State v. Bossert
362 P.3d 1258
Utah Ct. App.2015Background
- Defendant Darryl Bossert, father of a ten-year-old son (Son), lived in a home where he sold and used meth and marijuana and where friends frequently used drugs in Son’s presence.
- Defendant regularly gave Son marijuana (about 25–30 times); Son also received drugs/paraphernalia from Defendant’s friends and tried meth twice.
- On Feb 7, 2012, Son found meth and marijuana in unlocked locations in the house (a counter and a bureau drawer and a guest’s purse), used meth and marijuana, went to school, was caught, tested positive, and admitted obtaining the drugs from home.
- Police interviewed Defendant at the hospital; Defendant admitted using drugs and acknowledged Son could have found drugs in the house. Defendant was charged with two counts of child endangerment (marijuana and meth exposure) and an obstruction count (later dismissed). He was convicted on both endangerment counts and sentenced to concurrent 0–5 year terms.
- Defendant moved for a directed verdict at trial (arguing no proof he "caused or permitted" Son’s exposure) and later moved to arrest judgment alleging improper jury contact with a testifying detective; both motions were denied and those denials are appealed.
Issues
| Issue | State's Argument | Bossert's Argument | Held |
|---|---|---|---|
| Whether denial of directed verdict was error (sufficiency of evidence that Bossert knowingly or intentionally caused/ permitted Son’s exposure to drugs) | Evidence showed Son routinely accessed drugs in Bossert’s home, Bossert supplied Son marijuana repeatedly, drugs/paraphernalia were left accessible, and Bossert’s conduct created an environment that knowingly permitted exposure | No evidence Bossert expressly consented to Son stealing from a guest’s purse or accessing drugs in a closed drawer; Bossert was asleep when Son accessed the drawer and did not expressly permit the specific acts | Affirmed. Evidence (pattern of conduct, provision of drugs, unlocked storage, parent-child relationship) permitted a reasonable jury to find Bossert knowingly caused or permitted exposure under § 76-5-112.5(2)(a) |
| Meaning of "permit" and "cause" under the statute | Court should apply ordinary/dictionary meanings and prior case law interpreting "permit" to require some measure of control or knowing acquiescence | Proposed narrow dictionary meaning: "permit" = consent expressly or formally; argued trial court should be bound by jury-instruction definitions when ruling on directed verdict | Court adopted broader interpretation: "permit" = active or knowing acquiescence/some measure of control; "cause" = bring into existence; trial court not bound by jury instructions when deciding directed verdict |
| Whether trial court should have arrested judgment for alleged improper jury contact (detective allegedly called to jury room) | State: affidavits and interviews show detective and bailiff deny speaking to jurors; door near jury leads to hallway, not directly into jury room; no direct evidence of contact | Bossert: four affidavits from friends claim bailiff called detective to jury room during deliberations to answer a question; this suggests unauthorized contact and warrants arrest/new trial | Affirmed. Trial court found no direct evidence of contact; presumption of prejudice attaches only if improper contact actually occurred; court did not abuse discretion in denying arrest |
| Standard of review for directed verdict and new-trial/arrest judgment claims | Court: directed verdict reviewed for correctness under sufficiency-of-evidence standard; new-trial/arrest reviewed for abuse of discretion and clear error on factual findings | N/A (arguments incorporate above standards to challenge rulings) | Court applied correct standards and found sufficient evidence and no abuse of discretion |
Key Cases Cited
- State v. Gallegos, 171 P.3d 426 (Utah 2007) (defining "exposed to" as requiring a real, physical risk and a reasonable capacity to access substances)
- State v. Montoya, 84 P.3d 1183 (Utah 2004) (standard for sufficiency review on directed verdict)
- State v. Terwilliger, 992 P.2d 490 (Utah Ct. App. 1999) ("permit" requires some measure of control or knowing acquiescence)
- State v. Pike, 712 P.2d 277 (Utah 1985) (unauthorized juror contact raises a rebuttable presumption of prejudice)