author: JACKSON, Presiding Judge: BENCH, Judge

text:
    2003 UT App 318
    STATE of Utah, Plaintiff and Appellee, v. Miguel Angel LARA, Defendant and Appellant.
    No. 20010484-CA.
    Court of Appeals of Utah.
    Sept. 25, 2003.

      Joan C. Watt and John D. O'Connell Jr., Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Laura B. Dupaix, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, BENCH, and DAVIS.
   OPINION

JACKSON, Presiding Judge:

' 1 Appellant Miguel Angel Lara appeals a judgment of conviction for theft, a second-degree felony, in violation of Utah Code Ann. § 76-6-404 (1999). We reverse and remand.

BACKGROUND

12 Lara was charged in juvenile court with aggravated robbery. Lara was sixteen at the time of the offense. Pursuant to Utah Code Ann. § 78-82-6022 (2002) (Serious Youth Offender Act), the juvenile court determined that Lara had not shown by clear and convincing evidence that he met all three of the statutory retention conditions, which would have permitted the juvenile court to retain jurisdiction. See id. § 78-8a2-602(8)(b). Thus, on January 2, 2001, the juvenile court bound Lara over for trial in district court to be tried as an adult.

T3 On January 22, 2001, Lara moved the district court to transfer him from the county jail to the juvenile detention center while his case was pending. The district court granted the motion. On the same day, Lara moved the district court to quash the juvenile court's bindover order. He did not challenge the juvenile court's finding of probable cause to believe that he had committed aggravated robbery. Instead, he challenged the juvenile court's ruling that he had not met the requisite retention factors by clear and convincing evidence. The State responded that because the juvenile court's bindover order was final and appealable, it was not reviewable by the district court. Instead, the State contended, the only proper venue for challenging the juvenile court's order was to appeal to the court of appeals. Lara filed an appeal in this court on January 31, 2001, challenging the juvenile court's bindover order.

4 On February 5, 2001, the district court held a hearing on Lara's motion to quash. Initially, the district court believed it retained jurisdiction to address the motion, heard argument on the motion and considered its merit. Ultimately, however, the district court said that it could not review the bindover order while an appeal from that order was pending. The district court asked defense counsel whether he was considering withdrawing the appeal, and defense counsel stated his preference that the district court review the bindover order. Defense counsel asked whether Lara could withdraw the appeal without prejudice, and the district court judge responded, "You have met the time constraints. You can appeal it after the trial, as you point out. You can appeal at any point in the interim. I guess you could wait for my decision and then appeal it.... I would say you withdraw it without prejudice."

15 The State reminded the district court that it did not have jurisdiction to review the bindover order and that Lara's only available remedy was to obtain appellate review from the court of appeals.

16 On February 14, 2001, Lara filed a motion with this court to voluntarily dismiss his appeal. The motion was accompanied by Lara's affidavit stating that he did not wish to pursue his appeal and that he understood that "onee this appeal is withdrawn, it cannot be reinstated." The motion did not ask that the dismissal be without prejudice. We dismissed the appeal pursuant to Lara's motion on February 15, 2001.

T7 On March 6, 2001, the district court issued a memorandum decision stating that it did not have jurisdiction to review the juvenile court's bindover order. Subsequent to that memorandum decision, Lara filed no motion with this court to reinstate his appeal.

T8 On March 30, 2001, Lara pleaded guilty to the lesser offense of second-degree felony theft on the condition that he be permitted to appeal the juvenile court's bindover order. On May 80, 2001, Lara filed a notice of appeal from his conviction and sentence.

ISSUES AND STANDARDS OF REVIEW

T9 Lara challenges the juvenile court's bindover order pursuant to the Serious Youth Offender Act, arguing that he met the retention factors set forth in Utah Code Ann. § 78-3a2-602(8)(b) (2002). The interpretation of a statute presents a question of law that we review for correctness, and any underlying factual findings made by the juvenile judge in applying the statute are reviewed for clear error. See State v. Pena, 869 P.2d 932, 936 (Utah 1994).

T10 The State contends that this court does not have jurisdiction to entertain Lara's first challenge because the direct appeal from the juvenile court's bindover order was dismissed and not timely reinstated. Whether a court has subject matter jurisdiction is a question of law that we review for correct, ness. See Beaver County v. Qwest, Inc., 2001 UT 81,¶ 8, 31 P.3d 1147.

ANALYSIS

111 Lara asks us to review the juvenile court's bindover order using one of three possible approaches: (1) by reinstating his direct appeal from the juvenile court's bind-over order; (2) by reviewing the district court's determination that it had jurisdiction over Lara; or (8) by considering Lara's request for extraordinary relief.

I. Reinstatement of Dismissed Appeal

T12 We must first address the State's claim that we do not have jurisdiction to entertain Lara's direct challenge to the juvenile court's bindover order. The State first relies on State v. Houskeeper, 2002 UT 118, 62 P.3d 444, for the proposition that once a case is bound over to district court, an appellate court will have no jurisdiction to hear the challenge unless that order is timely appealed. It is true that the procedural posture of Houskeeper is strikingly similar to the case at bar. In Houskeeper, the defendant was bound over by the juvenile court, filed a timely notice of appeal, voluntarily withdrew that appeal, and was ultimately convicted and sentenced by the district court. See id. at ¶¶ 3-9. He sought to directly challenge the bindover order, but the supreme court determined that it was a final, appealable order that must be immediately appealed, and since he voluntarily withdrew his appeal the supreme court did not have jurisdiction to consider the challenge. See id. at ¶¶ 23.

113 However, the case at bar presents a threshold issue not present in Houskeeper.

[WJhile defendant timely filed a notice of appeal of the bind-over order with the court of appeals, he voluntarily withdrew the appeal, which was ordered dismissed by the court of appeals. Consequently, defendant waived his right to appeal the bind-over order, and we have no jurisdiction to consider his contentions.

Id. (emphasis added). Voluntariness of the withdrawal was not an issue in Houskeeper. Voluntariness was taken for granted in that case, and it was precisely because of that voluntariness that Houskeeper's right to appeal was considered waived. See id.

114 In the present case, however, Lara contends that the withdrawal of his appeal was not knowing and voluntary. The voluntariness of the withdrawal is a threshold issue that must be addressed before we can determine that Houskeeper controls the present case. If the withdrawal was knowing and voluntary, then Houskeeper controls and we must refuse jurisdiction. If, however, the withdrawal was not knowing and voluntary, then we must consider whether the appeal may be reinstated.

T 15 The State further cites State v. Clark, 913 P.2d 360, 363 (Utah Ct.App.1996), for the proposition that, once an appeal has been dismissed and remitted, the appellate court loses jurisdiction and the dismissal acts as "an adjudication on the merits," thereby barring a subsequent challenge. Id. Because Lara's appeal was dismissed and not timely reinstated, the State argues, we have no jurisdiction to consider the appeal.

116 Clark does not hold that a motion to reinstate an appeal must be made prior to issuance of the remittitur. It holds instead that the dismissal of an appeal for failure to prosecute acts as a judgment on the merits and becomes res judicata, thus barring further direct appeal. See id. at 362. Clark's procedural posture differed from this case, in that Clark's appeal was dismissed pursuant to rule 3(a) of the Utah Rules of Appellate Procedure, whose counterpart may be found in rule 23A. Rule 23A sets forth a specific procedure, inapplicable to this case, see Utah R.App. P. 23A ("An appeal dismissed for failure to take a step other than the timely filing of a notice of appeal may be reinstated by the court upon motion of the appellant.") (Emphasis added.), for reinstating an appeal dismissed pursuant to rule 8A. In Clark, the appellant did not avail himself of the procedures outlined in rule 28A for reinstating appeals, and we thus refused to reinstate his appeal. Clark appears inapplicable.

