Justice Court’s Lack of Subject Matter Jurisdiction Prevents Double Jeopardy Problem

After an initial conviction was vacated due to a justice court's lack of subject matter jurisdiction, the second conviction at the district court level does not implicate double jeopardy protections 

South Jordan City v. Summerhays, 2017 UT App 18.

The Utah Court of Appeals held there is no double jeopardy if a crime is improperly tried in a city’s justice court and is later vacated by the district court and properly retried later. In the case, the defendant gave a guilty plea in justice court for violating a protective order, a class A misdemeanor, and began serving a ten-day sentence. After the guilty plea, the defendant immediately appealed his conviction in district court, arguing that the justice court had no jurisdiction to consider a criminal charge above a class B misdemeanor. The district court then vacated the judgment and the defendant was released.

The city properly refiled charges in district court soon after and the defendant moved to dismiss the charges because of the Double Jeopardy Clause of the Fifth Amendment. The district court rejected the argument, finding that the justice court did not have jurisdiction to hear the case. Relying on Supreme Court jurisprudence regarding the double jeopardy, the Court of Appeals affirmed the district court’s ruling, finding that the justice court’s lack of subject matter jurisdiction prevented jeopardy from attaching from the initial conviction.

https://www.utcourts.gov/opinions/appopin/South%20Jordan%20City%20v.%20Summerhays20170126.pdf

Multiple Violations of the Same Protective Order Grounds for Imprisonment

After having a prison sentence twice suspended in favor of probation for violating a protective order, a third violation of the same order and its resulting prison sentence is not unfair

State v. Moosman, 2017 UT App 11.

The Utah Court of Appeals affirmed a trial court’s sentence of imprisonment for a defendant’s repeated violation of a protective order. The defendant has had a protective order issued against him from contacting the mother of his child, but after two violations of that order which limited contact with the mother, he was placed on probation when his initial prison sentences were suspended. After the third violation of that order, the court revoked his probation and sentenced him to prison for his violations and after a recommendation from Adult Probation and Parole that he serve time in prison for his repeated offenses. The Court of Appeals rejected the defendant’s appeal, finding that there was nothing inherently unfair in the prison sentence and that the trial court was well within its discretion in issuing the sentence. All things considered, including multiple violations of the order and the recommendation by Adult Probation and Parole, the term of imprisonment was fair and affirmed by the Court of Appeals.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Moosman20170112.pdf

One Hand on ATV Handlebars Constitutes “Actual Physical Control”

Helping a child steer an ATV while under the influence of alcohol is still considered "actual physical control" because a "person need not operate...a vehicle before he or she may be found to be" in control

State v. Cook, 2017 UT App 8.

The Utah Court of Appeals held that one hand on an ATV handlebar constitutes actual physical control in regards to driving while under the influence, even if it only consisted of “helping” a ten-year-old child steer the vehicle. The defendant was spotted when an officer saw her and two other passengers speeding along a snow covered road riding an ATV. The officer noticed that the adult defendant on the vehicle had a can of beer in one hand and another hand on the handlebars. The defendant argued that she only had a hand on the handlebars to protect the child who was driving the vehicle, thereby not having actual physical control of the ATV. The Court of Appeals rejected this argument, citing law that says “actual physical control” means “existing or present bodily restraint, directing influence, domination or regulation.” State v. Bugger, 483 P.2d 442, 443 (Utah 1971). The court further noted that the distinction between “operating a vehicle and having actual physical control…a person need not operate…a vehicle before he or she may be found to be in actual physical control.” State v. Barnhart, 850 P.2d 473, 479 (Utah Ct. App. 1993). The Court of Appeals, after reviewing the defendant’s testimony of her actions in regards to the vehicle, found that she indeed exerted actual physical control over the ATV while intoxicated and affirmed the lower court’s conviction.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Cook20170112.pdf

Officer Testimony about Defendant’s Refusal to Speak not a Reversible Error

An arresting officer's mention at trial of a defendant's refusal to answer questions during the investigation is not inherently a reversible error

State v. Neilson, 2017 UT App 7.

The Utah Court of Appeals found that a trial court did not commit error requiring a mistrial after an officer gave testimony about the defendant’s unwillingness to speak during an investigation. After being arrested and charged with several sex crimes against a minor, the defendant was contacted by his arresting officer as part of the investigation. The defendant exercised his Fifth Amendment rights and refused to speak to the officer further about his charges. During the trial, the prosecutor elicited testimony from the officer of the contact he had with the defendant. In this line of questioning, the officer testified that the defendant refused to speak with him. After receiving that answer, the prosecutor moved on in his questioning without mentioning the defendant’s silence. The prosecutor did not emphasize this incident and the trial court provided a curative instruction to prevent the jury from drawing a “negative inference” from the “isolated statement.” The Court of Appeals further noted that the defendant failed to establish that the incident “so likely influenced the jury that [he] cannot be said to have had a fair trial.” The trial court’s ruling was affirmed.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Neilson20170112.pdf

Jury Instruction Describing “Serious Bodily Injury” Violated Defendant’s Constitutional Rights

Jury instructions that stated that defined strangulation unto consciousness as a "serious bodily injury" violated the defendant's constitutional rights because he was entitled to the jury making a determination of every element of the crime.

