May 2, 2013, Utah Court of Appeals Case Summaries

May 2, 2013

Utah Court of Appeals Cases

State v. Graham, 2013 UT App 109, No. 20110492-CA (May 2, 2013)

ISSUE: Bindover for Communications Fraud

Judge Christiansen,

The State appeals from a magistrate’s order declining to bind over Defendant Rodger Martin Graham (Defendant) on three counts of communications fraud. We affirm.

At ¶ 1.

In dismissing the counts, the magistrate found that “[t]he State [did] not present[] enough facts to establish the second element of communications fraud.” See id. § 76-10-1801(1) (explaining that a person is guilty of communications fraud when that person uses a scheme or artifice “to obtain from another money, property, or anything of value by means of false or fraudulent pretenses, representations, promises, or material omissions”).

At ¶ 6.

To support the bindover of a defendant for trial, the prosecution must put forward enough evidence at the preliminary hearing to establish probable cause. See Utah R. Crim. P. 7(i)(2) (allowing for bindover when the magistrate “finds probable cause to believe that the crime charged has been committed and that the defendant has committed it”); see also Virgin, 2006 UT 29, ¶ 17. “[A] showing of ‘probable cause’ entails only the presentation of ‘evidence sufficient to support a reasonable belief that the defendant committed the charged crime.’” State v. Ramirez, 2012 UT 59, ¶ 9, 289 P.3d 444 (quoting Virgin, 2006 UT 29, ¶ 17). A “reasonable belief” in this context parallels the standard for an arrest warrant, meaning that the level of evidence that the prosecution must show is less than that required to prove guilt beyond a reasonable doubt. Id. “All that is required is reasonably believable evidence—as opposed to speculation—sufficient to sustain each element of the crime(s) in question.” Id. Also, the “magistrate must view all evidence in the light most favorable to the prosecution and must draw all reasonable inferences in favor of the prosecution.” State v. Clark, 2001 UT 9, ¶ 10, 20 P.3d 300 (citation and internal quotation marks omitted). Finally, the magistrate is not to weigh or sift through conflicting evidence presented at the preliminary hearing. See id.

At ¶ 8.

The Court outlines the evidence presented at the preliminary hearing.

At ¶¶ 10-13.

To properly bind Defendant over on each count of second degree felony communications fraud, the evidence must support a reasonable belief that (1) Defendant “devised [a] scheme or artifice to defraud” Green Harvest, or that he sought “to obtain from [Green Harvest] money, property, or anything of value”; (2) Defendant did so “by means of false or fraudulent pretenses, representations, promises, or material omissions”; (3) Defendant “communicate[d] directly or indirectly with any person by any means for the purpose of executing or concealing the scheme or artifice”; (4) “the pretenses, representations, promises, or material omissions made or omitted were made or omitted intentionally, knowingly, or with a reckless disregard for the truth”; and (5) the value of the property, money, or thing obtained or sought to be obtained is or exceeds $5,000. See Utah Code Ann. § 76-10-1801(1)(d), (7).

At ¶ 10.

We determine that the magistrate acted within her discretion in denying bindover on the three communications fraud counts. The determinative issue in this case is whether the evidence supports a finding of probable cause for communications fraud based on allegations that Defendant submitted false or fraudulent invoices. In viewing the evidence and all inferences drawn therefrom in the light most favorable to the prosecution, as we must, we determine that the State did not meet its burden at the preliminary hearing stage.

At ¶ 14.

[T]he prosecution is the party that has the burden to establish probable cause at the preliminary hearing. See Utah R. Crim. P. 7(i)(1) (“The state has the burden of proof [at a preliminary hearing] and shall proceed first with its case.”). Thus, it is the prosecution’s obligation to produce evidence demonstrating a reasonable belief that Defendant’s reimbursement explanation was false or fraudulent. The State has not identified any evidence of this nature in the record.

At ¶ 15.

[T]he “fact that [he] did not personally remove the asbestos does not provide a basis for the magistrate to reasonably infer that [his] request [for] reimbursement for the removal was fraudulent. Such a conclusion would be mere speculation.” Under Utah law, a magistrate is “free to decline bindover where the facts presented by the prosecution provide no more than a basis for speculation—as opposed to providing a basis for a reasonable belief.” State v. Virgin, 2006 UT 29, ¶ 21, 137 P.3d 787.

At ¶ 17.

The Court distinguishes this case from State v. Ramirez, 2012 UT 59.

At ¶¶ 18-22.

State v. Graham, 2013 UT App 110, No. 20110509-CA (May 2, 2013)

ISSUE: Bindover for Theft

Judge Christiansen,

The State charged Defendant Benjamin Jay Graham (Defendant) with multiple counts of communications fraud, theft, and unlawful pattern of activity. Following the preliminary hearing, the magistrate granted Defendant’s motion to dismiss all of the charges based on insufficient evidence. The State appeals the magistrate’s refusal to bind Defendant over on one count of second degree felony theft. We reverse and remand.

At ¶ 1.

The Court outlines the facts of the case

At ¶¶ 2-6.

Following his preliminary hearing, Defendant filed a motion to dismiss all of the charges for insufficient evidence. The magistrate granted the motion, and as to the theft charge at issue on appeal, the magistrate ruled that before Defendant had used the company debit card while on vacation, “there were no policies in place at Green Harvest forbidding personal use of the [debit] card” and that Investor’s Son “ratified the transaction by agreeing to let [Defendant] repay the money.” Therefore, the magistrate determined that “the State failed to show the first element of theft because there is no evidence that [Defendant] exercised unauthorized control over any property.” See id. § 76‐6‐404 (“A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.”). The State appeals.

At ¶ 6.

