November 22, 2013 Utah Supreme Court Case Summaries

State v. Larrabee, 2013 UT 70, No. 20110739 (November 22, 2013)

ISSUES:  Prosecutorial Misconduct, Issue Preservation, Ineffective Assistance of Counsel, Sound Trial Strategy

Justice Durrant,

Michael D. Larrabee (Defendant) appeals three criminal convictions: two for aggravated sexual abuse of a child, and one for dealing in material harmful to a minor. Defendant argues that the convictions cannot stand because . . . the prosecutor prejudiced the jury by making several improper remarks during closing arguments. 

At ¶ 1.

After careful review of the record, we conclude that Defendant failed to preserve the issue of prosecutorial misconduct for appeal. Nevertheless, we hold that defense counsel’s failure to object to the prosecutor’s conduct at trial constitutes ineffective assistance of counsel. We therefore remand this case to the trial court for a new trial on all counts.

At ¶ 2.

The Court outlines the allegations and evidence against the Defendant.

At ¶¶ 3-10.

. . . The state then tried to introduce evidence that Defendant had sexually molested Jamie, but, after excusing the jury, the trial court ruled that her testimony was inadmissible due to unreliability and instructed both Jamie and counsel not to refer to these new allegations in the presence of the jury. Nevertheless, despite the trial court’s warning that reference to these allegations would lead to a mistrial, during closing arguments the prosecutor did refer to Jamie’s allegations of sexual abuse. Neither defense counsel nor the court intervened, however, and Defendant was eventually convicted on the two counts of aggravated sexual abuse regarding B.B., the count of dealing in material harmful to a minor, but he was acquitted on the count of aggravated sexual abuse regarding M.V.

At ¶ 10.

After trial, Defendant filed a motion to arrest judgment pursuant to rule 23 of the Utah Rules of Criminal Procedure, wherein he raised the same arguments he raises in this appeal, namely that . . . the prosecutor’s conduct during closing arguments was prejudicial. The district court denied Defendant’s motion and upheld the convictions. Defendant now appeals. We have jurisdiction over this matter pursuant to Utah Code section 78A-3-102(3)(i).

At ¶ 11.

Preservation

We turn first to the issue of preservation. Defendant argues that he properly preserved his claim for prosecutorial misconduct because he raised it in his motion to arrest judgment. We disagree.

At ¶ 14.

“We have consistently held that a defendant who fails to preserve an objection at trial will not be able to raise that objection on appeal unless he is able to demonstrate either plain error or exceptional circumstances.” And with respect to appellate review of closing arguments, we have previously held that we “will not examine the State’s closing argument if the defendant failed to timely object to it.” The reason behind this “preservation rule” is two-fold. First, the rule affords the trial court “an opportunity to address the claimed error, and if appropriate, correct it,” thereby promoting judicial economy. And second, the rule prevents defendants from foregoing an objection “with the strategy of enhancing the defendant’s chances of acquittal and then, if that strategy fails . . . claiming on appeal that the [c]ourt should reverse,” thereby encouraging fairness. In order to further both policies through this rule, “we have held that the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that exceptional circumstances exist or plain error occurred.”

At ¶ 15.

Defendant’s motion to arrest judgment was filed almost two months after the trial concluded, which hardly counts as a “timely objection” to the statements made by the prosecutor during closing arguments. Furthermore, allowing defendants to preserve issues like prosecutorial misconduct through motions to arrest judgment would directly contradict the purposes of the preservation rule articulated above. That is, if a motion to arrest judgment was sufficient to preserve this issue, then not only would the trial court be deprived of the opportunity to address the issue at trial, but defendants could also strategically forgo an objection without the risk that by so doing they might lose their ability to appeal that particular issue. Therefore, because Defendant’s counsel failed to timely object to the statements that Defendant now contests as improper, we hold that the prosecutorial misconduct issue was not properly preserved. Nevertheless, Defendant correctly argues that the prosecutor’s conduct is still relevant to our analysis of his ineffective assistance of counsel claim, to which we now turn.

At ¶ 16.

Ineffective Assistance of Counsel

We have repeatedly classified the burden that defendants bear when asserting an ineffective assistance of counsel claim as a “heavy” one. This is so because under the standard set forth in Strickland v. Washington, the defendant must prove both of the following: “(1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.”

At ¶ 18.

Furthermore, it is important to note that Strickland imposes two additional presumptions in favor of the objective reasonableness of defense counsel’s performance. First, “[g]enerally speaking, [t]here is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” In other words, “the general presumption of objective reasonableness requires a petitioner to ‘overcome the presumption that, under [all] the circumstances, the challenged action might be considered sound trial strategy.’” Second, if it can be shown that “after thorough investigation of law and facts relevant to plausible options” counsel made a “strategic choice[],” then that choice is “virtually unchallengeable.”

At ¶ 19.

In this case, neither party has argued that defense counsel’s decision not to object to the prosecutor’s comments during closing arguments was the result of a “strategic choice made after thorough investigation of law and facts,” and thus the second presumption does not apply here. Instead, the State argues that defense counsel’s decision “might be considered sound trial strategy.” We disagree. Given the extremely prejudicial nature of the remarks and “under the circumstances” of this case, we conclude that counsel’s choice not to object was not a “sound trial strategy.” Additionally, in light of the improper, inflammatory, and prejudicial nature of the comments, we hold that defense counsel’s failure to object also falls below Strickland’s objective standard of reasonableness and that it was reasonably likely the outcome of the trial would have been different but for defense counsel’s performance. Therefore, we conclude that the Strickland requirements have been met here and that Defendant is entitled to a new trial on all counts due to his counsel’s ineffective assistance.

At ¶ 20.

      A. Objective Standard of Reasonableness

During trial, the State attempted to call Jamie, B.B.’s mother, as a witness to testify about how Defendant had molested her when she was eleven years old. At the suggestion of defense counsel, the trial court heard this testimony outside the presence of the jury and ruled that Jamie’s testimony was inadmissible due to unreliability. The trial court then instructed both Jamie and counsel not to refer to these allegations. But despite the trial court’s warning that any reference to these allegations would lead to a mistrial, during closing arguments the prosecutor made the following remark[], which, Defendant argues, w[as] improper:

. . .When he’s dragging [B.B.’s mother] back to the house in Arizona, how come she doesn’t scream and say look what he’s doing to me? He’s sexually abusing me. He’s doing all these things. Why didn’t she come out herself and say [Defendant’s] doing these terrible things to me? Why didn’t she have that vengeance then? Why does she wait until she’s not in his life at all?

. . .

At ¶ 21.

The State argues that defense counsel might not have objected to the Contested Statement because he feared that it would highlight its prejudicial nature. The State also argues that this qualified as a “sound” strategy. But given the obvious impropriety of the Contested Statement, as well as its inflammatory and prejudicial nature, under the facts of this case we cannot agree and therefore refuse to recognize such a strategy as “sound.” Accordingly, we conclude that the first Strickland presumption is overcome. We further conclude that because it was unreasonable for defense counsel not to object, his performance fell below Strickland’s objective standard of reasonableness.

At ¶ 22.

The fact that the Contested Statement was improper and inflammatory should have been immediately apparent to defense counsel. The . . . remark was, of course, damaging  . . . because it explicitly referred to allegations of child sexual abuse that the trial court had previously ruled inadmissible. Specifically, the prosecutor referred to allegations brought by B.B.’s mother that Defendant had sexually abused her many years prior to the events at issue in this case. This was improper for a number of reasons. First, “[t]he Utah Rules of Professional Conduct . . . prohibit an attorney from alluding to matters not introduced as evidence at trial.” Second, when a prosecutor insinuates “that other evidence exists [he] encourages the jury to determine its verdict based upon evidence outside the record and jeopardizes a defendant’s right to a trial based upon the evidence presented.” And finally, by referring to these allegations, the prosecutor “demonstrated a complete disregard for the tribunal’s rulings.”

At ¶ 23.

We agree with Defendant that the Contested Statement was improper because a prosecutor may not “assert arguments he knows to be inaccurate,”20 especially when those arguments refer to evidence not in the record or evidence that has been excluded by the trial court. Therefore, we conclude that the improper nature of the prosecutor’s comments should have been obvious to defense counsel.

At ¶ 24.

In addition to recognizing their impropriety, defense counsel should have also recognized that the Contested Statement was inflammatory. Within the context of a criminal trial for the sexual abuse of a child, it is difficult to conceive of a more inflammatory statement than that offered by the prosecutor—namely, that Defendant had a prior history of child sex abuse. This is especially true in this case, where the jury had, to that point, heard absolutely nothing regarding such a prior offense. For these reasons, defense counsel should have been immediately aware that these comments were both improper and inflammatory.

At ¶ 25.

      B. “Fear of Highlighting” Prosecutorial Abuse is Not a “Sound” Trial Strategy to Justify Failure to Object in the Context of This Case

Given the circumstances of this case as outlined above, we are at a loss to conceive of a “sound trial strategy” that would justify defense counsel’s decision to remain completely silent while the prosecutor made the Contested Statement. In the face of such obviously improper and inflammatory comments, defense counsel should have immediately objected and moved for a mistrial or, at the very least, demanded a curative instruction. But by failing to do so, not only did defense counsel fail to address the prejudice elicited by the Contested Statement, but he also failed to preserve the issue for appeal. And in our view these failures are sufficiently egregious to support the conclusions that defense counsel’s decision cannot be considered to be a “sound trial strategy,” as required by Strickland, and that defense counsel’s performance fell below Strickland’s objective standard of reasonableness.

At ¶ 26.

The State attempts to counter this line of argument by asserting that defense counsel’s decision to remain silent does qualify as a “sound” trial strategy because counsel may have feared that an objection or motion might highlight or compound the prejudicial nature of the Contested Statement for the jury. The dissent agrees and goes to great lengths to make the point that, under certain circumstances, strategically refusing to object is an acceptable trial strategy. But here we are not disputing the fact that there are times when counsel’s decision not to object can be both strategic and proper. That proposition is axiomatic. We simply conclude that this was not one of those times.

