Failure to Have Physical Evidence Examined = Ineffective Assistance of Counsel

State of Utah v. Lenkart, 2011 UT 27 (Utah Supreme Court, May 17, 2011).

Lenkart engaged in sexual intercourse with K.H. (alleged victim) after an evening of heavy drinking.  K.H. claimed that she somehow ended up in Lenkart’s bed and awoke to Lenkart performing oral sex on her, told him to stop and passed out.  She then awoke to him penetrating her—she told him to stop and she left his home.  A code R examination was conducted.  Lenkart disputed the testimony stating that she climbed into his bed, the acts were consensual, and that there was no oral sex.

At trial, the nurse who conducted the Code R examination testified that she had to use tweezers to remove a tampon that had been lodged in K.H.  The nurse testified that the lodging of the tampon was consistent with nonconsensual intercourse.  Lenkart’s counsel never had his own expert review the Code R kit and presented no expert evidence to dispute the nurse’s testimony.

Lenkart was convicted of forcible sodomy and two counts of forcible sexual abuse.  He appealed arguing that his counsel was ineffective for failing to have the Code R kit examined by another expert.   Post-trial Lenkart had the kit examined by and expert who opined that the lodging of the tampon was consistent with consensual sex, and that the swabs in the Code R kit were negative for saliva which indicates that there was no oral sex.

The Trial court denied Lenkart’s motion for a new trial.  Lenkart appealed.

On appeal, the Supreme Court found that failure to have an expert examine the Code R kit was a failure to investigate by his counsel and that based on the proffered testimony of Defense expert that contradicts the victim’s testimony and that of the State’s expert such a deficiency was prejudicial to Lenkart.

Note: Court also address access and admission of medical records.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Lenkart051711.pdf

Extreme Emotional Distress is NOT an Affirmative Defense. It is Special Mitigation

State of Utah v. White, 2011 UT 21 (Utah Supreme Court, April 19, 2011).

White charged with attempted murder, moved for a jury instruction regarding Extreme Emotional Distress.  The trial court denied the motion.  White Appealed.  The Court of Appeals affirmed.  The Supreme Court found that the Court of Appeals used the incorrect standard when deciding if the instruction should be given; requiring a highly provocative triggering event. 

The Supreme Court found the Court of Appeals erred because instructions as to affirmative defenses require only a reasonable basis for the instruction.  The reasonable basis must be based on whether a jury could conclude Defendant was exposed to extremely unusual and overwhelming stress from a reasonable person’s viewpoint.  Remanded to trial court to evaluate Defendant’s evidence of a reasonable basis for the instruction.

IMPORTANT NOTE: Extreme Emotional Distress is no longer an Affirmative Defense, but is special mitigation.  See State v. Drej, 2010 UT 35 ¶19 and U.C.A. § 76-5-205.5(1)(b).

Full Decision available at http://www.utcourts.gov/opinions/supopin/White2041911.pdf

Finding Drugs in Patrol Car Sufficient to Prove Possession

State of Utah v. Martin, 2011 UT App 112 (Utah Court of Appeals, April 14, 2011).

Martin appeals a jury conviction of Possession of a Controlled Substance, which was found in the back seat of the patrol car where he had been placed following his arrest. 

The Court of Appeals found that there was sufficient evidence for a jury to conclude the methamphetamine belonged to Martin.  This based on the officer’s testimony that he had searched the vehicle prior to his shift, the drugs were found in the same area where Martin’s hands were, and Martin was observed moving around suspiciously in the back seat—leaning forward and fidgeting around, yet he never complained about being uncomfortable.  When the officer opened the door, he found Martin’s hand in his pocket and coins were spilling out.  Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/martin041411.pdf

Unidentified Tipster’s Tip Can be Sufficient for Probable Cause for Stop

Salt Lake City v. Street, 2011 UT App 111 (Utah Court of Appeals, April 14, 2011).

Street convicted of driving under the influence.  He appealed based on the denial of his motion to suppress the evidence arising from the stop because the stop was based on a tip from an unidentified tipster. 

The tipster, while accompanied by her children in the park, reported to police that she saw a man passed out in his car near the park with a child in the vehicle.  She provided a description of the car and location of the vehicle.  The officer stopped the car based on that tip alone; he witnessed no erratic driving.

