippler, District Judge.

       The decision of the district court is reversed, and the case is remanded.

       Erik R. Lehtinen, Interim State Appellate Public Defender, Boise, for Appellant,
       Douglas Shane Thompson. Jenny Swinford argued.

       Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent, State of Idaho.
       Kacey Jones argued.
                                      _____________________

STEGNER, Justice.
       Douglas Shane Thompson appeals the district court’s decision to amend the scope of a no
contact order which prohibited him from contacting his minor son for a period more than eight
years. The no contact order was entered in connection with Thompson’s conviction for domestic
violence in the presence of a child. Thompson argues that the district court abused its discretion
when it amended the no contact order because there was no evidence that Thompson posed a threat
to his son and the no contact order violated his fundamental right to parent his son. For the reasons
discussed below, we reverse.
                           I. FACTUAL AND PROCEDURAL BACKGROUND
       In October 2018, Thompson and Camille Broncheau were in a dating relationship and lived
together with Thompson’s sixteen-year-old daughter, D.T., Broncheau’s fourteen-year-old
daughter, C.B., and the couple’s four-year-old son, R.T. On October 30, 2018, an altercation
occurred in the family’s home during which Thompson punched Broncheau on the right side of


                                                 1
her head. As a result, Broncheau lost consciousness. She also sustained bruising and swelling and
was later diagnosed with a concussion. All three children were present in the home when
Thompson struck Broncheau. D.T. and C.B. both witnessed Thompson strike Broncheau. R.T. was
in a different room, and it is unclear from the record whether he heard or witnessed the altercation.
Thompson was subsequently charged with domestic violence in the presence of a child in violation
of Idaho Code section 18-918. A jury found him guilty in January 2020.
       The altercation resulting in the domestic violence charge was not the first act of violence
that occurred during Thompson’s relationship with Broncheau. During the pre-sentence
investigation, Broncheau and C.B. disclosed several previously unreported incidents that had
allegedly occurred. Examples of such incidents included C.B. witnessing Thompson hit both her
teenage brother and Broncheau, Thompson grabbing one of Broncheau’s friends by the throat and
pushing her against a refrigerator in C.B.’s presence, and Thompson slamming Broncheau’s head
into a car while she was holding R.T. as a baby.
       In November 2018, at the inception of the underlying domestic violence charge, the district
court entered a no contact order prohibiting Thompson from contacting Broncheau and the three
children who were in the home at the time of the abuse: D.T., C.B., and—relevant here—R.T.
Since the entry of the original no contact order, the district court has amended the order four times.
       First, in January 2019, Broncheau requested that the no contact order be terminated because
“my son [R.T.] misses his father and I would like to be able to communicate with him about him
see[ing] his son.” The district court amended the no contact order three months later in March
2019. While the amendment still prohibited all contact between Thompson and Broncheau, D.T.,
and C.B., it allowed Thompson to have supervised visits with R.T.
       A month later, in April 2019, Broncheau requested that the no contact order be modified a
second time to allow unsupervised visits between R.T. and Thompson. The district court agreed to
grant the change and amended the no contact order later that month, removing R.T. as a protected
person and allowing unsupervised visits with Thompson.
       The third modification occurred in May 2020, upon sentencing, when the district court
amended the no contact order to prohibit Thompson from contacting Broncheau directly but
allowing Thompson to contact Broncheau via written communication. The district court sentenced
Thompson to a term of ten years for the underlying domestic violence offense, with four years
fixed, and retained jurisdiction. However, five months later, the district court relinquished



                                                   2
jurisdiction after it learned that Thompson had violated the no contact order by placing twenty-four
phone calls to Broncheau over roughly two months, from August to September 2020. The district
court then ordered that the underlying sentence be served.
       At issue in this appeal is the fourth amendment to the no contact order. In November 2021,
just over one year after the district court relinquished jurisdiction and executed Thompson’s
sentence, Broncheau requested that the no contact order again be changed to prohibit all contact
between Thompson and her, R.T., and Broncheau’s new husband, alleging that Thompson
“continues to harass me and threaten me.” Two months later in January 2022, after a hearing, the
district court amended the order, prohibiting Thompson from contacting both Broncheau and R.T.
That order expires on May 17, 2030, when R.T. will be fifteen years old.
       At the hearing regarding the fourth amendment of the no contact order, Thompson
acknowledged that “what communication there is[,] is not healthy” but then alleged that “all my
communication up to this point has been with my son and my son only.” Thompson requested that
there be “mediation to [sic] where I’m still allowed to talk to my son [R.T.].” Despite Thompson’s
request, the district court granted the modification of the no contact order with no exceptions for
either Broncheau or R.T. In so doing, the district court noted, “I did preside over this trial, I do
remember it[,]” and reasoned that R.T. was also a victim of the underlying offense of domestic
violence in the presence of a child, from which the no contact order originated. Thompson
questioned the district court’s decision to amend by noting his “moral obligation to be a father to
this child [R.T.].” The district court assured Thompson that the no contact order expires, so it is
only “for now” and that “there’s always the right, if circumstances change, to petition for contact”
if Thompson seeks to reinstitute contact with his son. Thompson timely appealed to this Court.
                                     II. STANDARD OF REVIEW
       The district court’s decision of whether to issue or modify a no contact order pursuant to
Idaho Code section 18-920 is one of discretion. State v. Lodge, 

