State v. Grant, 2013 UT App. 210, No.
20120295-CA (August 29, 2013)
ISSUE: Sentencing for Attempted Aggravated Sexual Abuse of a Child Not subject to Section 76-5-406.5
Per
Curiam,
Defendant Trevor R. Grant appeals his sentence on a conviction of attempted aggravated sexual abuse of a child, a first degree felony. Grant argues that his trial counsel rendered ineffective assistance of counsel by failing to present evidence on all of the circumstances enumerated in Utah Code section 76-5-406.5. See Utah Code Ann. § 76-5-406.5 (LexisNexis 2012). We affirm.
At ¶
1.
Grant argues that his trial counsel was ineffective “by failing to investigate and present evidence of the circumstances justifying probation or suspension of sentence pursuant to Utah Code [section] 76-5-406.5.” However, an “attempt” to commit aggravated sexual abuse of a child is not among the offenses listed in section 76-5-406.5(1). . . .
At ¶
3.
. . . Because it was not necessary to demonstrate all of the circumstances listed in section 76-5- 406.5(1) in order to sentence Grant to probation, trial counsel did not render deficient performance by failing to address all of the enumerated circumstances.
At ¶
4.
The
Court evaluates defense counsel’s performance at sentencing and determines it
was not ineffective.
At ¶
5.
In re G.P..., 2013 UT App. 211, No. 20130347-CA (August 29, 2013)
ISSUE: Termination of Parental Rights
I
will not be summarizing this case, because it deals with the sufficiency of
evidence to terminate parental rights.
State v. Fowers, 2013 UT App. 212, No.
201109360-CA (August 29, 2013)
Judge
Thorne,
Roger Scott Fowers appeals his conviction for attempted kidnapping. See Utah Code Ann. § 76‐5‐301 (LexisNexis 2012); see also id. § 76‐4‐101. Fowers argues that the evidence presented by the State was insufficient to support his conviction and that the district court therefore erred in denying his motion to dismiss. We affirm.
At ¶
1.
The State’s primary theory in support of the kidnapping charge was that Fowers “detain[ed] or restrain[ed]” a minor between the ages of fourteen and eighteen without the consent of the minor’s parent. See Utah Code Ann. § 76-5-301(1)(d) (LexisNexis 2012).4 The State was further required to prove that Fowers did so “intentionally or knowingly, without authority of law, and against the will of the victim.” Id. § 76-5-301(1). A person is guilty of an attempt to commit a crime if he or she engages in conduct constituting a substantial step toward the commission of that crime that strongly corroborates his or her intent to commit the crime. See id. § 76-4-101. Thus, to affirm Fowers’s conviction of attempted kidnapping, we need only determine that there was sufficient evidence presented to show that Fowers engaged in conduct constituting a substantial step towards detaining or restraining T.H. and strongly corroborating his intent to detain or restrain her.
At ¶
6.
At trial, T.H. testified for the State that Fowers blocked her path with his car, got out of the car, and told her to “just get in” after she had twice refused his offer of a ride. T.H. further testified that he grabbed her forearm hard enough to leave red marks and only released her arm when she kicked him. Additionally, the State presented testimony from the police officer who had interviewed Fowers after his arrest. The officer testified that Fowers himself partially corroborated T.H.’s version of events by admitting that he was in the area looking for prostitutes at the time of the incident and that he twice asked a young woman walking along Main Street if she needed a ride.6 Viewing this evidence in the light most favorable to the jury’s verdict, we cannot say that it is “sufficiently inconclusive or inherently improbable such that reasonable minds must have entertained a reasonable doubt” that Fowers committed the crime of attempted kidnapping. Dunn, 850 P.2d at 1212.
At ¶
7.
The
Court declines to address Defendants alleged inconsistencies with the evidence
because “it is not . . . our prerogative to weigh conflicting evidence or to
determine the credibility of witnesses. See State v. Romero, 554 P.2d
216, 218 (Utah 1976). Rather, that is the role of the jury. See State v.
Goddard, 871 P.2d 540, 543 (Utah 1994).
At ¶
8-9.
State v. Campos, 2013 UT App 213, No.
