State v. Rocco

2025 UT App 53
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TYSON C. R OCCO,
Appellant.
Opinion
No. 20220566-CA
Filed April 24, 2025
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 211904441
Erick Grange and Michael D. Misner,
Attorneys for Appellant
Derek E. Brown and Tera J. Peterson,
Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and JOHN D. LUTHY concurred.
MORTENSEN, Judge:
¶1 	Tyson C. Rocco acted as the driver in a late-afternoon
drive-by shooting of two children. Adult Probation and Parole
(AP&P) 	characterized 	Rocco’s 	risk 	to 	the 	community 	as
“escalating” based on prior juvenile adjudications of violent
crimes and prior involvement with firearms in his vehicle. In this
context, despite Rocco’s relative youth (he was eighteen when
sentenced), AP&P recommended he be sentenced to a term of up
to life in prison. The district court, however, did not follow this
recommendation and instead suspended the prison sentences,
imposed a jail sentence, and placed Rocco on probation. The terms
of Rocco’s probation included provisions that, among other
things, prohibited “gang involvement.” AP&P filed a report

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within months of sentencing, alleging Rocco had violated the
gang 	provisions. 	Rocco 	denied 	the 	allegations. 	A 	multiday
evidentiary hearing was held, after which the district court found
Rocco 	had 	violated 	probation. 	The 	district 	court 	revoked
probation and imposed the original prison sentences. Rocco
appeals, claiming legal errors, clearly erroneous factual findings,
and an abuse of discretion in imposing the original sentences. We
reject all of Rocco’s claims and affirm the district court.
BACKGROUND
¶2 	A thirteen-year-old boy and his fourteen-year-old friend
were walking in the late afternoon to a friend’s house when a
silver Volkswagen Jetta pulled up alongside them. The car’s
occupants asked the boys where they were from, and without
waiting for an answer, they began shooting at the boys. They then
sped away. Though both boys survived, one was shot twice and
the other once. Multiple witnesses identified the car, and the
police determined that it was registered to Rocco’s mother, who
told police that Rocco had been driving it.
¶3 	Not long after, Rocco was charged with three counts of
discharge of a firearm with serious bodily injury, each enhanced
by a gang penalty. Ultimately, Rocco pled guilty to one count of
discharge of a firearm with serious bodily injury (gang enhanced),
a first-degree felony, and one count of discharge of a firearm
causing bodily injury (gang enhanced), a second-degree felony.
The district court accepted Rocco’s pleas and ordered AP&P to
prepare a presentence report.
¶4 	AP&P recommended Rocco be sentenced to prison. It
found that Rocco’s “involvement in this case [was] extremely
concerning” and noted that Rocco was a documented gang
member, as “confirmed” by AP&P Metro Gang Unit agents.
AP&P detailed Rocco’s juvenile history, which included at least
six violent adjudications. And recently, after he had become an

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adult, officers found a rifle with a live round in the chamber and
the safety lock disengaged after Rocco was pulled over for
attacking a grocery worker with other gang members. AP&P
noted Rocco had “a documented history of being involved with
individuals 	with 	possession 	of 	firearms.” 	AP&P 	concluded,
“[Rocco’s] risk to the community appears to be escalating and
AP&P believes [him] to be a public safety risk and does not
support anything less than a prison recommendation in this case.”
¶5 	The district court sentenced Rocco to five years to life in
prison for the first-degree felony and one to fifteen years in prison
for 	the 	second-degree 	felony. 	However, 	despite 	AP&P’s
recommendation, the court suspended the prison sentences and
ordered Rocco to serve 364 days in jail with the possibility of
release after 180 days. Rocco was also placed on probation for
forty-eight months.
¶6 	The 	court 	warned 	Rocco 	that 	should 	he 	violate 	his
probation, his prison sentences would be reinstated and would
run consecutively. As a part of Rocco’s probation, the court
imposed “the usual and ordinary gang clauses,” explaining that
Rocco was “not to associate with gang members, have gang colors
or gang tattoos,” and he was to “[c]omply with all standard gang
conditions as directed by” AP&P.
¶7 	In September 2021, Rocco was released from jail and
transferred 	to 	a 	recovery 	facility 	to 	receive 	treatment. 	On
September 27, 2021, Rocco signed his probation agreement. He
initialed each provision and signed at the bottom, affirming that
he had read and understood the agreement. Under Rocco’s
probation agreement, he specifically agreed, among other things,
to abide by the following restrictions:
A. “Not associate with any known [gang] member.”
B. 	“Not wear, display, use or possess any insignias, emblems
or clothing associated with a specific gang(s) including, but

