STATE OF UTAH, IN THE INTEREST OF J.C., A PERSON UNDER EIGHTEEN YEARS OF AGE. J.C., Appellant, v. STATE OF UTAH, Appellee.
No. 20140449-CA
THE UTAH COURT OF APPEALS
January 22, 2016
2016 UT App 10
Fourth District Juvenile Court, Provo Department
The Honorable Brent H. Bartholomew
No. 1048554
Sean D. Reyes, Cherise M. Bacalski, and Ryan Tenney, Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which SENIOR JUDGE RUSSELL W. BENCH concurred.1 JUDGE J. FREDERIC VOROS JR. concurred, with opinion.
ROTH, Judge:
¶1 J.C. was adjudicated delinquent in juvenile court for possession of drug paraphernalia, a class B misdemeanor if committed by an adult, see
BACKGROUND3
¶2 J.C., his brother, and three other students from their high school left the school‘s campus during a school-wide assembly. A school resource officer (the SRO) “had received information” that students might be leaving campus during an assembly to smoke marijuana “in a grove of trees” located near the school. The SRO drove to a place where he could observe the area from his vehicle through binoculars. From this location, he “observed five . . . students walking down the canal trail and enter[ing] the grove of trees.” Upon seeing the students, he “was able to identify” each student by name, including J.C. Although the SRO radioed for an additional officer to respond to the location, he became concerned that because the students were smoking marijuana, any evidence “might be destroyed by the time [he] waited for [the additional officer to arrive].” The SRO exited his vehicle, approached the five students—who were now standing in a circle—and said “don‘t move.” All the students ran. The SRO gave chase, stating, “I know your names,” and yelling “stop, police” multiple times. At this point, an additional officer had arrived and also gave chase. Four of the five students were
¶3 The State filed a delinquency petition against J.C. alleging failure to stop at the command of a law enforcement officer, possession of drug paraphernalia, and possession or use of a controlled substance. J.C. and his brother, L.C., were tried together on all three allegations.5 Before testimony began, the juvenile court asked each party to “identify their witnesses.” The State identified six witnesses in the order they would be called: the SRO, the other responding officer, the school principal, and the other three students who had been in the circle at the grove of trees—J.M., N.C., and J.R. The attorney for J.C. and his brother responded that his clients “would be testifying perhaps if they choose to” but he did not expect to call any other witnesses.
¶4 As anticipated, the State first called the SRO, then the other officer, followed by the school principal, and finally the three students. The SRO testified that he smelled “a strong odor of burnt marijuana” as he started running toward where the students had been standing in a circle; that he “found a small baggie of marijuana” just a few feet from where J.M. and L.C. were apprehended; and that he discovered “a fresh apple pipe” in the location where the students were standing that had “burnt marks around the top of the apple where it‘s consistent that people carved out the apple to smoke marijuana.” The other officer testified that although he could “[not] recall smelling any marijuana[,] . . . [he] did see the apple.”
¶5 The school principal then testified about his conversation with the four students the police had apprehended, describing
¶6 Following the principal‘s testimony, the State called the other three students to testify.7 The testimony of each student about what had happened in the grove of trees diverged from the principal‘s description of his interviews with each of them after they were apprehended. In particular, all of them testified that J.C., though part of a group that left school for the grove of trees, had left before the circle formed and before the apple pipe was passed around.
¶7 J.M. testified that all five students had left the school‘s campus that day and upon arriving at the grove of trees, he left the group to use the bathroom. He recounted that when he returned, everyone was in a circle facing each other and the apple pipe “was all just set up.” The apple pipe was passed to him and he “was going to take the hit” but did not because the SRO arrived. Finally, he testified that, contrary to what the
¶8 N.C. also testified that all five students left the school‘s campus during an assembly and “went over to a grove of trees” where, as he had told the school principal, he had “taken a couple hits” of marijuana from the apple pipe. He stated, however, that J.C. “was with [him] at the beginning, but then he left to the bus stop before everything happened,” again contrary to what the principal said N.C. had told him earlier.
