Utah Criminal Blawg

Failure to Have Physical Evidence Examined = Ineffective Assistance of Counsel

2011-07-13T05:52:00.000-07:00

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

2011-04-28T08:37:00.001-07:00

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

2011-04-28T08:36:00.000-07:00

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

2011-04-28T08:35:00.000-07:00

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

2011-04-27T20:49:00.000-07:00

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

2011-04-27T20:45:00.000-07:00

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

2011-04-27T20:42:00.000-07:00

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

2011-04-27T20:41:00.000-07:00

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

2011-04-18T07:14:00.000-07:00

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

2011-04-18T06:45:00.000-07:00

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

2011-04-18T06:25:00.000-07:00

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

2011-04-14T10:19:00.000-07:00

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.

2011-03-21T11:51:00.001-07:00

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

2011-03-21T11:48:00.000-07:00

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

2011-03-21T11:21:00.000-07:00

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

2011-03-14T06:45:00.000-07:00

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

2011-03-08T17:06:00.000-08:00

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

2011-03-07T07:04:00.000-08:00

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

2011-03-07T05:55:00.001-08:00

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

2011-03-04T11:03:00.000-08:00

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.

2011-03-03T08:41:00.000-08:00

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

2011-03-03T06:35:00.000-08:00

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).

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

Consent for Search May Be Effective Retroactively

2011-03-02T07:05:00.000-08:00

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

2011-03-01T07:06:00.000-08:00

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

2011-03-01T06:16:00.000-08:00

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

2011-03-01T05:49:00.000-08:00

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

2011-01-06T06:05:00.001-08:00

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

2011-01-05T20:56:00.000-08:00

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

2011-01-05T20:31:00.000-08:00

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

If Prosecution Concedes that Prosecution of Misdemeanor DUI is Barred by the Single Criminal Episode Statute, the Felony Based on the Same Facts is Also Barred.

2010-12-28T09:34:00.000-08:00

State of Utah v. Troy Munk Sommerville, 2010 UT App 336 (Utah Court of Appeals November 26, 2010).

When an offense is charged and prosecuted, statute prohibits further prosecution of any criminal act that is closely related in time and, is incident to an attempt or an accomplishment of the same criminal objective.

Sommerville was arrested for DUI and was cited for following too closely and other minor traffic offenses. The arresting officer issued the citation by mail for only the following too closely offense. Sommerville paid the fine and was later formally charged with the DUI and other traffic offenses.

Murray City, upon learning that Sommerville had paid the fine, dismissed the remaining charges because they believed them to be barred by statute. Salt Lake County then charged then Sommerville with felony DUI and the other traffic offenses. The district court dismissed the misdemeanor charges, but allowed the prosecution of the DUI. Sommerville appealed.

The Court of Appeals determined that the because of the Murray City’s concession that the offenses were part of the same criminal episode. The Court of Appeals found that based on the City’s agreement, the offenses were part of the same criminal episode. And that, because all offenses were within the jurisdiction of the district court, and because the Prosecution failed to overcome the presumption that the prosecution was aware of the offenses the trial court was reversed and the matter is dismissed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/sommerville112610.pdf

Wrongfully Admitted Testimony May Have Influenced the Jury

2010-11-12T14:29:00.001-08:00

~~State of Utah Leber, 2010~~ ~~UT 316, (Utah Court of Appeals, November 12, 2010).~~ This Opinion was amended and the correct site is now State of Utah Leber, 2010 UT 387 (Utah Court of Appeals December 30, 2010)

Defendant was convicted of felony child abuse. At trial, the Court admitted testimony of Defendant’s prior bad acts, including: a 10 year old conviction for child abuse, a 5 year old misdemeanor assault conviction, an incident of domestic violence, and testimony of ex-wife that Defendant had engaged in domestic violence “too many times to count,” and ex-wife’s opinion that Defendant was violent with children. Defendant appealed, and argued that the evidence should have been excluded as improper character evidence. The Court of appeals affirmed the conviction on the grounds that Defendant “opened the door” to character evidence by alleging that the alleged victim had a violent character. The Supreme Court granted cert and reversed the Court of Appeals finding that Defendant did not “open the door.” The case was remanded to decide whether the wrongfully admitted evidence affected the jury verdict.

The Court of appeals found that it could not conclude that the wrongfully admitted evidence did not affect the jury. In other words, it is likely that the testimony may have influenced the jury. Reversed and Remanded for new trial.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leber123010.pdf

Determining the Credibility of Credible but Conflicting Testimony is Properly Reserved for the Jury

2010-10-21T09:09:00.000-07:00

State of Utah Droesbeke, 2010 UT 275, (Utah Court of Appeals, October 7, 2010).

Defendant was charged with sodomy of a child, aggravates sexual abuse of a child, and dealing harmful material to a minor. At the bindover hearing, the eight-year-old victim gave completely conflicting testimony as to the underlying events of the charges. The magistrate judge found probable cause to bindover the charges. Because the testimony was so conflicting, Defendant moved to quash the bindover. The district court affirmed the bindover and Defendant appealed.

The Court of Appeals affirmed finding that when credible testimony conflicts, the determination of which testimony is more credible is left with the jury; even when the credible testimony is from the same witness.

Full Decision available at http://www.utcourts.gov/opinions/appopin/Droesbeke100710.pdf

Exact Wording of an Admission is Not Needed to Enable a Person to Testify About the Admission

2010-10-21T07:52:00.001-07:00

State of Utah Lamoreaux, 2010 UT 276, (Utah Court of Appeals, Memorandum Decision, October 7, 2010).

Defendant was convicted of distributing a controlled substance in a drug free zone. Defendant argues that the Court should have stricken the testimony of the Officer regarding his alleged admission because the officer lacked personal knowledge of any admission. At trial, the officer could not recall the exact words of the Defendant’s admission. The officer testified that during a conversation with Defendant, he told Defendant “you know I’ve got all this information. You know, just come clean, and tell me.” He further testified that at some point Defendant told him “you’re right.” The officer indicated that when Defendant said, “you’re right,” he was admitting to having assisted with the drug transaction.

