March 28, 2013, Utah Court of Appeals Case Summaries

March 28, 2013

Utah Court of Appeals Cases

Salt Lake City v. Menke, 2013 UT App 75, No. 20120342‐CA (March 28, 2013)

Affirming Judge Randall Skanchy

PER CURIAM,

Richard Menke appeals his conviction of burglary of a vehicle. Menke argues that there was insufficient evidence to support the conviction and that the district court should have granted his motion for a directed verdict. We affirm.

At ¶1.

The Court reviews the facts and determines that the guilty verdict was supported by sufficient evidence.

At ¶¶ 2-4.

State v. Jimenez, 2013 UT App 76, No. 20100957‐CA (March 28, 2013)

Affirming Judge Terry Christiansen

PER CURIAM,

Jimenez asserts that he received ineffective assistance of counsel at trial because trial counsel failed to obtain forensic examinations of the victims, failed to move to sever the charges based on the individual victims, and failed to object to prior bad acts testimony from a witness.

At ¶ 2.

To establish a claim of ineffective assistance of counsel, a defendant must show that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

At ¶ 2.

Jimenez has not shown that there is any reasonable possibility that a physical examination of the victims years after the abuse ended would produce any relevant evidence. Accordingly, he cannot show that counsel was ineffective in not pursuing such examinations.

At ¶ 4.

To establish ineffective assistance for failing to seek severance, a defendant “must demonstrate both that the motion should have been granted and ‘a reasonable probability’ that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” State v. Hallet, 796 P.2d 701, 706 (Utah Ct. App. 1990) (citation omitted).

Although Jimenez argues that the charges should not have been joined because the crimes were distinct in the details, we are not persuaded. It appears that the charges were properly joined as “part of a common scheme or plan.” Utah Code Ann. § 77‐8a‐1(1). A common scheme or plan applies “when the crimes involve a similar fact pattern and proximity in time.” State v. Balfour, 2008 UT App 410, ¶ 20, 198 P.3d 471. “To be classified as a common plan or scheme it is not necessary for the crimes to have been perpetrated in an absolutely identical manner, so long as the court perceives a visual connection between the [multiple] crimes.” Id.

. . . Jimenez’s abuse of three siblings over more than a decade can be considered a common scheme or plan under section 77‐8a‐1(1)(b).

[E]ven when charges are properly joined they may be severed if trying them together would prejudice the defendant. See Utah Code Ann. § 77‐8a‐1(4)(a). To analyze prejudice, the court must determine “whether evidence of the other crime[s] would have been admissible in a separate trial.” Balfour, 2008 UT App 410, ¶ 21.

Jimenez does not address whether the testimony of other victims would have been admissible at trial if the charges were severed. Accordingly, he has not shown that a motion to sever “should have been granted.” Hallet, 796 P.2d at 706. As a result, he cannot show that trial counsel was ineffective for failing to move to sever the charges for separate victims.

At ¶¶ 5-9.

Finally, Jimenez asserts that trial counsel was ineffective for failing to object to testimony from his ex‐wife regarding the reason for their divorce in 2000 . . . .

To show that counsel’s deficient performance prejudiced his defense, Jimenez must demonstrate that, absent counsel’s error, there is a reasonable probability that the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the [verdict].” Id. Ex‐wife unexpectedly testified in a cursory manner that one of the reasons for their divorce was Jimenez’s physical abuse of her. No further explanation or detail was presented. Given the direct testimony of the three victims regarding the duration, frequency, and particulars of the sexual abuse by Jimenez, there is no reasonable probability of a different outcome without Ex‐wife’s testimony. The other evidence against Jimenez was overwhelming.

At ¶¶ 10-11.