20101042-CA (August 29, 2013)
ISSUES:
Ineffective Assistance of Counsel; Special Mitigation Instruction in Attempted
Murder Cases; Imperfect Self-defense instructions; Prosecutorial Misconduct
During Closing Arguments; Lesser Included Instructions; Expert Testimony; and
Character Evidence
Judge
Voros,
Campos challenges his convictions [for attempted murder and aggravated assault], alleging a number of errors in the trial and arguing that he was denied a fair trial because he was deprived of his constitutional right to effective assistance of counsel. We conclude that Campos’s trial counsel performed deficiently in three instances. While each instance alone might not be sufficiently prejudicial to require reversal in this case, taken as a whole trial counsel’s deficient performance undermines our confidence in the verdict on the attempted murder charge. We therefore reverse the conviction for attempted murder. We affirm the conviction for aggravated assault.
At ¶ 2.
The Court outlines the facts of the case, which involves an
altercation on a public street between Campos and the victim. The victim had been patrolling the
neighborhood as an unofficial neighborhood watch, and begun following a girl
because he suspected the car was stolen.
The girl was Campos’ daughter.
There were differing accounts of the events leading to Campos shooting
the victim. Campos argued he shot the
victim in self defense.
At ¶¶ 3-21.
The Court recounts the required elements of an ineffective
assistance of counsel claim as set forth in Strickland v. Washington,
466 U.S. 668, 684–86 (1984).
At ¶¶ 23-24.
Special
Mitigation Instruction
Campos first contends that his trial counsel performed deficiently by failing to request a special mitigation jury instruction on extreme emotional distress.
At ¶ 25.
. . . “Special mitigation exists when the actor causes the death of another or attempts to cause the death of another . . . under the influence of extreme emotional distress for which there is a reasonable explanation or excuse.” Utah Code Ann. § 76-5-205.5(1)(b).
At ¶ 26.
If the trier of fact finds that each element of attempted murder has been established beyond a reasonable doubt “and also that the existence of special mitigation . . . is established by a preponderance of the evidence,” “the defendant shall instead be found guilty of attempted manslaughter.” Id. § 76-5-205.5(5)(a), (5)(b)(iv). However, a jury’s determination on special mitigation must be unanimous. See id. § 76-5-205.5(6). “If the jury is unable to unanimously agree whether or not special mitigation has been established, the result is a hung jury.” Id. § 76-5-205.5(6)(d).
At ¶ 27.
Our supreme court has explained that “a person acts under the influence of extreme emotional distress when he is exposed to extremely unusual and overwhelming stress that would cause the average reasonable person under the same circumstances to experience a loss of self-control, and be overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions.” Id. ¶ 26 (citation and internal quotation marks omitted). However, the statute excludes from the purview of emotional distress “mental illness” and “distress that is substantially caused by the defendant’s own conduct.” Utah Code Ann. § 76-5-205.5(3). Thus, “an external triggering event is also required.” White, 2011 UT 21, ¶ 32. “In many cases this triggering event will naturally occur just before the criminal act; however, we find no language in our precedent that requires the triggering event be contemporaneous with the defendant’s loss of self-control.” Id.
At ¶ 30.
The State argues that Campos “substantially caused” his own emotional distress when he retrieved his gun, drove with his daughter to find Serbeck, forced Serbeck to stop by pulling in front of him, and confronted Serbeck with his gun in hand. However, this argument ignores the initial triggering event that led Campos to take the actions described by the State: Campos’s teenage daughter and her friends arrived at Campos’s house in a panic after being followed late at night. By the time Campos confronted Serbeck, Serbeck testified that Campos was “[en]raged,” “mad,” and “screaming something about somebody following his daughter.” Based on this evidence, a rational jury might conclude that Campos was under “extremely unusual and overwhelming stress that would cause the average reasonable person under the same circumstances to experience a loss of self-control, and be overborne by intense feelings, such as passion [and] anger.” See id. ¶ 26 (citation and internal quotation marks omitted). That Campos could have called 911 rather than pursuing and shooting Serbeck—in other words, that Campos acted in a way that arguably exhibited “loss of self-control” and his being “overborne by intense feelings”—does not necessarily mean that Campos substantially caused his own emotional distress. Although the jury may not have ultimately concluded that Campos was acting “under the influence of extreme emotional distress” or that the circumstances presented “a reasonable explanation or excuse” for that emotional distress, see Utah Code Ann. § 76-5-205.5(1)(b) (LexisNexis 2012), the evidence provides some basis for such a conclusion and Campos would have been entitled to a jury instruction on extreme emotional distress had his counsel requested one.
