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In re D.M.; Cook Martin Poulson PC v. Smith; State v. Dunne; State v. Hatchett; State v. Hernandez; State v. Sisneros presented by The Appellate Group.

CHILD WELFARE

In re D.M., 2020 UT App 59 (Orme, J.)

DFCS removed Child from Mother’s care and placed Child in a temporary home placement with Father. Two months into that placement, Father was arrested for driving under the influence. As a result of that arrest, a court terminated Father’s parole and returned him to prison for one to fifteen years. Subsequently, the State petitioned to terminate Father’s parental rights, and the juvenile court terminated those rights. Father appealed. The Utah Court of Appeals affirmed, holding:

  1. The State presented sufficient evidence to support the juvenile court’s conclusion that Father failed to remedy the circumstances of Child’s removal under Utah Code § 78A-6-508(2)(d). Here, Father’s incarceration for violating his parole and his failure to complete domestic violence treatment was evidence of Father being unable or unwilling to remedy the circumstances that led to Child’s out-of-home placement. And Father’s 22-month incarceration in the recent past and current incarceration—even though the length was not determined—was a significant basis on which the court could find that there was a substantial likelihood that Father would not be capable of exercising proper and effective care in the near future.  

CONTEMPT

Cook Martin Poulson PC v. Smith, 2020 UT App 57 (Christiansen Forster, J.)

An employee worked for an employer and signed a noncompete agreement. The employer terminated the employee. Upon discovering that the employee was still providing services to several of the employer’s clients—contrary to the noncompete agreement—the employer sued the employee and asked for an injunction against the employee. The district court granted a preliminary injunction prohibiting the employee from soliciting former clients or working for current clients. The district court also ordered the employee to produce electronic information in discovery; the employee offered for the employer to inspect the documents on the employee’s computer, but the employee did not give the employer copies of the documents. The employer then discovered that the employee had continued to perform work for former clients. For all these actions, the district court held the employee in contempt. For sanctions, the district court struck the employee’s counterclaim, awarded attorney fees, and entered summary judgment in favor of the employer. The employee appealed. The Utah Court of Appeals reversed in part and affirmed in part, holding:

  1. The district court plainly erred in concluding that the employee violated the preliminary injunction. The plain language of the preliminary injunction only prohibited the employee from soliciting former clients and from working for the employer’s current clients; the plain language did not prohibit the employee from working for former clients. It was plain error for the district court to find the employee in contempt for violating the preliminary injunction solely on the basis that the employee provided services to former clients; the court made no finding that the employee solicited those former clients. 
  2. The district court was within its discretion in holding the employee in contempt for violating the discovery order. Utah R. Civ. P. 34(c)(2) required the employee to produce electronic information in the form required by the employer, and if the employer did not specify the form, then in the form “ordinarily maintained” or “reasonably usable.” Here, the employer requested the electronic information to be provided in paper or disk form, and the employee did not produce the information in the form requested by the employer. 
  3. Because the Court of Appeals reversed the contempt finding for violating the preliminary injunction but upheld the contempt finding for discovery violations, the Court of Appeals remands to the district court to reconsider sanctions, including its summary judgment ruling. 

CRIMINAL

State v. Dunne, 2020 UT App 56 (Pohlman, J.)

The State charged the defendant with retail theft. At trial, the defendant testified that he did not plead guilty to retail theft because he did not do it. During cross-examination, the Stated asked the defendant, “Isn’t it true you came into court and you were going to plead guilty, but because I wouldn’t give you what you wanted, you changed position?” The defendant asked for a mistrial, but the district court denied that motion. The jury convicted the defendant. The Utah Court of Appeals affirmed, holding:

  1. The district court acted within its discretion when it did not declare a mistrial. A mistrial is not required when, given the totality of the evidence, the State’s potentially improper statement was not likely to have influenced the jury’s decision. The evidence against the defendant was overwhelming, and the court immediately sustained an objection to the question before the defendant could answer.

State v. Hatchett, 2020 UT App 61 (Orme, J.)