The Court of Appeals found that this was sufficient knowledge and independent recollection to allow the testimony. Further, they found that the Officer did not testify to anything that of which he did not have personal knowledge.

Full Decision available at http://www.utcourts.gov/opinions/mds/lamoreaux100710.pdf

Evidence from Illegal (but lawful) Arrest is Admissible

2010-10-08T12:27:00.000-07:00

State of Utah v. Harker, 2010 UT 56, (Utah Supreme Court, September 28, 2010).

Police responded to an accident and requested Defendant’s proof of insurance. Defendant provided the officer his proof insurance. The officer, having had prior dealings with Defendant, contacted the insurance company and learned that defendant’s coverage had lapsed. As a result, the officer arrested Defendant and searched Defendant subsequent to arrest. The search turned up methamphetamine, Lortab, and a pipe. Defendant moved to suppress the evidence because the arrest was not lawful under U.C.A. 77-7-2(1).

The Court found that the statue requires an officer to have experienced, firsthand through one of the officer’s physical senses, all of the elements of the offense; even an admission by a party is not enough to meet the requirement of in the presence. Because the officer was not present to view Defendant driving, he could not have made the arrest under U.C.A. 77-7-2(1). However, the arrest was lawful under the 4^th Amendment to the Constitution of the United States. Because the arrest was lawful, the search did not violate Defendant’s right against unreasonable search and seizure and the evidence therefore is admissible; affirmed.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Harker092810.pdf

ABA Blawg 100

2010-09-17T07:07:00.000-07:00

ABA is working on their list of the 100 best legal blogs, and they would like your advice on which blawgs they should include. Fill out the Blawg 100 Amici form and tell them you like the http://utahcriminalblawg.blogspot.com/

Thanks,

Grant

Promissory Notes On Short Term Loans Are Securities for the Purpose of Securities Fraud

2010-09-13T13:44:00.000-07:00

State of Utah v. Burkinshaw, 2010 UT App. 245, (Utah Court of Appeals September 10, 2010).

Burkinshaw, convicted of securities fraud, appeals her conviction and argues that there was insufficient evidence to show that the transactions were securities under the statute. Promissory notes are presumed to be securities. This presumption can be rebutted by showing that the transaction has a family resemblance to non-securities transactions. In determining if the transaction is a secure transaction the court considers (1) the motivation of the parties, (2) the plan for the distribution of the promissory note, (3) the reasonable expectation of investing public, and (4) whether some factor reduces the instrument’s risk.

In this case, the Court of Appeals affirmed the trial court’s findings that: (1) the investor was motivated by a return on his investment and as such, this factor weighs in favor of the presumption. (2) There was no evidence that promissory notes are a commonly traded commodity, so that this factor weighs against the presumption. (3) The investment appeared to be a secure investment to a reasonable person, and as such, this factor weighs in favor of the presumption. And, (4) there is no factor that would reduce the risk to the lender beyond the regular remedies at law. Based on these findings, the instrument falls under the securities act and as such, the finding of the trial court is affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hamblin082610.pdf

Withholding Non-prejudicial Evidence Does not Violate The Brady Requirement

2010-09-13T12:06:00.000-07:00

State of Utah v. Hamblin, 2010 UT App. 239, (Utah Court of Appeals August 26, 2010).

Hamblin, convicted of rape, sodomy, and sexual abuse of a child, moved for a new trial because of the prosecutor’s failure to inform him that the victim had recanted a portion of her story. This recantation cleared Hamblin of several of the charges including a particularly gruesome object rape. However, prosecution amended the charges and removed certain charges from the trial. While the Court of Appeals encouraged prosecutors to error on the side of disclosure. The non-disclosure in this did not violate the Brady requirement. Brady requires that the prosecution disclose any evidence in their possession that is exculpatory and material.

While this evidence may have had somewhat exculpatory value, the evidence withheld would not have sufficiently changed the outcome of the case. The evidence withheld merely put the victim’s credibility at issue and during the trial, she was subject to cross examination, and a great portion of the cross spent on her credibility eliciting several statements that favored Hamblin. Because the further evidence would not sufficiently have changed the cross examination or the outcome of the case, Hamblin was not prejudiced by the non-disclosure, therefore the Court of Appeals affirmed the denial of the request for a new trial.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hamblin082610.pdf

Deficient Appellate Counsel Can be Discharged

2010-09-10T13:37:00.001-07:00

State of Utah v. Smith, 2010 UT App. 231, (Utah Court of Appeals August 19, 2010).

This matter came before the Court of Appeals on the Motion to Strike Appellants Brief and Appoint New Counsel. This motion is Granted because of current counsel’s failure to adequately comply with the rules of appellate procedure. The brief failed to supply a summary of the proceeding, had only a very brief statement of facts, failed to cite the standard of review, and failed to make citations throughout. It contained a summary of the argument, but no full argument section. Because it was so lacking, the brief was stricken and counsel discharged. The case is remanded to the district court to appoint new counsel.

Additional note: This same attorney had a previous brief stricken on similar grounds in 2008. Generally, the Court gives an attorney time to cure the defects in the brief, however, because of this attorney’s failure to take advantage of the opportunity to cure in a prior case, no opportunity to cure was allowed in this case.

Full Decision available at http://www.utcourts.gov/opinions/appopin/smith081910.pdf

Flight Does Not Constitute a Reasonable Inference of Aiding or Encouraging

2010-09-10T07:01:00.000-07:00

State of Utah v. Luis Cristobal, 2010 UT App. 228, (Utah Court of Appeals August 19, 2010).

Cristobal, convicted of criminal mischief (graffiti), appeals the denial of a directed verdict motion on the group enhancement portion of the conviction.