The Court of Appeals found that when assessing whether a tip is sufficient to warrant a stop the trial court must evaluate three factors: (1) Reliability of the informant, (2) the detail of the information, and (3) corroboration of the tip by the officer’s own observations. 

In this case, the informant was reliable because she approached the officer with her children, sought nothing in return for her information, and did not attempt to hide her identity.  Further, she provided adequate detail to allow the officer to identify the vehicle.  Lastly, all the information that she provided was corroborated when the officer found the car and Street with his child.

Full Decision available at http://www.utcourts.gov/opinions/appopin/street041411.pdf

Those Charged with Class A Misdemeanors Have a Right to a Preliminary Hearing

Utah v. Hernandez, 2011 UT 16 (Utah Supreme Court, March 29, 2011).

Hernandez was charged with four Class A Misdemeanors.  He requested a preliminary hearing.  The hearing was denied, Hernandez appealed.

The Court of Appeals found that the Utah Constitution is broader and provides more protection than the U.S. Constitution in regards to a Defendant’s right to a preliminary hearing.  The Utah Constitution allows that every crime in which must be prosecuted by indictment (in 1888, interpreted to mean that every public offense, except those triable in justice courts).  The Supreme Court interpreted the Constitution and this statement to mean that any offense that is punishable by more than six months of incarceration entitles the defendant to a preliminary hearing.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Hernandez032911.pdf

Roommates of Non-Custodial Parents are in A Special Position of Trust

Utah v. Watkins, 2011 UT App 96 (Utah Court of Appeals, March 24, 2011).

Watkins convicted of aggravated sexual abuse of a child appeals contending that no reasonable jury could have concluded that he was in a position of special trust with the child. 

The definition of special position of trust includes cohabitants.  Because Watkins was a roommate of the victim’s father and the victim occasionally had overnight visits with her father, Defendant was a cohabitant of the victim and thus, in a special position of trust.

Watkins also argued no reasonable jury could have concluded that his acts were not intended to arouse or gratify his sexual desire.  However, the record indicated he kissed the victim “wetly” on her head for three minutes.  This kiss was combined with his pinching and rubbing of the victim’s buttocks for two minutes.  These facts along with the fact that Watkins offered the victim $100 immediately after the incident, demonstrated that the act was intended to gratify his own desires.

Lastly, Watkins appealed the denial of a new trial based on newly discovered evidence of a text message transmitted by victim’s mother indicating Watkins entered the child’s room to discipline the child (i.e. had not gone in to kiss or otherwise molest the child).  However, the denial was not in error because this same evidence undermines Defendant’s argument at trial, which was that he entered the room because he was in need of human contact because of the loss of his own children.

Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/watkins032411.pdf

Prior Bad Act Evidence Requires Shickles Evaluation Prior Sexual Crimes Evidence Requires 404(c) analysis + Shickles Evaluation

Utah v. Ferguson, 2011 UT App 77 (Utah Court of Appeals, March 17, 2011).

Ferguson was convicted of child sex abuse.  Ferguson appealed arguing that his prior bad act evidence should not have been admitted.  The Court of Appeals found that when reviewing the admission of prior bad act evidence the trial court must consider the Shickles factors: (1) strength of the evidence, (2) similarities between crimes, (3) interval of time between crimes, (4) the need for the evidence, (5) the efficacy of alternate proof, and (5) the degree to which the evidence probably will rouse the jury to overmastering hostility.

After considering ALL five factors, the trial court must also consider whether the probative value outweighs the possibility of unfair prejudice.  Additionally, in cases like this, where the State intends to present evidence of similar child molestation crimes, the trial court must additionally find that (1) the crime would be a sexual offense if committed in Utah, (2) that the evidence tends to prove the accused’s propensity to commit the crime charged and (3) whether it passes the balancing test.  See Rule 404(c) of Utah Rules of Evidence

In this case, the trial court failed to conduct the 404(c) test along with the accompanying balancing test.  As such, the trial court erred in failing to conduct the test.  However, because of the overwhelming evidence against Defendant, it was harmless err.

Full Decision available at http://www.utcourts.gov/opinions/appopin/ferguson031711.pdf

A Magistrates Violation of the Rules of Criminal Procedure Does Not Warrant Suppression

Utah v. Dominguez, 2011 UT 11 (Utah Supreme Court, March 1, 2011).

