*1 50' Utah, Appellee, Plaintiff and
STATE
Gregory FARROW, Lee Appellant.
No. 950432-CA.
Court Appeals of Utah. 13, 1996.
June Christiansen, Beaver, Appel- for
John lant. Gen., A. Utzingei’, Atty.
Todd Asst. Crimi- Appeals Div., City, Appel- nal Salt Lake lee. BENCH,
Before BILLINGS GREENWOOD, JJ.
OPINION BILLINGS, Judge: Gregory appeals Lee Farrow assault, B convictions of misde- class meanor, in violation of Utah Code Ann. 76- (1995), possession handgun by 5-102 felon, a degree felony, third in violation of 76-10-503(3) (1995), Utah Code Ann. substance, possession of a controlled a third felony, degree in violation of Utah Code Ann. 58-37-8(2)(a) (1994). We affirm. FACTS 5,1994, On November a Beaver Police Officer, Noel, telephone Camеron received a call from a Cedar inform- Police Officer ing “spousal him that an instance abuse” had occurred in Beaver and staying at a “safe house” Cedar day, That same drove Noel *2 replied, at the fendant “You want to bet? I’ll show City interviewed A.F. Ce- and Department. you.” defendant had to City Police Because threatened dar baby in past, kill her the A.F. and the feared sepa- three Officer Noel of A.F. informеd for her it would be if life and decided best first instance of violence. The rate instances she “backed down.” April 1994 in front the occurred on Tri-Mart, employer. defendant’s Beaver By 1994, A.F. had October decided and eight-months pregnant was defen- A.F. marriage their was over. While defendant taking to a doctor’s mother was A.F. dant’s work, packed belongings was at she her and stop the Tri- appointment and wanted to things the she needed tо take care of the to see A.F. and defendant Mart defendant. baby. contacted friend and her moth- She separated, and was an- were then defendant and in Cedar and er brother asked them applied public had assis- gry because A.F. up. pick to come to Beaver to her While that as she tance. A.F. told Officer Noel was waiting picked up, A.F. was to be defendant ear, defendant seated her mother-in-law’s phoned and asked she her whether “loved ... two “leaned into the car about inches replied him.” she unsure She was and that from face” and told her she “couldn’t [A.F.’s] going Ap- she did “think it’s to work.” not to have child” and threatened take [her] later, proximately one minute defendant en- money. A.F. defendant A.F.’s stated apartment. tered the Defendant told pull it grabbed purse her and tried to from taking nothing. ‘You’re You’re going not not resisted, shoulder. A.F. defendant her blankets, baby you’re taking not to take arm, ... to “grabbed threw her the [her] nothing.” gold Defendant tore a necklace stomach, began hitting ground onto and [her] from her around neck. Defendant then in the back of the head.” [her] baby asked the A.F. him where was. told baby asleep, the was and defendant asked to A.F. defendant was about strike stated sleeping. where she was When A.F. re- told when mother him her stomach upstairs mained defendant went and silent did going police to call the he not she was A.F. Fearful that defendant followed. would stop. mother started toward a Defendant’s grabbed baby, take the A.F. her. Defendant after telephone defendant went her. and wrestled child from A.F.’s arms be- and locked got A.F. into the ear and back A.F. gan running out of the door. followed to mother returned doors. Defendant’s into his got defendant outside as he car with to and toоk A.F. her doctor’s office. vehicle baby began to back out drive- she was and sore for A.F. stated bruised apartment way. ran to A.F. back into following approximately one week this inci- call 911. his car and ran Defendant dent. ripped apartment into the where he couple’s baby April on bom phone from wall. cords Defendant attempted they a reconciliation. pushed pushed get she back A.F. and reconciliation, During couple this brief away grabbed him. A.F. from Defendant experience continued to marital difficulties. in the mouth around the neck hit her time, that, during also she A.F. indicated give lip.” “fat A.F. enough hard her a tape incidents in which defen- recorded her began plead as held down baby. to kill dant had threatened her couch, choking on her. then incident occur- A.F. described second A.F. he kill ring on 1994. A.F. was Just as defendant told would October hеr, fat apartment friend arrived. She saw A.F.’s couple’s when defendant arrived A.F.’s lip and A.F.’s neck and from the red marks on home work. She informed