At ¶ 27.

As the dissent acknowledges, “[t]he question of where to draw the line—of when to object and when to stand pat—is . . . difficult.” And under the circumstances of this case, we are simply drawing this line in a different place than that advocated by the dissent. We believe that, given the improper and inflammatory nature of the prosecutor’s remarks, it was not reasonable for defense counsel to stand silent. Thus, contrary to what is asserted by the dissent, we are not departing from Strickland, we are applying it. And while we recognize that it can be a legitimate strategy to remain silent due to a fear of prejudice, under the facts of this case such a strategy does not qualify as “reasonable” or “sound,” since no more prejudicial accusation can be made within the context of a child sex abuse case than that the defendant has a history of sexually abusing children, which is precisely the accusation the prosecutor made here. Within the context of this case, therefore, we decline to assume, as the State and dissent urge us to do, that defense counsel failed to object because he had made a reasonable and sound strategic decision. Instead, we conclude that, given the nature of the Contested Statement, such a strategy was patently unreasonable.

At ¶ 28.

[W]e think it important to note that, even in closer cases, the “fear of highlighting” argument should be analyzed with some skepticism. For at bottom, when accepted, it permits the State to engage in improper conduct without consequence. It insulates the State from objection to its misconduct by the very fact that an objection might render that misconduct even more effective by bolstering the State’s case. Further, in those cases where defense counsel fails to object to improper comments by the State, the imputation of a “fear of highlighting” argument will almost always be available to the State. And were that argument too readily accepted, it would significantly undermine our ineffective assistance of counsel doctrine.

At ¶ 31.

Finally, the “fear of highlighting” argument also puts defense counsel at a significant disadvantage at trial. She faces a Hobson’s choice: on the one hand, if she objects, she risks highlighting the improper comment. If she does not, she is effectively barred from raising the issue on appeal because her silence may be deemed a “sound” strategy. Thus, if the argument is too readily accepted, it could stand as a substantial obstacle to a fair trial. This is not to say it should never be accepted. Our rules of preservation are critical to the appellate process and are themselves an important mechanism for promoting fairness. It is only to say that it is an argument that always warrants careful scrutiny, with the inequities we have noted in mind.

At ¶ 32.

      C. Prejudice

We now turn to Strickland’s second requirement, under which the defendant must show that “but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” The Supreme Court has defined “reasonable probability” as “a probability sufficient to undermine [our] confidence in the outcome.” Defendant argues that this requirement is met here because, in addition to the improper and inflammatory nature of the Contested Statement discussed above, it was also highly prejudicial. We agree.

At ¶ 34. 

In this case, the jury was being asked to render a verdict based solely on its assessment of the credibility of two witnesses: Defendant and B.B. There was no physical, direct, or even circumstantial evidence corroborating B.B.’s allegations. It was simply her accusations pitted against Defendant’s denials. We also find it significant that the prosecutor presented no evidence (other than his improper remarks during closing arguments) that undermined Defendant’s credibility. Instead, numerous witnesses—including Jan, Defendant’s ex-wife and B.B.’s grandmother—testified that it was “not in [Defendant’s] nature” to do this, that Defendant was “a loving . . . protector of young people,” and that the kids “loved [him],” “adored [him],” and “jumped on his lap and his knee.”

At ¶ 35.

Given these circumstances, it should have been obvious to defense counsel that the prosecutor’s comments were highly prejudicial since they went to the heart of what the jury was being asked to decide: whether Defendant’s testimony was credible. But by making the Contested Statement, the prosecutor (a) improperly referred to excluded evidence and (b) implied that Defendant had committed sexual abuse previously. Given these factors, the prejudicial nature of these remarks should have been readily apparent to defense counsel and should have motivated him to object and demand a curative instruction or a mistrial.

At ¶ 36.

But because defense counsel failed to do so, we conclude that—given the improper, inflammatory, and highly prejudicial nature of the Contested Statement—it most likely influenced the jury’s deliberations. There was a “reasonable probability that . . . the result of the [trial] would have been different,”33 and our confidence in the jury’s verdict is undermined. Accordingly, we conclude that both of the requirements set forth in Strickland are met here and that Defendant is entitled to a new trial on all counts due to ineffective assistance of counsel.

At ¶ 37.

Justice Lee, Dissenting,

Justice Lee argues that Defense counsel’s failure to object to the prosecutor’s statement during closing arguments could have been a strategic choice to avoid highlighting the prejudicial statement.  Accordingly, Justice Lee would not find that defense counsel was ineffective.

At ¶¶ 39-62.

I would also reject Larrabee’s alternative ground for reversal, which is rooted in a so-called doctrine of prosecutorial misconduct. In support of this argument, Larrabee invokes case law purportedly calling for reversal in the face of prosecutorial statements that “call to the attention of . . . jurors matters which they would not be justified in considering in determining their verdict,” see State v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628—at least where jurors were “probably influenced by those remarks,” id., and where the prosecutor’s comments were “so obviously improper that the trial court had an opportunity to address the error,” State v. Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573.

At ¶ 63.

The standards invoked by Larrabee are problematic. His notion of a standalone doctrine of prosecutorial misconduct is a distortion of our adversary system, of our law of preservation, and of the constitutional and statutory restraints on our appellate power. And his proposed standard of review is an effective override of the settled plain error standard.

At ¶ 64.

State v. Younge, 2013 UT 71, No. 20100146 (November 22, 2013)

ISSUES: Statute of Limitations for Aggravated Sexual Assault, Right to Speedy Trial, Name of Defendant on Information

Justice Nehring,

Donald E. Younge Jr. contends that the State did not commence its prosecution of him within the statute of limitations. He also claims that his right to a speedy trial was violated. We hold that the State commenced Mr. Younge’s prosecution within the applicable statute of limitations and that his right to a speedy trial was not violated and accordingly affirm his convictions.

At ¶ 1.

The Court outlines the facts and history of this case.  Most importantly: 1) in November 1996, an unknown assailant sexually assaulted a victim; 2) in March 2000, with the four statute of limitations approaching and without further leads as to the attacker’s identity, the State filed an information in March 2000 charging “John Doe, an unknown male” with the crime and identifying the unknown assailant by DNA profile; 3) two years later, a match for the DNA profile of the unknown assailant was identified in CODIS; 4) in September 2002, the State filed an amended information identifying Donald E. Younge Jr. by name, and an arrest warrant was issued the same day; 5) because defendant was being held in Illinois awaiting trial on a murder charge, Defendant was not extradited to Utah until February 2009; 6) on July 9, 2009, Defendant was bound over for trial on all counts and he was arraigned on August 28; 7) Defendant filed two motions related to his right to a speedy trial and the statute of limitations and the district court set a briefing schedule for the motions, granting the State an extra week to respond due to a week-long trial that the prosecutor was involved in and passing over an October 16 hearing date because the prosecutor had a scheduling conflict; 8) the district court denied defense counsel’s initial request that the trial commence on October 26 because the prosecutor was not available that day; 9) the trial court’s order setting the trial on November 9 and 10, and a final pretrial conference on November 6, as requested by defendant; 10) the district court’s ruling that the statute of limitations had been tolled from 1999 until defendant’s extradition because he had been out of state, and that he had not been deprived of his right to a speedy trial; 11) the district court’s order granting the prosecution a continuation of the trial because the State Crime Lab had not provided DNA reports to defense counsel; and 12) defendant’s conviction after a jury trial conducted on December 11, 2009.

At ¶¶ 2-9.

Statute of Limitations/ Adequacy of Information

Mr. Younge alleges that the first information did not meet the requirements for a valid charging document because it did not identify him by name. We disagree. The Utah Code of Criminal Procedure defines a “criminal action” as “the proceedings by which a person is charged, accused, and brought to trial for a public offense.” The Utah Rules of Criminal Procedure require that to initiate a criminal action, “[u]nless otherwise provided, all criminal prosecutions . . . shall be commenced by the filing of an information or the return of an indictment.” An information is “an accusation, in writing, charging a person with a public offense which is presented, signed, and filed in the office of the clerk where the prosecution is commenced pursuant to Section 77-2-1.1.” The Rules of Criminal Procedure mandate that [a]n indictment or information shall charge the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute or by stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge. An information may contain or be accompanied by a statement of facts sufficient to make out probable cause to sustain the offense charged where appropriate.

At ¶ 12.

While the Rules of Criminal Procedure require that the information “charg[e] a person,” there is no specific requirement as to how the individual to be charged is identified other than that “[a]n indictment or information shall not be held invalid because any name contained therein may be incorrectly spelled or stated.”

At ¶ 13.

The only challenge Mr. Younge raises as to the sufficiency of the first information is that it did not identify him by name, and therefore violated his right to due process under the Utah Constitution. Mr. Younge alleges that his “right to notice is guaranteed by article I, section 12 of the Utah Constitution.” However, an information “is an accusation against a person, and not against a name. A name is not the substance of an indictment.” Section 77-1-3 requires that the information “charg[e] a person” but does not require that the individual be charged by name. And a DNA profile “is as close to an infallible measure of identity as science can presently obtain.”

At ¶ 14.

With regard to Mr. Younge’s due process challenge, a statute of limitations “is a statutory creation and affords no positive rights of constitutional dimension. . . . [T]he statute is not a source of constitutional liberties, nor does it by its own terms require actual or constructive notice to a defendant in order to be satisfied.” Neither the Utah Code nor the Utah Rules of Criminal Procedure require that actual or constructive notice be provided to a defendant before the commencement of a prosecution. While the Utah Constitution “requires that the accused be given sufficient information so that he [or she] can know the particulars of the alleged wrongful conduct and can adequately prepare his [or her] defense,”18 we have explained that an information may be “an extremely summary statement of the charge, that would not provide the accused with sufficient particulars to prepare an adequate defense.” To protect the rights of the charged individuals, defendants are entitled to request a bill of particulars in instances when the charging document is not detailed enough to provide adequate information for the preparation of a defense. Therefore, the first information, which charged a John Doe defendant by DNA profile, was valid and did not violate Mr. Younge’s right to due process under the Utah Constitution. Because we determine the first information was valid, we need not address Mr. Younge’s challenges to the amended information, and therefore do not need to address the tolling of the statute of limitations.