117 Unlike Clark, the present case deals with an appeal dismissed pursuant to a stipulated motion to dismiss. Lara directs us instead to State v. Tuttle, 713 P.2d 703 (Utah 1985), for the proposition that the right to appeal in criminal cases is a fundamental right and, as such, requires a presumption against waiver of appeal. See id. at 704. This is so even in extreme cases of dismissal, such as dismissal due to escape from custody, where it appears that the defendant "has [not] actually made a decision to abandon his appeal." Id. If the dismissal was due to the defendant's request, and the underlying appeal collaterally attacked the conviction, the burden of proof may, but does not necessarily, shift to the defendant to demonstrate that the waiver of right to appeal was not knowing or voluntary. See Bruner v. Carver, 920 P.2d 1153, 1155-56 (Utah 1996) (holding it did not offend due process for district court to place burden of proof on defendant to show lack of knowing and voluntary waiver). In that case, the supreme court refused to reinstate an appeal after it was withdrawn because Bruner's affidavit stated he knowingly and voluntarily withdrew his appeal and that he understood that, once the appeal was withdrawn, it could not be reinstated. See id. at 1154-55. Bruner thus failed to prove lack of knowing and voluntary waiver. See id. at 1156.

18 The supreme court allowed the burden to shift to Bruner to prove lack of knowing and voluntary waiver, because it is "not difficult to understand" the lesser rights being waived in a collateral attack, as compared with the complex process of pleading guilty, and because the presumption of innocence no longer applies after conviction. Id. Bruner does not mandate that the defendant bear the burden of proof to show lack of knowing and voluntary waiver-rather, it simply holds that it did not offend due process for the trial court to so require. See id.

19 Although the supreme court in Bruner characterized as less weighty the rights a defendant waives when moving to dismiss an appeal that collaterally attacks a conviction, see id., this case differs significantly from Bruner. First, at the time of Lara's first appeal, he had not yet been convicted, and the presumption of innocence did still apply. Second, Lara does not seek to collaterally attack a conviction, as Bruner did through seeking extraordinary relief, but seeks instead to directly attack an allegedly erroneous bindover order. Third, the rights Lara purportedly waived by dismissing his appeal included the right to significantly different treatment by a juvenile court rather than a district court, a right Bruner clearly was not entitled to.

20 Fourth, although Lara filed an affidavit substantially identical to Bruner's affidavit, Lara requested to withdraw his appeal pursuant to assurances by the district court itself that the withdrawal would be without prejudice. Several times during the proceedings the trial court opined that the direct appeal from the bindover order could be reinstated should the district court enter a ruling adverse to Lara. The district court asked Lara's counsel, "Mr. O'Connell, are you considering withdrawing your appeal mow that you've [timely filed a notice of appeal]? " Further, the district court stated, "You have met the time constraints. You can appeal it after the trial, as you point out. You can appeal it at any point in the interim. I guess you could wait for my decision and then appeal it." This indicates that the trial court considered the notice of appeal a mere formality that, once timely filed, indefinitely preserved Lara's right of appeal.

121 In fact, the district court's memorandum decision expressly stated that the appeal was reinstated on the basis that Lara and Lara's counsel relied on its prior assurances. The district court's memorandum decision stated:

During the hearing, the Court initially opined that she could review the defendant's Motion and indicated that she would likely reach the merits of the defendant's Motion. Based on that initial determination, the defense counsel indicated that while he had filed an appeal in this case on behalf of the defendant, in order to preserve the defendant's rights, he would proceed to withdrawing that appeal without prejudice. However, as indicated above, upon further review of the case law, the Court now determines that the defendant was correct in directly appealing the bind-over and the appeal is reinstated.

(Emphasis added.)

122 The waiver of the right to appeal must be made knowingly and voluntarily, or it is of no effect. See Bruner, 920 P.2d at 1155 (stating "courts generally indulge every reasonable presumption against waiver of" right to appeal) (citing Barnard v. Wassermann, 855 P.2d 243, 247 (Utah 1998) ("Waiver is deemed to occur when the totality of the cireumstances indicates an intentional abandonment or relinquishment of a known constitutional right.") (Emphasis added.)). "Knowing" is defined as "Thlaving or showing awareness or understanding; well-informed." Black's Law Dictionary 876 (7th ed.1999). In this case, it is difficult to see how the sixteen-year-old Lara could "(have] or show|[ ] awareness or understanding" of his appellate rights when he was so erroneously informed by the district court judge's repeated and authoritative indications that he was not waiving the right to appeal. Id.

1 23 While we have determined that Bruner does not mandate that Lara bear the burden of proving lack of knowing and voluntary waiver, we conclude that he has nevertheless convincingly demonstrated such. Lara was promised significant false incentives, unrelated to his actual legal rights or sound strategy, to withdraw his appeal, and those incentives were unfair to Lara. Not only did Lara receive false assurances from the district court regarding his appellate rights, he was a sixteen-year-old minor in adult jail awaiting the outcome of a lengthy appeal. Lara was not entitled to pre-trial release supervised by Pre Trial Services due to the illegal immigration status of some of his family members. The district court assured him that it would remove him from adult jail and place him instead in more appropriate juvenile detention, but that it could only do so if he dismissed his appeal.

[ 24 Accordingly, it would not be improper to reinstate Lara's direct appeal from the juvenile court's bindover order, Because the State "has [not] been prejudiced by the ... lapse of time" resulting from this case's procedural and appellate labyrinth, "the appeal is reinstated." State v. Tuttle, 713 P.2d 703, 705 (Utah 1985).

IIL Merits of Juvenile Court Bindover Order

125 The juvenile court's bindover order was issued pursuant to Utah Code Ann. § 78-32-6022 (2002), which mandates that certain serious youth offenses, including the charge Lara faced, require bindover to district court for trial as an adult. Utah Code Ann. § 78-82-602(8)(b), however, provides a list of retention conditions that, if met, require the juvenile court to retain jurisdiction. The juvenile must prove all of the following conditions:

(i) the minor has not been previously adjudicated delinquent for an offense involving the use of a dangerous weapon which would be a felony if committed by an adult;
() that if the offense was committed with one or more other persons, the minor appears to have a lesser degree of culpability than the codefendants; and
(iii) that the minor's role in the offense was not committed in a violent, aggressive, or premeditated manner.

Id.

26 The first of these factors is admitted by the State. Lara properly marshaled the evidence in support of the juvenile court's finding that he failed to establish the second two factors by clear and convincing evidence. The facts, as marshaled by Lara, are as follows:

1. [Lara] was a passenger in the backseat of the white car when its driver parked about three car lengths behind [the victim's] truck. [Lara] remained in the truck while the co-defendants approached and threatened [the victim], and may have been able to see the actions of the co-defendants.. 6
2. Two of the co-defendants approached [the victim] and pointed a gun covered with a bandana at her. They made her kneel and turn around facing the street. 3. The co-defendants told [the victim] they were taking her money. When they learned she did not have money, they asked if the truck was hers and took the keys.
4. One of the men ran over and looked in the window of the truck, then went back and talked in Spanish with the gunman. 5. The man without the gun then ran to the white car. The man returned within 20-25 seconds. [Lara] got out of the car and went to the truck. [The victim] did not see [Lara] until after the keys were taken from her. She did not see but thought the other man gave the keys to [Lara] while the man was at the white car. 6. [The victim] was about seven feet from the truck and on her knees when [Laral got into it. The gunman was pointing the gun at her. [Lara] did not approach [the victim]. [Lara] was six or seven feet from her. [Lara] drove away alone, but stopped at the corner to let someone get into the truck.
7. After [Lara] got in the truck, the robber without the gun ripped a necklace off [the victim's] neck.
8. [The victim] thought the entire crime took about four minutes. [Lara] was involved for about a minute.
9. Officer Gardner observed the truck at 600 North and Redwood Road. After running a check on the truck, the officer eventually stopped the truck at the Salt-Aire [sic] exit off of 1-80. [Lara] was driving the truck when it was stopped. One of the robbers was in the truck and a gun was under the passenger seat. Officers also found a necklace in the truck.

27 The second factor, a lesser degree of culpability, has been met, despite the juvenile court's ruling to the contrary. This factor requires "that if the offense was committed with one or more other persons, the minor appears to have a lesser degree of culpability than the codefendants." Utah Code Ann. § 78-82-602(B8)(b)(ii). The juvenile court incorrectly interpreted this retention condition to preclude a finding of lessér culpability in cireumstances where the juvenile acted as a co-participant with a violent and aggressive person. The juvenile judge pointed out that the other men were acting in a violent, aggressive and threatening manner when Lara got out of the car and was handed the keys to the victim's standard transmission truck. Rather than focusing on Lara's role in the incident, the juvenile court focused on the actions of the codefendants and concluded that because the codefendants were acting violently when Lara was given the keys, Lara was equally culpable. To bolster the conclusion of equal culpability, the juvenile court stated it "was a violent act, there was a gun being used and the victim was in a very difficult position" when Lara received the keys and got into the truck.