¶9 J.R. testified that all five students left the school‘s campus during an assembly but they walked in two separate groups to the grove of trees. By the time the two groups reunited near the canal, J.C. “was gone.” When asked about the group‘s activities in the grove of trees, J.R. denied standing in a circle, denied seeing an apple or an apple pipe, denied passing an apple pipe to another person, and denied smelling any marijuana. This testimony was contrary to the principal‘s testimony about what J.R. had told him in the earlier interview.
¶10 At the end of the State‘s case, J.C.‘s attorney moved for a directed verdict, “specifically to J.C. because beyond being seen there by the officer and the parties,” according to “the boys who were there . . . , he left before any of the alleged incidents occurred.” The juvenile court dismissed the allegation of failure to stop at the command of a police officer but denied the motion as to the other two allegations. J.C.‘s attorney called no witnesses, but he renewed his motion for a directed verdict during his closing argument. The juvenile court, however, found the evidence against J.C. to be sufficient to support a delinquency adjudication for possession of drug paraphernalia and possession or use of marijuana. In its ruling from the bench, the court indicated that it found the SRO, the other officer, and the school principal to be “credible witness[es],” but not “[t]he young men that . . . testified.” Rather, the juvenile court “believe[d] that . . . they either had a lapse in memory or
¶11 J.C. appeals the juvenile court‘s delinquency adjudication as to both allegations.
ISSUES AND STANDARDS OF REVIEW
¶12 J.C. argues that the juvenile court erred by relying on the principal‘s testimony because it was inadmissible hearsay. Because J.C. did not preserve this issue below, he seeks review under the plain error doctrine. “In general, to establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined. If any one of these requirements is not met, plain error is not established.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993) (citations omitted).
¶13 J.C. also argues that the juvenile court erred by concluding that there was sufficient evidence to find J.C. delinquent. When a challenge to the sufficiency of the evidence is raised, “[w]e review the juvenile court‘s factual findings based upon the clearly erroneous standard.” In re S.O., 2005 UT App 393, ¶ 12, 122 P.3d 686 (citation and internal quotation marks omitted). And under the clearly erroneous standard, we will set aside the juvenile court‘s decision only when that decision is “against the clear weight of the evidence, or if [we] otherwise reach[] a definite and firm conviction that a mistake has been made.” In re S.L., 1999 UT App 390, ¶ 20, 995 P.2d 17 (citation and internal quotation marks omitted). “[W]e defer to the
ANALYSIS
¶14 We conclude J.C. has not demonstrated plain error in the juvenile court‘s reliance on the school principal‘s testimony. “Plain-error review requires looking at a well-settled, three-part test” that includes error, obviousness, and harmfulness. See State v. Gailey, 2015 UT App 249, ¶ 8, 360 P.3d 805. For purposes of this appeal, we will assume that the juvenile court erred by admitting the school principal‘s testimony. But we also conclude that J.C. has failed to demonstrate that this error was obvious. Because J.C. has failed to demonstrate that the error was obvious, we need not consider the other requirements of plain error review. See Dunn, 850 P.2d at 1209. And because the juvenile court could properly consider the school principal‘s testimony, the evidence was sufficient to support the court‘s adjudications of delinquency.