Dominguez was arrested for DUI, and the officer obtained a warrant for a blood draw.  However, the magistrate that approved the warrant failed to retain a copy of the original warrant as required by Rule 40 of the Rules of Criminal Procedure.  The Court of Appeals overturned the trial court ordering suppression of the evidence.

The Supreme Court found that the judge that approved the warrant did indeed violate Rule 40. However, because the Defendant failed to demonstrate how the violation of Rule 40 infringed upon a substantial right, it did not warrant the harsh remedy of suppression.  Suppression is a remedy reserved for instances in which suppression would discourage officers from constitutional rights of citizens.  Because in this case, the officer obtained a warrant in compliance with the constitution, the remedy of suppression would serve no deterrent effect and as such is an inappropriate remedy for the magistrates violation of Rule 40.  Court of Appeals Reversed (Trial Court Affirmed).

Full Decision available at http://www.utcourts.gov/opinions/supopin/Dominguez030111.pdf

Failing to Make Futile Objections ≠ Ineffective Assistance of Counsel

State v. C.D.L. 2011 UT App 55 (Utah Court of Appeals, February 25, 2011).

Defendant was convicted of four counts of aggravated assault with a deadly weapon.  Defendant now asserts ineffective assistance of counsel because his attorney (1) failed to request a directed verdict, (2) failed to renew objections to admissibility of the 911 transcript and (3) failed to move for a new trial.

(1) Defendant claims that a car is not a deadly weapon, and that his attorney should have moved for a directed verdict on the enhancement.  The Court of Appeals found that because the car was used in an attempt to cause serious bodily injury to another, it is a dangerous weapon.  Further, because a motion for a directed verdict would have been futile, failing to make such a motion is not ineffective assistance.

(2) Defendant argued that the 911 call was not properly authenticated hearsay.  However, the caller identified herself and witnesses who observed the events corroborated the circumstances she described, thus it was authenticated.  Further, the statements may have been hearsay evidence, but were excited utterances and thus excepted from the hearsay exclusion.  The 911 calls are greatly probative and carry little unfair prejudice, the Court did not err in admitting, neither was it ineffective assistance when counsel chose not to object.

Lastly, Defendant asserts ineffective assistance of counsel, when his attorney failed to request a new trial based on Wife’s victim impact statement in which she describes the incident as her fault and not as serious as witnesses claim.  The Court notes that wife was not present at trial and was not a witness for either party.  Because there are so many unknown s about wife, it is impossible to overcome the strong presumption in favor of effectiveness.  Affirmed on all claims.

Full Decision available at http://www.utcourts.gov/opinions/appopin/cdl022511.pdf

Gruesome Photos are Admissible to Show Intent

State v. Stapley 2011 UT App 54 (Utah Court of Appeals, February 25, 2011).

Stapley was convicted of attempted murder.  At trial, Stapley moved to suppress certain photos of the victim’s injuries, claiming that photos were irrelevant and that admission of the photos might cause unfair prejudice.  The trial court admitted the photos.  Stapley appealed.

The Court of Appeals found that the photos were relevant.  Because the charge was attempted murder, the State had the burden of demonstrating that Defendant’s intent was to kill the victim.  The photos demonstrated both the ferocity with which the victim was attacked and the many wounds inflicted by Defendant.  The Court further found that although the pictures were indeed gruesome, and presumed prejudicial, the photos had unusual probative value.  In other words, because Defendant put forth the claim that he did not intend to kill the victim, the pictures provided proof of his intent to kill.  The pictures demonstrated that the injuries were not accidental, and such evidence of intent outweighed the possibility of unfair prejudice. Affrimed

Full Decision available at  http://www.utcourts.gov/opinions/appopin/stapley022511.pdf

Defendant Must Show Good Cause Before He is Allowed Discovery Beyond Rule 16

State v. Tanner 2011 UT App 39 (Utah Court of Appeals, February 3, 2011).

Tanner was convicted of 5 counts of possession with intent to distribute.   Defendant filed several discovery requests seeking the disclosure of the search warrant and probable cause affidavits in support of the search warrant.  The Court denied Defendant’s motion to compel.  Defendant appealed.