In viewing the evidence in the light most favorable to the prosecution, Office Manager’s testimony demonstrates that Defendant should have known prior to leaving for his Mexican vacation that he was not authorized to use his company debit card for personal expenditures. This evidence was sufficient to support a reasonable belief that Defendant exercised unauthorized control over the Green Harvest debit card. In addition, reasonably believable evidence suggests that Defendant intentionally misrepresented to Investor’s Son the existence of a hurricane. Defendant would have no need to lie about a hurricane if he truly believed he was authorized to use his card for personal reasons. It appears that if Defendant’s story about the hurricane were true, he would have immediately disclosed his use of the debit card to Investor’s son upon his return and made arrangements to pay back the company. These facts demonstrate that the State introduced sufficient evidence that Defendant exercised unauthorized control over the company debit card and intended to deprive the company of those funds when he failed to repay them.

At ¶ 12.

In making her bindover decision, it appears that the magistrate disregarded Office Manager’s testimony when she found that “there were no policies in place at Green Harvest forbidding personal use of the credit card.” Although a magistrate is entitled to make “some limited credibility determinations at the preliminary hearing,” the magistrate may only disregard testimonial evidence when it is “wholly lacking and incapable of creating a reasonable inference regarding a portion of the prosecution’s case,” State v. Virgin, 2006 UT 29, ¶¶ 23–24, 137 P.3d 787 (citation and internal quotation marks omitted), or if the evidence falls “to a level of inconsistency or incredibility that noreasonable jury could accept it,” State v. Ramirez, 2012 UT 59, ¶ 14, 289 P.3d 444 (citation and internal quotations marks omitted). On the record before us, Office Manager’s testimony does not appear to be patently inconsistent or incredible. Accordingly, “[i]t is inappropriate for [the] magistrate to weigh credible but conflicting evidence at a preliminary hearing as a preliminary hearing is not a trial on the merits but a gateway to the finder of fact.” Virgin, 2006 UT 29, ¶ 24 (citation and internal quotation marks omitted).

At ¶ 13.

The Court compares this case to State v. Ramirez, 2012 UT 59.

At ¶¶ 15-18.

Williams v. Williams, 2013 UT App 111, No. 20120208-CA (May 2, 2013)

ISSUE: Civil Stalking Injunction

Judge Orme,

Clark Williams appeals from a civil stalking injunction issued against him in favor of his ex-wife, Jeri Williams. We affirm.

At ¶ 1.

The Court outlines the facts of the case

At ¶¶ 2-6.

“In order to enter a civil stalking injunction, the district court must conclude that an offense of stalking has occurred that meets the criteria for the crime of stalking.” Coombs v. Dietrich, 2011 UT App 136, ¶ 2, 253 P.3d 1121 (citation and internal quotation marks omitted). See Allen v. Anger, 2011 UT App 19, ¶¶ 1, 14, 248 P.3d 1001. A person commits the offense of stalking when he or she “intentionally or knowingly engages in a course of conduct directed at a specific person” and “knows or should know” that the conduct would cause a reasonable person to fear for his or her safety or “suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis 2012). A “course of conduct” is defined as “two or more acts directed at or toward a specific person,” including “acts in which the actor . . . surveils, threatens, or communicates to or about a person . . . directly, indirectly, or through any third party.” Id. § 76-5-106.5(1)(b).

At ¶ 7.

Clark argues that even if he is found to have engaged in two or more acts directed toward Jeri, he did not do so intentionally or knowingly and his contact with her would not cause a reasonable person to suffer emotional distress. He argues that the requisite emotional distress must be more than “mere anxiety or annoyance” and that stalking only occurs when there is repeated conduct that is “outrageous and intolerable” and “evoke[s] outrage or revulsion,” going beyond conduct that is merely “unreasonable, unkind, or unfair.” See Allen v. Anger, 2011 UT App 19, ¶ 16, 248 P.3d 1001 (citation and internal quotation marks omitted). Clark attempts to characterize his contacts with Jeri as those typical of failed familial relationships, contending that they “were not threats” but “pleas that she return to him” offered by a man “desperately trying to preserve a 34-year-old marriage.” We are not convinced.

At ¶ 9.

Jeri correctly points out that the “outrageousness” requirement Clark cites from Allen was included in the 2003 version of the stalking statute and not the version of the statute in effect today or at the time of Clark’s course of conduct. Utah courts have not yet determined whether the revisions made to the stalking statute since 2003 were “intended to overrule the outrageousness requirement.” Id. ¶ 16 n.4. But we need not determine whether the outrageousness requirement set forth in Salt Lake City v. Lopez, 935 P.2d 1259, 1264 (Utah Ct. App. 1997), has been overruled because Clark’s behavior in this case clearly rises to a level that would cause a reasonable person to suffer emotional distress under almost any standard, including that of outrageousness.

At ¶ 10.

Emotional distress is defined as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” Utah Code Ann. § 76-5-106.5(1)(d) (LexisNexis 2012). Each individual act does not have to be sufficient to cause emotional distress by itself. Ellison v. Stam, 2006 UT App 150, ¶¶ 28–29, 136 P.3d 1242. Instead, the cumulative effect of the acts can be taken into account in determining whether mental or psychological suffering would result. Id. Here, Clark ignored orders from Jeri, the police, and a California divorce court to cease contacting her. He threatened to send nude photographs of Jeri to her religious leader. He sent emails to their children via an email account to which Jeri had ready access, in which he called Jeri names and accused her of infidelity and sexual promiscuity. Despite her efforts to conceal her new address, Clark discovered where she lived, sent her a text message with a photograph of her new residence, and showed up there in person. Clark used her social security number when contacting the phone company to undo her efforts to block him from texting or calling her. The fact that he did all of these things with the intent, as he himself put it, “to leave no doubt in her mind how I felt” and was fully aware that he was not respecting her wishes is a clear indication that his behavior was both intentional and knowing. We easily determine that when considering the cumulative effects of Clark’s actions, a reasonable person subjected to such conduct would suffer “significant mental or psychological suffering.” See Utah Code Ann. § 76-5-106.5(1)(d) (LexisNexis 2012).

At ¶ 11.

State v. Reynolds, 2013 UT App 112, No. 20110880-CA (May 2, 2013)

ISSUE: Entitlement to Lesser Included Offense Jury Instruction

Judge Roth,

Defendant Dale Edward Reynolds appeals his conviction for aggravated robbery, see Utah Code Ann. § 76-6-302(1)(a) (Lexis Nexis 2012), challenging the trial court’s decision not to instruct the jury on the lesser included offenses of retail theft, see id. § 76-6-602(1), and aggravated assault, see id. § 76-5-103(1)(a). We affirm.