At ¶ 32.
However, given the “heavy measure of deference” we apply to counsel’s judgments, Strickland v. Washington, 466 U.S. 668, 691 (1984), we cannot say that Campos’s trial counsel acted unreasonably in pursuing a different trial strategy. If Campos had prevailed on self-defense, he would have been entitled to acquittal. See Utah Code Ann. § 76-2-402(1) (LexisNexis 2008). Extreme emotional distress would have provided the jury with a middle ground, conviction for attempted manslaughter. See id. § 76-5-205.5(5)(b)(iv) (2012). But Campos had already provided the jury with a middle ground—imperfect self-defense—that was consistent with his version of events. See id. § 76-5-203(4)(a), (c) (2012) (providing that imperfect self-defense reduces attempted murder charge to attempted manslaughter). Trial counsel is given a wide latitude of discretion in making strategic decisions at trial, Strickland, 466 U.S. at 689; State v. Tennyson, 850 P.2d 461, 465, 468 (Utah Ct. App. 1993), and we cannot say that Campos’s trial counsel acted unreasonably in this case by pursuing one middleground defense and choosing to forego another that was arguably inconsistent with Campos’s version of events.
At ¶ 36.
Imperfect
Self-defense
Campos next challenges his trial counsel’s failure to object to the verdict form’s description of imperfect self‐defense. Imperfect self-defense is an affirmative defense to a charge of attempted murder. Utah Code Ann. § 76-5-203(4)(a); State v. Low, 2008 UT 58, ¶¶ 22–24, 192 P.3d 867. This affirmative defense is available if the defendant “attempted to cause the death of another under a reasonable belief that the circumstances provided a legal justification or excuse for the conduct although the conduct was not legally justifiable or excusable under the existing circumstances.” Utah Code Ann. § 76-5-203(4)(a).
At ¶ 37.
. . . once a defendant has produced some evidence of imperfect self-defense, the prosecution is required to disprove imperfect self-defense beyond a reasonable doubt. If the prosecution does not meet this burden, the charge of attempted murder is reduced to attempted manslaughter. See Utah Code Ann. § 76-5-203(4)(c).
At ¶
38.
. . . Campos argues that by asking the jury [in the Verdict Form] whether it found beyond a reasonable doubt that the affirmative defense applied, the verdict form effectively shifted the burden of proof from the State to Campos.
At ¶
39.
The fundamental problem with the verdict form used in this case is that it requires an affirmative defense to be established beyond a reasonable doubt. This is contrary to Utah law. A defendant need only produce enough evidence to raise a reasonable basis for the affirmative defense. See State v. Sellers, 2011 UT App 38, ¶ 16, 248 P.3d 70. “Once that initial showing is made, the burden shifts to the state to prove to the jury, beyond a reasonable doubt, that the defense lacks merit.” Id. In other words, once a defendant—or even the prosecution for that matter—has produced enough evidence to warrant the giving of an instruction on an affirmative defense, the defendant is entitled to acquittal or, as in the case of imperfect self-defense, reduction of the charge unless the prosecution carries its burden of disproving the defense beyond a reasonable doubt. See State v. Knoll, 712 P.2d 211, 214–15 (Utah 1985); Sellers, 2011 UT App 38, ¶¶ 15, 17; see also Utah Code Ann. § 76-5-203(4)(c). Thus, a jury may reduce an attempted murder charge to attempted manslaughter “even though the evidence of [imperfect] self-defense fell ‘far short of establishing the [defense] by a preponderance of the evidence upon the subject.’” See Knoll, 712 P.2d at 214 (quoting State v. Vacos, 120 P. 497, 502 (Utah 1911)).
At ¶
41.
Here, sufficient evidence was presented to warrant a jury instruction on imperfect self‐defense. The judge gave a jury instruction on imperfect self-defense, and the instruction properly described the burden of proof. However, the verdict form directly contradicted that instruction by asking the jury to find either that the affirmative defense had been disproved beyond a reasonable doubt, or that it had been proved beyond a reasonable doubt. This was error.
At ¶
43.