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not limited to: belt buckles, jewelry, caps/hats, jackets,
shoes/shoe laces, scarves/bandanas, shirts inscribed ‘In
Memory Of’ a deceased or incarcerated gang member, or
other articles of clothing modified to represent a particular
gang(s).”
C. “Not display any gang signs, gestures or any posturing
associated with any specific gang(s).”
D. “Not 	have 	in 	my 	possession 	any 	written 	materials,
documents, 	computer 	data, 	photographs 	which 	give
evidence 	of 	gang 	involvement 	or 	activity 	such 	as:
(1) membership or enemy lists, (2) articles which contain or
have upon them gang-associated graffiti, drawings or
lettering, (3) photographs or newspaper clippings of gang
members, gang crimes or activities including obituaries,
(4) photographs of myself in gang clothing, demonstrating
hand signs or holding weapons.”
¶8 	In March 2022, AP&P filed a progress/violation report,
alleging that Rocco had violated probation by associating with
gang members and possessing evidence of gang involvement.
An order to show cause hearing was held over the course of
multiple days. An AP&P agent (Agent) testified at each day of the
hearing.
¶9 	Agent testified that when Rocco was released from jail and
started probation, Agent went over Rocco’s probation agreement
“line by line” with him. Agent said that since 2020, Rocco had
been “a documented Benny’s World gang member,” which was
“an independent gang.” Agent explained that Rocco started
Benny’s World after its namesake, Benny Reyes, “was killed.”
Since then, Benny’s World had been involved in “[m]ultiple
activities,” including “shootings on rival gang members.”
¶10 	The State offered and the district court received several
other pieces of evidence, including the following:

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20220566-CA 	5 	2025 UT App 53
• 	A Snapchat1 photo uploaded by Rocco’s friend on March 1,
2022, showing Rocco with four other males. Rocco is
squatting in the middle of the photo with the rest of the
men standing around him. The photo was captioned “All
family 	no 	freinds 	[sic] 	I’m 	living 	life 	a 	g.” 	All 	the
individuals in the photo were alive at the time of the
posting.
• 	A 	photo 	uploaded 	to 	Rocco’s 	Facebook 	account 	on
November 5, 2021, showing Rocco with three other men,
two of whom were killed in August 2021 by a member of a
rival gang.
• 	A photo uploaded to Rocco’s Facebook account on January
5, 2022, showing two men sitting on a bed. One of the men’s
faces was obscured by a hand sign he was making.
• 	A 	SoundCloud2 	account, 	linked 	to 	Rocco’s 	Facebook
account, which contained a profile photo of him in a red
University of Utah hoodie making a hand gesture; multiple
rap songs uploaded after September 27, 2021, including
one track titled “Do ‘Em Janky” that included lyrics about
1. “Snapchat is a social media messaging application, which
allows users to create multimedia messages, such as a photograph
or a short video, and edit that multimedia to include text captions
and other effects. Users are allowed to share that multimedia,
called ‘snaps,’ to a private or semi-public group of users.” In re
J.R.H., 2020 UT App 155, ¶ 2 n.2, 478 P.3d 56 (cleaned up).
2. “SoundCloud is an online social networking service and audio
streaming platform that allows users to share, like, annotate and
comment on tracks, and embed a copy of the SoundCloud media
player on their own website, blog or Facebook page.” State v.
Gibson, Nos. L–13–1223, L–13–1222, 2015 WL 1962850, ¶ 36 (Ohio
Ct. App. May 1, 2015) (cleaned up).