The group enhancement provision requires that a perpetrator commit a criminal act in concert with two or more individuals. In this case, Police found Cristobal at the scene with his codefendant; both with paint on their hands and spray can lids in their vehicle. A third individual fled the scene as police arrived. The state argued that the jury could have reasonably inferred that this third individual was aiding or encouraging Cristobal in the criminal mischief. The Court disagreed and found that flight from the scene without more does not support a reasonable inference that he was involved in the criminal act. Because no such reasonable inference can be drawn, the group enhancement is Reversed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/cristobal081910.pdf

Unconnected Criminal Charges Must Be Severed

2010-09-09T15:58:00.000-07:00

State of Utah v. Hildreth, 2010 UT App. 209, (Utah Court of Appeals July 29, 2010).

Hildreth convicted of two counts of forcible sexual abuse appeals based on the denial of his motion for severance of the charges.

Charges may be charged together if the charges are based on the same conduct or are otherwise connected together in their commission, are part of a common scheme or plan, or if the court found that neither the state nor the defendant are prejudiced by joinder of the charges. Hildreth argues that the charges were sufficiently unrelated and warranted severance. The Court agreed and further stated that Hildreth’s charges were unrelated to one another and that the alleged actions did not take place under sufficiently similar circumstances. As such, the convictions were overturned and the case was Reversed and Remanded for separate trials on the charges.

Additionally, the Court found that testimony as to the other charges should be excluded as improper character evidence because the likelihood of prejudice outweighs the probative value.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hildreth072910.pdf

Special Mitigation is Not an Affirmative Defense

2010-09-09T06:42:00.000-07:00

Utah v. Eryk Drej 2010 UT 35, (Utah Supreme Court, May 14, 2010).

Special Mitigation is an additional method of mitigating criminal culpability based on a defendant’s mental illness. Special mitigation allows a reduction of criminal liability by one degree if the defendant can show the factors of special mitigation. Drej took an interlocutory appeal to challenge the constitutionality of the trial court’s finding that the statute places the burden of proving special mitigation on the defendant. Further, Drej alleges that the passing of the statute violated the separation of powers doctrine.

The Supreme Court affirmed the trial court and found that special mitigation is not an affirmative defense because special mitigation does not negate an element of the crime. Thus, the prosecution is not required to disprove it. Further, the statute does not violate separation of powers doctrine because special mitigation is a substantive right, not an adjustment to procedural rules. The Court finally finds that the statute does not violate equal protection because the classification created is narrow and that there is a distinction between special mitigation and imperfect self-defense defendants, so that the respective defendants are not similarly situated.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Drej051410.pdf

The Accomplice Must Encourage the Principal

2010-09-07T10:07:00.000-07:00

State of Utah v. Warren Steed Jeffs, 2010 UT 49, (Utah Supreme Court July 27, 2010).

Jeffs was convicted of two counts of rape as an accomplice for compelling a fourteen-year-old to marry her nineteen-year-old cousin. Jeffs appealed based on the instruction regarding consent. The trial court refused to give an instruction which required the jury to return a verdict of not guilty unless they found that Jeffs had intended that the victim’s husband to engage in sexual intercourse with her. The Court noted that to convict Jeffs of accomplice to rape, the state must establish that Jeffs solicited, requested, commanded, encouraged, or intentionally aided husband to have nonconsensual intercourse with victim. The State never presented any evidence as to Husband’s interactions with Jeffs or any statements from Jeffs to Husband. The State argued that certain communications with the victim were sufficient for accomplice to rape, however, the Supreme Court interpreted the statute to mean that the actions of the soliciting, requesting, etc… must be done in relation to the principal actor of the crime and not to the victim. Finding that the instruction requested by Jeffs was reasonable and that the underlying communication from Jeffs was insufficient to support the accomplice charge, the Court Reversed the conviction and Remanded the case for a new trial.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Jeffs072710.pdf

Trial Court Must Strictly Comply With Utah Rule of Criminal Procedure 11(e)

2010-09-07T07:06:00.000-07:00

State of Utah v. Douglass Anderson Lovell, 2010 UT 48, (Utah Supreme Court July 27, 2010).

Lovell pleaded guilty to the aggravated murder of Joyce Yost. Lovell moved to withdraw his plea. The trial court denied the withdrawal. Lovell appealed. At the time of entry of plea, the trial court failed to inform Lovell of his constitutional rights as required by Utah Rules of Criminal Procedure 11(e). Because the trial court failed to strictly comply with Rule 11(e), the Supreme Court reversed the conviction and remanded the case with instructions to allow a withdrawal of Lovell’s guilty plea. The Court further noted that it was not enough that Lovell knew of his rights from experience in previous criminal cases. The record in each case must reflect the defendant’s knowledge of his rights and his subsequent knowing waiver of those rights. It is not enough to assume that defense counsel sufficiently explained the rights. Yes, it may take a little more time, but constitutional rights may not be sacrificed in the name of judicial economy.

Finally, harmless error review does not apply to Rule 11(e). Failure to comply with Rule 11(e) results in a presumption of harm to the defendant.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Lovell4072710.pdf

Intent to Commit a Felony Can be Formed While Unlawfully Remaining

2010-09-07T06:22:00.000-07:00

State of Utah v. Marcus Alexander Garcia, 2010 UT App. 196, (Utah Court of Appeals July 15, 2010).

Garcia entered the room of a former neighbor; he held her down, covered her mouth, and forced his fingers down her throat cutting her lip. He then put the victim’s head into a pillow and pulled up her shirt. The victim’s mother ran into the room and the Defendant escaped through the window. Garcia was charged with burglary and attempted rape. He was convicted of burglary, but acquitted of the attempted rape charge. He appealed. He argued that since he was acquitted of the rape which was the underlying felony to the burglary, he did not have the requisite intent for the burglary (i.e. breaking and entering or remaining with intent to felony theft or assault). The Court of Appeals disagreed and affirmed the trial court, and said that the assault, whether or not it was an attempted rape, could serve as the underlying crime. Even though he may not have entered with intent to commit a felony or assault, the formation of that intent while unlawfully remaining is sufficient to meet the statute.