At ¶ 1.

To be entitled to a jury instruction for a lesser included offense, “a defendant must show (1) that the charged offense and the lesser included offense have overlapping statutory elements and (2) that the evidence ‘provides a rational basis for a verdict acquitting [him] of the offense charged and convicting him of the included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); accord Utah Code Ann. § 76-1-402(4). The State does not dispute that retail theft and aggravated assault are lesser included offenses of aggravated robbery in this case. Therefore, the issue presented for review is whether the evidence provides a rational basis for acquitting Reynolds of aggravated robbery but convicting him of the lesser included offenses of retail theft and aggravated assault. In making this determination, the evidence presented at trial must be viewed “in the light most favorable to” Reynolds, see Powell, 2007 UT 9, ¶ 27, in order to determine if “there is a sufficient quantum of evidence presented to justify charging the jury with [the] . . . requested instruction[s].” See State v. Velarde, 734 P.2d 449, 451 (Utah 1986).

At ¶ 4.

Reynolds asserts that the jury could have found that the gun was not used “in the immediate flight” from a theft because the evidence presented at trial shows that he did not use the gun in the store or on store property but only when he was out of the store, off store property, and across an adjacent street. He therefore contends that there is a rational basis in the evidence for the jury to have acquitted him of aggravated robbery and, instead, to have convicted him of retail theft for taking the merchandise from the store without paying, see id. § 76-6-602(1), and aggravated assault, for threatening the employee with a gun, see id. § 76-5-103(1)(a). We conclude, however, that the trial court acted within its discretion in determining that there is no rational basis in the evidence for the jury to have found that Reynolds did not use the gun in the immediate flight from the commission of the theft.

At ¶ 6.

When Reynolds threatened the employee with the gun, he had barely left the business premises and was only a little over one hundred feet from the store, a distance he had covered in less than ten seconds. The employee had pursued Reynolds from the time he exited the store, and his pursuit was interrupted only when Reynolds drew a gun and uttered his threat to kill. Reynolds has provided no authority for his proposition that the line between “immediate flight” from the crime and some other event after the commission of the crime that is no longer “in the course of” a retail theft is drawn at the point where the thief crosses the retail store’s property line, and we see no logical basis for such a distinction. Because Reynolds’s use of the gun came at the end of an uninterrupted, seconds-long foot pursuit that ended only a stone’s throw from the site of the theft, there is no rational basis for instructing the jury on the lesser included offenses Reynolds requested. These facts are simply not “ambiguous or susceptible to alternative interpretations which would make it possible for the jury to acquit” Reynolds of aggravated robbery and convict him instead of retail theft and aggravated assault. See Velarde, 734 P.2d at 453. We therefore conclude that the trial court did not abuse its discretion in denying Reynolds’s request to instruct the jury on lesser included offenses.

At ¶ 7.

State v. Ali, 2013 UT App 113, No. 20111051-CA (May 2, 2013)

ISSUE: Reversing a Jury Verdict for Insufficiency of Evidence

Judge Thorne,

Ali Ali appeals from his convictions on one count of distributing or arranging to distribute a controlled substance, a first degree felony, see generally Utah Code Ann. § 58‐37‐8         (LexisNexis 2012), and one count of providing false information to a peace officer with the intent of leading the officer to believe that the person providing the information is another actual person, a class A misdemeanor, see generally id. § 76‐8‐507(2). We affirm.

At ¶ 1.

We will reverse a jury verdict for insufficiency of the evidence only when the evidence “is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt.” State v. Boss, 2005 UT App 520, ¶ 9, 127 P.3d 1236 (citation and internal quotation marks omitted). When reviewing the sufficiency of the evidence, we “may not reassess credibility or reweigh the evidence,” State v. Workman, 852 P.2d 981, 984 (Utah 1993), and must accept the jury’s determination of witness credibility unless the witness’s testimony is “inherently improbable,” State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.

At ¶ 3.

The court reviews the challenged testimony and finds: “[W]e see nothing inherently improbable in the detective’s testimony that Ali was the person who sold him drugs.”

At ¶¶ 3-6.

Ali’s remaining arguments pertain to his conviction of providing false information to a peace officer with the intent of leading the officer to believe that he was another actual person. On the day prior to trial, the State informed the district court that the false information charge would have to be dismissed, as they mistakenly believed the officer who heard Ali identify himself as Mudi Hussein was unavailable to testify. The next day the state informed the court that it had been mistaken as to the officer’s unavailability and asked the court to reinstate the charge. The court reinstated the charge, reasoning that it had only been dismissed the day before and that Ali would suffer no prejudice because he was presumably already prepared to defend against it. There is no suggestion in the record that Ali objected to or otherwise challenged the district court’s reinstatement decision.

At ¶ 7.

        Ali objects to reinstatement of the charge, claiming violations to the Utah Rules of Criminal Procedure and Due Process. The court “[does] not consider these arguments because Ali waived them when he failed to object to the district court’s ruling and did not raise his procedural and due process concerns with the district court.” See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801

At ¶ 8.

        

Ali also argues that the district court erred when it allowed the State to prove the crime’s “actual person” and “another person” elements with hearsay testimony about an identification card that had been found in Ali’s hotel room after his arrest. See Utah Code Ann. § 76-8-507(2) (LexisNexis 2012).

At ¶ 9.

The court need not resolve the hearsay question, however, because under this unique factual pattern it is a reasonable inference that when Ali identified himself to the officer as Mudi Hussein, he was referring to the person pictured on the identification card and intended the officer to believe that he was, in fact, that person. There is no dispute that the photograph on the identification card depicted an actual person who was not Ali and that the identification card associated that photograph—correctly or incorrectly—with the name Mudi Hussein. Thus, there is nonhearsay evidence to support the jury’s conclusion that Ali gave the officers the name of another person, Mudi Hussein, with the intent of leading the officer to believe that Ali was the actual person depicted on the identification card.

