STATE ex rel. B.R.
Court of Appeals of Utah
2007 UT 82, 171 P.3d 435
1258
¶ 3 Mother asserts that there was insufficient evidence to support the juvenile court‘s determination that she was an unfit рarent.1 A parent may be found to be unfit or incompetent, if the juvenile court finds any of the factors delineated in
¶ 4 The record supports the juvenile court‘s determination that Mother is an unfit parent. Mother repeatedly failed to provide adequate housing for her children.2 Mother and the children lived in a home with methamphetamine and marijuana, which was the subject of a raid by Metro SWAT. Mother‘s poor housing decisions have exposed her children to illicit drug use and to the serious risk of harm. Despite the Division of Child and Family Services‘s efforts to assist Mother in obtaining appropriate housing, Mother has repeatedly failed to obtain appropriate housing.
¶ 5 The record supports the juvenile court‘s determination that Mother repeatedly failed to provide safe, stable, housing for her children and that Mother was an unfit parent due to her repeated failure to provide proper housing for the children. Because a foundation for the juvenile court‘s decision exists in the evidence, we have no occasion to reweigh the evidence. See State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435.3
¶ 6 Affirmed.
STATE of Utah, Appellee, v. Darryl Kenneth BOSSERT, Appellant.
No. 20130842-CA.
Court of Appeals of Utah.
Nov. 12, 2015.
2015 UT App 275
Judge GREGORY K. ORME authored this Opinion, in which Judges J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
Nathalie S. Skibine and Samuel J. Hanseen, Attorneys for Appellant. Sean D. Reyes, Salt Lake City, and Tera J. Peterson, Attorneys for Appellee.
ORME, Judge:
¶ 1 Darryl Kenneth Bossert (Defendant) appeals his convictions on two counts of endangerment of a child, third degree felonies. See
BACKGROUND1
¶ 2 In February 2012, Defendant‘s ten-year-old son (Son) was living with Defendant. Defendant‘s friends and girlfriends frequently visited Defendant‘s house, from which Defendant sold methamphetamine. In fact, almost everyone who came to Defendant‘s house used drugs, particularly marijuana and meth. Son would sometimes discuss drugs with Defendant and Defendant‘s friends, asking questions about meth and what it “smelled like and ... looked like when they were breathing it out.” Son also knew that Defendant sold meth from the house.
¶ 3 Son frequently usеd marijuana with Defendant‘s consent, and Defendant gave Son marijuana “[t]wenty-five to 30 times.” Defendant‘s friends also gave Son drugs and drug paraphernalia. One friend gave Son meth and a “red mushroom pipe.” Son tried meth twice, explaining, “Because I was curious and I wanted to know what it was like because I thought it would be cool if I did it.” Son testified that using meth gave him a “[g]ood feeling” and made him “feel cool.”
¶ 4 When Son told Defendant‘s friends that he was smoking meth, they informed Defendant, who “really yelled” at Son for using meth. But Defendant did not stop giving Son marijuana, using drugs in Son‘s presence, or inviting drug users into the home. Defendant did not remove drugs or drug paraphernalia from his house, and he did not lock up his drugs or keep them where Son could not access them.
¶ 5 On the evening of February 6, 2012, Defendant once again gave Son marijuana. Son did not go to bed that night. Instead, around 3:00 or 4:00 a.m., Son found a meth pipe on a counter in the front room of the house and he took it. Knowing that there would be drugs in Defendant‘s bedroom, Son went into the bedroom, where Defendant was asleep with a woman Son did not know. Son “went straight to [a] drawer” in a bureau by Defendant‘s bed “[b]ecause [he] knew” that Defendant would have drugs there. Indeed, Son found marijuana in a container in the drawer and meth on a lid to a container that was in the drawer. He took both drugs with him. Son also looked inside the woman‘s purse, which was lying on the floor near the bed, and fоund marijuana, meth, and a meth pipe, all of which he took.
¶ 6 Son then took all of the drugs and drug paraphernalia back to his bedroom. Using the meth pipe from the woman‘s purse, Son smoked some of the meth. He then smoked some of the marijuana using the red mushroom pipe that Defendant‘s friend had given him earlier.
