2011 UT App 211
Filed June 30, 2011
Per Curiam Decision

The Utah Court of Appeals held that the defendant could not withdraw his guilty pleas on the grounds that they were not given voluntarily because factual findings indicated that he did give them voluntarily and because he did not provide an adequate record for the appellate court to review.

The trial court denied Mr. Nielsen’s motion to withdraw his two guilty pleas and Mr. Nielsen appealed to the Utah Court of Appeals. Mr. Nielsen argued that his guilty pleas were not voluntary because his mental illness makes him prone to give in to the influence of others.

The Court of Appeals denied Mr. Nielsen’s appeal for two reasons. First, in a two day evidentiary hearing on the motion, the trial court made factual findings that indicated that Mr. Nielsen pleas were voluntary: (1) His therapist testified that he was not manic at the time he made the pleas or in the following weeks. (2) Mr. Nielsen testified that after meeting for two hours with his lawyers the evening before he still had not decided whether to plead guilty. (3) At the hearing he was not confused, he readily responded to questions, and he interrupted to correct factual misstatements by the prosecutor.

Second, Mr. Nielsen did not provide the Court of Appeals with an adequate factual record from which to review the trial court’s decision. He provided a transcript from the first day of the hearing but not from the second, and the trial court based much of its decision on testimony from the second day. The defendant has the burden to provide an adequate record, and if he does not the appellate court will presume the regularity of the proceedings below.

2011 UT App 229
Filed July 21, 2011

The Utah Court of Appeals affirmed the trial court’s decision to impose consecutive rather than concurrent sentences after the defendant pleaded no contest to three counts of sexual abuse of a child.

Mr. Epling was charged with two counts of sodomy upon a child and four counts of aggravated sexual abuse of a child after his stepson revealed in an interview with the Provo Children’s Justice Center that his stepfather had been sexually abusing him over a two year period. Mr. Epling eventually pleaded no contest to three counts of sexual abuse of a child. At the sentencing hearing the court heard arguments from the State and from Mr. Epling’s criminal defense attorneys as well as testimony from the stepson’s uncle and guardian, who testified as to how the abuse had negatively affected the child, and from Mr. Epling’s former employer, who said that in spite of Mr. Epling’s alcohol problems and lack of emotion he would trust him with his own children. The trial court also had access to Mr. Epling’s presentence investigation report (PSI), which contained the results of a polygraph test, and psychosexual evaluation. After considering the evidence, the trial court sentenced Mr. Epling to three consecutive sentences of fifteen years in prison. Through his criminal defense attorneys, Mr. Epling appealed to the Utah Court of Appeals. The court of appeals upheld the trial court’s sentencing decision for the following reasons:

• The trial court considered all of the statutory factors.
  In deciding whether sentences will run concurrently or consecutively, a trial court is required to “consider the gravity and circumstances of the offense, the number of victims, and the history, character and rehabilitative needs of the defendant.” The trial court’s findings on each of these considerations do not have to be on the record as long as “it would be reasonable to assume that the court actually made such findings.” Such was the case here. The trial court’s reference to Mr. Epling’s involvement with ****ography indicated that the court had read the psychosexual report. The trial court’s reference to the CJC video indicated that the court had considered the gravity and circumstances of the offenses. In regards to number of victims, the stepson indicated in the CJC video that he had seen Mr. Epling sexually abuse his half-brother. With regards to Mr. Epling’s rehabilitation, both the criminal defense attorneys and the prosecution had argued the issue before the court. The court determined that based on Mr. Epling’s refusal to take responsibility for the crimes he was not amenable to treatment. Mr. Epling’s criminal defense attorneys argued on appeal that the trial court had stated that it was unaware whether Mr. Epling had taken a polygraph test, information which was included in the PSI. The court of appeals was unpersuaded by this argument because the results of a polygraph test are not a statutory factor that the trial court must consider.
• The trial court was not required to consider Mr. Epling’s claims of innocence in determining his sentence.
  Mr. Epling maintained through sentencing that he was innocent. However, Mr. Epling was repeatedly warned and understood that by pleading “no contest” he was admitting that he had committed the crimes with which he was charged. Therefore, the trial court had no obligation to consider whether he was in fact innocent.
• There was no reason the trial court should not consider Mr. Epling’s involvement with ****ography. Mr. Eplings’s criminal defense attorneys argued that Mr. Epling’s involvement with ****ography could not properly be considered in the court’s determination of his sentence because, as he did not admit to viewing illegal child ****ography, all of his behaviors with regards to ****ography were legal. The court of appeals was unconvinced, holding that there is no law or policy that prevents a trial court from taking into consideration a defendant’s legal activities.
• The trial court did not exceed its discretion by imposing consecutive rather than concurrent sentences.
  A trial court exceeds its discretion when it does not consider the statutory factors, imposes a sentence that exceeds the legal limits, or imposes a sentence that is inherently unfair. None of these things happened in this case. Mr. Epling would have liked the court to place more weight on the mitigating evidence presented by his criminal defense lawyers. But “[t]he fact that the trial court assessed the relevant factors differently than [he] would have liked does not mean that it exceeded its discretion.”