State v. Rocco
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putting people in a cemetery; and a track cover photo that
included two males making hand signs overlaid with the
letters “BW4L.”
¶11 	Based on the evidence presented, the district court made
findings of fact and concluded the following:
• 	Rocco understood his probation agreement and was aware
of the conditions.
• 	The Snapchat photo “constituted a knowing violation of
Condition A of the Gang Conditions.”
• 	The 	photos 	on 	Rocco’s 	Facebook 	and 	SoundCloud
accounts “constituted violations of [Condition D] of the
Gang Conditions.”
• 	The profile photo and audio file on Rocco’s SoundCloud
account “evidenced [Rocco’s] gang involvement, and were
possessed in knowing violation of Condition D of the Gang
Conditions.”
The district court accordingly ruled, “[Rocco’s] probation in this
case is terminated unsuccessfully, and the original sentences are
imposed.”
ISSUES AND STANDARDS OF REVIEW
¶12 	Rocco raises two issues on appeal. First, he argues that the
district court erred when it ruled that he violated probation
because (1) the court misinterpreted the probation agreement and
(2) the record did not support a finding of a violation. A district
“court’s finding of a probation violation is a factual one and
therefore must be given deference on appeal unless the finding is
clearly erroneous.” State v. Peterson, 869 P.2d 989, 991 (Utah Ct.
App. 1994).

State v. Rocco
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¶13 	Second, Rocco argues that the district court abused its
discretion and failed to consider all legally relevant factors when
it sentenced him, a teenager, to prison. “This court reviews a
district court’s decision to revoke probation for an abuse of
discretion.” State v. Bilek, 2017 UT App 37, ¶ 2, 392 P.3d 990 (per
curiam).
ANALYSIS
I. Alleged Probation Violations
¶14 	Rocco’s 	probation 	agreement 	read 	in 	part, 	“I 	fully
understand that violation of this agreement and/or any conditions
thereof, or any new convictions for a crime, may result in action
by the Court causing my probation to be revoked or my probation
period to commence again.” (Emphasis added.) Utah case law
makes clear “that a single violation of probation is legally
sufficient to support a probation revocation.” State v. Legg, 2014
UT App 80, ¶ 11, 324 P.3d 656. Thus, under both Utah law and
Rocco’s own agreement, one violation alone would be sufficient
cause for the court to revoke his probation. But, as discussed
below, Rocco violated his probation agreement in multiple ways:
the Snapchat photo, other online photos, and the SoundCloud
profile photo and audio postings.
A. 	The Snapchat Photo
¶15 	Condition A of Rocco’s probation agreement required that
Rocco “[n]ot associate with any known [gang] member.” The
court made findings of fact that on March 2, 2022, Agent, “who
was assigned to the Metro Gang Unit, was notified by another
detective with the Unit of a photograph uploaded to [Rocco’s
friend’s] Snapchat account.” The photo “was of a group of five
males,” with four of them standing and Rocco “squatting in the
front/middle of the group” and all of them “looking at the
camera.” Agent had testified, “[I]n gang photos usually the

State v. Rocco
20220566-CA 	8 	2025 UT App 53
leader, the shot caller, or what we refer to as the man holding the
keys in the gang, is prominently in that photo. And Mr. Rocco is
in the center of the photo. . . .” The court found that the “other
males in the photograph” were either members of the Benny’s
World gang or documented associates of the gang.
¶16 	Based on the available evidence and the court’s findings of
fact, the photo captured Rocco associating with known gang
members. Of course, that’s only a violation of Rocco’s probation
agreement if the captured activity took place after he signed his
probation agreement.
¶17 	The photo was posted on March 1, 2022, well after Rocco
was released and signed his agreement. The photo was captioned,
“All family no freinds [sic] I’m living life a g.” The court found
that in “contrast to the other photographs addressed in the
hearings, all of the individuals in the Snapchat photograph were
alive at the time of the posting.” The court further found that the
“caption also suggested that it was taken contemporaneously
with the posting.” Additionally, the court found that Rocco’s
“hair in the photograph was . . . consistent with how he wore it
around the time the photograph was posted in 2022.” In contrast,
the court noted that Rocco’s hairstyle in the photo differed from
the way it appeared “at the time of his arrest for the shooting in
this case and at the time he first met with Agent.”
¶18 	Rocco argues that the court improperly relied on Agent’s
suggestion that the photo was taken near the time of its posting
because Agent “admitted” that his testimony was speculative. But
that argument takes Agent’s comment out of context. His actual
statement was that “it’s all speculative of if he’s still associating
other than what he’s put on social media.” (Emphasis added.)
Accordingly, while Agent was admitting he was speculating as to
something—in context, that Rocco was generally associating with
gang members—Agent was explicit that he was not speculating
about what had been found on social media. And that social

