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.

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.

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.

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.

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.

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.

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.

Utah v. Clark, 2016 UT App. 120

Defendant appeals her conviction for one count of felony retail theft and one count of misdemeanor trespassing.

The evidence presented showed the defendant and her friend arriving at the store together but entering separately.  Defendant picked up picture hooks off the shelf and placed them in an otherwise empty purse.  At the same time, her friend attempted to return a similar item without a receipt. At trial, the court admitted an exhibit showing that friend and defendant's boyfriend had previously been jointly charged with forgery for cashing payroll checks. No objection was lodged concerning any evidence. Defendant was convicted at trial.

Defendant challenges the admission of the exhibit under Utah Rules of Evidence 402, 403, 802, 901, and 902.  The Court of Appeals declined to analyze the issue as the error was harmless. Evidence is considered harmless when there is no likelihood it affected the outcome of the proceedings. Since defendant did not preserve her claim, the burden is on her to show plain error occurred and demonstrate prejudice.

The evidence showed that defendant had been banned from the store for life.  The moment she arrived, security started following her around.  Once stopped, she fled and emptied the contents of the purse she was carrying.  She did not have a wallet in the purse. Defendant claims the exhibit was used to show guilt by association. However, there was enough evidence without the exhibit to find defendant guilty from her own actions.

The defendant's conviction was affirmed.

State v. Tingey, 2016 UT App. 37

Defendant appealed the trial court's denial of his motion to supress statements he made while being questioned by police. Defendant claimed he was subject to custodial interrogation without being advised of his constitutional rights. The trial court determined he was not in custody.

Police located an IP address that had shared known child pornography.  The IP address was traced back to the defendant's home.  Police arrived to search with a warrant. Six to eight officers searched the home with approximately two in uniform. Defendant agreed to speak with police and directed them to the second bedroom in his home.  The door was open but an ironing board was set up between the defendant and the the 2 interviewing officers (and exit) to hold recording equipment. During the interview one officer made a threat to ruin the defendant's life. The other officer told defendant they appreciated his cooperation, that he did not have to talk with them, and he was not under arrest.

Whether an interrogation is custodial is a mixed question of fact and law that is reviewed for correctness.  The underlying factual findings of the trial court are reviewed for clear error.

A person is in custody for the purposes of Miranda if their freedom of action is curtailed to the degree associated with a formal arrest. The analysis depends on the objective circumstances of the interrogation and not on the subjective views of the parties involved.  The factors used to determine whether a person is in custody are: 1) the site of the interrogation; 2) whether the interrogation is focused on the accused; 3) whether the objective indicia of arrest were present; and 4)the length and form of the interrogation.

The first factor weighs against defendant being in custody. Defendant was interrogated in his home, in a room of his choosing. Officers were coming and going from the room.  The door was open and he was allowed to leave the room.

The second factor weighs in favor of defendant being in custody.  Defendant was clearly the focus and the only identified suspect.

The third factor weighs against a finding of being in custody.  No officers had their guns drawn, defendant was not handcuffed, and the door was open.  Although their were a number of officers in the home, only two participated in the interview. There was an ironing board blocking defendant's exit, but it was set up for convenience, not to blockade the door.

The fourth factor was considered a close call, but weighed against a finding of being in custody. The interview lasted a little over an hour. The average person may be intimidated by the scenario, but ultimately the defendant was free to leave.

After reviewing all the factors and the underlying factual findings, the Court of Appeals affirmed the decision of the trial court.

State v. Hand, 2016 UT App. 26

Defendant challenged his conviction for one count of Aggravated Sex Abuse of a Child based on ineffective assistance of counsel.  Defendant filed a Rule 23(B) motion to supplement the record on appeal with the proposed testimony of two alibi witnesses and and information regarding the reliability of the forensic interview of the victim.

To succeed on a Rule 23(B) motion, the defendant must present non speculative allegations of facts not in the record that counsel was ineffective.  Counsel is deemed constitutionally ineffective if 1) his/her performance was deficient, and 2) the deficiency prejudiced the defendant.

The Court of Appeals held that the issue of the alibi witnesses does rise to ineffective assistance of counsel. The affidavits are clear that the witnesses meet with trial counsel to see if their testimony could assist the defendant. It could be reasonable trial strategy to not call either witness.  First, the offense occurred sometime between May 19, 2010, and September 1, 2011.  The alibi witness claim to be present with the defendant all day on the day of the incident.  There is no additional information tying their presence to a date of offense. Nor do they claim to be with the defendant on every day during that time frame.

The Court of Appeals also held that it was not ineffective assistance of counsel to not challenge the forensic interview technique. The defense theory was that the allegations were fabricated, not that the interview technique influenced the victim's testimony. Furthermore, the interview was presented to the jury.  Without further evidence, it would only be speculation that that interview influenced the victim's in court testimony.

Defendant next claims the trial court applied the wrong standard of review in considering his motion to arrest judgment. A denial of a Motion to Arrest Judgment is reviewed for correctness.  The prevail, the evidence must be sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the criminal offense.