2011 UT 53
Filed August 30, 2011

The Salt Lake City district court ruled there was not probable cause to support the warrant under which Ms. Chanzy’s blood was drawn, but did not grant her motion to suppress the evidence, relying on a possible exception to the warrant requirements. The Utah Supreme Court reversed on the alternate grounds that there was probable cause for the warrant.

While driving in Salt Lake City, Ms. Walker’s vehicle crossed the double yellow line, sideswiping a trailer and then running head on into another vehicle. The driver of the vehicle pulling the trailer was severely injured and the driver of the second vehicle was killed. Ms. Walker was airlifted to the hospital. While investigating the accident, detectives discovered that Ms. Walker’s driver license had been revoked for alcohol violation and that she was restricted to driving vehicles with an interlock ignition. At the hospital, a homicide detective visited Ms. Walker and asked her to submit to a blood draw. Ms. Walker refused. Suspecting that Ms. Walker had been driving under the influence, the detective prepared an affidavit in support of a warrant for a blood draw which contained the following information: “(1) Ms. Walker’s vehicle crossed the center line for an unknown reason; (2) after crossing the center line, Ms. Walker’s vehicle struck two other vehicles, causing serious injury to the driver of one of the vehicles and the death of the driver of the other vehicle; (3) when Detective Adamson asked Ms. Walker about the crash, she responded that she “didn’t remember anything”; (4) a check of the Utah Criminal Justice Information System revealed that Ms. Walker’s driver license had been revoked for alcohol and that she was restricted to an interlock device until February 27, 2010; and (5) at the time of the accident, Ms. Walker was driving a vehicle owned by her boss.”1 Based on these facts, the magistrate judge issued the warrant. Ms. Walker’s blood sample contained methamphetamine and amphetamine. She was charged with three felonies.

Ms. Walker’s criminal defense attorneys filed a motion to suppress the results of the blood test, arguing that the affidavit was insufficient to support probable cause for the warrant. The judge agreed with the criminal defense lawyers that the warrant lacked probable cause, but the court did not grant the motion to suppress because it ruled that the detective who conducted the search had relied on the warrant in good faith. Ms. Walker’s criminal defense attorneys appealed the ruling to the Utah Supreme Court, arguing that the Utah does not allow for a good faith exception to the warrant requirements.

The Utah Supreme Court did not reach the question of whether Utah has a good faith
exception to the warrant requirements. Instead, the court affirmed on alternate grounds, holding that the affidavit was sufficient to support probable cause to issue the warrant: (1) Ms. Walker had a history of driving under the influence and was restricted to driving vehicles with an interlock device. (2) Her vehicle crossed the double yellow line for an “unknown reason.” (3) She could not remember the details of the accident. (4) She was driving her boss’s car, which presumably did not have an interlock ignition.

Ms. Walker’s criminal defense lawyers argued that her crossing of the double of yellow line could have been caused by any number of causes other than driving under the influence, but the Utah Supreme Court rejected this argument. A magistrate judge is not required to eliminate all possible alternatives when issuing a warrant. Rather, the judge is expected to use common sense when reviewing the facts in the affidavit.

1. State v. Walker, 2011 UT 53, ¶ 14 (internal quotation marks omitted).

2012 UT 93
Filed December 21, 2012

Mr. Ross was convicted of aggravated murder and attempted aggravated murder. His criminal defense trial attorney failed to raise an affirmative defense of extreme emotional distress, which was likely Mr. Ross’s best defense. There was insufficient evidence in the record for the Utah Supreme Court to decide whether Mr. Ross’s criminal defense appellate lawyer was ineffective for failing to raise the issue that his criminal defense trial attorney may have been ineffective for not raising the extreme emotional distress defense. The case was remanded to determine whether there had been an appellate investigation into Mr. Ross’s mental state at the time the crimes were committed.