¶ 11.

For all of these reasons, we decline to disturb Ali’s convictions and affirm the district court’s judgment.

¶12

Young Living Essential Oils v. Marin, 2013 UT App 114, No. 20120493-CA (May 2, 2013)

ISSUE: District Court Authority to Grant Appelate Attorney’s Fees

Per Curiam,

Young Living Essential Oils, LLC, appeals the district court’s order concluding that the court lacked authority to award Young Living attorney fees that it incurred in a previous appeal because in that appeal the Utah Supreme Court did not specifically award appellate attorney fees to Young Living. We affirm.

At ¶1

“A trial court does not have the authority to award appellate attorney fees and costs absent an explicit directive from the appellate court.” Anderson v. Thompson, 2010 UT App 359, ¶ 4, 248 P.3d 981. More particularly,

[a] trial court cannot consider the issue of entitlement to appellate attorney fees on its own initiative because this decision is the sole prerogative of the appellate court. The only time a trial court has any discretion in the matter of appellate attorney fees is when an appellate court determines that appellate attorney fees are warranted but remands that issue to the trial court for a determination of the amount to be awarded.

Slattery v. Covey & Co., 909 P.2d 925, 929 (Utah Ct. App. 1995).

At ¶3

Because the supreme court did not expressly direct the district court to award appellate attorney fees, the district court correctly determined that it lacked authority to do so on its own initiative. Accordingly, we affirm.

At ¶ 4 .

LD III v. BBRD, 2013 UT App 115, No. 20120073-CA (May 2, 2013)

ISSUE: Reversal of a Contempt Citation

Judge Thorne,

LD III, LLC appeals from the district court’s final judgment awarding Richard W. Davis $1,051,607 in damages, attorney fees, and costs as a result of LD III’s contempt of court. We reverse the district court’s judgment and remand for further proceedings.

At ¶ 1.

Layout of the facts and history of the case

At ¶¶ 2-11.

LD III appeals from the district court’s judgment awarding Davis damages resulting from LD III’s contemptuous violation of the September 23 Ruling. LD III argues that the district court never did enter a contempt order supported by the three required findings that LD III “knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as stated in State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991). We agree, and we reverse the district court’s judgment below and remand this matter for further proceedings consistent with the terms of this opinion.

At ¶12.

“A court’s authority to sanction contemptuous conduct is both statutory and inherent.” Chen v. Stewart, 2005 UT 68, ¶ 36, 123 P.3d 416; see also Burke v. Lewis, 2005 UT 44, ¶ 23, 122 P.3d 533 (“‘[I]t has always been held, regardless of express statutory authority, that courts of general jurisdiction have the inherent power to make and enforce all necessary rules and orders calculated to enforce the orderly conduct of their business and secure justice between parties litigant.’” (quoting Peterson v. Evans, 188 P. 152, 153 (Utah 1920))). As to contempt based on express statutory authority, Utah Code section 78B-6-301 identifies certain types of “acts or omissions in respect to a court or its proceedings [that] are contempts of the authority of the court.” Utah Code Ann. § 78B-6-301 (LexisNexis2012). One such category of contempt is “disobedience of any lawful judgment, order or process of the court.” Id. § 78B-6-301(5).Utah Code section 78B-6-311 elaborates upon a court’s authority to award damages as a sanction for contempt, stating,

If an actual loss or injury to a party in an action or special proceeding is caused by the contempt, the court, in lieu of or in addition to the fine or imprisonment imposed for the contempt, may order the person proceeded against to pay the party aggrieved a sum of money sufficient to indemnify him and to satisfy his costs and expenses. Id. § 78B-6-311.

At ¶13.

Utah case law has imposed certain requirements on the use of the contempt power.

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.”

Von Hake, 759 P.2d at 1170 (alterations in original) (quoting Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982)). Further, “[a]s a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Id. at 1172. “These three elements must be proven . . . by clear and convincing evidence in a civil contempt proceeding,” id.,4 and “[t]he trial court must enter written findings of fact and conclusions of law with respect to each of the three substantive elements,” id.

¶ 14.

We determine that the district court’s contempt ruling against LD III violates these principles and cannot stand. We first disagree with the district court’s conclusion that LD III was given an appropriate opportunity to defend against Davis’s allegation of contempt. In its January 4, 2012 Findings of Fact and Conclusions of Law, the district court found that

[Leslie] Mower, Barry and Robert Steed, counsel of record for [LD III], Rex Macey (Ms. Mower’s case manager for her home confinement) and Bart Bailey (counsel for Ms. Mower), among others, were present at the [October 22, 2008] hearing. However, [LD III] presented no evidence at the hearing. Instead, at the hearing, [LD III’s] sole argument for why it should not be held in contempt was that the Court lost jurisdiction to enforce its September 23 Order, when [LD III] filed its notice of appeal on September 29, 2009.(Citations omitted.) We have reviewed the transcript of that hearing, and we cannot agree with the district court’s assessment of the opportunity provided to LD III.

¶ 15.

The deferred hearing on the elements of the contempt charge against LD III never did occur. Instead, the district court issued its December 4, 2008 Ruling Re: Enforceability of Judgment, in which the court rejected LD III’s jurisdictional argument and reserved the issue of “damages allegedly caused by [LD III’s] acts of contempt” pending the outcome of LD III’s appeal.5 The district court’s failure to conduct the deferred hearing, however, deprived LD III of its constitutionally guaranteed opportunity to confront Davis’s witnesses or present its own evidence and testimony on the three elements of contempt. See Von Hake v. Thomas, 759 P.2d 1162, 1170 (Utah 1988), superseded on other grounds as stated in State v. Hurst, 821 P.2d 467, 470 (Utah Ct. App. 1991). And while the district court subsequently allowed LD III to litigate various affirmative defenses to contempt,6 it did not clearly allow LD III to challenge whether it “knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Id. at 1172.

¶ 17.

