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