Mr. Ross was involved in a romantic relationship with Annie Christensen. Early on the morning of June 30, 2003, Mr. Ross went to Ms. Christensen’s home and discovered her there with James May. From the way the two were dressed, it appeared that Mr. May had spent the night with Ms. Christensen. Mr. Ross began questioning Ms. Christensen, asking her to tell Mr. May when she had last had sex with Mr. Ross. When Mr. Christensen would not answer his questions, Mr. Ross pulled a gun from his waistband. When Ms. Christensen still would not answer his questions, Mr. Ross said to Mr. May. “I can’t let her hurt you like she hurt me.” He then pulled Ms. Christensen by her arm into the bedroom where he shot and killed her. Mr. May left the house running. Mr. Ross fired six shots at Mr. May, one of which passed through his arm into his chest. Mr. May was able to flag down a passing motorist who contacted the police. Mr. Ross fled the scene, leading police on a high speed chase. As he drove, Mr. Ross called Ms. Christensen’s father and told him he had just killed his daughter. He also called his boss and left a message saying that he had shot Ms. Christensen and planned to kill himself.

Mr. Ross was tried for aggravated murder and attempted aggravated murder. Mr. Ross did not dispute that he had been involved in the crimes, instead his criminal defense lawyer focused on attempting to persuade the jury that Mr. Ross was not guilty of the aggravated aspect of the charges. During an in-chambers conference with the judge at the close of the trial, Mr. Ross’s criminal defense attorney told the judge, “There was no manslaughter defense raised based on any extreme emotional disturbance because of – because of evidentiary problems as are known to Mr. Ross and myself.” The judge attempted to clarify with Mr. Ross by asking him, “[I]s that, in fact, the conversation and the strategy that you and [your criminal trial lawyer] have decided on in this case?” Mr. Ross replied that it was. Mr. Ross was convicted of aggravated murder and attempted aggravated murder. A new criminal defense attorney represented Mr. Ross on direct appeal. But the post-conviction court held that the record of the in-chambers conference conclusively demonstrated that the criminal trial lawyer’s decision not to raise a defense of extreme emotional distress was strategic and that Mr. Ross had specifically agreed to the strategy. The post-conviction court granted summary judgment on the appeal to the State of Utah.

Mr. Ross later filed a pro se petition for post-conviction relief. In it he claimed that his criminal defense trial attorney had been ineffective for failing to raise a defense of extreme emotional distress and that his criminal defense appellate lawyer had been ineffective for failing to raise an ineffective assistance of trail counsel claim on direct appeal. Mr. Ross argued in his motion that even though he and Ms. Christensen had not been sexually exclusive during most of their two year relationship, he had considered her the love of his life and had believed they would eventually marry. He also argued that a few days before the shooting he and Ms. Christensen had promised each other that from then on they would be in a committed, exclusive relationship. On the morning of the murder Mr. Ross had noticed that he had a missed call from Ms. Christensen and began to panic when she did not answer his attempts to call her back because on two previous occasions Ms. Christensen had called Mr. Ross for help and then didn’t answer when he called back because she had been beaten by an ex -boyfriend. Mr. Ross argued that when he went to her house he was extremely fearful for her safety. The post-conviction court granted the State of Utah summary judgment on these issues and Mr. Ross appealed to the Utah Supreme Court.

Under Utah law, there is no post-conviction relief available for claims that were raised or could have been raised at the criminal trial or on appeal. There is an exception to this rule if the claim was not raised because of ineffective assistance of criminal defense counsel. Therefore, Mr. Ross’s two claims on appeal to the Utah Supreme Court were entirely dependent on each other. The court could not consider whether Mr. Ross’s criminal defense trial lawyer was ineffective unless it first found that his criminal defense appellate attorney was ineffective. The court ruled in Mr. Ross’s favor on this question. The Utah Supreme Court disagreed with the post-conviction court’s conclusion that the record conclusively demonstrated that Mr. Ross’s criminal defense trial attorney’s decision not to raise a defense of extreme emotional distress was strategic and that Mr. Ross had specifically agreed to the strategy.

A successful defense of extreme emotion distress would have reduced Mr. Ross’s charges from aggravated murder to murder and attempted aggravated murder to attempted murder. The defense would have been successful if Mr. Ross’s criminal defense attorney had been able to convince the jury that Mr. Ross had killed Ms. Christensen while under the influence of extreme emotional distress and that a reasonable person would have experienced extreme emotional distress under the same circumstances. The threshold to establish this defense and make it a question for the jury is minimal.