In an online ad, the defendant solicited a sexual encounter between “dad” and “son.” “Son” is a term in the gay community expressing the desire to meet someone younger, but not necessarily a minor. A detective posing as a 13-year-old boy responded to this ad and agreed to meet the defendant and disclosed his age. The two continued to talk, and the detective never proposed sex acts, but the defendant repeatedly steered their conversations in a sexual direction. The police arrested the defendant at a gas station where he had agreed to meet. The State charged the defendant with enticement of a minor. Before trial, the defendant moved the district court to dismiss those charges because he had been entrapped. The district court denied the motion. The Utah Court of Appeals affirmed, holding: 

  1. Under the facts here, a motion to dismiss based on entrapment fails because the defendant could not show that the methods the detective used created a substantial risk that the offense would be committed by someone not otherwise ready to commit it. The detective responding to the defendant’s advertisement did not use an improper method, especially when the detective did not persistently request that the defendant engage in illegal conduct. Here, the defendant initiated over sixteen text-message conversations and three phone calls, while the detective initiated only two. The defendant also raised the subject of sex first and engaged in sexually explicit conversation with someone who said he was a minor. Here, the detective’s methods only afforded the defendant the mere opportunity to commit the offense.
  2. The detective’s use of an undercover online persona of a 13-year-old boy is not, on its own, entrapment. 

State v. Hernandez, 2020 UT App 58 (Mortensen, J.)

The defendant pulled into a parking lot that was frequented by men seeking prostitutes. He was in his car for less than one minute before an undercover officer approached him and solicited him. They discussed money and sex and agreed to meet in a certain spot. The police arrested the defendant as he drove away from the parking lot. The State charged the defendant with patronizing a prostitute. The defendant moved to dismiss the charge because he was entrapped. The district court granted the motion. The State appealed. The Utah Court of Appeals reversed, holding:

  1. Here, the district court incorrectly applied the objective standard. Looking through the lens of an objective standard, courts evaluate whether the methods used by the government created a substantial risk of inducing a person to commit an offense when that person was not otherwise inclined to commit it. Here, an officer posing as a prostitute wearing dingy clothes approached the defendant shortly after the defendant pulled his car into an area known for prostitution. The officer asked the defendant if he was looking for a date, and after the defendant responded affirmatively, the detective proceeded to solicit sex for payment in explicit terms. The detective gave the defendant an opportunity to desist when she denied his first offer. But then the detective accepted his second offer. Under these facts, the Court could not conclude as a matter of law that the government employed prohibited methods of inducement.
  2. Under the facts here, an entrapment defense is not sure to leave all reasonable minds with a reasonable doubt as to whether the defendant acted on his own inclination. Instead, the facts shown prove that the government merely afforded the defendant the opportunity to commit the offense.

State v. Sisneros, 2020 UT App 60 (Orme, J.)

The defendant stole a car from the seller’s father in Weber County and drove the car to Utah County. Utah County charged the defendant with theft by receiving stolen property, and the probable cause statement attached to the Information noted that the defendant had stolen the car in Weber County. Several days later, Weber County charged him with aggravated robbery. A few days later, the defendant was arraigned and pleaded guilty to the Utah County theft charge. The defendant sought to dismiss the Weber County robbery charge because it arose out of a single criminal episode. The district court denied the motion. The Utah Court of Appeals reversed, holding:

  1. The district court should have dismissed the robbery charge. The court erroneously concluded that the Weber County robbery charge and the Utah County theft charge did not arise out of a single criminal episode, as defined by Utah Code §§ 76-1-401 and -402: 
    1. The two charges arose from a single criminal episode: the Utah County theft and Weber County robbery were interwoven and committed at virtually the same time, and the two crimes had a single criminal objective because the defendant’s overarching criminal purpose in committing both offenses was to steal the car.
    2. The prior charge and the subsequent charge were within the jurisdiction of a single court—meaning that the district court had original jurisdiction over the offense and the offense was properly venued in that court—because the second district court in Weber County did have jurisdiction over the theft and robbery offenses. 
    3. At the time of the defendant’s arraignment on the Utah County theft charge, the Utah County Attorney knew of the Weber County charge; the probable cause statement the Utah County Attorney used in crafting the Information included facts that met the elements of the crime of aggravated robbery.
    4. The Utah County theft charge resulted in a conviction.

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