28 The juvenile court's focus on the actions of the other participants was an erronceous application of the statute. The statute requires a focus on the juvenile's behavior and a comparison with the behavior of the other perpetrators. The juvenile court's analysis, which looked at the nature of the criminal offense itself, would require a determination in all cases that the juvenile's behavior was as culpable as the others involved in the crime. This is because (1) the juvenile court refused to compare the juvenile's behavior with the others involved in the erime, focusing instead on the crime itself, and (2) the question only arises in the context of violent crimes, pursuant to the Serious Youth Offender Act. Thus, if we affirmed the juvenile court's analysis, no juvenile could ever meet the retention factors because violent crimes will always be in issue. This result would render the retention factors inoperable in all cases, and would violate our rules of statutory construction.

129 Further, the juvenile court incorrectly indicated that in order to have lesser culpability, Lara would have had to play no role in the erime other than simply riding along in the car. However, if Lara played no role in the crime, he would not have been charged, and certainly would not have been bound over pursuant to probable cause. Contrary to the juvenile court's application of the second retention factor, a juvenile need not be entirely uninvolved with the erime to merit a finding of lesser culpability. Rather, the relevant inquiry is whether the juvenile is less blameworthy than the codefendants because he was not the initiator or driving force behind the crime, did not use a weapon or threaten the victim, or otherwise played a less active role in the crime.

30 Lara met the second retention condition since the State never offered evidence that he participated in the actual assault of the victim. He remained in the backseat of the car while two of his three friends perpetrated the armed robbery. His role was limited entirely to driving the vietim's vehicle away. Unless the State offered evidence of conspiracy or some other form of aiding, such as encouragement, which it did not, Lara clearly was less culpable than the other perpetrators.

131 Lastly, Lara met the third condition, requiring that his role in the crime not be done in a violent, aggressive, or premeditated manner. As discussed above, it is clear that his role was neither violent nor aggressive. According to the terms of section 78-3a-602(3)(b)(iii), Lara must affirmatively prove that his role was not carried out in a premeditated manner.

132 Looking at the record as a whole, it is obvious that Lara's role was not premeditated but incidental. The State argues that Lara did not offer any evidence, but relied on statements by counsel, to establish this factor. Lara's counsel argued that the evidence showed the more active participants in the erime took keys from the victim, started to take her vehicle, and then discovered that the vehicle had a standard transmission, which they could not drive. Upon that discovery, the men returned to their own car, where Lara was sitting, and told him to drive the car, which he did.

{33 The State's contention that Lara's argument was not based on evidence before the juvenile court is incorrect. Lara's counsel argued legitimate inferences all solidly based on evidence in the record. Specifically, the record shows that Lara's codefendants took the keys and looked in the truck's window. They then went to the car where Lara was sitting, handed him the keys, and spoke to him in Spanish. After that exchange, Lara got out of the car and drove the victim's truck away. Lara's counsel argued that this evidence showed that the codefendants could not drive a truck with standard transmission. When they discovered that the truck had a standard transmission, they changed their plan and required Lara to drive the truck.

1 34 The State's contrary interpretation of the evidence, that Lara participated in a prearranged plan to drive the vehicle away, does not square with the facts in record. Had Lara prearranged to drive the truck, it was quite inconsistent with their arrangement for the codefendants to approach the truck, look inside, have a discussion, return to the car, and engage Lara in a dialogue before handing him the keys.

T 35 Thus, we conclude Lara met the third retention condition, showing that his role in the plan was not violent, aggressive or premeditated. Accordingly, the juvenile court erred in binding Lara over for trial in district court.

CONCLUSION

1386 Lara's original direct appeal of the juvenile court's bindover order must be reinstated. Although Houskeeper is very similar to the present case, it does not control our ultimate disposition because Houskeeper did not deal with the threshold issue of whether the waiver of the right to appeal was knowing and voluntary. Further, we have determined that Lara's dismissal of his appeal was not knowing and voluntary given the district court's false assurances, as well as Lara's young age combined with the confusing nature of the procedural issues at stake. The district court itself drifted into error regarding those procedural issues, leading a sixteen-year-old boy by the hand to misunderstanding. Thus, when Lara dismissed his direct appeal of the bindover order, it was not done so knowingly or voluntarily.

137 On direct review of the bindover order, we determine that the juvenile court erred in concluding Lara did not demonstrate the retention conditions outlined in Utah Code Ann. § 78-82-602(8)(b) (2002). Lara's actions were without question less culpable than those of his codefendants. Further, Lara's actions were not violent, aggressive, or premeditated, as clearly shown by the evidence in the record. Thus, the juvenile court erred in binding Lara over for trial in district court in violation of section 78-3a-602(3)(b). The juvenile court's bind-over order and Lara's plea, conviction and sentence in district court are all vacated and this case is remanded to juvenile court for further proceedings consistent with this opinion.

88 I CONCUR: JAMES Z. DAVIS, Judge.

BENCH, Judge

(dissenting):

139 In straining to reach its desired result, the main opinion refuses to follow controlling precedent.

140 The approach outlined by the main opinion is unattainable because this court lacks jurisdiction to even consider the substance of the appeal. As recited in the main opinion, Lara filed a timely notice of appeal from the juvenile court's bind-over order on January 31, 2001. Subsequently, pursuant to Lara's own motion, we dismissed the appeal on February 15, 2001. Lara filed no timely motion to reinstate his appeal or to withdraw his motion. Consequently, on March 21, 2001, we remitted Lara's appeal of the bind-over order to the juvenile court. This remit-titur ended our jurisdiction over any appeal relating to bind-over.

141 For us to take any action with regard to the juvenile court's bind-over order, we would have to recall the remittitur. Howeyver, our jurisdiction to recall a remittitur is extremely limited. We can recall a remitti-tur only "upon a showing that the remittitur was issued through fraud or inadvertence or was issued prematurely or otherwise improperly, or to correct an irregularity or error in the issuance of the remittitur." Miller v. Southern Pacific Co., 82 Utah 307, 24 P.2d 380, 381 (1933); see also Hi-Country Estates v. Foothills Water Co., 942 P.2d 305 (Utah 1996). Because this court did not erroncously remit the case, when we remitted, we lost appellate jurisdiction over all issues relating to bind-over. Lara's remedy, if any, can now only be sought through an extraordinary writ.

142 State v. Clark, 913 P.2d 360 (Utah Ct.App.1996), is fully consistent with these bedrock principles. In Clark, this court held that onee a criminal appeal has been remitted to the district court, the appellate court loses all jurisdiction over the matter. See id. at 363. We went so far as to say that a dismissal for failure to timely file a brief on appeal acted as an adjudication on the merits, and that defendant could challenge his sentence only by extraordinary writ. See id.

¶ 43 In attempting to save this appeal, the main opinion erroneously relies on State v. Tuttle, 713 P.2d 703 (Utah 1985). By its own terms, however, Tuttle applies only to appeals dismissed because of a criminal's escape. In Tuttle, the supreme court allowed for reinstatement of a eriminal appeal because the escapee's intent regarding his appeal could only be inferred. In contrast, here, Lara's intent in withdrawing his appeal of the juvenile court's bind-over order is undeniable. His motion to withdraw, "made on the grounds that [Laral does not want to pursue an appeal," was supported by an affidavit. In his affidavit, Lara stated as follows:

I, MIGUEL A. LARA, being first duly sworn according to law, on my oath depose and say:
1. I am the Defendant/Appellant in the above-entitled case.
2. It is my desire to withdraw my appeal at this time.
3. I am aware that I have the right to appeal my conviction and sentence to the Utah Court of Appeals; however, I do not wish to pursue this appeal.
4. I understand that onee this appeal is withdrawn, it cannot be reinstated.
5. It is my desire to waive any and all rights to the appeal docketed in this case.
6. I am doing this knowingly and voluntarily and have not been threatened or otherwise induced in any way to withdraw this appeal.
7. I have consulted with my attorney with respect to this withdrawal and feel that it will not benefit me to pursue this appeal.