The trial court based its ruling on admissibility and relevance of the evidence.  The Court of Appeals found that admissibility and relevance are not the standard and therefore the ruling was in error, however, because of the overwhelming evidence against Defendant, it is harmless error.  A defendant must show that the requested evidence is necessary to the proper preparation of the defense in order to obtain discovery beyond what rule 16 demands.  In this case, because the evidence calls into question the credibility of the confidential informant, Defendant met the good cause requirement and the motion to compel should have been granted.

Full Decision available at   http://www.utcourts.gov/opinions/appopin/tanner020311.pdf

Affirmative Defenses Must be Disproved Beyond a Reasonable Doubt

State v. Sellers 2011 UT App 38 (Utah Court of Appeals, February 3, 2011).

Sellers was convicted of aggravated sexual assault of a child.  Sellers claimed that his voluntary intoxication inhibited his complete ability to form the necessary intent to commit the crime.  The voluntary intoxication instruction that was given to the jury failed to instruct the jury that the State had burden of disproving the affirmative defense.

The Court of Appeals found that Sellers’s attorney’s failure to object and failure to propose a proper instruction was ineffective assistance of counsel, because there was no strategic reason for omitting the burden of proof.  Because the deficient performance, and the deficiency of the instruction the Court of Appeals Reversed the conviction and Remanded the case for a new trial. 

Note—The Court also commented on a two lines of questioning put forth by the State: 1) Questions to a detective on the case regarding the drunkenness of Defendant. The Court of Appeals stated that because the detective’s testimony was not based on personal observation of the drunkenness, his testimony was inappropriate lay testimony.  2) Questions to the same detective as to the truthfulness of the testimony of the child victim.  The Court of Appeals found this testimony to improperly bolster the testimony and that both lines of questioning should be avoided in the new trial.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/sellers020311.pdf

Before a Justice Court Case Can Be Appealed Past District Court, District Court Must Rule on Constitutionality of the Law.

Saratoga Springs City v. Wayman, 2011 UT App 22 (Utah Court of Appeals, January 21, 2011).

Wayman was convicted of Assault with a domestic violence enhancement in the Saratoga Springs Justice Court.  He appealed to the District Court.  The District Court affirmed the Justice Court ruling and Wayman appealed.  The Court of Appeals found it lacked jurisdiction because when a case originates in a justice court the following trial de novo is final and may not be appealed unless the district Court rules on the constitutionality of the state or ordinance.  Without such a ruling, there is no jurisdiction for further appeal.  Dismissed.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/wayman012111.pdf

Angry Judge is Not a Violation of Constitutional Rights

Angry Judge is Not a Violation of Constitutional Rights

State v. Munguia, 2011 UT 5 (Utah Supreme Court, January 14, 2011).

Munguia was pleaded guilty to two counts of attempted aggravated sexual abuse and two counts of sexual abuse and was sentenced to two consecutive sentences of three years to life, and two additional sentences of one to fifteen years.  In addition to the sentence, the Judge went on to lecture Defendant as to how his actions affected the victim and ended with the 4 sentences running consecutively.  Defendant did not object at the time of sentencing.  Defendant Appealed.

Defendant’s brief failed to discuss the constitutionality of the sentence and focused only on when a Judge should recuse himself.

The Court of Appeals found that the lecture by the judge did not show his bias against the Defendant as an individual, but bias against the crime that was allegedly committed.  Because it was not against the individual this bias would not require the judge to recuse.  Further, the sentence did not give rise to exceptional circumstances.  The sentence was within the sentencing guidelines for the crimes committed.  As such the district court sentence is affirmed.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Munguia011411.pdf

Expert Testimony as to Truth and Veracity of a Witness is Admissible

State v. Prows, 2011 UT App 9 (Utah Court of Appeals, January 13, 2011).

Prows was convicted of aggravated sexual abuse of a child.  Defendant appeals argues the confession should have been suppressed , and that Defendant should have been permitted to present expert testimony regarding how his mental state would have affected his confession.

When evaluating the constitutionality of an interrogation the Court must analyze the representations made by the interrogators and the characteristics of the subject.

The Court of Appeals affirmed the trial court finding that the questioning was not constitutionally coercive.  Police made no false promises, made no threats, or made any misrepresentations of the evidence.  The length of the interrogation was only 51 minutes.  Prows’s stated at the time of the interrogation that he “felt good.” He did not exhibit below-average cognitive abilities and he had taken his medications to control his depression and ADD. 

