Child Witness Exception to Hearsay Rule Does Not Require Good Cause

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

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

The Court of Appeals did extensive review of the statute (now repealed), rules of criminal procedure, and case law regarding the child witness exception.  The Court found that the testimony met all of the factors in URCP 15.5, U.C.A. §76-5-411 (Now repealed), and case law.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Consent for Search May Be Effective Retroactively

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Out of State DUI can Enhance DUI Charges in Utah

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

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

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

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

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