In re Z.Z., 2013 UT App 215, No.
20110678-CA (September 6, 2013)
I
will not be summarizing this opinion because it is affirming a ruling
terminating parental rights.
State v. Binkerd, 2013 UT App 216, No.
20100978-CA (September 6, 2013)
Judge Orme,
Defendant Joshua Binkerd appeals from a conviction for manslaughter, a second degree felony. See Utah Code Ann. § 76-5-205(2) (LexisNexis 2012). We affirm.
At ¶ 1.
The Court reviews the background of this case.
At ¶¶ 2-20.
Given the applicable statutory scheme, Defendant argues that he cannot be convicted as an accomplice to manslaughter. We review statutory interpretations for correctness, granting no deference to the trial court. See Jeffs v. Stubbs, 970 P.2d 1234, 1240 (Utah 1998). Defendant argues that it was plain error for the court to include the instruction on manslaughter, a general intent crime, as a lesser included offense of murder and aggravated murder, both specific intent crimes, under the theory of accomplice liability.
At ¶ 21.
The accomplice liability statute provides that “[e]very person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.” Utah Code Ann. § 76-2-202 (LexisNexis 2012). Defendant argues that he “cannot be tried as an accomplice for a crime that is different from the conviction of the original actor.” We disagree.
At ¶ 24.
In State v. Crick, 675 P.2d 527 (Utah 1983), our Supreme Court explained that[a] defendant can be criminally responsible for an act committed by another, but the degree of his responsibility is determined by his own mental state in the acts that subject him to such responsibility, not by the mental state of the actor. This is clear from the language of § 76-2-202 . . . . Otherwise, a designing person could use a madman to kill another and mitigate his own responsibility by reference to the derangements of the person he had used to accomplish his purposes.Id. at 534 (emphasis in original). . . . Additionally, the Utah Supreme Court has held thatit is not necessary for the accomplice to have the same intent that the principal actor possessed as long as the accomplice intended that an offense be committed. An accomplice will be held criminally responsible to the degree of his own mental state, not that of the principal. This prevents an individual who is charged as an accomplice from escaping criminal liability by arguing that the principal actor had a lower intent or diminished capacity when the crime was committed. Therefore, the first step in applying accomplice liability is to determine whether the individual charged as an accomplice had the intent that an underlying offense be committed.State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628.
At ¶ 25.
[State v. Jeffs, 2010 UT 49, ¶ 50, 243 P.3d 1250] states that[i]n those cases where the defendant solicits, requests, commands, or encourages another to commit an offense, the accomplice liability statute incorporates the default mental state of recklessly, knowingly, or intentionally. However, in those cases where the defendant is charged with aiding another in the commission of the offense, the accomplice liability statute requires that the defendant’s aiding be “intentional.”
At ¶ 26.
In the instant case, there is ample evidence to support a determination that Defendant acted recklessly. . . .
At ¶ 28.
Defendant also argues that “[i]f [Defendant]’s acts were only ‘reckless,’ without intent that the murder occur, then he is not an accomplice to the underlying crime of murder” because murder is a specific intent crime. We do not view this argument as persuasive because “it is not necessary for the accomplice to have the same intent that the principal actor possessed as long as the accomplice intended that an offense be committed.” See State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628 (emphasis added). Nothing in the case law suggests that this standard applies only when the principal and the accomplice are both charged with crimes requiring the same intent, as Defendant contends.
At ¶ 29.
Defense counsel’s decision to request or not request a lesser included offense instruction at trial is afforded this same deference, in recognition of the fact that counsel is in the best position to gauge the defendant’s likelihood of defeating a charge outright and to weigh the possibility that acquittal is not in the cards but that a jury might be satisfied with a conviction on a lesser charge.
At ¶ 31.