Campos’s trial counsel did not object to the verdict form, and in fact proposed a similarly flawed form—as did the prosecution. Campos therefore argues that he was deprived of his constitutional right to effective assistance of counsel. To show that his trial counsel’s assistance “fell below an objective standard of reasonableness,” Campos “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 687–89 (1984) (citation and internal quotation marks omitted).
At ¶
44.
. . . Campos’s trial counsel thus had a duty to ensure that the jury was clearly and properly instructed on the burden of proof relevant to imperfect self-defense. The State has not argued that failure to fulfill that duty may be considered sound trial strategy, and we do not see how it could be. . . .
At ¶
45.
To demonstrate that he is entitled to relief on appeal, Campos must show not only that his trial counsel performed deficiently, but also that he was prejudiced by his trial counsel’s deficient performance. See Strickland, 466 U.S. at 694. We will address the prejudice relevant to the verdict form in conjunction with the next allegation: prosecutorial misconduct.
At ¶
46.
Campos challenges his trial counsel’s failure to object to several statements made by the prosecutor in closing arguments. While most of the statements Campos challenges do not rise to the level of prosecutorial misconduct, two statements do.
At ¶
47.
To determine whether a prosecutor’s remarks are “so objectionable as to merit a reversal,” we must determine whether the remarks “call to the attention of the jurors matters which they would not be justified in considering in determining their verdict.” State v. Valdez, 513 P.2d 422, 426 (Utah 1973); accord State v. Todd, 2007 UT App 349, ¶¶ 15–16, 173 P.3d 170. “Counsel for both sides have considerable latitude in their arguments to the jury . . . .” Valdez, 513 P.2d at 426. However, a prosecutor “exceed[s] the bounds of propriety” when he or she “unfairly appeals to the sympathies,” “passions and prejudices of the jury.” Todd, 2007 UT App 349, ¶¶ 19–20 (citations and internal quotation marks omitted). “[T]he determination of guilt must not be the product of fear or vengeance but rather intellectually compelled after a disinterested, impartial and fair assessment of the testimony that has been presented.” Id. ¶ 21 (citation and internal quotation marks omitted). Such arguments are inappropriate because they “divert the jury from its duty to decide the case on the evidence.” Id. ¶ 18 (citation and internal quotation marks omitted).
At ¶
50.
Here, the prosecutor’s comments called attention to matters the jury should not have considered in reaching its verdict. We are most troubled by the prosecutor’s reference to Campos’s “stealing from [Serbeck] his ability to run, his ability to bike, his ability to walk his daughter down the aisle.” The statement was a direct appeal to the passions of the jury. It suggested to the jury that it should find Campos guilty out of vengeance or sympathy for the victim rather than based on what the facts and the law required.
At ¶
52.
Taken as a whole, the prosecutor’s statements in the present case constituted prosecutorial misconduct. The prosecutor appealed to the passions of the jury and the jury’s duty to society to argue that Campos should be found guilty because of the tragic consequences suffered by Serbeck. The jury’s guilty verdict must be based on an impartial determination that the State proved each element of the charged crimes beyond a reasonable doubt, see Todd, 2007 UT App 349, ¶ 21, and disproved each affirmative defense beyond a reasonable doubt, see State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476. It must not be based on a desire to punish the defendant because of the victim’s tragic loss of “his ability to run, his ability to bike, his ability to walk his daughter down the aisle.”
At ¶
53.
. . . A prosecutor diverts the jury from its duty to decide the case on the evidence when he is “permitted to make unfounded and inflammatory attacks on the opposing advocate.” United States v. Young, 470 U.S. 1, 9 (1985). Thus, remarks intended to “disparage the defense or otherwise impugn the forthrightness of the defense strategy” constitute misconduct. . . . However, referring to defense counsel’s theory as a red herring would not be inappropriate so long as the reference could be classified as a comment on the strength of “the evidence and the inferences and deductions arising therefrom,”
At ¶
56.
The prosecutor’s comments here crossed the line from permissible argument of the evidence to an impermissible attack on defense counsel’s character. The prosecutor argued not only that the claim of self‐defense was a distraction, but also that it was a technique or ploy to confuse and distract the jury. That is, the prosecutor argued that defense counsel intended to mislead the jury. Arguing that the evidence does not support the defense theory and that the theory is thus a distraction from the ultimate issue is fundamentally different from arguing that defense counsel is intentionally trying to distract and mislead the jury.
At ¶
57.
