State v. Lesley, 672 P.2d 79

State v. Lesley

672 P.2d 79

Utah

1983

Check Treatment

*1 thе card- liability.” contrary, stage ants’ To sets for abusive use of credit re- agreements holder do not mandate the I by estranged spouses. cards believe that turn of the credit cards as a condition 1643 of the TILA the provisions and § precedent liability. to termination of relieve the de- agreements cardholder agreements provide that “Card- cardholder liability fendants from for the unauthorized Agreement holder terminate this at charges their incurred husbands subse- time un- by returning the cards issued given to the notification to the Bank. quent Agreement (Empha- der this to the Bank.” added.) sis termi- provision This deals with HOWE, J., dissenting concurs in the opin- “account,” nation of the termination of DURHAM, ion of J. fact, for unauthorized use. In like liability STEWART, J., having disqualified him- portions the relevant of the card- § self, above, participate does not herein. agreements, quoted holder provide specifically that the cardholder is not liable BULLOCK, Judge, District sat. сharges after incurred notice possible use to the given unauthorized Contrary majority

Bank. to the opinion’s

suggestion, provisions there are no in the agreements

cardholder the re- require

turn of the credit cards to the Bank as a

prerequisite relieving the defendants of

“liability” for the unauthorized use of their credit cards. Plaintiff and STATE Finally, the majority opinion ignores the Respondent, impracticality imposing the burden on a obtaining cardholder of a credit card from an estranged spоuse in order to return it to LESLEY, Kermit Defendant Charles

the Bank. It is unrealistic to think that Appellant. estranged spouses will be cooperative. No. 18038. Moreover, extremely it is unwise to arm one spouse with a virtu- weapon ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍permits Court of Utah. Supreme ally at the spending expense unlimited Sept. the other. As illustrаted facts cases, these where the whereabouts of the unknown, spouse

unauthorized the card-

holder may powerless acquire posses-

sion of his or her card and return it to the

Bank, which, majority to the according

opinion, only way liability. is the to limit majority opinion

One result of the will sure-

ly encourage by divorcing be to the “theft”

spouses they credit cards were authorized

to use and the liberal during marriage spouse’s

use of those cards at the other

expense. conclusion, majority

In I dissent from the

opinion (1) because it runs counter to the

language and 1643 of the purpose language

TILA and the of the cardholder

agreements, (2) principles it violates agency, (3) imposes

law of it an unrea- spouses

sonable burden on cardholder *2 the just Butte located east of Canyon,

Red a area char- University rugged terrain, brush, and by steep acterized dense On the of rattlesnakes. large population the canyon the was under question, date in Forest Service control of United States en- designated “no-trespass, was as a and single area. A try-by-permission-only” gates provided three with locked road canyon. into the access for vehicles only Trespass- “No gate posted Thе first was marked. were not so ing”; the others designated public for There were no trails to be people it was uncommon for use and to apparently possible there. It was seen seeing the canyon enter the on foot without gate. signs on the first locked quarter spot approximately From a marijuana compound, farm mile from appellant sheriff observed deputy thereafter, compound. Shortly inside the and compound the officer arrived at explain presence. to his appellant asked the hiking that he was appellant responded The Then, in- having after in the area. that employee Forest formed Service Yengich, City, Ronald J. Lake for Salt the officer appellant trespassing, was and appellant. defendant and appellant trespassing for arrested Wilkinson, City, backpack. David L. Lake. his person Salt searched his and respondent. plaintiff trial, filed motion appellant Prior to regarding the con- suppress to the evidence DURHAM, Justice: claimed pack. appellant tents of his convictions, cause to probable This is an from two the officer had no appeal him, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pur- that the search and seizure production one for of a controlled sub- arrest stance, illegal, unlawful arrest was felony, and the other for criminal suant to that was there- and that the evidence obtained trespass, ap- a class C misdemeanor. error, did not claiming appellant fore pellant points raises three inadmissible. search, only but scope 1) instructing challenge that: the trial court erred in legality of the arrest. on the elements of criminal tres- its relation to jury de- 2) suppress apparently His pass; appel- the trial court’s denial of the appellant trial. The did prej- lant’s evidence was nied error; object he 3) renew his motion nоr did udicial the trial court erred evidence in denying way motion for a mis- admission at his trial. juror. trial based on the drowsiness of a trial, 21, 1980, day close of the first August On based on an earlier Near the mis- moved for a appellant counsel for the discovery investigation, a United States had been juror that a emplоyee, Forest Lake Coun- trial on Service Salt view, and, sheriff, in counsel’s “nodding off” ty deputy police and several other trial. during the “not attention” Canyon paying officers entered Red Butte to seize motion but recessed The court denied the marijuana plants growing there and other instruc- specific with a day “farming” enterprise. early items related to the juror tion to the in question up to catch then you must find the defendant not his sleep. guilty.