LD III also complains that the district court failed to enter a contempt citation containing “written findings of fact and conclusions of law with respect to each of the three substantive elements.” See id. In its January 4, 2012 Findings of Fact and Conclusions of Law, the district court explained its failure to enter findings by quoting from Coleman v. Coleman, 664 P.2d 1155 (Utah 1983) (per curiam). In Coleman, the supreme court observed, “While it is true that an order to show cause will not issue except upon an affidavit that a party has violated or disobeyed the court’s orders, once issued, the burden is on the defendant to present evidence with respect to the three elements” of knowledge, ability, and intentional failure to comply. Id. at 1156–57. The supreme court then went on to hold that because the contempt defendant had failed to present rebuttal evidence showing inability to comply with a court order, no explicit factual finding of ability to comply was required. See id. at 1157.

¶18.

The district court reasoned that, under Coleman, because LD III failed to present evidence contradicting the allegations made in the order to show cause, the court was excused from making factual findings on the elements of contempt. However, as we have determined above, the district court’s failure to conduct a hearing on the elements of contempt—issues which the district court had expressly deferred at the October 22, 2008 hearing—deprived LD III of an adequate opportunity to present evidence on those issues. Further, it seems reasonable to infer from the presence of LD III’s witnesses at the October 22, 2008 hearing that LD III had intended to present testimony on the merits of the contempt citation. Under these circumstances, we cannot accept the district court’s logic that the matter was essentially uncontested and that Coleman excused it from entering the required factual findings.

¶19

For these reasons, we reverse the district court’s contempt ruling against LD III and remand this matter for additional proceedings. If the district court opts to pursue Davis’s contempt allegations on remand, it is directed to hold a hearing at which LD III can present evidence of its knowledge and understanding of the district court’s September 23 Order, its ability to comply, and whether it intentionally failed to comply. The district court is additionally directed to support any contempt ruling with factual findings on each of the three elements of contempt.

¶20

The district court’s contempt ruling against LD III deprived LD III of its due process rights to confront witnesses and present evidence and testimony, and the district court failed to enter adequate factual findings on LD III’s knowledge, ability to comply with the district court’s order, and intentional failure to do so. For these reasons, we reverse the district court’s contempt ruling and remand this matter for further proceedings as described herein.

¶21

April 25, 2013, Utah Court of Appeals Case Summaries

April 25, 2013

Utah Court of Appeals Cases

State v. Ortiz, 2013 UT App 100, No. 20120198-CA (April 25, 2013)

ISSUE: Fair trial; Scope of the Utah Rules of Evidence

Judge Davis,

Daniel Martinez Ortiz appeals his conviction for aggravated robbery, a first degree felony, see Utah Code Ann. § 76‐6‐302 (LexisNexis 2012), on the ground that he was unfairly prejudiced by the trial court’s denial of his motion for permission to cover his facial tattoos at trial.   We affirm.

At ¶ 1.

The Court rules that Defendant’s tattoos were not “evidence” in the trial merely because they were visible.  Accordingly, the Rules of Evidence do not apply in this case.

At ¶¶ 2-4.

State v. Williams, 2013 UT App 101, No. 20110525-CA (April 25, 2013)

ISSUE: Parol Evidence in Criminal Cases; Definition of "Material Fact"; Motions to Withdraw; and Restitution

Judge Davis,

Dike Williams appeals his convictions of three counts of securities fraud, second degree felonies, see Utah Code Ann. §§ 61‐1‐1, ‐21(2)(b) (LexisNexis 2011), and the related order of restitution. We affirm Williams’s convictions but remand for modification of the restitution order as set forth herein.

At ¶ 1.

Parol Evidence

We are aware of no cases, and Williams directs us to none, that have excluded parol evidence in the context of a criminal proceeding. Nonetheless, we are not prepared to adopt the State’s position that the parol evidence rule could never apply in the criminal context. That is a question for another day.

At n. 1.

The court determines that Defendant has not adequately briefed this issue and declines to address it.

At ¶¶3.

Jury Instruction Defining “Material Fact”

The instructions . . . directed the jury to consider the standard definition of a “material fact”—“something which a buyer of ordinary intelligence and prudence would think to be of importance in determining whether to buy or sell a security.” See generally S&F Supply Co. v. Hunter, 527 P.2d 217, 221 (Utah 1974) (defining a material fact for purposes of securities fraud).

Williams asserts that these instructions were erroneous because the investors involved in this case were accredited and had greater business acumen than a “buyer of ordinary intelligence and prudence,” see id. Accordingly, he asserts that the jury instructions should have defined a material fact as something that “a sophisticated person with ‘business and investment acumen’ would find important in determining whether or not to make [an] investment.” However, Williams does not explain what facts material to an investor of ordinary intelligence and prudence would not be material to a more sophisticated investor and, once again, provides no authority in support of his assertion that the definition of material fact should differ as concerns these two types of investors. Further, he fails to identify any misrepresentations on which the prosecution relied that would not have been considered material to a more sophisticated investor, as opposed to one of ordinary intelligence and prudence. Thus, Williams has not established how he could have been prejudiced by the jury instructions, even assuming that they were erroneous or that counsel was ineffective for failing to object to them. See generally Litherland, 2000 UT 76, ¶ 19 (identifying prejudice as an element of ineffective assistance); Dunn, 850 P.2d at 1208 (stating that a defendant must demonstrate harm in order to achieve reversal on plain error grounds).

At ¶¶ 4-5.

The Court declines to address Defendant’s challenge regarding his trial counsel’s failure to implement certain strategies and failure to object to the admissibility of certain evidence because the matters were not adequately briefed.

At ¶¶ 6-7.