Full Decision available at http://www.utcourts.gov/opinions/appopin/garcia071510.pdf

Illegally Obtained Hunting Permit is Void

2010-08-26T13:11:00.000-07:00

State of Utah v. Roger Howard Steele, 2010 UT App. 185, (Utah Court of Appeals July 9, 2010).

Steele obtained a special permit to hunt on a game reserve, which was reserved for Utah residents. Steele participated in the Hunt even though he was not a Utah resident. He shot a trophy male mule deer. He was charged with wanton destruction of protected wildlife and found guilty. Steele Appealed. He argued the trial court’s jury instruction as to mistake of law was incorrect. If the correct instruction had been given he would have been acquitted because he showed evidence that he believed himself to be a Utah resident because his wife made frequent visits to Utah and her family resides in Utah, he did not have the required intent for conviction. He additionally argued that even if the permit was obtained in violation of the residency requirement, the permit was not void by voidable, thus valid until revoked.

The Court affirmed finding that Steele knew he was not a resident and knew it because he did not put his own address, but that of his in-laws. The Court further found that even if the instruction was incorrect, the likelihood that the jury would have changed its verdict with an instruction proposed by Defendant is ultimately very low. Further, the Court found that the permit was void, not merely voidable. As an illegal contract is void ab initio so is an illegally obtained permit.

Defendant’s speedy trial claim was inadequately briefed to prevail on those grounds.

Full Decision available at http://www.utcourts.gov/opinions/appopin/steele070910.pdf

Not Plain Error if Appellant Invited the Error

2010-08-26T12:11:00.000-07:00

State of Utah v. Shaffer, 2010 UT App. 176, (Utah Court of Appeals July 1, 2010). This opinion was amended and renumbered to 2010 UT App 176. I could not determine the amendment, but the link below now links to the amended opinion.

Shaffer entered into an agreement with the State. At the change of plea hearing, the defense misstated the agreement and agreed to further misstatements by The State. Further, the State failed to make a recommendation to AP&P as agreed in the plea agreement. The Judge rejected the State’s recommendation and adopted AP&P’s recommendation.

The Court of Appeals affirmed, finding that the trial court’s actions did not constitute plain error because even if the court believed that the state had breached the plea agreement, the affirmative actions by defense counsel invited the error and an invited error is not plain error, furthermore such an is irrelevant because the court rejected the agreement.

The failure of defense counsel to remedy the matter we not prejudicial for the same reasons, that the court rejected the agreement even in its misstated form.

Further, Defendant did not raise a dispute that the State had not recommended the sentence to AP&P before the trial court and so the trial court had no knowledge of any possible error, thus defendant again invited the error by failing to bring it to the court’s attention and affirmatively agreeing with the State’s statements at the hearing.

Full Decision available at http://www.utcourts.gov/opinions/appopin/shaffer082610.pdf

Failure to Provide Expert as to Mental Illness for Mitigation is Not Ineffective Assistance

2010-08-26T11:39:00.000-07:00

State of Utah v. Walker, 2010 UT App. 157, (Utah Court of Appeals June 17, 2010).

Walker suffered from PSTD and shot his wife 13 or 14 times after an argument. Police arrested Walker and questioned him without proper Miranda warnings. Walker was convicted and appealed. The Court of Appeals found that defense counsel’s failure to call an expert witness to testify as to Walker PSTD did not constitute ineffective assistance. Defense counsel may have avoided the mental illness facts to avoid an adverse effect on other defenses (imperfect self-defense and voluntary intoxication). Additionally, Defense counsel did not overly rely on the Walker’s mental illness in opening or during the trial, so it is likely that the jury did not have the unfulfilled expectation of hearing PTSD testimony. Further, according to the Court, the absence of the defense expert was not prejudicial.

Failure to file a motion to suppress the unmirandized confession was a deficient omission by defense counsel. However, because there was additional evidence to the content of the confession, it was not prejudicial. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/walker061710.pdf

A Reliability Hearing Serves No Purpose In a Bench Trial

2010-08-26T07:31:00.000-07:00

State of Utah v. K.O., 2010 UT App. 155, (Utah Court of Appeals June 17, 2010).

K.O. appeals his conviction of burglary of a vehicle because of insufficient evidence; second, because the Juvenile Court failed to hold a reliability hearing before admitting eyewitness testimony; third, because the court failed to exclude hearsay evidence.

The Court of Appeals concluded that the eyewitness testimony combined with the testimony of K.O.’s conduct of attempting to avoid police detection was sufficient to uphold his conviction. Second, because reliability hearing is to protect the jury from hearing unreliable testimony it is only helpful in jury trials. A judge has an opportunity to evaluate the reliability of the eyewitness at the time of trial. Finally, the Court concluded that the testimony of the arresting officer was not hearsay because the officer (declarant) was available for cross examination and under Utah Rules of Evidence 801(d), such evidence is not hearsay.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_ko061710.pdf

Police Must Have Belief that Invidual is Dangerous and Could be Armed Before they Can Perform a Terry Frisk

2010-08-26T06:57:00.000-07:00

State of Utah v. Clay C. Lowe, 2010 UT App. 156, (Utah Court of Appeals June 17, 2010).

Officer went to Lowe’s apartment to talk to his roommate. His roommate refused to comply with Officer’s orders to remove his hands from his pockets. Officer helped Roommate to the ground and held Lowe at gunpoint while he searched Roommate. While he searched Roommate, a second officer arrived on the scene and saw Lowe at gunpoint holding his hands high above his head. The second officer immediately frisked Lowe and found a prescription bottle containing Methamphetamines. The trial court denied Lowe’s Motion to Suppress, Lowe appealed.

The Court of Appeals found that an officer cannot frisk simply because one is being detained, or because the officer believes the individual to possess contraband, but instead an officer must reasonably believe the individual is dangerous and the individual may immediately obtain a weapon. In this case, Lowe complied with Officer’s requests; he kept his hands above his head, and did nothing to interfere with Roommate’s arrest. In short, Lowe did nothing to induce a reasonable belief that he was dangerous and might obtain control of a weapon; therefore, the evidence should be suppressed. Reversed.