. . . Requesting the instruction was not ineffective, even if the request then opened the door to an instruction for manslaughter. We agree with the trial court that “[b]y requesting this instruction on a lesser included offense, Defendant expanded the scope of possible ‘underlying offenses’ to include criminal homicide in all of its pertinent variations.” The critical issue in Defendant’s trial was his mental state. Once Defendant opened the door with the request for the negligent homicide instruction, it was a logical step for the court to include the intermediate mental state required of manslaughter. The evidence of record simply was not amenable to resolution only at the two extremes of the spectrum—i.e., either Defendant intended that his comments to Alvey would lead to the victim’s murder or he was merely negligent with respect to where his comments might lead. On the contrary, and as shown by the verdict actually reached by the jury, the evidence was also amenable to the conclusion that Defendant was reckless with respect to the end result of his remarks.
At ¶ 32.
Defendant argues that his trial counsel was ineffective for failing to argue that the prosecutor’s oral request for a manslaughter jury instruction violated rule 19 of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 19 (“At the final pretrial conference or at such other time as the court directs, a party may file a written request that the court instruct the jury on the law as set forth in the request. . . . The court shall inform the parties of its action upon a requested instruction prior to instructing the jury, and it shall furnish the parties with a copy of its proposed instructions, unless the parties waive this requirement.”). Counsel was not ineffective in this regard because the State had already submitted a written request for a manslaughter instruction prior to trial, thereby providing Defendant with pretrial written notice. Furthermore, rule 19 does not require written notice. See Utah R. Crim. P. 19. In any event, a court “may, over the objection of the defendant’s counsel, give any instruction that is in proper form, states the law correctly, and does not prejudice the defendant.” State v. Hansen, 734 P.2d 421, 428 (Utah 1986).
At ¶ 33.
State v. Baker, 671 P.2d 152 (Utah 1983), recognizes that different tests apply when the defendant requests an instruction for a lesser included offense as opposed to when the State makes such a request. See id. at 156–59. The State is entitled to a lesser included offense instruction when the elements of the lesser included offense are “necessarily . . . included within the original charged offense.” See id. at 156. Defendant could not have committed depraved indifference murder—the offense originally charged by the State—without having also committed reckless manslaughter. . . . Therefore, counsel was not ineffective for failing to argue that the State’s requested instruction violated Baker. . . .
At ¶ 34.
The trial court admitted at the hearing addressing Defendant’s motion for a new trial that it had originally misinterpreted the dangerous weapon enhancement. See Utah Code Ann. § 76-3-203.8 (LexisNexis 2012). While the court sentenced Defendant to a one-to-five-year increase on his sentence as a result of the enhancement, it acknowledged the error after Defendant raised the issue that the court had the discretion not to impose the full five-year enhancement. The court explained, however, that had it correctly understood the statute at the time of sentencing, it would have imposed the same sentence regardless—a sentiment that is entirely credible given the record before us. Therefore, the error was harmless. See State v. Hamilton, 827 P.2d 232, 240 (Utah 1992) (holding that an error is harmless if “there is no reasonable likelihood that the error affected the outcome of the proceedings”). The trial court has already accounted for its error, and there is no need to remand for resentencing.
At ¶ 35.
Bel Courtyard Investments v.
Wolfe, 2013 UT App 217, No. 20110483-CA (September 6, 2013)
ISSUE:
Personal Jurisdiction; Forcible Detainer; Candor to the Court; Alternative
Service
Judge
Roth,
Bel Courtyard Investments, Inc. (BCI) and Mark Bellini (collectively, the landlords) appeal the district court’s judgment in favor of Josh Wolfe and Maarie Isaacson (the tenants) for forcible detainer. We affirm and remand for calculation of attorney fees.
At ¶
1.
In support of his argument that the district court lacked personal jurisdiction, Bellini cites Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, 238 P.3d 1035. The issue in Arbogast was what actions a party must take to “appear” under rule 5(a) of the Utah Rules of Civil Procedure. Id. ¶¶ 16–17. Rule 5(a) entitles any party who has made a formal appearance to receive notice of “all pleadings and papers” filed in the litigation. Utah R. Civ. P. 5(a)(1), (a)(2)(B). In resolving the issue, the Utah Supreme Court held that a party must make a formal filing or submission to a district court in order to “appear” for purposes of rule 5(a). Arbogast, 2010 UT 40, ¶¶ 33–34. Bellini argues that because he never filed an answer or other formal submission with the court in his individual capacity, “he made no appearance to grant the district court jurisdiction over him.”