At ¶ 15.

Right to a Speedy Trial

Mr. Younge also challenges the district court’s ruling that his right to a speedy trial under the Sixth Amendment to the United States Constitution was not violated. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The “right to a speedy trial is ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” The right “does not arise until there has been an indictment or information, as the applicable statute of limitations is controlling as to the time within which an indictment or information must be brought.” And when a defendant’s right has been violated, it “leads to the unsatisfactorily severe remedy of dismissal of the indictment.”

At ¶ 16.

The appropriate analysis for a speedy trial claim comes from the United States Supreme Court decision in Barker v. Wingo and involves a four-factor “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” The Barker factors are, “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” No specific factor is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial” because “they are related factors and must be considered together with such other circumstances as may be relevant.” While “these factors have no talismanic qualities,” we must “engage in a difficult and sensitive balancing process.”

At ¶ 17.

The Court analyzes the four factors in a speedy trial analysis and determines: (1) the delay between the filing of the first information in March 2000 and the trial in December 2009 was undeniably “extraordinary”; (2) the reason for the delay weighs in the State’s favor because a) they did not know the identity of the Defendant, b) they acted quickly after learning defendant’s identity, considering that defendant was in Illinois, and c) after filing the amended complaint the trial court properly balanced genuine scheduling conflicts, adequate time for motion practice, and a delay to hedge against a potential claim of ineffective assistance of counsel after the prosecution realized that the Utah State Crime Lab required more time to turn over documents; (3) The State Complied with Mr. Younge’s Speedy Trial Demands to the Extent Possible; and (4) Defendant was not prejudiced by any delay because the evidence against him was compelling.

At ¶¶ 18-28.

On balance, Mr. Younge cannot demonstrate that his right to a speedy trial was violated under the Barker factors. While the delay in this case was undeniably extraordinary, the vast majority of that delay was beyond the State’s control. The remaining three factors weigh in favor of the State and against Mr. Younge. 

At ¶ 29.

The first information filed by the State identifying R.C.’s unknown assailant by his DNA profile was valid. Therefore, we affirm the district court’s determination that the prosecution was commenced within the statute of limitations. Mr. Younge’s right to a speedy trial was not violated. While this case involved an extraordinary delay, this delay was not the fault of the State and Mr. Younge was not prejudiced. Therefore, we affirm Mr. Younge’s convictions. At ¶ 30.

November 21, 2013 Utah Court of Appeals Case Summaries

N.F. v. G.F., 2013 UT App 281, No. 20120641-CA (November 21, 2013)

ISSUES: Mootness

Senior Judge Billings,

G.F. (Grandmother) appeals the entry of a protective order against her, which was requested by N.F. (Mother) on behalf of her daughter (Child). We do not reach Grandmother’s claims, however, because we determine that they are now moot and do not fit either of the argued exceptions to the mootness doctrine. Thus, we dismiss Grandmother’s appeal.

At ¶ 1.

“A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.” Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989). Certainly the issues raised here are moot. The protective order that Grandmother contests ultimately expired on March 18, 2013. Thus, the relief she seeks in challenging the order will no longer affect her rights. However, there are certain narrow exceptions that allow an appellate court to consider moot issues. Grandmother argues that two of these exceptions apply.

At ¶ 7.

Public Interest Exception

This “exception to the mootness doctrine arises when the case [1] presents an issue that affects the public interest, [2] is likely to recur, and [3] because of the brief time that any one litigant is affected, is capable of evading review.” In re Adoption of L.O., 2012 UT 23, ¶ 9, 282 P.3d 977 (alterations in original) (citation and internal quotation marks omitted).

At ¶ 8.

As to the first requirement, Grandmother argues that the issue here goes to “the validity or construction of a statute,” which is a type of claim affecting the public interest, see Barnett v. Adams, 2012 UT App 6, ¶ 11, 273 P.3d 378 (citation and internal quotation marks omitted). We disagree. We are not persuaded that the issue Grandmother raises is truly a challenge to the trial court’s construction of a statute. Grandmother argues that the trial court misinterpreted Utah Code section 78B-7-203 and allowed any possibility of future abuse to satisfy a finding of Child being “in imminent danger of being abused,” see Utah Code Ann. § 78B-7- 203(5) (LexisNexis 2012). We conclude that the trial court made no such broad interpretation. [The Court explains the trial court’s ruling]

At ¶ 9.

We are also unconvinced that the second requirement for the public interest exception is met here. Under this requirement, the claim raised must be “‘likely to recur in a similar manner’” in future cases. See Barnett, 2012 UT App 6, ¶ 12 (quoting Anderson v. Taylor, 2006 UT 79, ¶ 10, 149 P.3d 352). As explained above, the decision of the trial court is dependent on a unique combination of the factual circumstances of the case, including the admission regarding the parents’ ability to protect Child, the existence of the ex parte protective order and the timing of its expiration, the issues caused by the parents’ pending divorce, the age and vulnerability of Child, and the extensive and severe abuse allegations. Because the factual underpinnings of each child abuse case are different and because such facts are necessarily the basis of the trial court’s determination of whether a child is in imminent danger of being abused, the issues of which Grandmother complains are not likely to be raised in a similar manner in other future cases. Cf. Putman v. Kennedy, 900 A.2d 1256, 1265 n.14 (Conn. 2006) . . .

At ¶ 10.

Thus, we determine that Grandmother has failed to show that the issues she raises affect the public interest or that they are likely to recur in a similar fashion. The public interest exception therefore does not save Grandmother’s claims from a mootness challenge.

At ¶ 11.

Collateral Consequences Exception

The collateral consequences exception to the mootness doctrine has been employed primarily in criminal cases and applies when “collateral legal consequences may result from an adverse decision.” Barnett v. Adams, 2012 UT App 6, ¶ 7, 273 P.3d 378. “Accordingly, the examples of collateral consequences that preclude a case from mootness are relatively limited.” Id. First, “the consequences must be ‘imposed by law’ as a direct result of the challenged action.” Towner v. Ridgway, 2012 UT App 35, ¶ 7, 272 P.3d 765 (citation omitted). Further, “a litigant must show that the collateral consequences complained of are not merely hypothetical or possible but that they are probable and represent actual and adverse consequences.” Barnett, 2012 UT App 6, ¶ 8.

At ¶ 12.

The collateral consequences Grandmother complains of are social stigma, pain, damaged family relationships, the possibility that Mother may make embarrassing information public or take future civil action, and the potential impact of “findings” that Grandmother sexually abused a minor. The majority of the consequences that Grandmother raises are not legal collateral consequences but emotional tolls, which are likely existent in most cases. We find no support for considering such emotional tolls under the collateral consequences exception. See, e.g., Towner, 2012 UT App 35, ¶ 9 . . . 

At ¶ 13.

As to Grandmother’s concern that the trial court made findings that she had abused Child and that Mother may use these to pursue further civil action, Grandmother has not shown that these findings will probably lead to adverse legal consequences for her. We have previously addressed a situation where a protective order actually led to the respondent being placed on a list that would have allegedly prevented her from fostering, adopting, or working with children, yet we determined that the collateral consequences argued were “merely speculative” because the respondent did not show that she was pursuing any of these activities. See Barnett, 2012 UT App 6, ¶ 9. Grandmother’s alleged collateral consequences here are similarly hypothetical and speculative, and do not support the application of the collateral consequences exception to the mootness doctrine.

At ¶ 14.

Attorney Fees

Mother requests an award of attorney fees based on rule 33 of the Utah Rules of Appellate Procedure. This rule provides, “Except in a first appeal of right in a criminal case, if the court determines that a motion made or appeal taken under these rules is either frivolous or for delay, it shall award just damages . . . to the prevailing party.” Utah R. App. P. 33(a). Mother argues that Grandmother’s appeal was both frivolous and filed for the purpose of delay. We disagree.

At ¶ 15.

The Court explains why Grandmother’s appeal was not frivolous.

At ¶¶ 16-19.

Hall v. Hall, 2013 UT App 280, No. 20120437-CA (November 21, 2013)

ISSUES: Contract Interpretation (Facial Ambiguity); Contempt (Burden of Proof); Attorney Fees on Domestic Orders

Senior Judge Billings,

Dennis R. Hall (Husband) appeals from the trial court’s orders resulting from a contempt hearing initiated by Janet K. Hall (Wife). We affirm in part and reverse and remand in part.

At ¶ 1.

The Court outlines the background of this case; specifically, 1) the parties’ divorce stipulation, 2) the parties’ allegations of violations, 3) and the trial court’s fingings after an order to show cause hearing that neither party is in contempt, but clarifying the requirements of the stipulation; and 4) the trial court’s award of attorney fees to Wife.

At ¶¶ 2-5.

The Court outlines the issues and standards of review for the five issues presented.

At ¶¶ 6-10.

Contract Interpretation (Facial Ambiguity)

The trial court determined that the provision regarding life insurance in the Stipulation was ambiguous and that the equalization was intended to include the value of all of the life insurance policies listed in the letter sent by Husband’s attorney. In addressing the issue of facial ambiguity, the trial court must follow the two-part approach set forth in Daines v. Vincent, 2008 UT 51, ¶ 26, 190 P.3d 1269. First, when determining whether an ambiguity exists, the trial court must consider “‘any relevant evidence’” in order to avoid a determination that “‘is based solely on the “extrinsic evidence of the judge’s own linguistic education and experience.”’” Id. (quoting Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995)). Then, after the trial court has considered “evidence of contrary interpretations, the [trial court] must ensure that ‘the interpretations contended for are reasonably supported by the language of the contract.’” Id. (quoting Ward, 907 P.2d at 268).