, 

 (2020).
       When reviewing a lower court’s decision for an abuse of discretion, this Court must
       analyze “whether the trial court: (1) correctly perceived the issue as one of
       discretion; (2) acted within the outer boundaries of its discretion; (3) acted
       consistently with the legal standards applicable to the specific choices available to
       it; and (4) reached its decision by the exercise of reason.”
State v. Bodenbach, 

, 

 (2019) (quoting Lunneborg v. My
Fun Life, 

, 863, 

 (2018)).


                                                 3
                                            III. ANALYSIS
          Thompson argues that the district court abused its discretion when it amended the no
contact order to prohibit him from having any contact with his son, R.T. Thompson focuses on the
latter two prongs of the abuse of discretion standard. First, Thompson argues that the district court
did not exercise reason when it amended the no contact order for the fourth time because there had
been no evidence presented to suggest that the change was necessary to protect R.T. Second,
Thompson contends that the district court did not apply the correct legal standard to the specific
choices available to it because the amended no contact order effectively terminated his parental
rights.
          Idaho Code section 18-920(1) provides that “[w]hen a person is charged with or convicted
of an offense under section . . . 18-918 . . . , an order forbidding contact with another person may
be issued.” This Court has interpreted that statute to mean that the purpose of a “no contact order
should be to protect current and future victims of crimes,” and the district court has broad
discretion over the issuance of such an order. Lodge, 166 Idaho at 539–40, 461 P.3d at 821–22.
Thus, a no contact order may be properly entered and amended when there is substantial and
competent evidence in the underlying record related to the offense that the order is being entered
to protect current and future victims of the crimes enumerated in section 18-920. See I.C. § 18-920;
Lodge, 

, 

.
          For example, in State v. Lodge, Lodge was sentenced after pleading guilty to two counts of
sexual battery of a minor child. 166 Idaho at 538–39, 461 P.3d at 820–21. The district court entered
an amended no contact order prohibiting Lodge from having contact with the victims and “[all]
minor children under 18,” which included his own children. 

, 

 (alteration
in original). Lodge appealed the decision, claiming the district court failed to exercise reason
because there was no evidence that he presented a threat to his own children. 

 This Court
disagreed, concluding that “[t]here were several findings both by the district court and in [the
psychosexual evaluation in the underlying record], that support a conclusion that Lodge could be
a threat to his children.” 

, 

. Specifically, this Court noted previous sexual
assaults committed by Lodge, Lodge’s high likelihood of reoffending, and his improper
communication with a teenage girl while awaiting sentencing. 

 Applying Idaho Code section
18-920, we said, “[w]hile there is nothing in the statute which suggests a limitation on who may
be protected by a no contact order, the crimes referenced in Idaho Code section 18-920 suggest



                                                  4
that the no contact order should be to protect current and future victims of crimes.” 

 (italics in
original). Because the findings and recommendations in Lodge’s evaluation supported the
conclusion that he posed a threat to his children, we determined that the district court exercised
reason and did not abuse its discretion. 