The Court found that expert testimony is admissible as to the truth and veracity of the witness so the trial court erred in not allowing this evidence.  However, because of all the other evidence against Defendant, this was harmless error.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/prows011311.pdf

District Courts Have Discretion to Rehear Pretrial Motions

State v. Bozung, 2011 UT 3 (Utah Supreme Court, January 7, 2011).

Bozung prevailed on his motion to suppress a confession and related evidence when the state failed to show that he was adequately informed of his Miranda rights.  The state moved the trial court to rehear the suppression issue.  The trial court denied the motion finding that it did not have discretion to rehear the matter.  The State Appealed. 

The Court of Appeals found that trial courts have discretion as to whether to rehear pretrial motions and that it should use that discretion liberally to allow the whole case to be presented.  Determinations regarding rehearings must be made in the light of the totality of circumstances.

Rule 24 of the Rules of Criminal Procedure apples only to post-trial motions.  In considering whether to rehear a pretrial motion the court should consider the following factors: 1) the reason the proposed evidence was not produced at the first hearing; 2) whether an omission was deliberate or accidental, grossly negligent or merely careless; 3) whether the proposed evidence was lawfully obtained; 4) whether the proposed evidence will have a substantial effect on the court’s ruling; 5) whether permitting the evidence will unfairly prejudice the party against whom it is being offered; 6) experience of the prosecutor; nature of the case; 7) timeliness of the motion; and 8) the court’s “strong interest in controlling its docket and avoiding piecemeal litigation.”  Reversed and Remanded to consider the factors as to whether the suppression issue should be reheard.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Bozung010711.pdf

16 Year Old Charged With Murder Has No Constitutional Right to Juvenile Court

State v. Angilau, 2011 UT 3 (Utah Supreme Court, January 7, 2011).

Angilau was charged with murder in the district court and moved to have the case heard by the juvenile court.  The motion was denied and Defendant appealed.

The question before the court is the constitutionality of the automatic wavier statute that 16 year olds charged with murder to district court.  The Supreme Court found there is no fundamental right to have a matter tried in juvenile court (since the juvenile court is one of legislative creation, they are permitted to limit its jurisdiction).  Therefore, under a substantive due process test the statute must only have a legitimate state interest.  Being that the goal is to be able to adequately protect the public from murderers, the State may need more time to rehabilitate than the Juvenile Court jurisdiction would allow (being that the maximum sentence in the juvenile court would be 2 years).  Further, the statute does not violate the uniform operation of laws provision.  In this case, there is a classification (16 year olds who are accused with murder); there is a chance that similarly situated individuals will be treated differently (juveniles close to the borders of their 16^th birthday may be treated differently depending on when the alleged crime occurs); However, the legislature has reasonable objectives that warrant the disparate treatment.  Because of the legislative goals, the statute does not violate the uniform operation of laws provision.  Lastly, the statute does not reduce his right to notice and hearing so it is not procedurally unconstitutional.  Affirmed on all grounds.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Angilau010711.pdf

An Alibi is Not an Affirmative Defense

State v. Lynch, 2011 UT App 1 (Utah Court of Appeals January 6, 2011).

Lynch was convicted of 1^st degree murder and asserted an alibi of not being able to commit the murder because he was at Costco. Defendant was convicted and appealed.  Defendant argued that his alibi was an affirmative defense and therefore the jury should have been instructed that the State must disprove his alibi.  The Court of Appeals disagreed and found that an alibi is not an affirmative defense, but is a refutation of the allegation itself because an alibi presents the defense that the Defendant did not actually commit the crime.  An affirmative defense is one in which the Defendant admits the act, but disputes the criminal nature of the act.  The State is not required to disprove an alibi defense.  Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/lynch010611.pdf

Whether a Building is a Dwelling Depends on the Building’s Actual Use

State v. McNeary, 2011 UT App 4 (Utah Court of Appeals January 6, 2011).

