The Appellate Group

State v. Diviney

State v. Diviney, 2021 UT App 106 (Mortensen, J.)


Defendant appealed his various convictions related to an incident of domestic violence. He argued that the trial court should have granted a directed verdict on the count for domestic violence in the presence of a child because it was uncontested that the child was asleep in another room during the incident. He also argued that the trial court erred in preventing him from introducing certain evidence regarding Wife’s drug use. The court of appeals affirmed:

  • The offense at issue defines the element of “[i]n the presence of a child” to include when a defendant has “knowledge that a child is present and may see or hear an act of domestic violence.” Here, although it was uncontested that the child was asleep in another room, there was sufficient evidence of the requisite element where the door to child’s room was ajar.
  • The court of appeals concluded that Defendant was not prejudiced by the exclusion of certain evidence related to Wife’s prior drug use because in light of Wife’s admission on the stand that she had used drugs in her “lifetime,” her criminal drug record or recent positive methamphetamine test “were not reasonably likely to have changed the jury’s verdict.”

Read the full court opinion