At ¶
12.
Arbogast, however, does not control the result in this case because whether a party has triggered its right to notice under rule 5(a) is analytically distinct from the broader issue of personal jurisdiction presented here. “It is axiomatic that a court acquires power to adjudicate by proper service of process[,] which imparts notice that the defendant is being sued and must appear and defend or suffer a default judgment.” Meyers v. Interwest Corp., 632 P.2d 879, 880 (Utah 1981). Indeed, “‘it is service of process, not actual knowledge of the commencement of the action, which confers jurisdiction.’” Saysavanh v. Saysavanh, 2006 UT App 385, ¶ 25, 145 P.3d 1166 (quoting Murdock v. Blake, 484 P.2d 164, 167 (Utah 1971)). But even where a party has not been adequately served with process, a defect in service can be waived if the party makes a general appearance. See Chen v. Stewart, 2004 UT 82, ¶¶ 66, 70, 100 P.3d 1177; see also Barber v. Calder, 522 P.2d 700, 702 n.4 (Utah 1974). Utah courts have recognized that “an appearance by the defendant for any purpose except to object to personal jurisdiction constitutes a general appearance.” Barlow v. Cappo, 821 P.2d 465, 466 (Utah Ct. App. 1991) (emphasis omitted); see also RM Lifestyles, LLC v. Ellison, 2011 UT App 290, ¶ 20, 263 P.3d 1152 (noting that defendants who “argue[d] the merits . . . waiv[ed] any argument related to lack of personal jurisdiction”).
At ¶
13.
. . . , Bellini, as president of BCI, had been involved in the litigation since its inception. He also knew as early as December 2009 that the tenants intended to assert claims against him at trial. And . . . never raised an objection to personal jurisdiction, the district court here found that Bellini “litigated the merits,” “never objected to . . . jurisdiction,” and “had a full and fair opportunity to defend [against the tenants’ claims] . . . in his personal capacity.” Additionally, . . . Bellini himself admits he was properly served before trial. See Utah R. Civ. P. 4(b)(ii) (“. . . ”). Consequently, Bellini voluntarily submitted to the district court’s jurisdiction, and the district court did not err when it issued a judgment against him individually.
At ¶
15.
The landlords’ arguments challenging the district court’s forcible detainer judgment are also unpersuasive. First, the landlords cannot rely on the restitution order as a shield to liability where they failed to disclose material facts to the district court and thereby undermined the rule meant to ensure that alternative process is adequate. Second, the district court’s findings of fact—which the landlords do not challenge on appeal—provide adequate support for a forcible detainer judgment. We therefore affirm the district court’s judgment on this issue.
At ¶
16.
The landlords cannot rely on the restitution order to protect them from liability. Unlawful detainer is “a summary proceeding” that provides “a severe remedy.” Parkside Salt Lake Corp. v. Insure-Rite, Inc., 2001 UT App 347, ¶ 18, 37 P.3d 1202 (citation and internal quotation marks omitted). Consequently, Utah courts have required strict compliance with the unlawful detainer statute to carry out the legislature’s goal of “quickly and clearly resolving conflicts over lawful possession of property between landowners and tenants.” Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 22, 232 P.3d 999. More importantly, requiring strict compliance “obviate[s the temptation to] resort to self-help and violence,” Lindsey v. Normet, 405 U.S. 56, 71 (1972), and prevents landlords from disturbing actual possession of property “except by legal process,” Kassan v. Stout, 507 P.2d 87, 89 (Cal. 1973) (in bank) (internal quotation marks omitted).
At ¶
17.
Given the fast pace of unlawful detainer proceedings and the nature of the interests at stake, it is essential that the judicial process leading to eviction be as well informed and reliable as possible. For this reason, some courts have concluded that resort to legal process alone will not protect landlords from forcible detainer liability where there is a significant underlying irregularity implicating the integrity of the process. Compare Glass v. Najafi, 92 Cal. Rptr. 2d 606 (Ct. App. 2000), with Bedi v. McMullan, 206 Cal. Rptr. 578 (Ct. App. 1984). For example . . .