¶ 7 Later that day, February 7, 2012, Son walked to his nearby elementary school. He took the red mushroom pipe, a lighter, the remaining marijuana, and some tinfoil with him. Son smoked marijuana on his way to school, and once at school, he went into the second-grade bathroom and smoked marijuana again. Son was caught by a teacher when a second-grade boy smelled smoke in the bathroom and reported him. Police were called and they took Son to the hospital, where he tested positive for both meth and marijuana. While he was at the hospital,
¶ 8 When Defendant came to the hospital, he was questioned by the police. An officer noticed the smell of marijuana coming from Defendant and asked him about his drug use. Defendant admitted that he had just smoked marijuana and that he uses meth as well. Defendant also admitted that it was possible that Son had found both the meth and the marijuana in his home.
¶ 9 Defendant was charged with two counts of endangerment of a child and one count of obstructing justicе. The information alleged that the charged conduct occurred “on or about February 7, 2012.” Following a preliminary hearing, the obstruction-of-justice charge was dismissed, and the case proceeded to trial. At the close of the State‘s case-in-chief, Defendant moved for a directed verdict. Defendant argued that the State had not proved that Defendant “caused [or] permitted [Son] access to these drugs.” See
¶ 10 After the verdict, but before sentencing, Defendant moved to arrest judgment, arguing that one of the State‘s witnesses at trial, a detective, had improper contact with the jury. Defendant‘s motion was accompanied by four signed affidavits from friends of Defendant who attended the trial. The affidavits alleged that the bailiff had called the detective to the jury room during jury deliberations to answer a question. The State opposed the motion and submitted the affidavit of an investigator from the Salt Lake County District Attorney‘s Office. The investigator‘s affidavit stated that he had talked with the detective, who denied ever speaking to any member of the jury. The detective stated that he went to a court clerk‘s work station through a door by the jury box to check whether Defendant had any outstanding warrants. The detective stated that this warrant check might have occurred during jury deliberations.
¶ 11 The investigator also spoke with the bailiff, who did not remember Defendant‘s case specifically but stated that he never allows anyone to speak with the jury as it deliberates. The trial court took judicial notice of the fact that the door the affiants saw the detective and the bailiff go through did not lead directly to the jury room but into a hallway. The trial court denied Defendant‘s motiоn to arrest judgment. The court ultimately sentenced Defendant to two concurrent prison terms of zero-to-five years. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 12 First, Defendant contends that the trial court erred when it denied his motion for directed verdict. “‘A trial court‘s ruling on a motion for a directed verdict is a question of law[;] which we review for correctness[,] giving no particular deference to the trial court‘s legal conclusions.‘” State v. Hirsch, 2007 UT App 255, ¶ 15, 167 P.3d 503 (alterations in original) (quoting State v. Krueger, 1999 UT App 54, ¶ 10, 975 P.2d 489).
¶ 13 Second, Defendant contends that the trial court erred in denying his motion to arrest judgment based on improper contact between the jury and a detective who testified during Defendant‘s trial. His apparent objective in having judgment arrested was to receive a new trial—the relief he specifically asks from us should we agree that the trial court erred in denying his motion. “We will disturb a trial court‘s factual findings under-
ANALYSIS
I. Denial of Directed Verdict
¶ 14 Defendant first argues that the trial court erred in denying his motion for a directed verdict because “[n]o evidence supported the charge that [he] knowingly or intentionally caused or permitted [Son] to be exposed to drugs” under the child endangerment statute. See
¶ 15 “Trial courts may deny a motion for directed verdict if the State has produced ‘believable evidence of all the elements of the crime charged.‘” State v. Skousen, 2012 UT App 325, ¶ 6, 290 P.3d 919 (quoting State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183). When a party challеnges the denial of a motion for directed verdict alleging insufficiency of the evidence, “[w]e will uphold the trial court‘s decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (alteration in original) (citation and internal quotation marks omitted). “[I]f there is any evidence, however slight or circumstantial, which tends to show guilt of the crime charged or any of its degrees, it is the trial court‘s duty to submit the case to the jury.” Id. ¶ 33 (alteration in original) (citation and internal quotation marks omitted).
¶ 16 Thе child endangerment statute provides that a person who “knowingly or intentionally causes or permits a child ... to be exposed to, inhale, ingest, or have contact with a controlled substance, chemical substance, or drug paraphernalia” is guilty of a third degree felony.
