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State v. Barner; State v. Lyden; State v. Williams; In re Estate of Deeter; Davis County v. Purdue Pharma presented by The Appellate Group


State v. Barner, 2020 UT App 68 (Hagen, J.) 

The defendant stole a case of beer and hit the store clerk with his car in the parking lot as he left. A detective investigated the incident and wrote in a report that the store’s surveillance footage did not show that the defendant intentionally hit the clerk and the clerk was not injured. The State charged the defendant with aggravated burglary. At trial, the court excluded the report and the detective’s testimony under rule 701 of the Utah Rules of Evidence, reasoning that the report would be unhelpful to the jury. At trial, the clerk testified and admitted that it was possible the defendant did not purposely hit him. The jury also saw the surveillance footage of the incident. After close of the State’s evidence at trial, the district court denied the defendant’s motion for a directed verdict on the aggravated burglary charge, leaving to the jury to decide whether the evidence showed that the defendant knowingly or intentionally used force or fear of immediate force against the clerk when he committed the crime. The jury convicted him of the lesser included offense of robbery. The Utah Court of Appeals affirmed his robbery conviction, holding:

  1. The district court did not abuse its discretion when it excluded the detective’s report and testimony under rule 701 of the Utah Rules of Evidence. While police reports are admissible to support a defendant’s case under the business records exception to the rule against hearsay—Utah R. Evid. 803(6)—police reports are still subject to other rules of evidence. The detective’s conclusion in the police report was based solely upon viewing the same surveillance footage that was shown to the jury. The detective did not witness the incident firsthand and his testimony would not have provided the jury with any new information.
  2. Exclusion of the detective’s testimony and report did not violate the defendant’s constitutional rightto present a complete defense. The defendant presented his theory of the case to the jury through testimony of the clerk and the video itself. The evidence was not essential to the defendant’s defense. And because the exclusion of the evidence did not deprive the defendant of his constitutional right, the State was not required to show that exclusion of the evidence was harmless beyond a reasonable doubt—a heightened standard of review when a constitutional right has been violated.
  3. The district court properly denied defendant’s motion for a directed verdict. The evidence was sufficient to establish that the defendant knowingly used force or fear of immediate force against the clerk. The clerk testified that he yelled to get the defendant’s attention, that he made eye contact with the defendant, and the defendant accelerated even though the clerk was near the vehicle. The jury could have found sufficient evidence to convict him of the aggravated charge.

State v. Lyden, 2020 UT App 66 (Mortensen, J.)

Victim was attacked in his garage by two individuals, including one using brass knuckles, who was identified as the defendant. The defendant was convicted of aggravated burglary and aggravated assault. The defendant appealed, arguing that the evidence was insufficient to prove his injury or that Victim had suffered serious bodily injury, and arguing that the prosecutor had engaged in misconduct. The Court of Appeals affirmed his convictions, holding:

  1. Testimony from multiple witnesses that the defendant was one of the attackers was not inherently probable under State v. Robbins, 2009 UT 23. The defendant pointed to inconsistencies in the witnesses’ testimony, but to nothing that made their testimony patently false or physically impossible. In addition, their testimony was corroborated by other evidence, including the defendant’s incriminating admissions and actions. 
  2. There was no basis for believing the jury had speculated as to the defendant’s identity, even if there were alternate explanations of the evidence. Speculation means that there is no underlying evidence to support the conclusion, but there was evidence here that the defendant had been one of the attackers.
  3. There was sufficient evidence that Victim suffered serious bodily injury. The evidence showed that Victim suffered ongoing headaches, short-term memory loss and tendon damage. This was sufficient for the jury to conclude that Victim had “protracted loss or impairment of the function of any bodily member or organ,” namely Victim’s brain, wrists, and fingers. Utah Code § 76-1-601(15) (defining serious bodily injury).
  4. It was not an abuse of discretion for the court to overrule the defense’s objection to the prosecutor’s remark in closing that “this is no reflection on these two good attorneys, but their argument and their theory is not good,” because the prosecutor’s attack was directed against the defense’s argument and theory and not against counsel. It was not plain error for the court to not intervene when the prosecutor made subsequent similar remarks because the remarks were not prejudicial.

State v. Williams, 2020 UT App 67 (Hagen, J.)