At ¶ 12.

The Court views the extrinsic evidence and finds that it “clearly supports the interpretation for which Wife contends.”  They then review the language of the stipulation and find that “the contract language itself supports the interpretation advanced by Wife.

At ¶¶ 13-18.

Thus, the trial court correctly considered extrinsic evidence, found ambiguity in the provision, and determined that Wife’s interpretation was supported by the Stipulation’s language. We conclude the trial court’s determination as to the parties’ intended meaning of section 13 of the Stipulation was not an abuse of discretion.

At ¶ 18.

Contempt (Burden of Proof)

Husband argues that the trial court erred in failing to find Wife in contempt due to her failure to pay certain dependent medical expenses and give Husband certain personal property as required by the Stipulation. Utah Code section 78B-6-302 requires that for a claim of indirect contempt, that is, when the contempt occurs outside the presence of the court, “an affidavit or statement of the facts by a judicial officer shall be presented to the court or judge of the facts constituting the contempt.” Utah Code Ann. § 78B-6-302(2) (LexisNexis 2012). This affidavit requirement is jurisdictional. Iota, LLC v. Davco Mgmt. Co., 2012 UT App 218, ¶ 35, 284 P.3d 681. Husband argues that because he submitted such an affidavit and because Wife presented no counter-evidence at the hearing, the trial court should have found Wife in contempt on these issues.

At ¶ 20.

However, we are not convinced by Husband’s argument that the affidavit alone shifts the burden of proof to the party who is alleged to be in contempt. We see no support for this position in the relevant statutes or in the cases Husband cites. Indeed, all the cases Husband cites that touch on the burden of proof also involve issuances of orders to show cause and do not indicate that the burden shifted prior to the issuances of those orders. See, e.g., Thomas v. Thomas, 569 P.2d 1119, 1120 (Utah 1977) . . . .

At ¶ 21. 

. . .

The due process provision of the federal constitution requires that in a prosecution for a contempt not committed in the presence of the court, the person charged be advised of the nature of the action against him [or her], have assistance of counsel, if requested, have the right to confront witnesses, and have the right to offer testimony on his [or her] behalf.

Id. (alterations in original) (citation and internal quotation marks omitted). Although Husband never moved for an order to show cause based on his contempt claims, the contempt claims were included in the parties’ stipulated list of issues to be addressed at the evidentiary hearing. Thus, Wife should have been prepared to present a defense to these allegations. However, we are not convinced that Wife had a true opportunity to present her defense under the circumstances. During the evidentiary hearing, Husband failed to introduce as evidence, or even mention, his affidavit alleging contempt, notwithstanding the trial court’s assertion that there had been no evidence presented regarding either the children’s medical expenses or the personal property, which were the basis of these contempt claims. Instead, Husband raised the existence of his affidavit by a general reference in a post-hearing brief. Such circumstances did not afford Wife an adequate opportunity to offer evidence and testimony on her behalf and do not meet the due process requirements.

At ¶ 22.

Thus, we are not persuaded by Husband’s argument that the existence in the record of his affidavit alleging contempt was sufficient to shift the burden of proof to Wife. Nor are we convinced that the circumstances of this case afforded Wife an adequate opportunity to present evidence in her defense where Husband wholly failed to present evidence of his allegations of contempt at the hearing. We therefore see no error in the trial court’s ruling on this matter.

At ¶ 23.

Attorney Fees

Husband next argues that the trial court erred in awarding attorney fees under Utah Code section 30-3-3(1), which provides that fees may be awarded “in any action to establish an order of custody, parent-time, child support, alimony, or division of property in a domestic case,” Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2013) (emphasis added). He argues that any attorney fees awarded in this case must be awarded under section 30-3-3(2), which covers actions enforcing these types of orders and requires a finding that a party “substantially prevailed upon the claim or defense,” see id. § 30-3-3(2).

At ¶ 24.

Wife responds that the attorney fees here were incurred in establishing an order. Although this is true, the order established was not “an order of custody, parent-time, child support, alimony, or division of property in a domestic case,” see id. § 30-3-3(1). The original divorce decree was such an order. Instead, the order established was to force compliance with the prior divorce decree. Indeed, Wife concedes that the current order “enforced terms of the [original decree]” and “did not amend its terms in any respect.” Also, the trial court characterized the order here as one “requiring [Husband] to comply with the terms of the Decree of Divorce.” These type of actions for enforcement are addressed by subsection (2) as opposed to subsection (1). See Utah Code Ann. § 30-3-3; see also, e.g., Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 12, 241 P.3d 365 (applying Utah Code section 30-3-3(2) to a request of attorney fees after prevailing on an order to show cause). Thus, the trial court erred in awarding attorney fees based on subsection (1) and we reverse the award.

At ¶ 25.

Although Wife requested attorney fees based both on financial need and her claim that she substantially prevailed, the trial court’s order based the award on financial need. Further, the trial court crossed out a proposed finding that stated, “The court also finds [Wife] substantially prevailed in the litigation and that an award of fees is justified on that basis as well.”  However, it is not clear if the trial court’s action was based on the court’s erroneous belief that only an analysis under financial need was applicable here or if it was instead due to a determination that Wife did not substantially prevail. Indeed, other language of the award signals a determination that Wife was successful on her claims: “The court further finds that . . . but for the pursuit of the action there would not be an order in place requiring [Husband] to comply with the terms of the Decree of Divorce.”

At ¶ 27.

Because we cannot determine why the trial court did not award fees under Utah Code section 30-3-3(2), we remand to the trial court to make findings of fact and conclusions of law related to this issue. However, we do not intend to suggest or endorse any specific outcome on the attorney fees issue.. . .

At ¶ 28.

Carlos v. Department of Workforce Services, 2013 UT App 279, No. 20120948-CA (November 21, 2013)

ISSUES: Unemployment Benefits, “Insurance Agent” Defined,

Judge Davis,

Wayne Carlos dba AAA Bail Bonds (AAA) seeks review of the Department of Workforce Services Appeals Board’s (the Board) decision that Stephen Thorsted (Claimant) is eligible for unemployment benefits. AAA contends that the Board based its decision on an erroneous interpretation of provisions contained in the Federal Unemployment Tax Act (FUTA), see 26 U.S.C. § 3306 (2006); the Utah Employment Security Act (the UESA), see Utah Code Ann. §§ 35A-4-204 to -205 (LexisNexis 2011); and Title 31A of the Utah Code (the Utah Insurance Code). We agree and set aside the Board’s decision.

At ¶ 1.

AAA appealed the ALJ’s decision [that the claimant was entitled to unemployment benefits] to the Board. AAA argued that Claimant’s employment fell within one of the several exemptions in the UESA that limit the classes of individuals eligible to receive unemployment benefits, see id. § 35A-4-205(1)(a)–(p) (2011); accord 26 U.S.C. § 3306(c)(1)–(21) (2006). The UESA does this to the Act’s provisions. In particular, AAA contended that Claimant was an insurance agent and fell within the UESA’s exclusion that exempted “service performed by an individual for a person as an insurance agent or as an insurance solicitor, if all the service performed by the individual for that person is performed for remuneration solely by way of commission” and if the service is “also exempted under [FUTA],” see Utah Code Ann. § 35A-4- 205(1), (1)(l); see also 26 U.S.C. § 3306(c)(14) (exempting insurance agents that are paid by commission from the meaning of “employment” under FUTA); Utah Admin. Code R994-205-105 (implementing the Utah statute). The Board determined that Claimant was not an “insurance agent” and that he was not paid “solely by way of commission” under the UESA, thereby concluding that AAA is subject to the UESA’s provisions.1 AAA seeks review of the Board’s decision.

At ¶ 4.

For the UESA’s insurance agent exemption to apply, AAA needed to demonstrate that (1) Claimant “performed [services] . . . for a person as an insurance agent or as an insurance solicitor,” (2) the services were “performed for remuneration solely by way of commission,” and (3) such “services are also exempted under [FUTA].” See Utah Code Ann. § 35A-4-205(1)(l) (LexisNexis 2011). We address each element in turn.

At ¶ 6.

The terms “insurance agent” and “bail bond producer” are not defined in the relevant statutory and administrative provisions. AAA contends that bail bond producers are insurance agents . . .

At ¶ 7.

The Court outlines the Board’s arguments that a “bail bond producer” is not an “insurance agent” because insurance agents are “empowered to sell insurance,” and the Claimant “did not seek out new business in the manner of an insurance salesperson” and rejects them as an erroneous interpretation of the relevant statute and administrative rule.

At ¶¶ 8-9.

The Court outlines the Board’s argument that a “bail bond producer” is not an “insurance agent” because there are stricter requirements for state licensing of traditional insurance agents and rejects it because “the UESA does not divide insurance agents into subcategories based on their training or licensing procedures in order to determine which agents are exempt. Rather, the UESA provides a blanket exemption for ‘insurance agents.’”

At ¶¶ 10-11.

The Board’s selective application of the Insurance Code is unavailing; where the Board has utilized the Insurance Code for guidance, it has done so to impermissibly read an exception into its administrative rule that narrows the UESA. Further, where the legislature has not supplied the UESA with a detailed definition of “insurance agent” and the UESA’s legislative history provides little guidance, we agree with AAA’s resorting to the Utah Insurance Code for more information. Not only does the Insurance Code contain the Bail Bond Act, it also identifies bail bond producers within subsections detailing insurance agent licensing and training requirements. Further, it defines “insurance” to include “a contract of guaranty or suretyship entered into by the guarantor or surety as a business and not as merely incidental to a business transaction,” Utah Code Ann. § 31A-1-301(86)(a)(ii) (LexisNexis Supp. 2013), and describes surety insurance as including “bail bond insurance,” id. § 31A-1-301(161)(b). Likewise, an insurer under the Insurance Code “includes a bail bond surety company.” Id. § 31A-4-102(2) (2010). . . .