Dissent Judge Thorne: Under the totality of the circumstances, it is likely that the second officer could have reasonably believed that Lowe was dangerous because Officer found Roommate to possess a knife, it was reasonable for the second officer to conclude that Lowe may also be armed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/lowe061710.pdf

Must Show Injustice to Bring Claims Barred by PCRA

2010-08-17T15:28:00.001-07:00

Gardner v. State of Utah, 2010 UT 46, (Utah Supreme Court June 14, 2010).

Gardner was found guilty of the 1985 slaying of an attorney in an attempt to escape from custody. He was sentenced to death. After his execution warrant was issued he appealed. Gardner argues several grounds for stay or recession his sentence. However, the Supreme Court found that his claims are barred, because they were not brought within the limits set by the Post-Conviction Remedies Act. Further, the Court finds that at all levels in his original trial and subsequent appeals that the courts have strived to protect Garnder’s due process rights. The Court found that it was not in the interest of justice to overturn the district court’s summary judgment denying Gardner’s request for post-conviction relief.

Full Decision available at http://www.utcourts.gov/opinions/supopin/GardnerIV061410.pdf

Must Show Prejudice for Conviction to Be Remanded

2010-08-17T15:27:00.001-07:00

State of Utah v. Jackson, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Jackson was convicted of attempted murder during the trial the trial court admitted officer testimony of statements by witnesses at the scene and photos of the injuries caused by the Defendant. Defendant also asserted that the State disposed the car used in the act without allowing Defendant to examine it. The Defendant also challenged the jury verdict because alleging that one of the state peremptory challenges was motivated by race. The Court of appeals affirmed the trial court finding that even if the evidence was improperly admitted, there was sufficient other evidence on which the jury could have come to the same conclusion and as such, he was not prejudiced and the error was harmless. The Court found that in the disposal of the care the State was not acting in bad faith because they had no control over the Sheriff’s release of the car to its owner; and the likelihood of Defendant finding favorable evidence in the vehicle is too remote to have had a real effect on the outcome of the case. Finally, the Court found that the State provided a sufficiently racially neutral grounds for eliminating the juror.

Full Decision available at http://www.utcourts.gov/opinions/appopin/AMD_jackson111810.pdf

Modifications to Statute that Change the Effect of a Plea Bargain During Probation Are Not Ex Post Facto Laws

2010-08-17T15:08:00.000-07:00

State of Utah v. Holt, 2010 UT App. 138, (Utah Court of Appeals May 27, 2010).

Holt pleaded guilty to two counts of sexual exploitation of a minor. As part of the plea, the State agreed to recommend that a reduction in his offense at the satisfactory completion of his probation. Such an amendment would allow Holt to avoid having to register as a sex offender. While Holt was on probation, the legislature changed statute limiting the court’s ability to amend Holt’s charges as he agreed in the plea agreement. The Court refused to reduce the offense. Holt appealed arguing that the change to the statute violated the ex post facto clause and the contract clause of the Constitution. The Court of Appeals disagreed finding that the amendment to the law did not increase the magnitude of the punishment for the crime and that the underlying penalty was unchanged. Additionally, while a plea is contract-like, it is not a contract for constitutional purposes. Further, the plea states that it is not binding on the court. As such, the Court of appeals affirmed the trial court’s denial of the reduction in charges. The Court did however rule that this change might open the door to a petition to withdraw plea based on the lack of a knowing waiver at the time of the plea.

Full Decision available at http://www.utcourts.gov/opinions/appopin/holt052710.pdf

Nine Years Probation is Not Illegal

2010-08-11T15:51:00.001-07:00

Utah v. Francisco Candedo 2010 UT 32, (Utah Supreme Court, May 14, 2010).

Candedo plead guilty to three felony counts of participation in a fraudulent investment scheme. He was sentenced to prison and jail. Both incarceration sentences were suspended and he was sentenced to nine years of probation. Candedo appealed the nine year probation sentence as illegal and requested relief under the exceptional circumstances doctrine. The Court of Appeals did not reach the merits of his claim because they found that the punishment was not manifestly illegal. Candedo appealed to the Supreme Court.

The Supreme Court found that when a constitutional challenge to a sentence is raised, a court must first assess the constitutional claims before analyzing the punishment. In this case, the challenge to the sentence fails because statute places no limits on probation and the purposes of probation are more than just for rehabilitation. Finally, the probation was for nine years. If sentenced to the full extent, Candedo’s prison sentence would have exceeded 15 years, for that reason the punishment is not wholly disproportionate to the crime. Affirmed after review.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Candedo051410.pdf

Bind Over Under SYOA is as Simple as an Inference, and Premeditation Requires Only Some Reflection

2010-08-11T13:44:00.000-07:00

Utah v. I.R.C. 2010 UT 41, (Utah Supreme Court, May 14, 2010).

I.R.C. was bound over for trial as an adult for aggravated robbery. In order to bind a case over to the criminal court, the charges must be of those enumerated in statute, and prosecution must present sufficient evidence to support a reasonable belief that Defendant committed the crime. The trial court found that there was sufficient evidence to believe that I.R.C. was aware that the robbery would be committed with a weapon. A juvenile court may retain the case if the minor shows that he has not been previously adjudicated as delinquent, that he has a lesser degree of culpability than any co-defendants, and the minor’s role in the crime was not violent, aggressive, or premeditated. In this case, the juvenile did not prove that he had not premeditated the crime. I.R.C. knew about the crime and drove his friend to the scene of the crime. Because there was a reasonable inference that I.R.C. knew about the weapon and because he failed to prove the retention factors, the Supreme Court Affirmed the juvenile court.

Dissent: Durham concludes that the friend’s statements did not give I.R.C. notice that gun was going to be used and the testimony does not support the reasonable inference that he knew, as such, the crime would not be aggravated robbery and thus, could not be bound over.

