In State v. Garner, 2016 UT App 186, Defendant pleaded no contest to 3 counts of trafficking methamphetamine. Defendant entered conditional pleas, reserving the right to appeal whether the trial court should have made the prosecution reveal the names of confidential informants used in gathering evidence.
Defendant was charged with 3 counts of trafficking methamphetamine for sales made to confidential informants. After each sale, the confidential informants prepared written statements for the purpose of use at a preliminary hearing, while still with the police. The statements were offered at Defendant's preliminary hearing. Defendant objected to the anonymous statements and asked for disclosure of the names of the informants. The trial court denied Defendant's motion based on the government informer privilege found in Utah Rule of Evidence 505.
The Utah Constitution does not grant an absolute right to discovery prior to a preliminary hearing. Discovery is allowed as defined by state statutes and state rules of evidence. Utah Rule of Evidence 505 allows the State to keep the identity of a confidential informant anonymous unless and until said informant appears at a hearing. Defendant argued that the informants appeared in the present case through their written statements. However, the Utah Court of Appeals determined the plain meaning of the term "appears in court" is a personal appearance and not appearance through a written statement. Furthermore, under the Utah Constitution, the right to confrontation does not apply to preliminary hearings.
Since the confidential informants appeared through written statement, Defendant did not have a right to disclosure of their names. His convictions were affirmed.
Friday, September 23, 2016
Wednesday, September 21, 2016
The Jury Gets To Decide Who to Believe
In State v. Kirby, 2016 UT App 193, Defendant appealed his convictions for witness tampering, aggravated assault, and aggravated kidnapping. When reviewing a jury verdict, the Court views the evidence and and inferences which can reasonably be drawn from the evidence in the light most favorable to the defendant.
Defendant and the victim went to a hotel room to drink and do drugs. After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care. Defendant would not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.
Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim. As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.
On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.
Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence. Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.
When reviewing a jury verdict, the Court looks to see if the State introduced some evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.
Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.
Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.
Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.
Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile. Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.
Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness. To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement. However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.
Defendant's convictions were affirmed.
Defendant and the victim went to a hotel room to drink and do drugs. After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care. Defendant would not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.
Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim. As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.
On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.
Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence. Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.
When reviewing a jury verdict, the Court looks to see if the State introduced some evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.
Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.
Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.
Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.
Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile. Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.
Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness. To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement. However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.
Defendant's convictions were affirmed.
Friday, September 9, 2016
Affirmation of the Single Larceny Doctrine
In State v. Bell, 2016 UT App 157, Bell appealed his convictions for 2 counts of aggravated robbery, one for stealing a car by knife point and one for stealing a purse by knife point. The Court of Appeals affirmed the first conviction and vacated the second conviction as the convictions merged under the Single Larceny Doctrine. The Court of Appeals also rejected his defenses of factual impossibility and voluntary intoxication.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
Friday, September 2, 2016
The Board of Pardons and Parole Always Wins
In Padilla v. Board of Pardons and Parole, 2016 UT App 150, Padilla appealed the District Court's grant of summary judgment to the BOP, denying his petition for extraordinary relief pursuant to Utah Code of Civil Procedure Rule 65(B)(d).
Padilla was originally sentenced to two concurrent sentences of 1-15 years for crimes he pleaded guilty to. He was released on parole in September 2014. The BOP initiated a parole revocation hearing in March 2015. With the assistance of counsel, and after being advised of his rights, Padilla admitted to violating his parole conditions. The BOP then permanently revoked parole for Padilla to serve his full 15 year sentence.
Padilla claimed the BOP abused its authority for imposing the full sentence of incarceration. The BOP has stautory authority to grant release on parole. The trial court determined the sentence. As long as the period of incarceration falls in the applicable, indeterminate range, then the BOP's decision will not be deemed arbitrary and capricious. BOP decisions are also final and not subject to judicial review (see Utah Code §77-27-5(3)). Because Padilla admitted he violated the terms of his release, the BOP was legally entitled to revoke his parole and impose part or all of his sentence.
Padilla also claimed the BOP improperly considered information from dismissed and/or amended charges in making their decision. However, as previously indicated, judicial review is not available to consider the BOP's substantive decision. In addition, the BOP is entitled to rely on information known to it in making a parole decision.
Padilla's appeal was denied in a sua sponte motion for summary disposition.
Padilla was originally sentenced to two concurrent sentences of 1-15 years for crimes he pleaded guilty to. He was released on parole in September 2014. The BOP initiated a parole revocation hearing in March 2015. With the assistance of counsel, and after being advised of his rights, Padilla admitted to violating his parole conditions. The BOP then permanently revoked parole for Padilla to serve his full 15 year sentence.
Padilla claimed the BOP abused its authority for imposing the full sentence of incarceration. The BOP has stautory authority to grant release on parole. The trial court determined the sentence. As long as the period of incarceration falls in the applicable, indeterminate range, then the BOP's decision will not be deemed arbitrary and capricious. BOP decisions are also final and not subject to judicial review (see Utah Code §77-27-5(3)). Because Padilla admitted he violated the terms of his release, the BOP was legally entitled to revoke his parole and impose part or all of his sentence.
Padilla also claimed the BOP improperly considered information from dismissed and/or amended charges in making their decision. However, as previously indicated, judicial review is not available to consider the BOP's substantive decision. In addition, the BOP is entitled to rely on information known to it in making a parole decision.
Padilla's appeal was denied in a sua sponte motion for summary disposition.
Wednesday, August 31, 2016
Another Conviction Overturned
In State v. Rackham, 2016 UT App. 167, Defendant appealed his conviction for one count of MA Sexual Battery. Defendant claimed the trial court abused its discretion by admitting evidence of prior bad acts under Utah Rule of Evidence 404(b).
KM, 16, alleged that Defendant approached her from behind, said "wee" in her ear and touched her stomach. KM pushed Defendant away. Defendant then put his hand under her shirt and brushed it against her breast over KM's bra. KM pushed defendant away and told him to not touch her. In previous encounters, KM claimed defendant had tickled her and a friend and grabbed at their butts. At that time, KM also told defendant to stop touching her. When confronted by KM's father, Defendant denied intentionally touching KM's breast and said he was just trying to get her to warm up to him.
Shortly after this occurred, TM (8) claimed defendant approached her from behind, whispered her name, and rubbed her stomach over her shirt. TM told defendant to stop.
KM's reported the conduct to family members and learned the following:
MF reported that in 2001, when she was 8, Defendant rubbed her chest and genitals over her clothing.
KR reported that from 1997-2005, from the ages of 7-15, Defendant touched her multiple times on the breast and genitals, above and under her clothing. Defendant pleaded no contest to sexual battery for this conduct.
Defendant was charged with sexual battery for intentionally touching KM's breast under circumstances he knew or should have known would likely cause affront or alarm. The State filed a Motion in Limine to admit evidence of prior bad conduct to show Defendant: 1) had knowledge that his touching would cause affront or alarm; 2) to rebut testimony that KM fabricated the touching under the Doctrine of Chances. The trial court admitted the evidence solely for the basis of knowledge. Defendant was found guilty after a two day trial.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. Even if evidence should not have been admitted, the decision will not be reversed unless prejudice can be shown. When admitting prior bad acts as evidence, the Court applies a three part inquiry: 1) was the evidence offered for a proper, non-character purpose; 2) is the evidence prevalent to the non-character purpose; and 3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice.
The evidence in the present case was offered for a proper non-character purpose. Defendant did not concede or stipulate to the knowledge element of the crime. Therefore, evidence that addressed intent is proper.
Some of the evidence in the present case was relevant to the issue to knowledge. Evidence that has even the slightest probative value is relevant. Past conduct showing young cousins and nieces were alarmed or affronted by Defendant's touching is admissible. However, TM's accusations occurred after the events in the present case and are therefore not relevant to the issue of knowledge.
The probative value of the evidence is substantially outweighed by the danger of unfair prejudice (See Utah Rule of Evidence 403.) Some factors the Court looks at to make this determination are: the strength of evidence of commission of the other crime; the lapse of time between incidents; the need for evidence; the efficacy of alternative proof; and the degree to which the evidence will inflame the jury.
In the present case, the evidence has probative value: there is evidence that Defendant's prior conduct caused his young relatives alarm or affront. However, the lack of similarity between the acts undermines the probative value. There is both a significant difference in age of the victims and gravity of the touching alleged from the this case and the prior acts. The more intimate touching of younger girls could improperly influence the jury.
There was also no strong need for the evidence. KM's own testimony was ample evidence of what transpired on the day in question and any prior times she told Defendant to stop touching her.
Finally, there was a likelihood of a more favorable outcome if the evidence had been excluded. The evidence improperly bolstered KM's testimony and made it more than the credibility of the two main witnesses. The testimony of the prior bad acts took a a great deal of the 2 day trial in relation to KM's testimony. Therefore, the likelihood of a different outcome if sufficiently high to undermine the confidence in the verdict,
Defendant's conviction was vacated and the case remanded for a new trial.
KM, 16, alleged that Defendant approached her from behind, said "wee" in her ear and touched her stomach. KM pushed Defendant away. Defendant then put his hand under her shirt and brushed it against her breast over KM's bra. KM pushed defendant away and told him to not touch her. In previous encounters, KM claimed defendant had tickled her and a friend and grabbed at their butts. At that time, KM also told defendant to stop touching her. When confronted by KM's father, Defendant denied intentionally touching KM's breast and said he was just trying to get her to warm up to him.
Shortly after this occurred, TM (8) claimed defendant approached her from behind, whispered her name, and rubbed her stomach over her shirt. TM told defendant to stop.
KM's reported the conduct to family members and learned the following:
MF reported that in 2001, when she was 8, Defendant rubbed her chest and genitals over her clothing.
KR reported that from 1997-2005, from the ages of 7-15, Defendant touched her multiple times on the breast and genitals, above and under her clothing. Defendant pleaded no contest to sexual battery for this conduct.
Defendant was charged with sexual battery for intentionally touching KM's breast under circumstances he knew or should have known would likely cause affront or alarm. The State filed a Motion in Limine to admit evidence of prior bad conduct to show Defendant: 1) had knowledge that his touching would cause affront or alarm; 2) to rebut testimony that KM fabricated the touching under the Doctrine of Chances. The trial court admitted the evidence solely for the basis of knowledge. Defendant was found guilty after a two day trial.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. Even if evidence should not have been admitted, the decision will not be reversed unless prejudice can be shown. When admitting prior bad acts as evidence, the Court applies a three part inquiry: 1) was the evidence offered for a proper, non-character purpose; 2) is the evidence prevalent to the non-character purpose; and 3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice.
The evidence in the present case was offered for a proper non-character purpose. Defendant did not concede or stipulate to the knowledge element of the crime. Therefore, evidence that addressed intent is proper.
Some of the evidence in the present case was relevant to the issue to knowledge. Evidence that has even the slightest probative value is relevant. Past conduct showing young cousins and nieces were alarmed or affronted by Defendant's touching is admissible. However, TM's accusations occurred after the events in the present case and are therefore not relevant to the issue of knowledge.
The probative value of the evidence is substantially outweighed by the danger of unfair prejudice (See Utah Rule of Evidence 403.) Some factors the Court looks at to make this determination are: the strength of evidence of commission of the other crime; the lapse of time between incidents; the need for evidence; the efficacy of alternative proof; and the degree to which the evidence will inflame the jury.
In the present case, the evidence has probative value: there is evidence that Defendant's prior conduct caused his young relatives alarm or affront. However, the lack of similarity between the acts undermines the probative value. There is both a significant difference in age of the victims and gravity of the touching alleged from the this case and the prior acts. The more intimate touching of younger girls could improperly influence the jury.
There was also no strong need for the evidence. KM's own testimony was ample evidence of what transpired on the day in question and any prior times she told Defendant to stop touching her.
Finally, there was a likelihood of a more favorable outcome if the evidence had been excluded. The evidence improperly bolstered KM's testimony and made it more than the credibility of the two main witnesses. The testimony of the prior bad acts took a a great deal of the 2 day trial in relation to KM's testimony. Therefore, the likelihood of a different outcome if sufficiently high to undermine the confidence in the verdict,
Defendant's conviction was vacated and the case remanded for a new trial.
Wednesday, August 17, 2016
How to Properly Calculate Restitution
In State v. Irwin, 2016 UT App. 144, the Court addressed how to properly calculate restitution of retail goods stolen from a retail dealer.
Defendant pleaded guilty a theft related crime for being in possession of 102 watches stolen from a Sandy, Utah watch shop. The watches were individually valued from $79-$2,500 apiece. At a restitution hearing, the State presented evidence that the MSRP value of the watches was $39,004, but the replacement cost was $13,651.40. Insurance calculated the loss at $35,155.48. The State argued that restitution should be based on the MSRP or insurance calculations. Defendant argued that restitution should be based on replacement cost.
A trial court's restitution order is reviewed for abuse of discretion. A court abuses its discretion when no reasonable person would take the view adopted by the trial court.
For restitution, a victim is limited in recovering pecuniary damages. Pecuniary damages are demonstrable economic injury which a person could recover in a civil action. Valuation generally includes the fair market value of of the property in question. Fair market value is often measured by what the owner is willing to receive and a buyer is willing to pay. Compensation is awarded for actual losses.
The Court ruled that purchase price/replacement cost is a better measure of a victim's loss than retail value when the victim has the ability to replace the stolen items for much less than retail value. In these situations, awards greater than retail value violate the common law principle that compensation is only available for the injury suffered.
Limiting restitution in this case prevents the victim from realizing a windfall. If the stolen merchandise was compensated for at resale value, the victim could replace the watches, pocket the excess, and still sell the watches for a profit, thereby realizing a double profit.
Because restitution was awarded in excess of replacement cost, the award was vacated and the case remanded to the trial court for a new award consistent with the Court's opinion.
Defendant pleaded guilty a theft related crime for being in possession of 102 watches stolen from a Sandy, Utah watch shop. The watches were individually valued from $79-$2,500 apiece. At a restitution hearing, the State presented evidence that the MSRP value of the watches was $39,004, but the replacement cost was $13,651.40. Insurance calculated the loss at $35,155.48. The State argued that restitution should be based on the MSRP or insurance calculations. Defendant argued that restitution should be based on replacement cost.
A trial court's restitution order is reviewed for abuse of discretion. A court abuses its discretion when no reasonable person would take the view adopted by the trial court.
