December 3, 2013 Utah Supreme Court Case Summaries

State v. Machan, 2013 UT 72, No. 20110961 (December 3, 2013)

ISSUES: Burglary, Voluntary Relinquishment of Possessory Rights

Justice Durham,

           Wesley Machan was charged with aggravated burglary, aggravated assault, and commission of domestic violence in the presence of a child after he entered a home he owned with his estranged wife and brandished a rifle. Mr. Machan had been arrested and removed from the home six months prior to this incident and had been living in a separate residence due to a restraining order against him. Three weeks prior to his entry into the home, however, the restraining order expired. A magistrate found Mr. Machan could not be bound over on the aggravated burglary charge because there was insufficient evidence that he had relinquished his possessory interest in the home to render his entry unlawful within the meaning of Utah’s burglary statute.

At ¶ 1.

We affirm the magistrate’s determination. Although an estranged spouse may implicitly relinquish his or her possessory rights to the marital home by voluntarily establishing a separate residence, the State did not produce evidence of voluntary relinquishment in this case.

At ¶ 2.

The Court outlines the background of this case. 

At ¶¶ 3-7.

“An actor is guilty of burglary who enters or remains unlawfully in a building or any portion of a building with intent to commit . . . a felony. . . .” UTAH CODE § 76-6-202(1). An entry is unlawful if “the premises are not open to the public” and “the actor is not otherwise licensed or privileged to enter . . . the premises.” Id. § 76-6-201(3). An aggravated burglary conviction requires proof of all of the elements of burglary, as well as evidence of one of several aggravating factors, including the threatened use or possession of a dangerous weapon. Id. § 76-203(1).

At ¶ 11.

The principal contested issue at the bindover hearing was whether the State had produced “evidence sufficient to support a reasonable belief” that Mr. Machan’s entry into the family residence was unlawful. State v. Maughan, 2013 UT 37, ¶ 14, 305 P.3d 1058 (internal quotation marks omitted). Because the restraining order was no longer in effect, and because Mrs. Machan had not obtained an order establishing the parties’ rights to the marital home in the pending divorce proceedings, Mr. Machan did not unlawfully enter the home in violation of a court order. See State v. Byars, 823 So. 2d 740, 745 (Fla. 2002) (“A court order can negate a person’s right to enter the premises even if that person owns the premises.” (internal quotation marks omitted)). The State asserts, however, that Mr. Machan relinquished his privilege to enter the home by establishing a separate residence, making his presence in the home unlawful within the meaning of Utah’s burglary statute. Our case law has not addressed the conditions under which an estranged spouse may burglarize the family home absent a court order excluding the spouse. We look, therefore, to other states that have addressed this issue.

At ¶ 12.

A title owner of a dwelling is not always privileged to enter the premises. For example, a landlord may burglarize the dwelling of a tenant because the landlord conveys the right of possession to the tenant. See State v. Spence, 768 N.W.2d 104, 109 (Minn. 2009). Thus, the proper focus of our inquiry is whether Mr. Machan surrendered his possessory rights to the family home prior to his entry and alleged assault. See State v. Hagedorn, 679 N.W.2d 666, 670 (Iowa 2004) . . . .

At ¶ 13.

. . . We . . . agree with the Minnesota Supreme Court that a cotenant’s waiver of possessory rights to a shared home is properly grounded in contract law. Spence, 768 N.W.2d at 109–10. Under these principles, it is generally a jury question whether the parties’ actions give rise to an implied-in-fact contract transferring the sole right of possession to the spouse who remains in the home. Id. at 110.

At ¶ 14.

Utah Code section 30- 2-10 confirms that any relinquishment of a spouse’s possessory right to the marital home must be voluntary: “Neither the husband nor wife can remove the other or their children from the homestead without the consent of the other, unless the owner of the property shall in good faith provide another homestead suitable to the condition in life of the family . . . .” By statute, therefore, consent is a necessary requirement for any nonjudicial forfeiture of a spouse’s right to enter the homestead.

At ¶ 15.

Other jurisdictions that have examined the question of whether a spouse or cotenant has relinquished possessory rights to a previously shared dwelling in the context of a burglary charge have identified several relevant considerations. Courts look foremost to whether a spouse or cotenant has voluntarily moved out of a shared home and established a separate residence. State v. O’Neal, 721 N.E.2d 73, 82 (Ohio 2000) . . . Additionally, courts have examined whether a spouse or cotenant has removed personal belongings. Hollenbeck, 944 P.2d at 539. Courts also look to whether a spouse or cotenant has willingly relinquished keys to the residence, evidencing an understanding that the excluded party could no longer enter at will. Spence, 768 N.W.2d at 111 . . . Surreptitious entry or obtaining admittance through violence may also support an inference that a spouse or cotenant understood that he or she had relinquished possessory rights to the home. Spence, 768 N.W.2d at 111 . . . .