{44 This case is directly controlled by State v. Houskeeper, 2002 UT 118, 62 P.3d 444, which was decided while Lara's case was still being briefed. Like Lara, Houskeeper was charged in juvenile court under the Serious Youth Offender Act (SYOA). See id. at ¶ 1. Like Lara, Houskeeper was transferred to district court after the juvenile court found that he had not proven the three SYOA retention factors by clear and convincing evidence. See id. at ¶¶-3. Also like Lara, Houskeeper timely appealed the juvenile court's transfer order, but later filed a motion to voluntarily dismiss the appeal, which the court of appeals granted. See id. at ¶ 3. Houskeeper, like Lara, then filed a motion in district court to quash the juvenile court's bind-over order. See id. at ¶ 4. When the district court denied the motion, Houskeeper petitioned the Utah Supreme Court for interlocutory review of that decision. See id. The supreme court denied the petition. See id. After a jury convicted Houskeeper of a lesser included offense, he appealed to the Utah Supreme Court arguing, inter alia, that the juvenile court had erred in finding that he had not proven all three retention factors. See id. at ¶¶ 9-10, 23.

{ 45 The unanimous Houskeeper court held that "[blecause the [Juvenile court] bind-over order was not timely appealed, we have no jurisdiction to hear challenges to the order." Id. at ¶ 23. Citing M.C. v. State, 916 P.2d 914, 916 (Utah Ct.App.1996), the supreme court observed that juvenile court bind-over orders are "final, appealable orders." Houskeeper, 2002 UT 118 at ¶ 23, 62 P.3d 444. The supreme court recognized that Houskeeper, like Lara here, had filed a timely notice of appeal from the juvenile court's bind-over order, but had then voluntarily withdrawn that appeal. See id. "Consequently, defendant waived his right to appeal the bind-over order, and [the supreme court had] no jurisdiction to consider his contentions." Id.

{46 Just as Houskeeper waived his right to appeal a juvenile court bind-over order when he voluntarily dismissed his timely appeal, so too Lara waived his right to challenge the juvenile court's bind-over order. The main opinion claims that Lara's case is different from Houskeeper's because Lara did not voluntarily withdraw his appeal. His affidavit, however, plainly demonstrates otherwise. In Bruner v. Carver, 920 P.2d 1153, 1156 (Utah 1996), the Utah Supreme Court ruled that an affidavit even less comprehensive than Lara's sufficiently demonstrated a knowing and voluntary waiver of the right to appeal.

T47 As recognized by the main opinion in footnote two, there have been instances where our supreme court has set aside "unequivocal statements of knowing and voluntary waiver." However, it is critical to note that these cases addressed the voluntariness of a guilty plea, rather than the withdrawal of an appeal and, as demonstrated by our supreme court in Bruner, there is a fundamental distinction between the two types of waivers. See Bruner, 920 P.2d at 1156. "Guilty plea affidavits are significantly more complex and philosophically different than withdrawals of direct appeals. Because a defendant gives up far less by withdrawing an appeal than by entering a guilty plea, the protections accorded the former process are logically more limited." Id. (emphasis added). The supreme court explained that, with a guilty plea, the defendant forfeits a "panoply of constitutional rights," whereas with an appeal waiver, the defendant is "simply ending further review of his case." Id.

148 In sum, the approach of the main opinion cannot be reconciled with our prior case law. By straining to salvage Lara's appeal, my colleagues have created countless complications for the future. I therefore dissent.

      . Because we grant the relief Lara requests in the form of reinstating his original appeal, we do not address the second and third alternative grounds for relief.

      . The dissent considers Lara's unequivocal affidavit to be the end of the inquiry. However, we note that in other contexts, unequivocal statements of knowing and voluntary waiver have nevertheless been set aside. See, e.g., State v. Norris, 2002 UT App 305, ¶ 13, 57 P.3d 238 (allowing defendant to withdraw conditional guilty plea in spite of flawless plea colloquy and defendant's own assertion that plea was made knowingly and voluntarily where court and State made unrealizable promises in exchange for plea); State v. Thurman, 911 P.2d 371, 375 (Utah 1996) (holding guilty plea was not knowing because defendant did not understand the elements of the crime, in spite of defendant's unequivocal statements to the contrary).

      . The dissent expresses concern that this holding will confuse Utah jurisprudence in this area. However, this is not the case because it seems unlikely that a similar case will arise in the future, given the uniqueness of the facts involved here.


source: Caselaw Access Project

author: BENCH, Judge:

license: Public Domain

text:
    2003 UT App 333
    STATE of Utah, Plaintiff and Appellee, v. Robert Lynn HUMPHREY, Defendant and Appellant.
    No. 20020306-CA.
    Court of Appeals of Utah.
    Oct. 9, 2003.
    Edward K. Brass, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, for Appellee.

      Before BILLINGS, Associate P.J., BENCH, and DAVIS, JJ.
   OPINION

BENCH, Judge:

T1 Defendant Robert Humphrey appeals from the trial court's order denying a motion to withdraw his guilty plea to two counts of attempted sexual abuse of a child, in violation of Utah Code Ann. § 76-5-404(1) (1999). Humphrey asserts that the trial court erred in denying the motion to withdraw without entering findings of fact. We agree and remand.

BACKGROUND

{2 Humphrey was living with his wife, three daughters, and a stepdaughter when the stepdaughter alleged sexual misconduct by Humphrey. Humphrey was originally charged with one count of sodomy on a child and one count of aggravated sexual abuse of a child, both first degree felonies.

T3 On the morning set for trial, Humphrey decided to plead guilty to two amended counts of attempted sexual abuse of a child, both third degree felonies. Under the plea, the parties agreed to recommend that, at sentencing, the court should comply with the prior orders of the juvenile court, They further agreed to leave any incarceration decision up to the court. The State also agreed not to oppose probation.

T4 Before entering his plea, Humphrey reviewed and signed a plea affidavit The affidavit set forth the elements of the crimes to which Humphrey was pleading guilty and an admission that he was entering his plea knowingly and voluntarily. He then engaged in a Rule 11 colloquy with the court. Humphrey confirmed that he had discussed the plea offer with his attorney, had reviewed the plea affidavit before signing it, and was not under the influence of any drugs or alcohol. Humphrey did not, however, admit guilt. The court articulated the penalties for each of the counts to which Humphrey was pleading guilty and asked Humphrey whether he understood the penalties. He replied in the affirmative.

5 After the court was satisfied that Humphrey understood the ples, it accepted Humphrey's guilty plea. The court then ordered Adult Probation and Parole to prepare a presentence investigation report. The report ultimately recommended probation with six months in jail and work release, successful completion of a sex offender treatment program, and various other conditions. When Humphrey attempted to enroll in a sex offender program, he learned that unless he admitted guilt, he could not receive the required treatment. Humphrey then decided to file a motion to withdraw his plea.

T6 The motion to withdraw asserted that Humphrey's ability to rationally assess his choices had been impaired by extreme emotional distress, that he believed the plea would allow him to be reunited with his family, and that the recommendations in the presentence investigation report contradicted the plea agreement.

T7 At the hearing on the motion to withdraw, Humphrey argued that his plea was not knowing and voluntary. He testified about his mental state on the morning he entered the plea and offered correspondence from a social worker who had counseled him. The trial court concluded that Humphrey had entered his plea knowingly and voluntarily and denied his motion to withdraw his plea.

18 On appeal, Humphrey argues that (1) the trial court abused its discretion in denying the motion to withdraw without making factual findings, and (2) in the alternative, the trial court erred in denying the motion to withdraw on the basis of plain error and ineffective assistance of counsel. Because we hold that the trial court abused its discretion by not entering detailed findings of fact based on the evidence presented at the hearing on the motion to withdraw, we remand.

STANDARD OF REVIEW

19 On appeal, the trial court's denial of a motion to withdraw a guilty plea will not be disturbed "unless it clearly appears that the trial court abused its discretion." State v. Trujillo-Martinez, 814 P.2d 596, 599 (Utah Ct.App.1991).

ANALYSIS

10 In Utah, "[a] plea of guilty ... may be withdrawn only upon good cause shown and with leave of the [trial] court." Utah Code Ann. § 77-13-6(2)(a) (1999). In the past, we have held that Rule 11 of the Utah Rules of Criminal Procedure creates "a presumption the plea was entered voluntarily" and "[glood cause exists where the plea was entered involuntarily." State v. Thorup, 841 P.2d 746, 748 (Utah Ct.App.1992). In Thorup, we confirmed that compliance with Rule 11 is not dispositive in determining a motion to withdraw a plea. A defendant can show good cause by putting forth evidence that the plea was in fact involuntary. See State v. Benvenuto, 1999 UT 60, ¶ 13, 983 P.2d 556. Onee such evidence is presented to the court, the court needs to assess the credibility of the evidence and make detailed findings on all relevant facts. See id. Rule 12(c) of the Utah Rules of Criminal Procedure requires the trial court to state its findings on the record "where factual issues are involved in determining a motion." Furthermore, the trial court's findings must be sufficiently detailed to allow the appellate court the opportunity to adequately review the trial court's decision. See State v. Marshall, 791 P.2d 880, 882 (Utah Ct.App.1990).