For restitution, a victim is limited in recovering pecuniary damages. Pecuniary damages are demonstrable economic injury which a person could recover in a civil action. Valuation generally includes the fair market value of of the property in question. Fair market value is often measured by what the owner is willing to receive and a buyer is willing to pay. Compensation is awarded for actual losses.
The Court ruled that purchase price/replacement cost is a better measure of a victim's loss than retail value when the victim has the ability to replace the stolen items for much less than retail value. In these situations, awards greater than retail value violate the common law principle that compensation is only available for the injury suffered.
Limiting restitution in this case prevents the victim from realizing a windfall. If the stolen merchandise was compensated for at resale value, the victim could replace the watches, pocket the excess, and still sell the watches for a profit, thereby realizing a double profit.
Because restitution was awarded in excess of replacement cost, the award was vacated and the case remanded to the trial court for a new award consistent with the Court's opinion.
Monday, August 15, 2016
A Violation of the Confrontation Clause?
In State v. Wynia, 754 P.2d 667 (Utah App. 1988) Defendant appealed his conviction for 4 counts of distribution of a controlled substance. One ground on which Defendant appealed was that there was defect in the chain of custody of the chemical test on the substance.
Defendant met two undercover officers at a bowling alley while playing pool. One officer asked the defendant about purchasing cocaine. Defendant helped the officer locate a purchase a small amount of cocaine. On the the second meeting, and again at the request of undercover officers, the defendant helped them locate and purchase a small amount of cocaine and marijuana. After purchasing the drugs, the officers sealed the items in marked envelopes and put them in the night evidence depository. The evidence was then retrieved by the evidence custodian and transported to the state toxicology lab where it was delivered to a criminologist (who was not called to testify). Two lab analysts received the exhibits in the sealed, marked envelopes. After analyzing the contents, the exhibits were placed back into sealed, marked envelopes and in a secure evidence locker. The envelope was then picked up and transported back to evidence.
For an item to be accepted into evidence, there must be a preliminary showing that the proposed exhibit is what it purports to be and is in substantially the same condition as it was at the time of the crime. The circumstances surrounding the custody of the article and the likelihood of tampering are factors to be considered in determining admissibility. However, in Wynia, the Court ruled that once the evidence is in the hands of the state it is generally presumed that it is handled with regularity absent a showing of bad faith or actual tampering. A weak link in the chain of custody and any doubt created by the weak link goes to weight and not admissibility.
However, Wynia, was decided before Crawford v. Washington, 541 U.S. 36 (2004) and the resulting cases building on that ruling. Crawford held that the confrontation clause precludes admission of hearsay evidence that is testimonial unless there has been a showing of unavailability and a prior opportunity for defendant to cross-examine the unavailable declarant who uttered the evidence. Where the hearsay evidence uttered by the declarant is non-testimonial, states are free to develop their own hearsay law. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts”). The threshold question is whether the proposed out-of-court hearsay evidence is testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).547 U.S. 822 addressed this issue. Scientific analysis in a lab is not an interrogation, but it is police action which produces evidence about something found in defendant’s possession, and the police actions to produce that evidence are “solely directed at establishing the facts of [the] past crime.” The action of doing laboratory analysis may be thought of as an interrogation of something the defendant possessed. When police action “produces testimony solely directed at establishing the facts of a past crime, in order to…provide evidence to convict the perpetrator,” the evidence produced, whether a tape-recorded statement, hand-written statement, or statement in the form of a crime lab report, is testimonial.
Defendant met two undercover officers at a bowling alley while playing pool. One officer asked the defendant about purchasing cocaine. Defendant helped the officer locate a purchase a small amount of cocaine. On the the second meeting, and again at the request of undercover officers, the defendant helped them locate and purchase a small amount of cocaine and marijuana. After purchasing the drugs, the officers sealed the items in marked envelopes and put them in the night evidence depository. The evidence was then retrieved by the evidence custodian and transported to the state toxicology lab where it was delivered to a criminologist (who was not called to testify). Two lab analysts received the exhibits in the sealed, marked envelopes. After analyzing the contents, the exhibits were placed back into sealed, marked envelopes and in a secure evidence locker. The envelope was then picked up and transported back to evidence.
For an item to be accepted into evidence, there must be a preliminary showing that the proposed exhibit is what it purports to be and is in substantially the same condition as it was at the time of the crime. The circumstances surrounding the custody of the article and the likelihood of tampering are factors to be considered in determining admissibility. However, in Wynia, the Court ruled that once the evidence is in the hands of the state it is generally presumed that it is handled with regularity absent a showing of bad faith or actual tampering. A weak link in the chain of custody and any doubt created by the weak link goes to weight and not admissibility.
However, Wynia, was decided before Crawford v. Washington, 541 U.S. 36 (2004) and the resulting cases building on that ruling. Crawford held that the confrontation clause precludes admission of hearsay evidence that is testimonial unless there has been a showing of unavailability and a prior opportunity for defendant to cross-examine the unavailable declarant who uttered the evidence. Where the hearsay evidence uttered by the declarant is non-testimonial, states are free to develop their own hearsay law. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts”). The threshold question is whether the proposed out-of-court hearsay evidence is testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).547 U.S. 822 addressed this issue. Scientific analysis in a lab is not an interrogation, but it is police action which produces evidence about something found in defendant’s possession, and the police actions to produce that evidence are “solely directed at establishing the facts of [the] past crime.” The action of doing laboratory analysis may be thought of as an interrogation of something the defendant possessed. When police action “produces testimony solely directed at establishing the facts of a past crime, in order to…provide evidence to convict the perpetrator,” the evidence produced, whether a tape-recorded statement, hand-written statement, or statement in the form of a crime lab report, is testimonial.
That leaves the question of what witnesses are necessary for the prosecution to call to prove what was in the defendant's blood for a DUI based on a blood draw. If a court applies strict adherence to the holding in Wynia without looking at the facts of the case or the complexities of blood evidence, then only the analyst needs to be called. This is a mistake and a violation of the 6th Amendment right to confront adverse witnesses. Here is why.
First, the person who drew the blood must be cross examined as to the methods used to draw the blood, the age and quality of the tubes used to store the blood, and amount of time the tubes were went without refrigeration. Next the evidence custodian who moves the evidence prior to transportation must be crossed examined as to the temperature and consistency of the refrigeration while the tubes are technically under her or his custody. They also need to provide information as to the condition the evidence was found in as well as any defects in the paperwork that could cast doubt on the authenticity of the evidence.
Next the blood is transported to the lab. How long did this process take? Where was the evidence kept? How was it secured? What temperature was it kept at? How was the temperature controlled. Once the blood has reached the lab, what condition was it in? Were there any irregularities in the evidence packaging or paperwork that had been missed by the police custodian? Was there any delay in securing or refrigerating the blood? How long and why were there delays?
In Utah, more than one analyst handles the blood. Initial screening to done by one analyst. Followup up testing will be completed by one or more analysts. These analysts must be thoroughly questioned: What condition were the tubes found in? Was there enough blood to perform the required tests? If not, did anyone add water or another substance to the blood to bring it to the proper volume. Was the blood clotted? Likewise, there is a wealth of information that needs to be addressed about the maintenance and calibration of the machines, the training of the operators, the standard operating procedures, the laboratory credentials.
It is plain to see that there are too many issues with blood draw DUIs to presume evidence is handling with regularity. Couple that with recent scandals of lab analysts faking results in the north east and new reports that many state labs get paid per conviction. The bottom line is that the government should not get the benefit of the doubt concerning the handling and testing of blood evidence for DUI cases. Doing so violates a defendant's right to confront adverse witnesses.
Wednesday, August 3, 2016
The Court Cannot Give New Jury Instructions Without Consulting Counsel
In State v. Dozah,
2016 UT App. 13, Defendant appealed his convictions for aggravated kidnapping
and aggravated assault. The Court of
appeals vacated Defendant’s convictions and remanded the case.
The victim in this case was tied up and abused by a third
party named Chris, for drug deal related transgressions. Victim had been tied
up and physically and verbally abused prior to Defendant arriving on the scene.
Defendant relayed a message about crossing the drug supplier to victim. He also suggested
to Chris that they untie victim. Chris
threatened defendant if he untied victim. Defendant, with Chris, then drove victim
to an isolated area under the guise of taking him to a bus to leave town.
Defendant left victim in a remote location, in below freezing weather, dressed
in inadequate clothing. Defendant testified that he did not instigate the situation
and he complied with Chris because he was scared for himself. He also tried to intervene
on behalf of the victim.
Based on the evidence presented the Court denied Defendant’s
compulsion instruction and Defendant did not argue compulsion in his closing. While the jury was deliberating, they sent a
question to the judge. The jury wanted to know a definition and if leaving
victim on the road constituted aggravated assault. The judge, without advising
or consulting the attorneys, answered the questions by directing to jury to
look at the jury instructions and telling them they must decide. After the verdict
the trial court denied Defendant’s motion for a new trial.
Defendant’s first ground for appeal is that the court erred in
denying Defendant’s request for a compulsion instruction. On appeal, a challenge
to jury instructions is reviewed for correctness. Defendant is entitled to an
affirmative defense if evidence has been presented that provides any reasonable
basis upon which a jury could conclude that the affirmative defense
applies. Defendant does not get the jury
instruction if the evidence is so slight as to be incapable of raising a
reasonable doubt. Defendant must demonstrate that some evidence was put before
the jury. Compulsion occurs when a person is made to commit an illegal act
through a specific, imminent threat to self and that person has no reasonable alternative
to violating the law. The Court of
Appeals upheld the trial court’s denial because the evidence presented was that
Defendant only faced a threat of harm if he untied the victim, not if he refused
to perform a criminal act.
Defendant appeals based on the trial court's response to the jury question. Defendant claimed the judge's response left the jury with an incorrect understanding of the law, was an improper, ex parte contact with the jury, and denied the defendant his due process right to be present at the hearing.
Under the Sixth Amendment, Defendant has the right to be present at any stage of the criminal proceeding that are critical to the outcome of the case and his presence would benefit the fairness of the procedure. This does not equate to the right to be present at all times. Furthermore, under the Utah Code of Civil Procedure, the court does not have to consult with counsel when answering every jury question. Answers that amount to new, substantive, jury instructions should only be given after consulting with counsel. Defendant claims the trial court's response to the jury's second question not only contained an substantive instruction, but erroneously misstated the law. The test is to look at the effect the court had on the jury and not the intent of the judge when answering the question.
The Court of Appeals agreed with Defendant. The jury question indicated the jury may base its decision on an improper statement of law. The trial court was responsible to correct this error. However, the answer given by the trial court could be interpreted as a new instruction that could contradict the prior instruction on the law and did not accurately state the law. This amounts to prejudicial error and the Court vacated the defendant's conviction for aggravated assault.
Because aggravated assault is a predicate offense for aggravated kidnapping, this conviction was also vacated. The State argued that the Court should just enter a conviction for simple kidnapping instead. The Court may enter a conviction for a lesser included offense if the evidence presented was insufficient to support the greater offense, the trier of fact was presented with the necessary facts for the lesser offense, and the error did not affect these findings. In the present case, the elements for simple kidnapping and aggravated kidnapping a different and the trier did not receive sufficient evidence to support the lesser charge. Therefore, conviction for aggravated kidnapping was also vacated.
Monday, August 1, 2016
A Matter of Form Over Substance
In State v. Knaras, 2016 UT App. 143, Defendant appealed his conviction for one count of criminal non-support. In support of his appeal, defendant claims the trial court made multiple errors in the jury instructions.
Defendant was charged with one count of F3 criminal non-support. It was alleged Defendant failed to pay up to $19,181.82, from the months of May 2010 and May 2012. The mother of the three children testified at trial to the lack of payment, her efforts to provide for the children, and how Defendant never sought to modify the divorce decree. Defendant presented an affirmative defense that he lacked an ability to pay. Defendant's mother testified at trial that Defendant lived with her and did not make enough money to pay rent or have transportation. Defendant was convicted, but only of a Class A Misdemeanor because the State failed to prove he failed to pay support in each of 18 individual months in a 24 month period.
Appellate challenges to jury instructions are reviewed for correctness. Individual instructions are viewed in context of the entire instructions given to the jury. As a whil;e the instructions must fairly instruct the jury as to the law. One inaccurate instruction does not amount to reversible error. Only harmful and prejudicial errors entile a defendant to a new trial. Harmful error occurs when there is a reasonable probability the error affected the outcome of the trial.
Defendant first challenged the jury instructions on the basis that they inadequately described the burden of proof concerning his affirmative defense. In the present case, the State had to disprove Defendant had an inability to pay child support. However, the jury instructions stated that once the affirmative defense was raised, the State had to prove the defendant had an ability to pay child support. Phasing the element in the positive rather than the negative did not constitute an error. In addition, the jury was instructed that the State had to prove this element beyond a reasonable doubt and that it never shifted to the Defendant.
Defendant next challenged the jury instruction that a partial failure to pay support was criminal as that language is not in the statute. The statute criminalizes non support when failure to pay would place the children in needy circumstances. The jury was instructed that partial failure to pay would not be adequate to provide for the children under the circumstances. In looking at common definitions and the plain language of the statute, nothing allows a person to pay partial support if the support furnished is not adequate. Defendant's assertion that jury instruction allows for only complete non-support goes against the purpose of the statute. The legislature intend to compel parents to provide for their children. It would defeat the purpose to allow a parent to escape liability by by allowing the parent to provide only nominal support.
Finally, Defendant challenged the jury instructions as to the non stautory reasons the affirmative defense would not apply. Defendant claims the instructions were too vague and ill defined to properly instruct the jury. Specifically, Defendant challenges that the statute allows the jury to consider the defendant's "lack of diligence in obtaining employment" and the jury instructions used the term "voluntarily under or unemployed." The Court of Appeals found this language to be synonymous. On addition, the jury was also instructed that Defendant's failure to provide support was excused if defendant was unable to provide by no fault of his own.
Taken as a whole, the instructions were a fair statement of the law. Defendant's conviction was affirmed.
Defendant was charged with one count of F3 criminal non-support. It was alleged Defendant failed to pay up to $19,181.82, from the months of May 2010 and May 2012. The mother of the three children testified at trial to the lack of payment, her efforts to provide for the children, and how Defendant never sought to modify the divorce decree. Defendant presented an affirmative defense that he lacked an ability to pay. Defendant's mother testified at trial that Defendant lived with her and did not make enough money to pay rent or have transportation. Defendant was convicted, but only of a Class A Misdemeanor because the State failed to prove he failed to pay support in each of 18 individual months in a 24 month period.