The defendant was charged with aggravated burglary, criminal mischief, and assault. To establish the elements of the crimes at trial, the State relied primarily on a 911 phone call from the defendant’s father claiming he and another son had just been assaulted by the defendant, who had gained entry to the father’s motorhome by tearing off the door. In the beginning of the phone call, the father’s breathing was rapid, his tone of voice was stressed, and his statements were spontaneous. At some point, after an officer got on the line, the father’s breathing slowed down, his voice calmed, and he became more responsive. Neither the father nor the other son testified at trial. Before trial, the State filed a motion to admit the 911 call. The defendant initially responded that the entire phone call was hearsay and that it violated his Sixth Amendment Confrontation right. The district court allowed the jury to hear the entire call. The jury convicted the defendant. The Utah Court of Appeals affirmed his convictions, holding:

  1. The statements made during the phone call did not violate the defendant’s confrontation rights, because they were nontestimonial in nature. Statements are nontestimonial when they are made to enable police assistance to meet an ongoing emergency. Here, the father was seeking protection and medical attention, and the defendant was still at large, so the primary purpose of the father’s phone call was to enable police assistance to meet an ongoing emergency. The statements were not, by contrast, given to police for the purpose of investigating a crime after a violent situation had subsided and after the assailant had been found.
  2. In deciding whether father’s statements fall under the excited utterance exception to hearsay, courts should examine each statement in the call should individually. Here, the district court appeared to have examined the phone call as a whole and not as a series of individual statements that each required examination.
  3. The first portion of the phone call fell under the excited utterance exception to the rule against hearsay. Under rule 803(2) of the Utah Rules of Evidence, an utterance is not hearsay when it relates a “startling event or condition, made while the declarant was under the stress of excitement that it caused.” Here, the defendant “tore the door off” of a motor home and “kicked the shit out of” the father and brother. Both victims were injured and bleeding. The court did not exceed its discretion in finding that the attack was a startling event and that the contents of the call relayed the event. As well, the first part of the call was made under the stress of the event: the father made many of the statements spontaneously, he stated he had “just” been assaulted, the assault was unexpected and traumatic, and the defendant was still at large.
  4. The second part of the phone call should have been excluded as hearsay, because it was not made under the stress of the event: father’s breathing slowed, his voice calmed, and his answers became less spontaneous. But the defendant waived any error in playing that portion of the call to the jury when he abandoned an objection to that portion of the call after he told the district court “no” in response to the court’s question whether he objected to playing that portion of the call. 


In re Estate of Deeter, 2020 UT App 65 (Christiansen Forster, J., majority; Mortensen, J., concurring)

Husband opened several retirement accounts through his employer and named First Wife as the primary beneficiary and Brother as the contingent beneficiary. Husband and First Wife divorced, and Husband married Second Wife. Husband did not change the beneficiary designation on his older retirement accounts, but he did tell Second Wife she would be a beneficiary on those accounts and opened up new accounts with her as a beneficiary. Husband died, and the employer retirement accounts went to Brother. Second Wife sued Brother, raising claims on testamentary intent and unjust enrichment. Brother moved for summary judgment. The district court granted summary judgment in favor of Brother. The Utah Court of Appeals affirmed, holding:

  1. The Second Wife did not file a Utah R. Civ. P. 56(d) affidavit or declaration explaining why she was unable to support her opposition to summary judgment with the information she possessed. Rather, she merely stated in her opposition to summary judgment that summary judgment was premature because discovery was not finished. Because Second Wife did not comply with rule 56(d), the district court did not abuse its discretion in disregarding it.
  2. The district court did not err in granting summary judgment to Brother. Retirement contracts are nontestamentary. Utah Code § 75-6-201. Consequently, the beneficiary designation on the employer’s retirement accounts are governed by contract law and not by Husband’s testamentary intent.
  3. Concurrence: The concurring judge noted that rule 56(d) is widely misused and abused. Rule 56(d) motions do not exist; rather, rule 56(d) affidavits do. In his view, the drafters of rule 56(d) intended the rule to work as follows: if the nonmoving party cannot sufficiently oppose a motion for summary judgment because that party needs to do further discovery, locate other evidence, or needs further time to obtain an affidavit, the party must file a rule 56(d) affidavit that explains what specifically needs to be obtained. Then in the memorandum opposing summary judgment, the party explains how and why that evidence matters in the context of the of the pending motion for summary judgment.


Davis County v. Purdue Pharma, 2020 UT 17 (Lee, A.C.J.)

Local governments filed suits against the opioid manufacturers in several judicial districts across Utah. The first suit was filed in the third district. Davis County then filed suit in the second district. A manufacturer filed a motion in the second district asking the court to transfer the case to the third district for discovery and pretrial proceedings. The district court agreed. On interlocutory appeal, the Utah Supreme Court affirmed, holding:

  1. The multi-district transfer of a case from the second district to the third district cannot be authorized by Utah R. Civ. P. 42, which involves consolidation of cases within a single judicial district.
  2. The multi-district transfer of a case from the second district to the third district cannot be authorized by Utah Code § 78B-3-309, the venue statute that applies to trial. But that venue statute does not displace the inherent power of the courts to transfer venue for other purposes. The venue statute does not mention pre-trial proceedings, and that gap is just a gap and not a field-occupying omission barring the exercise of inherent judicial power.
  3. Courts have inherent judicial power to manage court proceedings in a manner that promotes efficiency in the judicial process, which includes transferring a case from one district to another.
  4. The district court did not abuse its discretion in granting the motion to transfer the case to the third district. The court cited a broad range of judicial economy considerations, and although Davis County has fair points of concern about the multi-district litigation, the district court did not exceed the bounds of its discretion when transferring the case.

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