        In Lodge, the Court was able to cite specific evidence that Lodge would be a threat to his
children. Conversely here, the district court failed to articulate any evidence that demonstrated a
change in circumstances to now hold that R.T. was a current or future victim of domestic violence
by Thompson. The district court had previously amended the no contact order on two occasions,
at Broncheau’s request. The district court first allowed supervised visitation and later permitted
unsupervised visitation between Thompson and R.T.
        Then, at the hearing on Broncheau’s request to amend the no contact order to prohibit all
contact between Thompson and R.T., the State focused its argument exclusively on Thompson’s
conduct as it related to Broncheau, not R.T. For example, Broncheau requested a modification of
the no contact order because Thompson “continues to harass me and threaten me.” (Italics added.)
At the hearing, she further stated that she “want[ed] to amend it so he can’t talk to me at all. I don’t
want no [sic] communication or anything.” (Italics added.) Counsel for the State further explained:
        My understanding from Ms. Broncheau is the exceptions have proved to be stressful
        for her, given the nature of the contact that he’s had with her while he’s been in
        prison, so I believe that’s why she’s asking the [c]ourt to remove the exceptions and
        no longer allow there to be any contact. I think it is warranted by the conduct in the
        case, as well as the [c]ourt honoring her wishes in being the victim of this case.
(Italics added.) In contrast to the focus on Broncheau, the only mention the State made regarding
R.T. at the hearing was to inform the district court that Broncheau has full custody of R.T. and,
therefore, has “the ability to make all the decisions regarding him.” The State presented no
evidence that Thompson’s continued contact with R.T. negatively impacted R.T. in any way.
        The district court ultimately amended the no contact order to prohibit all contact between
Thompson and R.T. The district court explained that it would amend the no contact order, in part,
because it considered R.T. a victim of the original crime. However, the district court did not explain
what had changed regarding R.T. following its prior orders. If R.T. was a victim of the original
crime, then he was a victim of the crime at the times the district court twice amended the order to
permit contact. The district court failed to explain what change had occurred in the meantime—
aside from Broncheau’s latest request—that caused the district court to conclude that Thompson
should have absolutely no contact with his son for more than eight years, when it had previously


                                                   5
allowed unsupervised visitation between father and son. The district court also appeared to place
undue weight on the fact that Broncheau had full custody of R.T. but did not explain how this was
relevant to R.T. being a current or future victim of domestic violence. 1 While the district court had
broad discretion to modify the no contact order, it needed to explain its reasons for doing so on the
record. As a result, we cannot evaluate whether it reached its decision through the exercise of
reason.
          A consequence of the district court not adequately explaining its reasons for amending the
no contact order is that it precludes any future motion that Thompson may make to reinitiate
contact with his son. The district court advised Thompson that he could petition to modify the no
contact order if circumstances changed. However, the district court did not articulate what
circumstances had given rise to its decision to prohibit all contact in the first place. It stated that it
considered R.T. a victim of the original crime, but that is a static factor and not a circumstance that
is subject to change. That fact was also true when the district court authorized unsupervised contact
between R.T. and Thompson. So how is Thompson to know whether those circumstances have
changed sufficiently to give him a basis to ask the district court to reinitiate contact with his son?
If the basis for the district court’s decision was the adverse effects that domestic violence can have
on children, will those circumstances ever change? Ultimately, the district court’s suggestion that
Thompson could revisit the no contact order appears to be illusory given that Thompson was not
apprised of what he did wrong to warrant the modification of the no contact order between him
and R.T, nor has Thompson been advised what behavior he would have to change to be able to
contact R.T. Without an explanation of the district court’s reasons for modifying the no contact
order, it is impossible to know what circumstances would need to change before Thompson may
seek contact with his son.
          We understand Broncheau’s wish to be free from all contact with Thompson, and we
acknowledge that facilitating Thompson’s contact with R.T. might create a hardship for her.
However, Broncheau’s wishes, standing alone, do not support the district court’s decision to cut
off all contact between Thompson and his son, especially for such a lengthy period. The district


1
  Full custody is a determination that was presumably made by a judge in a family law setting. In that setting, the
family law judge would be tasked with determining what is in the best interest of the child. While the family law judge
apparently determined Broncheau should have full custody of R.T., there is no suggestion that the family law judge
would have also determined that it was in the best interest of R.T. that he have absolutely no contact with his father
for the next eight years.