Appellate challenges to jury instructions are reviewed for correctness. Individual instructions are viewed in context of the entire instructions given to the jury. As a whil;e the instructions must fairly instruct the jury as to the law. One inaccurate instruction does not amount to reversible error. Only harmful and prejudicial errors entile a defendant to a new trial. Harmful error occurs when there is a reasonable probability the error affected the outcome of the trial.
Defendant first challenged the jury instructions on the basis that they inadequately described the burden of proof concerning his affirmative defense. In the present case, the State had to disprove Defendant had an inability to pay child support. However, the jury instructions stated that once the affirmative defense was raised, the State had to prove the defendant had an ability to pay child support. Phasing the element in the positive rather than the negative did not constitute an error. In addition, the jury was instructed that the State had to prove this element beyond a reasonable doubt and that it never shifted to the Defendant.
Defendant next challenged the jury instruction that a partial failure to pay support was criminal as that language is not in the statute. The statute criminalizes non support when failure to pay would place the children in needy circumstances. The jury was instructed that partial failure to pay would not be adequate to provide for the children under the circumstances. In looking at common definitions and the plain language of the statute, nothing allows a person to pay partial support if the support furnished is not adequate. Defendant's assertion that jury instruction allows for only complete non-support goes against the purpose of the statute. The legislature intend to compel parents to provide for their children. It would defeat the purpose to allow a parent to escape liability by by allowing the parent to provide only nominal support.
Finally, Defendant challenged the jury instructions as to the non stautory reasons the affirmative defense would not apply. Defendant claims the instructions were too vague and ill defined to properly instruct the jury. Specifically, Defendant challenges that the statute allows the jury to consider the defendant's "lack of diligence in obtaining employment" and the jury instructions used the term "voluntarily under or unemployed." The Court of Appeals found this language to be synonymous. On addition, the jury was also instructed that Defendant's failure to provide support was excused if defendant was unable to provide by no fault of his own.
Taken as a whole, the instructions were a fair statement of the law. Defendant's conviction was affirmed.
Friday, July 29, 2016
It's All About the Training
When I went into business for myself, it was my goal to become a DUI defense specialist. The first thing I did was join the National College for DUI Defense (NCDD). This stellar organization consists of DUI defense specialists and expert qualified scientists from around the country. Last week I spent 3 days in intensive training in Boston with the NCDD members, faculty, regents, and guest lecturers.
The training ran the gambit from more effective cross examination of officers, to the faulty science behind drug and alcohol monitoring, to the ethics of plea bargains. The bottom line is I came away a stronger lawyer. I learned new techniques and had my previous knowledge and practices reinforced. I am re-energized to fight harder for you in the courtroom.
I am not only proud to have graduated from the intensive session, but I am proud to be a defense attorney dedicated to representing people in DUI cases. The law and science of DUI cases is so complex that you need someone committed to continued proficiency in this area. If you go to the NCDD website you will see a handle of Utah lawyers are members. But look closely - when did that lawyer last attend the College, if ever? I'm the only Utah lawyer who has attended in almost 2 years. Give yourself the best advantage in the courtroom by hiring a lawyer with current training! Call me at 385-243-0058, for a free consultation.
Wednesday, July 27, 2016
The Court Has Broad Discretion in Sentencing
The sentencing of a trial court is reviewed for an abuse of
discretion. The court abuses its discretion when it fails to consider all the
legally relevant factors and no reasonable person would take the view adopted
by the file court.
Defendant’s point of contention is that the prosecutor and
trial court commented on his failure to look at the victim while she was making
her impact statement. Defendant explained that his attorney told him to not
look at the victim. The court accepted
this explanation. This exchange show the
defendant was able to correct the court’s misconceptions. In addition, the PSI
recommended Defendant serve two concurrent 1 year sentences, had a bad history
with supervised probation, and pending charges in Colorado. Therefore, nothing in the record shows a
lesser sentence was warranted and Defendant’s sentence so the trial court’s
sentence is affirmed.
Monday, July 25, 2016
Your Friends Can Get You In Trouble, Too
In State v. Mikkelson, 2016 UT App. 136, the district court granted Defendant's Motion to Suppress evidence obtained after officers stopped her vehicle for the sole purpose of investigating her passenger's probation violation. The State appealed and the Court of Appeals reversed the decision, holding Defendant's Fourth Amendment rights were not violated.
In April 2014, to police officers were watching defendant's vehicle because she was parked and idling, behind the in a high drug trafficking area. The vehicle was registered to a known drug dealer. Defendant's friend arrived and got into the passenger side of the vehicle. Friend was known to police officers as a person on probation and the hour was past curfew. Police officers called the assigned probation officer who asked that police investigate the situation. Officers then stopped the vehcile to question the probationer. A warrants check revealed an outstanding warrant for the Defendant (driver). Drugs and paraphernalia were found on the defendant during a search incident to arrest and while inventory the vehicle.
Defendant filed a motion to supress the evidence due to the unlawful search and seizure as she had not been suspected of committing a crime prior to the stop. The district court agreed that there was no reasonable articulable suspicion to stop the defendant. In addition, the district court ruled that the probation officer could not delegate his investigatory authority to police officers.
Upon review, a Motion to Suppress evidence based on Fourth Amendment violations presents a mixed question of law and fact. The trial court's factual findings are reviewed for clear error and the legal conclusions for correctness. Probationers have constitutional rights that lay between that of a prisoner and the general public. Probation officers can search someone under supervision when they have reasonable articulable suspicion that a probation violation or crime has occurred. Police officers, however, cannot engage in warrantless searches when acting solely as a police officers.
In areas where there is a shortage of probation officers, such as Price where this case occurred, the law allows for police officers to assist probation officers in investigating and apprehending people violating probation. Defendant never denied that probation officers can seek such assistance from police officers. However, Defendant did dispute the police officers' lawful ability to stop and seize her, as the driver of the vehicle, since she was not suspected of committing any crime. Not only does the law allow police to stop a vehicle suspected of committing a "wrongdoing," the US Supreme Court allows for police to stop a vehicle to investigate a passenger. Under the law, all people in the vehicle are then lawfully detained for the duration of the stop.
In April 2014, to police officers were watching defendant's vehicle because she was parked and idling, behind the in a high drug trafficking area. The vehicle was registered to a known drug dealer. Defendant's friend arrived and got into the passenger side of the vehicle. Friend was known to police officers as a person on probation and the hour was past curfew. Police officers called the assigned probation officer who asked that police investigate the situation. Officers then stopped the vehcile to question the probationer. A warrants check revealed an outstanding warrant for the Defendant (driver). Drugs and paraphernalia were found on the defendant during a search incident to arrest and while inventory the vehicle.
Defendant filed a motion to supress the evidence due to the unlawful search and seizure as she had not been suspected of committing a crime prior to the stop. The district court agreed that there was no reasonable articulable suspicion to stop the defendant. In addition, the district court ruled that the probation officer could not delegate his investigatory authority to police officers.
Upon review, a Motion to Suppress evidence based on Fourth Amendment violations presents a mixed question of law and fact. The trial court's factual findings are reviewed for clear error and the legal conclusions for correctness. Probationers have constitutional rights that lay between that of a prisoner and the general public. Probation officers can search someone under supervision when they have reasonable articulable suspicion that a probation violation or crime has occurred. Police officers, however, cannot engage in warrantless searches when acting solely as a police officers.
In areas where there is a shortage of probation officers, such as Price where this case occurred, the law allows for police officers to assist probation officers in investigating and apprehending people violating probation. Defendant never denied that probation officers can seek such assistance from police officers. However, Defendant did dispute the police officers' lawful ability to stop and seize her, as the driver of the vehicle, since she was not suspected of committing any crime. Not only does the law allow police to stop a vehicle suspected of committing a "wrongdoing," the US Supreme Court allows for police to stop a vehicle to investigate a passenger. Under the law, all people in the vehicle are then lawfully detained for the duration of the stop.
Friday, July 22, 2016
Your Story Must Be Plausible To Raise a Reasonable Doubt of Guilt
In State v. Jimenez, 2016 UT App. 138, Defendant appealed his conviction for felony burglary on the grounds the trial court abused its discretion in excluding his medical record exhibits. Even though the Court of Appeals found the evidence was relevant, the evidence against the defendant was so persuasive, the error was harmless and his conviction was affirmed.
In December 2012, a woman came home to find her house had been broken into. Entry was made through a window that was accessed from a garbage can that had been placed under it. The window could not be accessed from ground level without climbing on some object. Later, the woman found blood smeared in various areas of her bedroom and kitchen. A DNA analysis completed and matched to the defendant, whose profile was already in a State database. The defendant was questioned and denied ever being in said house.
At the time of trial, Defendant came up with an alternate, convoluted explanation about how his blood came to be in the home. Ostensibly, after trying to help a crying girl get her medication from a friend's house, Defendant was attacked by a pit bull. The girl got a dishtowel to help Defendant clean up his wounds. The dishtowel was then brought into the woman's house, where it spread his blood. Defendant also sought to introduce medical records at his trial to show he suffered from numerous medical conditions that would make it impossible for him to do any climbing such as multiple herniated discs, a crushed vertebrae, and a torn tendon. The State objected to the medical records on the grounds that they were based on the Defendant's self reported diagnosis, contained no objective medical tests, and contained no medical opinion as to his ability to climb. The records were also limited to a six month time period and ended almost one year prior to the date of the burglary. The trial court refused to admit the records on the grounds of relevance. In addition, the trial court refused to admit the records as cumulative to the defendant's own testimony as to his medical condition.
The trial court's ruling on admission of evidence is reviewed for an abuse of discretion. Even if the trial court should have admitted the evidence, the exclusion is reviewed for harmless error. Exclusion of evidence is harmful if there is a reasonable likelihood that a different outcome would result with the introduction of the evidence and the verdict of the jury is undermined.
The Court of Appeals held that the the medical records were relevant evidence. However, introduction of the evidence would not have lead to a different verdict. The DNA evidence at the scene was strong evidence of Defendant's guilt. His story, on the other hand, was not plausible. Although he identified numerous witnesses in his account, not one of those people were called to testify and corroborate his story. In addition, the probative value of the medical records was limited as there were no medical tests or assessments identified to confirm Defendant's self reported diagnosis. The probative value was too limited to have raised a reasonable doubt in the mind of the jury in light of the DNA evidence.
In December 2012, a woman came home to find her house had been broken into. Entry was made through a window that was accessed from a garbage can that had been placed under it. The window could not be accessed from ground level without climbing on some object. Later, the woman found blood smeared in various areas of her bedroom and kitchen. A DNA analysis completed and matched to the defendant, whose profile was already in a State database. The defendant was questioned and denied ever being in said house.
At the time of trial, Defendant came up with an alternate, convoluted explanation about how his blood came to be in the home. Ostensibly, after trying to help a crying girl get her medication from a friend's house, Defendant was attacked by a pit bull. The girl got a dishtowel to help Defendant clean up his wounds. The dishtowel was then brought into the woman's house, where it spread his blood. Defendant also sought to introduce medical records at his trial to show he suffered from numerous medical conditions that would make it impossible for him to do any climbing such as multiple herniated discs, a crushed vertebrae, and a torn tendon. The State objected to the medical records on the grounds that they were based on the Defendant's self reported diagnosis, contained no objective medical tests, and contained no medical opinion as to his ability to climb. The records were also limited to a six month time period and ended almost one year prior to the date of the burglary. The trial court refused to admit the records on the grounds of relevance. In addition, the trial court refused to admit the records as cumulative to the defendant's own testimony as to his medical condition.
The trial court's ruling on admission of evidence is reviewed for an abuse of discretion. Even if the trial court should have admitted the evidence, the exclusion is reviewed for harmless error. Exclusion of evidence is harmful if there is a reasonable likelihood that a different outcome would result with the introduction of the evidence and the verdict of the jury is undermined.
The Court of Appeals held that the the medical records were relevant evidence. However, introduction of the evidence would not have lead to a different verdict. The DNA evidence at the scene was strong evidence of Defendant's guilt. His story, on the other hand, was not plausible. Although he identified numerous witnesses in his account, not one of those people were called to testify and corroborate his story. In addition, the probative value of the medical records was limited as there were no medical tests or assessments identified to confirm Defendant's self reported diagnosis. The probative value was too limited to have raised a reasonable doubt in the mind of the jury in light of the DNA evidence.
Wednesday, July 20, 2016
When Is a Request To Lie Witness Tampering?
In State v. Plexico, 2016 UT App. 118, Defendant appealed her conviction for witness tampering. The Utah Court of Appeals affirmed.
Defendant was originally charged with two counts of assault for an altercation with her boyfriend and friend. Within two hours of receiving a citation from the police, Defendant asked her friend to change her statement to the police. Defendant was then charged with witness tampering. The charges were severed for trial and Defendant was acquitted on both counts of assault. Defendant was then tried on the the witness tampering charge and convicted by a jury.
At the time of trial, the trial court refused to allow Defendant to present evidence that she was acquitted of the underlying charges. The court reasoned that allowing the acquittal into evidence would be as prejudicial as allowing a prior conviction into evidence. The court would allow Defendant's attorney to admit enough evidence to establish whether Defendant knew criminal charges were pending. The Court also read a jury instruction that explained to the jury that the underlying circumstances were not evidence in the case against Defendant. After conviction, Defendant filed a motion for a new trial. With that motion, there was an Affidavit from one juror attesting to the fact that she thought Defendant had been convicted of the underlying charges.
Defendant first appealed on the grounds that there was insufficient evidence to find her guilty of witness tampering. She argued that merely asking a friend to lie does not meet the plain language of the statute. The threshold issue of statutory interpretation is decided as a matter of law. The Court will only reverse a jury verdict when the evidence is sufficiently inconclusive or inherently improbable that reasonable minds must entertain a reasonable doubt that the Defendant committed the crime.The standard of review is highly deferential.
Generally, asking a friend to lie is not a crime. However, asking a friend to lie for the purpose of preventing an official proceeding (i.e. criminal charges ) or to testify falsely is a crime under Utah Code §76-8-508. Defendant bears the burden of marshalling the evidence in favor of the verdict. Defendant vastly understated the evidence against her and that undermined her claim. Ultimately, the jury had to decide if asking a friend to lie and tell police that Defendant did not hit her boyfriend, was the same as asking her to testify falsely. The jury found it was. In light of the evidence presented, the Court of Appeals could not find that reasonable minds must have entertained a reasonable doubt concerning Defendant's guilt.
