October 10, 2013 Utah Court of Appeals Case Summaries

In re H.S., 2013 UT App 239, No. 20120891-CA (October 10, 2013)

ISSUE: Effect of Mediation Settlement

Judge Christiansen,

A.S. (Mother) appeals from the juvenile court’s permanency order granting custody of H.S. (Child) to D.K.W. (Father). Mother argues that the court erred in interpreting and applying the permanency statute. See Utah Code Ann. § 78A-6-314(1)(a), (2)(a) (LexisNexis 2012). Mother also appeals the juvenile court’s denial of what Mother characterizes as her “custody motion,” arguing that the court violated her due process rights. We determine that the issues Mother raises on appeal are mooted by the parties’ stipulation. Accordingly, we dismiss Mother’s appeal.

At ¶ 1.

The Court outlines the facts, finds that Mother entered into a settlement agreement after filing the instant appeal, and that the settlement agreement moots the appeal.

At ¶¶ 2-13.

Cromwell v. A & S Construction, Inc., 2013 UT App 240, No. 20110385-CA (October 10, 2013)

ISSUES: Negligence, Subcontractor’s Duty to Another Subcontractor, General Contractor’s Duty of Care

Judge Christiansen,

Plaintiff Michael Cromwell challenges the district court’s grant of summary judgment to defendant Guns and Hoses, Inc. (Guns & Hoses) on Cromwell’s negligence claim. We affirm.

At ¶ 1.

The Court outlines the undisputed facts. Particularly, (1) Defendant A & S Construction, Inc. (A&S)’s status as general contractor building a home, (2) Defendant Guns & Hoses’ status as a subcontractor hired to install doors at the top of an elevator shaft, (3) Guns & Hoses’ installation of doors, (4) Plaintiff’s fall down the shaft, (5) Cromwell’s allegation that Gunes & Hoses owed a duty to secure the elevator shaft doors and warn of the danger of the elevator shaft,” (6) “Guns & Hoses secured the elevator shaft doors after installing them,” (7) “A&S confirmed that the elevator shaft doors were secured by Guns & Hoses after they were installed and before [Cromwell’s] fall,” (8) “[the homeowners] also confirmed that the elevator shaft doors were secured by Guns & Hoses after they were installed and before [Cromwell’s] fall, and (9) the trial court’s award of summary judgment to Guns & Hoses.

At ¶¶ 2-7

. . . our first inquiry is whether Guns & Hoses owed a duty to Cromwell at the time of his injury.

At ¶ 10.

“The creator of an artificial condition on land may be liable to others . . . for physical harm caused by its dangerous nature.” Id. ¶¶ 8–9 (adopting Restatement (Second) of Torts § 385 (1965)). Where a contractor is engaged to perform work without direct supervision and control by the owner, the contractor is responsible for preventing the risk arising out of the work, and administering and distributing it. See Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322. Thus, so long as the work remains in his control, a contractor “is subject to liability ‘as though he were the possessor of the land.’” See Gonzalez v. Russell Sorensen Constr., 2012 UT App 154, ¶ 23, 279 P.3d 422 (quoting Restatement (Second) of Torts § 384 (1965)); see also id. ¶ 30 (concluding that section 384 of the Restatement is an accurate statement of Utah law “governing the liability of general contractors for harm caused to others by conditions at a job site”). Where a general contractor hires a subcontractor to perform a part of the work, the subcontractor is liable in the same manner but “for only such harm as is done by the particular work entrusted to him.” See Restatement (Second) of Torts § 384 cmt. d (1965).

At ¶ 11.

Thus, a general contractor bears the risk of harm caused to others, including employees of a subcontractor, by the dangerous character of the structure being built while the work remains in the general contractor’s charge. See Gonzalez, 2012 UT App 154, ¶¶ 21, 30 (concluding that a subcontractor’s employee had pleaded sufficient facts supporting a direct negligence claim against the general contractor under section 384 of the Restatement to preclude summary judgment). While no Utah case specifically addresses a subcontractor’s duties to the employees of another subcontractor, we conclude that under Thompson v. Jess and section 384 of the Restatement, a subcontractor owes the same duty to employees of another subcontractor as it owes to any other person. See Thompson, 1999 UT 22, ¶ 13; Restatement (Second) of Torts § 384 & cmt. d; cf. Tallman, 1999 UT 55, ¶ 30 (holding that a subcontractor may have a duty under section 385 of the Restatement to employees of a general contractor). . . .