¶ 17 As a preliminary matter, we consider whether the trial court was bound by the definitions in the jury instructions in ruling on Defendant‘s motion for directed verdict. More specifically, we consider whether the definitions of “cause” and “permit” as set forth in the jury instructions were binding on the court as it considered Defendant‘s motion for directed verdict. The jury instructions defined “cause” as “to compel by command, authority, or force” and “permit” as “to consent to expressly or formally.” The State contends that the jury-instruction definitions are irrelevant because Defendant is only contesting the trial court‘s denial of his motion for directed vеrdict and not the sufficiency of the evidence to support the jury‘s verdict under the instructions given.
¶ 18 We conclude that in considering Defendant‘s motion for directed verdict, the trial court was not bound by the jury-instruction definitions of “cause” and “permit.” To begin with, in making his motion for a directed verdict, Defendant did not argue that the
¶ 19 On appeal, “[w]e will uphold the trial court‘s decision [on a motion for directed verdict] if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reаsonable doubt.” Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (first alteration in original) (citation and internal quotation marks omitted). Therefore, our inquiry on appeal is guided by the statutes establishing and defining the offense and not by the standards described in the jury instructions. See United States v. Inman, 558 F.3d 742, 748 (8th Cir. 2009) (“[I]n determining whether a trial court has erred in denying a motion for a directed verdict made at the close of the evidence, it is the applicable law which is controlling, and not what the trial court announces the law to be in [its] instructions.“) (quoting Coca Cola Bottling Co. of Black Hills v. Hubbard, 203 F.2d 859, 862 (8th Cir. 1953)). Accordingly, in reviewing Defendant‘s challenge to the denial of his motion for directed verdict, we examine the evidence introduced at trial regarding whether Defendant endangered Son and compare it to the statutory elements of thе offense as established in section 76-5-112.5 of the Utah Code.
¶ 20 We start by addressing the third element of the child endangerment statute—the “exposed to” portion. See
for a child to be exposed to ... a controlled substance, chemical substance, or drug paraphernalia under the child endangerment statute, a real, physical risk of harm to the child must exist. In order for the risk to be real, the child must have a reasonable capacity to actually access or get to the substance or paraphernalia or to be subject to its harmful effects, such as by inhalation or touching.
Id. ¶ 11 (omission in original) (internal quotation marks omitted).
¶ 21 In this case, the State presented ample evidence that Son was “exposed to” meth and marijuana. To begin with, Son was consistently able to access drugs while he was living in Defendant‘s house. See supra ¶¶ 2–4. But more importantly, on the day in question—February 7, 2012—Son “actually
¶ 22 The Utah Code defines the terms “knowingly” and “intentionally.” See id.
¶ 23 The Utah Code does not define “cause” or “permit.” Thus, we must determine the proper meaning of these terms as used in the child endangerment statute.4 “When interpreting statutory language, we presume that the Legislature used each word advisedly, and we give effect to each term according to its ordinary and accepted meaning.” State v. Terwilliger, 1999 UT App 337, ¶ 10, 992 P.2d 490 (citation and internal quotation marks omitted).
¶ 24 Webster‘s Third New International Dictionary defines “cause” as to “bring into existence” or “to effect by command, authority, or force.” Webster‘s Third New Int‘l Dictionary 356 (1993). Cf. State v. Wheeler, 2005 UT App 255U, paras. 3, 5, 2005 WL 1315022 (affirming the defendant‘s conviction for “knowingly caus[ing] or encourag[ing]” his son‘s delinquency where “[t]he evidence reflect[ed] that [the defendant] knew or should have known that by allowing the two separate visits [by his son] he caused or encouraged the son to violate [an] agreement with Youth Corrections“).
¶ 25 Additionally, Webster‘s defines “permit” as “to consent to expressly or formally[,] or to] grant leave or the privilege of[,] or to allow, tolerate[;] ... to give (a person) leave [or to] authorize[;] ... to make possible [or] to give an opportunity.” Webster‘s Third New Int‘l Dictionary 1683 (1993).5 In Terwilliger, 1999 UT App 337, ¶ 11, 992 P.2d 490, this court determined that the term “permits” “suggеsts some measure of control or participation—in other words, active or knowing acquiescence.” Id. ¶ 11.