State v. Walker, 2017 UT App 2.

The Utah Court of Appeals held that a jury instruction incorporating language that defined strangulation unto consciousness as a “serious bodily injury” violated the defendant’s Sixth and Fourteenth Amendment rights, requiring the verdict to be vacated and the case to be remanded for a new trial. The defendant was initially charged with aggravated assault for strangling his wife during a domestic dispute. During the trial, the jury was instructed of the varying levels of assault. Additionally, the court included an instruction that was not based on any statutory language, but two Utah Supreme Court cases, that stated “strangulation to the point of unconsciousness constitutes serious bodily injury.” The defendant objected to the instruction because it violated his “right to have the jury make a determination of proof beyond a reasonable doubt on each and every element of the offense.” The Court of Appeals rejected the state’s argument that the instruction incorporated a standard by the Supreme Court, finding that the definition of strangulation as a serious bodily injury was never meant to fit into the legislature’s definition of “serious bodily injury.” By including this instruction, the trial court supplanted the jury’s role as fact-finder and establishing the elements of the charged crime. The combination of the instruction, the evidence admitted during trial, and the closing argument by the prosecutor further highlighted the possible influence the instruction had on the jury in reaching their conclusion. 

https://www.utcourts.gov/opinions/appopin/State%20v.%20Walker20170106.pdf

Questions that Reiterate Defendant’s Testimony not an Attack of Character

A prosecutor’s line of questioning during cross-examination did not call into question the defendant’s character, thereby preventing the defendant from offering two character witnesses

State v. Issacson, 2017 UT App 1. 

The Utah Court of Appeals found that the trial court did not abuse its discretion in excluding the testimony of the defendant’s character witness because the prosecution did not call into question the character or truthfulness of the defendant during cross-examination. The defendant was convicted of carrying a loaded and concealed weapon after being spotted at a city library with a handgun in his jacket pocket. During the bench trial, the defendant stated that he did not think he needed a concealed-carry permit because of the Second Amendment Right to bear arms. Additionally, the defendant sought to produce two character witnesses to testify on his truthfulness and his ability and knowledge of the concealed carry laws. The trial court reserved a ruling on the witnesses after the prosecution objected to the use of the testimony of the witnesses, who were neither at the scene of the crime nor would have relevant testimony to the elements of the crime.  The court later granted the objection after the prosecution cross-examined the defendant and prevented the witnesses from testifying.

Under Evidence Rule 608, evidence of the defendant’s character’s reputation or truthfulness may be admitted, but only after the character was attacked. The Court of Appeals affirmed the trial court’s ruling, finding that the prosecution’s line of questioning, including specific questions regarding the finances of the defendant did not “suggest that [the] defendant was lying about his finances or….that he was being untruthful about anything.” Rather, the questions “merely reiterated” the responses that the defendant gave in his testimony to the defense counsel’s questions. Since the defendant’s reputation was not attacked, the trial court did not abuse its discretion in excluding the defendant’s character witnesses


https://www.utcourts.gov/opinions/appopin/State%20v.%20Isaacson20170106.pdf

Jury’s Access to Testimonial Videos During Deliberation Not Allowed

Testimonial videos shown in court are not allowed to be reviewed by jurors during deliberation because they are “testimonial in nature” and may disadvantage the opposing party

State v. Cruz, 2016 UT App 234

The Utah Court of Appeals found that video testimonial of a child should not have been reviewed by jurors during deliberation. Under rule 17 of the Utah Rules of Criminal Procedure,” [T]he jury may take with them the instructions of the court and all exhibits which have been received as evidence, except exhibits that should not, in the opinion of the court, be in the possession of the jury, such as exhibits of unusual size, weapons or contraband.”  The Supreme Court, however, has limited this rule by stating that the rule “indicates that exhibits which are testimonial in nature should not be given to the jury during its deliberation” because it would give an undue advantage to the party that presented the testimony.

In this case, two videos of a child responding to investigators at a Child Justice Center regarding alleged abuses were presented to the court as exhibits in the case. The exhibits, however, included victim testimony that could be replayed numerous times by a jury member, which is unlike testimony only heard in court. Its use during deliberation, as the Court of Appeals indicated, violates rule 17 and the Supreme Court’s precedent regarding the Jury’s use of testimonial evidence or exhibits during deliberation.

The court cautioned, however, that this ruling does not limit all videos from being used by a jury during deliberation, just those that are testimonial in nature.

https://www.utcourts.gov/opinions/appopin/State%20v.%20Cruz20161201.pdf