The Utah Supreme Court found that an extreme emotional distress defense did not appear to undermine or conflict with any other strategy used by the criminal defense lawyer in Mr. Ross’s criminal trial, especially since the criminal defense trial attorney did not make an opening argument, did not cross examine most of the State of Utah’s witnesses, did not provide any evidence or witnesses explaining why Mr. Ross acted as he did, and did not request any jury instructions. The Utah Supreme Court also found that the facts in the record may have been sufficient to support Mr. Ross’s claim that he committed the crimes under the influence of extreme rage and jealously, which would satisfy the low evidentiary threshold necessary to establish an extreme emotional distress defense, making it a question for the jury. The court found it unclear from the record whether either of Mr. Ross’s criminal defense attorneys had made any investigation into additional information which would have bolstered this defense.

Additionally, the Utah Supreme Court was confused by the remarks made by the criminal defense trial lawyer during the in-chambers conference. The court found that the remarks might indicate that the criminal defense trial attorney did not understand the relevant law. The criminal defense attorney said that there could be no “manslaughter defense based on any extreme emotional disturbance.” The relevant defense is called extreme emotional distress and not “extreme emotional disturbance.” Further, a successful defense of extreme emotional distress would have reduced the charges from aggravated murder and attempted aggravated murder to murder and attempted murder, not to manslaughter. The evidence may indicate that the criminal defense lawyer was actually referencing a defense that the crimes were committed under “a delusion attributable to a mental illness,” which would have in fact reduced the charges to manslaughter. This is supported by Mr. Ross’s motion, which states that he agreed not to raise a defense of “extreme emotional disturbance” because his criminal defense lawyer had told him that his mental evaluations would not support it.

But failure of his criminal defense trial lawyer to raise what on the surface seems like it may have been Mr. Ross’s best defense does not by itself mean that his criminal defense appellate attorney was ineffective for failing to argue that his criminal defense trial lawyer was ineffective. The Utah Supreme Court remanded the case for resolution of the issue of whether the appellate attorney conducted an investigation into Mr. Ross’s mental state at the time of the crimes and what an investigation might have uncovered. Because they were unable to determine whether Mr. Ross’s criminal defense appellate counsel was infective, the Utah Supreme Court could not hold on whether Mr. Ross’s claim of ineffective assistance of trail counsel was procedurally barred.

2011 UT 59
Filed September 30, 2011

The Utah Supreme Court dismissed the petition for post-conviction relief of a man convicted of murder because his claims either should have been raised on direct appeal or were appropriately dismissed by the district court for lack of jurisdiction.

Terry Johnson was convicted of murdering his child’s baby-sitter in 2004. He was sentenced to five years to life. Mister Johnson’s criminal defense lawyer filed a motion for a new trial, alleging that evidence had been admitted in violation of the Utah Rules of Evidence. Mr. Johnson then obtained a new criminal defense attorney, who filed a supplemental motion for a new trial that alleged that Mr. Johnson’s trial lawyer had been ineffective. The trial court denied both of Mr. Johnson’s motions. Mr. Johnson and his new criminal defense attorney appealed his conviction to the Utah Court of Appeals. The Utah Court of Appeals considered each of Mr. Johnson’s claimed grounds for reversal, but ultimately affirmed his conviction. Mr. Johnson and his criminal defense lawyer then filed a petition for post-conviction relief in the Utah district court. The Utah district court dismissed all of Mr. Johnson’s claims. Mr. Johnson and his criminal defense attorney appealed the dismissal of his petition to the Utah Supreme Court.

The Utah Supreme Court affirmed the dismissal of Mr. Johnson’s petition. Under Utah’s Post-Conviction Remedies Act, ineffective assistance of counsel is grounds for post-conviction relief. However, in his petition, Mr. Johnson challenged the effectiveness of the criminal defense attorney who represented him at his murder trial. Since Mr. Johnson was represented by a different criminal defense lawyer on direct appeal, Mr. Johnson could have raised this claim as part of that direct appeal but he did not. His claim was therefore barred.

Two of Mr. Johnson’s other claims – erroneous admission of open ended jury instructions and sufficiency of the evidence to convict him at trial – had been adjudicated in the district court. These claims were likewise barred because Mr. Johnson did not raise them on direct appeal.

Finally, the Utah Supreme Court held that the Utah district court rightly dismissed Mr. Johnson’s remaining claims as frivolous. In those claims Mr. Johnson essentially asked the district court to review the decision made by the Utah Court of Appeals, which a district court does not have jurisdiction to do. Mr. Johnson’s remedy for his dissatisfaction with the Utah Court of Appeals’ decision was to petition the Utah Supreme Court for certiorari, which he had already done and which petition had been denied.