State v. Rocco
20220566-CA 	9 	2025 UT App 53
media 	presence 	is 	what 	the 	district 	court 	focused 	on 	in
determining that the probation agreement had been violated. That
the 	Snapchat 	photo 	existed 	and 	was 	posted 	online 	is 	not
speculative; it is an established fact supported by the record.
Based on that photo and the other evidence, the court made
inferences about Rocco’s association with gang members, but
those inferences weren’t dependent on speculative evidence. “The
distinction 	between 	reasonable 	inference 	and 	speculation 	is
intensely fact-based. . . . A reasonable inference arises when the
facts can reasonably be interpreted to support a conclusion that
one possibility is more probable than another.” Salt Lake City v.
Howe, 2016 UT App 219, ¶ 11, 387 P.3d 562 (cleaned up).
¶19 	On 	cross-examination, 	Agent 	also 	repeated 	the 	word
“speculative” after being asked a question with that word in it.
On appeal, Rocco attempts to use the casual use of that word to
support his entire legal argument. But we are not persuaded that
Agent’s repeating the word “speculative” on cross-examination
undermined 	the 	district 	court’s 	ability 	to 	make 	reasonable
inferences regarding the exhibits admitted into evidence.
¶20 	Accordingly, the district court did not clearly err in finding
that the photo was taken after Rocco was released and that the
photo included known gang members. Therefore, the evidence
supported the district court’s finding that the Snapchat photo
“showed 	[Rocco] 	associating 	with 	at 	least 	two 	documented
members of the Benny’s World gang subsequent to September 27,
2021 and constituted a knowing violation of Condition A of the
Gang Conditions.” We therefore hold that the district court’s
conclusion that Rocco violated his probation agreement was not
clearly erroneous.
B. 	Rocco’s Online Photos
¶21 	Condition D of Rocco’s probation agreement required that
he not “have in [his] possession any written materials, documents,
computer 	data, 	photographs 	which 	give 	evidence 	of 	gang

State v. Rocco
20220566-CA 	10 	2025 UT App 53
involvement or activity such as: (1) membership or enemy lists,
(2) articles which contain or have upon them gang-associated
graffiti, drawings or lettering, (3) photographs or newspaper
clippings of gang members, gang crimes or activities including
obituaries, 	(4) 	photographs 	of 	[himself] 	in 	gang 	clothing,
demonstrating hand signs or holding weapons.”
¶22 	Rocco 	posted 	multiple 	photos 	to 	his 	Facebook 	and
SoundCloud accounts. The district court made findings of fact
that 	Rocco 	was 	the 	account 	holder 	for 	the 	Facebook 	and
SoundCloud accounts at issue here and that, as such, he “would
have been able to both post and delete photographs and other
media to the accounts.”
¶23 	The 	court 	found 	that 	one 	of 	the 	images 	on 	Rocco’s
SoundCloud account “showed two males, one making hand
signs, and had the letters ‘BW4L’ at the top.” Agent testified,
without objection, that BW4L means “Benny’s World for life.”
¶24 	The court found that on November 5, 2021, a photo was
“uploaded to [Rocco’s] Facebook account” that showed Rocco
with Benny Reyes (the namesake of the Benny’s World gang) and
two other men, Juan and Ivan. Juan and Ivan “were killed in
August 2021,” allegedly by a rival gang member who was charged
with their murders. Agent initially testified, without objection,
that Juan and Ivan were “members or associates” of the Benny’s
World gang.
¶25 	The court also found that on January 5, 2022, another
photograph was “uploaded to [Rocco’s] Facebook account [that]
showed Juan . . . and a second male whom Agent . . . believed was
Ivan . . . , although the second male’s face was obscured by a hand
sign he was making.”
¶26 	Rocco’s 	probation 	agreement 	prohibited 	him 	from
possessing any “photographs or newspaper clippings of gang
members, gang crimes or activities including obituaries.” Agent