At ¶ 13.

Thus, it is clear that the Utah Insurance Code considers bail bond producers to be insurance agents and that this conclusion is not in conflict with the UESA.3 Accordingly, we determine that Claimant was an insurance agent under the UESA.

At ¶ 14.

The UESA exemption also requires Claimant to have been paid “solely by way of commission,” id. § 35A-4-205(1)(l). . . . Here, Claimant did not receive an hourly wage, nor was his income necessarily reliant on the quantity of bail bonds issued; he was paid 40% of the premium collected on each bail bond he issued. We do not consider Claimant’s final few weeks of employment, during which time he was required to submit 100% of the premiums he collected to AAA, who would then pay Claimant his 40% share, to have transformed the payment scheme to that of a wage. Likewise, the few transactions involving check or credit card payments that necessarily had to be processed by AAA before Claimant could receive his 40% do not evidence a change in the commission-based payment structure. Accordingly, we determine that Claimant was paid “solely by way of commission.” See Utah Code Ann. § 35A-4-205(1)(l).

At ¶ 15.

Last, the UESA requires that Claimant’s services also be “exempted under [FUTA].” See id. § 35A-4-205(1). As previously mentioned, FUTA contains the same insurance agent exemption as the UESA, employing virtually identical language, and similarly does not define “insurance agent.” Compare id. § 35A-4-205(1)(l), with 26 U.S.C. § 3306(c)(14) (2006). The omission of a definition of “insurance agent” from FUTA and the lack of a federal variant akin to the Utah Insurance Code to look to for guidance leads us to the definition provided by the Utah legislature in the Utah Insurance Code. Accordingly, we determine that the same analysis conducted above demonstrates that Claimant would be exempt under FUTA as an insurance agent.

At ¶ 16.

Although “[s]tatutes which provide for exemptions should be strictly construed, and one who . . . claims [an exemption] has the burden of showing his entitlement to the exemption,” Parson Asphalt Prods. v. Utah State Tax Comm’n, 617 P.2d 397, 398 (Utah 1980) (footnotes omitted), we determine that AAA has demonstrated that the UESA’s insurance agent exemption applies here. Claimant’s services as a bail bond producer with AAA amounted to that of an insurance agent under the UESA and FUTA. Claimant was also paid solely by commission. Accordingly, the Board’s decision awarding Claimant unemployment compensation is set aside.

At ¶ 17.

Hugoe v. Woods Cross City, 2013 UT App 278, No. 20120968-CA (November 21, 2013)

ISSUES: Employment Law, Termination of a Public Employee, Due Process, Proportionality and Consistency

Judge Davis,

Wade Hugoe requests that we set aside the Woods Cross City Employee Appeal Board’s (the Board) decision affirming Woods Cross City’s (the City) termination of his employment with the Public Works Department. We set aside the Board’s decision.

At ¶ 1.

Hugoe first alleges that he did not receive due process in the course of the pre- and post-disciplinary proceedings. Specifically, he argues that the City failed to comply with the notice requirements set forth in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), because the notice failed to identify specific allegations or to explain the City’s evidence against him. He further contends that the Board inappropriately based its determination in part on the November 2011 incident, which was not a reason given for his termination in the termination letter. Finally, he asserts that his post-disciplinary hearing was not conducted by an impartial tribunal.

At ¶ 7.

In Loudermill, the United States Supreme Court ruled that due process in the context of a pre-termination proceeding requires that the employee be given “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546; accord Lucas v. Murray City Civil Serv. Comm’n, 949 P.2d 746, 753 (Utah Ct. App. 1997). The notice provided to Hugoe regarding the pre-disciplinary hearing informed him that discipline was being considered “as a result of incidents which, if substantiated, are in violation of City policy, including threatening, intimidating or interfering with fellow employees on the job, insubordination, misusing City property, and using vulgar language.” Hugoe asserts that this notice was too vague to inform him of the actual allegation that was the basis for his ultimate termination—i.e., that on July 17, 2012, he “used vulgar and profane language in a threatening and insubordinate manner towards” the operations manager while on probation for another confrontation—and that the notice failed to inform him of the evidence that would be used against him at the hearing.

At ¶ 8.

Although the notice does not specifically reference the July 17 incident or identify the specific evidence that would be used against him, Hugoe has failed to adequately explain how the deficiencies in the notice inhibited his ability to respond to the allegations against him. . . . Furthermore, the Board found that Hugoe had actual notice of the nature of the allegations against him . . . Hugoe has not challenged this finding; indeed, given that the incident occurred only a week before the notice was given, it is hard to believe that Hugoe was ignorant of the reason for the hearing. Because Hugoe had actual notice of the basis for the pre-disciplinary hearing, has failed to adequately allege any harm resulting from any deficiencies in the written notice, and was afforded a pre-disciplinary hearing in order to respond to the allegations against him, we agree with the Board that Hugoe received due process in the pre-disciplinary proceedings.

At ¶ 9.

Hugoe next contends that he was denied due process when the Board considered the November 2011 incident in making its decision. Because the November 2011 incident was not included in the City’s termination letter as a reason for terminating his employment, he asserts that he was unprepared to respond to allegations concerning that incident at the hearing before the Board. Hugoe relies on this court’s holding in Fierro v. Park City Municipal Corp., 2012 UT App 304, 295 P.3d 696, that due process requires an employee appeal board to consider only evidence of misconduct that the employer identified as grounds for terminating the employee, id. ¶ 22. However, unlike the employee appeal board in Fierro, which explicitly based its decision on a number of unidentified instances of misconduct as grounds for termination in the termination letter given to the employee, id. ¶¶ 25–27, the Board in this case explicitly stated that “[n]otwithstanding the evidence of prior discipline, . . . the July 17, 2012 statements and actions of Mr. Hugoe, standing alone, were so grievous as to justify termination of employment.” Thus, even accepting Hugoe’s assertion that the Board’s reliance on the November 2011 incident would have violated his due process rights, such a violation did not occur because the Board did not rely on the previous discipline in reaching its decision. . . .

At ¶ 10.

Hugoe also argues that the Board was not impartial because one member of the Board helped to prepare witness statements used in the pre-disciplinary hearing. Although Hugoe was clearly aware of this potential conflict at the time of the hearing before the Board, he failed to assert his impartiality argument at that time. Because this issue was not raised to the Board, it is not preserved and we will not consider it. See Carlsen v. Board of Adjustment, 2012 UT App 260, ¶ 21, 287 P.3d 440 . . . .

At ¶ 11.

In addition to raising the alleged due process violations, Hugoe contends that the Board’s decision exceeded the bounds of reasonableness and rationality because under the circumstances, termination was not a proportionate and consistent disciplinary action. We cannot fully address Hugoe’s challenge, however, because the Board’s findings are not “adequately detailed so as to permit meaningful appellate review.” See Adams v. Board of Review of the Indus. Comm’n, 821 P.2d 1, 4 (Utah Ct. App. 1991). . . .

At ¶ 12.

We have previously identified a number of factors that may be relevant in determining whether a sanction is proportional to the misconduct at issue:

[E]xemplary performance by an employee may serve as evidence against termination, while job violations and continued misbehavior could weigh in favor of dismissal. The Board may also consider the following factors: (a) whether the violation is directly related to the employee’s official duties and significantly impedes his or her ability to carry out those duties; (b) whether the offense was a type that adversely affects the public confidence in the department; (c) whether the offense undermines the morale and effectiveness of the department; or (d) whether the offense was committed willfully or knowingly, rather than negligently or inadvertently.

Nelson v. Orem City, Dep’t of Pub. Safety, 2012 UT App 147, ¶ 23, 278 P.3d 1089 (alteration in original) (citations and internal quotation marks omitted), aff’d sub nom. Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237. Although Hugoe presented evidence relating to these factors, the Board did not address that evidence in its written decision and made no specific findings regarding any of these factors. We therefore cannot adequately review the Board’s proportionality determination and must direct the Board to make additional findings.

At ¶ 13.

Although the Board also failed to make findings regarding the consistency issue, we agree with the City that Hugoe has failed to make out a prima facie case of inconsistency. . . .

At ¶ 14.

. . .We agree with the City that testimony indicating that other employees regularly used profanity in the workplace and were not disciplined for it does not suggest a lack of consistency in the City’s decision to terminate Hugoe for his insubordinate behavior toward the operations manager. See Kelly, 2000 UT App 235, ¶ 31 (“Meaningful disparate treatment can only be found when similar factual circumstances led to a different result without explanation.”). Because Hugoe presented no other evidence relating to the consistency issue, there was no basis for the Board to have determined that termination was an inconsistent consequence for Hugoe’s behavior.

At ¶ 15.

We determine that Hugoe was not denied due process in the course of the pre- and post-disciplinary proceedings. Furthermore, it was unnecessary for the City to make findings regarding the consistency issue because Hugoe failed to make out a prima facie case of inconsistency. However, the Board’s failure to make adequate findings regarding the proportionality of the City’s decision to terminate Hugoe rendered that decision arbitrary and capricious. Accordingly, we set aside the Board’s decision and direct the Board to make additional findings regarding whether termination was a proportionate disciplinary action for the City to have taken in this case.

At ¶ 16.

State v. Cunningham, 2013 UT App 277, No. 20120475-CA (November 21, 2013)

ISSUES: Ineffective Assistance of Counsel, Impeachment Testimony

Judge McHugh,

Justin Cunningham appeals from his conviction for distribution of a controlled substance within 1,000 feet of a church and recreation center, a first degree felony, see Utah Code Ann. § 58-37-8(1)(a)(ii), (4)(a), (4)(b)(i) (LexisNexis 2012).2 In particular, he argues that trial counsel performed ineffectively and that the trial court plainly erred because trial counsel did not withdraw as counsel to provide testimony on behalf of the defense. We conclude that trial counsel did not perform deficiently and that there was no obvious error that should have been corrected by the trial court. As a result, we affirm.