At ¶ 12.

However, a subcontractor’s liability to employees of another subcontractor is limited to “only such harm as is done by the particular work entrusted to him.” See Restatement (Second) of Torts § 384 cmt. d; accord Gonzales, 2012 UT App 154, ¶ 26 (“[S]ection 384 of the Restatement (Second) of Torts correctly states Utah law.”).

At ¶ 13.

The Court outlines the facts and holding in Weiser v. Bethlehem Steel Corp., 508 A.2d 1241 (Pa. Super. Ct. 1986), and finds it persuasive.

At ¶¶ 13-14.

Guns & Hoses contracted to perform door framing and installation of doors throughout the home, including the installation of doors at the access to the elevator shaft. Guns & Hoses therefore had a duty to exercise reasonable care to protect other workers from dangerous conditions in the work that Guns & Hoses had contracted to perform—installation of doors. Cf. id. at 1245. Thus, Guns & Hoses would be liable for injuries caused by deficient installation or other flaws in its own work that rendered that work dangerous to others. However, Guns & Hoses did not create the dangerous condition of the empty elevator shaft, nor did it exercise any control over the condition of the shaft. Cromwell concedes in his complaint that A&S “was solely responsible for maintaining an open empty elevator shaft behind a hinged bedroom door.” A&S controlled all work in and around the elevator shaft both before and after Guns & Hoses completed its work and turned it over to A&S. A&S directed Guns & Hoses to install the doors at the access to the empty elevator shaft. While Guns & Hoses had a duty to exercise reasonable care in installing the doors, that duty did not extend to ensuring the safety of other workers around the dangerous condition created by A&S.

At ¶ 15.

“Where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care.” Stuckman ex rel. Nelson v. Salt Lake City, 919 P.2d 568, 573 (Utah 1996) (citation and internal quotation marks omitted).

At ¶ 16.

We do not reach the question of whether Guns & Hoses owed a duty on this basis because Cromwell has not properly presented the issue to this court. . . . [and] Because Cromwell failed to preserve this issue before the district court . . . .

At ¶ 17.

[T]he disputed facts identified by Cromwell relate only to whether Guns & Hoses breached any duty it owed to him. Because Cromwell has not demonstrated that Guns & Hoses owed a duty to protect him from the injuries he sustained in the fall, any disputed facts relating to whether Cromwell breached a duty are not material.

At ¶ 19.

Guns & Hoses’ duty to exercise reasonable care in hanging doors at the access to an empty elevator shaft did not extend to securing that shaft to prevent harm to other workers on the site. Cromwell has not demonstrated that Guns & Hoses owed to him any other duty that would support his claim of negligence. The district court’s grant of summary judgment was therefore correct, and any error in the district court’s consideration of the facts was harmless.

At ¶ 21.

Card v. Card, 2013 UT App 241, No. 20120837-CA (October 10, 2013)

ISSUES: Consideration of “Supplemental Memorandum”; Identifying issues on appeal, amended notices of appeal

Per Curaim,

The sole issue raised in Card’s brief that relates to the order denying the motion to vacate is his claim that the trial court abused its discretion in striking his supplemental memorandum. The trial court noted that it struck the memorandum because it did not comply with rule 7(c)(1) of the Utah Rules of Civil Procedure. Card does not address the court’s reason for striking the memorandum and, as a result, has not demonstrated that the trial court erred.

At ¶ 4.

The rest of the issues raised in Card’s brief challenge the August 29 order dismissing the complaint. However, issues regarding the dismissal order are beyond the scope of this appeal, and this court lacks jurisdiction to consider them. An appeal may be taken from final judgments or orders “by filing a notice of appeal with the clerk of the trial court within the time allowed by rule 4.” Utah R. App. P. 3(a). The notice of appeal “shall designate the judgment or order, or part thereof,” from which the appeal is taken. Id. R. 3(d). “This requirement is jurisdictional because the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case.” In re B.B., 2002 UT App 82, ¶ 9, 45 P.3d 527. In this case, the notice of appeal identified the order denying Card’s motion to vacate the dismissal as the subject of the appeal.