1 11 At the hearing on the motion to withdraw, Humphrey offered evidence from two sources to show good cause that his plea was not voluntary: (1) his own testimony about his state of mind during the plea colloquy, and (2) a letter from a social worker. However, the record is unclear as to whether the court made the necessary credibility assessment and factual determinations based on this evidence. At the conclusion of the hearing, the court merely stated as follows:

[Mly .observations of the defendant at the time was that he understood what he was doing; that he didn't appear to me to be under any more duress.... I'm going to deny the motion because I believe that [it] hasn't met the objective standard and I believe that anything that has been done here as the evidence today doesn't rise to a level that would make me ... both according to law [and] good conscience, you know, grant the motion to withdraw the guilty plea. And so if people disagree with that, you know, let's have the Supreme Court or the Court of Appeals say that I'm wrong.

12 The court's conclusion suggests that (1) the court felt that it was appropriate to apply an objective standard, and, accordingly, (2) the court was uncertain whether it could consider the new evidence instead of solely relying on observations at the plea colloquy, and (8) most importantly, the court did not enter any detailed factual findings as to the evidence Humphrey presented at the hearing on his motion to withdraw the plea. In order for us to review the ruling of the trial court, we need more explicit findings on the evidence presented. See id.

CONCLUSION

I 13 We remand the case so the trial court can make the necessary factual findings to support its ruling on Humphrey's motion to withdraw his plea.

T 14 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and JAMES Z. DAVIS, Judge.


author: JACKSON, Presiding Judge:

text:
    2003 UT App 335
    STATE of Utah, Plaintiff and Appellant, v. Charles Bryan CUSHING, Defendant and Appellee.
    No. 20020539-CA.
    Court of Appeals of Utah.
    Oct. 9, 2003.

      Mark L. Shurtleff, Atty. Gen., and Marian Decker, Asst. Atty. Gen., Salt Lake City, for Appellant.
    Rudy J. Bautista and Catherine E. Lilly, Salt Lake City, for Appellee.
    Before JACKSON, P.J, BILLINGS, Associate P.J. and GREENWOOD, J.
   OPINION

JACKSON, Presiding Judge:

11 The State of Utah appeals the trial court's order dismissing with prejudice enhanced counts of possession of methamphetamine, a second degree felony, and possession of marijuana, a class A misdemeanor, in violation of Utah Code Ann. §§ 58-237 8(2)(a)), -8(4)(c) (1998); and interference with a peace officer, a class B misdemeanor, in violation of Utah Code Ann. § 76-8-305 (1999). 'We affirm.

BACKGROUND

12 On May 1, 2001, Detective Jensen of the West Jordan City Police Department observed a white Nissan nearly collide with another car, as well as his own unmarked patrol car. Detective Jensen followed the Nissan and initiated a traffic stop. When Detective Jensen turned on his "wig-wag" and red and blue lights, he recognized the driver of the Nissan to be Rita Morrison, a known drug offender. He did not, however, recognize the passenger in Morrison's car.

[ 3 Morrison did not immediately pull over, and Detective Jensen activated his siren. Detective Jensen observed Morris looking back at him, but she continued driving several seconds until she reached the parking lot of an apartment complex known by Detective Jensen as one of the worst complexes in the city for criminal activity. Before Morrison's car came to a complete stop, the passenger door opened and Defendant Charles Bryan Cushing jumped out and began "almost [jJog-ging]" toward the complex.

4 4 Detective Jensen identified himself as a police officer and asked Cushing to stop and stay with the car as a safety precaution. Cushing ignored Detective Jensen's request, instead looking back at Detective Jensen and immediately "launching into a full sprint." Detective Jensen pursued Cushing, but did not apprehend him before he ran into apartment number four. Detective Jensen worried that Cushing was attempting to evade detection of contraband or to obtain a weapon inside the apartment. This worry stemmed from Cushing's association with a known drug offender in an area known for violent crime, and from Detective Jensen's experience that "the propensity for violence among ... drug users is higher than the norm."

T5 Detective Jensen remained at the door of the apartment to wait for backup officers to arrive. Five minutes later, another man exited the apartment in a nervous and suspicious manner, carrying a garbage bag. The man identified himself as Edward Majera and claimed that another man named Cameron Larsen was also in the apartment, but that no one had run into the apartment. The officers knocked on the apartment door, and Larsen responded, identifying himself as the leaseholder. Larsen also denied that anyone had run into the apartment or that anyone else remained inside. Detective Jensen explained that he had observed Cushing, as yet unidentified by name, run into the apartment, and Larsen nervously admitted that Cushing was hiding under a bed in the apartment.

T6 Detective Jensen obtained Larsen's permission to enter the apartment, and Larsen responded, "Yeah, I don't want him in my apartment.... [Y¥]ou can go get him out but I'm not going to help you. This guy will kill me." Larsen further informed Detective Jensen that Cushing always had a gun on him and expressed further concern for his safety if Cushing discovered Larsen's cooperation with the police. Majera expressed similar concerns.

T7 Rather than entering the apartment immediately, Detective Jensen opened the front door and called to Cushing inside the apartment. Detective Jensen further indicated that a police dog would be sent in shortly to find Cushing. Several minutes later, Cushing exited the apartment, was handcuffed and placed in a patrol car. He was detained there until police could complete a search of the apartment, with Larsen's verbal and written consent. The police discovered methamphetamine and marijuana in the front room, as well as a pistol near where the drugs were found.

T8 Cushing moved the court to suppress the drugs, and the court granted the motion. The trial court determined that Detective Jensen's investigation of Cushing was justified by Cushing's unprovoked flight. The trial court further concluded that the otherwise justified Terry stop became excessive when Cushing was made to sit handcuffed in a patrol car while police searched the apartment into which he had fled. The trial court also concluded that the excessive detainment tainted Larsen's independent consent to search the apartment.

T9 The State appealed, but we remanded for the trial court to certify that the rulings were final and appealable, pursuant to Utah Code Ann. § 77-18a-1 (1999) and State v. Troyer, 866 P.2d 528 (Utah 1998), as substantially impairing the State's case. On remand and pursuant to the State's motion to dismiss with prejudice, the trial court certified the case as final and appealable without holding a hearing.

ISSUES AND STANDARDS OF REVIEW

€10 Cushing argues the State has no right of appeal and this court has no jurisdiction to hear this case pursuant to Utah Code Ann. § 77-18a~1 (1999) and State v. Troyer, 866 P.2d 528 (Utah 1998), because Cushing was not afforded a hearing and a meaningful opportunity to object to the State's motion to dismiss. Whether this court has jurisdiction presents a question of law that we review for correctness. See Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147.

T11 The State challenges the trial court's conclusion that police exceeded the seope of an otherwise permissible Terry stop by securing Cushing in a patrol car while they searched the apartment. Whether a particular set of facts gives rise to reasonable suspicion is a question of law that we review for correctness. See State v. Chapman, 921 P.2d 446, 450 (Utah 1996). "The legal standard for reasonable suspicion, however, 'is highly fact dependent and the fact patterns are quite variable" The legal standard therefore conveys a measure of discretion to the trial court in our application of the correctness standard to a given set of facts." Id. (citations omitted).

ANALYSIS

I. Jurisdiction

112 We first address whether we have jurisdiction to hear the State's appeal. Cushing argues that, pursuant to Utah Code Ann. § 77-18a-1 (1999) and State v. Troyer, 866 P.2d 528 (Utah 1993), the trial court must hold a hearing to determine whether suppression of the drug evidence substantially impairs the State's case. The trial court did not hold a hearing. Further, Cushing argues, although the drug charges could not stand without the drug evidence, the remaining charge of interference with a peace officer could still be brought. Thus, Cushing argues, the case should not have been dismissed and the suppression ruling was neither final nor appealable, depriving this court of jurisdiction.