                                                          6
court may only grant such a motion if it determines on the record, and based on substantial and
competent evidence, that R.T. is a current or future victim of domestic violence. Because that did
not occur in this case, we cannot affirm the no contact order to the extent it precludes Thompson
from any contact whatsoever with his son. Accordingly, we hold that the district court did not
“reach[] its decision by the exercise of reason.” Bodenbach, 

, 

(quoting Lunneborg, 163 Idaho at 863, 

). Therefore, the district court abused its
discretion in amending the no contact order in the way that it did.
       Thompson also argues that the district court failed to apply the correct legal standards by
terminating his fundamental right to parent R.T. through the amended no contact order. The
Fourteenth Amendment to the United States Constitution protects the fundamental right of parents
“to maintain a familial relationship . . . .” Nelson v. Evans, 

, 

(2022); Matter of Doe Children, 

, 

 (2018). Thompson argues
that by amending the no contact order to prohibit all contact with R.T., the district court effectively
terminated his parental rights. To terminate parental rights, the State must support its allegations
by clear and convincing evidence. State v. Doe, 

, 

 (2007)
(citing Santosky v. Kramer, 

, 747–48 (1982)). “Clear and convincing evidence”
requires “that the thing to be proved is highly probable or reasonably certain.” In re Doe, 

, 

, 1060 (2006) (citation omitted). The termination court must also find
termination is in the best interest of the child. I.C. § 16-2005.
       On appeal, Thompson argues the State presented no evidence about R.T.’s best interests or
the need to protect R.T. from harm that would support the termination of his parental rights.
However, below, Thompson’s attorney only made general references to Thompson wanting “to
have that right of communication” with R.T. and the denial of “his moral obligation to be a father.”
We do not find these statements sufficient to support the argument Thompson now makes on
appeal. It is well established this Court “can hear refined legal arguments regarding an issue heard
and decided by the court below, but in fairness to the district court and the opposing party, we
cannot usurp the district court’s role by deciding new legal issues in the first instance.” Siercke v.
Siercke, 

, 

 (2020) (citing State v. Gonzalez, 

,

 (2018)). In other words, “[a] groomed horse is expected on appeal, but a
different horse is forbidden. 

                                                   7
       Thompson’s vague references below did not put the State or the district court in a position
to respond to the allegation that the no contact order impacts Thompson’s fundamental right to
parent. That said, we appreciate the nuanced nature of proceedings that include a no contact order
that is expanded to include a child of the person against whom the no contact order is sought. At a
hearing to amend a previous no contact order, Judge Hippler commented that he is “not a family
law judge” and that he can only “do the best [he] can.” These remarks highlight the difficulties
that arise when a judge who does not regularly deal with family law issues is put in a position to
analyze the complex, often competing, interests involved. Still, because the issue has not been
sufficiently preserved, we leave for another day the question of whether clear and convincing
evidence is required to support a no contact order which prohibits a father from having any contact
with his son for more than eight years and substantially impairs that father’s parental rights.
                                          IV. CONCLUSION
       For the reasons set forth above, the decision of the district court to amend the no contact
order is reversed. The case is remanded to the district court for further proceedings.
       Justices MOELLER and ZAHN CONCUR.

BRODY, Justice, dissenting.
       I dissent. To begin with, I disagree with the majority’s conclusion that the district court had
an obligation to articulate evidence that demonstrated a change in circumstances to now hold that
RT is a current victim or likely a future victim of domestic violence by Thompson. The fact that
the district court exercised its discretion to modify the no contact order in the past to allow some
contact between Thompson and RT does not mean that RT is no longer a victim and somehow falls
outside the protections of Idaho Code section 18-920(1) unless there is a change in circumstances.
He is a victim and likely to be a future victim given what we know about Thompson’s propensities.
       While there may be some ambiguity in the record about whether RT was present when the
domestic violence in this case occurred, the fact that RT was not the target of Thompson’s violence
does not take him outside the protections of Idaho Code section 18-920(1). The Court has long
recognized that domestic violence harms children, even when the children are not the targets of
the physical abuse, because exposure to abuse creates an unstable and dangerous home
environment. Interest of Doe I, 

, 

 (2019); see also In re Doe,

, 

 (2006) (“[I]nfliction of perpetual domestic violence, even
if not directed at the children, supports a finding of parental neglect, as it provides for an unstable


