State v. Bridgewaters; State v. Case; State v. Harper; State v. Levering; State v. Npimme; Oceguera v. Labor Commission presented by The Appellate Group
State v. Bridgewaters, 2020 UT 32 (Petersen, J.)
A district court issued a temporary ex parte protective order that was personally served on the defendant the same day. The defendant failed to appear at a hearing a little over two weeks later when the court entered a protective order against the defendant. Under both the ex parte order and the protective order, the defendant was prohibited from communicating with his former girlfriend or going to her residence or workplace. An applicable act requires personal service on the defendant as soon as possible after the hearing. Nobody here personally served the defendant. Instead, counsel notified the court that he or she had mailed a copy of the order to the defendant at the defendant’s last known address in accordance with rule 5 of the Utah R. of Civ. P. That address was his former girlfriend’s residence. A year later, the former girlfriend saw him driving through her complex. He spoke to her and thereafter texted her. He was charged with violating the protective order twice: when he visited his former girlfriend’s apartment and when he texted her. He was bound over on both counts. He argued there was insufficient evidence to show he had been properly served and that the ex parte order had expired after 180 days. The district court determined that an ex parte order did not expire until the defendant was served with the protective order. The defendant filed an interlocutory appeal, which the Utah Court of Appeals certified to the Utah Supreme Court. The Utah Supreme Court affirmed the decision of the district court, holding:
- The defendant was not properly served with the protective order. Even though the protective order does not initiate a protective order proceeding in the same way a summons and complaint commence other civil actions, the legislature intended a protective order to be served as if it were “process.” The Cohabitant Abuse Act specifies that a protective order shall be delivered to the county sheriff for “service of process”—and that phrase indicates that rule 4 (titled “Process”) of the Utah R. of Civ. P. govern. Thus, the Cohabitant Abuse Act and rule 4 require the prosecution to prove that the defendant was properly served in person by the sheriff. The defendant here, however, was served by mail. Service was improper.
- Bindover on both counts was appropriate, because even though the protective order was not properly served, a previous ex parte order was still in effect at the time of the events in question. An ex parte order may remain in effect beyond 180 days if the protective order hearing has already taken place. While a 180-day limit applies to a court’s decision to extend an ex parte order before the court has held a hearing or before the court has issued a protective order, subsection 107(1)(d) applies when a court has held a hearing and has decided to issue a protective order. At that point, the 180-day limitation no longer applies. Under subsection 107(1)(d), once a court holds a hearing on a petition for a protective order and issues such an order, a previously issued ex parte order remains in effect until “service of process of the protective order is completed.”
State v. Case, 2020 UT App 81 (Christiansen Forster, J.)
The State charged the defendant with possessing child pornography. At trial, the State admitted testimony of the defendant’s marital sexual activities and photographs of legal erotica, noting that this evidence was relevant because the defendant had unique sexual fetishes with feet and hosiery. The State presented the jury with 37 images of child pornography but only charged the defendant with possessing 7 images. The jury instructions informed the jury only that they had to reach a unanimous agreement on the verdict. The jury convicted the defendant on all counts. The Utah Court of Appeals affirmed, holding:
- To the extent the defendant argues that the district court erred in admitting evidence of marital sexual activities and photographs of legal erotica, the defendant did not present an adequate record for the Court of Appeals to rule on. The district court issued a bench ruling on these issues, but a transcript of the relevant hearing was never requested or made part of the record.
- Once the State failed to elect which act of possessing child pornography supported each charge, the district court should have instructed the jury that it needed to unanimously agree on which specific criminal act or image satisfied each charge to convict. But the defendant has not shown a reasonable likelihood of a different verdict. The State presented 37 images, and there is little doubt that the jury would have selected the 7 most sexually graphic depictions of child pornography among the 37 that were admitted into evidence, resulting in the same 7 convictions.
State v. Harper, 2020 UT App 84 (Harris, J.)
The defendant pleaded guilty to stalking his ex-girlfriend with the understanding that he would not serve any jail time and would, instead, be sentenced to probation. The district court sentenced him to jail, and the defendant appealed, raising two issues. First, he argued that he received ineffective assistance of counsel when his trial counsel failed to clarify its position regarding the plea bargain. Second, he argued that the trial court abused its discretion when it denied his motion to withdraw his plea. The Utah Court of Appeals affirmed, holding:
- The ineffective assistance of counsel claim is unpreserved in the district court. Under the terms of the Plea Withdrawal Statute, any such claim must be brought, if at all, in a post-conviction proceeding.
