April 25, 2013, Utah Court of Appeals Case Summaries

April 25, 2013

Utah Court of Appeals Cases

State v. Ortiz, 2013 UT App 100, No. 20120198-CA (April 25, 2013)

ISSUE: Fair trial; Scope of the Utah Rules of Evidence

Judge Davis,

Daniel Martinez Ortiz appeals his conviction for aggravated robbery, a first degree felony, see Utah Code Ann. § 76‐6‐302 (LexisNexis 2012), on the ground that he was unfairly prejudiced by the trial court’s denial of his motion for permission to cover his facial tattoos at trial.   We affirm.

At ¶ 1.

The Court rules that Defendant’s tattoos were not “evidence” in the trial merely because they were visible.  Accordingly, the Rules of Evidence do not apply in this case.

At ¶¶ 2-4.

State v. Williams, 2013 UT App 101, No. 20110525-CA (April 25, 2013)

ISSUE: Parol Evidence in Criminal Cases; Definition of "Material Fact"; Motions to Withdraw; and Restitution

Judge Davis,

Dike Williams appeals his convictions of three counts of securities fraud, second degree felonies, see Utah Code Ann. §§ 61‐1‐1, ‐21(2)(b) (LexisNexis 2011), and the related order of restitution. We affirm Williams’s convictions but remand for modification of the restitution order as set forth herein.

At ¶ 1.

Parol Evidence

We are aware of no cases, and Williams directs us to none, that have excluded parol evidence in the context of a criminal proceeding. Nonetheless, we are not prepared to adopt the State’s position that the parol evidence rule could never apply in the criminal context. That is a question for another day.

At n. 1.

The court determines that Defendant has not adequately briefed this issue and declines to address it.

At ¶¶3.

Jury Instruction Defining “Material Fact”

The instructions . . . directed the jury to consider the standard definition of a “material fact”—“something which a buyer of ordinary intelligence and prudence would think to be of importance in determining whether to buy or sell a security.” See generally S&F Supply Co. v. Hunter, 527 P.2d 217, 221 (Utah 1974) (defining a material fact for purposes of securities fraud).

Williams asserts that these instructions were erroneous because the investors involved in this case were accredited and had greater business acumen than a “buyer of ordinary intelligence and prudence,” see id. Accordingly, he asserts that the jury instructions should have defined a material fact as something that “a sophisticated person with ‘business and investment acumen’ would find important in determining whether or not to make [an] investment.” However, Williams does not explain what facts material to an investor of ordinary intelligence and prudence would not be material to a more sophisticated investor and, once again, provides no authority in support of his assertion that the definition of material fact should differ as concerns these two types of investors. Further, he fails to identify any misrepresentations on which the prosecution relied that would not have been considered material to a more sophisticated investor, as opposed to one of ordinary intelligence and prudence. Thus, Williams has not established how he could have been prejudiced by the jury instructions, even assuming that they were erroneous or that counsel was ineffective for failing to object to them. See generally Litherland, 2000 UT 76, ¶ 19 (identifying prejudice as an element of ineffective assistance); Dunn, 850 P.2d at 1208 (stating that a defendant must demonstrate harm in order to achieve reversal on plain error grounds).

At ¶¶ 4-5.

The Court declines to address Defendant’s challenge regarding his trial counsel’s failure to implement certain strategies and failure to object to the admissibility of certain evidence because the matters were not adequately briefed.

At ¶¶ 6-7.

Denial of Trial Counsel’s Motion to Withdraw

[T]he Utah Rules of Criminal Procedure explicitly require a defendant’s presence when a motion to withdraw is made unless the court orders otherwise. Utah R. Crim. P. 36(a)(2) . . . Thus, Williams’s absence alone could have justified the court in denying the motion. . . . Furthermore, because “‘[a] defendant’s right to retain counsel of his choice . . . may not be insisted upon in a manner that will obstruct an orderly procedure in courts of justice,’” see State v. Barber, 2009

UT App 91, ¶ 42, 206 P.3d 1223 (omission in original) (quoting United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990)), the denial was also justified by the fact that the motion was not made until the morning of trial and was part of a series of tactics employed by Williams to delay the court proceedings, cf. Wadsworth, 2012 UT App 175, ¶ 10 (determining that the trial court did not violate a defendant’s right to counsel of his choice by requiring substitute counsel to make an appearance before permitting the defendant’s hired counsel to withdraw so that the trial would not be delayed).