Campos argues that his trial counsel’s failure to alert the trial court to both instances of prosecutorial misconduct “fell below an objective standard of reasonableness” and thus constituted deficient performance. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984). We agree. The inappropriate and unchecked appeal to the sympathy of the jury created a “risk that jurors [would] feel obligated to seek revenge for the victim.” See Todd, 2007 UT App 349, ¶ 21. The suggestions that defense counsel was intentionally misleading the jury exacerbated “the possibility that the jury [would] give special weight to the prosecutor’s arguments.” Id. ¶ 17 (citation and internal quotation marks omitted). Such misconduct thus merited action on the part of defense counsel.
At ¶
58.
. . . We acknowledge that “interruptions of arguments, either by an opposing counsel or the presiding judge, are matters to be approached cautiously.” Young, 470 U.S. at 13. However, in this case, “[a]t the very least, a bench conference might have been convened out of the hearing of the jury . . . and an appropriate instruction given.” See id. at 13–14. Defense counsel’s failure to request such a remedy or otherwise object constituted deficient performance.
At ¶
59.
Each of the three instances of deficient performance identified above requires a showing of prejudice to merit reversal. See Strickland, 466 U.S. at 687; State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993); State v. Troy, 688 P.2d 483, 486 (Utah 1984). Under the doctrine of cumulative prejudice, we will reverse “if the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had.” Dunn, 850 P.2d at 1224 (omission in original) (citation and internal quotation marks omitted). Campos argues that taken together, the cumulative effect of his trial counsel’s lapses was sufficiently prejudicial to warrant reversal. We agree.
At ¶
61.
The
Court discusses the likelihood that the incorrect instruction on the verdict form
and prosecutorial misconduct were prejudicial to the defense, and determines
that they undermine the verdict.
At ¶¶
62-72.
Expert Testimony
Campos
challenges his aggravated assault conviction by contending that the trial court
abused its discretion when it excluded expert testimony relevant to
self‐defense.
At ¶
73.
The State moved to exclude Campos’s expert. The expert intended to testify that if a police officer were in Campos’s situation, having shot one individual and facing a second individual who may or may not be armed, standard police safety training would teach the officer to hold his gun on the second individual until the scene was secure. Campos intended to offer this evidence in support of his argument that he acted in selfdefense, and that his actions were reasonable, when he pointed his gun at Serbeck’s neighbor. The trial court granted the State’s motion on several grounds, including that the expert testimony would not be helpful to the jury.
At ¶ 74.
Although the average juror would not have had direct experience with the situation Campos faced, the average Utah juror arguably has the requisite knowledge of handguns to assess the danger of the situation and the reasonableness of Campos’s belief that force was necessary to defend himself. Furthermore, testimony about police standards had at least some potential to confuse the issues when the jury was tasked to decide the reasonableness of Campos’s belief from the standpoint of a reasonable civilian (not a peace officer) under the circumstances. Although the trial court was not required to exclude the expert testimony on the basis that it was not helpful, we cannot say that doing so exceeded the limits of reasonability.
At ¶ 76.
Campos contends that the trial court erred by denying his request for an instruction on threatening with a dangerous weapon as a lesser included offense for his aggravated assault charge. The State responds that the evidence does not provide a rational basis for a verdict acquitting Campos of aggravated assault and convicting him of the lesser included offense.
At ¶
77.
To obtain an instruction on a lesser included offense, “a defendant must show (1) that the charged offense and the lesser included offense have overlapping statutory elements and (2) that the evidence ‘provides a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); see also Utah Code Ann. § 76‐1‐402(3), (4) (LexisNexis 2012). The parties agree that the first element of the test is met here. Our supreme court held in State v. Oldroyd that threatening with a dangerous weapon qualifies as a lesser included offense of aggravated assault. See 685 P.2d 551, 554 (Utah 1984). Thus, the remaining question is whether the evidence presented at trial provides a rational basis for acquitting Campos of aggravated assault and convicting him of threatening with a dangerous weapon.
At ¶
78.
In undertaking this analysis, we “must only decide whether there is a sufficient quantum of evidence presented to justify sending the question to the jury.” Baker, 671 P.2d at 159. “[W]hen the evidence is ambiguous and therefore susceptible to alternative interpretations, and one alternative would permit acquittal of the greater offense and conviction of the lesser, a jury question exists and the court must give a lesser included offense instruction at the request of the defendant.” Id. Furthermore, we “view[] the evidence in the light most favorable to the defendant requesting the instruction.” Powell, 2007 UT 9, ¶ 27.