At ¶
18.
We are persuaded that under the circumstances of this case, the landlords are not entitled to invoke the court’s restitution order as a shield against forcible detainer liability. The district court’s findings of fact establish that the landlords failed to disclose material facts that called into question not only their entitlement to an order of alternative service but also whether the alternative service they convinced the court to authorize was “reasonably calculated, under all the circumstances, to apprise the [tenants]” of the eviction proceeding, Utah R. Civ. P. 4(d)(4)(B). Alternative service is justified “[w]here the identity or whereabouts of the person to be served are unknown and cannot be ascertained through reasonable diligence . . . or where there exists good cause to believe that the person to be served is avoiding service of process.” Id. R. 4(d)(4)(A). While rule 4 “does not require a plaintiff to exhaust all possibilities to locate and serve a defendant,” it does“require more than perfunctory performance,” and a plaintiff cannot “turn[] a blind eye” to readily available information. Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶¶ 19–20, 100 P.3d 1211 (citation and internal quotation marks omitted). A plaintiff who “‘stops just short of the place where if [he] . . . continued might reasonably be expected to uncover an address’” has not exercised reasonable diligence and is not entitled to an order authorizing alternative service. Bonneville Billing v. Whatley, 949 P.2d 768, 775 (Utah Ct. App. 1997) (quoting Parker v. Ross, 217 P.2d 373, 379 (Utah 1950) (Wolfe, J., concurring specially)).
At ¶
19.
As we have already discussed, BCI moved the district court to authorize alternative service based on an affidavit suggesting that the tenants were avoiding service without revealing that the service attempts had been during daytime hours over only two consecutive days. In addition, the landlords requested service by mail to an address where they knew the tenants had no mailbox, while at the same time failing to disclose the Lehi mailing address the tenants had given them. When the tenants then failed to respond, BCI obtained a default judgment and restitution order knowing that the tenants contested BCI’s right to do so under the PTFA. Having procured the order through a process that involved material nondisclosure at a significant stage of the proceedings, BCI cannot rely on the resulting order of restitution as a shield against forcible detainer liability. See id. at 773 . . .
At ¶
20.
Without that shield, the district court’s findings of fact support the conclusion that the landlords committed forcible detainer. Forcible detainer occurs when (1) one party “hold[s] and keep[s] by force, or by menaces and threats of violence, the possession of any real property, whether acquired peaceably or otherwise,” Utah Code Ann. § 78B-6-801(2)(a) (LexisNexis 2012), and (2) the tenant is “peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer,” id. § 78B-6-809(1). A landlord who “turns a tenant in peaceable possession out by means of force, fraud, intimidation, stealth, or by any kind of violence . . . makes himself liable to that tenant for damages.” Freeway Park Bldg., Inc. v. Western States Wholesale Supply, 451 P.2d 778, 781 (Utah 1969). And under the statute, “[t]his is true even if that tenant’s possession is wrongful.” Pentecost v. Harward, 699 P.2d 696, 700 (Utah 1985). This court has previously held that a landlord committed forcible detainer when he wrongfully changed locks and threatened to call the police if his tenant did not leave the premises. See Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt., Inc., 2005 UT App 326, ¶¶ 23–24, 121 P.3d 24, aff’d, 2006 UT 45, 143 P.3d 278.
At ¶
21.
Howick v. Salt Lake City
Corp., 2013 UT App 218, No. 20110848-CA (September 6, 2013)
Judge Voros,
Jodi Howick was employed by Salt Lake City Corporation as general counsel to the Salt Lake City International Airport. The principal questions on appeal are (1) whether Howick was a merit employee under the Utah Municipal Code, (2) if so, whether she could legally forfeit merit protection, and (3) if so, whether she did. We answer the first and second questions in the affirmative. We remand for the district court to answer the third question.
At ¶ 1.
In 1992, the City hired Howick as counsel for the Salt Lake City International Airport. In 1998, the City created a new position, “Appointed Senior City Attorney,” in response to the salary dissatisfaction of some city attorneys. The position came with a significant pay increase, but the City required employees applying for the position to sign a document titled “Salt Lake City Corporation At-Will Employment Disclaimer.” The Disclaimer purported to terminate the signer’s merit employee status: . . .
