State v. Wagner, 2016 UT App. 97

Defendant was convicted of possession of methamphetamine and marijuana.  Defendant appeals the authentication of a photograph admitted at trial.  The photograph depicted the defendant sitting in his bathroom with a meth pipe in one hand and a torch in the other. The photograph was taken by an informant, the defendant's ex-girlfriend.

At trial, Wagner testified that no one use drugs in his house. The State offered the photograph on rebuttal. The photograph was introduced by a detective who had been in the defendant's house and could authenticate the bathroom.

First, Wager contends that the trial court erred by‚admitting, without authentication, a prejudicial photograph of the defendant drugs. Second, Wager contends that the trial court failed to address his objection to the photograph under rule 608 of the Utah Rules of Evidence. Third, Wager contends that the trial court erred in admitting the photograph because, without evidence of the date it was taken, the photograph was irrelevant. Fourth, Wager contends that the trial court erred by failing to mention, address, or follow rules 1002, 1004, and 1007 of the Utah Rules of Evidence. Finally, Wager contends that the trial court erred because the photograph, if indeed offered as a specific incident of criminal conduct, should have been handled by a Motion in Limine.

A trial court is granted broad discretion to admit or exclude evidence.  The trial court performs a gatekeeper function.  "Proper authentication does not require conclusive proof but, instead, requires only that the trial court determine that there is evidence sufficient to support a finding of the fulfillment of a condition of fact." The detective was able to lay sufficient foundation (that the place depicted was the defendant's bathroom) to allow the jury to determine whether the photo was authentic.

The remaining claims were not preserved and were inadequately briefed so the appeals court decliend to address them on the merits.

The defendant's conviction was affirmed.

There Is No Presumed Prejudice In a Constitutional Violation

In State v. Saenz, 2016 UT App. 69, the defendant appealed his convictions for murder, theft, and possession of a firearm by a restricted person.  The defendant was found guilty after a jury trial.

In addition to giving the jury appropriate instructions that the prosecutor had the burden of proof and the defendant did not have to testify, the trial court questioned the defendant about this matter in front of the jury.  While engaged in this questioning, the judge maintained that the defendant did not have to make anything, was presumed innocent, and had the right to remain silent. Defendant claims this colloquy in front of the jury deprived him of a fair trial.

Because the defendant did not preserve his argument, the defendant must prove plain error occurred. To show plain error, there must be: 1) an error; 2) the error must have been obvious to the trial court; and 3) the error must have prejudiced the defendant.

Defendant claims the trial court showcased his decision to not testify, violating his constitutional rights.   However, the mere mention of a defendant's decision to not testify does not establish a prima facie due process violation.  To prevail on his claim, the defendant must show prejudice occurred.  In other words, absent the error there is a reasonable likelihood of a more favorable outcome.

Defendant did not try to show prejudice but asked the court to presume prejudice because the error was rooted in a constitutional right.  This request is in opposition to the Utah Supreme Court's recent holding in State v. Bond, 2015 UT 88.

The defendant's convictions were affirmed.

It it safe to have a preliminary hearing anymore?

In West Valley City v. Kent, 2016 UT App. 8, the Utah Court of Appeals dealt with the development of witness testimony at preliminary hearings.  West Valley City appealed the denial of its motion in limine to present the alleged victim's testimony through transcript as she was now unavailable pursuant to Utah Rule of Evidence 801(b)(1).

The defendant objected.  The district court judge ruled that the testimony could not be admitted as the defendant did not have a similar motive to develop the witness's testimony at preliminary hearing and at trial, even though the alleged victim qualified as unavailable. The defendant was also hampered in cross examining the witness because the trial court would  not let him develop testimony during cross examination. The judge refused to allow the defendant to cross examine the witness about prior incidents of violence perpetrated by the alleged victim outside 24 hours beforehand.  The defendant was also not allowed to cross examine the alleged victim about her criminal history outside of incidents for truthfulness holding that further information could be obtained through the discovery process. These deficiencies violated the Confrontation Clause, especially in light of letters submitted by the alleged victim recanting her testimony and requesting charges be dropped.