McNeary was convicted of 2^nd degree felony burglary.  He appealed arguing that the building that he burglarized was not a dwelling; the building being a recently constructed home which had never been occupied.  The Court of Appeals agreed that the building was not a dwelling under that statute because the actual use was not that of an overnight dwelling.  Therefore the burglary charge should be reduced.  Reversed with instructions to enter a conviction of a 3^rd degree felony burglary. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/mcnearney010611.pdf

Child Witness Exception to Hearsay Rule Does Not Require Good Cause

State v. Nguyen, 2011 UT App 2 (Utah Court of Appeals January 6, 2011).

Nguyen was convicted of child sex abuse.  Nguyen appealed arguing that the trial court erred in admitting of videotaped testimony of the child victim and in not declaring a mistrial for the Prosecutor’s closing argument. 

The Court of Appeals did extensive review of the statute (now repealed), rules of criminal procedure, and case law regarding the child witness exception.  The Court found that the testimony met all of the factors in URCP 15.5, U.C.A. §76-5-411 (Now repealed), and case law. Defendant requested that the court also require a showing of good cause before admitting the hearsay testimony.  The Court of Appeals found that there is no such requirement, and that the requirements in the rules were sufficient to meet a good cause standard..

Defendant also argued that prosecutor’s statements in regards to the lack of evidence presented by the defense entitled him to a mistrial because the prosecutor commented on the defendant’s right to not be a witness against himself.  The Court found that the statements made were as to weaknesses in Defendant’s case and not a direct relation to his failure to testify and that under current case law they did not cross the line.  Affirmed

Full Decision available at http://www.utcourts.gov/opinions/appopin/nguyen010611.pdf

2 Mischaracterizations by Prosecution + Failure to Object + Defense Counsel Embracing the Mischaracterizations as True = Cumulative Error and Reversal for Ineffective Assistance.

State v. King, 2010 UT App 396 (Utah Court of Appeals December 30, 2010).

This case has travelled between the State Supreme Court and the Court of Appeals various times on the issue of juror-bias and ineffective assistance of counsel.  The issue of juror-bias being finally resolved, the case is returned to the Court of Appeals to decide all remaining appellate claims.  The claim of prosecutorial misconduct and subsequent ineffective assistance of counsel are the pivotal issues and the only claims addressed in this summary. 

In closing argument, the Prosecutor stated that the abuse happened in seconds (contrary to the victim’s testimony, which was that the abuse continued for two – three minutes).  Admitted evidence also included a statement of the witness to a friend “What if I lied?”  The prosecutor alleged that this statement the victim’s concern about what people would think if they thought she was a liar.  Defendant’s counsel failed to object to, or contradict these statements in his closing argument; in fact, he embraced the idea that the abuse occurred in only seconds.  Because the testimony of the victim was the basis for the conviction, these cumulative errors warrant reversal.

Full Decision available at http://www.utcourts.gov/opinions/appopin/king123010.pdf

Appellate Procedure: To Prevail, a Defendant Must Not Only Show Error, but Must Demonstrate the Harm Caused by Judicial Error

State v. Otterson, 2010 UT App 388 (Utah Court of Appeals December 30, 2010).

Otterson was convicted of child sodomy and child rape.  Otterson appealed arguing that (1) the State had failed to provide a bill of particulars; (2) the Court erred when it denied the Defendant’s access to the victim’s medical records; and (3) the court erred when it admitted evidence of prior bad acts without proper notice.

The Court of Appeals found that the State provided a bill of particulars with the best information it knew.  Even if the Bill lacked specificity, Defendant failed to identify how it damaged the defense.  Court of Appeals found no error in the trial court’s ruling on medical records because it properly performed an in camera review according to Defendant’s request and found no helpful information.  Defendant also failed to preserve his argument that the Court misunderstood his request, because he failed to bring any misunderstanding to the trial court’s attention.  Lastly, Defendant neither specifically identified any improperly admitted prior bad act evidence nor explained how his defense was damaged thereby.  Affirmed on all issues.

Full Decision available atState v. Otterson, 2010 UT App 388 (Utah Court of Appeals December 30, 2010).

Otterson was convicted of child sodomy and child rape.  Otterson appealed arguing that (1) the State had failed to provide a bill of particulars; (2) the Court erred when it denied the Defendant’s access to the victim’s medical records; and (3) the court erred when it admitted evidence of prior bad acts without proper notice.