At ¶ 5.

Furthermore, the amended notice of appeal filed on October 18, 2012, had no effect. In that notice, Card “amended” his initial notice of appeal to change the order appealed to the August 29 order and to change the scope of the appeal to “the entire judgment.” However, because the final order dismissing the complaint and the final order denying rule 60(b) relief are separate, final, and appealable orders, the orders require separate notices of appeal. The purported amendment to the notice of appeal from one order therefore was insufficient to independently invoke jurisdiction to appeal from a separate final order. In addition, even if the October amended notice were treated as a new notice, the appeal from the August 29 order would be untimely, and thus would not confer jurisdiction.

At ¶ 7.

State v. Youngblood, 2013 UT App 242, No. 20120440-CA (October 10, 2013)

ISSUES: Consecutive Sentences

Per Curiam,

Christopher Robert Youngblood appeals the sentence on his convictions of two counts of automobile homicide, a third degree felony. . . .

At ¶ 1.

“In determining whether state offenses are to run concurrently or consecutively, the court shall consider the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant.” Utah Code Ann. § 76-3-401(2) (LexisNexis 2012). “The sentencing decision of a trial court is reviewed for abuse of discretion.” State State v. Youngblood v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. A court abuses its discretion in sentencing “when it fails to consider all legally relevant factors or if the sentence imposed is clearly excessive.” See id. ¶ 28 (citations and internal quotation marks omitted). On appeal, a defendant has the burden to show that the trial court did not properly consider all of the factors in section 76-3-401(2). See id. Alternatively, a defendant may demonstrate an abuse of discretion on appeal if he or she can show “that no reasonable [person] would take the view adopted by the trial court.” Id. (alternation in original) (citation and internal quotation marks omitted).

At ¶ 2.

Youngblood has not demonstrated that the district court failed to consider all legally relevant factors. . . .

. . . Accordingly, Youngblood has not demonstrated that the district court abused its discretion in imposing a legal sentence of two consecutive terms of five years to life. Neither has Youngblood demonstrated that the district court imposed a sentence that was so inherently unfair or excessive under the circumstances of this case that no reasonable person would take the view adopted by the district court.

At ¶¶ 3-4.

State v. Gibson, 2013 UT App 243, No. 20120129-CA (October 10, 2013)

ISSUES: Sufficiency of the Evidence, Credibility of Witness Testimony

Judge Bench,

Jeremy Andrew Gibson appeals from his convictions for one count of theft by deception and one count of theft by receiving stolen property, both third degree felonies. . . .

At ¶ 1.

The Court summarizes the standard for determining whether the evidence is sufficient to support a conviction.

At ¶ 2.

This is ample evidence from which the jury could reasonably have found that Gibson pawned Victim’s wedding ring, and it is therefore adequate to defeat Gibson’s sufficiency of the evidence argument. . . . Nevertheless, Gibson argues that the case should not have been submitted to the jury due to insufficient physical evidence and unreliable witness testimony. We disagree.

At ¶ 4.

As to the physical evidence, Gibson argues that the pawn ticket contained only a generic description of the pawned items and that the State’s photographs of Victim’s wedding ring were too grainy and unfocused to allow for a positive identification. Gibson argues that, in light of these deficiencies in the physical evidence, the State failed to prove that the ring presented by the State at trial “was actually the ring that belonged to [Victim] or the ring Gibson pawned in August, 2009.” However, both Victim and her exhusband testified that the ring recovered from Big Dog Pawn and presented at trial was Victim’s wedding ring. The photographic evidence was not inconsistent with this testimony, and we agree with the State that the evidentiary value of the pawn ticket was not to establish that the ring belonged to Victim but rather to establish that it was Gibson who had pawned the ring. For these reasons, we reject Gibson’s argument that there was insufficient physical evidence to support his convictions.

At ¶ 5.