113 Utah law provides that "[aln appeal may be taken by the prosecution from ... (e) an order of the court granting a pretrial motion to suppress evidence when upon a petition for review the appellate court decides that the appeal would be in the interest of justice." Utah Code Ann. § 77-18a-1(2). However, such an appeal is limited to those cases where the suppression ruling substantially impairs the State's case:

We believe that trial court certification is more effective than relying on the prosecution['s assurances that the suppression ruling substantially impairs the State's case] because it gives the defendant a chance to object before the dismissal is entered while still permitting review by the appellate court. We will therefore review suppression orders on appeal from a dismissal only where the trial court certifies that the evidence suppressed substantially impairs the prosecution's case.

Troyer, 866 P.2d at 531. The purpose of requiring a dismissal with prejudice is to bar the State from refiling charges against the defendant if the suppression ruling is affirmed on appeal. See id. These requirements underscore the fact that the prosecution's ability to appeal is substantially narrower, by legislative design, than that of a defendant. See id. Otherwise, " 'the State [would have) an appeal of right from virtually every adverse pretrial order, for the State will almost always be able to dismiss a case, appeal from that dismissal, and then refile the charges, whatever the outcome of the appeal." Id. at 530-31 (quoting State v. Waddoups, 712 P.2d 223, 224 (Utah 1985)).

T 14 Cushing argues that because the trial court did not hold 'a hearing on the State's motion to dismiss, he was not allowed "a chanee to object before the dismissal [was] entered." Id. at 531. Had he been afforded such an opportunity, Cushing maintains, he would have objected on grounds that, although the drug charges could no longer stand, 'the charge of interference with a peace officer yet remained. The State could have moved forward on that charge, Cushing argues, and the suppression order should not, therefore, be considered final and ap-pealable and this court has no jurisdiction over the State's appeal.

115 We are not persuaded by Cushing's argument for three reasons. First, Cushing's argument seems to assume that Troyer considered a hearing the only appropriate venue in which a defendant may object to the State's motion to dismiss. However, we read nothing in Troyer that would lend itself to this interpretation. Objections may be made on paper as well as in person.

N16 Second, Cushing's argument misconstrues the Troyer requirements. Cushing argues that because a minor charge remained unaffected by the suppression order the State could still go forward and the suppression order thus is not final or appealable. However, Troyer requires substantial impairment to the State's case, rather than complete impairment. See id. The suppressed drug evidence provided the basis for at least two-thirds of the State's case, including an enhanced second-degree felony charge for methamphetamine possession and an enhanced class A misdemeanor charge for marijuana possession. These two charges carry possible sentences of "not less than one year nor more than 15 years," and one year. See Utah Code Ann. §§ 76-3-203, -204(1) (1999). After the suppression order, however, Cush-ing's remaining class B misdemeanor charge carried a possible sentence of a six month term. See id. § 76-3-204(2). Thus, we conclude the State's case was substantially impaired, and the trial court properly dismissed the case regardless of the remaining minor charge.

17 Third, Troyer itself does not require rigid, mechanical application. After concluding that "trial court certification ... will be required before the State may appeal and seek review of suppression orders after dismissal," the supreme court immediately stated, "(ln this case, however, we see no need to remand the case to the trial court for certification. It is undisputed that the cumulative effect of the suppression orders left the prosecution unable to proceed." Troyer, 866 P.2d at 531-32. Thus, jurisdiction is conferred upon an appellate court pursuant to a final appealable order if it has sufficient indi-cla of substantial impairment to the State's case. Where the supreme court refused in Troyer to remand the case pursuant to its own newly-proclaimed rule, we would be misguided indeed to refuse jurisdiction simply because the trial court did not hold a hearing on the motion.

{18 Accordingly, we conclude the trial court's certification was sufficient under Troyer, the dismissal was a final appealable order, and we thus have jurisdiction over the State's appeal.

II. The Trial Court's Suppression Order

¶19 The trial court concluded the initial traffic stop was lawful because Detective Jensen observed Morrison driving erratically, giving rise to a reasonable belief that she was intoxicated. It noted that the initial stop "only justified an investigation of Ms. Morrison's actions [and that] any investigation of Mr. Cushing must be based on a separate articulable suspicion." The trial court concluded that Cushing's "unprovoked flight in a high crime area gave rise to an articulable suspicion of wrongdoing" justifying a Terry stop.

[Stopping an automobile and detaining its cccupants constitute a seizure within the meaning of [the Fourth] Amendment[ ], even [if] the purpose of the stop is limited and the resulting detention quite brief.... However, what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.
In determining whether the seizure and search were unreasonable, we ask, first, whether the officer's action was justified at its inception and, second, whether it was reasonably related in seope to the cireum-stances which justified the interference in the first place.

State v. Lafond, 2003 UT App 101, ¶¶ 11-12, 68 P.3d 1043 (quotations and citations omitted). "If reasonable suspicion of more serious criminal activity ... arise[s], the seope of the stop is still limited. The officers must diligently [pursue] a means of investigation that [is] likely to confirm or dispel their suspicions quickly, during which time it [is] necessary to detain the defendant." State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (quotations and citations omitted) (second, third, and fourth alterations in original). For example, once the officers apprehend a suspect pursuant to reasonable suspicion, they may frisk the suspect in order to dispel or confirm whether the suspect is carrying a weapon. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

120 Neither party challenges the trial court's conclusion that the initial traffic stop was justified. Further, we agree with the trial court that Cushing's flight in a high crime area to evade Detective Jensen gave rise to reasonable suspicion of more serious criminal activity sufficient to detain him. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), resolves the issue. In that case, the defendant fled unprovoked in an area known for a high incidence of drug trafficking. These two considerations alone were enough for the United States Supreme Court to determine that reasonable suspicion existed.

An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the cireumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations in a Terry analysis.

Id. at 124, 120 S.Ct. at 676 (citations omitted). Further, "[hleadlong flight-wherever it occurs-is the.consummate act of evasion: [ilt is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Id.

4 21 In this case, Cushing fled unprovoked from a DUI stop in an. area known by the detective to be a high crime area. Thus, this case is indistinguishable from Wardlow, and the apprehension and detention of Cushing does not pose a problem. See also United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975) (stating "obvious attempts to evade officers can support a reasonable suspicion").

122 However, the scope of that reasonable suspicion "is still limited." State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994). The officers may not pursue a line of investigation not "reasonably related in seope to the cireumstances which justified the interference in the first place." Lafond, 2003 UT App 101 at ¶ 12, 68 P.3d 1043. This limited justification to detain a suspect does not give officers carte blanche investigative authority. It must be particularly noted that police authority to detain a suspect on reasonable suspicion is a creature of exigency. See Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Once the suspect is in police custody, the threat is dispelled, and the officers find nothing giving rise to an expanded scope of suspicion or probable cause, police investigative authority generally dissolves. See id. at 25-26, 88 S.Ct. at 1882; State v. Chapman, 921 P.2d 446, 452-53 (Utah 1996) (stating unduly long detention may cast doubt upon reasonableness); Lopez, 873 P.2d at 1132.

¶ 23 In this case, police handcuffed Cushing and searched his person to determine whether he had a weapon or if any drugs were readily apparent. Upon determining that Cushing had neither drugs nor weapons, they placed him in a patrol car to wait while they expanded their investigation by searching his apartment. Police authority to detain Cushing and continue their investigation ended when their suspicions that Cushing had contraband or dangerous weapons on his person were dispelled. "Once the purpose of the initial stop is concluded, ... the person must be allowed to depart. ' "Any further temporary detention for [investigation] after [fulfilling] the purpose for the initial ... stop" ' constitutes an illegal seizure, unless an officer has probable cause or a reasonable suspicion of a further illegality." State v. Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650 (quoting State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct.App.1992) (quoting State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990))) (second alteration in original).

124 The State argues that "reasonable suspicion of further illegality," id., existed because Cushing's roommates perceived him to be a continuing threat. As noted above, however, this concern was neutralized when police finally removed Cushing from the apartment, cuffed him, secured him in a patrol car, and ultimately found nothing illegal on him.