2011 UT 23
Filed April 29, 2011

The Utah Supreme Court held that the victims in a criminal case had no standing to appeal a restitution order because at the time they filed their appeal there was not statute in place that gave them the right to appeal.

T.C. and N.C. were sexually abused by their adopted older brother, Zachariah E. Clark. At sentencing, the defendant was ordered to pay for the victims’ therapy. However, the defendant was also sentenced to prison and had no means to pay the costs. As allowed by Utah statute, the victims requested that the costs be paid by DCFS because DCFS was the state agency which enabled Mr. Clark’s adoption into the family. DCFS was subsequently able to show that it was exempt under the statue because it had not been provided funds by the legislature to pay for the treatment of victims such as T.C. and N.C. The trial court therefore vacated the restitution order. The victims appealed to the Utah Supreme Court.

The Supreme Court held that the victims did not have standing to appeal the order. Victims have the right to appeal only where it has been specifically granted by legislation. Utah Code section 77-38-11(2)(b) gave victims “the right to appeal rulings on motions related to their rights as a victim.” But an amendment which became effective on May 12, 2009 removed that right. A year later, on May 11, 2010, the legislature enacted another amendment which reinstated the right. The victims filed their appeal on June 19, 2009. At the time that they did so there was no statute in place which gave them the right to appeal the ruling. Matters of procedure are governed by the law in effect at the time the procedural act takes place, not by the law in effect at the time the crime was committed. Even thought repealing the law for one year may have been an oversight on the part of the legislature, courts have not power to extend statutes beyond what is specifically designated by the legislature.

2011 UT 16
Filed March 29, 2011

Hernandez was charged by information with four Class A misdemeanors. Hernandez filed a request for a preliminary hearing. The district court denied his request. The Utah Supreme Court reversed and held that a defendant charged with a Class A misdemeanor is entitled to a preliminary hearing.

In reaching its holding, the Supreme Court analyzed article I, section 13 of the Utah Constitution, which reads: “Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate, unless the examination be waived by the accused with the consent of the State, or by indictment, with or without such examination and commitment.” UTAH CONST. art. I, § 13 (emphases
added).

The Supreme Court reasoned:

• The plain meaning of the phrase “offenses heretofore” is any crime, whether a felony or misdemeanor, that up until the time of the adoption of the Utah Constitution was require to be prosecuted by indictment.
• Before the adoption of the Utah Constitution, Utah was governed by territorial law, which extended the right to prosecution by indictment for felonies to misdemeanors punishable by more than six months in jail.
• “Indictable Offenses” includes Class A misdemeanors because under territorial law any offense punishable by six months or more in jail was prosecuted by indictment. This protection was extended to all who were facing imprisonment of more than six months, regardless of the specific crime.
• “Examination and commitment” means a preliminary hearing because:
  • “Examination” means the questioning of a witness under oath, which is inconsistent with a probable cause determination for an arrest warrant made by a magistrate reviewing an affidavit.
  • A defendant is not involved in a magistrate’s review, thus there would be no opportunity for the defendant to waive the examination.
  • The probable cause determination made during a pretrial is distinct from and more in depth than what is required for issuing an arrest warrant
  • A preliminary hearing is comparable to the examination required under territorial law because both contemplate examination of witnesses and presentation of evidence.

2011 UT 40
Filed July 22, 2011

The Utah Supreme Court held that if a police officer makes a reasonable mistake about the grounds when initiating a traffic stop, the officer may make contact with the driver to explain the mistake and end the stop. If during this brief encounter with the driver new reasonable suspicion of criminal activity immediately arises, the officer may continue the stop.

Highway patrol trooper Travis Williams was traveling behind driver Vance Morris on a two lane highway at night. Trooper Williams noticed Mr. Morris’s vehicle bumping the white fog line, and suspecting that the driver might be impaired, he began to record the driving pattern with his dashboard video camera. Trooper Williams then noticed that Mr. Morris’s vehicle did not seem to have a license plate, so he initiated a traffic stop. As the two cars pulled to the side of the road, the trooper’s spotlight illuminated a temporary registration tag in the corner of Mr. Morris’s window that was not previously not visible in the dark. Trooper Williams approached Mr. Morris’s car, and Mr. Morris rolled down his window and offered him his license and registration and asked the trooper if he needed to see his proof of insurance. Trooper Williams testified that as the two spoke he smelled alcohol through the smoke of the cigar Mr. Morris was smoking. He asked Mr. Morris to exit the vehicle and performed field sobriety tests. He determined that Mr. Morris was driving under the influence and arrested him. Meanwhile, another officer arrived on the scene. The second officer searched Mr. Morris’s car and found drugs and drug paraphernalia. Mr. Morris was charged with driving under the influence, driving with an open container of alcohol, possession of a controlled substance with the intent to distribute, and possession of drug paraphilia.