Defendant next claimed that the trial court abused its discretion by not allowing her to present evidence that she was acquitted of the underlying charge. In doing so, the trial court misapplied Rules 403 & 404, of the Utah Rules of Evidence. Furthermore, the trial court did not make the proper analysis to determine whether the evidence was admissible for non character purposes.
Evidence must be excluded if it is only being offered to show a person has a propensity to commit (or not commit) a crime. If there is a proper, non character purpose for the evidence, the trial court must then review the evidence to determine if it makes a fact of consequence more probable than without the evidence. The trial court determined the evidence of Defendant's acquittal of the underlying crime would unduly prejudice the jury. In addition, the evidence was irrelevant because it did not address any elements of the crime of witness tampering. The Court of Appeals could not it was an abuse of discretion to exclude the evidence under these circumstances.
Defendant's last point of appeal was an error in the jury instructions. Defendant argued it was plain error to for the court to allow a jury instruction that inadequately articulated the required mens rea of the crime of witness tampering. To prevail on a claim of plain error, Defendant must show that:1) an error exists; 2) the error should have been obvious to the trial court; and 3) the error was harmful. The Court of Appeals determined there was no error.
Jury instructions that inadequately articulate the required mens rea do not create an error when a party affirmatively represents he or she has no objection to the instruction. Not only did defendant have no objection to the instructions as given, she proposed allegedly faulty instruction in this case. Furthermore, jury instructions are looked at in the entirety. As a general rule, the basic elements must be represented and the taken as a whole they instructions must fairly represent the law. The mere fact that one instruction, standing alone, is not as accurate as it could be, is not grounds for reversing a conviction. In the present case, the jury instructions accurately provided the mens rea for the crime of witness tampering (knowingly, intentionally, or recklessly) but only provided the definitions for the term knowingly and intentionally. Since the jury instructions as a whole fairly represented the law and provided the basic elements of the crime, there is no grounds for reversal.
Defendant was originally charged with two counts of assault for an altercation with her boyfriend and friend. Within two hours of receiving a citation from the police, Defendant asked her friend to change her statement to the police. Defendant was then charged with witness tampering. The charges were severed for trial and Defendant was acquitted on both counts of assault. Defendant was then tried on the the witness tampering charge and convicted by a jury.
At the time of trial, the trial court refused to allow Defendant to present evidence that she was acquitted of the underlying charges. The court reasoned that allowing the acquittal into evidence would be as prejudicial as allowing a prior conviction into evidence. The court would allow Defendant's attorney to admit enough evidence to establish whether Defendant knew criminal charges were pending. The Court also read a jury instruction that explained to the jury that the underlying circumstances were not evidence in the case against Defendant. After conviction, Defendant filed a motion for a new trial. With that motion, there was an Affidavit from one juror attesting to the fact that she thought Defendant had been convicted of the underlying charges.
Defendant first appealed on the grounds that there was insufficient evidence to find her guilty of witness tampering. She argued that merely asking a friend to lie does not meet the plain language of the statute. The threshold issue of statutory interpretation is decided as a matter of law. The Court will only reverse a jury verdict when the evidence is sufficiently inconclusive or inherently improbable that reasonable minds must entertain a reasonable doubt that the Defendant committed the crime.The standard of review is highly deferential.
Generally, asking a friend to lie is not a crime. However, asking a friend to lie for the purpose of preventing an official proceeding (i.e. criminal charges ) or to testify falsely is a crime under Utah Code §76-8-508. Defendant bears the burden of marshalling the evidence in favor of the verdict. Defendant vastly understated the evidence against her and that undermined her claim. Ultimately, the jury had to decide if asking a friend to lie and tell police that Defendant did not hit her boyfriend, was the same as asking her to testify falsely. The jury found it was. In light of the evidence presented, the Court of Appeals could not find that reasonable minds must have entertained a reasonable doubt concerning Defendant's guilt.
Defendant next claimed that the trial court abused its discretion by not allowing her to present evidence that she was acquitted of the underlying charge. In doing so, the trial court misapplied Rules 403 & 404, of the Utah Rules of Evidence. Furthermore, the trial court did not make the proper analysis to determine whether the evidence was admissible for non character purposes.
Evidence must be excluded if it is only being offered to show a person has a propensity to commit (or not commit) a crime. If there is a proper, non character purpose for the evidence, the trial court must then review the evidence to determine if it makes a fact of consequence more probable than without the evidence. The trial court determined the evidence of Defendant's acquittal of the underlying crime would unduly prejudice the jury. In addition, the evidence was irrelevant because it did not address any elements of the crime of witness tampering. The Court of Appeals could not it was an abuse of discretion to exclude the evidence under these circumstances.
Defendant's last point of appeal was an error in the jury instructions. Defendant argued it was plain error to for the court to allow a jury instruction that inadequately articulated the required mens rea of the crime of witness tampering. To prevail on a claim of plain error, Defendant must show that:1) an error exists; 2) the error should have been obvious to the trial court; and 3) the error was harmful. The Court of Appeals determined there was no error.
Jury instructions that inadequately articulate the required mens rea do not create an error when a party affirmatively represents he or she has no objection to the instruction. Not only did defendant have no objection to the instructions as given, she proposed allegedly faulty instruction in this case. Furthermore, jury instructions are looked at in the entirety. As a general rule, the basic elements must be represented and the taken as a whole they instructions must fairly represent the law. The mere fact that one instruction, standing alone, is not as accurate as it could be, is not grounds for reversing a conviction. In the present case, the jury instructions accurately provided the mens rea for the crime of witness tampering (knowingly, intentionally, or recklessly) but only provided the definitions for the term knowingly and intentionally. Since the jury instructions as a whole fairly represented the law and provided the basic elements of the crime, there is no grounds for reversal.
Monday, July 18, 2016
Post Conviction Relief Proceedings Must Comply With the Rules of Civil Procedure
In Gordon v. State, 2016 UT 11, the Utah Supreme Court addressed an issue of first impression under Part 3 of the Post Conviction Relief Act (PCRA). Gordon's petition for post conviction DNA testing was denied by the district court based on the State's assertion that Gordon declined to request DNA testing at the time of trial for tactical reasons. Although Gordon sought relief on both substantive and procedural grounds, the case was reversed and remanded on procedural grounds only.
Gordon was convicted of murder in 2002. His conviction was affirmed by the Court of Appeals in 2004. Gordon then filed a PCRA petition for DNA testing on items that were located at the murder scene. Gordon claimed testing these items could significantly undermine the largely circumstantial case against him and show he was factually innocent. Utah Code §78B-9-301(4) prohibits a court from ordering post conviction DNA testing if the petitioner failed to seek testing at the time of trial for tactical reasons. In his petition Gordon denied the failure to test was tactical but failed to provide any reasoning. The district court dismissed Gordon's petition 20 days after the State filed an opposition claiming Gordon failed show he did not have a tactical reason for not previously testing the DNA. Gordon was not given an opportunity to respond to the State's pleading or given a hearing to present evidence. Gordon then filed a motion for reconsideration, claiming he should have been allowed to reply and that the State has the burden of establishing the tactical reason issue. In addition, Gordon informed the district court that he did not have the DNA previously tested because he was not aware the items in question could be tested and he lack the funds necessary for testing. The district court denied Gordon's motion, holding that: 1) Motions for Reconsideration are not recognized by the Utah Rules of Civil Procedure; 2) The PCRA did not give a petitioner the right to file a reply memorandum; and 3) his original motion did not address the statutory mandate of tactical reasons.
Gordon's first grounds for appeal was whether he had a right to file a reply memorandum when the State opposed his PCRA petition. The Utah Supreme Court held that Gordon was entitled to file a reply. The statute authorizing PCRA should be read in harmony with the Utah Rules of Civil Procedure. The Rules allow for the State to file either an answer or a motion. As the State's response to Gordon's motion sought immediate dismissal of his petition, it was a motion. Under the Utah Rules of Civil Procedure, a party opposing a motion is entitled to submit a memorandum within 30 days of the filing. The Court held it was an error for the District Court to not allow Gordon to file a reply memorandum to the State's opposition to his PCRA petition. The case was remanded to allow Gordon to file a reply.
Although the case was being remanded, the Court also clarified the operative burden of pleading and proof on whether the DNA was not tested for tactical reasons as a matter of judicial economy. A petitioner seeking relief under the PCRA must meet a series of stautory elements. Among other issues, post conviction DNA testing is not available if the petitioner did not request it at the time of trial for tactical reasons. Generally, the burden of proof follows the burden of pleading. Sometimes this burden shifts if the burden is rebuttable. For the issue of "tactical reasons" the burden of pleading is on the State, and it is considered an affirmative defense to a PCRA petition for DNA testing. The burden of proof, which is by a preponderance of the evidence, is on the petitioner to disprove there was no tactical reason to not have the DNA tested. This is appropriate because the petitioner has unique access to the proof of the matter in question. The evidence can be proffered by affidavits or evidence found in the record.
Finally, the Court wanted to provide the district court guidance in determining what constitutes a "tactical reason." A tactical reason is a view to an end. It consists of purposeful, not passive decisions. Because Gordon was not allowed to file his memorandum, the Court could not determine if his reasons were tactical. Gordon claims he did not know the evidence could be subjected to DNA testing. On its face, this would be passive and therefore, not tactical. However, his attorney's knowledge would have to be explored and that would be imputed to Gordon. Gordon also claimed that he did not have the money for DNA testing. This too, could be passive: not testing the DNA out of circumstance is not purposeful when it comes to deciding a defense. However, if Gordon made a reasoned decision as to where to devote his limited funds and declined to pursue DNA, then that would be a purposeful decision for tactical reasons.
Gordon was convicted of murder in 2002. His conviction was affirmed by the Court of Appeals in 2004. Gordon then filed a PCRA petition for DNA testing on items that were located at the murder scene. Gordon claimed testing these items could significantly undermine the largely circumstantial case against him and show he was factually innocent. Utah Code §78B-9-301(4) prohibits a court from ordering post conviction DNA testing if the petitioner failed to seek testing at the time of trial for tactical reasons. In his petition Gordon denied the failure to test was tactical but failed to provide any reasoning. The district court dismissed Gordon's petition 20 days after the State filed an opposition claiming Gordon failed show he did not have a tactical reason for not previously testing the DNA. Gordon was not given an opportunity to respond to the State's pleading or given a hearing to present evidence. Gordon then filed a motion for reconsideration, claiming he should have been allowed to reply and that the State has the burden of establishing the tactical reason issue. In addition, Gordon informed the district court that he did not have the DNA previously tested because he was not aware the items in question could be tested and he lack the funds necessary for testing. The district court denied Gordon's motion, holding that: 1) Motions for Reconsideration are not recognized by the Utah Rules of Civil Procedure; 2) The PCRA did not give a petitioner the right to file a reply memorandum; and 3) his original motion did not address the statutory mandate of tactical reasons.
Gordon's first grounds for appeal was whether he had a right to file a reply memorandum when the State opposed his PCRA petition. The Utah Supreme Court held that Gordon was entitled to file a reply. The statute authorizing PCRA should be read in harmony with the Utah Rules of Civil Procedure. The Rules allow for the State to file either an answer or a motion. As the State's response to Gordon's motion sought immediate dismissal of his petition, it was a motion. Under the Utah Rules of Civil Procedure, a party opposing a motion is entitled to submit a memorandum within 30 days of the filing. The Court held it was an error for the District Court to not allow Gordon to file a reply memorandum to the State's opposition to his PCRA petition. The case was remanded to allow Gordon to file a reply.
Although the case was being remanded, the Court also clarified the operative burden of pleading and proof on whether the DNA was not tested for tactical reasons as a matter of judicial economy. A petitioner seeking relief under the PCRA must meet a series of stautory elements. Among other issues, post conviction DNA testing is not available if the petitioner did not request it at the time of trial for tactical reasons. Generally, the burden of proof follows the burden of pleading. Sometimes this burden shifts if the burden is rebuttable. For the issue of "tactical reasons" the burden of pleading is on the State, and it is considered an affirmative defense to a PCRA petition for DNA testing. The burden of proof, which is by a preponderance of the evidence, is on the petitioner to disprove there was no tactical reason to not have the DNA tested. This is appropriate because the petitioner has unique access to the proof of the matter in question. The evidence can be proffered by affidavits or evidence found in the record.
Finally, the Court wanted to provide the district court guidance in determining what constitutes a "tactical reason." A tactical reason is a view to an end. It consists of purposeful, not passive decisions. Because Gordon was not allowed to file his memorandum, the Court could not determine if his reasons were tactical. Gordon claims he did not know the evidence could be subjected to DNA testing. On its face, this would be passive and therefore, not tactical. However, his attorney's knowledge would have to be explored and that would be imputed to Gordon. Gordon also claimed that he did not have the money for DNA testing. This too, could be passive: not testing the DNA out of circumstance is not purposeful when it comes to deciding a defense. However, if Gordon made a reasoned decision as to where to devote his limited funds and declined to pursue DNA, then that would be a purposeful decision for tactical reasons.
Friday, July 15, 2016
Plea Colloquies Are Not Mandatory For Violation of Probation Hearings
In State v. Pacheco, 2016 UT App., Defendant appealed the revocation of his probation and imposition of consecutive prison sentences. Defendant claims that the trial court court failed to determine his admissions to violating probation were knowing and voluntary because it did not conduct a proper plea colloquy.
While on probation for burglary and aggravated assault, Defendant physically a verbally attacked a witness in the prior case. Police were called but defendant had already left the scene. Defendant did not report the altercation to his probation officer, as required. Probation filed a violation report with the trial court and recommended that Defendant's probation be revoked and he serve out his prison sentence. Although Defendant initially denied the allegations, he agreed to plead guilty in exchange for the State not filing new criminal charges stemming from the incident. The court then questioned Defendant as to the voluntariness of his admissions as well as reminding him of his right to have an evidentiary hearing on the allegations before taking his plea and sentencing him to prison.
When reviewing a violation of probation, the upper court reviews the facts in the light most favorable to the trial court's findings. Since this issue was not preserved, the appeal is reviewed under the plain error standard. To prevail in a claim for plain error the defendant must show that: 1) and error exists; 2) the error should have been obvious to the trial court; and 3) the error was harmful.
The level of awareness sufficient to knowingly waive a right depends on the circumstances. When a person is pleading guilty to a crime, Rule 11 of the Utah Rules of Criminal Procedure requires defendant be advised of a detailed inventory of rights. No such requirement exists for an admission to violating probation. Defendant argued that the trial court was not required to comply with Rule 11 for a violation of probation admission, but should have advised him of more than it did. There is no support for Defendant's argument under the law.