At ¶ 1.

The Court outlines the testimony presented at trial; most importantly, the circumstances surrounding a recording of the drug deal and the police’s inability to recover the recording.

At ¶¶ 2-15.

Mr. Cunningham contends that his trial counsel provided ineffective assistance that affected the outcome of his case. To prevail on an ineffective assistance of counsel claim, a defendant must show both “(1) that counsel’s performance was objectively deficient, and (2) [that] a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial.” Clark, 2004 UT 25, ¶ 6. In order to establish deficient performance, “a defendant ‘must show that counsel’s representation fell below an objective standard of reasonableness.’” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). “A defendant must . . . overcome the strong presumptions that counsel’s performance fell ‘within the wide range of reasonable professional assistance’ and that ‘under the circumstances, the challenged action might be considered sound trial strategy.’” Id. (quoting Strickland, 466 U.S. at 689). Even if Mr. Cunningham can establish that “no conceivable legitimate tactic or strategy can be surmised from counsel’s actions,” see id. at 468, he is not entitled to a new trial unless, in the absence of trial counsel’s deficient performance, there is a reasonable probability that he could have obtained a more favorable outcome at trial, see Clark, 2004 UT 25, ¶ 6. If Mr. Cunningham fails to establish either prong of the foregoing test, his ineffective assistance claim fails. See Tennyson, 850 P.2d at 466.

At ¶ 18.

Mr. Cunningham argues that his trial counsel provided deficient assistance by failing to withdraw as counsel and testify that nothing could be heard when Officer Watkins played the recording. Specifically, Mr. Cunningham contends, “[O]nly one witness was in a position to refute [Officer Watkins’s] testimony that [Mr. Cunningham’s] voice could be heard on the recording of the buy. That witness was trial counsel himself . . . .” Mr. Cunningham further claims that because of his trial counsel’s failure, his “defense was impaired to the degree that a different result likely would have [been] obtained had counsel testified.” In response, the State contends that Mr. Cunningham’s “arguments are grounded in a single mistake of fact: that Officer Watkins testified ‘that [Mr. Cunningham’s] voice could be heard on the recording of the buy.’” We agree with the State that Mr. Cunningham has misapprehended Officer Watkins’s trial testimony.

At ¶ 19.

Officer Watkins never testified that he had heard Mr. Cunningham’s voice on the recording. To the contrary, Officer Watkins repeatedly testified that he was unable to retrieve or play the recording. He indicated that he was able to hear the conversation between Informant and Mr. Cunningham through the open telephone line during the transaction, and his trial testimony was based on what he had heard at that time. During the argument on the motion to dismiss, trial counsel indicated that he understood that Officer Watkins’s description of the conversations between Mr. Cunningham and Informant was based on his memory of what he heard over the telephone on April 1, 2011.

At ¶ 20.

On appeal, Mr. Cunningham argues that trial counsel’s testimony about the recording being played and no voices being audible was critical to challenge Officer Watkins’s testimony “to the effect that [Mr.] Cunningham’s voice could be heard” on the recording. According to Mr. Cunningham, impeachment of Officer Watkins was “vital to the defense because [Officer Watkins] was the only person aside from [Informant], who admittedly had credibility problems, who could place Mr. Cunningham at the scene of the crime.” However, Mr. Cunningham’s argument presupposes that Officer Watkins’s testimony about hearing an unidentified male voice referred to a recording of the drug transaction rather than the live feed of the actual transaction. We are not convinced that this is a fair reading of Officer Watkins’s testimony.

At ¶ 21.

The only evidence that trial counsel could have provided was that Officer Watkins played the recording, but no voices could be heard. Thus, trial counsel may have challenged Officer Watkins’s statements that the recording could not be opened and played. However, trial counsel’s testimony would not have proved that Officers Watkins and Gledhill were unable to hear the transaction over the speaker phone while it transpired. Likewise, it would have had little impeachment value in terms of Officer Watkins’s identification of Mr. Cunningham as the male voice he heard on April 1, 2011, because Officer Watkins did not assert that he used the recording for that purpose and any inference from his testimony to that effect is weak.

At ¶ 24.

Under these circumstances, trial counsel did not perform deficiently. Rule 3.7 of the Utah Rules of Professional Conduct states, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness . . . .” Given the minimal impeachment value that trial counsel’s testimony would have provided, trial counsel would not have been a necessary witness. Furthermore, withdrawal may not have been permissible under the facts of this case. See Utah R. Prof’l Conduct 1.16(b) (“[A] lawyer may withdraw from representing a client if . . . withdrawal can be accomplished without material adverse effect on the interests of the client . . . .”); id. R. 3.7 (forbidding counsel who is a necessary witness from withdrawing when “disqualification of the lawyer would work substantial hardship on the client”). Thus, any motion to withdraw may well have been futile. And trial counsel’s decision not to withdraw midtrial to testify was sound strategy given that trial counsel’s testimony would not have effectively contradicted Officer Watkins’s testimony. . . .

At ¶ 25. 

Mr. Cunningham also argues that the trial court plainly erred by not sua sponte declaring a mistrial and removing trial counsel. Because trial counsel’s decision not to withdraw midtrial was sound strategy, Mr. Cunningham cannot establish any obvious error that the trial court should have corrected. . . .

At ¶ 26.

State v. Johnson, 2013 UT App 276, No. 20110938-CA (November 21, 2013)

ISSUES: Timeliness of Objection for Purposes of Preservation,

Judge Roth,

Defendant De Royale Johnson appeals from convictions for burglary, attempted theft, possession of a dangerous weapon, criminal mischief, and providing false information to a peace officer. He argues that the trial court committed reversible error under rule 17(b) of the Utah Rules of Criminal Procedure when it gave priority to an older criminal case, delaying Johnson’s trial for two weeks. Because Johnson failed to preserve this issue for appeal, we affirm.

At ¶ 1.

Johnson argues that the ‚trial court erred when it continued [his] jury trial in violation of Rule 17(b) of the Rules of Criminal Procedure.‛ Rule 17(b) provides that

[c]ases shall be set on the trial calendar to be tried in the following order:

(b)(1) misdemeanor cases when defendant is in custody;

(b)(2) felony cases when defendant is in custody;

(b)(3) felony cases when defendant is on bail or recognizance; and

(b)(4) misdemeanor cases when defendant is on bail or recognizance.

Utah R. Crim. P. 17(b). According to Johnson, the rule imposes a ‚non-discretionary prioritization of cases in which persons who are in custody take priority over those who are not.‛ By failing to prioritize his case according to the rule, Johnson argues, the court ‚denied him two key results.‛ First, because the State was not prepared to try Johnson’s case, he ‚could have asked the court to dismiss the matter‛ pursuant to rule 25. See id. R. 25(b)(1) (providing that courts ‚shall dismiss‛ a case when ‚*t+here is unreasonable or unconstitutional delay in bringing defendant to trial‛). Second, Johnson asserts that the ‚pressure of having [his+ case dismissed for *the prosecution’s+ lack of preparation . . . motivated the potential for a misdemeanor plea bargain‛ substantially more favorable to Johnson than what was otherwise on the table. Failing to comply with rule 17(b), however, ‚effectively released any pressure the State felt about being prepared for trial and prevented Mr. Johnson from receiving the favorable plea bargain he sought in the case.‛ As a result, Johnson argues, his conviction should be reversed.

At ¶ 6.

Whether rule 17(b) requires trial courts to automatically displace a case already calendared for trial when a higher-priority case subsequently competes for the same trial date is a matter of first impression. Because Johnson has not properly preserved this issue for appeal, however, we do not reach it.2 ‚To preserve an issue for appeal, ‘the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.’‛ In re A.T.I.G., 2012 UT 88, ¶ 21, 293 P.3d 276 (quoting Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366). ‚[M]erely mentioning‛ an issue at trial will not preserve it for appeal. Id. (citation and internal quotation marks omitted). Rather, ‚(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority.‛ Id. (citation and internal quotation marks omitted).

At ¶ 7.

Johnson’s claim is not preserved because he did not raise it ‚in a timely fashion.‛ See id. (citation and internal quotation marks omitted). The timeliness requirement is ‚a pre-condition to appellate review because entertaining belatedly raised issues sanction[s] the practice of withholding positions that should properly be presented to the trial court but which may be withheld for the purpose of seeking a reversal on appeal and a new trial or dismissal.‛ State v. Brown, 856 P.2d 358, 361–62 (Utah Ct. App. 1993) (alteration in original) (citation and internal quotation marks omitted). In other words, the rule prevents ‚defendants from ‘sandbagging’ the prosecution‛ by waiting until the only available remedy for the alleged error is outright dismissal or a new trial. See Salt Lake Cnty. v. Carlston, 776 P.2d 653, 656 (Utah Ct. App. 1989) . . .

At ¶ 8. 

Just as courts can easily correct a prosecutor’s improper use of peremptory challenges or errors in jury instructions when objections are timely, trial judges can remedy scheduling errors without difficulty if counsel objects when cases are initially calendared or even at subsequent conferences held in advance of trial. The only remedy for a violation of rule 17(b) raised the day of trial or post-trial, however, is likely to be dismissal.

At ¶ 9.