Mr. Morris’s criminal defense attorneys filed a motion to suppress the evidence found in the car on the grounds that when Trooper Williams saw the temporary registration tag in Mr. Morris’s window his reasonable suspicion dissipated and any further detention of Mr. Morris was a violation of the Fourth Amendment to the United States Constitution. The district court denied the motion. Mr. Morris’s criminal defense attorneys appealed to the Utah Court of Appeals. The court of appeals reversed the trial court’s decision, holding that the stop was not justified after Trooper Williams saw the registration tag and that constitutional rights are more important than any confusion a motorist might experience if an officer does not explain why he was mistaken in initiating a traffic stop. The State filed a petition for certiorari on this issue with the Utah Supreme Court.

The Utah Supreme Court held that the traffic stop and further detention of Mr. Williams were reasonable under the Fourth Amendment. A traffic stop must be “justified at its inception” and “reasonably related in scope to the circumstances that justified the interference in the first place.” The officer must allow the person to leave as soon as the purpose for the stop is concluded unless during the stop new reasonable suspicion of criminal activity arises. The stop in this case was justified at its inception because Trooper Williams initiated it based on a reasonable suspicion that a traffic violation, the absence of a license plate, had occurred. “A factual belief that is mistaken, but held reasonably and in good faith, can provide reasonable suspicion for a traffic stop.” Addressing the issue for the first time, the court held that after an officer stops a driver based on an objectively reasonable suspicion that turns to be mistaken, the officer may approach the driver to explain the mistake and tell the driver he or she is free to go. Mr. Morris’s criminal defense attorneys argued that in such cases the officer has no right to approach a driver and should simply waive them on. The court, however, reasoned that the “touchstone” of the Fourth Amendment is reasonableness, and it would be unreasonable and undesirable to leave motorists in fear, wondering why they had been stopped. In an effort to limit this holding, the court explained:

First, our holding is limited to situations where officers have objectively reasonable suspicion. It does not allow police officers to rely on subjective criteria, hunches, or assumptions, nor will it facilitate fabricated excuses to detain drivers. Instead, district courts should evaluate the credibility of the officer and any record of the encounter to confirm the basis for the stop was objectively reasonable. Second, our holding entitles the officer to approach the driver for only one purpose: to explain his good faith mistake. This encounter must be brief; the officer is not constitutionally entitled to pepper the driver with unrelated inquiries, nor may he ask for identification, registration, or proof of insurance. The officer may further detain the driver only if he can point to new specific and articulable facts” that lead him to reasonably believe criminal activity is immediately apparent.

Under this new rule, the court held that it was reasonable for Trooper Williams to further detain Mr. Morris because immediately upon approaching Mr. Morris he detected the odor of alcohol, creating new reasonable suspicion of criminal activity. Mr. Morris’s criminal defense attorneys argued that Trooper Williams had not actually smelled alcohol until after he and Mr. Morris walked to the back of the car. As the court was unable to determine from the video whether this was the truth, the court was forced to rely on the district court’s findings of fact. However, the supreme court pointed out in a footnote that if indeed Trooper Williams had not detected the odor of alcohol immediately, his detention of Mr. Morris would have been unjustified.

1. State v. Baker, 2010 UT 18, ¶ 12, 229 P.3d 650.
2. Id. ¶ 13.
3 State v. Applegate, 2008 UT 63, ¶ 10, 194 P.3d 925.
4 State v. Morris, 2011 UT 40, ¶ 26.

Memorandum Decision
2011 UT App 95
Filed March 24, 2011

At the close of the State’s case in chief at his trial for aggravated burglary, Schwabland made a motion to dismiss. The motion was denied and Schwabland was convicted. He appealed the denial of his motion to dismiss to the Utah Court of Appeals. The Court of Appeals affirmed the trial court for the following reasons:

• Schwbland’s brief did not meet the requirements of Utah Rules of Appellate Procedure rule 24:
  • His brief did not provide a standard of review.
  • He did not cite to the record to show where he had preserved the issue on appeal.
  • He did not correctly cite to the record in his statement of the facts.
  • He did not cite to the parts of the record on which he relied in his argument section.
• Schwabland failed to marshal the evidence as required by rule 24:
  • He reargued his case by recounting a version of the facts most favorable to him.
  • He disregarded evidence that supported the court’s findings.
• Even if Schwabland had met all the requirements of rule 24, he still failed to show that the trial court ruled incorrectly since there was sufficient evidence presented to the jury for it to find all the elements of the crime were proven beyond a reasonable doubt.