I. The School Principal‘s Testimony Was Not Plainly Inadmissible.
¶15 J.C. argues that “[t]he juvenile court committed plain error by admitting and relying upon hearsay evidence.” J.C. asserts that “the juvenile court‘s acceptance of inadmissible hearsay, in the form of testimony from [the school principal] about what the other boys said when he interviewed them, was an obvious error and that without that evidence there is a
A. Error
¶16 J.C. argues that the principal‘s testimony about what the students told him was hearsay and not covered by any exception. According to J.C., while rule 801 of the Utah Rules of Evidence provides that an out-of-court statement is not hearsay if it “is inconsistent with the declarant‘s testimony” and “[t]he declarant testifies and is subject to cross-examination about [the] prior statement,”
¶17 Under the Utah Rules of Evidence, hearsay is not admissible unless the evidence meets one of several specific exceptions. See
¶18 “To qualify for nonhearsay treatment under [the] rule[s], the out-of-court statement must be (1) Inconsistent with the witness‘s in-court testimony; or (2) The witness denies previously making the statement; or (3) The witness acknowledges that he or she has forgotten making the statement.” R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 711 (2014); see also
¶19 Here, when the principal testified at trial about what the other three students said to him, none of those students had yet testified, and therefore, as J.C. contends, at that point the principal‘s “statement[s] w[ere] not the statement[s] of a declarant witness inconsistent with [their] testimony.” In addition, when the other student-witnesses were examined at the end of the State‘s case, they were not questioned about their
B. Obviousness
¶20 To warrant relief for plain error J.C. must establish not only that there was an error, but that “the error should have been obvious to the trial court.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993); see also State v. Parker, 2000 UT 51, ¶ 7, 4 P.3d 778. An error is obvious when “the law governing the error was clear at the time the alleged error was made.” State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276; see also State v. Alzaga, 2015 UT App 133, ¶ 23, 352 P.3d 107. J.C. argues that the error should have been obvious to the juvenile court because “the plain language of the rules of evidence show that [the school principal‘s] testimony was filled with statements not made by the declarant while testifying at trial [and were] offered for their truth and not admitted as inconsistent statements subject to cross-examination.” But even if the State failed to properly lay foundation to admit the school principal‘s hearsay testimony about the three students’ statements, it does not automatically follow that the error should have been obvious to the juvenile court. This is because “on a pragmatic level, . . . courts are not required to constantly survey or second-guess the nonobjecting party‘s best interests or trial strategy[,]” but are only required to act “where errors are particularly obvious or egregious and would serve no conceivable strategic purpose.” State v. Labrum, 925 P.2d 937, 939 (Utah 1996). Therefore, “[p]lain error does not exist when ‘a conceivable strategic purpose’ exists to support the use of the evidence.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (quoting State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997)); Fernandez v. Cook, 870 P.2d 870, 876 (Utah 1993) (“It is well
¶21 We conclude that any error in laying appropriate foundation for the school principal‘s hearsay testimony would not have met the standard for obviousness under the circumstances of this case. See State v. Gutierrez, 2015 UT App 25, ¶ 12, 344 P.3d 163 (“Because the error . . . was not obvious, the [juvenile] court did not plainly err . . . .“). In particular, a claimed error will not be considered obvious to the juvenile court if the court could reasonably have determined that trial counsel‘s actions were “the result of a consciously chosen strategy.” See State v. Bullock, 791 P.2d 155, 158–59 (Utah 1989); see also State v. Beck, 2007 UT 60, ¶¶ 16, 18, 165 P.3d 1225 (explaining that the trial court‘s role is “to protect the accused‘s right to a fair trial,” not to “usurp the function of counsel“). Evaluating the conduct from the perspective of J.C.‘s counsel, the juvenile court could reasonably have determined that a decision not to object to the school principal‘s hearsay testimony was plausibly the result of a sound trial strategy. See State v. Crosby, 927 P.2d 638, 644 (Utah 1996) (“[W]e give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.“); see also State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (citing Crosby, 927 P.2d at 644, with approval).
¶22 In particular, counsel could have decided that the State was in a position to cure a hearsay objection to the school principal‘s testimony if that objection were based on an argument that there was no prior inconsistent statement on the record because the students had not yet testified. See
¶23 And J.C.‘s trial counsel may also have decided that providing the other students an opportunity to explain their prior statements might emphasize the inconsistency in a way that further undermined the credibility of their trial testimony. Cf. West Valley City v. Rislow, 736 P.2d 637, 638 (Utah Ct. App. 1987) (“Defense counsel may have believed that any objection at this point in the proceedings would only have emphasized the negative aspects of the case to the jury. This could have been a legitimate exercise of judgment.“). And counsel could have believed that in the process of curing such an objection, the principal‘s own testimony might be reinforced and emphasized to his client‘s disadvantage.