Here, like objections to peremptory strikes after the jury is empaneled or objections to jury instructions after the jury retires for deliberations, Johnson did not raise his objection ‚in such a manner that the trial court *was+ able to fashion a remedy‛ for any potential rule 17(b) violation. See Valdez, 2006 UT 39, ¶ 44. Rather, he waited until July 6, the morning of trial, before raising his rule 17(b) objection and filed a motion to dismiss five days later on July 11. Johnson’s objection confronted the court with a Hobson’s choice between bumping an older case with out-of-town witnesses ready to proceed or dismissing Johnson’s case. The court had set Johnson’s trial in second position weeks before, advising him on June 30 that there was ‚a pretty good chance‛ that the first-position Kuntz case would ‚bump*+‛ Johnson’s July 6 trial date. The court even discussed the possibility of ‚call*ing+ *Johnson’s case+ off‛ altogether. Ultimately, the court elected to leave Johnson’s July 6 trial date undisturbed in the event that the Kuntz case settled. But the court clearly indicated that Johnson’s case was ‚a second-place setting, Kuntz is the first place,‛ and it was unlikely Johnson’s trial would go forward on July 6. Not only did Johnson fail to raise his rule 17(b) objection at the pretrial conference, but he also asked the court to schedule another pretrial conference for July 14—more than one week after the original trial date. Even if unintentional, it is difficult to view the effect of Johnson’s objection on the morning of trial as anything other than “sandbagging the prosecution,” see Carlston, 776 P.2d at 656 (citation and internal quotation marks omitted), forcing a possible dismissal based on an alleged error the court might have remedied had Johnson raised the issue when the trial was originally calendared or even a week earlier at the final pretrial conference.

At ¶ 10.

We therefore conclude that Johnson’s rule 17(b) objection was untimely and unpreserved. As a result, we do not reach the issue of whether the court violated rule 17(b) and prejudiced Johnson’s defense. The trial court’s judgment is affirmed.

At ¶ 11.

State v. Feldmiller, 2013 UT App 275, No. 20120862-CA (November 21, 2013)

ISSUES: Ineffective Assistance of Counsel

Per Curiam,

Defendant challenges defense counsel’s failure to request a special mitigation instruction for a murder charge.  The Court reviews the context of trial counsel’s determination and determines that trial counsel’s “strategic reason for rejecting the manslaughter instruction and for not requesting the special mitigation instruction was to pursue the all or nothing defense. This court has previously recognized the validity of the strategy. See id.; see also State v. Valdez, 432 P.2d 53, 54 (Utah 1967).”

. . . Here, counsel believed that the State had overcharged Feldmiller and could not meet its burden of proving the requisite intent of murder. Accordingly, Feldmiller’s counsel, after consulting with Feldmiller, elected to pursue a strategy that would not allow the jury to convict on a lesser charge. Because of the wide latitude counsel is given in making strategic decisions at trial, we cannot conclude that counsel acted unreasonably in pursuing such a strategy. Therefore, Feldmiller fails to demonstrate that his trial counsel was ineffective.

At ¶ 4.

. . . plain error review is inappropriate when it resulted from the appellant’s strategic decision. See State v. McNeil, 2013 UT App 134, ¶ 13, 302 P.3d 844 . . . .

At ¶ 5.

State v. Ruiz, 2013 UT App 274, No. 20071003-CA (November 21, 2013)

ISSUES: Withdrawal of Guilty Plea, Knowledge of Minimum Sentences & Immigration Consequences

Judge Orme,

Defendant Wolfgango Ruiz appeals the district court’s denial, on reconsideration, of his motion to withdraw his guilty plea to a charge of attempted sexual abuse of a child, a third degree felony. See Utah Code Ann. § 76-5-401 (LexisNexis 2012). We affirm. 

At ¶ 1.

The Court outlines the background of this case at the trial level Specifically, 1) Defendant’s Motion to Withdraw guilty plea arguing that he received incorrect information about possible sentences and immigration consequences from counsel, 2) Judge Fuchs’ order granting Defendant’s motion and denying State additional time to present testimony of prior counsel, 4) The State’s Motion to reconsider, Judge Fuchs retirement, and 5) Judge Skanchy’s order granting the Motion to reconsider, hearing prior counsel’s testimony, and denying the Motion to Withdraw Guilty plea.

At ¶¶ 2-7.

The Court outlines the background of this case on appeal

At ¶ 8-11.

As the Utah Supreme Court instructed in its opinion, the current plea withdrawal statute requires that before his motion to withdraw a guilty plea can be granted, Defendant must show that his plea was “not knowingly and voluntarily entered.” State v. Ruiz, 2012 UT 29, ¶ 30, 282 P.3d 998. See Utah Code Ann. § 77-13-6(2)(a) (LexisNexus 2012). Defendant challenges his plea as unknowing and involuntary based on two ineffective assistance of counsel claims.

At ¶ 13.

To review Defendant’s claims of ineffective assistance of counsel, we use the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that the Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel”). First, Defendant bears the burden of showing that his prior counsel’s performance “fell below an objective standard of reasonableness,” i.e., that it fell below a standard of “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. In evaluating counsel’s performance, we “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Second, Defendant must show that he was prejudiced by the deficient performance. See id. at 687.

At ¶ 14.

Defendant asserts that his plea was unknowing and involuntary because his prior counsel (1) exaggerated the benefit of the proposed plea by incorrectly instructing him that he faced a “minimum mandatory sentence of five years” if convicted of the original second degree felony charge, when the potential sentence was actually an indeterminate term of one to fifteen years imprisonment and (2) offered deficient advice on the immigration consequences of his guilty plea.

At ¶ 15.

Defendant argues that his former counsel incorrectly instructed him that a plea would help him avoid “the consequences of a minimum mandatory five-year prison term under the original second degree felony charge,” when no minimum mandatory sentence in fact applied. See Utah Code Ann. § 76-3-203(2) (LexisNexis 2012) (stating that the sentence for a second degree felony is an indeterminate term of one to fifteen years). However, this characterization of former counsel’s advice is problematic in light of Judge Skanchy’s specific findings to the contrary, which credited former counsel’s testimony over that of Defendant. Former counsel testified that he “knew that a Second Degree felony carried a one to fifteen year incarceration” but advised Defendant that, in his opinion, “he would serve a minimum of ‘five years in prison’ if he were to take the matter to trial” and be convicted. In fact, in considering former counsel’s testimony that he told Defendant that “he would normally certainly do at least five years in prison,” Judge Skanchy noted that this was “the practical extent of an indeterminate sentence.”

At ¶ 16.

. . . Given Judge Skanchy’s findings that former counsel advised Defendant about the practical effect of an indeterminate sentence upon conviction of a second degree felony, the advice provided to Defendant—which properly informed him of his likely period of incarceration—actually rendered his plea more knowing and voluntary than it would otherwise have been, and thus falls squarely within the realm of “professionally competent assistance.” See Strickland, 466 U.S. at 690.

At ¶ 17.

. . . Rule 11 mandates that a defendant know the maximum and minimum sentence, and the minimum mandatory sentence, if any, “that may be imposed for each offense to which a plea is entered.” Utah R. Crim. P. 11(e)(5) (emphasis added). Thus, rule 11, by its terms, only requires that Defendant be fully informed of the consequences of the third degree felony, the offense to which his plea was entered. On its face, this rule does not require that Defendant be fully informed regarding the minimum and maximum sentences to charges that the guilty plea avoids. . . .

At ¶ 18.

Finally, Defendant relies on several federal circuit court cases holding that, in his words, when the “maximum possible exposure is overstated, the defendant might well be influenced to accept a plea agreement he would otherwise reject.” See, e.g., Pitts v. United States, 763 F.2d 197, 201 (6th Cir. 1985). However, as the State correctly notes, Defendant was properly informed that the maximum possible exposure he faced if convicted of the second degree charge was fifteen years, and former counsel’s advice that he was likely to serve five years of a one to fifteen year indeterminate sentence did not overstate the maximum possible exposure of the second degree charge. Therefore, because former counsel rendered accurate advice about the practical effect of Defendant’s possible sentence and because that advice complied with the requirements of rule 11, Defendant’s plea was knowing and voluntary as to its incarceration consequences.

At ¶ 19.

Defendant next contends that his trial counsel failed to adequately inform him of the immigration consequences of his guilty plea under both Utah’s traditional collateral consequences rule, articulated in State v. Rojas-Martinez, 2005 UT 86, 125 P.3d 930, and under the United States Supreme Court case of Padilla v. Kentucky, 559 U.S. 356 (2010).

At ¶ 20.

Applying either Rojas-Martinez or Padilla, we reach the conclusion that former counsel’s advice to Defendant that he would “almost certainly” be deported if he did not plead guilty to the reduced charge imparted, under the circumstances, “more than enough gravity to the risk of deportation,” Rojas-Martinez, 2005 UT 86, ¶ 30, and thus also met the low bar of Padilla requiring that counsel “inform [his] client whether his plea carries a risk of deportation,” 559 U.S. at 374. Significantly, the district court found that

during the course of his representation [former counsel] told his client that he may not face deportation as a result of his plea to a Third Degree Attempted Abuse Of A Child but that “could be a possibility.” He indicated that he told his client a second degree felony conviction would “certainly trigger deportation.”

Given this specific finding, we see no error in the district court’s conclusion that former counsel fulfilled his duty of affirmatively informing Defendant that there could well be immigration consequences to his decision to plead or go to trial. Defendant does not challenge the district court’s factual findings but instead argues that his former counsel’s overstatement of the risk of deportation “distorted [Defendant’s] incentive to proceed to trial.” The district court was satisfied, however, that former counsel adequately informed Defendant of the deportation risks of his guilty plea. And Judge Skanchy’s factual findings have not been shown to be clearly erroneous. See Jelashovic, 2012 UT App 220, ¶ 10. Thus, former counsel’s immigration advice that Defendant would almost certainly be deported if he proceeded to trial and was convicted, but may not be if he accepted the plea deal offered to him, did not fall below “an objective standard of reasonableness.” See Strickland, 466 U.S. at 688.

At ¶ 23.

Given Judge Skanchy’s findings of fact and, in particular, his crediting of former counsel’s testimony, we hold that trial counsel’s performance in advising Defendant on the incarceration and immigration consequences of his guilty plea did not fall below “an objective standard of reasonableness,” see id., regardless of whether Padilla applies, because Defendant was adequately informed of the potential incarceration and immigration consequences of his plea. Therefore, Defendant’s guilty plea was knowing and voluntary, and Judge Skanchy’s denial of Defendant’s motion to withdraw his plea is affirmed.