Denial of Trial Counsel’s Motion to Withdraw

[T]he Utah Rules of Criminal Procedure explicitly require a defendant’s presence when a motion to withdraw is made unless the court orders otherwise. Utah R. Crim. P. 36(a)(2) . . . Thus, Williams’s absence alone could have justified the court in denying the motion. . . . Furthermore, because “‘[a] defendant’s right to retain counsel of his choice . . . may not be insisted upon in a manner that will obstruct an orderly procedure in courts of justice,’” see State v. Barber, 2009

UT App 91, ¶ 42, 206 P.3d 1223 (omission in original) (quoting United States v. Collins, 920 F.2d 619, 625 (10th Cir. 1990)), the denial was also justified by the fact that the motion was not made until the morning of trial and was part of a series of tactics employed by Williams to delay the court proceedings, cf. Wadsworth, 2012 UT App 175, ¶ 10 (determining that the trial court did not violate a defendant’s right to counsel of his choice by requiring substitute counsel to make an appearance before permitting the defendant’s hired counsel to withdraw so that the trial would not be delayed).

At ¶ 9.

Restitution

Finally, Williams challenges the trial court’s restitution award, which ordered him to repay sums associated with the earlier $250,000 investment in addition to sums associated with the charges in this case. The State concedes that the portion of the restitution award stemming from the $250,000 investment was improper because Williams was not “convicted of criminal activity” and did not admit any wrongdoing in connection with that investment. See Utah Code Ann. § 76-3-201(4)(a) (LexisNexis 2012); id. 77-38A-302(1), (5)(a). We therefore find it necessary to remand for the trial court to modify the June 10, 2011 Order of Restitution accordingly.

At ¶ 10.

State v. Brady, 2013 UT App 102, No. 20110901-CA (April 25, 2013)

ISSUE: Revocation of Probation

Judge Davis,

The conditions of his probation included paying restitution of $479,123.13 to his victims. On June 14, 2011, nearly one year after Brady entered his guilty plea and was put on probation, the State filed a motion for an order to show cause, arguing that Brady violated the terms of his probation by failing to pay “anything toward his restitution amounts.” The trial court granted the motion, and held a hearing on September 9, 2011

During the hearing, Brady admitted to violating his probation by failing to pay anything toward the restitution, but described his efforts to find a job and his overwhelming financial obligations in an effort to mitigate the impact of his violation. The trial court concluded that Brady’s mitigating evidence failed to “show [that he had made] at least a good faith effort to address the restitution” and noted that there were “any number of things” he could have done to satisfy this requirement. Accordingly, the trial court revoked Brady’s probation and reinstated his prison sentence. Brady appeals, arguing that the trial court abused its discretion by failing to consider his mitigating evidence, to explicitly find that his probation violation was willful, and to consider alternative means of punishment other than reinstating his prison sentence. Brady alternatively argues that the Order to Show Cause hearing did not comport with the minimum requirements of due process.

At ¶¶ 2-3.

“After the hearing the court shall make findings of fact,” id. § 77‐18‐1(12)(e)(i), and if a violation is found, the trial court “must determine by a preponderance of the evidence that the violation was willful,” State v. Maestas, 2000 UT App 22, ¶ 24, 997 P.2d 314 (citation and internal quotation marks omitted). “[T]he requirement of willfulness in the context of probation revocation proceedings for failure to pay a court-ordered payment merely requires a finding that the probationer did not make bona fide efforts to meet the conditions of his probation.” State v. Archuleta, 812 P.2d 80, 84 (Utah Ct. App. 1991). If the trial court determines that a probationer’s violation was not willful, the trial court is then required to “consider ‘whether adequate alternative methods of punishing the defendant are available.’” Orr, 2005 UT 92, ¶ 34 (quoting Bearden v. Georgia, 461 U.S. 660, 669 (1983)).

At ¶ 4.

The Court reviews the trial court’s findings and holds that “[t]hese comments by the trial court illustrate its implicit finding of willfulness” and rejects Brady’s argument that that an explicit finding is mandatory. Further the Court finds that “the trial court’s implicit determination that Brady’s violation was willful was not an abuse of discretion, and because of this finding, the trial court was not required to consider alternative punishments before reinstating Brady’s prison sentence.”

At ¶¶ 5-7

The Court considers Brady’s argument that the revocation hearing did not satisfy the minimum requirements of due process because he was not given an adequate opportunity to be heard and rejects it.

At ¶¶ 8-10.

Judge Thorne, Concurring,

Judge Thorne concurs and presents an argument for imposing strict liability on defendants that fail to pay restitution as a condition of probation in some circumstances.

At ¶¶ 11-18.

Bhatia v. Retirement Board, 2013 UT App 103, No. 20120096-CA (April 25, 2013)

ISSUE: Appellate review of State Retirement Board’s Determination Denying Long-term Disability; “Total Disability”

Original Proceeding

Judge McHugh,

The Court outlines the evidence presented at the hearing and determines that the Board’s conclusion that Bhatia had not submitted sufficient objective evidence of “total disability” was supported by “substantial evidence.”

At ¶¶ 6-17.

Mr. Bhatia makes two statutory arguments asserting that the Board misinterpreted the Act. First, Mr. Bhatia contends that the Act does not require him to prove “total disability” by objective medical evidence; rather, he argues that he was required to prove only the fact of “impairment” by objective medical evidence. According to Mr. Bhatia, the Board could consider his subjective reports and complaints in determining “total disability.”

At ¶ 18.

Contrary to Mr. Bhatia’s argument, the statute requires the claimant to demonstrate his complete inability to work by proving “physical objective medical impairment.” See id. § 49-21-102(11)(b). In turn, section 49-21-102(6) limits “objective medical impairment” to impairment “based on accepted objective medical tests or findings rather than subjective complaints.” Id. § 49-21-102(6).  Thus, the plain language of the statute provides LTD Program benefits only where objective medical tests or findings establish that the claimant is completely unable to engage in any gainful employment. See Hilton v. State Retirement Bd., 2005 UT App 408U, para. 2 (mem.) (“Not every impairment or disability qualifies a state employee for benefits under the Act . . . .”). Accordingly, the Board did not misinterpret the Act’s definition of “total disability” when it denied Mr. Bhatia’s claim for ongoing permanent disability benefits.

At ¶ 20.

Mr. Bhatia argues that the Act does not require him to show that he cannot work at all. Instead, he argues that the statute requires him to show only that “he cannot perform the type of work that is suitable for him.” According to Mr. Bhatia, suitability is measured by the likelihood that he will be hired and can succeed in an occupation, considering his age, education, training, experience, and other vocational factors.