To show that the trial court should have been aware of the error, the law governing the error needs to be clear at the time the alleged error was made. There is no plain error when there is no settled appellate case law to guide the trial court. The record in the present case showed the court questioned Defendant as to whether he was knowingly and voluntarily admitting to violating probation and waiving his right to a hearing. There is no required form of the colloquy. Therefore any error would not have been obvious to the trial court. Defendant's appeal was denied
While on probation for burglary and aggravated assault, Defendant physically a verbally attacked a witness in the prior case. Police were called but defendant had already left the scene. Defendant did not report the altercation to his probation officer, as required. Probation filed a violation report with the trial court and recommended that Defendant's probation be revoked and he serve out his prison sentence. Although Defendant initially denied the allegations, he agreed to plead guilty in exchange for the State not filing new criminal charges stemming from the incident. The court then questioned Defendant as to the voluntariness of his admissions as well as reminding him of his right to have an evidentiary hearing on the allegations before taking his plea and sentencing him to prison.
When reviewing a violation of probation, the upper court reviews the facts in the light most favorable to the trial court's findings. Since this issue was not preserved, the appeal is reviewed under the plain error standard. To prevail in a claim for plain error the defendant must show that: 1) and error exists; 2) the error should have been obvious to the trial court; and 3) the error was harmful.
The level of awareness sufficient to knowingly waive a right depends on the circumstances. When a person is pleading guilty to a crime, Rule 11 of the Utah Rules of Criminal Procedure requires defendant be advised of a detailed inventory of rights. No such requirement exists for an admission to violating probation. Defendant argued that the trial court was not required to comply with Rule 11 for a violation of probation admission, but should have advised him of more than it did. There is no support for Defendant's argument under the law.
To show that the trial court should have been aware of the error, the law governing the error needs to be clear at the time the alleged error was made. There is no plain error when there is no settled appellate case law to guide the trial court. The record in the present case showed the court questioned Defendant as to whether he was knowingly and voluntarily admitting to violating probation and waiving his right to a hearing. There is no required form of the colloquy. Therefore any error would not have been obvious to the trial court. Defendant's appeal was denied
Wednesday, July 13, 2016
The High Burden When Claiming Your Attorney Did A Lousy Job
In State v. Jaramillo, 2016 UT App. 70, Defendant appealed his convictions for multiple felonies and the sentencing imposed. Defendant's appeal was denied in part and remanded for sentencing issues.
Defendant was accused of carjacking a woman and forcing her to drive him to Ogden by knife point. In Centerville they stopped for gas and the woman ran away. Defendant went into the convenience store and unsuccessfully attempted to rob the clerk and a customer of their vehicles. Defendant then went across the street to a closed fast food restaurant. He broke into the building, and demanded the employees give him money. Defendant then made a second attempt to steal the vehicle from the customer at the convenience store. Defendant's crime spree ended when he was run over by the customer. Defendant was appointed an attorney. Dissatisfied, defendant was allowed to change attorneys three times. His trial attorney presented little defense. She did however, cross examine witnesses to attack the police investigation and advance a theory of voluntary intoxication. Counsel established that Defendant exhibited bizarre and erratic behavior, that the witnesses described him as acting high or drunk. Defendant was convicted of two counts of aggravated robbery, one count of aggravated kidnapping, one counsel of aggravated assault, one count of possession of a dangerous weapon by a restricted person, and one count of trespassing.
Defendant first appealed based on ineffective assistance of counsel. He filed a Rule 23B Motion to remand the case to supplement the record. Defendants seeking to supplement the record on remand must show non-speculative allegations of acts that do not fully appear on the record below. There are four requirements:
1) Defendant must present affidavits of facts not contained in the existing record;
2) Defendant must provide allegations of fact that are not speculative;
3) Defendant must show that counsel rendered deficient performance; and
4) Such performance must fall below an objective standard of reasonable professional judgment.
In addition, counsel's performance must have prejudiced the defendant such that but for the deficient performance the result of the trial would have been different.
Defendant claimed through affidavits and a forensic examination that occurred 5 years after the crime took place, that his attorney failed to fully investigate and present clearly exculpatory evidence of voluntary intoxication. Defendant pointed to pieces of evidence that indicated he may have ingested a large quantity of anti anxiety medication he had been prescribed the night before the events occurred. However, for voluntary intoxication to be a defense to a crime, a defendant must not only prove he was intoxicated, but that the intoxication prevented him from forming the requisite mental state to commit the offense. To do this, defendant must first indicate the requsite mental state for each crime of which he was convicted, and then show how his intoxication prevented him for forming this mental state. Defendant did not do this so his motion to remand the case to supplement the record was denied.
Claims of ineffective assistance of counsel raised for the first time on appeal are reviewed for correctness. Defendants claiming ineffedtive assistance of counsel must overcome a strong presumption that counsel rendered constitutionally sufficient assistance. They must also show specific instances of deficient performance that caused prejudice on the record. In the present case, the record on appeal did not reflect the extent of trial counsel's knowledge of Defendant's medication use. Defendant did not show that trial counsel performed deficiently. Even if trial counsel was deficient, he did show how the results of the trial would have been different if counsel presented evidence of his intoxication. There is still the burden of showing the inability to form the mens rea for the crime.
Defendant next appealed his sentence of 15 years to life for aggravated kidnapping. Defendant argued that the trial court failed to consider proportionality or his potential for rehabilitation as required by case law that came out after defendant was sentenced. New rules of criminal procedure announced in judicial decisions are applied retroactively.
The penalty for aggravated kidnapping is 15 years to life. A court may reduce the sentence to 6-10 years to life if it is in the interests of justice. When looking at proportionality, the court must consider the gravity of the defense and the harshness of the penalty. In addition, the court must consider the sentences imposed for more and less serious crimes to ensure the sentence imposed is not arbitrary. In Defendant's case, the court did not appear to consider the comparative factor of the sentence. Since the court did not consider all legally relevant factors the case was remanded for new sentencing.
Although Defendant also argued that court failed to consider his potential for rehabilitation, there was ample evidence that the court was given information about Defendant's mental health issues from Defendant, his attorney, and pre sentence reports. Despite this, as long as the case was remanded for sentencing, the Court of Appeals invited the trial court to take a second look at Defendant's potential for rehabilitation if the court deemed this factor relevant to its new sentencing decision.
Defendant was accused of carjacking a woman and forcing her to drive him to Ogden by knife point. In Centerville they stopped for gas and the woman ran away. Defendant went into the convenience store and unsuccessfully attempted to rob the clerk and a customer of their vehicles. Defendant then went across the street to a closed fast food restaurant. He broke into the building, and demanded the employees give him money. Defendant then made a second attempt to steal the vehicle from the customer at the convenience store. Defendant's crime spree ended when he was run over by the customer. Defendant was appointed an attorney. Dissatisfied, defendant was allowed to change attorneys three times. His trial attorney presented little defense. She did however, cross examine witnesses to attack the police investigation and advance a theory of voluntary intoxication. Counsel established that Defendant exhibited bizarre and erratic behavior, that the witnesses described him as acting high or drunk. Defendant was convicted of two counts of aggravated robbery, one count of aggravated kidnapping, one counsel of aggravated assault, one count of possession of a dangerous weapon by a restricted person, and one count of trespassing.
Defendant first appealed based on ineffective assistance of counsel. He filed a Rule 23B Motion to remand the case to supplement the record. Defendants seeking to supplement the record on remand must show non-speculative allegations of acts that do not fully appear on the record below. There are four requirements:
1) Defendant must present affidavits of facts not contained in the existing record;
2) Defendant must provide allegations of fact that are not speculative;
3) Defendant must show that counsel rendered deficient performance; and
4) Such performance must fall below an objective standard of reasonable professional judgment.
In addition, counsel's performance must have prejudiced the defendant such that but for the deficient performance the result of the trial would have been different.
Defendant claimed through affidavits and a forensic examination that occurred 5 years after the crime took place, that his attorney failed to fully investigate and present clearly exculpatory evidence of voluntary intoxication. Defendant pointed to pieces of evidence that indicated he may have ingested a large quantity of anti anxiety medication he had been prescribed the night before the events occurred. However, for voluntary intoxication to be a defense to a crime, a defendant must not only prove he was intoxicated, but that the intoxication prevented him from forming the requisite mental state to commit the offense. To do this, defendant must first indicate the requsite mental state for each crime of which he was convicted, and then show how his intoxication prevented him for forming this mental state. Defendant did not do this so his motion to remand the case to supplement the record was denied.
Claims of ineffective assistance of counsel raised for the first time on appeal are reviewed for correctness. Defendants claiming ineffedtive assistance of counsel must overcome a strong presumption that counsel rendered constitutionally sufficient assistance. They must also show specific instances of deficient performance that caused prejudice on the record. In the present case, the record on appeal did not reflect the extent of trial counsel's knowledge of Defendant's medication use. Defendant did not show that trial counsel performed deficiently. Even if trial counsel was deficient, he did show how the results of the trial would have been different if counsel presented evidence of his intoxication. There is still the burden of showing the inability to form the mens rea for the crime.
Defendant next appealed his sentence of 15 years to life for aggravated kidnapping. Defendant argued that the trial court failed to consider proportionality or his potential for rehabilitation as required by case law that came out after defendant was sentenced. New rules of criminal procedure announced in judicial decisions are applied retroactively.
The penalty for aggravated kidnapping is 15 years to life. A court may reduce the sentence to 6-10 years to life if it is in the interests of justice. When looking at proportionality, the court must consider the gravity of the defense and the harshness of the penalty. In addition, the court must consider the sentences imposed for more and less serious crimes to ensure the sentence imposed is not arbitrary. In Defendant's case, the court did not appear to consider the comparative factor of the sentence. Since the court did not consider all legally relevant factors the case was remanded for new sentencing.
Although Defendant also argued that court failed to consider his potential for rehabilitation, there was ample evidence that the court was given information about Defendant's mental health issues from Defendant, his attorney, and pre sentence reports. Despite this, as long as the case was remanded for sentencing, the Court of Appeals invited the trial court to take a second look at Defendant's potential for rehabilitation if the court deemed this factor relevant to its new sentencing decision.
Monday, July 11, 2016
The Preliminary Hearing Saga Continues
In State v. Pham, 2016 UT App. 105, the Utah Court of Appeals again took on the issue of whether the Utah preliminary hearing scheme violates a person's Sixth Amendment right to confront witnesses. Even though Defendant did not prevail, the Court did state that there can be circumstances where the cross examination completed at a preliminary hearing will not satisfy the requirements of the Confrontation Clause. Its is up to the appellant to allege a circumstance that results in a specific limitation in cross examination at the preliminary hearing stage.
Defendant was confronted by victim for picking on two young men. Defendant shot victim. Police were across the street and called for Defendant to stop for police as he fled. Defendant abandoned his vehicle and stole an SUV. Defendant was charged with: 1) discharging a firearm causing serious bodily injury; 2) receiving o transferring a stolen vehicle; 3) obstruction of justice; and failure to stop at the command of a law enforcement officer. The victim testified at the preliminary hearing. Defendant was given unrestricted opportunity to cross examine the victim. Prior to trial, the victim moved to Mexico and was unable to be served a subpoena. The victim's preliminary hearing transcript was admitted as evidence. Defendant was convicted of all charges by a jury.
Defendant first appeals on the grounds that the admission of the victim's testimony from the preliminary hearing violated the Confrontation Clause. This presents a matter of law that is reviewed for correctness. In the present case, defendant does not claim he did not have the proper opportunity and motive to cross examine the witness at the preliminary hearing. Instead, he argued that the nature of a preliminary hearing itself restricts confrontation because the court only hears enough facts to establish probable cuase and does not determine credibility. The Court held that although the principal fact finding and determinations of credibility are left until trial, there are no obvious structural limitations in Utah's preliminary hearing scheme that limits the scope or depth of cross examination.
Defendant next appeals on the grounds that the evidence presented at trial was insufficient to prove that by shooting the victim, he caused a substantial risk of death. The evidence will be viewed in the light most favorable to the jury verdict. To overturn a verdict, the evidence must be so inconclusive or inherently improbable, that a reasonable jury could not find beyond a reasonable doubt that the defendant committed the crime.
Defendant claims that he did not cause a substantial risk of death by shooting the victim. However, he failed to properly marshal the evidence. The evidence presented was that Defendant shot the victim in the stomach and the bullet pierced his scrotum prior to permanently lodging in his leg. The victim was hospitalized for three days and has received ongoing treatment. Defendant failed to cite to any case in which a gunshot wound was insufficient to support a jury's finding of a substantial risk of death (though a brief review showed many cases in favor of this proposition). Defendant also failed to cite to any authority to support his statement that a gunshot wound cannot create a substantial risk of death. Because being shot can lead to death. it is not inherently unreasonable for a jury to find that the victim suffered a substantial risk of death in the present case.
Defendant was confronted by victim for picking on two young men. Defendant shot victim. Police were across the street and called for Defendant to stop for police as he fled. Defendant abandoned his vehicle and stole an SUV. Defendant was charged with: 1) discharging a firearm causing serious bodily injury; 2) receiving o transferring a stolen vehicle; 3) obstruction of justice; and failure to stop at the command of a law enforcement officer. The victim testified at the preliminary hearing. Defendant was given unrestricted opportunity to cross examine the victim. Prior to trial, the victim moved to Mexico and was unable to be served a subpoena. The victim's preliminary hearing transcript was admitted as evidence. Defendant was convicted of all charges by a jury.
Defendant first appeals on the grounds that the admission of the victim's testimony from the preliminary hearing violated the Confrontation Clause. This presents a matter of law that is reviewed for correctness. In the present case, defendant does not claim he did not have the proper opportunity and motive to cross examine the witness at the preliminary hearing. Instead, he argued that the nature of a preliminary hearing itself restricts confrontation because the court only hears enough facts to establish probable cuase and does not determine credibility. The Court held that although the principal fact finding and determinations of credibility are left until trial, there are no obvious structural limitations in Utah's preliminary hearing scheme that limits the scope or depth of cross examination.
Defendant next appeals on the grounds that the evidence presented at trial was insufficient to prove that by shooting the victim, he caused a substantial risk of death. The evidence will be viewed in the light most favorable to the jury verdict. To overturn a verdict, the evidence must be so inconclusive or inherently improbable, that a reasonable jury could not find beyond a reasonable doubt that the defendant committed the crime.