Full Decision available at http://www.utcourts.gov/opinions/supopin/IRC051410.pdf

Statement by Personally Involved Informant Presumed Truthful

2010-08-04T13:05:00.000-07:00

Utah v. Roybal, 2010 UT 34, (Utah Supreme Court, May 14, 2010).

Roybal was stopped for suspicion of DUI when his live-in girlfriend called police and reported a domestic violence incident in which they had both been drinking. During the call, Roybal drove away from the scene and the dispatcher sent out the bulletin on the possible DUI. Roybal was pulled over; he failed the field sobriety tests, and was arrested for DUI. He moved to suppress the evidence from the stop for lack of reasonable suspicion. The trial court denied the motion. Roybal appealed. The Court of Appeals found that a personally involved informant is less reliable, and therefore overturned the conviction. The State appealed.

The Supreme Court found that reasonable suspicion may be based on a dispatchers bulletin. The Court further found that a citizen informant is presumed reliable and that there is no reason to rebut that presumption because the informant is personally involved. As a result, the Cour reversed the Court of Appeals and reinstated Roybal’s conviction.

Dissent: Judge Nehring agrees with the legal findings of the case, but disagrees with the outcome. Nehring particularly disagrees with the finding that a statement by an informant that another has been drinking and is now driving is sufficient for reasonable suspicion that the party is driving under the influence.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Roybal051410.pdf

Tags: Utah v. Roybal, 2010 UT 34, (Utah Supreme Court, May 14, 2010).

Full Decision available at http://www.utcourts.gov/opinions/supopin/Roybal051410.pdf

For Jeopardy to Attach in an Administrative Action Must Either Intend the Punishment to be Criminal, or the Sanction is So Punitive it Transforms into a Criminal Sanction

2010-07-29T14:15:00.000-07:00

Utah v. Bushman, 2010 UT App. 120, (Utah Court of Appeals, May 6, 2010).

Bushman agreed to a consent order with the Utah Division of Securities in which he agreed to pay a fine and cease any further violations of the securities acts. When the State brought criminal charges, Bushman argued that the criminal charges constituted double jeopardy. The trial court disagreed, and accepted his conditional guilty plea. On appeal, the Court administered the Hudson test to review the Administrative Sanction against Bushman. The consent-order required Bushman to pay restitution to his victims and a $5000.00 fine. If he paid the fine quickly, he would only have to pay half the fine.

On Appeal, the Court found that for jeopardy to attach in an administrative the action, the legislature must have intended the sanction to be criminal, or the sanction is so punitive it transforms into a criminal sanction. The Court determined that the legislature intended the sanction to be civil. The Court then evaluated the sanction under the seven Kennedy factors and Affirmed the trial court determining that the fine was not so punitive that jeopardy should attach.

Full Decision available at http://www.utcourts.gov/opinions/appopin/bushman050610.pdf

Shondel Doctrine Applies only to Statues with Exactly the Same Elements

2010-04-22T18:59:00.000-07:00

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.

Full Decision available at http://www.utcourts.gov/opinions/appopin/coble042210.pdf

5 Factors to Evaluate Voluntariness of Consent

2010-04-20T12:35:00.000-07:00

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 http://www.utcourts.gov/opinions/appopin/JV_ra032510.pdf

Searches of Vehicles Incident to Arrest is Prohibited

2010-04-20T11:57:00.001-07:00

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: http://www.utcourts.gov/opinions/supopin/Baker031210.pdf

Good Faith Exception for Pre-Gant Cases

2010-04-20T10:55:00.000-07:00

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.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Gettling031210.pdf

Enhancements to Criminal Charges Do Not Merge Into the Principal Crime

2010-04-20T08:43:00.000-07:00

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 http://www.utcourts.gov/opinions/appopin/kerr_FORPUB030410.pdf

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

2010-04-20T07:32:00.000-07:00

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.

Full Decision available at http://www.utcourts.gov/opinions/mds/brown022510.pdf

Consent Must be Voluntary and Willing

2010-03-15T12:03:00.000-07:00

Utah v. Tripp, 2010 UT 9, (Utah Supreme Court, February 19, 2010).

Tripp collided with a motorcyclist. Police smelled no alcohol on her breath. As was routine, police asked Tripp for a blood sample. She refused. Backup and a victim’s advocate arrived. At various times, the officers requested a blood sample. No officer identified probable cause to take a sample. Tripp consistently refused. When family members intervened and told her not to answer the officers’ questions, they arrested Tripp and isolated her in the back of a patrol car. While there, police assigned a victim’s advocate “to help [Tripp] become more relaxed with the blood draw.” The advocate complied. Tripp still refused the blood draw. The technician told her “let me put on this tourniquet, see if we can find a spot.” Tripp extended her arm, the technician put the tourniquet on, and blood was drawn.

Tripp moved, and the court refused, to suppress the blood evidence. Tripp, convicted, appealed. The court of appeals reversed, and the State sought certiorari. The Supreme Court found Tripp’s consent to be involuntary, and as such, affirmed the reversal. The consent was not voluntary because police coercion worked to overcome Tripp’s refusal. The acts of coercion were (1) various officers requesting the sample, (2) the assistance of the Victim Advocate to get the sample, and (3) the technician’s failure to warn Tripp before the draw, and (4) Tripp’s illegal arrest isolated her. For all these reasons, the Court found it appropriate to suppress the blood evidence.

In addition, the Court found that there was no probable cause and there was no exigent circumstance sufficient to warrant the police actions.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Tripp021910.pdf

If There is Any Rational Basis for Counsel’s Actions Then He is Not Ineffective

2010-02-23T16:18:00.000-08:00

Utah v. Pedersen, 2010 UT App. 38, (Utah Court of Appeals, February 19, 2010).