Salt Lake City v. Miles, 2013 UT App 77, No. 20111124‐CA (March 28, 2013)

Affirming Judge Robert Faust,

Wade John Miles was involved in an altercation with a light rail train supervisor concerning his attempt to board the train with a shopping cart in what appeared to be an intoxicated state.  During the altercation Miles allegedly threatened the supervisor.  The supervisor called the police, and the officer arrested Miles for threatening the supervisor and intoxication.  While searching Miles, the officer found a knife with a 3 1/2 inch blade and 3 ½ inch to 4 inch handle.  Miles was later convicted on one count of possession of a dangerous weapon by a restricted person, a class A misdemeanor.  During the trial, the Court allowed the prosecution to present Miles’ booking photo as evidence.

At ¶¶ 1- 6.

Miles advances two contentions on appeal. First, he contends that the evidence was insufficient to support the jury’s verdict of guilt on the dangerous weapon charge. . . .

Second, Miles contends that the trial court abused its discretion by admitting the booking photo. “A trial court has broad discretion in deciding whether evidence is relevant, and we review a trial court’s relevance determination for abuse of discretion.” State v. Fedorowicz, 2002 UT 67, ¶ 32, 52 P.3d 1194.

At ¶¶ 7-8

Our Legislature has defined dangerous weapon as “an item that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Utah Code Ann. § 76‐10‐501(6)(a). “Thus, because an item must simply be capable of causing death or serious bodily injury, an item not necessarily manufactured as a dangerous weapon may nonetheless become one.” State v. C.D.L., 2011 UT App 55, ¶ 16, 250 P.3d 69 (citing Utah Code Ann. § 76‐1‐601(5)(a) (2008)) (interpreting a similarly worded definition of dangerous weapon for purposes of defining aggravated assault). The statute enumerates four factors relevant to determining whether a knife is a dangerous weapon:

The following factors shall be used in determining whether a knife, or another item, object, or thing not commonly known as a dangerous weapon is a dangerous weapon:

(i) the character of the instrument, object, or thing;

(ii) the character of the wound produced, if any;

(iii) the manner in which the instrument, object, or thing was used; and

(iv) the other lawful purposes for which the instrument, object, or thing may be used.

Utah Code Ann. § 76‐10‐501(6)(b).  The trial court instructed the jury to consider all four of the statutory factors in determining whether the knife was indeed a dangerous weapon.

At ¶ 11.

The Court determines that the statutory directive to consider “the manner in which the instrument, object, or thing was used” does not require that the thing actually be used in order to qualify as a dangerous weapon. See id. § 76‐10‐501(6)(b)(iii).

At ¶¶ 12-15.

The Court reviews the evidence and determines that the jury’s conclusion that the knife was a dangerous weapon was supported by sufficient evidence.

At  ¶¶ 16-21.

We conclude that the trial court did not abuse its discretion in admitting the photo. Miles’s appearance shortly after his arrest was relevant to the charge of intoxication. “The judge could determine that the photograph was relevant and admissible on the issue of his intoxication notwithstanding and in addition to the admission of testimony concerning the defendant’s appearance at the time.”

At ¶ 24 (citations omitted).

We . . . do not agree that the evidence was so meager that without the booking photo there was a reasonable likelihood of an acquittal on the dangerous weapon charge.

At ¶ 26.

Judge Davis, dissenting,

Although I agree with the majority that Miles’s not having used the knife is not dispositive, I do believe it is relevant, particularly under the circumstances of this case where Miles not only did not use the knife but also did not even access or attempt to access it.

At ¶ 30.

To approach the dangerous weapon analysis as the majority has in this case is to essentially preclude any restricted person from carrying anything sharper than a butter knife. I do not disagree that the evidence regarding the types of wounds the knife is capable of inflicting may be relevant, but I would consider such evidence to fall within the ambit of the first factor, not the second. The second factor should be limited to considering only the wounds actually produced, “if any.” See Utah Code Ann. § 76‐10‐501(6)(b)(ii).

At ¶ 32.

In light of the fact that Miles neither used nor attempted to use the knife, that no wound was caused by the knife, and that the knife was “well suited for camping and other innocent uses,” see supra ¶ 20, I do not find the evidence that the knife was sharp, serrated, and capable of causing injury, combined with Miles’s empty threats to the supervisor, to sufficiently support a determination that the knife was a dangerous weapon. Thus, I would reverse Miles’s conviction.