2011 UT App 168
Filed May 26, 2011

The Utah Court of Appeals held that a defendant’s charges of aggravated sexual abuse of a minor and forcible sexual abuse were properly joined because the crimes were connected in their commission in that they showed an escalating pattern of behavior.

Mr. Burke and his former classmate (Father) attended their ten-year high school reunion together at Snowbird. Sometime during the reunion, Father decided to stay overnight at Snowbird and made arrangements for both himself and Burke to sleep there. Burke opted not to stay and got a ride back to father’s house with some other classmates. Aunt was at the house taking care of Father’s four-year-old daughter (Child). Burke lied and told Aunt that Father had given him permission to spend the night at the house. Aunt contacted Mother, who was out of town, and Mother reluctantly gave her consent. Burke came up with repeated excuses to call Aunt down to the basement, where he would be sleeping. He got Aunt to sit on the couch next to him, and then put both his hands up her shirt and groped her breasts. Aunt immediately pulled Burke’s hands out of her shirt and demanded what he was doing, but he pulled her on top of him and tried to kiss her. Aunt ran upstairs and shut herself and Child in the master bedroom. At no time did she give Burke any indication that romantic advances would be acceptable to her. Burke remained downstairs, where throughout the night he ordered ****ographic movies from Father and Mother’s cable service and visited ****ographic websites on Mother’s computer. The next morning Child woke up and wandered downstairs, where she found Burke masturbating and watching a ****ographic movie which depicted oral sex. Burke told Child he had an “owie” on his penis. He then held Child’s hand very tightly and made her touch his penis while he watched the movie. Three days later Child related the incident to Mother and Mother immediately called the police. After a jury trial, Burke was convicted of aggravated sexual abuse of a child and dealing in materials harmful to a minor for his offenses against Child and forcible sexual abuse for his offenses against Aunt.

Burke appealed to the Utah Court of Appeals, alleging: (1) that the trial court was wrong to deny his motion to sever the offenses against Child and the offenses against Aunt; (2) that Child’s testimony was inadmissible at trial because it was more prejudicial than probative and that Child’s prior consistent out-of court statements were inadmissible hearsay; (3) that the trial court made evidentiary mistakes by improperly limiting his expert’s testimony, admitting evidence of which he had not been given the sufficient notice, and admitting evidence that lacked adequate foundation; (4 ) that the trial court inappropriately refused to ask specific voir dire questions and (5) that the trial court inappropriately denied his request for a voluntary intoxication jury instruction.

Severance

The Court of Appeals concluded that the offenses were properly joined because they were “connected in their commission.” “[C]harges are connected in their commission when there is a direct relationship between them. . . .” The Court found that the offenses had a direct relationship because they were “closely related in time and place, occurring on the same night, within hours of each other, in the same house, and even in the same room on the same couch.” Additionally, the Court found that the events show an “escalating pattern of behavior.”

Charges which are properly joined must still be severed if the joinder prejudices the defendant’s right to a fair trial. The defendant is prejudiced if evidence of one crime would not have been admissible in a trial for the other crime. The Court held that the evidence would have been admissible in separate trials because: (1) The evidence was offered for a proper noncharacter purpose as it was relevant to proving Burke’s intent to arouse or gratify sexual desire, an element of both crimes, rather than to show a propensity for bad behavior; and (2) The evidence was relevant because it showed a greater probability that Burke acted with the required motive to arouse or gratify his sexual desire and because it gives context to his actions over the course of the night. In addition, the Court held that the probative value of the evidence outweighed any danger of unfair prejudice because: (1) The strength of the evidence is relatively strong because the offenses were reported shortly after their commission and because both Aunt and Child testified at trial and were available for cross-examination; (2) There are similarities between the crimes because they are both sexual offenses; (3) The interval of time that elapsed between the crimes was relatively short; (4) The combination of Aunt’s and Child’s testimony adds credibility to what would otherwise be a contest of “he-said-she-said;” and (5) Although there is some potential that the evidence regarding the offenses against Child could have an emotional impact that could lead to an unfair verdict in a separate trial for the offenses against Aunt, that danger does not substantially outweigh the probative value of the evidence.

