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Blanke v. Utah Board of Pardons & Parole; State v. Powell; West Valley City v. Temblador-Topete; Issertell v. Issertell presented by The Appellate Group

CRIMINAL

Blanke v. Utah Board of Pardons & Parole (Himonas, J.)

The Utah Board of Pardons and Parole declined to set a parole date for a Utah prison inmate who had been convicted of attempted child kidnapping and kidnapping because he refused to participate in the prison sex offender treatment program. The inmate filed a petition for extraordinary relief, arguing that the Parole Board had violated his due process rights by conditioning his parole date on sex offender treatment even though he had not been convicted of a sex offense. The district court and court of appeals rejected his argument. The Utah Supreme Court granted certiorari and affirmed, holding:

  1. The Parole Board did not violate the inmate’s right to due process by considering him to be a sex offender for the purpose of requiring sex offender treatment because the inmate had been convicted of and admitted to crimes that require registration as a sex offender, even though he had not been convicted of a crime that involved sexual activity.
  2. The Parole Board was not required to apply Neese v. Utah Board of Pardons and Parole, 2017 UT 89, 416 P.3d 663, in which the Utah Supreme Court held that due process required the Parole Board to give greater protections (such as the ability to call witnesses and present evidence) to an inmate who had not been convicted of a sex offense before it could consider the inmate to be a sex offender for the purposes of requiring sex offender treatment.
  3. Concurrence (Lee, J.): The concurring justice argued that Neese should be overruled.
  4. In response, the majority noted that the parties had not asked the court to overrule Neese and that the majority did not doubt the continued viability of Neese. The majority also pointed out that “the concurrence has been and remains more willing than the other members of this court to uproot precedent.”

State v. Powell, 2020 UT App 63 (Pohlman, J.)

A wheelchair-bound defendant went to two stores and wore jeans with the crotch cut out and sheer mesh fabric on top of his genitals. Customers saw the defendant and his exposed genitals. The police investigated the case nine months later, but the police could not get surveillance video from one store because the store had already destroyed that video. The State charged the defendant with two counts of lewdness. The jury convicted him, he moved for a directed verdict, and the court denied that motion. The Utah Court of Appeals affirmed the convictions, holding:

  1. The defendant did not demonstrate that appearing in a public place with only a see-through material covering his genitals does not constitute an act of exposure under the lewdness statute, Utah Code § 76-9-702(1). Even though the defendant had see-through fabric over his penis, the customers did see the defendant’s penis through the fabric. 
  2. Counsel was not ineffective in the crafting of the lewdness jury instructions: alarming a person 14-years-or-older is an alternative basis for conviction; the prefatory attempt clause in the lewdness statute is not an element of the crime; recklessness was a proper mental state for the lewdness statute; and it was reasonable for counsel to not request a lesser-included offense instruction to lewdness.
  3. Counsel was not ineffective when he did not move to dismiss the case under State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, because the police did not retrieve the store’s surveillance video before the store destroyed it. The defendant did not show that Tiedemann applies to situations where a private party, not the State, controls and preserves the evidence. And Tiedemann does not impose on police an obligation to immediately investigate the case to preserve potential evidence.
  4. In State v. Mohamud, 2017 UT 23, 395 P.3d 133, the Utah Supreme Court did not suggest that a defendant can testify in front of a jury to establish his view of the lost evidence without waiving his right against self-incrimination.

West Valley City v. Temblador-Topete, 2020 UT App 64 (Pohlman, J.)

Officers relied on information from the Utah Criminal Justice Information System (UCJIS) that the car the defendant was driving was not insured. A representative from Insure-Rite, the company providing the information, testified at trial that it told the officer there was “no insurance found” in response to the inquiry. In fact, the car was insured and Insure-Rite, which only updates its statuses every two weeks, was not yet informed. The officers stopped defendant’s vehicle based upon the response “no insurance found.” The officer then discovered that the defendant had multiple arrest warrants and searched him incident to arrest. During the search, the officer discovered methamphetamine on defendant’s person. The defendant moved to suppress the drugs, arguing that the officer who pulled him over had no reasonable articulable suspicion to affect the stop because “no insurance found” did not suggest one way or the other whether the vehicle was insured. The district court denied his motion. The Utah Court of Appeals affirmed his conviction, holding:

  1. As long as an officer suspects a driver is violating any number of traffic ordinances or regulations, the officer may legally stop the vehicle. An officer need not completely rule out innocent conduct before effectuating a stop. The information provided by UCJIS and Insure-Rite was objective and particularized information that insurance was “not found.” Insure-Rite’s inability to confirm that the car was insured created a reasonable suspicion it was not insured. The officer was justified in stopping the vehicle to confirm or dispel that information.
  2. Insure-Rite’s database is not per se unreliable, because two-week old information is not stale enough to render it per se unreliable. 

FAMILY

Issertell v. Issertell, 2020 UT App 62 (Mortensen, J.)

A couple divorced in 2015. Ex-husband’s alimony was set based upon his income at the time. He thereafter lost his job and petitioned to modify his alimony and child support obligations. He had military-related-service disability. Because of his disability, he began 12-hour-a-week employment at the local library and studied for a VA-funded master’s degree. He left his job at the library while attempting to maintain his studies. He eventually withdrew from his master’s program due to his disabilities. In the interim, he had applied to over 800 new jobs through various employment services. Ex-husband then remarried and his current wife funded his alimony and child support obligations through her personal savings and retirement accounts. Ex-husband filed a petition to modify. The district court granted the motion and used the doctrine of equalization of income. The Utah Court of Appeals affirmed, holding:

  1. The district court properly determined that Ex-husband was unemployed. The court exercised its discretion when it based its decision on Ex-husband’s disabilities and unsuccessful efforts to obtain gainful employment. The court evaluated his skills and abilities, as well as his disability income from the military.
  2. A former job offer that was later withdrawn does render Ex-husband’s unemployment voluntary. And his job at the library was reasonably seen as a temporary and rehabilitative employment arrangement intended to place him in a job that would not aggravate his disabilities. It was, therefore, reasonable for the district court to consider it an insufficient basis to impute Ex-husband’s previous level of income. Neither were his studies a basis to impute his previous income to him: he was receiving accommodation, had difficulty with his studies, and ultimately could not complete them because of his disability.
  3. Ex-wife’s argument that Ex-husband’s income should be imputed at the federal minimum wage for a 40-hours a week was not preserved. Merely mentioning imputation below does not preserve all possible arguments in favor of imputation.
  4. The district court did not abuse its discretion in refusing to consider Ex-husband’s current wife’s contributions to his alimony and child support as gifts. Ex-husband testified he intended to pay his current wife back, and she had used up all of her savings and was currently paying from her retirement account. Even so, Ex-husband’s current wife had no legal obligation to continue providing monetary support and could not be expected to continue providing financial gifts indefinitely.

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