At ¶ 9.

Restitution

Finally, Williams challenges the trial court’s restitution award, which ordered him to repay sums associated with the earlier $250,000 investment in addition to sums associated with the charges in this case. The State concedes that the portion of the restitution award stemming from the $250,000 investment was improper because Williams was not “convicted of criminal activity” and did not admit any wrongdoing in connection with that investment. See Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2012); id. 77-38A-302(1), (5)(a). We therefore find it necessary to remand for the trial court to modify the June 10, 2011 Order of Restitution accordingly.

At ¶ 10.

State v. Brady, 2013 UT App 102, No. 20110901-CA (April 25, 2013)

ISSUE: Revocation of Probation

Judge Davis,

The conditions of his probation included paying restitution of $479,123.13 to his victims. On June 14, 2011, nearly one year after Brady entered his guilty plea and was put on probation, the State filed a motion for an order to show cause, arguing that Brady violated the terms of his probation by failing to pay “anything toward his restitution amounts.” The trial court granted the motion, and held a hearing on September 9, 2011

During the hearing, Brady admitted to violating his probation by failing to pay anything toward the restitution, but described his efforts to find a job and his overwhelming financial obligations in an effort to mitigate the impact of his violation. The trial court concluded that Brady’s mitigating evidence failed to “show [that he had made] at least a good faith effort to address the restitution” and noted that there were “any number of things” he could have done to satisfy this requirement. Accordingly, the trial court revoked Brady’s probation and reinstated his prison sentence. Brady appeals, arguing that the trial court abused its discretion by failing to consider his mitigating evidence, to explicitly find that his probation violation was willful, and to consider alternative means of punishment other than reinstating his prison sentence. Brady alternatively argues that the Order to Show Cause hearing did not comport with the minimum requirements of due process.

At ¶¶ 2-3.

“After the hearing the court shall make findings of fact,” id. § 77‐18‐1(12)(e)(i), and if a violation is found, the trial court “must determine by a preponderance of the evidence that the violation was willful,” State v. Maestas, 2000 UT App 22, ¶ 24, 997 P.2d 314 (citation and internal quotation marks omitted). “[T]he requirement of willfulness in the context of probation revocation proceedings for failure to pay a court-ordered payment merely requires a finding that the probationer did not make bona fide efforts to meet the conditions of his probation.” State v. Archuleta, 812 P.2d 80, 84 (Utah Ct. App. 1991). If the trial court determines that a probationer’s violation was not willful, the trial court is then required to “consider ‘whether adequate alternative methods of punishing the defendant are available.’” Orr, 2005 UT 92, ¶ 34 (quoting Bearden v. Georgia, 461 U.S. 660, 669 (1983)).

At ¶ 4.

The Court reviews the trial court’s findings and holds that “[t]hese comments by the trial court illustrate its implicit finding of willfulness” and rejects Brady’s argument that that an explicit finding is mandatory. Further the Court finds that “the trial court’s implicit determination that Brady’s violation was willful was not an abuse of discretion, and because of this finding, the trial court was not required to consider alternative punishments before reinstating Brady’s prison sentence.”

At ¶¶ 5-7

The Court considers Brady’s argument that the revocation hearing did not satisfy the minimum requirements of due process because he was not given an adequate opportunity to be heard and rejects it.

At ¶¶ 8-10.

Judge Thorne, Concurring,

Judge Thorne concurs and presents an argument for imposing strict liability on defendants that fail to pay restitution as a condition of probation in some circumstances.

At ¶¶ 11-18.

Bhatia v. Retirement Board, 2013 UT App 103, No. 20120096-CA (April 25, 2013)

ISSUE: Appellate review of State Retirement Board’s Determination Denying Long-term Disability; “Total Disability”

Original Proceeding

Judge McHugh,

The Court outlines the evidence presented at the hearing and determines that the Board’s conclusion that Bhatia had not submitted sufficient objective evidence of “total disability” was supported by “substantial evidence.”

At ¶¶ 6-17.

Mr. Bhatia makes two statutory arguments asserting that the Board misinterpreted the Act. First, Mr. Bhatia contends that the Act does not require him to prove “total disability” by objective medical evidence; rather, he argues that he was required to prove only the fact of “impairment” by objective medical evidence. According to Mr. Bhatia, the Board could consider his subjective reports and complaints in determining “total disability.”