¶ 26 In Terwilliger, the defendant, an eighteen-year-old adult minor, see id. ¶ 3 n. 1, was charged with contributing to the delin-
¶ 27 On appeal, the defendant challenged the sufficiency of the evidence to supрort his conviction of contributing to the delinquency of a minor under
¶ 28 This court concluded that the plain language of
¶ 29 Although Defendant‘s requested definition of “permit” as “to consent to expressly or formally” is included in the dictionary, see supra ¶ 25 & n. 5, we decline to adopt this definition because we do not think that such a narrow definition of the term is legislatively intended under the child endangеrment statute. We agree with the Terwilliger court‘s interpretation of “permit” as requiring “some measure of control or participation—in other words, active or knowing acquiescence.” See Terwilliger, 1999 UT App 337, ¶ 11, 992 P.2d 490. We therefore employ this definition in considering Defendant‘s appeal. In addition, we use the dictionary definition of the term “cause,” along the lines employed in Wheeler. See supra ¶ 24. In light of these definitions, we next determine whether there was sufficient evidence to support a reasonable belief that Defendant knowingly caused or permitted Son to be exposed to drugs. Defendant contends that he could not have knowingly caused or permitted Son to access the drugs in his drawer since he “was asleeр because it was three or four in the morning.” We disagree.
¶ 30 In this case, Son‘s actions on the morning of February 7, 2012, cannot be viewed in isolation. Defendant had created an atmosphere within his home in which drug use was open and prevalent. As previously discussed, Defendant sold drugs from his home, and he and his friends frequently used drugs in front of Son and left drugs and drug paraphernalia in plain view, where Son could easily access them. See supra ¶¶ 2–4. Defendant and his friends also discussed meth with Son and answered Son‘s questions about meth. Defendant frequently gave marijuana to Son. In general, Defendant countenanced a thriving drug culture within his home, and Son was continuously surrounded by and familiar with that culture.
¶ 32 Finally, Defendant kept his drugs in a readily accessible place—an unlocked bureau drawer where Son knew Defendant kept his drugs. Son testified that when he went looking for drugs in the early morning hours of February 7, 2012, he “went straight to [Defendant‘s] drawer” because he “knew that [Defendant] would have [drugs] in his room” and that Defendant “keeps all of his pipes and stuff in his room.” That same night, Son easily found a meth pipe sitting on a counter in the front room of Defendant‘s house.
¶ 33 This evidence suggests that Defendant continuously kept drugs and drug paraphernalia in his house in places that were readily accessible to Son and that Son actually accessed drugs and drug paraphernalia on multiple occasions. Unlike the situation in Terwilliger, in which several young people showed up to a party to drink together, see Terwilliger, 1999 UT App 337, ¶¶ 3-4, 992 P.2d 490, Defendant and Son were in a parent-child relationship. Thus, Defendant had more than the requisite “sоme measure of control” over Son‘s exposure to drugs. See id. ¶ 12. As Son‘s father, and with Son being only ten years old, Defendant had absolute control over Son‘s exposure to drugs within his home. Defendant could have prevented his friends from using drugs within the home and from giving drugs to Son, he could have refrained from using drugs in the home, and he could have stopped giving Son drugs. At the very least, he could have physically secured any illegal drugs he brought into the home. Yet Defendant continuously and willfully allowed his friends to use drugs within the home, allowed Son to use marijuana within the home, provided Son with marijuana on multiple occasions, and left both marijuana and meth in an unlocked drawer where they were easily accessible.
¶ 34 Although Defendant did not give his express permission for Son to take the drugs from his drawer on the morning of February 7, 2012, Defendant had established an environment in which it was acceptable for Son to participate in the thriving drug culture Defendant promoted, and Defendant‘s sustained pattern of conduct sent a clear message to Son that Defendant “knowing[ly] acquiesc[ed]” in Son‘s use of and exposure to drugs, thereby “permitting” it for purposes of the statute. See id. ¶ 11. Furthermore, Defendant caused Son to be exposed to drugs—Defendant‘s sustained pattern of giving Son drugs and communicating to Son that it was okay for him to use marijuana, ultimately and unsurprisingly “br[ought] into existence” Son‘s exposure to drugs on February 7, 2012, and on multiple othеr occasions. See Webster‘s Third New Int‘l Dictionary 356 (1993) (defining “cause“).