defendant just spoke for a while and de- “things working [that out and back. The three weren’t let they apart.” A fendant insisted he would not A.F. leave probably be better off would] argument he could take the ensued. threat- the house until knew heated himself, gun, baby he did not want pulled to kill out a “because ened A.F. have her.” A.F.’s mother and placed [A.F.] the muzzle to his head. told A.F. he would kill brother arrived soon thereafter and defendant she did go police strong.” station. himself “because was too De- asked her brother [he] returned, expressed Her brother but the over never concern the con- arrived. Deputy tents of vehicle and Chambers inventory a complete assured him that successfully convinced vehicle’s contents would bе recorded and that baby. let her and to leave take the She then protected would be at im- *3 vehicle pick went to home to up defendant’s mother’s pound Deputy lot. Chambers thereafter baby’s there, walker. While she was vehicle, keys asked for the to but defen- defendant’s mother A.F. that warned “for Yardley dant refused. Sheriff arrived at the safety, immediately get [her] [she] should scene to watch car until the defendant’s tow baby into a safe house.” A.F. and the went truck Deputy arrived and Chambers took home, eventually to her mother’s but moved defendant office. Sheriffs Once de- into a safe house for women in battered office, at fendant was the Sheriffs Officer Cedar again Noel informed him that he was under arrest. Noel Officer first arrived A.F., City police to interview the Cedar The tow truck thereafter delivered defen- informed him that been seen dant’s eаr to the Sheriffs office. that area and he had been process inventorying of the contents of de- parking grocery of a local lot store with a vehicle, fendant’s counted the mon- weapon in back seat of his car. After ey bags in the bank on defendant’s front completed Officer Noel his November 5 in- seat, “gun glove” containing recovered terview with he returned to Beaver. handgun clips, gun and two loaded and found return, Upon attempted his to contact the methamphetamine placed pages between the County Attorney, Beaver was but told he was of the vehicle’s owner’s manual. out of town weekend. Officer Noel County Sheriff, then met with Beaver Ken charged Defendant was one count of Yardley, deputies, and one of his John Cham- assault, aggravated assault, two of counts one upon bers. Based the information Offiсer substance, possession count of of a controlled gathered, Noel had he concluded he had possession handgun by and one count of of a probable cause believe defendant had com- hearing convicted felon. At on defen- mitted several counts of assault. He also suppress dant’s motion to the evidence ob- posed believed defendant an threat tained result as a of his warrаntless arrest of violence to A.F. Noel therefore ensuing inventory of Ms im- search Yardley told Deputy Sheriff Chambers vehicle, pounded the trial court determined that defendant should be arrested. Officer Noel was to a domestic violence call” when he went to Cedar following 6, 1994, evening, November regarding allegations interview A.F. her of Deputy Chambers saw defendant front of defendant. court post the Beaver office. As defendant was found, 77-36-2(3)(a) pursuant to section vehicle, entering Deputy his Chambers ar- the Utah Domestic Violence defendant’s rested him and informed him that Officer proper, warrantless arrest was as was the speak Noel wished him about an assault inventory search incident to Ms arrest. charge. Defendant exited the vehicle and locked the doors. trial, jury Following a defendant was found guilty possession of one count of assault and got Deputy
Defendant into Chambers’s car subsequent controlled substance. In a requested and listened as he a tow truck to trial, guilty bench found was impounded retrieve defendant’s vehicle. De- possession handgun by a a convicted felon. fendant asked whether he could call and have The trial parents court sentenced defendant to con- manager his pick up assistant years current terms of zero his car. to five for the Deputy Chambers told him “no” possession charges explained up that and a departmental policy term to six re- quired charge. impounded vehicles be months for the assault public highway. driver is on a appeals. arrested powers arrest in domestic violence rantless AND OF REVIEW STANDARD ISSUE fact, and, requires arrest in certain cases several issues on raises circumstances, only argues the statute but However, whether we address