Pedersen was charged and convicted of two counts of sexual assault. He appealed. He argued that his counsel was ineffective for failing to make several motions. The Court affirmed that each missed motion could have been a tactical basis for each decision, and therefore there was a rational basis for the actions taken by counsel. Further, the Court of appeals affirmed that there was no showing of actual prejudice as a result of counsel’s actions. Next, Defendant challenged the trial court decision allowing testimony of another alleged victim because it is a prior bad act and therefore improper character evidence. However, the Court of Appeals affirmed the trial court, finding the testimony to be appropriate evidence for a non-character purpose to show absence of mistake and intent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/pedersen021910.pdf

Not Guilty Plea Contests All Elements of the Crime, Allowing the State to Introduce Any Relevant Evidence to Prove Their Case

2010-02-15T13:48:00.000-08:00

Utah v. Verde, 2010 UT 30, (Utah Court of Appeals, February 11, 2010).

In Defendant’s trial, the trial court admitted testimony of three boys who each made similar allegations that Defendant attempted to engage them in a sexual encounter. Defendant objected to the evidence as improper character evidence. State argued that the evidence proved Defendant's intent. Defendant argued that he had not put his intent at issue. The Court found that when pleading not guilty, Defendant puts all elements at issue, including intent. The objection was overruled and Defendant appealed.

The Court of appeals affirmed the trial court finding that the before admitting character evidence, the trial court must complete three step evaluation of the evidence: (1) the evidence must have a non-character purpose (in this place intent); (2) it must be relevant; and (3) its probative value must outweigh the prejudicial effect. The Court found that in this matter the evidence was relevant and admissible and the trial court did not err in so finding.

Concurrence: The admission of the evidence to prove intent should not solely be based on the plea of not guilty. In this case, Defendant claimed that the primary victim made up the entire allegation. However, the testimony in question was offered to support the testimony of the victim and this is additionally grounds for its admittance.

Full Decision available at http://www.utcourts.gov/opinions/appopin/verde021110.pdf

Self Pat-Down = Consent-Search

2010-02-15T13:05:00.000-08:00

State v. Hurt, 2010 UT 33, (Utah Court of Appeals, February 11, 2010).

Defendant was a passenger in a car during a traffic stop. Police arrested Driver. Officer asked Defendant to step out of the vehicle. Defendant stepped out of the vehicle. Officer asked Defendant if he had any weapons and asked him to turn out his pockets. From his pockets, Defendant produced an eyeglass case. Officer asked Defendant to open the eyeglass case, he did so and revealed methamphetamine. Defendant was charged with possession of a controlled substance. Defendant moved to suppress the evidence. The trial court found that this was a consent-search. Defendant Appealed.

The Court of Appeals Affirmed the trial court finding that the police legally detained Defendant, and that the search conducted on Defendant was a consent-search. The Court found that a command can be a search, but the determination turns on the evaluation of the facts in each case. (See State v. Bisner, goes more toward voluntariness of consent, but applicable to evaluate whether the command invades voluntariness). In this case, the command did not rise to the level necessary to overcome the presumption of consent.

Concurrence, Judge Davis: Defendant did not adequately address the facts surrounding the consent in the brief. The facts are too limited to rule in Defendant’s favor. Judge Davis also recommends that police inform individuals of their right to refuse consent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/hurt021110.pdf

On a Petition for Factual Innocence Statutory Requirements May Be Waived in the Interest of Justice

2010-02-09T10:23:00.001-08:00

Miller v. State of Utah, 2010 UT App. 25, (Utah Court of Appeals, February 4, 2010).

Miller was convicted of committing an armed robbery. He appealed based an ineffective assistance because his counsel failed to procure witnesses to corroborate his alibi. The trial court found that Miller was not prejudiced and upheld the conviction and returned the case to the Court of Appeals. Prior to oral argument, the parties stipulated to a summary reversal. The Prosecutor then dismissed the charges against Miller.

Miller then filed his Petition for a Finding of Factual Innocence. The State moved for Summary Judgment claiming that Miller had failed to meet the statutory requirements. The trial court granted Summary Judgment. Miller Appealed.

The Court of Appeals Reversed and Remanded, finding that there is at least a bona fide issue as to Miller innocence. UCA § 78B-9-402(6)(b). The bona fide issue comes from the testimony that Miller suffered a stroke and a nurse checked on him weekly to aid his recovery. Based on the notes from the nurse, Miller would have had less than 24 hours to get to Utah and commit a physically violent crime on a complete stranger. The nurse’s notes describe that Miller could only ride in a car driven by another OR able to use a bus or handicap van only with assistance.

Full Decision available at http://www.utcourts.gov/opinions/appopin/miller921_AMD020410.pdf

Not Hearsay if Not for the Truth, & Irrelevant Evidence is Not Admissible

2010-02-09T09:17:00.001-08:00

SLC v. Denier, 2010 UT App. 24, (Utah Court of Appeals, February 4, 2010).

Denier violated a Protective Order by leaving a message for the Petitioner. He was charged and convicted of violating the Protective Order. He appealed.

Denier argued that the message left for the Petitioner was inadmissible hearsay. In the message, Denier indicated that he knew his message was being recorded and that in all previous complaints he had been found innocent. The Court of Appeals affirmed the trial court, finding the truth of the statements left in the message as unimportant. The issue was whether Denier left the message.

Denier next objected the trial court findings that testimony regarding the visitation order was irrelevant. The Court of Appeals affirmed that the custody agreement would have little bearing as to whether a message left was a violation of the Protective Order. In part, this was due to Denier failing to describe or proffer the visitation order.

Full Decision available at http://www.utcourts.gov/opinions/mds/denier020410.pdf

Consent Search Extends to All Property Not Clearly that of a Third Party

2010-01-27T11:20:00.000-08:00

State of Utah v. Tina Harding, 2010 UT App. 8, (Utah Court of Appeals, January 22, 2010).