The Court of Appeals found that the State provided a bill of particulars with the best information it knew.  Even if the Bill lacked specificity, Defendant failed to identify how it damaged the defense.  Court of Appeals found no error in the trial court’s ruling on medical records because it properly performed an in camera review according to Defendant’s request and found no helpful information.  Defendant also failed to preserve his argument that the Court misunderstood his request, because he failed to bring any misunderstanding to the trial court’s attention.  Lastly, Defendant neither specifically identified any improperly admitted prior bad act evidence nor explained how his defense was damaged thereby.  Affirmed on all issues.

Full Decision available at http://www.utcourts.gov/opinions/appopin/otterson123010.pdf

Consent for Search May Be Effective Retroactively

State v. Newland, 2010 UT App 380 (Utah Court of Appeals December 23, 2010).

Newland’s laptop was stolen and was recovered by police.  While the computer was in police custody, an officer conducted a warrantless search of the computer and discovered child pornography.  When Newland arrived to retrieve his computer, the officer asked if he could search the computer for evidence from the robbers.  Newland agreed.  Newland was charged with three counts of sexual exploitation of a minor.

Newland moved to suppress the computer evidence because it was a result of a warrantless search.  The trial court denied the motion and Newland was convicted.  Newland appealed. 

When determining whether a consent is lawful after initial police misconduct the court must evaluate whether the consent was (1) voluntary and (2) whether the police exploited the prior misconduct to obtain consent.  The search was clearly voluntary.  To determine if consent was obtained by misconduct the court evaluates (1) temporal proximity of illegal search and consent search; (2) presence of intervening circumstances; and (3) the purpose and flagrancy of the search.  In this case, the illegal search directly preceded the consent search and there were no intervening circumstances.  However, the illegal search was neither purposeful nor flagrant.  Therefore, the evidence should be admitted because society interest is greater than the minimal deterrent effect suppression may have.

See full decision at  http://www.utcourts.gov/opinions/appopin/newland122310.pdf

Identical Syringes + Proximity and Association to Known Drug Users – Medical Kit=Lawful Arrest

State v. Nimer, 2010 UT App 376 (Utah Court of Appeals December 23, 2010).

Nimer entered a conditional plea preserving his right to appeal his denied motion to suppress the evidence of drug paraphernalia found on his person after he was arrested.  He argued that the officer did not have probable cause to arrest and therefore the evidence obtained in the search incident to arrest should be suppressed. 

The Court of Appeals found that the officer did have probable cause to arrest Nimer because he was reported to have been seen with a woman in the parking lot who was witnessed by the officer to be using drugs.  When the officer approached Nimer, who was still in the area, and asked if he had any weapons, Nimer disclosed the syringes.  The officer noted the syringes were identical to those of the woman whom the officer just arrested for drug use, and the syringes were not in a medical kit. Affirmed

Full Decision available at http://www.utcourts.gov/opinions/appopin/nimer122310.pdf

Failure to Register as a Sex Offender = Automatic 90 Days in Jail

State v. Dana, 2010 UT App 374 (Utah Court of Appeals December 23, 2010).

Dana pleaded guilty to failure to register as a sex offender.  He was sentenced to one year in jail and 18 months of probation.  The jail time was suspended pending successful completion of probation.  The State appealed the sentence.  The State argued that a person convicted of failure to register is required to serve 90 days in jail as a mandatory sentence.  The Court of Appeals agreed with the state, vacated the sentence, and remanded the case with the instruction that the defendant serve at least his 90 day sentence for failure to register.

Full Decision available at http://www.utcourts.gov/opinions/appopin/dana122310.pdf

Out of State DUI can Enhance DUI Charges in Utah

State v. Rajo, 2010 UT App 360 (Utah Court of Appeals December 16, 2010).

Rajo, pleaded guilty to felony DUI but reserved his right to appeal the felony classification.  Rajo argued that since the previous DUIs occurred in California they could not be used to enhance the Utah charge. 

An out of state conviction can enhance a Utah DUI charge if the same acts would have also resulted in DUI conviction in Utah. 

