Failure to Have Physical Evidence Examined = Ineffective Assistance of Counsel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finding Drugs in Patrol Car Sufficient to Prove Possession

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Affirmed on all issues.

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

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

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

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

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

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

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