State v. Rocco
20220566-CA 	11 	2025 UT App 53
testified that the probation agreement would have prohibited
“maintaining obituaries of former dead homies, rest in peace
shirts, those kinds of things as well.” Agent further stated,
“[W]hen I go over their agreement, I go over it more in detail like
I just said, so they can understand what that means.” Agent
explained,
A 	large 	part 	of 	gang 	membership, 	gang
involvement revolves around remembering those
that were killed either in drive-by shootings or in
furtherance of the gang. And that’s whether it’s a
street gang or an outlaw motorcycle gang that helps
inspire younger gang members to know that if they
should die, that they’ll be remembered. And they
get the tattoos. In Mr. Rocco’s case, this gang is
formed based off of a dead homie and Mr. Rocco has
the tattoo remembering that dead homie. And it’s a
continuing furtherance of how the gang operates for
future recruitment and such and to keep people in
there.
¶27 	Rocco argues that “the district court’s finding that the
November 5th and January 5th photos of Rocco’s friends violated
Condition D of the probation agreement was clearly erroneous
because it is ‘not adequately supported by the record’ that Benny,
Ivan, or Juan were gang members.” (Quoting State v. Perea, 2013
UT 68, ¶ 32, 322 P.3d 624 (cleaned up).) Rocco contends that
though Agent “initially testified that Ivan and Juan were ‘gang
members or associates’ of the ‘Benny’s World’ gang,” on “cross-
examination, [Agent] recanted his testimony and stated that he
did not know if Ivan and Juan were gang members.” When asked
whether they were documented gang members, Agent replied, “I
believe so. I do not know that off the top of my head.” Later, Agent
stated that he didn’t “know if those two ha[d] been documented
other than Mr. Rocco’s statements that those were his homies and
his best friends.” But these statements and Rocco’s argument do

State v. Rocco
20220566-CA 	12 	2025 UT App 53
not undermine the court’s findings or legal conclusions to the
extent Rocco suggests.
¶28 	While it’s true that Condition D of Rocco’s agreement
specifically lists “photographs or newspaper clippings of gang
members” as an example of a prohibited item, the condition also
prohibits 	Rocco 	from 	possessing 	“any 	written 	materials,
documents, computer data, [or] photographs which give evidence
of 	gang 	involvement 	or 	activity.” 	(Emphasis 	added.) 	Agent
initially testified, without objection, that Juan and Ivan were gang
members. He later did retreat somewhat from that testimony by
clarifying that he could not recall off the top of his head whether
they were documented gang members. But Agent also testified
that Juan and Ivan were associated with the gang, that they were
killed in a gang violence incident, that a rival gang member was
charged with their murders, that Benny was the namesake of the
Benny’s World gang, and that posting and maintaining photos of
those 	who 	were 	killed 	in 	gang 	violence 	incidents 	was 	an
important part of gang involvement. Photographic reference to
gang activity was explicitly prohibited by Condition D. So, even
if Juan and Ivan were not formally documented members of a
gang, the evidence was sufficient to establish, at the very least,
that Rocco’s possession of these photos was evidence of gang
involvement or activity. And Rocco does not show that there is
not a gang (which he founded) named Benny’s World or that—
after he was placed on probation and signed the probation
agreement—the district court could not find that Rocco posted a
photograph of the gang’s namesake Benny on Facebook. This
posting alone would support a finding of a violation of probation.
¶29 	The district court did not clearly err in making these
findings of fact and in concluding that Rocco’s “action in posting
and leaving photographs and audio accessible to the public on
Facebook and SoundCloud amounted to him having the items in
his possession contrary to Condition D of the Gang Conditions.”
Likewise, there was no clear error in the conclusion that the