¶ 35 Based on the foregoing, we conclude that there was “some evidence ... from which a reasonable jury could find,” see State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (citation and internal quotation marks omitted), that Defendant knowingly caused or permitted Son to be exposed to drugs as proscribed by the child endangerment statute, see
II. Denial of Motion to Arrest Judgment
¶ 36 Defendant next argues that the trial court erred when it denied his motion to arrest judgment. Specifically, he contends that the trial court disregarded “persuasive evidence” of improper contact between a testifying detective and the jury.
¶ 37 In support of his motion to arrest judgment, Defendant submitted affidavits from four trial attendees, all of whom were Defendant‘s friends, each of which stated that the bailiff called a testifying detective to go to the jury room to answer a question for the jurors. In response, the State submitted an affidavit from an investigator with the Salt Lake Cоunty District Attorney‘s Office, who had interviewed both the detective and the bailiff. The detective told the investigator that “he had not spoken to any member of the jury in this case at any time.” He also stated that he went “to one of the clerk‘s work stations with the bailiff to check the state record ... to determine if [Defendant] had an outstanding warrant for his arrest” and that “this occurred before a verdict in the case and may have been during jury deliberations, but [he] was not sure of the timing.” Although the bailiff was initially unsure to which case the investigator was referring, he ultimately told the investigator that he knew with “certainty” that “he did not allow anyone to speak to the jury as they deliberated” “because it would violate thе rules of conduct and he has never allowed such activity in any case where he has had a jury in his charge.” The bailiff also recalled using a clerk‘s work station to check for a warrant, but he did not recall if the detective was present.
¶ 38 After reviewing the parties’ affidavits, the trial court asked whether either party wanted an evidentiary hearing on the matter:
[Trial court]: And so I have received documents from both sides. Does any—do either party believe an evidentiary hearing or anything further is needed?
[Prosecutor]: No, your Honor.
[Defendant‘s trial counsel]: No, your Honor. The Court received the affidavits [I] submitted, I guess, two weeks ago?
[Trial court]: Yes, I‘ve reviewed all that and I‘ve received from the State as well.
[Dеfendant‘s trial counsel]: So I would submit it on the motion I filed as well as the affidavits.
¶ 39 Additionally, the trial court took judicial notice, without objection, to the fact that the door “near the jury box does not lead into a jury room; it leads into a hallway.” The court then denied Defendant‘s motion, stating that
[n]o witness testified that he or she witnessed any interaction between the jury and the witness but only by inference and speculation likely surmising that the door by the jury box leads directly into the jury room.
There is no evidence of contact between the witness and the jury, only evidence that the witness utilized the same door that the jury had used. So here, no evidence of unauthorized conduct is present. The witnesses who had direct personal knowledge testified that no contact between the [detective] and the jury took place. The witnesses who have personal knowledge indicate that [the detective] did use the same door as the jury but that he did so to access a computer in the hallway directly outside of that door.
So the Court finds that there‘s no evidence of improper jury contact that was made, and so there‘s no presumption [of] prejudice attaching to that and as such I‘m denying the motion.
¶ 41 In this case, Defendant‘s аffiants did not actually witness a conversation between the detective and the jury; they merely witnessed the detective and the bailiff walk through the same door near the jury box, and they apparently assumed that the bailiff took the detective to the jury room. But, as the trial court judicially noticed, the door near the jury box did not lead directly into the jury room but into a hallway. Thus, Defendant‘s affidavits might have suggested the possibility of improper jury contact, but because of Defendant‘s assurance that an evidentiary hearing was unnecessary, neither the detective, the bailiff, nor any of the jurors were called to testify or were questioned by the trial court about the theorized improper contact. Moreover, the only witnesses directly involved—the detective and the bailiff—denied that any improper contact with the jury occurred, thus dispelling any inference of improper contact suggested by Defendant‘s affiants.
¶ 42 Because there was no direct evidence of improper contact between the detective and the jury, no presumption of prejudice arises in this case. Consequently, the trial court did not abuse its discretion by denying Defendant‘s motion to arrest judgment.
CONCLUSION
¶ 43 The trial court did not err when it denied Defendant‘s motion for directed verdict. Nor did the court abuse its discretion when it denied Defendant‘s motion to arrest judgment. Accordingly, Defendant‘s convictions are аffirmed.
STATE of Utah, Appellee, v. David B. SERBECK, Appellant.
No. 20131007-CA.
Court of Appeals of Utah.
Nov. 12, 2015.
2015 UT App 273