The Court of Appeals vacated the lower court's ruling.  Established case law holds that defense counsel has the same motive to cross examine a witness in a preliminary hearing as in trial.  The focus is not on the nature of the hearing but the interest in establishing the innocence of the client.  As for the letters, the important question is not whether the defendant was able to cross examine the witness about the letters but whether counsel had the opportunity to explore the topics implicated in the letters, such as credibility.

Because the lower court's analysis was incomplete, the case was remanded for further consideration.

Gutierrez v. State, 2016 UT App 101

Defendant appealed the lower court's denial of his petition for post conviction relief.  Defendant pleaded guilty to one count of attempted rape of a child and one count of aggravated sex abuse of a child.  Prior to sentencing, defendant asked to withdraw his pleas on the basis of: 1) he had not seen discovery; and 2) his attorney coerced him into pleading by telling him his family would be deported. The trial court appointed defendant a new attorney to assist him with his motion to withdraw.

The attorney found no legal grounds for a motion to withdraw so defendant withdrew his request to withdraw his guilty pleas and consented to sentencing. Post sentencing defendant filed an untimely appeal.

Defendant filed his petition for post conviction relief on the following bases: 1) he did not understand the charges he was pleading to and was coerced to plead guilty under threat of deportation; 2) the State failed to disclose evidence; and 3) his counsel was ineffective for failed to provide him with documents and a copy of the pre sentence report.

The trial court ruled that the defendant's petition for post conviction relief was procedurally barred. The law requires the defendant raise his claims on direct appeal.  The trial court also ruled that the defendant could have brought some of these claims in his motion to withdraw.

A trial court's denial of a petition for post conviction relief is reviewed for correctness without deference to the lower  court.  The Court of Appeals affirmed the trial court's dismissal of the petition.

State v. Marchet, 2016 UT App. 28

Defendant appealed the dismissal of his second petition for post conviction relief.  The Court Appeals affirmed the dismissal.

Defendant was convicted of rape in 2009. The Court of Appeals affirmed his conviction.   Seventeen months later, defendant filed his first petition for post conviction relief. The petition was dismissed by the Court. Forty-one months after his original conviction, defendant filed his second petition for post conviction relief claiming his trial and appellate attorneys were ineffective, his constitutional rights were violated, and the State withheld evidence.  Some of these claims were based on recently discovered evidence.

The lower court dismissed his petition holding the claims were both time-barred and procedurally barred. The dismissal for a post conviction petition is reviewed for correctness without deference to the trial court.

The Court of Appeals agreed with the lower court's analysis that the defendant's petition had to be filed within one year after his conviction was entered (2010).  To the extent that his discovered new evidence in June of 2013, he had until June of 2014 to file second petition.  That petition was still late as it was filed in August of 2014.

Stuart v. Utah, 2016 UT App. 86

Defendant appeals the dismissal of his petition for factual innocence.  The review of the trial court's decision is de novo.

Under Utah law a person can file a petition for factual innocence on a felony conviction if they can show newly discovered, material evidence exists.

The defendant's appeal was denied.  The Court of Appeals determined that he was only relitigating facts that have been presented in a number of other prior proceedings.

State v. Gray, 2016 Ut App. 87

Defendant pleaded guilty to 4 counts rape of a child, 1 count rape, and1 count aggravated sexual abuse of a child. Defendant was sentenced to the statutory prison terms to run consecutively. Defendant appeals. Defendant's sentences were affirmed.

Defendant pleaded guilty and made a plea deal with the State.  The State agreed to backdate some of his offenses so the sentencing would fall under a prior statutory sentencing scheme.  The State also agreed to recommend that 5 of 6 counts run concurrent, but reserved the right to request the sentence on the 6th count run consecutive.

A pre-sentence report was completed at the order of the court.  The report recommended the court impose the maximum sentences, identifying 4 aggravating factors and no mitigating factors.  At the sentencing hearing Defendant's attorney recited the terms of the plea agreement accurately and presented the court with mitigating factors. In response, the prosecutor reiterated the agreement and asked for the maximum sentences because he questioned the defendant's sincerity.

Defendant makes two grounds for appeal: 1) The District Court plainly erred because it failed to recognize that the state breached its plea agreement; and 2) the District Court abused its discretion in imposing multiple sentences because it amounts to a life sentence without parole and deprives the Board of Pardons from taking into account his future conduct and possibility of rehabilitation.