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20220566-CA 	13 	2025 UT App 53
“photographs uploaded [to Rocco’s] Facebook page on November
5, 	2021, 	and 	January 	5, 	2022, 	memorialized 	the 	deceased
namesake of the Benny’s World gang, as well as two associates
killed by a rival gang member, and constituted violations of
Condition D of the Gang Conditions.”
C. 	The SoundCloud Profile Photo and Audio Postings
¶30 	The district court made findings of fact that Rocco’s
“SoundCloud 	account 	included 	rap 	songs 	which 	had 	been
uploaded after September 27, 2021. One track, titled ‘Do ‘Em
Janky,’ was uploaded seven months prior to the June 2022,
hearing.” The court further found “the track referenced Benny’s
World, and included lyrics about putting people in the cemetery
and putting them in an obituary.”
¶31 	In speaking about Rocco’s audio postings, Agent testified,
“AP&P’s stance is [that] this is very inflammatory to the other
rival gang members. It’s just what gang members do. They talk
trash to one another. And instead of 30 years ago where it would
be settled in a fist fight, it ends up in a shooting.”
¶32 	The court further found that the “profile photograph on the
SoundCloud account was of [Rocco] wearing a red sweatshirt and
making a hand gesture.” Agent testified that in that SoundCloud
“photo he’s wearing red; what [officers] describe as his gang
colors.” In fact, witnesses reported that during the drive-by
shooting for which Rocco was initially arrested, he and his co-
conspirator were wearing red masks or bandanas.
¶33 	Rocco argues the district court erred as a “matter of law”
in interpreting the probation agreement to prohibit either “types
of music” or University of Utah hoodies.3 The district court made
3. The State contends that this argument is not preserved because
Rocco never made it below. Because the merits of this claim can
(continued…)

State v. Rocco
20220566-CA 	14 	2025 UT App 53
no such interpretation. Rather, it made specific findings of fact
regarding Rocco’s violation of his probation agreement.
¶34 	The court did not find that the SoundCloud data was a
violation of Rocco’s probation because the conditions prohibited
“types of music” or University of Utah hoodies. Rather, the court
found that the SoundCloud track and the associated pictures
“evidenced [Rocco’s] gang involvement, and were possessed in
knowing violation of Condition D of the Gang Conditions.” It’s
not that Rocco cannot listen to rap music under his probation
agreement; rather, Rocco cannot “have in [his] possession any
written materials, documents, computer data, photographs which
give evidence of gang involvement or activity.” And that is what
the 	court 	found 	Rocco’s 	SoundCloud 	data 	reflected—gang
involvement.
¶35 	There is no clear error in the court’s factual findings that
Rocco’s SoundCloud profile 	featuring 	a photograph 	of 	him
wearing red and making a hand gesture, along with the audio
posting 	that 	referenced 	the 	Benny’s 	World 	gang 	and 	was
uploaded seven months prior to the June hearing, evidenced
be easily resolved in the State’s favor, we choose not to address
preservation. See State v. Bowdrey, 2024 UT App 113, ¶ 18 n.3, 555
P.3d 367 (“If the merits of a claim can easily be resolved in favor
of the party asserting that the claim was not preserved, we readily
may opt to do so without addressing preservation.” (cleaned up)),
cert. denied, 561 P.3d 688 (Utah 2024); see also State v. Kitches, 2021
UT App 24, ¶ 28, 484 P.3d 415 (“[B]ecause we can easily dispose
of [this claim on its] merits, we choose to exercise our prerogative
to 	simply 	assume 	that 	[it 	was] 	preserved 	and 	proceed 	to
consideration of the merits.”).

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20220566-CA 	15 	2025 UT App 53
Rocco’s 	gang 	involvement 	and 	were 	possessed 	in 	knowing
violation of Condition D.4
¶36 	Rocco needed to violate his probation agreement only once
to justify the court’s revocation of his probation. Here, as to all the
violations identified above, we find no clear error in the court’s
factual findings that Rocco violated his agreement multiple times.
The Snapchat photo and the surrounding evidence demonstrated
a violation of Condition A, Rocco’s online photos demonstrated a
4. Rocco alternatively argues that if his probation agreement
prohibited 	him 	from 	wearing 	red, 	that 	agreement 	was
unconstitutionally 	vague. 	However, 	in 	Rocco’s 	brief, 	this
argument is not identified as a separate issue, nor is there any
identification of where it was preserved below. Rocco argues that
if we conclude this issue isn’t preserved, we ought to review it
under plain error. To show plain error, Rocco “must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.” State v. Johnson, 2017 UT
76, ¶ 20, 416 P.3d 443 (cleaned up). For an error to be obvious, the
law governing the error must have been clear, or settled at the
time the alleged error was made. Id. ¶ 21. And to be harmful, the
error must have been “of such a magnitude that there is a
reasonable 	likelihood 	of 	a 	more 	favorable 	outcome 	for 	the
defendant” 	absent 	the 	error. 	Id. 	(cleaned 	up). 	Further, 	our
supreme court has clarified that “for an unpreserved federal
constitutional 	claim, 	the 	defendant 	bears 	the 	burden 	to
demonstrate that any error was harmful.” State v. Bond, 2015 UT
88, ¶ 15, 361 P.3d 104. Any error here, if it did exist, was not
obvious, and this argument would therefore fail a plain error
review. Moreover, as we have explained, Rocco needed to violate
his probation agreement only once for the district court to revoke
his probation. Given his numerous violations, Rocco cannot show
that this alleged error was harmful because even if we take the
SoundCloud profile photo out of the equation completely, the
result would still be the same.