At ¶ 24.

Eighth District Electrical v. Westland, 2013 UT App 273, No. 20120781-CA (November 21, 2013)

ISSUES: Mootness

Judge Orme,

The Trustees of the Eighth District Electrical Pension Fund (Pension Fund) and Utah Valley Electric, Inc. (Utah Valley) appeal the district court’s order granting summary judgment in favor of Westland Construction, Inc. (Westland). We dismiss the appeal on mootness grounds.

At ¶ 1.

“[W]e will not adjudicate issues when the underlying case is moot. A case is deemed moot when the requested judicial relief cannot affect the rights of the litigants.” State v. Lane, 2009 UT 35, ¶ 18, 212 P.3d 529 (alteration in original) (citations and internal quotation marks omitted). Additionally, “[a]n appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect.” Id. (citations and internal quotation marks omitted). Indeed, mootness “can be determined by facts that change or develop as the suit is pending.” Salt Lake County v. Holliday Water Co., 2010 UT 45, ¶ 21, 234 P.3d 1105 (citation and internal quotation marks omitted).

At ¶ 2.

Following the district court’s judgment, and while this appeal was pending, a sheriff’s sale was held at which another of Utah Valley’s creditors, QED, Inc., purchased “[a]ny and all claims, causes of action, choses in action, rights to payment, rights to compensation, actions, fines, damages, penalties, sanctions, costs or attorneys’ fees, of every kind and nature . . . which Utah Valley . . . has or may have against Westland.” It is undisputed that QED then sold these rights to Westland. The Utah Supreme Court has made clear that this is permissible, holding that a defendant may “purchase claims, i.e., choses in action, pending against itself and then move to dismiss those claims.” Applied Med. Techs., Inc. v. Eames, 2002 UT 18, ¶ 13, 44 P.3d 699. Therefore, because QED purchased Utah Valley’s claims against Westland and subsequently sold them to Westland, the claims are now extinguished and this court can provide no meaningful relief.

At ¶ 4.

State v. Anderson, 2013 UT App 272, No. 20110864-CA (November 21, 2013)

ISSUES: Fourth Amendment, Probable Cause

Judge Roth,

Cassandra Anderson appeals from the district court’s decision to deny her motion to suppress drug evidence discovered after Anderson was detained by an officer who had been observing her interaction in a parking lot with a woman in another vehicle. Anderson contends that the officer did not have reasonable, articulable suspicion to detain her. We affirm.

At ¶ 1.

The Court reviews the fact of this case. Specifically, the special training the arresting officer had regarding drug transactions, and his observations of a hand to hand transaction at gas station known to be a common location for drug sales.

At ¶¶ 2-9.

. . . A traffic stop is reasonable, and therefore constitutional, if the stop ‚”[was] justified at its inception” and if “the detention following the stop was reasonably related in scope to the circumstances that justified the interference in the first place.” Id. ¶ 9 (alteration in original) (citation and internal quotation marks omitted). Because Anderson is not challenging the scope of the stop following the detention, we address only whether Sergeant Robinson was justified in stopping Anderson in the first place.

At ¶ 11.

“In determining the reasonableness of a . . . seizure . . . , three constitutionally permissible levels of police stops have been outlined.” Id. ¶ 8 (citation and internal quotation marks omitted). “A brief, investigatory stop of a vehicle constitutes a level two encounter, for which . . . reasonable, articulable suspicion is required.” Id. ¶ 9 (citation and internal quotation marks omitted). A police officer has reasonable, articulable suspicion when the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968); accord State v. Alverez, 2006 UT 61, ¶ 14, 147 P.3d 425. An officer is not required to rule out innocent explanations for behavior that he deems suspicious so long as his suspicion has a basis in reason. Applegate, 2008 UT 63, ¶ 10. But courts will not condone intrusions based merely on an officer’s “inarticulate hunch” or “inchoate and unparticularized suspicion” that criminal activity is afoot. Terry, 392 U.S. at 27; see also Applegate, 2008 UT 63, ¶ 10. Rather, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief” that the intrusion the officer plans is justified in order to investigate criminal activity? Terry, 392 U.S. at 21–22 (citation and internal quotation marks omitted).

At ¶ 12.

In evaluating whether this “reasonable, articulable suspicion” standard has been satisfied, a court considers the “‘totality of the circumstances’ to determine whether, taken together, the facts warranted further investigation by the police officer.” Alverez, 2006 UT 61, ¶ 14 (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). In conducting this analysis, courts must “accord deference to an officer’s ability to distinguish between innocent and suspicious actions,” State v. Markland, 2005 UT 26, ¶ 11, 112 P.3d 507 (citation and internal quotation marks omitted), even if that distinction depends on inferences drawn from the circumstances that might “‘elude an untrained person,’” Singleton, 2005 UT App 464, ¶ 8 (quoting Arvizu, 534 U.S. at 273).

At ¶ 13.

The Court outlines in more detail the arresting officer’s testimony about what he observed and why it was suspicious.

At ¶¶ 14-16.

Based on Sergeant Robinson’s training, particularly on hand-to-hand exchanges in drug transactions, and his considerable experience observing drug transactions in controlled buys and otherwise, we conclude that he had an objectively reasonable basis to suspect that the behavior he observed that day in the gas station parking lot suggested criminal activity. See Terry v. Ohio, 392 U.S. 1, 21–22 (1968). Sergeant Robinson supported his suspicion with “specific and articulable facts” indicating drug activity was afoot. See id. at 21; State v. Alverez, 2006 UT 61, ¶ 14, 147 P.3d 425. Although he acknowledged that Anderson’s conduct may have had an innocent explanation, officers need not rule out innocent explanations for behavior deemed suspicious, State v. Applegate, 2008 UT 63, ¶ 10, 194 P.3d 925. Rather, we “accord deference to an officer’s ability to distinguish between innocent and suspicious actions.” See Markland, 2005 UT 26, ¶ 11 (citation and internal quotation marks omitted). 

At ¶ 17.

On appeal, Anderson concedes that Sergeant Robinson had observed a hand-to-hand transaction in a known drug trafficking area. However, she contends that this alone is not enough to support reasonable, articulable suspicion. Rather, Anderson asserts that courts in Utah and other jurisdictions have consistently concluded that something in addition to a hand-to-hand exchange in a high drug trafficking area is necessary for a bare suspicion to mature into a reasonable one. To support her position, Anderson cites State v. Beach, 2002 UT App 160, 47 P.3d 932, and State v. Singleton, 2005 UT App 464, 128 P.3d 28, as well as a number of cases from other jurisdictions.

At ¶ 18.

We decline to adopt the approach that Anderson advocates. This court has recognized that “officers’ observation of a hand-to-hand exchange in an area known for drug trafficking [can be] a sufficient and independent basis for reasonable suspicion [that] the defendant” is engaged in criminal activity. State v. Singleton, 2005 UT App 464, ¶ 12, 128 P.3d 28. Anderson asserts that this conclusion was not necessary to the resolution of Singleton and is therefore merely dicta. Even if that were the case, however, the Utah Supreme Court has advised courts to avoid a narrow focus in such cases and evaluate the “‘totality of the circumstances’ to determine whether, taken together, the facts warranted further investigation by the police officer.” State v. Alverez, 2006 UT 61, ¶ 14, 147 P.3d 425 (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002)). We are persuaded that the totality of the circumstances here supports a conclusion that Sergeant Robinson articulated reasonable suspicion to detain Anderson for further investigation. 

At ¶ 24.

On the date Anderson was detained, Sergeant Robinson and his two Major Crimes colleagues were not simply patrolling an area known for drug trafficking. They were conducting surveillance on a particular gas station parking lot where Major Crimes had historically observed drug transactions, set up controlled buys, and made drug-related arrests and which it was now targeting for further drug-focused observation based on that history. Sergeant Robinson’s attention was drawn to Anderson after she entered the lot, parked away from the store, and waited in her car for ten minutes after her daughter returned from the store for a second person to arrive. When that person did arrive, Anderson went directly to the car, leaned in through the open driver’s window while the other driver remained in the car, received a small object in a hand-to-hand exchange, and then quickly concluded the transaction and left. Although it is possible that Anderson was at the gas station simply to collect the $100 that she claimed she was owed, an officer need not rule out all innocent explanations before reasonable suspicion can arise. See State v. Applegate, 2008 UT 63, ¶ 10, 194 P.3d 925. Indeed, Sergeant Robinson acknowledged the possible innocent explanations for Anderson’s conduct but explained that he believed the conduct to be suspicious because it was not accompanied by the usual indications of legal exchanges: both parties stepping out of their vehicles, conducting the exchange in the open, and spending some time talking.

At ¶ 25.

Sergeant Robinson was highly experienced in observing drug transactions, particularly those involving hand-to-hand exchanges. He testified that based on the circumstances and his own experiences with drug purchases, even before Anderson left her car, he was “looking for a hand-to-hand transaction” that was “not going to be out in the open.” And the occurrence of such an exchange supported his suspicion that the transaction was drug-related because “based on [his] experience” with “arrang[ing]”‛ and observing drug buys, “they’re trying to hide something.” The two-minute length of the interaction further confirmed his suspicion because with drug exchanges, “it’s usually brief,” whereas innocent exchanges generally involve the parties talking at greater length.

At ¶ 26

Though experience and training alone might lead to only a hunch, here Sergeant Robinson articulated a basis in his specific observations of Anderson in the gas station parking lot that day to justify confidence in the suspicion he developed from the application of his training and experience to the facts and circumstances before him. “In conducting [a] reasonable suspicion analysis, officers may ‘draw on their own experiences and specialized training to make inferences from deductions about the cumulative information available to them that might well elude an untrained person.’” Singleton, 2005 UT App 464, ¶ 8 . . . Accordingly, we affirm the denial of the motion to suppress.

At ¶ 27.