At ¶ 16.

These considerations do not constitute an exhaustive list of relevant conduct informing the question of whether a defendant has consented to relinquish possessory rights by implication. An agreement implied in fact is inferred “from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Hercules, Inc. v. United States, 516 U.S. 417, 424 (1996) (internal quotation marks omitted). Thus, any conduct that tends to prove or disprove the existence of a mutual agreement for one spouse to relinquish a possessory right in the marital home is relevant.

At ¶ 17.

           There is no evidence that Mr. Machan voluntarily moved out of the marital home. Instead, Mr. Machan was arrested and removed from the home by police. The subsequent restraining order prohibited him from returning to the residence for the next 150 days. Thus, Mr. Machan’s removal from the home and subsequent absence during this time period could not support an inference that he had implicitly agreed to forfeit his right of possession. And the fact that his wife packed his personal belongings, which were retrieved by Mr. Machan’s sister, likewise does not bespeak a voluntary relinquishment of Mr. Machan’s property rights. Although Mrs. Machan’s unilateral removal of his belongings demonstrates her intent to remove her husband from the residence, her intent alone is insufficient.

At ¶ 19.

The State argues that because Mr. Machan did not take his house keys when he was initially arrested and removed from the home, he abandoned his right to return. But the record reflects that Mr. Machan simply did not have keys to the house on him when he was arrested. He did not voluntarily relinquish his keys. See Gill, 70 Cal. Rptr. 3d at 867.

At ¶ 20.

The State also asserts that the fact that Mr. Machan’s wife gave him permission to enter the home twice during the pendency of the restraining order indicated an understanding that Mr. Machan could only enter the property after obtaining a license to do so from his wife. During this period of time, however, the restraining order obtained by Mrs. Machan prohibited his presence on the property. Therefore, any permission to enter the home while the restraining order was in place merely evidences an agreement not to inform the authorities of the violation of the restraining order, rather than an agreement to relinquish Mr. Machan’s possessory rights.

At ¶ 21.

As additional support for its argument that Mr. Machan had relinquished his possessory rights, the State presented evidence that after Mr. Machan was arrested and removed from the home his wife paid the mortgage. But the State presented no evidence of who contributed to the mortgage payments prior to his arrest, so there is no indication that Mr. Machan changed his behavior. Undoubtedly many spouses do not make mortgage payments, but this alone does not indicate an intent to abandon all possessory rights to the marital home.

At ¶ 22.

Finally, the State argues that Mr. Machan’s failure to reestablish his residency for approximately three weeks after the restraining order had lapsed shows that he intended to relinquish his right to enter the marital home. In some instances an extended absence from the home may give rise to an inference of a mutual agreement to relinquish one spouse’s possessory right. However, the relatively short amount of time between the expiration of the restraining order and Mr. Machan’s subsequent reentry into the home is insufficient, by itself, to support such an inference here. A failure to act, moreover, is less indicative of the existence of an implied agreement than affirmative acts consistent with such an agreement. Absent other evidence of affirmative acts demonstrating an intent to relinquish his possessory rights, Mr. Machan’s threeweek absence from the home is insufficient to demonstrate an intent to relinquish his possessory rights.

At ¶ 23.

Examining the totality of the evidence, we conclude the magistrate did not abuse his limited discretion by finding that the State’s evidence was insufficient to support a reasonable belief that Mr. Machan implicitly agreed to relinquish his possessory right to the family home. Although the State’s burden in the bindover hearing is light, we cannot say that the magistrate erred in determining the State did not carry that burden here.

At ¶ 24.

State v. Bedell, 2013 UT 73, No. 20120692 (December 3, 2013)

ISSUES: Rule 404(b) Evidence of Prior Bad Acts

Justice Nehring,

The State challenges the Utah Court of Appeals‘ reversal of defendant Dr. Raymond Bedell‘s conviction of misdemeanor sexual battery. The State asserts that a panel majority of the court of appeals erred when it reversed Dr. Bedell‘s conviction on the basis of ineffective assistance of counsel and plain error on the part of the district court. . . .  We reverse the decision of the court of appeals, vacate that opinion, and affirm Dr. Bedell‘s conviction.

