Thursday, April 22, 2010

Shondel Doctrine Applies only to Statues with Exactly the Same Elements

Utah v. Coble, 2010 UT App. 98, (Utah Court of Appeals, April 22, 2010).

Coble was charged with distributing pornographic material when he engaged his webcam and proceeded to masturbate while broadcasting in a private chat session.  Coble moved to have his charge reduced to lewdness under the Shondel doctrine.  Where there is uncertainty as to which of two punishments is applies to an offense, the trial court will bind over the lesser charge.  The trial court found followed the Shondel doctrine and refused to bind over the distribution charge.  State appealed.

The Court of Appeals reversed and remanded the case and found that the Shondel did not apply in this case because the elements of the two crimes were different.  The Court specifically found that pornographic is different from lewd.

Coble briefed several other issues, but failed to file a cross-appeal and the Court refused to rule on these issues. 

Dissent: Even if no cross-appeal was filed, Court still has option to rule on those issues.  In this case, Coble briefed and argued these issues.  The dissent would rule that Coble’s actions as charged did not were insufficient to meet the distribution of pornography statute and the charge should be dismissed.

Tuesday, April 20, 2010

5 Factors to Evaluate Voluntariness of Consent

R.A. v. Utah, 2010 UT App. 71, (Utah Court of Appeals, March 25, 2010).

Another juvenile was questioned about who provided drugs to him. The juvenile indicated that R.A. had provided the drugs. A police officer went to R.A. house; R.A. was not home. While there, he called R.A. and asked if he would come to the house and give the drugs to him, or would he have to try for a warrant. R.A. came to the house and gave the officer the drugs. No Miranda warnings were ever given.

R.A. was convicted of possession of marijuana with intent to distribute. R.A. moved to suppress evidence obtained from a search of his home. The Court denied the motion. R.A. appealed. R.A. argued that the consent-search was illegal, because his consent was not voluntary. When deciding voluntariness the trial court must evaluate the Whittenback factors. Those factors are 1) absence of claim of authority to search; 2) absence of exhibition of force; 3) mere request to search; 4) cooperation by defendant; and 5) absence of deception. The burden is on the state to show that consent was voluntary.

In this case, there was not claim to authority to search, no exhibition of force, there was a mere request to search, the defendant cooperated and the officer did not deceive. Based on the evaluation of the factors, this consent was voluntary and the Court of Appeals affirmed the admission of the evidence.

Full Decision available

Searches of Vehicles Incident to Arrest is Prohibited

Utah v. Baker, 2010 UT 18, (Utah Supreme Court, March 12, 2010).

Baker was a passenger in a vehicle stopped for not having the license plate illuminated.  He entered a conditional plea.  He argued that Police illegally extended the stop to conduct a dog sniff after the arrest of the driver.  Police arrested driver for driving without a license.  Mr. Baker and the other passengers waited in the car until a K9 unit arrived and performed a dog sniff of the vehicle.  The dog alerted on the car door, and police ordered Baker and others out of the car.  Police frisked Baker and found a marijuana pipe.  Later, during booking, police also found a bag of methamphetamine.

Police testified that they did not fear for their safety and that reason for the search because the dog had indicated the presence of drugs.

The Supreme Court affirmed the Court of Appeals suppression of the evidence.  The Court found police illegally prolonged the stop to await the K9 unit.  While there could have been a good faith exception to this violation, Police had no articulable suspicion to justify a Terry frisk of Baker, which uncovered the evidence.  There is no justification allowing police to search as a means of controlling the scene.  Further, any detention after following the resolution of the reason for the stop is illegal; there is not de minimus exception.

Full Decision available at:

Good Faith Exception for Pre-Gant Cases

Utah v. Gettling, 2010 UT 17, (Utah Supreme Court, March 12, 2010).

Gettling was a passenger in a car.  Police stopped the car and arrested the driver.  After the arrest, Police prolonged the detention and performed a dog sniff on the car and on Gettling, one of its remaining occupants.  Police found Drugs in Gettlings belongings.  He was convicted of drug related charged.  Gettling appealed and argued that the trial court should have suppressed evidence because police illegally detained him while conducting the dog sniff.

The Utah Supreme Court found the search of Gettling to be illegal, because the dog-sniff prolonged his detainment.  Because the arrest of the driver ended the reason for the stop, Police should have released Gettling.  Instead of releasing him, Police prolonged the detainment and engaged in a dog sniff. 

However, because at the time of the arrest, then effective case law permitted police to engage in a search of the automobile incident to a lawful arrest.  Because suppressing the evidence in this case would not deter police from engaging in illegal searches, the Court affirms the admission of the evidence under a good faith exception to the exclusionary rule.

Enhancements to Criminal Charges Do Not Merge Into the Principal Crime

Utah v. Kerr, 2010 UT App. 50, (Utah Court of Appeals, March 4, 2010).

Kerr was convicted of aggravated assault and possession of a dangerous weapon by a restricted person, as well as a dangerous weapon penalty enhancement.  Kerr appealed. On appeal,  Kerr argued that the dangerous weapon sentence enhancements into his sentences for aggravated assault and possession of a dangerous weapon.  The Appellate Court affirmed, finding that the dangerous weapon is an enhancement and not a separate crime, and that the two charges do not merge, and that one is not a lesser included offense of the other.

Full Decision available at

3 Step Process for Admitting Evidence of Prior Bad Acts Under URE 404(b)

Utah v. Brown, 2010 UT App. 48, (Utah Court of Appeals, February 25, 2010).

Brown was convicted of Retail Theft.  During the trial, the state offered evidence of prior theft under URE 404(b) to show Brown’s intent, plan, and lack or mistake or accident.  Brown appealed and claimed the trial court should not have admitted the prior theft.  For prior bad act evidence to be admissible there are three requirements.  First, the evidence must be for a non-character purpose (see list in URE 404(b)).  Second, if the purpose is proper, it must also be relevant under URE 402.  Third, the evidence probative value must outweigh the risk of unfair prejudice to the defendant under URE 403.  To make this final determination the trial court must consider several factors including the strength of the evidence as to the commission of the other crime, similarities between the crimes, the interval of time that has elapsed between crimes, the need for the evidence, efficacy of alternative proof, and whether evidence would rouse the jury to overmastering hostility.

Based on this analysis, the Court affirmed the trial court finding that the evidence demonstrated Brown’s intent, plan, or absence of accident or mistake; the Court made this finding because of the remarkable factual similarity between the charged offense and the prior theft.


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