Notwithstanding failure (Emphasis added.) object to the jury instruction on criminal The statutory definition of criminal trespass, we are required pass in this case to trespass requires an intent “commit upon and determine his first point error *3 crime, other than ... a felony.” Thus, it prevent U.C.A., to manifest injustice. See was error for the trial predicate to 1953, 77-35-19(c). The instruction mis- § the offense of criminal trespass on the states the law of trespass criminal and is crime of production of a contrоlled sub entirely inconsistent with statutory def- stance, Furthermore, which is a felony. inition of U.C.A., 1953, that offense. See there is no evidence anywhere in the record 76-6-206. The elements § of criminal tres- which support charge would to the jury pass are set 76-6-206(2), forth in Thus, on the offense of trespass. criminal pertinent reads in рart as follows: the appellant’s conviction of that offense person A guilty if, of criminal trespass must be reversed. under circumstances not amounting to The appellant’s second contention is that

burglary ...: pretrial denial of his motion to suppress (a) He enters or unlawfully remains pack evidеnce seized from his during property and: the search incident to his arrest error. (i) Intends to annoyance inju- cause or The appellant provided has not this Court ry to any person thereon or damage to with any regarding hearing information thereon; any property or on that motion or the evidence offered (ii) crime, Intends to commit other support Furthermore, thereof. the trial than theft or a felony; [or] transcript shows that counsel his failed to (iii) Is reckless as to whether his pres- objection make to introduction of ence will cause fear safety for the of Thus, such evidence at trial. our review of another. question this depends on whether the issue (Emphasis added.) given The instruction has preserved appeal. been The Utah the jury in this case on the elements of prohibit Rules of Evidence the reversal of a criminal trespass reads as follows: judgment based on the erroneous ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍admission you Before can convict the defendant of evidence unless of the crime of Trespass, Criminal Count (a) there of record appears objection to II, you evidence, must find from the be- the evidence timely interposed so yond doubt, a reasonable all of the fol- to make thе specific stated as clear lowing elements of that crime: ground objection, of 1. That on or day about the 21st (b) passes upon the court which the ef- August, in Salt Lake County, State fect of the error or is of the opin- errors Utah, defendant, Charles Kermit ion that the admitted evidence should Lesley, unlawfully еntered the property ground have been excluded on the stated of the U.S. Government. probably had substantial influence 2. That at the time of entry said bringing finding. about the verdict or defendant, Charles Kermit Lesley, in- tended to commit the crime of Production Utah R.Evid. This Court has discretion Of A Controlled Substance. allegedly rеview the erroneous admission objection you

If evidence when the believe that the evidence estab- stated. How- clearly correctly lishes each not or and all of the essential ele- ever, ments of the the Rules do not state that we offense beyond a reasonable objection doubt it is error no at your duty alleged to convict the de- review when See, e.g., fendant of Criminal all the trial level. Trespass. is made at On hand, other McCardell, if the 652 P.2d 942 evidence has failed to State v. elements, Moreover, so establish one or (1982). more of said “the facts are not such claim of еrror final injustice would be and manifest great granted should have is that the trial court not entertain done if this Court does jurors ap one of mistrial because exception.” as an State sponte issue sua day the first drowsy during parently Pierce, Utah, 655 P.2d merely shows transcript trial. The position appears fоr the that, judge adjourned when the trial filing pretrial of a be that his who juror to a expressed he concern day, denial, relieved him from suppress, and its night before up during had been at objecting to the evidence necessity awake. ability stay his trial about impres first This raises a trial. any inference suppоrt record does that, jurisdiction, and we hold sion in this during sleeping juror actually had Evi Rules of under Rule 4 of Utah had not been that he proceedings or dence, objection required even specific Furthermore, appel attention. paying has where a about complaint made no lant’s counsеl *4 for a rule are been made. The reasons such merely but proceedings, the juror during The who judge well illustrated in this case. re judge the a mistrial after moved for not the suppress heard the motion to in a judge trial court. The cessed in the judge, and there is no indication trial any, if of the degree, the positiоn gauge evidentiary that an hear record before us We in the trial. incapacity to serve juror’s There ing on the motion was conducted. for the conclu in this record find no basis law, fact, findings are no of conclusions of in the discretion he abused his sion that to the ruling respect or written with any See, a new trial. the motion for denial of Prior to suppress. motion to Hills, Utah, 656 e.g., Doty v. Town Cedar trial, judge disadvantaged a is often in a 993 P.2d admissibility to decide on the position production conviction of The trial is to have a judge likely evidence. is affirmed. substance controlled the for ex complete more view of is reversed. trespass criminal conviction of certain evidence. cluding admitting or awarded. No costs trial counsel fails to call the When defense any problems regarding judge’s attention C.J., OAKS, J., HALL, concur. it of evidence at the time admissibility ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍result): HOWE, (concurring in Justice offered, deprives he or she the trial court is However, prefer I the result. I concur in in the trial opportunity of an to avoid error in the denial my to rest concurrence improp have created an may which pretrial defendant’s motion based on ruling pretrial er pack upon from his evidence seized case, information. In this inadequate with a us provided he has not ground that judge disputed trial admitted the evidence ruling. that may we review record which without notice of the defendant’s in the holding I not subscribe to do course, claims that it was inadmissible. Of ruling is not re- that majority opinion prejudicing jury, procedural to avoid failed at because the defendant viewable will have taken in trials to steps jury to be to the admission object the trial to an opportunity ensure that court has evidence. objections outside of the hear counsel’s Rules of Criminal 12 of the Utah Rule are presence jury. procedures Such U.C.A., 1953, 77- (codified as Procedure commonly undertaken in civil and criminal part: in 35-12) provides pertinent trials, however, unusual pose and need no (a) ... problems.1 only requirement process. that ob- ruling this is not intended to