At ¶ 1.

Without objection by defense counsel, the prosecutor then elicited testimony during redirect examination of the detective that there had been an investigation into six other allegations of sexual misconduct against Dr. Bedell by former female patients. The women all reported similar incidents: Dr. Bedell abused each victim on their first visit while he was alone with them, he made similar comments to the women who were of similar ages, and he prescribed narcotics for each.

At ¶ 11.

Later in the proceedings, while discussing jury instructions outside the presence of the jury, the prosecution requested a limiting instruction for the evidence related to the other allegations against Dr. Bedell. The prosecutor asked that the court instruct the jury that evidence of other sexual misconduct by Dr. Bedell “is solely for the purpose of testing whether [S.B.] could have created the story” so “that the jury will understand clearly that they are not deciding the truth of the other allegation[s].” Defense counsel stated that he had no objection. After the court expressed some concern, the prosecutor said he would discuss the instruction in his closing argument to explain that the other sexual misconduct evidence was presented “to respond to the defendant‘s strategy of claiming that [S.B.] ginned up this story or fabricated it.” The court replied, “I think that‘s appropriate.” Defense counsel did not object to the prosecutor‘s proposed argument.

At ¶ 12.

Dr. Bedell appealed to the Utah Court of Appeals. He argued that the district court committed plain error and his trial counsel was ineffective in allowing the investigating detective‘s testimony on redirect examination about other allegations of sexual misconduct against him (the 404(b) evidence). . . .

At ¶ 16.

. . . The majority determined there was “no basis in the record for the trial court to have reversed its original ruling, as there is nothing to indicate that [Dr.] Bedell opened the door to the 404(b) evidence.” The majority accordingly held that the district court plainly erred and counsel rendered ineffective assistance in allowing the 404(b) evidence.

At ¶ 17.

Even without conjecturing whether the district court revised its earlier 404(b) ruling during the unrecorded bench conference (as the State asks us to do), the record as it exists supports the conclusion that defense counsel made an affirmative decision from the outset to utilize the 404(b) evidence to attack the State‘s case and S.B.‘s credibility. This was particularly evident during the defense‘s cross-examination of the investigating detective, wherein counsel asked the detective about the other allegations against Dr. Bedell. Once this occurred, the State was permitted to use the 404(b) evidence to refute the defense theory21 and to rebut the defense‘s allegation of fabrication. This would explain defense counsel‘s decision to not object to the State‘s use of the same evidence to defend against Dr. Bedell‘s invocation of the evidence.23 Further, the defense‘s strategy was likely effective, as Dr. Bedell was acquitted of the more serious charges and convicted of only the lesser-included misdemeanor.

At ¶ 24.

For these reasons, we disagree with the majority decision of the court of appeals, which could “see no basis in the record for the trial court to have reversed its original ruling, as there [was] nothing to indicate that [Dr.] Bedell opened the door to the 404(b) evidence.” We agree with Judge Thorne‘s dissenting opinion that “[Dr.] Bedell attempted to use the 404(b) evidence to his advantage in two distinct ways”: as a means to attack the State‘s investigation and to suggest that S.B. “was engaging in copycat behavior, accusing [Dr.] Bedell of misbehavior because she knew that he was already being accused by others.” Therefore, because there was a legitimate strategic decision for Dr. Bedell‘s counsel to use the 404(b) evidence and his use of that evidence allowed the State to similarly make use of the evidence, his ineffective assistance of counsel claim must fail.

At ¶ 25.

In light of the court‘s pretrial ruling that the State could ”resubmit some or all of the 404(b) evidence at trial . . . if [Dr. Bedell] ‘open[ed] the door‘ to the same,” the court did not commit plain error by allowing the evidence to come in at trial. A district court is “not required to constantly survey or second-guess [a] nonobjecting party‘s best interests or trial strategy” and is not expected to intervene in the proceedings unless the evidence “would serve no conceivable strategic purpose.”28 Further, the court should take measures to avoid interfering with potential legal strategy or creating an impression of a lack of neutrality.29 Plain error does not exist when a “conceivable strategic purpose‘” exists to support the use of the evidence.30 Therefore, because defense counsel was not ineffective for failing to object to the State‘s use of the 404(b) evidence, there was no plain error on the part of the district court in not intervening to foreclose the State‘s use of the evidence.

At ¶ 26.