At ¶
79.
The
Court discusses Campos’ arguments regarding the evidence and determines that “Campos has not carried
his burden on appeal to demonstrate that the trial court’s ruling was
erroneous.”
At ¶
80.
On appeal, Campos fails to explain how evidence of Serbeck’s prior lies and violent actions serves a non‐character purpose. Indeed, in arguing that such evidence is relevant, Campos emphasizes that the evidence is “highly probative” because it would establish Serbeck’s “propensity for violence” and make it more probable that Serbeck lied on the witness stand. To establish that specific evidence is admissible under rule 404(b), Campos must show that the evidence “has independent relevance that does not depend on . . . propensity.”
At ¶
85.
Because Campos has not established that the evidence was offered for a non‐character purpose, its admission is governed by rules 404(a), 405, and 608 of the Utah Rules of Evidence. “Rule 404(a) of the Utah Rules of Evidence acts as a general bar to ‘[e]vidence of a person’s character . . . for the purpose of proving action in conformity therewith on a particular occasion.’” State v. Leber, 2009 UT 59, ¶ 13, 216 P.3d 964 (omission in original) (quoting a prior but substantively similar version of rule 404(a)); see also Utah R. Evid. 404(a)(1); id. R. 404(b)(1). One exception to this general rule “allow[s] an accused to offer evidence of a ‘pertinent trait of character’ either of himself or of an alleged victim.” Leber, 2009 UT 59, ¶ 13 (quoting a prior but substantively similar version of rule 404(a)). A victim’s propensity for violence is “pertinent” to self‐defense under this exception and is therefore admissible under rule 404(a). See Utah R. Evid. 404(a)(2)(B); Leber, 2009 UT 59, ¶¶ 13, 15 n.3.
At ¶
86.
“Once character evidence is deemed admissible under rule 404(a), the methods of proving character are limited by rule 405.” Leber, 2009 UT 59, ¶ 13. Rule 405(a) generally limits character evidence to “testimony about the person’s reputation” and “testimony in the form of an opinion.” Utah R. Evid. 405(a). However, “[o]n cross‐examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.” Id. Thus, “[r]eputation and opinion witnesses may only be asked about specific instances of conduct on cross‐examination for the purpose of challenging the credibility of the reputation or opinion testimony.” Leber, 2009 UT 59, ¶ 20. “On the other hand, rule 405(b) allows for proof of character through the use of ‘[s]pecific instances of conduct,’” but “only where character is an ‘essential element of a charge, claim, or defense.’” Id. ¶ 13 (quoting a prior but substantively similar version of rule 405(b)). “However, 405(b) seldom applies in criminal cases, and ‘self defense does not place . . . character at issue.’” . . .
At ¶
87.
Because a defendant’s or victim’s violent character is “pertinent” to self‐defense under rule 404(a) but not “at issue” under rule 405(b), see Leber, 2009 UT 59, ¶¶ 15 n.3, 23, evidence is limited to reputation and opinion testimony on direct examination, and inquiry into relevant specific instances on cross‐examination. See Utah R. Evid. 404(a); id. R. 405. However, inquiry into specific instances on cross‐examination is limited to “character witness[es]”—that is, witnesses who offer “testimony about the person’s reputation” or “testimony in the form of an opinion” relevant to the pertinent character trait. See id. R. 405(a); Leber, 2009 UT 59, ¶ 20 & nn.4–5.
At ¶
88.
In the present case, therefore, Campos was free to present witnesses to offer reputation or opinion testimony as to Serbeck’s character for violence. But, as the trial court correctly noted, Campos could not use his character witnesses to provide testimony of specific instances showing Serbeck’s character for violence. Nor could Campos cross‐examine Serbeck about such specific instances, because Serbeck did not testify as a character witness concerning his own character for peacefulness.
At ¶
89.
On crossexamination of Serbeck, rule 608 would allow Campos to inquire into specific instances probative of Serbeck’s character for untruthfulness. But the trial court has discretion to allow or disallow such cross‐examination. See id. R. 608(b). If the issue arises again in a new trial, the court should make this determination based on relevance and the principles of rule 403.
