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

Wrongfully Admitted Testimony May Have Influenced the Jury

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

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

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

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  

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

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