At ¶ 18.

Contrary to Mr. Bhatia’s argument, the statute requires the claimant to demonstrate his complete inability to work by proving “physical objective medical impairment.” See id. § 49-21-102(11)(b). In turn, section 49-21-102(6) limits “objective medical impairment” to impairment “based on accepted objective medical tests or findings rather than subjective complaints.” Id. § 49-21-102(6).  Thus, the plain language of the statute provides LTD Program benefits only where objective medical tests or findings establish that the claimant is completely unable to engage in any gainful employment. See Hilton v. State Retirement Bd., 2005 UT App 408U, para. 2 (mem.) (“Not every impairment or disability qualifies a state employee for benefits under the Act . . . .”). Accordingly, the Board did not misinterpret the Act’s definition of “total disability” when it denied Mr. Bhatia’s claim for ongoing permanent disability benefits.

At ¶ 20.

Mr. Bhatia argues that the Act does not require him to show that he cannot work at all. Instead, he argues that the statute requires him to show only that “he cannot perform the type of work that is suitable for him.” According to Mr. Bhatia, suitability is measured by the likelihood that he will be hired and can succeed in an occupation, considering his age, education, training, experience, and other vocational factors.

At ¶ 21.

[T]he plain language of the Act belies Mr. Bhatia’s argument. It instructs the Board to determine whether an employee is unable “to engage in any gainful occupation which is reasonable, considering the eligible employee’s education, training, and experience.” See Utah Code Ann. § 49-21-102(11)(b) (emphasis added). Nothing in this statute requires the Board to speculate as to whether an employer would actually hire Mr. Bhatia or the likelihood that he would be retained in the position.

At ¶ 22.

State v. Beckstrom, 2013 UT App 104, No. 20110227-CA (April 25, 2013)

ISSUE: Scope of an investigatory stop in the context of performing field society test.

Judge Orme,

Defedant was involved in an accident which seriously injured passengers in another vehicle.  While on scene the officer desired to conduct field sobriety test on Defendant because she exhibited signs of intoxication.  Due to the cold stormy weather, and defendant’s lack of adequate winter weather, the officer asked Defendant if he could take her to the nearby police station to perform the tests, and she agreed.  He informed he that she was not under arrest, and while traveling to the station she was not restrained in any manner.  The officer testified that he could not do the test outside because the cold and wind could have significantly affected the tests.  The officer performed the tests in the police stations garage.  Defendant failed the tests and was placed under arrest. She later tested an alcohol level of .228.

Defendant filed a motion to suppress, arguing that the results of the field sobriety testing, intoxilyzer testing, and other evidence should be suppressed because her detention amounted to a de facto arrest without probable cause or because the scope of her detention exceeded the permissible limits of an investigatory detention. The trial court denied the motion, concluding that transporting Defendant to the police station to conduct the sobriety tests did not exceed the permissible scope of an investigative detention under all the circumstances.  Defendant appeals.

At ¶¶ 2-6.

We conclude that the brief further detention of Defendant to facilitate field sobriety testing was permissible under all the circumstances, including the harsh weather conditions and Defendant’s expressed consent to move to a more protected setting less than two minutes away.3 “In evaluating the scope of a stop, the court should foremost consider ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.’” Id. ¶ 28 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). In doing so, officers do not have to employ the least intrusive means available; they must merely act reasonably in choosing an alternative. See id. Reasonableness is determined by evaluating the “totality of the circumstances facing the officer.” Id. Among the circumstances that can be taken into account are an “officer’s concerns about safety and security,” id. ¶ 29, as well as physical conditions that would prevent accurate sobriety testing, see id. ¶ 31.

At ¶ 11.

Transporting a suspect can increase the intrusiveness of an investigative detention and potentially escalate it to the level of a de facto arrest. See id. ¶ 30. For instance, transporting a suspect can be “benign when the movement does not change the level of coercion involved in the stop,” but moving a suspect “from a public place to an enclosed, police-dominated location can change the level of justification required from reasonable suspicion to probable cause.” Id. In Worwood, the Utah Supreme Court determined that transporting a suspect from the side of the road to a police officer’s private residence located more than a mile away where the suspect was met by additional law enforcement officers exceeded the permissible scope of an investigatory detention because there was “no indication that [the officer] was concerned about his safety.” Id. ¶ 31. See id. ¶ 5. Additionally, the Worwood court noted that the record before it was silent regarding physical factors that could have impacted sobriety testing such as the grade and pitch of the dirt road, weather conditions, or time of day. See id. ¶ 31. Worwood held that if just one of those factors had been present, “a more expansive detention may have been justified under reasonable suspicion.” Id.