- The district court did not abuse its discretion when it denied the defendant the opportunity to withdraw his plea. First, a plea bargain is not an ironclad guarantee, and a district court is not bound by its terms. Utah R. Crim. Proc. 11(i) allows a district court to weigh in prior to entry of plea. But the defendant did not avail himself of that rule. Second, the defendant’s plea did not include a guarantee of probation in the first instance, and the defendant acknowledged so at his plea hearing. Third, although the language of the plea agreement is arguably ambiguous, the defendant failed to present to helpful evidence to the district court that would allow the court of appeals to utilize extrinsic evidence to understand the intent of the drafters. Furthermore, after he entered his plea deal, the defendant was arrested again and charged with two felony counts, pleading guilty to one. That relieved the State of any obligation it might have had to advocate for probation.
State v. Levering, 2020 UT App 82 (Christiansen Forster, J.)
After the defendant’s ex-girlfriend kicked him out and locked the door, the defendant forcibly opened the door and assaulted the ex-girlfriend in front of her child. The defendant was convicted of assault, domestic violence in the presence of a child, and criminal trespass. On appeal, he argued that counsel was ineffective for failing to object the three separate jury instructions and that the district court erred when it failed to allow him to admit evidence of the victim’s violent acts against him that occurred after the event in question. The Utah Court of Appeals affirmed, holding:
- Trial counsel did not err in failing to object to instructions 16 & 17 on the ground that they failed to include as an element that the State had the burden to disprove that the defendant was acting in self defense. But even if instructions 16 & 17 were erroneous for failing to more clearly establish that the State had the burden of disproving that the defendant was acting in self defense when he attacked the victim, the defendant was not prejudiced by the error. The defendant admitted he was not responding to a threat. He had been kicked out of the residence forcibly and forced his way back in through a locked door. The defendant presented no evidence that he reasonably believed the victim presented an imminent danger to him once he was outside, nor did he claim it was necessary for him to force his way back in to stop violence against him. Even if the burden of proof on self defense were more clearly stated in the jury instructions, it is unlikely the jury would have acquitted the defendant of assault.
- Trial counsel did not err in failing to object to instruction 14 on the ground that it did not include a defense to criminal trespass. Criminal trespass is available if (1) the property was open to the public at the time, and (2) the actor complied with all lawful conditions imposed on access to or remaining on the property. The defendant failed to prove that the residence was open to the public, obviating the need to show that he lawfully accessed the property. The defendant himself testified that the house was locked that day and that the windows were screwed shut, as was the norm. The defendant cited no cases suggesting that “open to the public” applied to residences that are private homes—or that “the public” could also be read as a party of one. And the residence was not even open to him. He was, therefore, not prejudiced by instruction 14.
- The district court did not err in omitting victim’s admissions from a protective order hearing that she had committed violent acts against him. Even if the district court should have admitted those statements, their omission did not prejudice the defendant. The jury heard other testimony that the victim was violent against the defendant. The victim herself admitted that she was violent when he brought drugs into her house. The defendant failed to explain how the addition of that evidence would have made a difference to the outcome of his case.
State v. Npimme, 2020 UT App 80 (per curiam)
The defendant pleaded guilty, did not seek to withdraw his guilty plea, and was sentenced within the statutory range. On appeal, the Utah Court of Appeals informed the defendant that the case was being considered for summary disposition. The defendant argued that summary disposition was inappropriate and that the Court should allow the defendant time to file an Anders brief. The Utah Court of Appeals affirmed, holding:
- A criminal defendant is not denied the constitutional right to appeal by a summary disposition procedure. Although Anders describes a procedure that may be used by appointed appellate counsel when faced with a frivolous appeal, Anders does not mandate allowing a case that is otherwise subject to summary disposition to go forward for the purpose of allowing counsel to file an Anders brief.
Oceguera v. Labor Commission, 2020 UT App 83 (Harris, J.
An employee-seamstress had preexisting osteoarthritis in her knee. One day at work, the employee stepped on a sewing machine pedal with slippery cloth on it, twisting her foot and causing pain in her knee. She tore her meniscus. After the employee filed for temporary total disability benefits, the ALJ (and later the Labor Board) concluded that the employee could not show that her employment contributed something substantial to increase the risk she already faced with her preexisting condition. The Utah Court of Appeals reversed, holding:
- Under the test in Allen v. Industrial Commission, 729 P.2d 15 (Utah 1986), where an employee suffers from a preexisting condition which contributes to a workplace injury, an unusual or extraordinary exertion is required to prove legal causation.
- The employee established that her injury was legally caused by the workplace accident. Under the totality of the circumstances, the exertion expended by the employee in the course of her accident was greater than that usually undertaken by an average person in nonemployment life. In an effort to maximize her production rate, the employee was hurrying to the next station. She applied “significant pressure” to the foot pedal. And that foot pedal, unbeknownst to her, was more slippery than she was anticipating, since it had no grip tape and was covered by a stray piece of cloth. In the course of daily non-employment life, people do not typically encounter situations like that.