Defendant must show plain error because his argument was not preserved.  To show plain error the defendant must show that 1) the error exists, 2) the error should have been obvious, and 3) the error is harmful. The prosecutor's statements must be considered in context of the entire hearing. Error is not met in this case because the prosecutor's argument could be seen by the court as requesting the maximum sentence within the plea agreement.

The Court of Appeals will not overturn a sentence unless the court abused its discretion. The law allows the court to impose multiple consecutive sentences. Under the law the Board of Pardons still has the authority to exercise its discretion and release someone who has not served the minimum mandatory sentence.

Utah v. Otvos, 2016 UT App. 91

Defendant appeals his plea of guilty but mentally ill (GAMI) to one count of felony theft.  Defendant appeals on the grounds that the district court plainly erred in his sentencing by sentencing him to prison without making a finding that he posed a danger to himself or others, and by failing to include a provision to return him to the State Hospital if his condition deteriorates.  The defendant was sentenced to the statutory prison term and committed to the state hospital for treatment.

To show plain error the defendant must show that 1) an error a exists, 2) the error should have been obvious to the trial court, and 3) absent the error there would be a less prejudicial outcome.

When sentencing a defendant after a GAMI plea, the court must first impose the statutory sentence that would have been imposed by law on a defendant that is not mentally ill.   Then the court must decide whether to impose probation or commit the defendant to prison or the State Hospital. To commit the defendant, the court must find 1) because of mental illness the defendant poses a danger to himself or others or the defendant lacks the ability to provide for himself, and 2) DHS can provide the adequate and appropriate treatment and security. If the defendant is sent to the State Hospital, the defendant must be committed there until he is sent to the prison.

The Appeals Court held that the district court did not err because it incorporated the necessary statutes into the sentencing and therefore covered the readmission requirements.

The Appeals Court held that the defendant did not show he was prejudiced by his sentence.

State v. Howell, 2016 UT App. 90

Defendant appealed his convictions and sentence for one count of Securities Fraud and one count of Pattern of Unlawful Activity

The defendant's convictions were upheld for the following reasons.

Defendant claimed that the trial court erred in convicting him of committing a "Pattern of Unlawful Activity." Defendant argued that the alleged time frame, one month, was not enough to show a pattern under the law.  However, the defendant did not preserve his argument.  The defendant claimed it was plain error, but only in his reply brief.  It was too late to bring up the argument at that time.

Defendant claimed that his attorney was ineffective because he did not cross examine the co-defendant as to the nature of his plea deal with the prosecution.  Defendant must show that counsel's performance was both deficient (under an objective standard of reasonableness) and that he was prejudiced. Courts look at the totality of the evidence to determine prejudice. In this case the totality of the evidence weighs in favor of guilt.  Even if an error was made, the effect was not pervasive, but trivial.  The co-defendant did not have a plea agreement more specific than plead guilty and testify against the defendant.  The mere possibility of a favorable deal is not sufficient to show prejudice.

Defendant claimed the prosecutor failed to show he acted willfully, the requisite mens rea for securities fraud.  All inferences will be weighed in favor of the jury verdict. In the present case, the prosecution presented evidence that the defendant knew his co-defendant was funneling money and did not tell investors,  In addition the prosecution presented evidence that the defendant made numerous misleading statements to investors about the project and his experience.  The jury had sufficient evidence to render its verdict.

Defendant claimed that the prosecution withheld material evidence, specifically, that the co-defendant was a Canadian citizen and faced deportation.  Although no deal had been made, it likely would have been structured to allow the co-defendant to avoid deportation. The defendant claims this falls under plain error, but his argument was not preserved.  The argument was raised in a motion for a new trial that was filed late and therefore dismissed for lack of jurisdiction.  Even if the error did exist, defendant could not show he would have received a more favorable outcome.  The mere possibility of a better deal does not affect the credibility of a witness.

Finally, defendant claims that it is cruel and unusual punishment to sentence harsher than his co-defendant.  A proportionality review does not turn on comparison to other defendants and/or co-defendants.