Evidentiary Rulings Related to Child’s Testimony

A trial court may exclude a child’s testimony if the probative value of the testimony is “substantially outweighed by the danger of unfair prejudice.” Burke argued that Child’s testimony was more prejudicial than probative because Child was susceptible to suggestion. The Court, however, found nothing in the record to suggest that Child had been intentionally prepared for her testimony or influenced by adults in such a way that she was only parroting what she had heard. Additionally, the Court found that her testimony had a great deal of probative value because she was the only one who was able to testify about Burke’s conduct towards her. Thus the probative value was not outweighed by any danger of prejudice. The Court held that Burke’s objection to her testimony went more to the weight that should be given to her testimony rather than whether it was admissible.

Burke also argued that Child’s out-of-court prior consistent statements were hearsay. Utah Rule of Evidence 801(d)(1)(B) permits the admission of prior consistent statements if they are offered to “. . . rebut a charge of recent fabrication of improper influence or motive. . . .” In cross-examination, Burke’s attorneys suggested that Child’s testimony was the result of recent influence by her parents, prosecutors, and police offers. The Court of Appeals held that Child’s prior consistent statements to Mother, Father, Aunt, and a CJC video interview were properly admitted to rebut this allegation. Although Child had been prepared for trial, her prior consistent statements were made long before she had been prepared to testify.

Trial Court’s Evidentiary Rulings

At trial, Burke’s attorney proffered that Burke’s expert would testify about interviewing techniques used in Child’s CJC interview. Out of concern that this testimony would invade the jury’s province as sole evaluator of the witness, the trial court instructed the witness that he could testify about interviewing techniques or child development, but could not comment Child’s specific behaviors or responses and draw conclusions from those. When Burke’s attorney began to ask the expert questions specifically about Child’s testimony, the trial court instructed the witness to phrase his answers in hypothetical terms. Burke argued that the trial court abused its discretion by thus limiting his expert’s testimony, but gave no explanation as to what other testimony his expert would have provided or how he was harmed by the limitation. The Court of Appeals therefore upheld the trial court’s ruling.

Burke further argued that the trial court impermissibly admitted evidence of bad acts of which the State had not given him adequate notice. This evidence regarded Burke’s conduct towards a woman in the car on the way back from the high school reunion as well as Mother’s testimony that Burke had accessed ****ographic websites on her computer. Utah Rule of Evidence rule 404(b) requires that a defendant be given “reasonable notice in advance of trial” if the prosecution intents to use evidence of bad acts extrinsic to the charged offense. Intrinsic acts, which are part of a continuing pattern of illegal activity, do not require the same notice. On appeal Burke did not address whether the bad acts in question were intrinsic or extrinsic to the charged crimes, nor did he address whether he was unfairly surprised by the lack of notice or whether notice would have made a difference in the outcome of the case. Therefore, the Court of Appeals declined to review the issue.

Burke also argued that the trial court admitted a list of internet cookies without adequate foundation. The list was prepared by Mother using her computer’s cut, copy, and paste functions to show the ****ographic websites that Burke had visited using her computer. The Court of Appeals noted that Mother could have been more extensively questioned about the accuracy of the time and date stamps on the list to lay a stronger foundation, but also noted that “authentication does not require conclusive proof.” Mother’s testimony was sufficient to show that the list was what it was purported to be, therefore foundation was adequate.

Voir Dire

Burke requested that several questions about potential jurors’ patterns of religious attendance as well as questions about their ability to be objective be included in the voir dire examination. The court declined to ask the religion question, stating that “religion has no basis in this case whatsoever.” On appeal, Burke did not make any argument explaining what information this question would have revealed and how failure to have that information harmed him. Burke’s other requested questions about objectivity were adequately covered in the other questions asked in voir dire. Although the questions were not asked in exactly the format Burke requested, the subject matter was covered, and a defendant is not “entitled to ask questions in a particular manner.”

Voluntary Intoxication Jury Instruction

The trial court denied Burke’s request for a voluntary intoxication jury instruction. Voluntary intoxication is an affirmative defense, and as such the court is required to give the instruction if there is “any reasonable basis on which the jury could conclude that the affirmative defense applies to the defendant.” For voluntary intoxication to be a viable defense, Burke was required to prove that he was so intoxicated that he was unable to form the specific intent related to his charges, which was to arouse or satisfy sexual desire. The Court of Appeals found that, although there was evidence that Burke had been drinking, the evidence that he formed the specific intent to arouse or gratify his sexual desire was so prevent that there was no reasonable basis for a voluntary intoxication jury instruction.