1. We note preclude arranging the trial jections made known to counsel for with the be to evidence judge preserve point appeal informed judge for without make an he or she can so that necessity objecting open ar- court. Such it. or exclude decision to admit rangements commonly approved in the trial (b) defense, Any objection request or in- motion. I do not think that was the inten cluding request ruling for on the admissi- tion of our (c) Rule 12. implies Subsection evidence, bility of capable this by its direction that pretrial motion determination without the trial should be determined before trial unless the general issue be good raised to trial for cause orders that the ruling by written motion. The following shall deferred for lаter determination. This be raised at least days prior provision five is to to the take care of those situations trial: where judge hearing pretrial concludes that it would be better to defer (1) .. . ruling on the motion to the trial judge who (2) Motions concerning the admissibili- can better determine it after some or all of evidence; ty of the evidence is in. This is obviously a salu (c) A motion made before trial shall be tary practice. However, when the judge determined before trial unless the court hearing ruled, motion has good cause orders that the ruling be should end the matter and the defendant deferred for later determination. Where should not be required nor given another factual issues are involved in determining opportunity to present the matter. The motion, the court shall state its findings denial of such a motion should be reviewa on the record. appeal ble on without requiring defend The foregoing rule appears to be permis- ant again object at the trial. See United sive only whereas its counterpart Hopkins, States (5th F.2d 1041 Cir. Federal Procedure, Rules of Criminal Rule 1970). This result also eliminates *5 prob 12(b)(3), 1975, as amended in requires that judge lem of one district overruling another motions to suppress evidence be made be- judge court, general same which we However, fore trial. both rules have the ly have not allowed. Matter of Estate of same purpose: to eliminate from the trial Cassity, (1982); 656 P.2d 1023 See disputes over police conduct not immediate- Jaffe, D.C.D.C., also United States v. 98 ly relevant to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Jones of guilt. (1951). 191 F.Supp. States, United v. 257, 725, 362 U.S. 80 S.Ct. 4 L.Ed.2d (1960). 78 A.L.R.2d 233 It STEWART, J., concurs in the concurring therefore makes sense that proceed- HOWE, in the result opinion of J. ings designed expedite trials decid- ing issues guilt collateral or innocence However, to the trial. any economy

which is gained is soon if lost the motion made,

must again be presented argued

by counsel at the trial and the judge must hear the same evidence. See United COUNTY, UTAH Plaintiff and Barletta, D.C.Mass., States v. F.Supp. Respondent, Under the ruling majority opinion, BROWN, Gammon, Russell Faun V. Olsen a proper objection must be made to the Gammon, Joyce Swapp Lucille Gammon admission of evidence which the defendant Brown, and Norma Gammon Defendants has theretofore unsuccessfully sought Appellants. suppress so that the trial exam- judge may ine No. 18358. anew the ruling judge made another of the same court. my opinion In such of Utah. Supreme Court practice is not only an unnecessary expendi- Oct. ture of effort on the part of the trial court and counsel but more seriously, it offers the

defendant two opportunities to convince

two different judges of the merits of his