At ¶ 2.
The City contends that the district court erred by failing to fully analyze the issues before it, ruling that Howick’s claims were not time-barred, concluding that Howick was a merit employee, and rejecting the City’s defenses of waiver and estoppel based on the Disclaimer. Howick counters that the district court should have granted her summary judgment motion in its entirety and reinstated her as an employee of the City.
At ¶ 6.
At the heart of this dispute is what we will refer to as the Merit Protection Statute, as it existed in 1998. The statute mandates merit protection for all municipal employees, subject to several enumerated exceptions. See Utah Code Ann. § 10-3-1105 (Michie 1996). The next statutory section provides that no protected municipal employee may be discharged or demoted “because of his politics or religious belief, or incident to, or through changes, either in the elective officers, governing body, or heads of departments.” Id. § 10-3-1106(1). That section also sets forth a termination and appeals procedure applicable to protected employees. See id. § 10-3-1106(2)–(7).
At ¶ 8.
The main substantive questions raised by this appeal are (1) whether Howick qualified as a merit employee under the Merit Protection Statute and (2) if so, whether she forfeited its protections by accepting a promotion to an “at‐will professional position” and signing the Disclaimer. However, before we reach these questions we must address threshold procedural issues concerning (1) whether the district court made all rulings necessitated by our decision in Howick II and (2) whether Howick’s claim is barred by the statute of limitations.
At ¶ 9.
The district court ruled that the question of liability “comes down to an issue of statutory construction.” It read the Merit Protection Statute as mandatory, “meaning that the provisions of the merit system apply to all employees except those that are specifically exempted.” The court further determined that “there are simply no facts in the record from which to conclude that Ms. Howick was either a department head or a superintendent”; thus, it concluded, she was not specifically exempted by the statute. Finally, the court ruled that “because of the language of the statute, the parties cannot create an exception to the statute by contract, waiver, or estoppel.” Allowing a city and its employee to expand the statutory exceptions to merit protection, the court reasoned, would permit a city to “pressure employees to enter into a contract giving up their rights as merit employees, while paying them only minimal compensation for doing so. This could effectively end merit employment as mandated by the legislature.”
At ¶ 11.
The Court rejects the City’s statute of limitations
arguments
At ¶¶ 13-18.
The Merit Protection Statute provided that all municipal employees are merit employees except for those holding positions specifically enumerated:All appointive officers and employees of municipalities, other than members of the police departments, fire departments, heads of departments, and superintendents, shall hold their employment without limitation of time, being subject to discharge or dismissal only as hereinafter provided.Utah Code Ann. § 10-3-1105 (Michie 1996).
At ¶ 20.
The question before us is whether Howick fit within the exceptions for “heads of departments” or “superintendents” who are exempt from this protection. See Utah Code Ann. § 10-3-1105. This question is governed by her actual duties, not her job title. See Pearson v. South Jordan City, 2012 UT App 88, ¶ 25, 275 P.3d 1035.
At ¶ 22.
The Court reviews the evidence and determines that the trial
court did not error in determining that Petitioner was a merit employee prior
to signing the waiver.
At ¶¶ 23-28.
Having determined that Howick was covered by the protections of the Merit Protection Statute, we must now decide whether those protections may be forfeited by contract, waiver, or estoppel. Howick contends that permitting cities to contract around the Merit Protection Statute would undermine the important public policy it advances.
At ¶ 29.
“People are generally free to bind themselves pursuant to any contract, barring such things as illegality of subject matter or legal incapacity.” Ockey v. Lehmer, 2008 UT 37, ¶ 21 n.12, 189 P.3d 51 (brackets, citation, and internal quotation marks omitted). Accordingly, “an enforceable contract can coexist with a statute that may conflict with its terms so long as the contract does not offend the public policy to which the statute gives voice.” Lee v. Thorpe, 2006 UT 66, ¶ 22, 147 P.3d 443. “For a contract to be void on the basis of public policy, there must be a showing free from doubt that the contract is against public policy.” Ockey, 2008 UT 37, ¶ 21 (citation and internal quotation marks omitted). Our supreme court in Ockey considered two factors in determining whether a contract was against public policy. The first was whether the statute specifically declared contrary contracts to be void; the second was whether the contract offended public policy or harmed the public as a whole, as opposed to the contracting party only. Id. ¶¶ 19, 23.