appeal. occurring emergency situations applies court erred when it determined the trial immediately after an during or incident proper warrantless was defendant’s violence.3 77-36-2 pursuant provides: Section Noel because Officer “respond[ing] to a powers the arrest de- addition to interpretation court’s 77-7-2, The trial call.”1 in Section when a scribed legal question presents responds call to a domestic violence Xpress for correctness. US which review to believe that a and has cause *4 1115, Comm’n, P.2d committed, State Tax 886 v. Utah peace has been crime offi- (Utah We the trial App.1994). review 1117 shall arrest a warrant or issue cer without to the application of section 77-36-2 court’s proba- any person citation to has a ease with more deference. facts instant any cause to has committed ble believe (Utah 1224, Scieszka, P.2d 1226 v. 897 State in 77- the offenses described Subsection Pena, v. P.2d 869 App.1995); 36-l(2)(a) (i). accord State through (Utah 1994) 932, (providing trial court 939-40 has cause to If officer a “measure of discretion” should be accorded be continued vio- believe that there will facts). applying law against or there lence perpetrator has either is evidence that the ANALYSIS bodily injury recently caused serious dangerous weapon in the domestic used a tri challenge does not offense, shall arrest prob finding that al court’s Officer Noel alleged perpetrator take the into cus- and cause to defendant had commit able may tody, option and not utilize violence, that an incident of domestic ted issuing a this section. citation under dangerous weapon used a defendant had incident, during one and that there was an (repealed of future threat Language A Plain trial he contends the court erred statute, we ex- interpreting to a a “‘“first finding Officer Noel was language resort de the statute’s and violence call” when he arrested amine statutory interpretation days to other methods of sixteen after last fendant ’” 77-36-2(3)(a) ambiguous.” § US Ann. if the is abuse. See Utah Code 1995).2 Comm’n, Tax 886 P.2d Xpress He v. Utah State concedes (citations (Utah 1115, omit- App.1994) 1117 provides law enforcement with war- support arguments the con several that evidence insufficient 1.Defendant raises additional regarding propriety impoundment and Because has failed to meet viction. integrity inventory burden, of his vehicle and the search marshaling we likewise decline custody handgun the chain Moore, this v. 802 P.2d consider claim. State methamphetamine vehicle. discovered in the 732, (Utah 1990). App. 739 sup- any fails to cite case law Defendant either pres- porting these or makes effort to claims no repealed Code 2. Utah Ann. any suggesting did ent record evidence 1, July 1995. See Domestic Procedures proper procedure follow when the car was Laws Utah 1022. ch. 1995 evidence inventoried and the examined. Nearly language appears identical at Utah Code arguments therefore find these without merit (b) 77-36-2.2(2)(a) (Supp.1995). & Ann. Carter, them. See State v. decline address Amicone, 1989); P.2d 888-89 State v. state or federal constitu- 3. Defendant makes no 1984). arrest, warrantless under tional to his Finally, jury claims the verdict find to the U.S. Consti- either the Fourth Amendment ing guilty possession of assault Fourteen of the tution or Article One Section by supported controlled is not suffi substance Constitution, we therefore do not reach verdict, challenging jury a cient evidence. any constitutional issuеs. sup all a defendant must marshal the evidence why porting that and then demonstrate verdict ted). violence, plain language repeated of section 77-36- incidents of domestic 2(3)(a) require response require mandatory to an and immediate emergency Thus, situation for the warrantless ar- attention of law enforcement. the Act rest apply. legislature’s statute con- as a whole demonstrates the de- requirement. temporal grant tains no sire to We refuse law enforcement broad authori- ty temporal requirement to read a into the lan- make warrantless arrests and even to guage require of this where the cases of some easily provided presented for a such one require- could have time as the case. Only ment had it so desired. four states temporal have require chosen to element Legislative C. Intent statutes,