At ¶ 21.

[T]he plain language of the Act belies Mr. Bhatia’s argument. It instructs the Board to determine whether an employee is unable “to engage in any gainful occupation which is reasonable, considering the eligible employee’s education, training, and experience.” See Utah Code Ann. § 49-21-102(11)(b) (emphasis added). Nothing in this statute requires the Board to speculate as to whether an employer would actually hire Mr. Bhatia or the likelihood that he would be retained in the position.

At ¶ 22.

State v. Beckstrom, 2013 UT App 104, No. 20110227-CA (April 25, 2013)

ISSUE: Scope of an investigatory stop in the context of performing field society test.

Judge Orme,

Defedant was involved in an accident which seriously injured passengers in another vehicle.  While on scene the officer desired to conduct field sobriety test on Defendant because she exhibited signs of intoxication.  Due to the cold stormy weather, and defendant’s lack of adequate winter weather, the officer asked Defendant if he could take her to the nearby police station to perform the tests, and she agreed.  He informed he that she was not under arrest, and while traveling to the station she was not restrained in any manner.  The officer testified that he could not do the test outside because the cold and wind could have significantly affected the tests.  The officer performed the tests in the police stations garage.  Defendant failed the tests and was placed under arrest. She later tested an alcohol level of .228.

Defendant filed a motion to suppress, arguing that the results of the field sobriety testing, intoxilyzer testing, and other evidence should be suppressed because her detention amounted to a de facto arrest without probable cause or because the scope of her detention exceeded the permissible limits of an investigatory detention. The trial court denied the motion, concluding that transporting Defendant to the police station to conduct the sobriety tests did not exceed the permissible scope of an investigative detention under all the circumstances.  Defendant appeals.

At ¶¶ 2-6.

We conclude that the brief further detention of Defendant to facilitate field sobriety testing was permissible under all the circumstances, including the harsh weather conditions and Defendant’s expressed consent to move to a more protected setting less than two minutes away.3 “In evaluating the scope of a stop, the court should foremost consider ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.’” Id. ¶ 28 (quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). In doing so, officers do not have to employ the least intrusive means available; they must merely act reasonably in choosing an alternative. See id. Reasonableness is determined by evaluating the “totality of the circumstances facing the officer.” Id. Among the circumstances that can be taken into account are an “officer’s concerns about safety and security,” id. ¶ 29, as well as physical conditions that would prevent accurate sobriety testing, see id. ¶ 31.

At ¶ 11.

Transporting a suspect can increase the intrusiveness of an investigative detention and potentially escalate it to the level of a de facto arrest. See id. ¶ 30. For instance, transporting a suspect can be “benign when the movement does not change the level of coercion involved in the stop,” but moving a suspect “from a public place to an enclosed, police-dominated location can change the level of justification required from reasonable suspicion to probable cause.” Id. In Worwood, the Utah Supreme Court determined that transporting a suspect from the side of the road to a police officer’s private residence located more than a mile away where the suspect was met by additional law enforcement officers exceeded the permissible scope of an investigatory detention because there was “no indication that [the officer] was concerned about his safety.” Id. ¶ 31. See id. ¶ 5. Additionally, the Worwood court noted that the record before it was silent regarding physical factors that could have impacted sobriety testing such as the grade and pitch of the dirt road, weather conditions, or time of day. See id. ¶ 31. Worwood held that if just one of those factors had been present, “a more expansive detention may have been justified under reasonable suspicion.” Id.

At ¶ 13.

The case at hand meets the requirements of Worwood. Severe weather was the primary impetus for the officer’s decision to relocate the testing venue. Concerns about harsh weather, Defendant’s inadequate clothing for the conditions, and the infeasibility of using the convenience store as a testing site all reasonably informed the officer’s decision to transport Defendant—with her permission and with the assurance that she was not under arrest—for less than 90 seconds to a better testing location. And any concern about intrusiveness and coercion is minimal in this case, given that Defendant consented both to being transported and to having the testing completed at the police station. While the new location could be characterized as an “enclosed, police‐dominated location,” there is no evidence that the level of coercion or intrusiveness increased once Defendant arrived at the parking garage. . . . We conclude that under the totality of the circumstances, the officer “diligently pursued a means of investigation that was likely to confirm or dispel” his suspicion quickly, Worwood, 2007 UT 47, ¶ 28 (citation and internal quotation marks omitted), and that Defendant’s brief additional detention, with her permission, did not exceed the permissible scope of an investigative detention.

At ¶ 14.

Beal v. Beal, 2013 UT App 105, No. 20110903-CA (April 25, 2013)

ISSUE: Alimony

Judge Orme,

After a series of three review hearings in 2010, the district court determined that Nanette Beal was not entitled to alimony from her ex-husband, Patrick Beal, under the terms of their 2007 divorce decree. Nanette appeals that determination, and we affirm.

At ¶ 1. 

The Court reviews the proceedings at the trial court level.  Specifically, the temporary award of alimony that lasted for two years; the trial court’s repeated orders requiring Nanette to produce an accounting of a trust to which she was a beneficiary when the time for reevaluation arrived;  Nanette’s repeated failure to provide an adequate accounting; and the trial court’s determination that based on her failure he could not adequate determine her financial income, and she was not entitled to alimony.

At ¶¶ 2-8.

Nanette asserts two errors: (1) the initial award of alimony was not “temporary” and couldonly be changed if Patrick proved a change in circumstances; (2) the court erred in requiring her to produce all of the trust documents and in factoring the documents she did provide into its alimony determination

At ¶¶ 9-10.

The Court reviews the original divorce decree and agrees with the trial court that the initial alimony award was temporary.

At ¶¶ 11-13.

In making its determination, the district court was required to consider “the recipient’s earning capacity or ability to produce income.” Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2012). Without question, a trust of which Nanette is a beneficiary and that was created “for [her] personal protection and welfare” is both an asset and a potential source of income.

At ¶ 14.