Defendant claims that he did not cause a substantial risk of death by shooting the victim. However, he failed to properly marshal the evidence. The evidence presented was that Defendant shot the victim in the stomach and the bullet pierced his scrotum prior to permanently lodging in his leg. The victim was hospitalized for three days and has received ongoing treatment. Defendant failed to cite to any case in which a gunshot wound was insufficient to support a jury's finding of a substantial risk of death (though a brief review showed many cases in favor of this proposition). Defendant also failed to cite to any authority to support his statement that a gunshot wound cannot create a substantial risk of death. Because being shot can lead to death. it is not inherently unreasonable for a jury to find that the victim suffered a substantial risk of death in the present case.
Friday, July 8, 2016
The Right To An Attorney Does Not Mean You Get a Choice
In State v. Abelon, 2016 UT App. 22, Defendant appealed his convictions for six counts of sexual exploitation of a minor. Defendant was sentenced to six consecutive terms of 1-15 years in prison with three terms suspended, and probationary terms. The Court of Appeals affirmed his convictions and sentence but remanded the case to resolve Defendant's objections to the pre-sentence report (PSR).
Defendant was assigned a court appointed attorney. As the case made it way through the system, Defendant made four separate complaints about his attorney. Each time, the Court gave Defendant an opportunity to say why he was dissatisfied and queried counsel as to his efforts in providing Abelon a defense. Each time, the trial court found that counsel was not performing deficiently. Defendant was convicted at trial and prior to sentencing, the court ordered a PSR. At the time of sentencing, Defendant informed the court of 11 separate, substantial inaccuracies in the PSR. The State encouraged the court to disregard any information that was inaccurate. No factual findings were made concerning the defendant's objections prior to sentencing.
Defendant's first grounds of appeal was that the court failed to reasonably inquire into his dissatisfaction with his appointment counsel. This matter is reviewed under the abuse of discretion standard. A trial court has an affirmative obligation to investigate the reasons for defendant's dissatisfaction with court appointed counsel. Courts should keep in mind that defendants are usually less than articulate about these matters and under a lot of stress.In the present case, Defendant was speaking in generalities about his counsel's perofrmance whereas his attorney was able to provide a detailed account of the steps he was taking to provide Defendant with a defense. Defendant was unable to point to any new issues that the Court had not already dealt with. Upon review, the COurt of Appeals did not find the trial court abused its discretion in how it handled it Defendant's complaints or its assessment of the situation.
Defendant next appealed on the grounds that the trial court failed to resolve his objections to the PSR.This presents a question of law that is reviewed for correctness. Tied to this complaint, Defendant also claimed his attorney provided ineffective assistance of counsel for not requesting the trial court make findings resolving Defendant's objections. A claim of ineffective assistance of counsel raised for the first time on appeal is a question of law.
When a defendant objects to information in a PSR a trial court must take 3 steps: 1) consider the objection; 2) make findings about the alleged inaccuracies; and 3) determine on the record the relevance of that information as it relates to sentencing. In the present case, the trial court only addressed the first step. The case was remanded for the trial court to properly resolve Defendant's objections.
Despite these inadequacies, Defendant was not entitled to a new sentencing hearing. Defendant's request was based in the general assertion that the district court sentenced him based on inaccurate and misleading information. Although factual findings were not made, there was no evidence presented that the court sentenced Defendant based on matters challenged in his objections. The Court came to this conclusion based partially on the State's invitation to the trial court to disregard the disputed information. However, the Court invited the trial court to resentence the defendant if, after resolving the defendant's objections, a different sentence would be appropriate.
Defendant was assigned a court appointed attorney. As the case made it way through the system, Defendant made four separate complaints about his attorney. Each time, the Court gave Defendant an opportunity to say why he was dissatisfied and queried counsel as to his efforts in providing Abelon a defense. Each time, the trial court found that counsel was not performing deficiently. Defendant was convicted at trial and prior to sentencing, the court ordered a PSR. At the time of sentencing, Defendant informed the court of 11 separate, substantial inaccuracies in the PSR. The State encouraged the court to disregard any information that was inaccurate. No factual findings were made concerning the defendant's objections prior to sentencing.
Defendant's first grounds of appeal was that the court failed to reasonably inquire into his dissatisfaction with his appointment counsel. This matter is reviewed under the abuse of discretion standard. A trial court has an affirmative obligation to investigate the reasons for defendant's dissatisfaction with court appointed counsel. Courts should keep in mind that defendants are usually less than articulate about these matters and under a lot of stress.In the present case, Defendant was speaking in generalities about his counsel's perofrmance whereas his attorney was able to provide a detailed account of the steps he was taking to provide Defendant with a defense. Defendant was unable to point to any new issues that the Court had not already dealt with. Upon review, the COurt of Appeals did not find the trial court abused its discretion in how it handled it Defendant's complaints or its assessment of the situation.
Defendant next appealed on the grounds that the trial court failed to resolve his objections to the PSR.This presents a question of law that is reviewed for correctness. Tied to this complaint, Defendant also claimed his attorney provided ineffective assistance of counsel for not requesting the trial court make findings resolving Defendant's objections. A claim of ineffective assistance of counsel raised for the first time on appeal is a question of law.
When a defendant objects to information in a PSR a trial court must take 3 steps: 1) consider the objection; 2) make findings about the alleged inaccuracies; and 3) determine on the record the relevance of that information as it relates to sentencing. In the present case, the trial court only addressed the first step. The case was remanded for the trial court to properly resolve Defendant's objections.
Despite these inadequacies, Defendant was not entitled to a new sentencing hearing. Defendant's request was based in the general assertion that the district court sentenced him based on inaccurate and misleading information. Although factual findings were not made, there was no evidence presented that the court sentenced Defendant based on matters challenged in his objections. The Court came to this conclusion based partially on the State's invitation to the trial court to disregard the disputed information. However, the Court invited the trial court to resentence the defendant if, after resolving the defendant's objections, a different sentence would be appropriate.
Wednesday, July 6, 2016
Every Cross Examination Must Be Complete
In State v. Goins, 2016 UT App. 57, Defendant appealed his conviction for aggravated assault and brandishing a weapon in a fight. Defendant based his appeal on a violation of his right to confront and cross examine witnesses.
Defendant's charges stem from an incident where he was looking for someone who had stolen his phone. Defendant got into a scuffle with a 3rd person, bit off part of the man's ear and stabbed him under the arm with a knife. A witness to the altercation testified at the preliminary hearing. The witness could not be located at the time of trial. The trial court allowed the witness' testimony to be admitted declaring he was unavailable.
Evidentiary rulings are reviewed under an abuse of discretion standard. The COurt will reverse only if the error is harmful. If the ruling implicates the Confrontation Clause, then the ruling is a question of law that is reviewed for correctness. Hearsay is an out of court statement that is being used to prove the truth of the matter asserted in the statement.
Defendant first challenged the trial court's determination that the witness was unavailable to testify at trial. The burden of proof is on the party offering the evidence to show the witness cannot be produced in court. A party must make every reasonable effort to secure a witness for in court testimony. The standard is not whether the prosecution could have done more, but whether the efforts made were reasonable.
Prior to the preliminary hearing, the prosecution sent out police on bicycles looking for the witness in the area of the homeless shelter. Somehow he was located. He showed up at the preliminary hearing with his pastor for support. The pastor became the main point of contact and verified he informed the witness of all hearing dates. The witness then disappeared shortly before trial and after serving some jail time. The Court found that the prosecution made more than reasonable efforts to secure the witness but also that Defendant had acquiesced to using a third party as contact by not making objections to this method at prior hearings
Defendant next challenged the trial court's determination that the prior testimony was not hearsay. Prior testimony is testimony given at a prior hearing in which the defendant had an opportunity to cross examine the witness. Defendant claims that his attorney had a different motive or interest in cross examining the witness at the preliminary hearing: just debunking probable cause. However, long standing case law in Utah holds that the motive to cross examine a witness is the same at a preliminary hearing and trial: to establish the client's innocence.
The defendant's conviction was affirmed.
Defendant's charges stem from an incident where he was looking for someone who had stolen his phone. Defendant got into a scuffle with a 3rd person, bit off part of the man's ear and stabbed him under the arm with a knife. A witness to the altercation testified at the preliminary hearing. The witness could not be located at the time of trial. The trial court allowed the witness' testimony to be admitted declaring he was unavailable.
Evidentiary rulings are reviewed under an abuse of discretion standard. The COurt will reverse only if the error is harmful. If the ruling implicates the Confrontation Clause, then the ruling is a question of law that is reviewed for correctness. Hearsay is an out of court statement that is being used to prove the truth of the matter asserted in the statement.
Defendant first challenged the trial court's determination that the witness was unavailable to testify at trial. The burden of proof is on the party offering the evidence to show the witness cannot be produced in court. A party must make every reasonable effort to secure a witness for in court testimony. The standard is not whether the prosecution could have done more, but whether the efforts made were reasonable.
Prior to the preliminary hearing, the prosecution sent out police on bicycles looking for the witness in the area of the homeless shelter. Somehow he was located. He showed up at the preliminary hearing with his pastor for support. The pastor became the main point of contact and verified he informed the witness of all hearing dates. The witness then disappeared shortly before trial and after serving some jail time. The Court found that the prosecution made more than reasonable efforts to secure the witness but also that Defendant had acquiesced to using a third party as contact by not making objections to this method at prior hearings
Defendant next challenged the trial court's determination that the prior testimony was not hearsay. Prior testimony is testimony given at a prior hearing in which the defendant had an opportunity to cross examine the witness. Defendant claims that his attorney had a different motive or interest in cross examining the witness at the preliminary hearing: just debunking probable cause. However, long standing case law in Utah holds that the motive to cross examine a witness is the same at a preliminary hearing and trial: to establish the client's innocence.
The defendant's conviction was affirmed.
Monday, July 4, 2016
Think Twice Before You Admit to Violating Probation
In State v. Goodrich, 2016 UT App. 72, the defendant appealed the revocation of his probation and reinstatement of the original sentence after admitted to two probation violations. Defendant pleaded guilty to two counts of felony Sex Abuse of a Child. After completing treatment, he was allowed to move to Oregon, and complete supervised probation in that state. The State of Oregon filed a probation violation claiming defendant possessed sexual stimulus material in electronic form and left the state without permission.
Defendant's attorney convinced the Court and the State to amend the allegations to 1) defendant viewing sexual stimulus material, 2) and not being truthful about his travel plans. Defendant admitted these allegations and told the court he fabricated the probation violations in order to get back to Utah. The court imposed the suspended prison sentence of 1-15 years, to run concurrently to each other.
Defendant first appeals on the grounds his attorney was ineffective and failed to investigate and mitigate the probation violation allegations and also violated his duty of loyalty. This presented a question of law that is reviewed for correctness. To prove ineffective assistance of counsel the defendant must show that counsel's performance both fell below the objective standard of reasonableness and there is a reasonable probability that the results of the hearing would be different if counsel had not made the errors. In support of this claim, defendant states his attorney should have gotten a copy of the probation violation documents from Oregon. Such documents would show his due process rights were violated and he did not violate probation. However, Defendant admitted to the court he violated probation. The Judge found his reasoning to be an aggravating circumstance.
Defendant also claims that his attorney had a conflict of interest and violated his duty of loyalty. Defendant failed to show that his attorney advocated against him. Instead, the record shows his attorney to steps to reduce the severity of the allegations.
Defendant's second basis for appeal is his failure to receive timely and adequate notice of the allegations against him and an opportunity to be heard regarding the allegations. Since this claim was not preserved it is evaluated under plain error. To prevail on a claim of plain error, Defendant must show that 1) there was an error, 2) the error should have been obvious to the trial court, and 3) the error prejudiced the defendant. Defendant failed to show there was any error and only addressed why it was obvious. However, the Court was not convinced Defendant did not receive timely and adequate notice. Defendant was present at the hearing verified he reviewed the allegations and presented a defense. He has failed to show how he was prejudiced by the notice he received.
Finally, Defendant claims the cumulative effect of the errors necessitates the reversal of his sentence. The Court applies the standard of review applicable to each underlying claim or error. The Court will reverse only if the cumulative effect of several errors undermines our confidence that a fair trial was had. The Court identified no errors. However, assumed errors for evaluating the defendant's claim and still could not find the defendant had been prejudiced. Defendant's claims failed in large part because he willingly admitted that he violated probation.
Defendant's appeal was denied.
Defendant's attorney convinced the Court and the State to amend the allegations to 1) defendant viewing sexual stimulus material, 2) and not being truthful about his travel plans. Defendant admitted these allegations and told the court he fabricated the probation violations in order to get back to Utah. The court imposed the suspended prison sentence of 1-15 years, to run concurrently to each other.
Defendant first appeals on the grounds his attorney was ineffective and failed to investigate and mitigate the probation violation allegations and also violated his duty of loyalty. This presented a question of law that is reviewed for correctness. To prove ineffective assistance of counsel the defendant must show that counsel's performance both fell below the objective standard of reasonableness and there is a reasonable probability that the results of the hearing would be different if counsel had not made the errors. In support of this claim, defendant states his attorney should have gotten a copy of the probation violation documents from Oregon. Such documents would show his due process rights were violated and he did not violate probation. However, Defendant admitted to the court he violated probation. The Judge found his reasoning to be an aggravating circumstance.
Defendant also claims that his attorney had a conflict of interest and violated his duty of loyalty. Defendant failed to show that his attorney advocated against him. Instead, the record shows his attorney to steps to reduce the severity of the allegations.
Defendant's second basis for appeal is his failure to receive timely and adequate notice of the allegations against him and an opportunity to be heard regarding the allegations. Since this claim was not preserved it is evaluated under plain error. To prevail on a claim of plain error, Defendant must show that 1) there was an error, 2) the error should have been obvious to the trial court, and 3) the error prejudiced the defendant. Defendant failed to show there was any error and only addressed why it was obvious. However, the Court was not convinced Defendant did not receive timely and adequate notice. Defendant was present at the hearing verified he reviewed the allegations and presented a defense. He has failed to show how he was prejudiced by the notice he received.
Finally, Defendant claims the cumulative effect of the errors necessitates the reversal of his sentence. The Court applies the standard of review applicable to each underlying claim or error. The Court will reverse only if the cumulative effect of several errors undermines our confidence that a fair trial was had. The Court identified no errors. However, assumed errors for evaluating the defendant's claim and still could not find the defendant had been prejudiced. Defendant's claims failed in large part because he willingly admitted that he violated probation.
Defendant's appeal was denied.