At ¶
91.
Blosch v. Natixis, 2013 UT App. 214, No.
20110315-CA (August 29, 2013)
ISSUES:
Third-party Beneficiary Status
Judge
Christiansen,
Kirk Blosch, Martin W. Merrill, and David O’Bagy appeal from a jury verdict finding that Blosch was not a third‐party beneficiary of a loan agreement between Natixis Real Estate Capital, Inc. (Natixis), Schoolhouse Downtown, LLC, and Schoolhouse Downtown’s principal (Borrower). Blosch also challenges the trial court’s denial of his pretrial motion for summary judgment. We affirm.
At ¶
1.
The
Court reviews the background of this case. Specifically, Blosch’s loan to
Borrower contingent on Nextaxis’ willingness to release escrow funds to
borrower and Blosch via a joint check;
Nextaxis’ agreement to do so; Nextaxis’ assignment of Borrowers’ loan
agreement, including the escrow funds, to a third party; the third party’s
direct transfer of the escrow funds to Borrower, and Borrower’s failure to
repay Blosch.
At ¶¶
2-10.
Nextaxis
argues that Blosch’s appeal is untimely because its Rule 59 motion did not have
a memorandum attached, and therefore, it did not toll the 30 time period. The Court rules:
Tolling of the time to appeal under rule 4 is triggered when a party “timely files in the trial court” one of the motions enumerated under rule 4(b), such as a rule 59 motion for a new trial. Id. Failure to submit a supporting memorandum as required by rule 7 of the Utah Rules of Civil Procedure may render such a motion insufficient. Menzies v. Galetka, 2006 UT 81, ¶ 68, 150 P.3d 480. However, “[a] party can timely move the court for relief despite the fact that its motion may be insufficient.”
At ¶
17.
We agree that the trial court’s denial of Blosch’s motion for summary judgment was based on a purely legal issue. However, we disagree that the trial court never determined that the Joint Check Letter was ambiguous. It is well established that “[b]efore the [trial] court may consider extrinsic evidence of the parties’ intent . . . it must first conclude that the contract is facially ambiguous.” Wilson v. Johnson, 2010 UT App 137, ¶ 8, 234 P.3d 1156 (citing Daines v. Vincent, 2008 UT 51, ¶ 51, 190 P.3d 1269). If the trial court determines that the language of an agreement is facially ambiguous as a matter of law, “the intent of the parties is a question of fact.” Id. In light of this rule, we interpret the trial court’s ruling as implicitly finding the Joint Check Letter ambiguous as a matter of law as to whether the parties intended that agreement to modify the Loan Agreement so as to make Blosch a third‐party beneficiary. . . . As a result of its ruling, the trial court denied summary judgment because the disputed material facts concerning the intent of the Joint Check Letter could only be determined by the jury, and Blosch was therefore not entitled to judgment as a matter of law. . . .
At ¶
22.
. . . “A contractual term or provision is ambiguous if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies.” Strohm v. ClearOne Communications, Inc., 2013 UT 21, ¶ 34 (citation and internal quotation marks omitted). “[F]acial ambiguity with regard to the language of the contract . . . is a question of law, while the intent of the parties is a question of fact.” Wilson, 2010 UT App 137, ¶ 8.
At ¶
25.
With respect to Blosch’s status as a third‐party beneficiary of the Loan Agreement, “[a] third party may claim a contract benefit only if the parties to the contract clearly express an intention to confer a separate and distinct benefit on the third party.” Bybee v. Abdulla, 2008 UT 35, ¶ 36, 189 P.3d 40 (citation and internal quotation marks omitted). For the Joint Check Letter to unambiguously show that the parties intended to make Blosch a third‐party beneficiary of the Loan Agreement, “[t]he contract must be undertaken for the plaintiff’s direct benefit and the contract itself must affirmatively make this intention clear.” See SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT 54, ¶ 50, 28 P.3d 669 (emphasis added).
At ¶
26.