At ¶ 13.

The case at hand meets the requirements of Worwood. Severe weather was the primary impetus for the officer’s decision to relocate the testing venue. Concerns about harsh weather, Defendant’s inadequate clothing for the conditions, and the infeasibility of using the convenience store as a testing site all reasonably informed the officer’s decision to transport Defendant—with her permission and with the assurance that she was not under arrest—for less than 90 seconds to a better testing location. And any concern about intrusiveness and coercion is minimal in this case, given that Defendant consented both to being transported and to having the testing completed at the police station. While the new location could be characterized as an “enclosed, police‐dominated location,” there is no evidence that the level of coercion or intrusiveness increased once Defendant arrived at the parking garage. . . . We conclude that under the totality of the circumstances, the officer “diligently pursued a means of investigation that was likely to confirm or dispel” his suspicion quickly, Worwood, 2007 UT 47, ¶ 28 (citation and internal quotation marks omitted), and that Defendant’s brief additional detention, with her permission, did not exceed the permissible scope of an investigative detention.

At ¶ 14.

Beal v. Beal, 2013 UT App 105, No. 20110903-CA (April 25, 2013)

ISSUE: Alimony

Judge Orme,

After a series of three review hearings in 2010, the district court determined that Nanette Beal was not entitled to alimony from her ex-husband, Patrick Beal, under the terms of their 2007 divorce decree. Nanette appeals that determination, and we affirm.

At ¶ 1. 

The Court reviews the proceedings at the trial court level.  Specifically, the temporary award of alimony that lasted for two years; the trial court’s repeated orders requiring Nanette to produce an accounting of a trust to which she was a beneficiary when the time for reevaluation arrived;  Nanette’s repeated failure to provide an adequate accounting; and the trial court’s determination that based on her failure he could not adequate determine her financial income, and she was not entitled to alimony.

At ¶¶ 2-8.

Nanette asserts two errors: (1) the initial award of alimony was not “temporary” and couldonly be changed if Patrick proved a change in circumstances; (2) the court erred in requiring her to produce all of the trust documents and in factoring the documents she did provide into its alimony determination

At ¶¶ 9-10.

The Court reviews the original divorce decree and agrees with the trial court that the initial alimony award was temporary.

At ¶¶ 11-13.

In making its determination, the district court was required to consider “the recipient’s earning capacity or ability to produce income.” Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2012). Without question, a trust of which Nanette is a beneficiary and that was created “for [her] personal protection and welfare” is both an asset and a potential source of income.

At ¶ 14.

Nanette was in a position to timely produce all of the requested trust documentation to Patrick and to the court via a demand for copies from her father, the trustee. Rather thancomplying with multiple production requests and court orders, however, Nanette chose not to produce any documents for well over a year without any explanation. Even after she finally produced a copy of the original trust instrument, Nanette did not provide an accounting of the trust’s activities, generating more concerns and questions from the district court. The court was ultimately saddled with numerous abnormalities and discrepancies, including the ever-increasing debt allegedly owed to Nanette’s father and the fact that she had apparently become entitled to the trust proceeds. With the limited information before it, the court simply had no way to accurately calculate Nanette’s income stream.

At ¶ 15.

[W]e cannot conclude that the district court abused its discretion in determining that Nanette had not demonstrated that she was entitled to an award of permanent alimony.

At ¶ 16.

State v. Jones, 2013 UT App 106, No. 20110273-CA (April 25, 2013)

ISSUE: Rule 22(e) Motions to vacate an “illegal sentence”

Judge Orme,

While rule 22(e) of the Utah Rules of Criminal Procedure permits this court to correct an illegal sentence at any time, Utah courts have carefully circumscribed the application of this rule in order to prevent abuse. See State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854. Defendants cannot use rule 22(e) as “a veiled attempt to challenge the underlying conviction by challenging the sentence.” State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. Instead, rule 22(e) applies only when a sentence is “patently” or “manifestly” illegal. Id. “A ‘patently’ or ‘manifestly’ illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction or (2) where the sentence is beyond the authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15. The Utah Supreme Court has determined that a sentence is also illegal if it is “ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.” State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (citation and internal quotation marks omitted).

