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State Supreme Court ruling draws Rigby Man’s guilty plea in Chubbuck sex sting into question

September 20, 2018

Tolbert

POCATELLO — A Rigby man sentenced last month to serve 10 years of probation for enticing who he thought was a minor online but was actually a Chubbuck police officer was back in court Monday to hear about an Idaho Supreme Court Case that could draw his plea bargain with state prosecutors into question.

Accepting a deal with Bannock County prosecutors, 38-year-old Russell S. Tolbert pleaded guilty to a reduced charge of felony injury to a child in April and the plea was entered into the courts in June.

On Aug. 20, Sixth District Judge Rick Carnaroli sentenced Tolbert to 10 years of probation and imposed a unified sentence of 10 years in prison, with four years fixed and six years indeterminate if Tolbert were to violate the terms of his probation.

On Monday, however, Tolbert appeared in front of Carnaroli again in the Bannock County Courthouse for a hearing the judge ordered to inform both state prosecutors and Tolbert’s Pocatello attorney, Kent Reynolds, of a ruling in an Idaho Supreme Court case that has the potential to draw the factual basis of Tolbert’s plea bargain into question.

The Idaho Supreme Court ruling involved a case where a man had been found guilty of multiple charges including rape, possession of methamphetamine, possession of drug paraphernalia and injury to a child. The man, who was 30 at the time, had used methamphetamine with a 17-year-old girl before the pair engaged in sexual activity.

After he was convicted of all the charges, the man’s attorney appealed the felony injury to a child on the grounds that the specific language in the statute did not apply to his circumstances.

The man argued that, although he used illegal drugs and engaged in sexual activity with a minor, the 17-year-old girl was never in his “care or custody.” State prosecutors argued that the definition of care or custody could extend beyond a formal parent-child relationship. The man argued that both “custody” and “care” imply accepting responsibility for a child in some manner.

The Idaho Supreme Court agreed with the man and ordered that he be acquitted of the felony injury to a child case.

Moreover, the Idaho Supreme Court made it clear that a child must be involved in a scenario where an individual is charged with felony injury to a child, Carnaroli said on Monday.

In Tolbert’s case there was never a child involved. Though Tolbert thought he was communicating with a 15-year-old girl, he was actually speaking with Chubbuck police officers.

In essence, Tolbert could argue that the sentence Carnaroli handed down was unlawful because not only was there no child involved, but had there been a child involved it would be the burden of state prosecutors to prove that the child in question was in the care and custody of Tolbert in order for him to be found guilty of felony injury to a child.

After conducting research on his own, Carnaroli said, “I don’t believe I have the authority or power to set aside your guilty plea and start you back at square one.”

Carnaroli added, “But I wanted you to be advised that the factual basis of your guilty plea is in question based on this new case. I wanted you to have an opportunity to discuss this with Mr. Reynolds.”

Carnaroli said that if Tolbert withdraws his guilty plea to the felony injury to a child then he would face the original felony child enticement charge.

“I don’t know if you want to do that,” Carnaroli said. “I also don’t know if the state has the ability to file a motion at this late date or wants to consider a motion to set aside your guilty plea. ... In the future, using a injury to child as a catch-all for sex offense cases is really in question now.”

The Bannock County prosecutor assigned to the case, Zachary Parris, told the Journal on Monday that he is unsure whether the office will file a motion to revoke Tolbert’s guilty plea. Parris said he will need to speak to head prosecutor Steve Herzog before making a final decision on the matter.

Considering Tolbert faced a maximum of 15 years in prison and would have to register as a sex offender if convicted of the child enticement charge, it’s unlikely that Tolbert would voluntarily withdraw his guilty plea, Parris added.

Reynolds told the Journal on Monday that he must speak to his client before deciding further action on the case.

“This Idaho Supreme Court ruling does raise some concern,” Reynolds said. “There are issues that we have to examine and I will talk with my client about what those issues are and then we will make a decision.”

The court did not order an additional hearing and instead left any further proceedings up to either counsel to request.

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