State v. Rocco
20220566-CA 	16 	2025 UT App 53
violation of Condition D, and his SoundCloud profile photo and
audio postings also demonstrated a violation of Condition D.
Given all this, the court did not err in concluding that Rocco
violated his probation agreement.
II. Imposition of Original Sentences
¶37 	Lastly, Rocco contends that “the district court abused its
discretion or failed to consider all legally relevant factors when it
terminated probation and sentenced a teenager to prison.” “This
court reviews a district court’s decision to revoke probation for an
abuse of discretion.” State v. Bilek, 2017 UT App 37, ¶ 2, 392 P.3d
990 (per curiam). Here, there was no abuse of discretion on the
part 	of 	the 	district 	court 	because 	the 	record 	supports 	the
underlying finding that Rocco violated his probation agreement.
¶38 	Rocco attempts to fuse the requirement to consider all
relevant factors at the time of sentencing with how the district
court should evaluate the sanction for a probation violation.
Rocco references State v. Killpack, 2008 UT 49, 191 P.3d 17, to
suggest that “courts must consider all legally relevant factors in
making a sentencing decision.” Id. ¶ 59. However, Killpack is a case
about initial sentencing, see id. ¶¶ 16–17; this is a case about
revoking probation. The requirement that courts consider all
legally relevant factors does not apply to a probation revocation.
On the contrary, when it comes to “revoking probation, the
ultimate 	choice 	of 	sanction 	falls 	within 	the 	district 	court’s
discretion.” State v. Hoffman, 2017 UT App 173, ¶ 15, 405 P.3d 855.
¶39 	Rocco uses Killpack to suggest this decision be reversed
because the district court “failed to consider all legally relevant
factors” when it sentenced “a teenager to prison based on social
media photos and one song on social media.” But Rocco’s
argument confuses the causal chain and suggests that he was
sentenced to prison for more “than a quarter of [his] life” just
because of some online activity. To be clear, Rocco was sentenced
to prison because, with a troubling history of violent offenses, he

State v. Rocco
20220566-CA 	17 	2025 UT App 53
pled guilty to serious charges in connection with the drive-by
shooting of two children. If Rocco took issue with his initial
sentencing, he should have raised that issue when the sentences
were handed down. The question before us is not his original
sentencing; it is the revocation of his probation and the resultant
sanction.
¶40 	As discussed above, Rocco needed to violate his probation
agreement in only one particular to justify the district court’s
revocation. And here, the district court’s decision was based on
far more than just one violation. Rocco’s original sentences were
justified by the severity of his crime and his continued risk to the
community. AP&P recommended a prison sentence when Rocco
was originally sentenced, but the court gave him a second chance
via his probation agreement. His probation violations highlight
his continued association with gang members. The data he posted
and maintained online memorialized gang activities. Rocco’s
actions 	communicated 	that 	he 	was 	an 	ongoing 	risk 	to 	the
community. Based on these facts, the district court acted well
within its discretion when it revoked Rocco’s probation.
CONCLUSION
¶41 	We discern no clear error in the district court’s factual
findings. Accordingly, we affirm the district court’s conclusion
that Rocco violated his probation agreement. We further conclude
that the district court did not abuse its discretion in revoking
Rocco’s probation and imposing the original sentences.