¶24 Further, J.C.‘s trial counsel‘s silence may have been informed by concerns akin to the theories of recency and primacy, and in order to deemphasize the principal‘s testimony, he may have thought it best that it remain in the middle of the State‘s case rather than at the end where it may have been better remembered and had more impact. See, e.g., Stewart I. Edelstein, 14 Tips for a Vigorous Defense of a Commercial Case, 6 Prac. Litigator 7, 14 (2008) (“Under the theory of recency, what is
¶25 In sum, there were legitimate strategic reasons why an attorney in the position of J.C.‘s counsel would decline to object under the circumstances. Although a trial court “may not simply turn a blind eye” where the errors are “particularly obvious or egregious and would serve no conceivable strategic purpose,” a court is not “required to constantly survey or second-guess the nonobjecting party‘s best interests or trial strategy.” State v. Labrum, 925 P.2d 937, 939 (Utah 1996). Thus, because there were conceivable strategic purposes for not objecting to the school principal‘s testimony, any error would not have been obvious to the juvenile court. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). Therefore J.C. has failed to establish the second requirement of our plain error standard. See State v. Bullock, 791 P.2d 155, 158 (Utah 1989) (“[I]f a party through counsel has made a conscious decision to refrain from objecting . . . , we will then decline to save that party from the error.“).
C. Harmfulness
¶26 The final requirement an appellant must demonstrate to establish plain error is that the error was harmful. See Dunn, 850 P.2d at 1208. An error is harmful if “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” Id. at 1208–09. Because J.C. has failed to demonstrate the second requirement—that the error should have been obvious to the juvenile court—we do not need to address
¶27 Accordingly, we conclude that even if the State failed to lay a proper foundation for admission of the principal‘s impeachment testimony regarding the statements made to him by the other students, any error would not have been obvious to the juvenile court because there were conceivable strategic purposes for J.C.‘s counsel to have refrained from objecting. Because J.C. has failed to demonstrate that any error was obvious, his plain error argument fails.
II. The Evidence was Sufficient.
¶28 J.C. contends that the evidence presented was insufficient to sustain the juvenile court‘s decision adjudicating him delinquent of possession of drug paraphernalia and possession or use of marijuana. We are not convinced, however, that the decision was “against the clear weight of the evidence” or “that a mistake has been made.” In re S.L., 1999 UT App 390, ¶ 20, 995 P.2d 17 (citation and internal quotation marks omitted). In this case, the juvenile court used its “advantaged position” to assess the witnesses’ “credibility and personalities.” Id. (citation and internal quotation marks omitted). The court heard testimony from the SRO, the other responding officer, the school principal, and the three other students. The court found the SRO, the other responding officer, and the school principal to be “credible” witnesses. And the principal‘s testimony about the statements of the interviewed students, which the juvenile court could consider for their truth under Utah law,9 placed J.C. in the circle
¶29 Therefore, having concluded that the juvenile court looked at “the totality of the circumstances,” “weigh[ed] the evidence,” and made “decisions on [the] credibility of the witnesses,” we are not persuaded that its decision was “against
CONCLUSION
¶30 We conclude that the juvenile court did not plainly err in admitting the school principal‘s testimony. Consequently, the evidence presented was sufficient to support J.C.‘s adjudication for delinquency. We therefore reject both of J.C.‘s claims.
¶31 Accordingly, we affirm.
VOROS, Judge (concurring):
¶32 I concur in the majority opinion. However, I think it worth mentioning that any error, in addition to not being obvious, was also not harmful. An error is harmful if, “absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). J.C. has not shown a reasonable likelihood of a more favorable outcome—nor can I imagine one—if the witnesses had testified in proper sequence and the other boys had been asked whether their statements to the principal accorded with his trial testimony or their own.
ROTH, Judge
VOROS, Judge