The operative language of the Joint Check Letter provides, “Upon satisfaction of all requirements outlined in the Loan Documents, [Natixis] will release the escrow funds associated with the Ruth’s Chris restaurant via a check issued to both [Borrower] and Mr. Blosch.” Blosch argues that this language unambiguously demonstrates Natixis’s and Borrower’s intent to make Blosch a third‐party beneficiary of the Loan Agreement. However, we see nothing in the language of the Joint Check Letter from which Natixis and Borrower’s intent in entering into the agreement can be ascertained. Whether or not Natixis and Borrower intended the Joint Check Letter for Blosch’s “direct benefit,” the language of the Joint Check Letter itself does not “affirmatively make this intention clear.” See id. ¶ 50. This “facial deficiency” is highlighted when compared with joint payment agreements held to unambiguously create a third‐party beneficiary status.
At ¶
27.
We conclude that the Joint Check Letter is ambiguous as to whether the intent of the parties in entering into the agreement was to directly benefit Blosch as a third‐party beneficiary. The operative language of the Joint Check Letter contains no expression of intent to benefit Blosch, and instead merely directs that “[u]pon satisfaction of all requirements outlined in the Loan Documents, [Natixis] will release the escrow funds associated with the Ruth’s Chris restaurant via a check issued to both [Borrower] and Mr. Blosch.” By comparison, the language of the joint payment agreement in Gender [an Oregon case discussed in paragraph 28] demonstrated the parties’ intent to enter into the agreement to “allow[ Gender] to collect the sum of $225,000.00 for work performed by their group on this project,” due to the “substantial amount of work” performed by Gender, and the “financing needs” of Eidal. 929 P.2d at 1036. Absent a similarly specific and clear expression of the parties’ intent to benefit a third party by entering into the agreement, we cannot read the plain language of the Joint Check Letter, which merely directs the manner in which payment under a contract shall be made, as clearly expressing an intent by the parties to assume an enforceable obligation to the third‐party joint payee. See Eastern Aviation, 8 Cal. Rptr. 2d at 358; Bybee, 2008 UT 35, ¶ 36. While there may be other evidence extrinsic to the Joint Check Letter from which the parties’ intent could be determined, that is a factual question and is inappropriate for decision on summary judgment. Thus, the trial court properly concluded that the Joint Check Letter was ambiguous as a matter of law, and the trial court’s denial of summary judgment was therefore correct.
At ¶
30.
Blosch primarily attacks the sufficiency of the Loan Officer’s testimony at trial regarding the Loan Officer’s knowledge and intent—and therefore Natixis’s knowledge and intent—in drafting the Joint Check Letter. Blosch argues that this evidence of Natixis’s intent is legally insufficient for the jury to find that Blosch was not a third‐party beneficiary of the Loan Agreement because the language of the Joint Check Letter unambiguously establishes Natixis and Borrower’s intent to make Blosch a third‐party beneficiary, and Natixis and Borrower had the right to modify the provision of the Loan Agreement prohibiting third‐party beneficiaries. We have determined that the Joint Check Letter did not unambiguously establish Natixis and Borrower’s intent to make Blosch a third‐party beneficiary of the Loan Agreement. Therefore, because the Joint Check Letter is ambiguous as to the parties’ intent, evidence that Natixis did not intend to make Blosch a third‐party beneficiary of the Loan Agreement, if believed by the jury, would be sufficient to support the jury’s verdict.
At ¶
32.
Here, the Loan Officer’s testimony that he believed the Loan Agreement prohibited third‐party beneficiaries, that he did not intend to modify the Loan Agreement by entering into the Joint Check Letter, that he drafted the Joint Check Letter to accommodate Borrower, and that he did not know that Borrower had asked for the Joint Check Letter to be drafted in order to facilitate a loan from Blosch, all tend to demonstrate that Natixis did not intend to make Blosch a third‐party beneficiary of the Loan Agreement. Additionally, the Loan Officer’s testimony that he believed Borrower could revoke the Joint Check Letter or otherwise direct the disbursement of funds notwithstanding the Joint Check Letter, can be understood to show that Natixis did not believe or intend the Joint Check Letter to create in Blosch an enforceable right to receive payment of the Escrowed Funds from Natixis once the terms of the Loan Agreement were satisfied. Based on this evidence regarding Natixis’s intent, we do not believe that the evidence so clearly preponderates against the jury’s verdict that reasonable people could not differ on the outcome of the case. See Watts, 2009 UT App 137, ¶ 26.
At ¶
33.
The
Court assumes a jury instruction regarding assignment of a loan was erroneous,
but determines it could not have affected the verdict.
At ¶¶
35-38.
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