Nanette was in a position to timely produce all of the requested trust documentation to Patrick and to the court via a demand for copies from her father, the trustee. Rather thancomplying with multiple production requests and court orders, however, Nanette chose not to produce any documents for well over a year without any explanation. Even after she finally produced a copy of the original trust instrument, Nanette did not provide an accounting of the trust’s activities, generating more concerns and questions from the district court. The court was ultimately saddled with numerous abnormalities and discrepancies, including the ever-increasing debt allegedly owed to Nanette’s father and the fact that she had apparently become entitled to the trust proceeds. With the limited information before it, the court simply had no way to accurately calculate Nanette’s income stream.

At ¶ 15.

[W]e cannot conclude that the district court abused its discretion in determining that Nanette had not demonstrated that she was entitled to an award of permanent alimony.

At ¶ 16.

State v. Jones, 2013 UT App 106, No. 20110273-CA (April 25, 2013)

ISSUE: Rule 22(e) Motions to vacate an “illegal sentence”

Judge Orme,

While rule 22(e) of the Utah Rules of Criminal Procedure permits this court to correct an illegal sentence at any time, Utah courts have carefully circumscribed the application of this rule in order to prevent abuse. See State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854. Defendants cannot use rule 22(e) as “a veiled attempt to challenge the underlying conviction by challenging the sentence.” State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. Instead, rule 22(e) applies only when a sentence is “patently” or “manifestly” illegal. Id. “A ‘patently’ or ‘manifestly’ illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction or (2) where the sentence is beyond the authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15. The Utah Supreme Court has determined that a sentence is also illegal if it is “ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.” State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (citation and internal quotation marks omitted).

At ¶ 3.

Defendant first argues that his sentence is illegal because “neither the plea colloquy nor the plea affidavit established or identified the criminal offense and severity of conduct that constituted a crime.” Essentially, Defendant argues that the documents and procedure leading up to his guilty plea were insufficient to identify a specific violation of law or justify a penalty

greater than a class A misdemeanor. Therefore, he concludes, the sentence was illegal because it was based upon a plea in which the “underlying ‘conduct that constitutes a criminal offense’ and the level of severity were not established,” in violation of case law and rule 11 of the Utah Rules of Criminal Procedure.

This is exactly the type of argument that Utah courts have determined is not permissible under rule 22(e). See Candedo, 2010 UT 32, ¶ 9. In support of his claim of an illegal sentence, Defendant attacks the plea affidavit, the plea colloquy, and the district court’s adherence to rule 11 prior to sentencing. These complaints regarding the district court’s conduct during the plea process do not establish that the sentence was “manifestly” or “patently” illegal, i.e., that the sentencing court was without jurisdiction or exceeded the permitted statutory range in imposing sentence. See Thorkelson, 2004 UT App 9, ¶ 15. Nor does Defendant demonstrate that the sentence imposed is ambiguous, contradictory, incomplete, uncertain, or unauthorized by the judgment. See Yazzie, 2009 UT 14, ¶ 13. Rather, his complaints focus exclusively on the validity of his plea and resulting conviction.

At ¶¶ 4-5

Defendant next argues that his sentence was illegal because it exceeded the maximum penalty permitted by statute. Defendant pled guilty to obstruction of justice, a second degree felony given the underlying conduct. See Utah Code Ann. § 76-8-306(1) (LexisNexis 2008). However, the amended information, which was the focus of the plea colloquy, was reviewed by Defendant, and was incorporated into the plea agreement, clearly stated that the offense was subject to an in-concert enhancement under section 76-3-203.1, elevating Defendant’s crime to a first degree felony. See id. § 76-3-203.1(3). Defendant was then sentenced to five years to life—a sentence permissible under Utah law for a first degree felony conviction. See id. § 76-3-203(1) (LexisNexis 2012). Defendant pled guilty to an offense subject to enhancement, signed a plea agreement clearly identifying his crime as a first degree felony, and received a sentence appropriate for a first degree felony conviction. We therefore see no illegality in Defendant’s sentence.

At ¶ 7.

State v. Washington, 2013 UT App 107, No. 20130070-CA (April 25, 2013)

ISSUE: Post-Conviction Remedies Act

Per Curiam,

Darrell Eugene Washington appeals the trial court’s order denying his motions to compel discovery, which were filed in his criminal case. This appeal is before the court on its own motion for summary disposition based on the lack of a substantial question for review. We affirm.

At ¶ 1.

The trial court determined that it lacked jurisdiction over Washington’s requests because he had filed the motions seeking civil relief in his criminal case. Generally, once a trial court in a criminal proceeding “imposes a valid sentence, it loses subject matter jurisdiction over the case.” State v. Montoya, 825 P.2d 676, 670 (Utah 1991). We see no error in the trial court’s determination, particularly given that the relief Washington appears to be seeking is within the scope of the PCRA.

At ¶ 3.

In re R.T. and B.T., 2013 UT App 108, No. 20120877-CA (April 25, 2013)

ISSUE: Termination of Parental Rights

Per Curiam,

R.T. (Father) appeals the juvenile court’s termination of his parental rights in his children R.T. and B.T. We affirm.

At ¶ 1.

[T]his court “will not disturb the juvenile court’s findings and conclusions unless the evidence clearly preponderates against the findings as made or the court has abused its discretion.” In re R.A.J., 1999 UT App 329, ¶ 6, 991 P.2d 1118.

At ¶ 2.

The Court reviews the evidence in support of the Juvenile Court’s findings and finds it adequate to support its findings.

At ¶¶ 3-4.

The court refuses to address an evidentiary challenge because was not properly preserved.

At ¶ 5.

To warrant termination of parental rights, a parent must be found to be below a minimum level of fitness and the termination must be in the children’s best interests. In re R.A.J., 1999 UT App 329, ¶ 7, 991 P.2d 1118. Although these two separate findings must be made, “evidence of unfitness may be probative of both factors of the termination analysis.” In re J.D., 2011 UT App 184, ¶ 12, 257 P.3d 1062. There was sufficient evidence in the record to support that termination was in the children’s best interests.

At ¶ 7.