Gibson also argues that Victim’s testimony should be disregarded as inherently improbable. See generally State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288 (“Though the court must ordinarily accept the jury’s determination of witness credibility, when the witness’s testimony is inherently improbable, the court may choose to disregard it.”). Specifically, Gibson argues that despite Victim’s identification of the recovered ring as her wedding ring, her description of her wedding ring as “gold, [with] a center diamond, a round diamond with three diamonds on either side” was too generic to positively identify the recovered ring as her own. Gibson also argues that Victim’s testimony about dates was inconsistent because she initially testified that she still possessed the ring in December 2009 and could ultimately only identify a six-month span from June to December 2009 during which the ring had gone missing. These alleged deficiencies in Victim’s testimony notwithstanding, we cannot say that Victim’s ultimate identification of the recovered ring as her missing wedding ring was either “physically impossible” or “apparently false,” and we must therefore “accept the jury’s determination of [Victim’s] credibility.” See id.

At ¶ 6.

Taken as a whole, the State’s evidence in this case was not so “inconclusive or inherently improbable . . . that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime[s] for which he or she was convicted.” . . .

At ¶ 7.

Burningham v. Westgate Resorts, 2013 UT App 244, No. 20120469-CA (October 10, 2013)

ISSUES: Integrated Agreements, Parol Evidence, Mutual Mistake, Scrivener’s Error, Meeting of the Minds

Judge Bench,

Westgate Resorts, Ltd. (Westgate) appeals from the district court’s entry of summary judgment in favor of Jeff Burningham in Burningham’s action for the return of $89,900 that he had paid to Westgate as a deposit on the purchase of a condominium unit. We affirm.

At ¶ 1.

The Court outlines the background of this case, specifically the terms of the REPC entered between Plaintiff and Defendant, a dispute regarding the return of the deposit when Plaintiff sought to back out of the purchase, a second agreement which purported to be the entire agreement, and Plaintiff’s decision to opt out of performance and demand return of his deposit under the second agreement. 

At ¶¶ 2-9.

Westgate argues that the district court erred in granting summary judgment to Burningham because there were material fact questions as to the parties’ intent on the refundability of the $89,900. Specifically, Westgate argues that evidence of mutual mistake, scrivener’s error, and the lack of a meeting of the minds each raise a material fact question on the parties’ intent so as to preclude summary judgment. . . . .

At ¶ 10.

The district court concluded that, pursuant to paragraph 38.1 of the Agreement, Burningham timely terminated the Agreement and was entitled to a refund of his $89,900 deposit as a matter of law. Notwithstanding the language of paragraph 38.1, Westgate argues that extrinsic evidence—primarily the declaration of its sales agent—creates material questions of fact on its arguments of mutual mistake, scrivener’s error, and the parties’ failure to reach a “meeting of the minds.” We address each of these arguments in turn.

At ¶ 11.

Mutual Mistake

. . . A mutual mistake of fact can provide the basis for equitable rescission or reformation of a contract even when the contract appears on its face to be a “complete and binding integrated agreement.” West One Trust Co. v. Morrison, 861 P.2d 1058, 1061 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). “A mutual mistake occurs when both parties, at the time of contracting, share a misconception about a basic assumption or vital fact upon which they based their bargain.” The Cantamar, LLC v. Champagne, 2006 UT App 321, ¶ 38, 142 P.3d 140 (citation and internal quotation marks omitted). Westgate argues that its sales agent’s declaration, viewed in light of the parties’ course of conduct leading up to the Agreement, raises a fact question as to whether the inclusion of paragraph 38.1’s refund language in the Agreement was a mutual mistake.

At ¶ 12.

What the sales agent’s declaration does not do is provide evidence of Burningham’s intent, as opposed to Westgate’s understanding of that intent. The declaration does not provide the substance of any of the sales agent’s “discussions and interactions” with Burningham that would provide evidence of Burningham’s intent. Instead, the declaration relies on Burningham’s silence, stating that “[a]t no time did Burningham indicate . . . that he intended the [$89,900] to be a refundable deposit under the [Agreement] or that he interpreted it to be the ‘deposit’ referenced in Paragraph 38.1 of the [Agreement].”

At ¶ 14.

We agree with the district court that the sales agent’s declaration “does not show that Mr. Burningham was also mistaken on [the deposit] issue.” The declaration provides evidence only of unilateral mistake by Westgate, not the mutual mistake required to establish grounds for equitable rescission of the Agreement. We therefore conclude that the declaration did not raise a material question of fact on mutual mistake so as to preclude summary judgment.