                                                  8
and dangerous home environment.”). Exposure to domestic violence is associated with significant
mental health impairments in children including psychological, social, emotional, and behavioral
problems. C. Nadine Wathen and Harriet L. MacMillan, Children’s Exposure to Intimate Partner
Violence: Impacts and Interventions, 18 PEDIATRIC CHILD HEALTH, 419 (2013). The psychological
and physical harms are well understood:
       [C]hildren who grow up in homes beset by domestic violence are at greater risk of
       experiencing anxiety, depression, problems in school, and teenage pregnancy, while
       also engaging in substance abuse and attempts of suicide. Children exposed to
       family violence often suffer from symptoms akin to those of post-traumatic stress
       disorder, such as nightmares and bed-wetting. Numerous psychological studies
       have pointed to the impact that exposure to domestic violence can have on children;
       the studies have shown that clinical problematic child behavior can lead to a
       misdiagnosis of attention deficit disorder when the true source of such problems is
       in the exposure to domestic violence. Children who suffer childhood trauma,
       including witnessing incidents of domestic violence, have a greater risk of
       developing serious health problems in adulthood. Such health problems include
       substance abuse, tobacco use, obesity, heart disease, and depression, and a higher
       risk for unintended pregnancy.
Terrence Rogers, Exposure to Domestic Violence as a Form of Child Abuse Under Domestic and
International Law, 34 WOMEN’S RTS. L. REP. 358, 363 (2013). Thompson himself stated during
the hearing to amend the no contact order that “what communication there is is [sic] not healthy”
despite also claiming he had only been communicating with his son.
       When I read the transcript of the district court’s decision, I do not read a decision that lacks
reason or reflects arbitrary decision-making. See State v. Le Veque, 

, 115, 

 (2018) (“The hallmark of a discretionary decision that is not reached by an exercise of
reason is arbitrariness.”). Rather, I read a decision that was careful and deliberate based on the long
history of Thompson’s ongoing refusals to obey court orders.
       The district court judge noted from the outset of his ruling that he remembered Thompson.
The judge presided over Thompson’s trial, imposed sentence, made the decision to retain
jurisdiction over Thompson while he went through a rider program, and made the decision to
relinquish jurisdiction after learning that Thompson contacted Broncheau by telephone twenty-
four times in less than two months in violation of the court’s no contact order. That same district
court judge modified the no contact order–not once–but four times.




                                                  9
       While the stated length of the modified no contact order is long, the district court also
communicated to Thompson that it did not have to be permanent if he complied. There is nothing
illusory about the district court’s statement:
       Thompson:       So your Honor, even though I have a moral obligation to be a father
                       to this child, I’m still being denied of it?

       Court:          Your conduct excluded you from having contact with this child, and
                       I’m granting that no-contact order at this time.

                       You know, it’s in place until it expires, and there’s always the right,
                       if circumstances change, to petition for contact, but for now it’s no
                       contact.

The district court sent Thompson a strong message when it modified the no contact order. The
district court judge who has handled the case over the last five years is the person who is in the
best position to make that call, and I would not second-guess it. I would affirm the district court’s
decision.


BEVAN, Chief Justice, dissenting.
       I join in Justice Brody’s dissent and write separately simply to note that the decision the
majority reverses today was made by the district court while exercising its broad discretion in a
case that the court had lived through in several ways, as identified by Justice Brody. Such decisions
are entitled to great weight and should not be reversed in a de novo fashion under the guise of
analysis of one of the prongs of the Lunneborg test. This Court has noted previously that the factual
inquiries surrounding a trial judge’s exercise of discretion are best left to that judge to resolve,
rather than being second guessed by this Court:
               [T]he factual inquiries required in determining whether sanctions should be
       awarded are . . . a core part of the inquiry. This Court will not undertake a de novo
       legal review of [the question before us] under the guise of the legal prong of the
       standard of review equation. That would amount to this Court simply second
       guessing the trial court's discretionary decisions. Indeed, when reviewing these
       questions, “ ‘[i]t is important that a reviewing court evaluate the trial court's
       decision from its perspective when it had to rule’ rather than ‘indulge in review by
       hindsight.’ ” United States v. Tsarnaev, ––– U.S. ––––, 

, 1039 (2022)
       (quoting Old Chief v. United States, 

 (1997)).

Gilbert v. Radnovich, 

, 

, 403–04 (2023) (emphasis in original).




                                                  10
       While Gilbert involved analysis of a discretionary decision to award attorney fees, we
noted there that, in making discretionary decisions, “a trial ‘judge's appraisal is ordinarily
influenced by a host of factors impossible to capture fully in the record[.]’ ” 

 (quoting Tsarnaev,
142 S. Ct. at 1034). “These are factual determinations left to the discretion of the trial court who
has a front-row seat to the alleged misconduct for which sanctions are sought. And ‘[t]hat
discretion does not vanish’ because the trial judge reaches a decision the parties disagree with.” Id.
at ___, 

 (alterations original).
       Viewing the record here against this paradigm, I would affirm the discretionary decision
made by the district court based on the factors cited by Justice Brody in her dissent.




                                                  11