At ¶ 34.
With respect to the first factor, the City rightly observes that unlike many Utah statutes, the Merit Protection Statute contains no express anti-waiver provision. . . . The first Ockey factor thus weighs in favor of permitting merit employees to contract away their merit protection.
At ¶ 35.
The second factor is whether the contract offends public policy or harms the public as a whole. See Ockey, 2008 UT 37, ¶¶ 21–23. As explained above, civil service systems generally, and merit protection statutes of the type at issue here specifically, were designed to end the “patronage practice” or “spoils system” in government. In addition, merit-protected government attorneys are likely to feel greater freedom than at-will attorneys to candidly advise their clients or take other actions as required by the Utah Rules of Professional Conduct. These protections benefit the public as a whole, not merely the protected employee.
At ¶ 36.
The Court rejects application of the 2012 amendment to the
Merit Protection Statute to this case because it does not apply retroactively.
At ¶¶ 37-41.
But neither is the 2012 amendment irrelevant. Although it is “inapplicable to this case,” we regard it “as a reflection of current legislative views on public policy.” Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1246 n.2 (Utah 1990). We can hardly agree that Howick has made “a showing free from doubt that the contract is against public policy,” see Ockey v. Lehmer, 2008 UT 37, ¶ 21, 189 P.3d 51, when current statutory law expressly authorizes the contract, see Utah Code Ann. § 10-3-1105(2)(e) (LexisNexis 2012). While Utah may in the past have had a consistent public policy against permitting municipalities to induce their employees to waive merit protection, it no longer does. On the contrary, our statutory law now expressly permits such waivers within stated limits.
At ¶ 42.
In sum, neither Ockey factor is satisfied here. The Merit Protection Statute does not specifically declare contrary contracts to be void, nor does this case present a showing free from doubt that the contract offends public policy. See Ockey, 2008 UT 37, ¶¶ 21, 23. Accordingly, the Merit Protection Statute did not prohibit Howick from contracting away her merit protection.
At ¶ 43.
The district court understandably concluded that no contract, waiver, or estoppel could circumvent the protections afforded by the Merit Protection Statute. It therefore did not adjudicate those issues. But because we conclude that the Merit Protection Statute does not foreclose those defenses, we remand to the district court for plenary resolution of those issues.
At ¶ 44.
McCloud v. State, 2013 UT App 219, No.
20110794-CA (September 6, 2013)
ISSUES:
Physician-Patient Privilege
Judge Thorne,
This matter originated in the district court in 2007 when appellee Larry McCloud sought postconviction relief from his 2001 convictions for sexually abusing a child (Victim). Upon McCloud’s motion, the district court authorized the issuance of subpoenas for the production and in camera review of certain records from Victim’s treatment with various medical and psychiatric care providers. The State brings this interlocutory appeal challenging the district court’s order authorizing the subpoenas. We reverse the district court’s order and remand this matter for further proceedings.
At ¶ 1.
In 2007, McCloud filed a petition for relief in the district court pursuant to Utah’s Post-Conviction Remedies Act. See Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis 2012 & Supp. 2013). After a series of summary judgment motions and resulting amendments to McCloud’s petition, three arguments for relief remained. One of these arguments was that McCloud had received ineffective assistance of appellate counsel following his 2001 trial because appellate counsel had failed to argue that McCloud’s trial counsel provided ineffective assistance by failing to obtain records from various doctors and therapists to whom Victim had disclosed the abuse.
At ¶ 4.
In 2011, McCloud renewed a previous discovery motion for the issuance of subpoenas duces tecum directing the production of Victim’s records from various doctors and therapists for an in camera review by the district court. McCloud’s discovery motion asserted that the records “pertain to a substantive claim in the Petition” and “are necessary for the full presentation of the prejudice prong of the Sixth Amendment claim in this case.” The State opposed the motion, as did Victim, who had intervened in the
case.