At ¶ 33.

[E]ven assuming that the photograph was marginally relevant to the charges of which he was acquitted, as the City asserts, I believe that under the circumstances of this case, that relevance was outweighed by the photograph’s potential prejudice. Given the extremely limited evidence relating to the dangerous weapon charge—evidence which I consider to be insufficient to support the verdict—I am persuaded that there was a “reasonable likelihood of a more favorable result” for Miles had the booking photograph been excluded

At ¶ 34 (citation omitted).

Rapoport v. Four Lake Village Homeowners, 2013 UT App 78, No. 20110801‐CA (March 28, 2013)

Affirming in part, reversing in part Judge Keith Kelly

Judge Roth,

Plaintiffs Richard N. Rapoport and Jean A. Rapoport appeal from the district court’s decision to uphold Defendant Four Lakes Village Homeowners Association, Inc.’s (the HOA) denial of the Rapoports’ request to install and use certain lighting fixtures in common areas of the condominium complex where the Rapoports own a condominium unit. We affirm in part and reverse and remand in part.

At ¶ 1.

The Rapoports first argue that, in deciding their claim for declaratory relief, the district court improperly decided factual issues that were neither raised by the pleadings nor tried by the parties’ consent and made the same error in entering postjudgment findings and conclusions.

At ¶ 2.

The Court reviews the complaint and determines that

the “specific averments” regarding the aspen spotlights “supplant, limit and control the more general allegations” referring to the HOA’s decision. See id. Reading the Rapoport’s complaint in this way, we conclude that it is limited to the aspen spotlights.

At ¶¶ 3 6.

The Court also concludes that the scope of the Rapoports’ claim was not expanded at trial by the parties’ express or implied consent as permitted by Rule 15(b).

At ¶¶ 7-11.

[E]ven with the deference that is accorded to the district court on such matters, given the parties’ and the court’s statements at the pretrial hearing and at the commencement of trial as well as the focus on the aspen spotlights at trial, we conclude that the HOA’s decision as it extended to the tiki lights and the other spotlights has [sic] not tried by the express or implied consent of the parties.

We therefore conclude that issues concerning the tiki lights and other spotlights were neither pleaded in the complaint nor tried by the parties’ consent. Accordingly, we reverse the district court’s decision to the extent that it concluded otherwise and decided those issues and remand for appropriate modification of the judgment.

At ¶¶ 10-11.

The Court, interpreting the Declaration of Covenants, Conditions and Restrictions governing the property, concludes that the trial court properly upheld the HOA’s decision not to allow the Rapoport’s to light the Aspen trees in the common area.

At ¶¶ 13-18

The Court upholds the trial court’s decision to exclude a photograph of the lights due to a lack of foundation concern.

At ¶¶ 19-20.

The Court, interpreting the Declaration’s attorney fees provision, upholds the trial court’s determination to grant the HOA attorney fees.

At ¶¶ 21-25.

Hasratian v. Department of Workforce Services, 2013 UT App 79, No. 20111069‐CA

(March 28, 2013)

Original Proceeding

Judge Roth,

Claimant Hyke A. Hasratian appeals a decision by the Workforce Appeals Board (the Board) that he committed fraud by receiving unemployment benefits to which he was not entitled and should be assessed a fraud penalty. We decline to disturb the Board’s decision.

At ¶ 1.

The Court reviews the evidence and determines that there was substantial evidence to support the Board’s determination.

In re J.J. and J.A., 2013 UT App 80, No. 20130018‐CA (March 28, 2013)

Affirming Judge Charles Behrens

PER CURIUM,

A.A. (Mother) appeals the juvenile court’s December 14, 2012 order terminating her parental rights. We affirm.

At ¶ 1.

In order to overturn the juvenile court’s decision as to the sufficiency of the evidence, “[t]he result must be against the clear weight of the evidence or leave the appellate court with a firm and definite conviction that a mistake has been made.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.

At ¶ 2.

The Court reviews the evidence and determines that the Juvenile Court’s decision was supported by substantial evidence.