At ¶ 15.

Westgate also argues that it was clearly entitled to retain the $89,900 under the REPC and that it would therefore “def[y] all logic and common sense” to make the money refundable under the terms of the Agreement. To the extent that this argument even bears on the question of mutual mistake, we observe that the proper disposition of the $89,900 under the REPC was disputed at the time the parties entered into the Agreement. By entering into the Agreement, Westgate obtained the release of Burningham’s fraud and related claims—which, if successful, would likely have entitled Burningham to an award of attorney fees in addition to the $89,900. Further, the Agreement did not only address the $89,900 but also provided another opportunity for Westgate to sell the condominium unit, which had lost substantial value over the course of the parties’ dealings. It may well have been in Westgate’s business interest to risk losing the deposit in order to divest itself of the devalued condominium unit for the price stated in the Agreement. Under these circumstances, we see nothing in the course of the parties’ conduct to support Westgate’s argument that both Westgate and Burningham were mistaken as to the Agreement’s refund language.

At ¶ 16.

Scrivener’s Error

Next, Westgate argues that there is a material issue of fact as to whether the Agreement contains a scrivener’s error. The alleged scrivener’s error is contained in the refund language of paragraph 38.1 of the Agreement, which states, “If Buyer timely terminates this Agreement under this Section 39.1, the deposit(s) paid shall be returned to Buyer . . . .” (Emphasis added.) Westgate argues that the district court erred when it failed to consider extrinsic evidence regarding the effect of the alleged scrivener’s error.

At ¶ 17.

We see no error by the district court because Westgate failed to present any extrinsic evidence that the reference to “this Section 39.1” was intended to refer to any section or paragraph other than the existing paragraph 38.1 of the Agreement. For example, Westgate presented no testimony from the sales agent or anyone else that the Agreement was actually intended to refer to another section. . . .

At ¶ 18.

Under these circumstances, we see no material issue of fact on whether paragraph 38.1’s reference to “this Section 39.1” was a scrivener’s error. Accordingly, the district court did not err in characterizing the reference as an “obvious typographical error” that did not preclude summary judgment.

At ¶ 19.

Meeting of the Minds

Westgate’s final argument is that there is a disputed issue of material fact as to whether the parties reached a “meeting of the minds” on the meaning of “deposit(s) paid” as that term is used in paragraph 38.1 of the Agreement. Under paragraph 38.1, deposits paid were to be refunded to Burningham upon his timely termination of the Agreement. However, Westgate argues that the parties had very different intentions as to whether the $89,900 constituted a refundable deposit “paid” under the Agreement—as opposed to money “already deposited” under the REPC—and, thus, that there was never a meeting of the minds on this issue.

At ¶ 20.

Westgate correctly identifies a “meeting of the minds” as a necessary element of contract formation. See, e.g., Terry v. Bacon, 2011 UT App 432 , ¶ 21, 269 P.3d 188 (“Under general contract law, it is fundamental that there be a meeting of the minds as to all essential features of a contract.”). “[T]his meeting of the minds must be spelled out, either expressly or implicitly, with sufficient detail to be enforced.” Republic Grp., Inc. v. Won-Door Corp., 883 P.2d 285, 294 (Utah Ct. App. 1994). Here, the terms of the parties’ agreement are contained in a written contract, the Agreement, and we look to that document to evaluate whether the parties reached the required meeting of the minds on the deposit issue. . . .

At ¶ 21.

The Agreement clearly states that the purchase price for the condominium unit was $462,500, and it identifies only one deposit—the “Initial Deposit” of $89,900. The due date for the deposit is expressed as “Already deposited.” The Agreement then identifies multiple circumstances in which the deposit would be refunded to Burningham, including Burningham’s inability to obtain financing, Westgate’s inability to provide clear title, default by Westgate, unremedied casualty loss to the condominium unit prior to closing, and termination of the Agreement by Burningham under paragraph 38.1. These provisions all use slightly different terminology to describe the deposit refund: “deposit(s) hereunder shall be returned to Buyer,” “a full refund of Buyer’s deposit,” “the return of Buyer’s deposits,” “all deposits shall be returned to the Buyer,” and paragraph 38.1’s “deposit(s) paid shall be returned to Buyer.”