At ¶ 5.
After a hearing, the district court granted McCloud’s motion. . . .
At ¶ 6.
The State challenges the district court’s conclusion that McCloud established his entitlement to the production and in camera review of Victim’s records. Specifically, the State argues that the district court erred in concluding that the possibility of inconsistent statements by Victim to her various doctors, therapists, and counselors constituted an exception to her patient privilege. See Utah R. Evid. 506(d)(1)(A) (stating that no privilege exists in proceedings where a patient’s condition is an element of a claim or defense). The State further argues that McCloud failed to provide adequate extrinsic evidence to demonstrate the required “reasonable certainty” that Victim’s records contained exculpatory evidence. See State v. Worthen, 2009 UT 79, ¶ 38, 222 P.3d 1144 (citation and internal quotation marks omitted).
At ¶ 8.
Rule 506 of the Utah Rules of Evidence provides that “[a] patient has a privilege, during the patient’s life, to refuse to disclose and to prevent any other person from disclosing information that is communicated in confidence to a physician or mental health therapist for the purpose of diagnosing or treating the patient.” Utah R. Evid. 506(b). However, rule 506 contains certain exceptions to the patient privilege, one of which is rule 506(d)(1)(A)’s directive that “[n]o privilege exists . . . [f]or communications relevant to an issue of the physical, mental, or emotional condition of the patient . . . in any proceeding in which that condition is an element of any claim or defense.” Id. R. 506(d)(1)(A). Rule 506(d)(1)(A) was the only privilege exception argued to the district court, and the district court apparently relied on that exception when it concluded that inconsistencies in Victim’s statements to her various care providers qualified as an exception to the patient privilege because they may have provided McCloud with a defense at his 2001 trial.
At ¶ 9.
In determining the applicability of rule 506(d)(1)(A), a district court must first “determine whether the patient suffers from a physical, mental, or emotional condition as opposed to mental or emotional problems that do not rise to the level of a condition.” State v. Lenkart, 2011 UT 27, ¶ 48, 262 P.3d 1. A qualifying condition “is not transitory or ephemeral.” Worthen, 2009 UT 79, ¶ 21. Rather, a condition must be “a state that persists over time and significantly affects a person’s perceptions, behavior, or decision making in a way that is relevant to the reliability of the person’s testimony.” Id.
At ¶ 10.
The district court did not expressly identify a specific “physical, mental, or emotional condition” to support its ruling. Rather, the district court stated only that “[i]nconsistencies in [Victim’s] disclosures may have provided a defense to the petitioner at the time of trial.” We cannot agree with the district court that the possibility that patient records contain inconsistent statements made by the patient qualifies as an exception under rule 506(d)(1)(A).
At ¶ 11.
. . . The district court’s stated rationale suggests only that inconsistent statements were possible because Victim had spoken to multiple caregivers over a lengthy period of time. While that possibility certainly exists, it does not constitute a physical, mental, or emotional condition for purposes of rule 506(d)(1)(A).
At ¶ 12.
The State also argues that McCloud failed to provide the district court with extrinsic evidence demonstrating a reasonable certainty that Victim’s records contain exculpatory information. A party seeking to obtain in camera review of records governed by rule 506 “must show with reasonable certainty that the records contain exculpatory evidence that will be favorable to [a claim or] defense.” State v. King, 2012 UT App 203, ¶ 32, 283 P.3d 980 (citation and internal quotation marks omitted). This is a stringent test, necessarily requiring some type of extrinsic indication that the evidence within the records exists and will, in fact, be exculpatory. The difficulty in meeting this test is deliberate and prudent in light of the sensitivity of these types of records and the worsening of under-reporting problems in the absence of a strong privilege.State v. Blake, 2002 UT 113, ¶ 19, 63 P.3d 56 (footnote omitted).
At ¶ 14.
