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

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

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

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

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

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

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

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

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

Out of State DUI can Enhance DUI Charges in Utah

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

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

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

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

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

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

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

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

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

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

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

Probable Cause for One = Probable Cause for All

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

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

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

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

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

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

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

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

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

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

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

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

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.

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