Tina Harding was a passenger in a car that was stopped by on officer for an equipment violation. The officer checked the driver’s documents and learned that neither she nor any of the car’s occupants held a valid license. The officer cited the driver and told her she was free to go. The driver then asked the officer a question and he requested to search the vehicle. The driver consented. Two bags were in the rear storage area. Without asking whom they belonged to the officer searched the bags. In Defendant’s bag, he found drugs and drug paraphernalia. He arrested Defendant, who later moved to have the evidence suppressed. The trial court denied the motion. Defendant appealed.

The Court of Appeals affirmed the trial court finding that the officer could have objectively concluded that the bags belonged to the driver and thus subject to the consent-search. The Court continued and stated that any belief that the bags belonged to one of the other passengers would have been speculation.

Dissent: Trial court found that the officer had “no way of knowing to whose bags they were.” The state bears the burden of showing that the one who consents to the sear has authority to do so. The officer could have easily ascertained whom the bags belonged to and sought proper consent, but he failed to do so.

Full Decision available at http://www.utcourts.gov/opinions/mds/sandoval011410.pdf

One Eyewitness Is Enough

2010-01-27T09:14:00.000-08:00

State of Utah v. Brandon Lee Sandoval, 2010 UT App. 3, (Utah Court of Appeals, January 14, 2010).

Brandon Lee Sandoval was convicted of aggravated burglary and now appeals based on a jury instruction given by the trial court that stated that conviction can be based on the uncorroborated testimony of a single eyewitness. The Utah Court of Appeals affirmed the conviction finding that such an instruction did not give additional credibility to any one witness at trial. “The instruction merely told the jury that, if it chose to believe the eyewitness, it could convict Sandoval without concern that the eyewitness testimony was not corroborated.”

Full Decision available at http://www.utcourts.gov/opinions/mds/sandoval011410.pdf

If the Court Considered all the Factors the Sentence will be Upheld.

2010-01-12T14:05:00.001-08:00

State of Utah v. Magness, 2009 UT App. 402, (Utah Court of Appeals, December 31, 2009).
Magness pleaded guilty to three amended counts of sexual abuse of a child. At sentencing, Defendant was sentenced to three incarceration terms, two of which the court ordered to be served consecutively. Defendant appealed the sentence arguing that based on the facts, he was entitled to serve all sentences concurrently. The Utah Court of Appeals disagreed with the defendant, finding that the court had indeed considered all the required factors prior to making its ruling. However, because of Defendant’s argument that because a different charge was listed on the judgment, the Court of Appeals Reversed the trial court’s sentence and Remanded the case to the trial court to have the trial court consider whether the misstatement as to the charges influenced the sentence (particularly as to consecutive terms) and to adjust the sentence accordingly.

Full Decision available at http://www.utcourts.gov/opinions/mds/magness123109.pdf

If The Jury Instruction is Superfluous, It is not Error to Exclude It.

2010-01-12T13:45:00.000-08:00

State of Utah v. Malcolm, 2009 UT App. 399, (Utah Court of Appeals, December 31, 2009).

Defendant was convicted of murder. Defendant appealed because the trial court refused to give certain jury instructions. The first instruction instructed as to the use of force when making a citizen’s arrest. The second, instructed as to the use force when reclaiming property. Because neither instruction would have supported defendant’s theory of the case, the Court of Appeals affirmed the decision of the trial court.

Full Decision available at http://www.utcourts.gov/opinions/mds/malcolm123109.pdf

Believable Evidence of All Elements of the Crime is Required to Bind Over

2010-01-12T13:18:00.000-08:00

State of Utah v. M.F., 2009 UT App. 398, (Utah Court of Appeals, December 31, 2009).

M.F. was bound over for charges of aggravated assault with intent to cause serious bodily injury. This was based on the facts that the alleged victim suffered sufficient injuries to require several surgical screws and plates to reconstruct his face. He also suffered damage to his orbital nerve, which resulted in the loss of sensitivity in areas of his face. The trial court found this evidence was enough to meet the level of serious bodily injury. Defendant appealed and argued that there was insufficient believable evidence of intent to cause serious injury. The Court of Appeals Disagreed and found that the injuries were sufficient to substantiate the charge of serious bodily injury and the alleged statement by the defendant “he dropped me, so I dropped him,” was enough to substantiate Defendant’s intent.

Orange Rinds + Lysol + Armor All (i.e. Masking Odors) = Reasonable Suspicion

2010-01-12T10:50:00.000-08:00

State of Utah v. Heather Richards, 2009 UT App. 397, (Utah Court of Appeals, December 31, 2009).
Heather Richards was pulled-over for allegedly crossing over the fog line. When the officer approached the vehicle, he noticed the smell of oranges and air fresheners. After checking Defendant’s license and registration, he returned to the vehicle and noticed the orange rinds, and Armor All and Lysol brand cleaners. He also noticed multiple cell phones. After seeing these items, the officer believed that Defendant might be masking other odors. Defendant refused the officer’s request to search the car. In order to dispel or confirm his suspicions, he called for a drug sniffing canine to do a canine sniff of the vehicle. While performing the canine sniff, the dog signaled on the trunk. The officers opened the trunk and found 40lbs of marijuana.

At trial, defendant moved to suppress the evidence alleging that there were insufficient grounds to support the extended detention and the canine sniff. The Trial denied the motion and found that the orange rinds, Armor All, and Lysol were sufficient reasonable suspicion. Defendant appealed.

The Court of appeals affirmed the trial court’s admittance of the evidence, finding that the multiple masking agents and multiple cell phones was sufficient reasonable suspicion to warrant the canine sniff.

Full Decision available at http://www.utcourts.gov/opinions/appopin/richards123109.pdf

Utah Criminal Blawg

2009-12-30T09:57:00.000-08:00

As a spin-off of the Utah Family Blawg, which is now a year old, I have created the Utah Criminal Blawg.

In the Utah Criminal Blawg, I do not plan summarize all the appellate court decisions regarding criminal cases, but will attempt to summarize any and all decisions narrowing or expanding current case law.

Feel free to email me with any comments or suggestions utahcriminalblawg@gmail.com.