Friday, July 1, 2016
Complete and Court Ordered Restitution Can Be The Same Amount
In State v. Turner, 2016 UT App. 79, the defendant appealed the amount of restitution he was ordered to pay by the trial court. Defendant pleaded guilty to one count of felony burglary and one count of felony criminal mischief for kicking in the door of a newly constructed house and causing extensive damage inside with a hatchet. He stipulated that complete restitution was $10,629, but requested a hearing on his ability to pay.
At the hearing, defendant presented a financial declaration as well as oral evidence concerning his current circumstances. Defendant had been employed for 2 weeks and was earning $1,000 a month. Defendant had monthly expenses of $152 a month plus food. The court determined that court ordered restitution would be $10,629, payed over eight years, in the amount of $125 a month. The court found no rational reason why the victim should not be made whole.
The restitution decision of a trial court will not be disturbed unless it exceeds the authority provided by law or is an abuse of discretion. Restitution is an abuse of discretion if no reasonable person could take the view adopted by the court.
Under Utah Law, a court has to determine both complete and court ordered restitution. Complete restitution is the amount that would make the victim whole. When determining court ordered restitution, the court must look at the following: 1) the loss suffered by the victim; 2) the financial resources of the defendant; 3) the burden on the defendant to pay the amount with regard to other financial obligations; 4) the ability of the defendant to pay on an installment basis; 5) the rehabilitative effect on the defendant; and 6) any other circumstances the court deems may make restitution inappropriate.
Defendant argued that since the amount of court ordered restutition was the same as complete restitution, the trial court must not have considered his financial resources or the burden $125 a month would be considering his other financial obligations. However, the record reflects the court received the presented evidence. Furthermore, the law allows for the amount to be the same.
Defendant's appeal was denied.
At the hearing, defendant presented a financial declaration as well as oral evidence concerning his current circumstances. Defendant had been employed for 2 weeks and was earning $1,000 a month. Defendant had monthly expenses of $152 a month plus food. The court determined that court ordered restitution would be $10,629, payed over eight years, in the amount of $125 a month. The court found no rational reason why the victim should not be made whole.
The restitution decision of a trial court will not be disturbed unless it exceeds the authority provided by law or is an abuse of discretion. Restitution is an abuse of discretion if no reasonable person could take the view adopted by the court.
Under Utah Law, a court has to determine both complete and court ordered restitution. Complete restitution is the amount that would make the victim whole. When determining court ordered restitution, the court must look at the following: 1) the loss suffered by the victim; 2) the financial resources of the defendant; 3) the burden on the defendant to pay the amount with regard to other financial obligations; 4) the ability of the defendant to pay on an installment basis; 5) the rehabilitative effect on the defendant; and 6) any other circumstances the court deems may make restitution inappropriate.
Defendant argued that since the amount of court ordered restutition was the same as complete restitution, the trial court must not have considered his financial resources or the burden $125 a month would be considering his other financial obligations. However, the record reflects the court received the presented evidence. Furthermore, the law allows for the amount to be the same.
Defendant's appeal was denied.
Wednesday, June 29, 2016
Trial Court Lacks Subject Matter Jurisdiction Over Board of Pardons Restituion Order
In State v. Garcia, 2016 UT App. 96, defendant appealed the restitution order entered by the Board of Pardons. Defendant was convicted of automobile homicide. After he served 5 years in prison, the Board of Pardons and Parole release the defendant and entered a restitution order of $7,000, due to the Office of Crime Victims' Reparations, for the victim's funeral expenses. Defendant moved to set aside the order. The trial court denied the motion on the basis it lacked jurisdiction after it sentenced the defendant.
Did the entry of the a restitution order issued by the Board of Pardons and Parole reinvest the trial court with civil jurisdiction over the case? No. Pursuant to statute, the trial court retains jurisdiction to determine restitution for 1 year after sentencing. After that time, jurisdiction over restitution moves to the Board of Pardons. See Utah Code §77-27-6(4). When the Board of Pardons sent the restitution order to the court, it was not giving the court the power to enter a judgment, but requiring it to add an order to the case docket.
The defendant's appeal was denied.
Did the entry of the a restitution order issued by the Board of Pardons and Parole reinvest the trial court with civil jurisdiction over the case? No. Pursuant to statute, the trial court retains jurisdiction to determine restitution for 1 year after sentencing. After that time, jurisdiction over restitution moves to the Board of Pardons. See Utah Code §77-27-6(4). When the Board of Pardons sent the restitution order to the court, it was not giving the court the power to enter a judgment, but requiring it to add an order to the case docket.
The defendant's appeal was denied.
Monday, June 27, 2016
State v. Garcia, 2016 UT App. 111
Defendant appealed his conviction for second degree felony robbery claiming the evidence presented at trial was insufficient to support the veridct. Because the issue was not preserved, defendant asked the Court of Appeals to review the case under plain error or ineffective assistance of counsel.
To show there was insufficient evidence, the evidence must be sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the charged crime. The victim in this case detailed her encounter with the defendant. She gave sufficient testimony to support the jury's finding of all the elements of robbery.
Because there was sufficient evidence, there was no error that harmed the defendant and his conviction was affirmed.
To show there was insufficient evidence, the evidence must be sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the charged crime. The victim in this case detailed her encounter with the defendant. She gave sufficient testimony to support the jury's finding of all the elements of robbery.
Because there was sufficient evidence, there was no error that harmed the defendant and his conviction was affirmed.
Friday, June 24, 2016
The Rare Reversed Conviction
In the case of State v. Whittaker, 2016 UT App. 104, Defendant appealed his conviction for one count of Aggravated Sex Abuse of a Child, a first degree felony. Defendant argued that the evidence presented at trial was insufficient to prove that the defendant acted with the intent to gratify the sexual desire of any person beyond a reasonable doubt. The Court of Appeals agreed and overturned the defendant's conviction.
Defendant's stepdaughter Jane reported the alleged abuse in December 2013. Defendant had been raising Jane (12) as his own child, was considered a father by Jane, and had 3 children with Jane's mother. When visiting defendant's home, Jane went to sleep in his bed. It was not unusual for any of the children to sleep in his bed. After working a double shift, Defendant returned home and went to bed, back to back with Jane. An unknown amount of time later, defendant took Jane's hand, and placed it between his legs, palm facing upwards. Jane reported feeling something warm and soft. Defendant let go of Jane's hand and she got up and left the bed, causing the defendant to stop snoring. Defendant reported that he had been working long hours, gotten little sleep the night before, and had no recollection of this occurring.
Upon convicting Defendant, the trial court found that Jane was a credible witness, who had testified in substantial detail, and had no motive to lie. The judge also found the defendant was not credible, citing to evidence that he lied to his children about illegal drug use (although the Court pointed out it would not second guess a trial court's findings of credibility, it mentioned that a parent not being truthful about personal drug use to a child was a poor indicator of general credibility). The trial court never discussed intent in its findings.
The reviewing court looks at the evidence in the light most favorable to the verdict. Although there is rarely direct evidence of intent, there needs to be a quantum of evidence for each element of a crime. A guilty verdict is not legally valid if if it is based solely on inferences that give rise to only a remote or speculative possibility of guilt. In this case, the finding of intent is against the clear weight of the evidence.
Circumstantial evidence is routinely used to prove intent in sexual abuse cases. In this case, the sole evidence is Jane's testimony that Defendant placed the back of her hand on his flaccid penis for around a minute, while possibly asleep. He did not hold her hand in place, there was no skin to skin contact, no suggestive statements, no attempt to secure Jane's silence, and no attempt to manipulate her hand. This conduct is not typical sexual activity. The State argued that the physical act of touching amounts to prima facie evidence of intent to arouse or gratify sexual desire. However, this would impermissibly shift the burden of proof to the defendant.
Defendant's stepdaughter Jane reported the alleged abuse in December 2013. Defendant had been raising Jane (12) as his own child, was considered a father by Jane, and had 3 children with Jane's mother. When visiting defendant's home, Jane went to sleep in his bed. It was not unusual for any of the children to sleep in his bed. After working a double shift, Defendant returned home and went to bed, back to back with Jane. An unknown amount of time later, defendant took Jane's hand, and placed it between his legs, palm facing upwards. Jane reported feeling something warm and soft. Defendant let go of Jane's hand and she got up and left the bed, causing the defendant to stop snoring. Defendant reported that he had been working long hours, gotten little sleep the night before, and had no recollection of this occurring.
Upon convicting Defendant, the trial court found that Jane was a credible witness, who had testified in substantial detail, and had no motive to lie. The judge also found the defendant was not credible, citing to evidence that he lied to his children about illegal drug use (although the Court pointed out it would not second guess a trial court's findings of credibility, it mentioned that a parent not being truthful about personal drug use to a child was a poor indicator of general credibility). The trial court never discussed intent in its findings.
The reviewing court looks at the evidence in the light most favorable to the verdict. Although there is rarely direct evidence of intent, there needs to be a quantum of evidence for each element of a crime. A guilty verdict is not legally valid if if it is based solely on inferences that give rise to only a remote or speculative possibility of guilt. In this case, the finding of intent is against the clear weight of the evidence.
Circumstantial evidence is routinely used to prove intent in sexual abuse cases. In this case, the sole evidence is Jane's testimony that Defendant placed the back of her hand on his flaccid penis for around a minute, while possibly asleep. He did not hold her hand in place, there was no skin to skin contact, no suggestive statements, no attempt to secure Jane's silence, and no attempt to manipulate her hand. This conduct is not typical sexual activity. The State argued that the physical act of touching amounts to prima facie evidence of intent to arouse or gratify sexual desire. However, this would impermissibly shift the burden of proof to the defendant.
Wednesday, June 22, 2016
Meyer v. Aposhian, 2016 UT App. 47
Meyer appealed the District Court's denial of her Motion for a Protective Order against her ex-husband. The Motion was denied for failing to show she was the victim of domestic violence or there was a substantial likelihood she would suffer domestic violence as required by the Cohabitant Abuse Act.
Meyer sought a protective order after a couple of notable incidents in May 2013. First, Aposhian had been showing up at her tennis coaching job. Aposhian testified he had been merely walking his daughter to the tennis courts after school. Aposhian also showed up at Meyer's home in a large, military style truck. After talking to friends, Aposhian used Meyer's driveway to turn around before leaving the cul de sac. Meyer thought Aposhian was going to hit her car. Aposhian claimed he was merely visiting friends in the neighborhood. Aposhian later returned and had words with Meyer's husband. He was arrested for trespassing. Meyer's husband received a Stalking Injunction based on the conduct. Meyer was denied a Protective Order from a different judge.
On appeal, Meyer raises the following issues: 1) the court erred in finding she had no reasonable basis to fear Aposhian; 2) the court erred in not taking into account the fear she had for her husband; 3) the court applied the wrong standard for emotional distress; and 4) she should be awarded attorney's fees.
The preserve uniformity, the Court of Appeals defers to the trial court on factual findings and reviews the findings for clear error. The Court will reverse only if the findings are against the clear weight of the evidence. To prevail in a protective order the petitioner must show that he or she is a cohabitant, and either has been the victim of domestic abuse or there is a substantial likelihood domestic violence will occur. Domestic violence includes Stalking. Stalking is defined as a course of conduct that would cause a reasonable person to fear for safety or suffer emotional distress.
The Court of Appeals supported the trial court's finding there Meyer had no reasonable basis to fear Aposhian. .The trial court found that Meyer had no reasonable basis to fear Aposhian because it found his version of events credible. Credibility determinations are within the province of the judge who has the opportunity to view the witnesses firsthand. In addition, there was no testimony from Meyer that Aposhian been violent or threatened violence towards her. His actions were only upsetting, intimidating, and annoying.
The Court of Appeals next determined that the trial court did take into account the fear Meyer had for her husband. The fact that the husband had his own Stalking Injunction was included in the analysis.
Emotional distress is a term defined by law. Statute interpretation is a question of law that is reviewed for correctness. Emotional distress is determined under an individualized objective standard. This is not the particular emotional distress a victim suffers but how the conduct would affect a reasonable person in the victim's circumstances. The trial court heard and considered all the incidents before determining the conduct was annoying, painful, and intimidating. To say such conduct caused significant emotional distress, would make " every divorce a potential stalking action." The court would not analyze this issue however, as the claim was not preserved in the lower court.
Finally, Meyer provided no legal basis for an award of attorney's fees and she did not prevail on appeal.
The Court of Appeals affirmed the ruling of the trial court.
Meyer sought a protective order after a couple of notable incidents in May 2013. First, Aposhian had been showing up at her tennis coaching job. Aposhian testified he had been merely walking his daughter to the tennis courts after school. Aposhian also showed up at Meyer's home in a large, military style truck. After talking to friends, Aposhian used Meyer's driveway to turn around before leaving the cul de sac. Meyer thought Aposhian was going to hit her car. Aposhian claimed he was merely visiting friends in the neighborhood. Aposhian later returned and had words with Meyer's husband. He was arrested for trespassing. Meyer's husband received a Stalking Injunction based on the conduct. Meyer was denied a Protective Order from a different judge.
On appeal, Meyer raises the following issues: 1) the court erred in finding she had no reasonable basis to fear Aposhian; 2) the court erred in not taking into account the fear she had for her husband; 3) the court applied the wrong standard for emotional distress; and 4) she should be awarded attorney's fees.
The preserve uniformity, the Court of Appeals defers to the trial court on factual findings and reviews the findings for clear error. The Court will reverse only if the findings are against the clear weight of the evidence. To prevail in a protective order the petitioner must show that he or she is a cohabitant, and either has been the victim of domestic abuse or there is a substantial likelihood domestic violence will occur. Domestic violence includes Stalking. Stalking is defined as a course of conduct that would cause a reasonable person to fear for safety or suffer emotional distress.
The Court of Appeals supported the trial court's finding there Meyer had no reasonable basis to fear Aposhian. .The trial court found that Meyer had no reasonable basis to fear Aposhian because it found his version of events credible. Credibility determinations are within the province of the judge who has the opportunity to view the witnesses firsthand. In addition, there was no testimony from Meyer that Aposhian been violent or threatened violence towards her. His actions were only upsetting, intimidating, and annoying.
The Court of Appeals next determined that the trial court did take into account the fear Meyer had for her husband. The fact that the husband had his own Stalking Injunction was included in the analysis.