125 Even assuming, however, that Cushing's temporary foray into his apartment gave rise to reasonable suspicion because it allowed him time to secrete contraband or weapons, neither reasonable suspicion nor probable cause can justify the warrantless entry of a home. "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable.... 'It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.'" Payton v. New York, 445 U.S. 573, 586, 588 n. 26, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639 (1980) (citations omitted). If probable cause to believe a search of the home will yield evidence of contraband is insufficient, then reasonable suspicion certainly will not do:

"[The Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime, and if the procedure is carried out with dispatch. Of course, neither reasonable suspicion nor probable cause would suffice to permit the officers to make a warrant-less entry into a person's house for the purpose of obtaining fingerprint identification."

Hayes v. Florida, 470 U.S. 811, 817, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985) (citation omitted).

26 Thus, the search of Cushing's person and his detainment in the patrol car eut off all possible justifications for entering and searching his apartment. That search was in no way "reasonably related in scope to the cireumstances which justified [Cushing's detainment] in the first place." State v. Lafond, 2003 UT App 101,¶ 12, 68 P.3d 1043 (quotations and citations omitted). Although the police were justified in the initial stop and were justified in pursuing and briefly detaining Cushing based on his evasive behavior, they were entirely unjustified in expanding the scope of their search onee their reasonable suspicions were dispelled. Accordingly, the trial court correctly suppressed the evidence seized pursuant to that unreasonable search, and we affirm.

1 27 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and PAMELA T. GREENWOOD, Judge.

      . The State also challenged the trial court's conclusion that the evidence was tainted by arguing that the evidence was seized pursuant to a valid third-party consent. It withdrew that challenge in its reply brief, however, because it became clear that the consent argument had not properly been preserved for our review.

      . The analysis in Cushing's brief goes further, arguing that his roommates' consent to search the apartment was tainted by the illegality of Cushing's continued detention. He maintains police exploited the improper detention in order to obtain the consent of his roommates. However, Cushing's continued detention itself did not taint the consent because the police undoubtedly would have sought and obtained consent even if Cushing had been released. Rather, the consent did not justify the warrantless entry of the apartment because police were not justified in continuing their investigation once their suspicions about weapons or contraband on Cushing's person were dispelled.


author: THORNE, Jr., Judge: BENCH, Judge

text:
    2003 UT App 354
    STATE of Utah, Plaintiff and Appellee, v. Lawrence Stewart KNIGHT, Defendant and Appellant.
    No. 20020465-CA.
    Court of Appeals of Utah.
    Oct. 17, 2003.

      Gary L. Bell, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., BENCH and THORNE, Jr., JJ.
   OPINION

THORNE, Jr., Judge:

T1 Defendant Lawrence Stewart Knight appeals his conviction for sexual abuse of a child, a second degree felony, in violation of Utah Code Annotated section 76-5-404.1(1) (1999). We reverse and remand.

BACKGROUND

T2 In March of 1998, Knight was living with his wife, their one-month-old son, and his wife's three daughters. S.S., the oldest, was twelve years old at the time and had recently undergone a tonsillectomy. Knight and his wife decided to have S.S. sleep in their bed during her recovery. While S.S. was sleeping in the parents' bed, Wife was awakened by her infant son and took him into the living room, leaving Knight and S.S. alone in the bed.

T3 At that time, S.S. was sleeping on her left side facing away from Knight, She awoke when she felt Knight slowly sliding his right hand into her underwear. She felt his hand reach her vagina, "fondle" her genitalia for eight to ten seconds and then felt his fingertip penetrate her vagina. Finally, she felt Knight suddenly remove his hand and get out of bed. S.S. pretended she was asleep during the incident and did not tell her mother about the incident.

14 Two-and-a-half years later, in November 2000, S.S. told one of her mother's close friends about the incident, who then told Wife, Wife confronted Knight, who initially responded, "Could someone else have done this to her?" Soon thereafter, however, Knight admitted the incident. He then explained to Wife that he had been dreaming he was on a eruise ship with Wife, he mistook S.S. for Wife, and that he immediately got out of bed when he realized he was touching S.S. Knight told her that he intended to tell her about the incident the next morning, but that he "blocked it out."

15 Approximately six months after the disclosure, Wife spoke to a school counselor concerning D.S., another of her daughters. The counselor then spoke with D.S., who revealed that Knight had touched S.S.'s genitalia. As a result, a caseworker from the Division of Child and Family Services was contacted and the caseworker interviewed S.S. and her family. Later, both the caseworker and a detective from the Bountiful Police Department interviewed SS. and Knight. Criminal proceedings ensued.

T6 At trial, Knight testified that he had been sleeping and dreaming of his wife when he unexpectedly awoke and realized that he was touching S.S. He claimed that he was "shock[ed]," the he "immediately recoiled," and "lea[pt] from the bed," that he was "flood[ed] with emotions" and "feelings of shock and horror [and] disbelief." Knight further testified that he did not have an erection during the incident and it was "absolutely not" his conscious desire to touch S.S. He also testified that he had not touched S.S. with the intent to arouse or gratify himself or S.S.

T7 At the conclusion of trial, Knight requested the court instruct the jury on the lesser included offense of sexual battery. The prosecutor objected. Knight argued that the jury could conclude from the evidence that he had intentionally, but mistakenly, touched S.8. thinking that she was his wife, in a situation where he should have known that he might touch S.S. and thereby cause her affront or alarm. The parties debated the issue and the judge took it under advisement, but made no ruling on the record. However, the final jury instructions included no lesser included offense instruction on sexual battery. The matter was submitted to the jury and Knight was found guilty of one count of sexual abuse of a child and placed on probation for three years. Knight appeals.

ISSUE AND STANDARD OF REVIEW

1 8 Knight argues that the trial court erred in refusing to instruct the jury on the lesser included offense of sexual battery. "The refusal to give a requested jury instruction on a claimed lesser included offense is a legal determination, which we review for correctness." State v. Simpson, 904 P.2d 709, 711 (Utah Ct.App.1995).

ANALYSIS

19 Knight argues that it was reversible error for the trial court not to instruct on the lesser included offense of sexual battery. In State v. Baker, 671 P.2d 152 (Utah 1983), the Utah Supreme Court established a two-part test for determining whether a trial court erred in failing to instruct the jury on a requested lesser included offense. See id. at 158-59. First, we compare the statutory elements of the crimes to determine whether they overlap. See id. Second, we determine whether a rational basis exists from which the jury could acquit the defendant of the offense charged and convict him of the lesser included offense. See id. "[WJhen the evidence is susceptible to alternative interpretations, the trial court is obligated to give a lesser included offense instruction if any of those alternative interpretations would provide both a 'rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." " Id. at 160 (citation omitted).

10 Here, because the State concedes that the elements of sexual abuse of a child and sexual battery overlap, we assume that the first prong of the Baker analysis is satisfied. See id. Thus, we consider only whether the evidence offered at trial provides a " 'rational basis for a verdict acquitting the defendant of the offense charged and convict ing him of the included offense." " Id. (quoting Utah Code Ann. § 76-1-402(4) (1973)). To make this legal determination, we need "only decide whether there is a sufficient quantum of evidence presented to justify sending the question to the jury." Id. "[When the evidence is ambiguous and therefore susceptible to alternative interpretations, and one alternative would permit acquittal of the greater offense and conviction of the lesser, a jury question exists and the court must give a lesser included offense instruction at the request of the defendant." Id.

1 11 Here, Knight does not dispute the fact that he touched S.S.'s genitalia. Knight, also concedes that "under [the] cireumstances" in which he found himself-in bed alone with his stepdaughter-he should have known that he could have been touching his stepdaughter and that his actions would "likely cause [her] affront or alarm." Utah Code Ann. § 76-9-702(8) (1999 & Supp.2002). Thus, because he was asleep when the incident occurred, and therefore, lacked the req-visite intent to be guilty of sexual abuse of a child, Knight argues that there is a rational basis in the evidence for convicting him of sexual battery and acquitting him of sexual abuse of a child.

1 12 The State, however, argues that there is no rational basis for concluding that Knight acted with the requisite intent to commit sexual battery because he repeatedly denied touching the victim. The State, therefore, argues that the court correctly did not give the lesser included offense instruction. The record is clear, however, that Knight eventually admitted to the touching but then claimed that he lacked the requisite intent to support the felony charge.

113 The State also argues that courts should not liberally grant requests for a lesser included offense instruction. According to the State, State v. Kell, 2002 UT 106, 61 P.3d 1019, reverses the long-standing view "that any evidence, even the uncorroborated testimony of the defendant, entitles a defendant to any instruction on his theory of the case." Id. at 124 n. 5, 61 P.3d 1019. The State argues that a lesser included instruction is not warranted when the "great weight of the evidence augurs against the instruction."

