Background
This substitute opinion, which withdraws the court’s prior opinion dated July 20, 2026, resolves two consolidated appeals. In Docket No. 52430, Scott Howard Holmes was convicted by a jury of six counts of video voyeurism under Idaho Code § 18-6605(3) after his ex-girlfriend reported that he sent nude photographs of her to her daughter and niece. Holmes also admitted to being a persistent violator of the law under Idaho Code § 19-2514. He received consecutive unified sentences of five years, with minimum periods of confinement of three years.
In Docket No. 52431, the ex-girlfriend reported believing that Holmes had placed a tracking device on her vehicle and a listening device in her home. Officers executing a search warrant on Holmes’ cell phone found video footage of the ex-girlfriend’s fifteen-year-old daughter engaging in sexual activity in her bedroom and footage of the ex-girlfriend in her bedroom. A search of the home revealed hidden cameras in two space heaters. A jury convicted Holmes of burglary, two counts of video voyeurism, and sexual exploitation of a child, and he again admitted persistent-violator status. He received aggregate concurrent unified life sentences with a twenty-five-year minimum period of confinement.
At the combined sentencing hearing, the district court addressed defense counsel’s motion to withdraw. Holmes said he had fired his attorney, rejected a public defender using profanity, and did not answer questions about self-representation. After repeated warnings about his language and conduct, and further profane responses, Holmes was removed and allowed to attend virtually with his microphone muted. The State said it would seek restitution and received thirty days to do so. A month after sentencing, the district court ordered $1,024 in restitution to the ex-girlfriend.
The Court’s Holding
The Court of Appeals affirmed both judgments of conviction and the sentences but reversed the restitution order and remanded. Reviewing the sentencing and restitution decisions for abuse of discretion, the court rejected Holmes’ argument that the district court violated Idaho Criminal Rule 33(a)(1) by not asking him whether he wished to make a statement or present information in mitigation. The rule memorializes the common-law right of allocution, but its violation is not automatically a constitutional violation.
The court’s allocution holding rested on Holmes’ specific conduct and the warnings he received. The district court repeatedly warned him about profanity, attempted to question him, and ultimately found both that he had clearly and unequivocally indicated he did not wish to be present and that his disruptive behavior independently warranted removal. On that record, the court held that Holmes forfeited the procedural right to be asked to allocute. It explained that remote attendance after removal did not require the court to invite a statement; otherwise, the authority under Idaho Criminal Rule 43(c)(1)(B) to remove a sufficiently disorderly, disruptive, and disrespectful defendant would be meaningless. The State alternatively argued invited error, but the court expressly declined to address that argument because it found no abuse of discretion.
On restitution, the State conceded that the record contained no evidence supporting the $1,024 award. The court also found nothing indicating that Holmes received notice of the request, its basis, or an opportunity to object. Although missing record portions generally are presumed to support the district court, the court ordered a limited remand rather than simply vacating restitution. Distinguishing State v. Oxford, where the State had repeated opportunities to substantiate an award, the court reasoned that it would not presume the order was entered “out of thin air.” Remand would allow Holmes to challenge how much, if any, restitution may be awarded and would create a proper evidentiary record for meaningful review.
Key Takeaways
- Both convictions and all sentences were affirmed; only the $1,024 restitution order was reversed and remanded.
- The allocution ruling was circumstance-specific: Holmes forfeited the procedural opportunity after repeated warnings, profane and disruptive conduct, removal, and the district court’s findings concerning his presence and behavior.
- The court did not adopt a universal rule that every disruptive defendant automatically forfeits allocution, and it did not reach the State’s alternative invited-error argument.
- The restitution remand permits a supported determination and an opportunity for Holmes to challenge the amount; it does not establish a general due-process rule or guarantee any particular award.
Why It Matters
The decision illustrates how Idaho appellate courts may review Rule 33 allocution claims in light of the sentencing transcript, judicial warnings, and a defendant’s conduct, rather than treating every omission of the prescribed question as reversible error. It also preserves the distinction between a procedural allocution right and an automatic constitutional violation.
For restitution practice, the opinion underscores the importance of notice, an opportunity to object, and an evidentiary record supporting economic loss. At the same time, the limited remand shows that an unsupported appellate record does not necessarily foreclose further proceedings where, unlike in Oxford, the State had not already received repeated opportunities to prove its request.