California law, like Utah, prohibits driving by anyone with a blood alcohol content of .08% or more.  In Utah, one must only be in physical control of a vehicle.  In California, one must be driving the vehicle.  If Rajo was convicted in California, the court must assume that his BAC was .08% or above while he was driving a motor-vehicle.  Such acts would constitute DUI under Utah law and, therefore, such convictions can be used to enhance Utah DUI charges.  Affirmed.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/rajo121610.pdf

Defendant Must Demonstrate Prejudice to Prevail on a Claim of Ineffective Assistance

State v. Millard, 2010 UT App 355 (Utah Court of Appeals December 16, 2010).

Millard, convicted of conspiracy to commit aggravated murder, requested a new trial because of ineffective assistance of counsel.  A 23B hearing was held and the request denied.  Millard appealed.  To prevail on an ineffective assistance claim a defendant must show deficient work by the attorney and that there is a reasonable probability that but for counsel’s mistake a different outcome would have resulted (i.e. the attorney acts prejudiced his case).

Millard asserted five claims of ineffective assistance.  (1) Counsel promised to call certain witnesses whom were never called.  However, Defendant failed to show the significance of the omitted testimony or any prejudice from the unfulfilled promise.  (2) Counsel failed to make certain objections to keep out otherwise inadmissible evidence.  Defendant again failed to show how it prejudiced his case.  (3) Counsel failed to inform him of his right to testify.  In a 23B hearing for a new trial, the trial court found that Counsel had informed Defendant, and that he decided not to testify.  (4) Counsel failed to investigate possible witnesses.  However, in the 23B hearing, it was determined that counsel had investigated many of the witnesses and claims that Defendant asserts on appeal; and based on counsel’s investigations ,they made strategic decisions not to call certain witnesses.  Lastly, (5) Defense counsel admitted to certain allegations damaging defendant’s case.  On this matter, Defendant fails to demonstrate how the admission damaged his case.

Because defendant failed to show that attorney error prejudiced his case and his failure to properly brief other allegations the ruling of the trial court is affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/millard121610.pdf

Probable Cause for One = Probable Cause for All

State v. Talbot, 2010 UT App 352 (Utah Court of Appeals December 9, 2010).

Talbot was suspected to be in possession of a controlled substance with intent to distribute.  This suspicion was based on statements made to the Garfield County Sheriff.  The Sheriff contacted a deputy and authorized him to stop Talbot, if he was sighted.  The deputy sighted Talbot, stopped him, patted down, hand-cuffed and placed in a patrol car.  The deputy was then authorized to arrest Talbot.  The deputy then conducted a search incident to arrest of Talbot and his vehicle.  Talbot moved to suppress the discovered drug evidence because the search and seizure were unconstitutional.

Note: Talbot did not contest the initial detainment and pat-down; nor did he refer to the Utah State Constitution in his appeal, but appealed under the U.S. Constitution.

The Court of Appeals found that the Sheriff had probable cause to search and arrest Talbot and his knowledge is imputed to his deputies when they act on his instruction.  As such, the arrest was lawful under the Federal Constitution.   Therefore, the search incident thereto was also lawful, and evidence seized is not subject to the exclusionary rule.  Affirmed.

Additional note: Talbot also appeals because of he was not provided with the jury voir dire.  However, because he fails to provide the trial record necessary to address the issue, the Court did not reach this issue

Full Decision available at  http://www.utcourts.gov/opinions/appopin/talbot120910.pdf

Prosecutorial Misconduct Alone is Insufficient for Dismissal and Past Conviction Show Current Intent

State v. Doyle, 2010 UT App 351 (Utah Court of Appeals December 9, 2010).

Doyle was convicted of possession of controlled substance.  During trial a witness denied receiving a plea deal in exchange for testimony.  On cross-examination, it was shown that the witness had in fact received a plea agreement in exchange for her testimony.  Doyle's subsequent motion to dismiss was denied.  She appealed.

The Court of Appeals, while stating that the prosecutor’s failure to correct the testimony and its failure to provide the plea deal during discovery clearly constituted prosecutorial misconduct.  However,  the misconduct did not prejudice Defendant’s case.  Indeed, the cross-examination was so effective that the witnesses failure to disclose may have proved more detrimental to the State’s case than a simple admission. The trial court was affirmed.

An additional issue on appeal was the admission of prior crimes evidence.  The Court of Appeals found that a previous conviction for possession of a controlled substance is admissible to show current “intent” to possess a controlled substance.  The trial court was affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/doyle120910.pdf