Here, McCloud presented the district court with several different types of extrinsic evidence to show that Victim’s records would contain statements pertaining to the abuse. He provided billing records showing the specific times that Victim had met with various care providers. He also presented a March 13, 1989 diary entry, allegedly written by Victim’s grandmother, stating that Victim told her therapist that McCloud had “touched her (while in the pool) where he shouldn’t.” Finally, he relied on Victim’s own statements from the preliminary hearing and trial indicating that she had revealed his abuse to several care providers.
At ¶ 15.
This extrinsic evidence is likely sufficient to demonstrate a reasonable certainty that Victim did disclose McCloud’s abuse to one or more care providers. But that alone is not enough to overcome Victim’s patient privilege. Rather, McCloud was required to “show with reasonable certainty that the records contain exculpatory evidence.” King, 2012 UT App 203, ¶ 32 (emphasis added) (citation and internal quotation marks omitted).
At ¶ 16.
. . . the mere possibility that the multiple reports contained material inconsistencies is too speculative to meet the “reasonable certainty” requirement.
At ¶ 17.
In re D.M., 2013 UT App 220, No.
20120085-CA (September 6, 2013)
ISSUES: Sexual Abuse of a Child; Amendment of
Information; Evidence of Intent
D.M. appeals from the juvenile court’s order adjudicating him delinquent on one count of sexual abuse of a child (Allegation III), a second degree felony when committed by an adult. See generally Utah Code Ann. § 76-5-404.1(3) (LexisNexis Supp. 2013). We affirm.
At ¶
1.
It is undisputed that the State failed to present evidence of oral–genital contact in support of Allegation III, and thus the allegation could not survive D.M.’s motion to dismiss as originally charged. However, the State responded to D.M.’s motion by asking the juvenile court to amend the charge to sexual abuse of a child, which has no element of oral–genital contact, and the juvenile court granted the State’s request. D.M.’s appellate brief does not address the effect of the juvenile court’s amendment of Allegation III on his motion to dismiss, nor does it raise any argument that the amendment was improper. Because the juvenile court amended Allegation III to charge sexual abuse of a child, we see no error in the juvenile court’s denial of D.M.’s motion to dismiss that allegation altogether.
At ¶
6.
D.M. had multiple opportunities to address and resolve the alleged confusion over the amendment to Allegation III prior to his adjudication for sexual abuse of a child as alleged in the amended allegation. Under these circumstances, D.M.’s complaint of unfair surprise that he was ultimately adjudicated for sexual abuse of a child is unavailing. . . .
At ¶ 8.
Although D.M. is correct that there was no direct evidence of his intent to gratify or arouse a sexual desire, intent “is a state of mind, which is rarely susceptible of direct proof.” State v. Robertson, 2005 UT App 419, ¶ 15, 122 P.3d 895 (citation and internal quotation marks omitted). In the absence of direct proof, intent “can be inferred from conduct and attendant circumstances in the light of human behavior and experience.” Id. (citation and internal quotation marks omitted). Such inferences are routinely employed in cases requiring proof of sexual intent. . . .
At ¶
10.
. . . In light of D.M.’s conduct in exposing and touching T.I.’s testicles and the “attendant circumstances,” see Robertson, 2005 UT App 419, ¶ 15 (citation and internal quotation marks omitted), we cannot say that the juvenile court’s inference that D.M. possessed a sexual intent “is so flawed as to render the inference clearly erroneous,” see In re K.O., 2010 UT App 155, ¶ 5 (citation and internal quotation marks omitted).
At ¶
11.
. . . we see no indication that the juvenile court failed to consider D.M.’s young age in determining that he possessed the requisite intent. Further, D.M. presents no Utah authority for the proposition that an eleven-year-old cannot possess sexual intent as a matter of law, nor did he present evidence below that eleven-year-olds in general—or himself in particular—are incapable of forming sexual intent. . . .
At ¶
12.
Maguire v. Bigelow, 2013 UT App 221, No.
20130597-CA (September 6, 2013)
ISSUE:
Appeal of Probation Board’s decision regarding full term of sentence.
I
will not summarize this decision as it reviews and agency decision for abuse of
discretion.
In re E.S..., 2013 UT App 222, No. 20130461-CA
(September 6, 2013)
No comments:
Post a Comment