their domestic violence and each Further, state explicitly.4 has done so our Likewise, “primary statutory rule of in- plain reading supported of section 77-36-2 is terpretation give is to effect to the intent of statutory the entire domestic violence legislature.” Nixon Salt Lake scheme, legislative history, (Utah 1995). its and sound Corp., By public policy. 77-36-2, enacting section the Utah State Legislature form, expressed, Legislation B. Context of the public policy perpetrators to arrest of domes- *5 legislature tic part, violence. In the ob- rule of “[A] fundamental con- cyclical served that domestic violence is requires struction that statute ‘be looked at often single does not end with a occurrence in entirety its and in accordance with the “[w]omen incident. do not seek purpose sought which was to be accom- ” single beating, [intervention] after a but after Scieszka, plished.’ 1224, State v. 897 P.2d Recording several.” of Utah House Floor (Utah App.1995) 1227 (quoting Salt Lake Debates, Legislature, 45th General Session County, 738, v. Salt Lake 568 P.2d 741 1983) 25, (Statement (January Rep. of Max- (Utah 1977)). Thus, this court must harmon- field). for safety Because of fear the victim’s (3)(a) ize subsection with the balance of the children, and that of many the victim’s “[i]n domestic legislation. violence See State v. cases, yeаrs ... women will endure of abuse (Utah 1988). Bishop, 753 P.2d In (State- [leaving before their Id. homes.]” (2)' relevant part, subsection makes clear Maxfield). Moreover, Rep. ment of legis- primary duty “[t]he of officers re- expanded proce- lature deemed the arrest sponding to a violence domestic call is to dures in necessary included section 77-36-2 protect parties and enforce the laws al- to “ensure that law enforсement officers will legedly § violated.” Utah Code Ann. 77-36- responsibilities understand what their are 2(2) (1995) 1995). (repealed Likewise, sub- rights in making assisting arrests and (1) requires section training “[a]ll that relat- (Statement [domestic Id. violence] victims.” ing to handling of domestic violence com- Maxfield). Rep. Finally, of allowing law en- plaints by personnel law enforcement shall upon forcement finding make arrests protection stress enforcement probаble cause to that an situations, criminal laws in domestic domestic permits violence has occurred offi- availability community resources.” Id. “[p]roteet cers to victims from further do- 77-36-2(1) § (emphasis add- (Statement mestic Rep. [abuse].” ed). Finally, entirety, when read its Maxfield). (the Spouse Act), Act Procedures §§ Utah through Again, mandatory -9 when the arrest (3)(a) (repealed 1995), added, stands for propo- of subsection were sition that because provided domestic violence is seri- that when notified of ous in high situation, nature and has likelihood of “a domestic ... wherever (West 1996) crime); § 4. See Mmn.Stat. twenty-four alleged Ann. 629.341 rest within hours of (mandating 968.075(2)(b) (West 1995) arrest if abuse occurred within Wis. Stat. Ann. arrest); twelve (mandating report hours of Mo. Ann. Stat. arrest of abuse is re- 455.085(1) (Vernon (same); Supp.1995) days twenty-eight alleged ceived R.I. within inci- 12-29-3(3) (1995) dent). Gen. (mandating Laws ar- limit application of ... of subsec- аrresting officer sees ... evidence court’s refusal (3)(a)’s ..., mandatory procedures must ar- tion [the officer] require temporal proximity and take into perpetrator] rest [the Tape Floor correct. judicial system.” Senate abuse was Debates, Legislature, General Session 49th 1991) (Statement of Sen. Sto- (January court’s con determine the
rey) legislature ex- properly clusion that Officer Noel arrested reсognized that violence is pressly stat defendant under warrantless arrest reported immediately, and there- often not case, proper. the instant ute not able to fore that officers often are parties involved in an relation were abusive respond calls when the to domestic violence ship, physically wherein defendant assaulted progress. This is then Following three A.F. on at least occasions. reаding history supports our of the warrant- episode, mari the October 21st A.F. left the emergen- power less arrest as limited tal home and moved in with her mother. cy situations. Although residing fifty away, she was miles A.F. still felt threatened and therefore she Policy D. Public a “safe moved into house” trial court’s Finally, look to case law and related findings cause Officer Noel had policy guid- “‘relevant