Emotional distress is a term defined by law. Statute interpretation is a question of law that is reviewed for correctness. Emotional distress is determined under an individualized objective standard. This is not the particular emotional distress a victim suffers but how the conduct would affect a reasonable person in the victim's circumstances. The trial court heard and considered all the incidents before determining the conduct was annoying, painful, and intimidating. To say such conduct caused significant emotional distress, would make " every divorce a potential stalking action." The court would not analyze this issue however, as the claim was not preserved in the lower court.
Finally, Meyer provided no legal basis for an award of attorney's fees and she did not prevail on appeal.
The Court of Appeals affirmed the ruling of the trial court.
Monday, June 20, 2016
State v. Meronk, 2016 UT 2016 App. 27
Defendant appeals the district court's order revoking his probation and imposing the suspended prison sentence.
Defendant was charged with 10 counts of sexula exploitation of a minor after he was discovered with child pornography. Defendant pleaded guilty to 2 counts and was placed on supervised probation with AP&P. Defendant presented several mitigating factors concerning his sentencing: he was victimized as a child; he was remorseful; he has Asperger's Disorder; and ADHD. Defendant was sentenced to 2 concurrent terms of 1-15 years in prison, suspended, only serving 180 days. Additional terms: complete 150 hours of community service; pay a $350 LDA recoupment fee; complete a psychosexual evaluation; have no internet access; complete sex offender treatment; not possess and sexual or materials with nudity.
Defendant was first accused of violating probation by not cooperating with AP&P; not completing his community service; not paying his recoupment or supervision fees; and possessing materials with nudity. Defendant was sentenced to serve 60 days in jail and his probation was revoked and reinstated for 36 months.
Defendant was next accused of violating his probation but not completing his community service and not being actively engaged in treatment. At the hearing, defendant claimed he needed internet access at work and also asked that he be allowed to bring his work laptop home. At a follow up hearing, defendant no longer needed to use a laptop at home or the internet at work. Defendant's probation was revoked and reinstated for another 3 years and he was ordered to have not have a laptop at home.
A couple of months later AP&P called for a review hearing. Defendant had computer parts and video game components at home. Defendant claimed to be confused because even though the court orally told him he could not have any computers or components at home, it was not on the court docket. The court ordered AP&P to file an order to show cause. AP&P also reported that defendant had a traveling laptop, was not making progress in treatment, and was not being truthful with AP&P. After an evidentiary hearing, the court held that Defendant willfully violated his probation and imposed the full suspended sentence.
Defendant appealed on the grounds that the district court erred in finding he willfully violated his probation. This is a factual issue that is reviewed for abuse of discretion.
First, defendant claimed that the court erred in finding he was not complying with treatment. Defendant claims he performing to the best of his abilities and on track to complete treatment by the end of probation. However, the progress did not satisfy the district court judge, especially since defendant was on still on level one of a four level program after 3 years.
Next, defendant claims he held a good faith belief that he could possess computer parts. The district court factually rejected this claim in light of the express adminitiuons it made on multiple occasions.
The defendant also claims that the court erred in finding his representations to AP&P were not truthful concerning having computer parts. Defendant claims this was not a willful lie. However, the district court's disagreement with Defendant on this point was not shown to be clearly erroneous.
Finally, the defendant claimed that the district court did not take into account his mental disabilities when imposing the sentence. The Court determined that the district court did take this into account. In addition, the full sentence was not imposed until after the defendant had violated probation and been revoked and reinstated two prior times.
The defendant's sentence was affirmed.
Defendant was charged with 10 counts of sexula exploitation of a minor after he was discovered with child pornography. Defendant pleaded guilty to 2 counts and was placed on supervised probation with AP&P. Defendant presented several mitigating factors concerning his sentencing: he was victimized as a child; he was remorseful; he has Asperger's Disorder; and ADHD. Defendant was sentenced to 2 concurrent terms of 1-15 years in prison, suspended, only serving 180 days. Additional terms: complete 150 hours of community service; pay a $350 LDA recoupment fee; complete a psychosexual evaluation; have no internet access; complete sex offender treatment; not possess and sexual or materials with nudity.
Defendant was first accused of violating probation by not cooperating with AP&P; not completing his community service; not paying his recoupment or supervision fees; and possessing materials with nudity. Defendant was sentenced to serve 60 days in jail and his probation was revoked and reinstated for 36 months.
Defendant was next accused of violating his probation but not completing his community service and not being actively engaged in treatment. At the hearing, defendant claimed he needed internet access at work and also asked that he be allowed to bring his work laptop home. At a follow up hearing, defendant no longer needed to use a laptop at home or the internet at work. Defendant's probation was revoked and reinstated for another 3 years and he was ordered to have not have a laptop at home.
A couple of months later AP&P called for a review hearing. Defendant had computer parts and video game components at home. Defendant claimed to be confused because even though the court orally told him he could not have any computers or components at home, it was not on the court docket. The court ordered AP&P to file an order to show cause. AP&P also reported that defendant had a traveling laptop, was not making progress in treatment, and was not being truthful with AP&P. After an evidentiary hearing, the court held that Defendant willfully violated his probation and imposed the full suspended sentence.
Defendant appealed on the grounds that the district court erred in finding he willfully violated his probation. This is a factual issue that is reviewed for abuse of discretion.
First, defendant claimed that the court erred in finding he was not complying with treatment. Defendant claims he performing to the best of his abilities and on track to complete treatment by the end of probation. However, the progress did not satisfy the district court judge, especially since defendant was on still on level one of a four level program after 3 years.
Next, defendant claims he held a good faith belief that he could possess computer parts. The district court factually rejected this claim in light of the express adminitiuons it made on multiple occasions.
The defendant also claims that the court erred in finding his representations to AP&P were not truthful concerning having computer parts. Defendant claims this was not a willful lie. However, the district court's disagreement with Defendant on this point was not shown to be clearly erroneous.
Finally, the defendant claimed that the district court did not take into account his mental disabilities when imposing the sentence. The Court determined that the district court did take this into account. In addition, the full sentence was not imposed until after the defendant had violated probation and been revoked and reinstated two prior times.
The defendant's sentence was affirmed.
Friday, June 17, 2016
State v. Gibson, 2016 UT App. 15
Defendant appealed his conviction for one count of F1 Aggravated Child Sex Abuse. Defendant was charged with two counts and acquitted of one at trial.
Defendant first claimed the trial court committed reversible error by denying his motion for a partial directed verdict. He sought to have the charge reduced one degree because there was insufficient evidence to show he occupied a position of special trust. The Court reviews the evidence and all inferences reasonably drawn from it, that a reasonable jury could find the elements of the crime have been proven beyond a reasonable doubt. This is a fact sensitive inquiry for the trier of fact. A jury verdict will not be overturned unless it is clearly erroneous. If there is any evidence, no matter however slight or circumstantial, which tends to show guilt, it is the court's duty to submit the case to the jury.
The applicable statute contains a non-exhaustive list of statuses that presume special trust. Because parent of alleged victim's friend is not listed, defendant argued he is not in a position of special trust. However, the law requires that some authority also be shown, not just a status. If the status is not enumerated, the evidence must show the defendant was in a position of authority. Defendant did not marshal all the evidence in favor of the verdict in making his argument. Therefore, he failed to show why there is not some evidence that allowed the court to submit the case to the jury.
Defendant next argued that the court committed reversible error by allowing a witness to testify at trial after being present for testimony during the preliminary hearing. This issue is reviewed for abuse of discretion. Trial courts have considerable discretion in running court proceedings and deciding what evidence will come before the jury. To prevail on this claim, defendant must show he was prejudiced, such as the witness changing her testimony,
At the preliminary hearing, defense counsel invoked the exclusionary rule for all witnesses who would be called to testify at the trial. The State said it did not know who would be called for trial. The trial court declined to rule on the issue. At trial, the trial court questioned whether a violation of the exclusionary rule occurred. Defendant did not address this question on appeal. Even assuming a violation did occur, defendant still has not shown that the witness changed her testimony or that he was otherwise prejudiced.
Defendant's third claim was that the trial court erred in denying his motion for a new trial because the verdicts were inconsistent. A denial for a motion for a new trial is reviewed for abuse of discretion. A jury's verdict will not be overturned unless reasonable minds could not rationally have arrived at a guilty verdict beyond a reasonable doubt, based on the law and evidence presented.
Defendant failed to cite to any law to show the evidence was insufficient. Defendant merely argued that since the charged counts were related in time and the jury only convicted him on one count, the jury was either confused or did not believe the victim. Even if the verdicts were inconsistent, defendant must show an additional error beyond inconsistency. He must show the verdict was not suppported by the evidence.
Finally, defendant claimed the trial court erred by not allowing him to have a lesser included jury instruction on sexual battery. Jury instructions are a question of law and reviewed for correctness. Defendant did not meet his burden because he did not show the sexual battery jury instruction was required under the lesser included instruction test: 1) the charged offense and the lesser included offense have overlapping statutory elements; and 2) the evidence provided a rational basis for for a verdict acquitting the defendant of the offense charged and convicting him on the included offense. In this case, defendant did not even try to show the offenses overlapped.
Defendant's conviction was affirmed.
Defendant first claimed the trial court committed reversible error by denying his motion for a partial directed verdict. He sought to have the charge reduced one degree because there was insufficient evidence to show he occupied a position of special trust. The Court reviews the evidence and all inferences reasonably drawn from it, that a reasonable jury could find the elements of the crime have been proven beyond a reasonable doubt. This is a fact sensitive inquiry for the trier of fact. A jury verdict will not be overturned unless it is clearly erroneous. If there is any evidence, no matter however slight or circumstantial, which tends to show guilt, it is the court's duty to submit the case to the jury.
The applicable statute contains a non-exhaustive list of statuses that presume special trust. Because parent of alleged victim's friend is not listed, defendant argued he is not in a position of special trust. However, the law requires that some authority also be shown, not just a status. If the status is not enumerated, the evidence must show the defendant was in a position of authority. Defendant did not marshal all the evidence in favor of the verdict in making his argument. Therefore, he failed to show why there is not some evidence that allowed the court to submit the case to the jury.
Defendant next argued that the court committed reversible error by allowing a witness to testify at trial after being present for testimony during the preliminary hearing. This issue is reviewed for abuse of discretion. Trial courts have considerable discretion in running court proceedings and deciding what evidence will come before the jury. To prevail on this claim, defendant must show he was prejudiced, such as the witness changing her testimony,
At the preliminary hearing, defense counsel invoked the exclusionary rule for all witnesses who would be called to testify at the trial. The State said it did not know who would be called for trial. The trial court declined to rule on the issue. At trial, the trial court questioned whether a violation of the exclusionary rule occurred. Defendant did not address this question on appeal. Even assuming a violation did occur, defendant still has not shown that the witness changed her testimony or that he was otherwise prejudiced.
Defendant's third claim was that the trial court erred in denying his motion for a new trial because the verdicts were inconsistent. A denial for a motion for a new trial is reviewed for abuse of discretion. A jury's verdict will not be overturned unless reasonable minds could not rationally have arrived at a guilty verdict beyond a reasonable doubt, based on the law and evidence presented.
Defendant failed to cite to any law to show the evidence was insufficient. Defendant merely argued that since the charged counts were related in time and the jury only convicted him on one count, the jury was either confused or did not believe the victim. Even if the verdicts were inconsistent, defendant must show an additional error beyond inconsistency. He must show the verdict was not suppported by the evidence.
Finally, defendant claimed the trial court erred by not allowing him to have a lesser included jury instruction on sexual battery. Jury instructions are a question of law and reviewed for correctness. Defendant did not meet his burden because he did not show the sexual battery jury instruction was required under the lesser included instruction test: 1) the charged offense and the lesser included offense have overlapping statutory elements; and 2) the evidence provided a rational basis for for a verdict acquitting the defendant of the offense charged and convicting him on the included offense. In this case, defendant did not even try to show the offenses overlapped.
Defendant's conviction was affirmed.
Wednesday, June 15, 2016
Utah v. Ruiz, 2016 UT App. 8
Defendant appeals the trial court's motion that he pay $42,475 in restitution for victim counseling, and his motion to disqualify the judge.
This case had previously been heard by the Court in Ruiz 1. At that time, the Court remanded the case to the trial court to create factual findings to support the imposition of restitution in the amount of $51,000. The trial court failed to explain the causal nexus between the sexual abuse of which defendant was convicted and the 9 months of intensive, inpatient therapy received by the victim. There was also an incomplete examination of how pre-existing conditions contributed to the need for the current level of therapy.
Upon remand, the trial court made the necessary factual findings to support the restitution amount ordered using a modified, but for test: 1) the damages would not have occurred but for the conduct underlying the conviction; and 2) there is a causal nexus between the conduct and the loss that is not too attenuated. The order is affirmed because there is enough evidence to show the trial court's order is not an abuse of discretion.
Defendant then moved to have the trial court judge disqualified. Defendant claims the judge refused to allow his attorney to cross examine the victim and attacked the attorney's integrity. The trial court disagreed with the motion and forwarded it to the presiding judge. The presiding judge denied the motion.
Although the Court of Appeals agrees that the trial court judge made inappropriate comments, Defendant has failed to demonstrate harm. At the time the motion to disqualify was made, the restitution order had already been issued. Defendant had not asked for a rehearing or a reconsideration of the restitution amount ordered. In addition, none of the statements made indicated bias toward the defendant. The trial court's order is affirmed.
This case had previously been heard by the Court in Ruiz 1. At that time, the Court remanded the case to the trial court to create factual findings to support the imposition of restitution in the amount of $51,000. The trial court failed to explain the causal nexus between the sexual abuse of which defendant was convicted and the 9 months of intensive, inpatient therapy received by the victim. There was also an incomplete examination of how pre-existing conditions contributed to the need for the current level of therapy.
Upon remand, the trial court made the necessary factual findings to support the restitution amount ordered using a modified, but for test: 1) the damages would not have occurred but for the conduct underlying the conviction; and 2) there is a causal nexus between the conduct and the loss that is not too attenuated. The order is affirmed because there is enough evidence to show the trial court's order is not an abuse of discretion.
Defendant then moved to have the trial court judge disqualified. Defendant claims the judge refused to allow his attorney to cross examine the victim and attacked the attorney's integrity. The trial court disagreed with the motion and forwarded it to the presiding judge. The presiding judge denied the motion.
Although the Court of Appeals agrees that the trial court judge made inappropriate comments, Defendant has failed to demonstrate harm. At the time the motion to disqualify was made, the restitution order had already been issued. Defendant had not asked for a rehearing or a reconsideration of the restitution amount ordered. In addition, none of the statements made indicated bias toward the defendant. The trial court's order is affirmed.
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