At ¶ 3.

Defendant first argues that his sentence is illegal because “neither the plea colloquy nor the plea affidavit established or identified the criminal offense and severity of conduct that constituted a crime.” Essentially, Defendant argues that the documents and procedure leading up to his guilty plea were insufficient to identify a specific violation of law or justify a penalty

greater than a class A misdemeanor. Therefore, he concludes, the sentence was illegal because it was based upon a plea in which the “underlying ‘conduct that constitutes a criminal offense’ and the level of severity were not established,” in violation of case law and rule 11 of the Utah Rules of Criminal Procedure.

This is exactly the type of argument that Utah courts have determined is not permissible under rule 22(e). See Candedo, 2010 UT 32, ¶ 9. In support of his claim of an illegal sentence, Defendant attacks the plea affidavit, the plea colloquy, and the district court’s adherence to rule 11 prior to sentencing. These complaints regarding the district court’s conduct during the plea process do not establish that the sentence was “manifestly” or “patently” illegal, i.e., that the sentencing court was without jurisdiction or exceeded the permitted statutory range in imposing sentence. See Thorkelson, 2004 UT App 9, ¶ 15. Nor does Defendant demonstrate that the sentence imposed is ambiguous, contradictory, incomplete, uncertain, or unauthorized by the judgment. See Yazzie, 2009 UT 14, ¶ 13. Rather, his complaints focus exclusively on the validity of his plea and resulting conviction.

At ¶¶ 4-5

Defendant next argues that his sentence was illegal because it exceeded the maximum penalty permitted by statute. Defendant pled guilty to obstruction of justice, a second degree felony given the underlying conduct. See Utah Code Ann. § 76-8-306(1) (LexisNexis 2008). However, the amended information, which was the focus of the plea colloquy, was reviewed by Defendant, and was incorporated into the plea agreement, clearly stated that the offense was subject to an in-concert enhancement under section 76-3-203.1, elevating Defendant’s crime to a first degree felony. See id. § 76-3-203.1(3). Defendant was then sentenced to five years to life—a sentence permissible under Utah law for a first degree felony conviction. See id. § 76-3-203(1) (LexisNexis 2012). Defendant pled guilty to an offense subject to enhancement, signed a plea agreement clearly identifying his crime as a first degree felony, and received a sentence appropriate for a first degree felony conviction. We therefore see no illegality in Defendant’s sentence.

At ¶ 7.

State v. Washington, 2013 UT App 107, No. 20130070-CA (April 25, 2013)

ISSUE: Post-Conviction Remedies Act

Per Curiam,

Darrell Eugene Washington appeals the trial court’s order denying his motions to compel discovery, which were filed in his criminal case. This appeal is before the court on its own motion for summary disposition based on the lack of a substantial question for review. We affirm.

At ¶ 1.

The trial court determined that it lacked jurisdiction over Washington’s requests because he had filed the motions seeking civil relief in his criminal case. Generally, once a trial court in a criminal proceeding “imposes a valid sentence, it loses subject matter jurisdiction over the case.” State v. Montoya, 825 P.2d 676, 670 (Utah 1991). We see no error in the trial court’s determination, particularly given that the relief Washington appears to be seeking is within the scope of the PCRA.

At ¶ 3.

In re R.T. and B.T., 2013 UT App 108, No. 20120877-CA (April 25, 2013)

ISSUE: Termination of Parental Rights

Per Curiam,

R.T. (Father) appeals the juvenile court’s termination of his parental rights in his children R.T. and B.T. We affirm.

At ¶ 1.

[T]his court “will not disturb the juvenile court’s findings and conclusions unless the evidence clearly preponderates against the findings as made or the court has abused its discretion.” In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

At ¶ 2.

The Court reviews the evidence in support of the Juvenile Court’s findings and finds it adequate to support its findings.

At ¶¶ 3-4.

The court refuses to address an evidentiary challenge because was not properly preserved.

At ¶ 5.

To warrant termination of parental rights, a parent must be found to be below a minimum level of fitness and the termination must be in the children’s best interests. In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118. Although these two separate findings must be made, “evidence of unfitness may be probative of both factors of the termination analysis.” In re J.D., 2011 UT App 184, ¶ 12, 257 P.3d 1062. There was sufficient evidence in the record to support that termination was in the children’s best interests.

At ¶ 7.