Defendant alleges that the victim told different people different accounts of where she hid after the abuse occurred.  He challenges the angle of penetration, and the credibility that he would be rubbing the victim's back in front of her mother. The trial court found that the victim gave specific, direct testimony about the abuse itself.  The testimony established all the elements of the charged offense. Any inconsistencies went to the credibility of the witness, a matter to be weighed by the jury. This amounts to tangential inconsistencies rather than substantial inconsistencies about tangential matters.

Defendant's Rule 23(b) motion is denied and his conviction is affirmed,

Lucero v. State, 2016 UT App 50

Defendant appealed the District Court's Order granting the State's Motion for Summary Judgment, denying his cross Motion for Summary Judgment, and dismissing his petition for post-conviction relief. Defendant argued that his trial counsel provided ineffective assistance of counsel for failing to raise a statute of limitations defense. The District Court determined that he was not entitled to such a defense, that his trial counsel was not ineffective, and dismissing his petition.

In 2010 Defendant was charged with four F1 counts of child sex abuse. Defendant pleaded to one F1 and one F2 on June 11, 2011.  He never moved to withdraw his plea or appeal.  His petition for post conviction relief was timely filed in March 2013.

A granting of summary judgment is reviewed for correctness without deference given to the lower court's ruling. A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To prevail on a claim of ineffective assistance of counsel a defendant must show 1) that his counsel acted deficiently, and 2) that the deficiency prejudiced the defendant.

Defendant argued that he was entitled to be prosecuted under the statute of limitations for his crimes at the time the crimes were committed and not at the time they were reported. However, a well settled rule of statutory construction is that a legislative enactment that alters substantive law of affects vested rights will not be held to operate retrospectively.  The legislature also has the right to increase the time in which an action may be brought.

Although the statute of limitations had been repealed and replaced in 2008, the original limitation period had not expired.  Thus defendant was not entitled to a statute of limitation defense under Utah Law.  Not being entitled to the defense, Defendant did not show his counsel acted deficiently.  His convictions were affirmed.

State v. Waldoch, 2016 UT App. 56

Defendant appealed his convictions for 1 count of object rape (F1) and 2 counts of forcible sex abuse (F2).  The Court of Appeals affirmed his convictions,

Defendant's first argument is that the evidence was insufficient to support penetration and therefore a conviction.  The evidence is reviewed in the light most favorable to the jury verdict.  The conviction will only be reversed if the evidence is "sufficiently inconclusive or improbable that reasonable minds must have entertained a reasonable doubt."

The victim testified that the defendant used his fingers to vaginally penetrate her. The examining physician's assistant testified the victim described being vaginally penetrated by the defendant's hand.  He wrote  that there was no actual penetration on the report to indicate the victim had not be penetrated by the defendant's penis. The forensic nurse indicated there were abrasions both inside and outside the victim's labia. Defendant pointed out the inconsistency in the physician assistant's report. Defendant presented evidence that he had been excluded as a DNA match for the saliva found on the victim's neck.  Defendant also presented an expert that concluded the victim's injuries were inconsistent with penetration (although the expert was defining penetration differently that defined under Utah Law.)  The presentation of contradictory evidence does not automatically mean there is reasonable doubt.  In the present case there was sufficient evidence to find penetration occurred.  The contrary evidence presented a question of credibility for the jury.

Defendant next claims the trial court erred in allowing a husband and wife to serve on the jury together and did not admonish the jury to refrain from discussing the case at every recess.  These arguments were not preserved. The defendant made a passing reference that this should be reviewed as plain error, ineffective assistance of counsel, or other exceptional circumstance. The Court will not address claims that are not adequately briefed.

Defendant also claims that his conviction should be overturned due to prosecutorial misconduct because the prosecutor inappropriately appealed to the jury's emotions.  This claim was not preserved and the defendant did not adequately brief whether plain error or ineffective assistance of counsel applied.

State v. Robertson, 2016 UT App. 53

Defendant appeals the denial of his motion to correct an illegal sentence pursuant to Utah Rule of Criminal Procedure 22(e). An illegal sentence is one that is ambiguous  with respect to the time or manner in which it is to be served, is internally contradictory, omits a term required to be imposed bu statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize. A 22(e) motion presumes a valid conviction.

Defendant was sentenced in two cases.  In the first case, the defendant was sentenced to two terms of 0-5 years of prison with terms to run concurrently. In the second case the defendant was sentenced to one term of 0-5 years of prison and two terms  of 0-1 years of prison, with the terms to run concurrently.  The sentences were to also run concurrent.

The defendant claims the sentence was illegal because the prosecutor overstated his criminal record, causing his sentence to be enhanced.  The district court rejected this claim because the defendant was appropriately punished for committing a third degree felony.  To the extent the Rule 22 motion challenges the accuracy of the presentence report, the defendant's claims were waived because they were not raised at the time of sentencing.

Defendant also challenged the constitutionality of his sentence as the statute was applied. The defendant claimed the court imposed an enhanced sentence in retaliation of his pursuing his constitutional right to petition the government for redress of grievances.  This is was denied as it beyond the scope of a Rule 22 motion.

The defendant's convictions and sentences were affirmed.