At ¶ 22.

Even on summary judgment, Westgate’s meeting of the minds argument must be evaluated against these provisions of the Agreement. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶¶ 11–14, 307 P.3d 650 (affirming summary judgment because affidavit of party’s intent was insufficient to create fact question in light of unambiguous writings to the contrary). Westgate’s argument, supported by the sales agent’s declaration, is that Westgate always understood the $89,900 to represent a nonrefundable credit against the price of the condominium unit. This understanding is flatly contradicted by the Agreement, which states that $89,900 was a deposit rather than a credit and was refundable in multiple circumstances, including Burningham’s timely termination of the contract pursuant to paragraph 38.1.

At ¶ 23.

. . . Given these principles [that all parties are deemed to have read an understood a contract they sign] and the clear refund language contained in the Agreement, we have no difficulty in concluding that, legally speaking, Westgate and Burningham reached a meeting of the minds on the deposit issue when they both executed the Agreement.

At ¶ 24.

State v. Garrido, 2013 UT App 245, No. 20100789-CA (October 10, 2013)

ISSUES: Sixth Amendment Confrontation Rights, Hearsay, Admissibility of Pretrial Testimony, Unavailability of a Witness, Inquiry into New Defense Counsel, Merger

Judge Orme,

Defendant Gustavo Demetrio Garrido appeals from convictions for one count of assault, a third degree felony, see Utah Code Ann. § 76-5-102 (LexisNexis 2012); five counts of domestic violence in the presence of a child (three third degree felonies and two class B misdemeanors), see id. § 76-5-109.1(2), (3); one count of aggravated burglary, a first degree felony, see id. § 76-6-203; one count of aggravated kidnapping, a first degree felony, see id. § 76-5-302; one count of aggravated assault, a third degree felony, see id. § 76-5-103 (2008); and one count of violating a protective order, a class A misdemeanor, see id. § 76-5-108 (2012). Defendant argues that (1) this court improperly remanded his case back to the trial court to supplement the record, (2) the trial court erred in determining that a witness was unavailable and subsequently violated his Sixth Amendment rights by permitting preliminary testimony to be admitted, (3) the trial court admitted irrelevant and prejudicial hearsay statements, (4) the trial court failed to adequately inquire into Defendant’s request for new counsel, and (5) the trial court improperly instructed the jury by failing to merge some of the offenses. We affirm.

At ¶ 1.

The Court outlines the facts of this case, including Defendant’s violent crimes, victim’s refusal to testify, the trial court’s admission of victim’s preliminary hearing testimony, and a paralegal’s testimony of what victim told the prosecutor into evidence.

At ¶ 2-7.

The Court presents the issues and standards of review.

At ¶¶ 8-12.

The Court summarizes its previous ruling granting the State’s Rule 11 motion to supplement the record and refuses to revisit its determination.

At ¶¶ 13-15.

Sixth Amendment Rights

Prior testimony, such as that offered at a preliminary hearing, is admissible when a witness is found to be unavailable. Utah R. Evid. 804(b)(1). A witness is unavailable when, among other circumstances, the witness “refuses to testify” or “is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure the [witness’s] attendance.” Id. R. 804(a). We conclude that Victim was unavailable. Victim persistently refused to testify prior to trial, was resistant to service, and was absent when called. The trial court made a finding that Victim was unavailable and asked that a standin witness come forward to read Victim’s preliminary hearing testimony. Although Victim then suddenly appeared, she did so only to shout from the gallery that she would not be testifying. A bailiff went after her when she then fled the courtroom, but she had already disappeared. The trial court’s statement—“I’m not going to continue with this charade. We’re just going to take her testimony as it’s written.”—appears to be a simple affirmation of its prior, formal ruling of unavailability. But even if it was not, the “clear, uncontroverted” facts support a determination that she was not available to testify. . . .