[ 14 After reviewing the facts, we conclude that the case at bar is significantly different from Kell. In Kell, the defendant requested an instruction on imperfect self-defense manslaughter, which was denied. See id. at % 22, 61 P.3d 1019. On appeal, the Utah Supreme Court found that the evidence was insufficient to create a rational basis to acquit the defendant of the greater offense and convict him on the lesser. See id. at 124, 61 P.8d 1019. Moreover, the clear weight of the evidence favored the verdict (e.g., the victim was attacked from the rear and stabbed several times while unarmed and handcuffed) and did not support, in any reasonable manner, the defendant's theory of self-defense. See id. at 1 25 n. 5, 61 P.3d 1019.

'I 15 In the present case, the weight of the evidence does not run contrary to Knight's claim that he was asleep and mistook S.S. for his wife. Instead, evidence supports both the State's and Knight's theory of the case. Accordingly, the State's reliance upon Kell is unpersuasive.

[16 Thus, looking at the evidence in the light most favorable to the defendant, see State v. Crick, 675 P.2d 527, 532 (Utah 1983), we conclude there was evidence presented which is consistent with Knight's argument that he did not touch S.S. "with intent to cause substantial emotional or bodily pain to [S.S.] or with the intent to arouse or gratify the sexual desire of [himself or S8.S8.]." Utah Code Ann. § 76-5-404.1(1) (1999). From this evidence, the jury could have found that while Knight "intentionally touche[d] ... the genitals of [S.S.]," he did so believing S.S. to be his wife, whom he thought would consent. Utah Code Ann. § 76-5-404.1(1) (Supp.2002). Accordingly, we conclude that there "is a sufficient quantum of evidence presented to justify sending the question to the jury." State v. Baker, 671 P.2d 152, 159 (Utah 1988). The trial court erred in not giving the lesser included offense instruction.

1 17 We conclude that when an element of the crime, such as intent, is in dispute, and the evidence is consistent with both the defendant's and the State's theory of the case, failing to instruct on the lesser included offense presumptively affects the outcome of the trial. Under such cireumstances, our confidence in the verdict is undermined, because the available evidence could support a jury's decision to convict on either the greater or lesser crime. See State v. Oldroyd, 685 P.2d 551, 556 (Utah 1984) (" '[Wlhere proof of an element of the crime is in dispute, the availability of the "third option"-the choice of conviction of a lesser offense rather than conviction of the greater or acquittal-gives the defendant the benefit of the reasonable doubt standard' " (alterations in original) (quoting Baker, 671 P.2d at 157)); State v. Payne, 964 P.2d 327, 334 (Utah Ct.App.1998) ("For an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict." (citations and quotations omitted)).

CONCLUSION

{18 Knight has presented a sufficient quantum of evidence to justify submitting the question of whether he committed sexual battery instead of sexual abuse of a child to the jury. Consequently, the trial court erred in not giving the lesser included offense instruction. Furthermore, the evidence supports

both Knight's theory and the State's theory of the case. It is reasonable to conclude that the jury could have convicted Knight of either sexual abuse of a child or sexual battery. Therefore, our confidence in the jury verdict is undermined. The verdict is reversed and the case is remanded to the district court for a new trial.

19 I CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge.

BENCH, Judge

(dissenting):

120 I believe that "the evidence in this case is insufficient to provide a rational basis for the jury to acquit [Knight] of [sexual abuse of a child] and convict him of [sexual battery]." State v. Kell, 2002 UT 106,% 24, 61 P.3d 1019, In Kell, a majority of the Utah Supreme Court held that a defendant's uncorroborated, self-serving testimony does not entitle him to an instruction on his theory of the case. See id. at n. 5, 61 P.8d 1019. All we have to support an instruction on sexual battery in the present case is Knight's own testimony. "

121 Furthermore, "even [if] there was a rational basis in the evidence for giving the requested ... instruction, the evidence of the greater offense was so strong that there is no substantial likelihood of a different outcome had the requested instruction been given." State v. Payne, 964 P.2d 827, 884 (Utah Ct.App.1998). After repeatedly denying touching his twelve-year-old stepdaughter, Knight finally admitted that he touched her as alleged. He claims he thought he was initiating sexual contact with his wife while on a cruise ship. Yet, he also asserted that the contact did not sexually arouse him. An instruction on sexual battery would have made no difference because Knight's version of the events is fraught with contradiction and is beyond reasonable belief. Therefore, no rational basis exists for the jury to conviet him of sexual battery rather than sexual abuse of a child.

122 I would rule that any error in not giving the instruction was, at most, harmless error. See id.

      . Utah Code Annotated section 76-5-404.1(1) sets forth the elements of sexual abuse of a child: "A person commits sexual abuse of a child if ... the actor touches the ... genitalia of any child .. with intent to cause substantial emotional or bodily pain to any person or with the intent to arouse or gratify the sexual desire of any person." Utah Code Ann. § 76-5-404.1(1) (1999).
      In contrast, Utah Code Annotated section 76-9~-702(3) sets forth the elements of sexual battery: "A person is guilty of sexual battery if the person . intentionally touches ... the genitals of another person ... and the actor's conduct is under circumstances the actor knows or should know will likely cause affront or alarm to the person touched." Utah Code Ann. § 76-9-702(3) (1999 & Supp.2002).

      . Although there is evidence from which the jury may well have found Knight guilty of sexual abuse of a child, "it is not this Court's role to weigh the evidence [but] is [instead] the responsibility of the trier of fact." State v. Oldroyd, 685 P.2d 551, 555 (Utah 1984).

      . In Payne, 964 P.2d 327 (Utah Ct.App.1998), we addressed the context in which reversal was warranted for failing to give a lesser included offense instruction. There, we stated that
      "if the evidence is ambiguous and susceptible to alternative explanations the trial court must give the lesser included offense instruction if any one of the alternative interpretations provides a rational basis for a verdict acquitting
      the defendant of the offense charged and convicting him of the included offense."
      Id. at 333-34 (citations omitted). Logically, in a circumstance where the jury could rationally find either one of the two options, especially when intent is in dispute, then it is impossible to say that failing to give the instruction did not affect the outcome of the trial. Consequently, in circumstances such as in this case, where the evidence supports both Knight's theory and the State's theory, "the likelihood of a different outcome is ... sufficiently high to undermine our confidence in the verdict." Id. at 335.
      Furthermore, Payne, and the cases cited as authorities therein, are factually different from this case. For example, in Payne, the defendant failed to present any evidence to rebut an eye witness's account of the crime, nor did he introduce evidence to contradict the victim's testimony regarding the crime. See id. at 334. Similarly, in State v. Piansiaksone, 954 P.2d 861 (Utah 1998), a case relied upon by Payne, see Payne, 964 P.2d at 334, the court instructed the jury on the crime of murder and the lesser included crime of emotional disturbance manslaughter. See Piansiaksone, 954 P.2d at 869. However, the instruction restricted the order in which the jury could consider the crimes. See id. at 869-70. On appeal, the Utah Supreme Court held that the trial court erred in dictating the order in which the jury could consider the crimes, but found the error harmless. See id. at 870. The court stated that "there was no basis in the evidence" to support the lesser included offense instruction and so restricting the jury's consideration of that crime did not affect the outcome of the trial. Id. at 871.
      Unlike Payne and Piansiaksone, where no evidence supported giving the lesser included offense instruction, Knight presentéd a "sufficient quantum of evidence" to justify sending the issue to the jury. State v. Baker, 671 P.2d 152, 159 (Utah 1983). Under the facts of this case, where intent is in dispute and there is a quantum of evidence to justify sending the issue to the jury, we cannot say that "there is no substantial likelihood of a different outcome had the requested instruction been given." Payne, 964 P.2d at 334.
      The other cases cited in Payne are also distinguishable. State v. Jacques, 924 P.2d 898, 902 (Utah Ct.App.1996), and State v. Iorg, 801 P.2d 938, 941-42 (Utah Ct.App.1990), each address harmless error in the context of erroneously admitted evidence. State v. Knight, 734 P.2d 913, 920 (Utah 1987), and State v. Willett, 909 P.2d 218, 224 (Utah 1995), address a violation of a discovery rule and invocation of the right to remain silent.