considerations’” to believe defendant had сommitted an inci 77-36-2(3)(a). construing ance had used a dent of domestic that he Support Enforcement, 888 State v. Child incident, weapon dangerous during an (quoting App.1994) that there was an threat of future Am., N. Schurtz v. BMW of triggering thus manda violence to 1991)). Strollo, Strollo *6 tory arrest of section 77-36- App.1992), this court 2(3)(a). Moreover, peri during two week liberally similar construed domestic the last A.F.’s re od between incident and Strollo, legislation. this court reversed Noel, port to Officer defendant had been protective the trial court’s refusal enter a grocery at a local store order in a case where the last Furthermore, weapon his car. prior occurred seven months reported alleged incidents when plaintiffs request for the Id. at 535. order. to Ce Officer Noel drove interpreted broadly This the Cohabi- court day, 30-6-1(2) dar to interview A.F. that same tant Utah Codе Ann. twenty-four he arrested defendant within seeking (Supp.1991), party and found that a receiving complaint. There hours of AJF.’s entry protective order need not establish stated, delay enforce simply no undue in law peril.” “immediate the court facts, we response. upon these clearly ment’s Based “[t]he correctly protects reasonably the trial court determined those who are in fear conclude resulting a domestic physical past harm conduct Noel was from Officer present future coupled with a threat of violence call” when he arrested defendant Strollo, 1994. harm.” P.2d at 535. “Other- without a warrant on November wise, prophylactic purpose of the statute think the
would be defeated. We do not CONCLUSION intended such a result.” Thus, long found as the this court that so not err conclude the trial court did We applied legislative as to statute is effect case, found, under facts in this when it temporal proximity not an ex- purpose, is responding to a domestic Noel was press element of the statute. A.F. on violence call when interviewed 5, 1994 arrested defendant light plain language of the statute November 6,1994 scheme, pur- on November by the entire without warrant buttressed 77-36-2(3)(a). therefore history, foregoing suant to section relevant considerations, of defendant’s trial affirm the trial court’s denial policy conclude the suppress cy Corp., his convic- motion and affirm (“Only ambiguity we find stat- tions. plain language guidance
ute’s need we seek GREENWOOD, J., legislative history poli- from the and relevant concurs. considerations.”). cy result): BENCH, Judge (concurring in the I concur therefore the result. opinion, As indicated the main 77-36-2(3)(a) unambiguously provides that peace to a responds
“when probable cаll and cause to has be- committed, that a crime
lieve has been
peace officer shall a war- [1] arrest without
rant or [2] issue a citation.” option issuing a citation is eliminated Kristie Rae COOK and Tiffani Cherie if “the officer has cause to Cook, Representatives Personal that [a] there will continued vio- be Cook, Ap- Gina Estate of Plaintiffs and against [b] lence there pellants, perpetrator is evidence that has either recently injury bodily caused serious or used v. dangerous weapon in the domestic violence BANK, FIRST ZIONS NATIONAL offense.” Id. Appellee. Defendant and ease, explicit- In the instant the trial court No. 950750-CA.
ly “potential found that the harm to her ongoing.” court [the victim] Appeals Court of Utah. “probable found the officer had cause to believe there was continued —there could be June against continued violence victim.” De-
fendant does not these fact-sensi- Poole,
tive determinations. See State (Utah 1994) *7 (stating appel- courts afford a
late measure of discretion to cause).
trial court’s determination of facts,
In view of those and under the
meaning statute, the officer had no pointed
choice but to arrest defendant. As opinion, the main
out
challenge the on constitutional
grounds. opinion See main at note
Having plain meaning held that the
statute mandated the this defen- arrest of
dant, any consideration of rules ambiguous in interpreting
construction used
statutes is unwarranted. “When unambiguous,
clear it be held to must expresses, what it
mean and no room is left
for construction.” Salt & Lake Child Fami- Clinic, Frederick,
ly Therapy Inc. v. (Utah 1995). Likewise, any dis- public policy
cussion intent and unnecessary improper.
is both World Newspaper Agen- Movement
Peace Am. v.