At ¶ 17,

Defendant argues that even if Victim was unavailable, his Sixth Amendment rights were still violated. “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. But see State v. Timmerman, 2009 UT 58, ¶¶ 13, 16, 218 P.3d 590 (noting that there is no constitutional right to confrontation of witnesses at preliminary hearings). However, when a witness is unavailable, preliminary hearing testimony is admissible in a criminal trial if the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68 (2004). Defendant argues that he was denied his Sixth Amendment rights because trial counsel did not ask Victim any questions on cross-examination at the preliminary hearing. However, “[i]t is the opportunity to crossexamine that is guaranteed by the state and federal constitutions, not whether that opportunity is exercised.” State v. Nelson, 725 P.2d 1353, 1357 (Utah 1986) (emphasis added). While “[d]efense counsel may have elected to forego cross-examination[,] . . . that does not mean that the opportunity was not available.” Id.

At ¶ 18.

. . . While Defendant has assailed trial counsel’s refusal to cross-examine Victim at the preliminary hearing, we determine that it was a logical and routine choice, made to avoid to avoid the possibility of disturbing favorable testimony. Defendant’s Sixth Amendment rights were not violated when the preliminary hearing testimony was admitted because Defendant was provided the requisite opportunity for cross-examination at that stage of the proceedings. 

At ¶ 20.

Defendant also argues that the preliminary hearing testimony lacks the necessary constitutional protections of the Sixth Amendment because certain evidence was not discovered by trial counsel until after the preliminary hearing. Specifically, trial counsel became aware of Victim’s prior criminal convictions, vindictive statements Victim made about Defendant to the effect that she may have set him up or falsified charges against him, and other credibility and character evidence that trial counsel asserted he would have questioned her on during cross-examination had he known about it. However, even if the evidence discovered after the preliminary hearing means the preliminary hearing testimony was not as complete as it might have been, we conclude that any dereliction on counsel’s part did not prejudice Defendant. Counsel introduced the vindictive statements and attacked Victim’s credibility through another witness at trial, and the jury learned of Victim’s convictions through a stipulation. Although it may have been more convenient for Defendant had trial counsel discovered the evidence sooner, Defendant was not harmed by counsel’s ignorance of this information at the preliminary hearing because the evidence was discovered in time to be used at trial.

At ¶ 22.

Hearsay Statements

The State made a motion at trial to admit the out-of-court statements made by Victim to the prosecutor that were overheard on speakerphone by a paralegal. The trial court admitted the statements over Defendant’s objections under the state-of-mind exception found in rule 803 of the Utah Rules of Evidence. Defendant argues that the admission of these statements violated Defendant’s Sixth Amendment rights to confrontation. “[N]ontestimonial hearsay can be admitted under generally accepted exceptions to the hearsay rule without running afoul of the Sixth Amendment.” Salt Lake City v. Williams, 2005 UT App 493, ¶ 14, 128 P.3d 47. “The focus of the Confrontation Clause is on witnesses who bear testimony against the accused.” Id. ¶ 15. Here, Victim’s statements were not accusatory nor did they amount to bearing witness against Defendant. The statements repeated by the paralegal were simply declarations of Victim’s intention not to testify, with reference to her fear of Defendant as a reason for not doing so.

At ¶ 23.

Defendant argues that limiting instructions are a per se requirement to admitting out-of-court statements regarding the fear a victim has of a defendant. It is true that in homicide cases when a deceased victim’s mental state is not directly at issue, a limiting instruction must be given before statements related to a victim’s state of mind or his or her fear of the defendant can be admitted. State v. Wetzel, 868 P.2d 64, 68–69 (Utah 1993); State v. Auble, 754 P.2d 935, 937 (Utah 1988). And when a curative instruction is not deemed to be sufficient to overcome the potential for prejudice, the out-of-court statements simply will not be admitted. Wetzel, 868 P.2d at 68–69; Auble, 754 P.2d at 937. However, this case does not involve a homicide, and the statements were not related to Victim’s state of mind at or near the time of the attack.

At ¶ 24.

Further, out-of-court statements related to a victim’s state of mind are admissible when a victim’s mental condition is at issue in the trial or is “relevant to prove or explain her subsequent acts or conduct.” See State v. Wauneka, 560 P.2d 1377, 1379 (Utah 1977). . . . Because Victim’s credibility had become an issue at trial, it was not error for the trial court to admit nontestimonial out-of-court statements that would provide an explanation for her inconsistent statements and her failure to appear.

At ¶ 25.

Nor was trial counsel ineffective for failing to request a limiting instruction concerning the out-of-court statements. Choosing to forgo a limiting instruction can be a reasonable decision to avoid drawing attention to unfavorable testimony. . . .

At ¶ 26.

Inquiry into Request for New Defense Counsel

When an indigent defendant expresses dissatisfaction with his appointed attorney, the trial court must make “some reasonable, non-suggestive efforts to determine the nature of the defendant’s complaints” and inquire sufficiently to “determine whether the defendant’s relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution or even to such an extent that his or her Sixth Amendment right to counsel would be violated but for substitution.” State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App. 1987). “[P]erfunctory questioning is not sufficient,” and a trial court’s inquiry will generally meet the standard if it unearths the specific, rather than general, concern a defendant has about his counsel’s performance. Id. Here, the trial court inquired into Defendant’s request by asking for a written motion and then repeating back to Defendant the trial court’s interpretation of the concern to make sure the court understood it fully. Once the court was assured it understood Defendant’s specific concern, it then explained the applicable legal concepts and inquired as to what Defendant would have asked Victim had he fully understood his right to cross-examine her at the preliminary hearing. This kind of thoughtful inquiry certainly meets the “reasonable, non-suggestive” standard. See id.

At ¶ 28.

Substitute counsel is mandatory when a trial court’s inquiry uncovers good cause, but absent such good cause, a decision to grant or deny a defendant’s request for new counsel is discretionary. Id. at 272. Trial courts are afforded “particularly broad deference” when a motion for new counsel is made by a defendant “at the threshold of the trial.” State v. Vessey, 967 P.2d 960, 962 n.1 (Utah Ct. App. 1998). Here, the court’s inquiry uncovered no good cause for replacing counsel. Thus, we conclude that it was not an abuse of discretion for the trial court to deny Defendant’s request for new counsel, made just four days before trial was to begin, when the conduct complained of was properly deemed to have been sound trial strategy.

At ¶ 29.

Merger

Defendant’s final argument is that the jury instructions improperly allowed Defendant to be convicted of aggravated assault in addition to aggravated kidnapping and aggravated burglary. Although couched in terms of a challenge to the jury instructions, Defendant’s argument is, at its core, an argument about merger. Defendant argues that his conviction for aggravated assault should be vacated because of the crime’s statutory overlap with aggravated burglary and aggravated kidnapping.

At ¶ 30.

A defendant may not be convicted “of both the offense charged and [a lesser] included offense. An offense is so included when . . . [i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Utah Code Ann. § 76-1-402(3) (LexisNexis 2012). When “crimes standing in a greater-lesser relationship have multiple variations,” we must “consider the evidence to determine whether that relationship existed between the specific variations of the crimes actually proved” at trial. State v. Bradley, 752 P.2d 874, 877 (Utah 1985). Even if there is overlap in the statutory elements, if the convictions rely on “materially different acts,” then one crime will not be a lesser included offense of another. See State v. Smith, 2003 UT App 179, ¶ 16, 72 P.3d 692. In making this evaluation, we will view the evidence in the light most favorable to the jury’s verdict. State v. Sherard, 818 P.2d 554, 557 (Utah Ct. App. 1991).

At ¶ 31.

A conviction for aggravated burglary requires proof of burglary plus one of the following variations: (1) bodily injury, (2) the use or threatened use of a dangerous weapon, or (3) the possession or attempted use of a dangerous weapon or explosive. Utah Code Ann. § 76-6-203 (LexisNexis 2012). Aggravated assault, at the time of these events, required one of the following variations of assault: (1) attempting to do bodily injury with unlawful force or violence, (2) threatening to do bodily injury accompanied by a show of immediate force or violence, or (3) acting with unlawful force or violence and causing bodily injury or creating a substantial risk of bodily injury, plus the intentional infliction of serious bodily injury or the use of a dangerous weapon or other means likely to produce death or serious bodily injury. Id. § 76-5-102; id. § 76-5-103 (2008). The jury had before it evidence to support multiple variants of each crime. Indeed, there was enough evidence to support four separate aggravated assaults, but the State charged only one.

At ¶ 32.

The Court summarizes the various acts committed by Defendant that could constitute separate violations of the crimes charged.

At ¶¶ 33-34.